Evidence Flashcards
Hearsay
Out of court statement offered to prove the truth of the matter asserted
Hearsay is generally
not admissible
How many hearsay exceptions are there?
Six exceptions
Present Sense impression
Observations, like a reporter. Discussing what they are observing as they are witnessing it.
Excited Utterances
Statement made while excited. Look for exclamation point, screams, general excitement
Then Existing State of Mind
Other emotions or intent, but not excitement
Business Record
Record kept in the regular course of business. All the time, not matter what.
Dying Declaration
Only in homicide or civil cases. Declarant makes statement believing the are about to die, the statement has to be about why they think they are dying, and declarant has to now be unavailable.
Statement Against Interest
Declarant is either a party or a non-party and makes a statement against their own interest which tends to make them liable or guilty of something. Declarant must be unavailable.
Non-hearsay covers
(1) Admissions by a party to the case, (2) Prior sworn in consisten statements, and (3) prior consistent statements.
Admissions by a party to the case include
Adoptive admissions and vicarious admissions
Adoptive admissions
When someone accuses a party of something and a reasonable person under the circumstances would deny it, but the party stays silent, it is deemed (adopted) as an admission
Vicarious admissions
Admission by an employee would be vicariously admissible against the employer
Attorney/Client Privilege
There has to be some sort of relationship between the attorney and the client, does not have to be a statement to the attorney directly and can be made to a person who works for the attorney, and the nature or context of the information has to be confidential.
Attorney/Client Privilege Timeframe
The privilege lasts forever, but could be waived.
Husband/Wife Privilege applies to
Spousal communications and spousal testimony
Spousal Communication
Asking spouse to testify about communication with the other spouse. Either spouse can stop the other one from testifying
Spousal Testimony
Only applies in a criminal case. Spouse is asked about what they know/what they saw. Witness spouse can refuse to testify.
Impeachment
About the witness. You are trying to ensure that the witness is telling the truth and can use almost anything to impeach a witness as long as it goes to their credibility
Regular impeachment
Catching a witness in a lie or inconsistency based on what they said, saw, heard, etc.
Impeachment by prior conduct
Prior convictions, or prior bad acts
Prior convictions impeachment (Crime of Dishonesty)
If the conviction is for a crime of truthfulness or dishonestly it is admissible.
Prior convictions impeachment (Felony)
If conviction is for a felony, it is not admissible because it does not bear on credibility. Unless, the felony is within 10 years and the judge determines that it passes the balancing test.
Prior bad acts impeachment (Not dishonesty)
If the bad act is not related truthfulness or dishonestly it is not admissible.
Prior bad acts impeachment (dishonesty)
If the bad act relates to dishonesty, you may ask witness while on the stand
What if witness denies prior dishonest act
Once they deny it and leave the stand, the dishonest act cannot be proved via extrinsic evidence.
Character Evidence
Bad things that the defendant (or plaintiff in civil cases) did in the past. Generally inadmissible because it is too prejudicial.
Character Evidence Civil Case Exceptions
Admissible in cases of defamation, misrepresentation, child custody, or negligent entrustment.
Character Evidence Criminal Case Exceptions
(1) Defendant opens the door or (2) MIMIC
When Defendant opens the door with good character
After Prosecution rests, Defendant may bring in evidence of their own good character, but must be for either honesty/truthfulness, or peacefulness (depending on the crime being charged). If they do admit good character, the Prosecution can admit the Defendant’s bad character.
MIMIC
Motive, Intent, Mistake (Defendant made mistake), ID, or Common Plan/Scheme (this is very specific to the person)
Habit
Can show that someone has a habit if they do the act everyday (this is not to show guilt, just that the person has that habit)
Subsequent Remedial Measures
Cannot offer evidence that a party fixed something after an injury to prove that there was negligence or liability because it would go against public policy. Evidence could be offered to show ownership or control
Offer to Settle/Compromise
Any statement made as an offer to settle a case is not admissible to show liability. There must be a dispute first for this rule to apply.
Admissions coupled with offer to settle
Admissions coupled with offer to settle are not severable and not admissible.
Offer to pay medical bills
Statements made to pay medical bills are not admissible
Admissions coupled with offer to pay medical expenses
Admissions made with offer to pay bills can be severed and are admissible. Admissions are admissible, but the offer to pay is not.
