Evidence Flashcards
Preliminary hearings must be conducted outside the presence of the jury when
(1) the issue is the admissibility of a confession,
(2) the defendant in a criminal case is a witness
(3) the interests of justice so require
Evidentiary rulings can be reversed only if
(1) A substantial right of the party has been affected, and
(2) The judge was notified of the mistake at trial and given a chance to correct it
(notification to court via objection or by offer of proof)
Limited Admissibility (rule 105) states
Evidence may be admissible for one purpose but not for another, and upon request of the objecting party limiting instructions may be given to the jury
Rule of Completeness (rule 106) states
If a party introduces part of a written statement, the opposing party may introduce other portions of that statement necessary to put admitted portion into perspective (even if other portions might have been inadmissible) - happens immediately
If Fairness requires, may introduce any other writing or recorded statement
Judicial Notice
Court’s acceptance of a fact (not subject to reasonable dispute) as true without require formal proof
Civil cases - instruct jury it must
Criminal cases - instruct jury it may
Exceptions which allow leading questions on direct examination
(1) to elicit preliminary background information
(2) witness is having trouble communicating due to age or infirmity
(3) when a hostile witness is called
Present recollection refreshed is
when witness has trouble remembering, they are shown a document or thing which helps jog their memory, and then puts note to the side and testifies from present memory
Cross-examination is limited to
the subject of direct
Types of improper questions
(1) Asked and answered (repetitive)
(2) Assume facts not in evidence
(3) Misleading
(4) Argumentative (rhetorical)
(5) Compound
(6) Calls for speculation or conclusion
(7) Non-responsive
(8) Outside scope of direct
Rebuttable presumptions shift
the burden of production on a particular issue, but not the burden of persuasion (e.g. mailing of letter)
Evidence is relevant if
it makes a material fact in issue more or less probable (likely) than it would be without the evidence
Relevant evidence may be excluded if (rule 403)
there’s risk its prejudicial impact substantially outweighs the probative value
(confusion of issues, unfair prejudice, misleading jury, waste of time)
Character evidence cannot be used
to prove trait to prove conformity with that trait to prove guilt
Admissible character evidence may be offered through
reputation or opinion testimony
Character evidence may be introduced if
character is an essential element in the case (generally only in civil cases)
Note: look for claims involving defamation, negligent hiring, entrustment, or child custody
Character evidence may always be introduced to
impeach a witness
Character evidence to prove propensity in civil cases is ONLY allowed in cases involving
child molestation or sexual assault (P may introduce evidence of D’s prior acts of the sort)
In criminal cases, defendants may introduce character evidence if
it is a pertinent trait
If a defendant offers character evidence re: self
the prosecutor is free to rebut by attacking D’s character and may cross-examine D’s character witnesses with questions about specific acts
(opening the door)
Character witnesses for D are limited to
reputation and opinion testimony
A defendant may introduce evidence of a victim’s character if
it is a pertinent trait of a victim’s character and used in an affirmative defense (e.g. P was violent person, self-defense)
IF done: door opened, prosecution may introduce evidence of the SAME trait in D
Evidence of specific prior acts may be introduced if related to
(1) Pertinent trait if an essential issue
(2) MIMIKCOP
(3) Rebut insanity defense / entrapment / prove consciousness of guilt
(4) Habit (routine practice, includes organization)
(5) Bias
(6) Witness’ trait for truthfulness
MIMIKCOP
Motive
Intent
Mistake/Accident -or absence thereof
Identity
Knowledge
Common Plan
Opportunity
Preparation
A witness is competent if they have
personal knowledge of the matter about which they are going to testify and is willing to take an oath to tell the truth
Note: Children are competent to testify if they have personal knowledge and understand the difference between truth and falsehood
A juror may not serve as a witness or testify after a trial as to the validity of a verdict or indictment unless
(1) Extraneous, prejudicial information was improperly brought to the jury’s attention
(2) An outside influence was improperly brought to bear on a juror
(3) A clerical or technical error was made entering in the verdict
(4) A juror made clear statements that he relied on racial stereotypes of animus in conviction
3 basic ways to impeach a witness
(1) Show witness is dishonest / bad character for truthfulness
(2) Bias
(3) Sensory competence (i.e. mistaken in some way)
Specific acts regarding a character witness’ dishonesty may only be introduced if
(1) On cross-examination
(2) It is probative of truthfulness
(3) A attorney takes the witness’ answer
(4) There’s a reasonable / good faith basis for asking
Note: CANNOT introduce EE to prove
Criminal convictions may be introduced to attack a character witness if
(1) Crime involved dishonesty or false statement
For Felonies:
(1) Allow unless risk of prejudice substantially outweighs probative value
(2) For criminal defendant: probative value outweighs prejudicial effect
Felonies over 10-years
(1) Admissible only if probative value of conviction substantially outweighs risk of prejudice and reasonable advanced notice is given
NOTE: A pardoned conviction may not be introduced
A witness may be rehabilitated by
(1) Giving witness a chance to clarify and explain
(2) Introducing prior consistent statement
(3) Introducing character witness for trait of truthfulness (only after truthfulness of witness is attacked)
Lay witness testimony are admissible with respect to
Common sense impressions (e.g. appearance, intoxication, speed)
and must be based on:
(1) the perception of the witness, and
(2) Helpful to a clear understanding of the witness’ testimony or determination of a fact in the case
Note: Lay witnesses’ testimony CANNOT be specialized, scientific, or technical
Expert witnesses may offer testimony (opinions or conclusions) if
based on specialized, scientific or technical information
Gathered from
(1) Personal observation
(2) Evidence presented at trial, or
(3) Information reasonably relied upon by experts in that particular field
Think: (1) sufficient fact or data, (2) product of reliable principles and methods, (3) expert’s opinion reflects a reliable application of the principles and methods
To admit expert testimony, must prove reliability of testimony by a preponderance of the evidence
Expert witnesses may testify to
the ultimate issue of a case but not the requisite mental state for a criminal defendant
How may Real Evidence be authenticated?
(1) Personal knowledge (witness testimony)
(2) Distinctive features or markings
(3) Chain of custody
How may Documentary Evidence be authenticated?
(1) Stipulation of the parties
(2) Eyewitness testimony combined with distinctive features
(3) Ancient documents (20 yrs old, condition unlikely to create suspicion, found in typical place)
(4) Handwriting verification (expert or jury comparison, or lay witness who knew handwriting from before)
(5) Reply letter doctrine
(6) Self-authenticating document (e.g. notarized copies, government seals, trade inscriptions)
Telephone conversations may be authenticated if
(1) Caller recognized speaker’s voice
(2) Speaker knew facts only a particular person would know
(3) Caller dialed number believed to be speaker’s and the speaker identified self
Best Evidence rule can aptly be expressed as
no describing documents instead of showing them
(applicable when the contents of a document are at issue)
Exceptions to best evidence rule (document types)
(1) Document is unavailable (lost, destroyed, cannot be obtained, non-introducing party had control of original and knew it would be issue at trial)
(2) Public records (certified copy ok)
(3) Voluminous writings (present in form of chart or summary)
(4) Admission by a party
Under best evidence, duplicates may be produced if there is
No genuine question about the authenticity of the original or fairness so requires
Attorney-Client privilege protects
Confidential communication between attorney and client for purposes of securing legal advice
Communication will be confidential if
(1) Reasonable steps are taken to keep communication confidential, and
(2) Communication is not made in presence of unnecessary third parties
Waiver of attorney client privilege may be done through
(1) Failure to assert privilege in timely manner
(2) Voluntarily disclose the information
(3) Express waiver
(4) Failure to take precautions by the lawyer
Communication made by an employee of a corporation is privileged if
Made regarding matters within the scope of employment for purposes of seeking legal advice
Exceptions to attorney-client privilege
(1) Further crime or fraud (knew or should have known)
(2) Disputes between lawyer and client
Patient-Physician privilege (and exceptions)
Statements made by patient to doctor for the purpose of obtaining medical treatment
Exceptions: information was for reasons other than treatment, made for illegal purpose, dispute exists between doctor and patient, patient waived
Psychotherapist-Patient privilege (and exceptions)
Same as patient-doctor
Exceptions:
(1) Court ordered exam
(2) Taken as part of commitment proceeding
(3) Mental condition is at issue in case
5th amendment protection against self-incrimination prevents
a witness from being required to give incriminating testimony against self (applies only to people, and to current statements)
If NO risk of criminal trouble, no privilege