evidence Flashcards
The best evidence rule—also known as the original document rule—generally requires that
an original recording, writing, or photograph(referred to as “document”) be produced to prove its contents.
The Best Evidence Rule applies when
a witness is testifying based on facts learned from the document—as opposed to personal knowledge.
Is real or physical evidence (e.g., a three-dimensional model) subject to the best evidence rule?
NO
One exception to the best evidence rule allows other evidence of a document’s content (e.g., testimony) to be introduced if
the proponent establishes that all of the originals were lost or destroyed through no bad faith of the proponent.
Does the prosecution have to provide a written summary of testimony from an expert witness the prosecution intends to offer at trial?
YES
*Duplicates are admissible unless
original’s authenticity is questioned or it would be unfair to admit them.
posttrial juror testimony is admissible if it addresses:
1) extraneous prejudicial information brought to the jury’s attention
2) an outside influence improperly brought to bear on a juror or
3) a mistake made in entering the verdict onto the verdict form.
hearsay exception for recorded recollections allows a record to be read into evidence if it:
1) concerns a matter that a witness once knew but cannot recall at trial
2) was made or adopted by the witness when the matter was fresh in his/her mind and
3) accurately reflects the witness’s personal knowledge at the time it was made.
recorded recollection may be received as an exhibit only if
it is offered by an adverse party
Intrinsic evidence is always admissible for
impeachment purposes.
extrinsic evidence for impeachment is admissible only if
1) the impeached witness has the opportunity to explain or deny; and
2) adverse party can examine the witness about the inconsistent statement
3) catchall exception- “if justice so requires”
the woman’s statement to her roommate is not a present sense impression because it was made hours after the woman heard the defendant’s statement—not
while or immediately after she heard it
The law encourages plea-bargaining, so a defendant’s statements during plea negotiations are generally
not admissible against the defendant.
defendant may waive protection against admissibility of statements during plea negotiations—just like any other privilege—if the waiver is made
knowingly and voluntarily
When a hearsay declarant’s statement is admitted into evidence, the declarant may be impeached in the same manner as a testifying witness—e.g., by showing that the declarant’s statement was
motivated by bias or self-interest.
Federal Rule of Evidence (FRE) 608 provides the framework to attack or support a witness’s character for truthfulness through:
1) reputation or opinion testimony about the witness’s character for truthfulness or
2) specific instances of conduct (SICs)—i.e., convictions for felonies or crimes of dishonesty OR prior bad acts that relate to the witness’s character for truthfulness
A SIC that involves a conviction for a felony or crime of dishonesty can be introduced
intrinsically (i.e., through the witness’s testimony) or extrinsically (i.e., from other sources).
a SIC involving a mere bad act may only be introduced
intrinsically.
when a witness denies a SIC involving a bad act on cross-examination
the examiner is stuck with the witness’s answer.
A prior inconsistent statement is admissible nonhearsay if
(1) it was given under penalty of perjury at a trial, hearing, deposition, or other proceeding and
(2) the declarant testifies and is subject to cross-examination.
a prior inconsistent statement can also be introduced extrinsically for impeachment purposes if
the witness has the opportunity to explain or deny, and the adverse party can examine the witness about, the statement.
Once a witness has used a writing to refresh his/her recollection, the adverse party is entitled to
(1) have the writing produced for inspection,
(2) cross-examine the witness about the writing, and
(3) introduce into evidence any portion of the writing that relates to the witness’s testimony.
Statements made by and offered against a party-opponent are nonhearsay and therefore
admissible substantively unless barred by another evidentiary rule.
Under FRE 411, evidence that a party was (or was not) covered by liability insurance is
not admissible as substantive proof of negligence or wrongdoing.
Authenticating an item of evidence that is a physical representation of something that could not otherwise be seen requires proof that
(1) the process for creating the evidence was accurate,
(2) the machine that produced the evidence was working properly, and
(3) the operator of the machine was qualified to operate it.
The best evidence rule generally requires that an original of a recording, writing, or photograph be
produced to prove its contents
a duplicate is admissible to the same extent as the original unless
(1) a genuine question is raised about the original’s authenticity or
(2) the circumstances make it unfair to admit the duplicate.
Public policy encourages the ____________ of disputes.
settlement of disputes
FRE 408 generally bars the admission of evidence of compromise offers (or acceptance of such offers), as well as conduct or statements made during compromise negotiations, when that evidence is offered to:
1) prove or disprove the validity or amount of a disputed claim or
2) impeach by a prior inconsistent statement or contradiction.
A party does not have be a party to a compromise agreement/offer/negotiation to assert 408 objection, bc 408 applies even when
the party seeking to introduce such evidence was not a party to the agreement.
Evidence is relevant if it is
both probative and material
Relevant evidence may be excluded under Rule 403 if
its probative value is substantially outweighed by the danger of unfair prejudice.
Character evidence, which is generalized information about a person’s behavior, including evidence that the defendant is a criminal, is
generally inadmissible
prosecution is not permitted to introduce evidence of a defendant’s bad character to prove
that the defendant has a propensity to commit crimes and therefore is likely to have committed the crime in question.
a defendant’s bad acts are admissible for another purpose, such as proving
motive, intent, absence of mistake, identity, or common plan (often referred to as “MIMIC” evidence).
Virginia does permit the introduction of character evidence, for substantive and impeachment purposes, in the form of
reputation testimony
Virginia does not permit the introduction of character evidence in the form of opinion testimony for
either substantive or impeachment purposes.
While a spouse cannot be compelled to testify against his or her spouse in a criminal case, the spouse can
choose to testify
person may refuse to disclose, and may prevent anyone else from disclosing, any
confidential communication between himself and his spouse during their marriage, regardless of whether he is married to that spouse at the time he objects to disclosure.
when impeaching a witness who is a criminal defendant or a party in a civil case, Virginia generally allows only the fact of a felony conviction or a misdemeanor involving moral turpitude and the number of convictions, not
the name and nature of the crime
a witness may be impeached by a felony conviction, even though the crime of which the witness was convicted does not
relate to the defendant’s character for truthfulness
unlike the federal rules, the Virginia rules do not impose additional requirements on the use of a conviction for which more than 10 years have elapsed since
the conviction or release from confinement, whichever is later.
Virginia rules do not impose a notice requirement for the use of
criminal convictions as impeachment evidence
Because a witness may be influenced by his relationship to a party (e.g., employment), his interest in testifying (e.g., avoidance of prosecution), or his interest in the outcome of the case (e.g., receipt of an inheritance), a witness’s bias or interest is
always relevant to the credibility of his testimony, and consequently, a witness may be impeached on that ground.
Evidence that a person was or was not insured against liability is
not admissible to prove whether the person acted negligently or otherwise wrongfully
Evidence that a person was or was not insured against liability may be admissible for another purpose such as
to prove agency, ownership, or control, or to prove a witness’s bias or prejudice.
not all relevant and probative evidence is
admissible
Virginia does not permit the presentation of otherwise admissible character evidence in the form of
opinion testimony
Although the prosecution is generally not permitted to introduce evidence of a defendant’s bad character to prove that the defendant has a propensity to commit crimes and therefore is likely to have committed the crime in question, the prosecution can offer such evidence when
the defense “opens the door” by introducing evidence of the victim’s bad character; but not in opinion testimony form
Under the Virginia rules of evidence, unlike the federal rules of evidence, a prior inconsistent statement made by a witness is
not admissible for its truth even though the statement was made under penalty of perjury; instead, it is inadmissible hearsay
even though the witness made the statement under penalty of perjury at her deposition, the Virginia rules do not recognize such a statement as
nonhearsay or a hearsay exception
If a statement is in writing, the witness may be cross-examined as to the statement in Virginia without
such writing being shown to the witness.
If the intent is to contradict such witness by the writing
her attention must be called to the occasion on which the writing is supposed to have been made before such contradictory proof can be given, but this still does not require the attorney to show the witness the writing.
Virginia recognizes a clergy-penitent evidentiary privilege that
belongs to the clergy and not the penitent.
pastor, as holder of the clergy-penitent privilege,
can testify in the defendant’s murder trial if he wants to.
When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is
not admissible to prove negligence, culpable conduct, a defective product or design, or the need for a warning or instruction.
objections must be stated with
reasonable certainty
objection if evidence is
admitted
offer of proof if evidence is
excluded
dont need to renew a challenge after
ruling on admissibility is made by court
completeness rule
for partial introduction of evidence, an adverse party may compel introduction of an omitted portion to help explain the admitted evidence
judicial notice
the courts acceptance of a fact as true without requiring formal proof
instructing jury of judicial notice in civil case
jury must be instructed to accept the noticed fact as conclusive
instructing the jury of judicial notice in criminal case
jury must be instructed that it may or may not accept judicially noticed fact as conclusive
witnesses who may not be excluded
parties
court may permit what kind of witness to remain in court room
expert witness
if a witnesses answer makes testimony improper
move to strike
exclusion of relevant evidence under 403
if probative value is substantially outweighed by the danger of unfair prejudice-confusing issues, misleading jury, undue delay, wasting time, needless presentation of cumulative evidence
character evidence admissible in civil case when
character is an essential element of a claim or defense, and not a means of proving a persons conduct (defamation, negligent hiring or negligent entrustment, child custody)
character evidence in criminal case, D’s character by prosecution
cant use character evidence for propensity
character evidence in criminal case, D’s character by Defense
D can introduce good character inconsistent with crime charge, if pertinent and in form of reputation/opinion
if D opens door, offering evidence of good character, then prosecution can
rebut by attacking D’s character
D can introduce reputation/opinion evidence of victims character when
relevant to defense asserted- very limited use of victim sexual conduct
virginia only allows character evidence in form of
reputation, cant use opinion
character evidence of witness untruthfulness is admissible/relevant to
impeach a witness
bad acts cant be used for
propensity
bad acts for MIMIC purpose
admissible, prosecution must give written notice before trial to defendant of general nature of MIMIC evidence used, and nonpropensity purpose; no notice requirement in VA
habit evidence
persons particular routine reaction to a specific set of circumstances; can be used for propensity
impeachment based on
character for unthruthfulness; bias; ability to perceive or testify accurately; inconsistent prior statement; another witness
