Evidence Flashcards
Confrontation clause
Secures a defendant’s right to confront witnesses offering testimonial evidence against him/her in a criminal case
What is testimonial evidence?
Evidence made primarily for use in a criminal investigation.
EX:
* Witness statements made to police
* Grand jury testimony
* Lab results
* Transcripts of prior testimony
* Affidavits
When is testimonial evidence admissible?
When: (1) declarant is unavailable as a witness at trial, AND (2) the defendant had a prior opportunity to cross-examine the declarant
Medical records (hearsay exception)
Statements regarding how a patient was injured (not who is responsible for the injury) are admissible
Character Evidence
In civil cases, evidence of a person’s character is inadmissible to prove that the person acted in accordance with that character on the occasion at issue unless character is an essential element of a claim or defense.
Refreshing recollection while on witness stand
The opposing party MUST be allowed to inspect it, cross-examine the witness on it, and introduce any relevant portion into evidence.
How is documentary evidence authenticated through handwriting verification?
1) Non-expert opinion – a lay witness with personal knowledge of the claimed author’s handwriting (not acquired for the current litigation) testifies that a document is in the author’s handwriting; OR
2) Comparison – an expert witness or the trier of fact compares the writing in question with another writing that has been authenticated.
What is an adjudicative fact?
One that is important to the outcome of particular case
When can judicial notice be taken?
At any stage of a proceeding – including on appeal, so long as it is not unfair to the opposing party and does not disrupt the fact finder’s authority.
Can a judge examine a witness during trial?
Yes, FRE 614 authorizes the court to develop or clarify testimony by: (1) calling a witness sua sponte or at the suggestion of a party and/or (2) examining a witness, regardless of who called the witness.
When can a party object to the court’s questioning of a witness?
Objection may be postponed until the next opportunity where the jury is no longer present in the courtroom.
Prior inconsistent statement
Always admissible to discredit witness’ trial testimony; however, can be used as substantive evidence to prove truth only if excluded or excepted from hearsay (i.e.)
Business record exception
Records that are (1) made at or near the time of the recorded event (or act, condition, opinion, diagnosis); (2) made by or based on information from someone with personal knowledge of that event; and (3) made and kept as a regular practice in the course of regularly conducted business activities.
NOTE: Records made in preparation for litigation do not fall under this exception.
Past recollection recorded
A record may be read into evidence if: (1) a witness once knew the recorded information but cannot recall it at trial; (2) the witness made or adopted the record when the matter was fresh in his/her mind; and (3) the record accurately reflects the witness’ personal knowledge at the time it was made.
When is a witness qualified to provide expert opinion testimony
When the witness has specialized knowledge, skill, experience, education, or training in a subject that pertains to an issue in litigation.
When is expert testimony admissible?
If the court determines that it is BOTH:
(1) relevant – testimony will help the trier of fact understand the evidence or determine a fact in issue AND
(2) reliable – testimony is based on sufficient facts or data and product of reliable principles and methods that have been reliably applied by the expert to the facts of the case
Two methods of verifying handwriting
(1) Non-expert opinion – lay witness with personal knowledge of the claimed author’s handwriting (not acquired for the current litigation) testifies as to whether a document is in the author’s handwriting
(2) Comparison – an expert witness or the trier of fact compares the writing in question with another writing that has been authenticated
Rule of completeness
An adverse party may introduce any other part of the admitted statement OR any other statement that should, in fairness, be considered with the admitted statement.
PP: This rule seeks to remedy the misleading effects that an out-of-context or incomplete statement may have on a fact finder.
Best evidence rule
Requires that an original or reliable duplicate of a recording, writing, or photograph be produced to prove its contents. However, a party may use other, secondary evidence (i.e. testimony) to prove a document’s contents if certain factual conditions are established (eg, all originals are lost or destroyed)
Who determines whether a party has fulfilled the factual conditions for admitting secondary evidence (Best Evidence Rule)
Usually it is a determination for the court; however, in a jury trial, the jury determines issues about whether:
(1) an asserted document ever existed;
(2) another document produced at a hearing or trial is the original; or
(3) other evidence of content accurately reflects the documents content.
What is the scope of cross-examination questions limited to?
(1) the subject matter of direct examination and (2) matters affecting the witness’ credibility.
What can a party introduce to attack a witness’ credibility?
(1) Prior inconsistent statement made by the witness; (2) a motive for the witness to lie (eg, bias against a party) or (3) specific instances of conduct that are probative of the witness’ character for truthfulness.
When can a specific instance of conduct be introduced extrinsically (i.e. from other sources)?
When it relates to a criminal conviction for a felony or crime of dishonesty
Statement against interest
One that is: (1) contrary to the declarant’s proprietary (ie, ownership) or pecuniary (monetary) interest, (2) tends to invalidate the declarant’s claim against someone else, or (3) exposes the declarant’s to civil or criminal liability
Offer of compromise (i.e. settlement offer)
Inadmissible to prove the validity or amount of a disputed claim. However, this rule only applies if there was an actual dispute regarding a party’s liability or the value of a claim at the time the offer was made.
Out of court statement made by and offered against a party opponent
Excluded from the hearsay rule (i.e. hearsay). The opposing party’s statement is admissible as substantive evidence as long as it is relevant and not prohibited by other evidentiary rules.
How can one attack the credibility of a witness?
By introducing reputation, opinion testimony, or specific instances of conduct (SICs) that are probation of the witness’ character for untruthfulness
Character evidence
Generally not admissible because too prejudicial.
Note — CE is about bad things one of the parties did in the past.
Judicial notice
Facts that are accepted — no reason to waste time disputing/opinion.
If party requests judicial notice must judge accept?
Yes
Character evidence when a person’s character is directly in issue
Character can be proved by reputation or opinion testimony OR specific instances of conduct
Best evidence rule
Only applies when a defendant’s contents are at issue — ie, when (1) the document is used to prove the happening of an event, (2) the document has a legal effect, or (3) the witness is testifying based on facts from the document
Character Evidence when character is “in issue”
When plaintiff’s character is “in issue” – i.e., an essential element of the claim or defense under the substantive law, character evidence is relevant both to whether the plaintiff has a certain character and to the extend of damages. (FRE 405 – when character is in issue, it can be proved by evidence of reputation, opinion, or specific acts)
Absence of business records hearsay exception
Absence of entries in business records are admissible as substantive evidence if: (1) evidence is offered to prove matter did not occur or exist, (2) the record was regularly kept for that kind of matter, and (3) opponent does not establish a lack of trustworthiness
Learned Treatise
Under the learned treatise exception, if the court finds a publication to be a reliable authority, then if a statement in the publication is “called to the attention of an expert witness on cross-examination or relied on by the expert on direct examination,” then the statement “may be read into evidence but not received as an exhibit.”
Negligence per se
Three requirements: (1) defendant violated a statute, (2) the statute was designed to protect against the same type of accident that the defendant’s conduct caused, and (3) the accident victim falls within the class of persons the statute was designed to protect.
When are attorney-expert communications NOT privileged?
(1) when they relate to the expert’s compensation, or (2) identify facts, data, or assumptions provided by the attorney that the expert considered or relied on in forming his/her opinions.
Can a criminal defendant offer evidence of their good character?
Yes, but only if it is pertinent to the charges against them.
EX: A defendant who is charged with battery (crime of violence) may offer evidence of his/her peaceful nature. Such evidence must be in the form of reputation or opinion testimony
How is a photograph authenticated?
By having a witness with personal knowledge, i.e. knowledge based on firsthand observation or experience – of the thing depicted testify that the photograph fairly and accurately depicts that thing.
Does relevant tangible evidence need to be property authenticated before it can be introduced into evidence?
Yes
Dying declaration
(1) declarant must be unavailable; (2) the case must be a civil or homicide case, (3) the statements must relate to the cause or circumstance of death, and (4) the statement must be made under belief of impending death.
