evidence Flashcards
when is hearsay against criminal defendants unconstitutional?
*testimonial statement
*declarant now unavailable with no prior opportunity to cross-examine
when is due process implicated for criminal defendants?
when the defendant is restricted from presenting a defense
describe forfeiture by misconduct
if a party engages in wrongdoing to make a declarant unavailable, they can’t claim the declarant is unavailable and anything the declarant said against them can now be used
potential contents for the public records exception
*activities
*observations
*factual findings
exception to the public records exception
law enforcement reports are only allowed in civil cases or against the government in criminal cases
elements of past recorded recollection exception
*the record concerns a matter the witness once had knowledge of
*the record was prepared or adopted by the witness when the matter was fresh
*the record accurately reflects the witness’s knowledge
*the witness testifies that they have sufficient memory of the event to testify fully and accurately
elements of business record exception
*made at or near the time of the recorded event
*by a person with knowledge of the event and a duty to record
*as part of regular business practices
other hearsay exceptions (11)
*present sense impression
*excited utterance
*for medical diagnosis or treatment
*present physical, mental, or emotional state (e.g., then-existing state of mind so acting in conformity with intent)
*past recollection recorded
*business records
*public records
*absence of public search (with diligent search)
*learned treatises
*judgment of previous conviction (punishable by imprisonment of 1+ years)
*reputation
what makes a witness unavailable?
*exempt due to privilege
*dead or too ill
*refuses to testify
*lacks memory of subject matter
*otherwise absent and can’t be subpoenaed
hearsay exceptions for unavailable declarants (4)
*former testimony: under oath + the party had an opportunity and a similar motive to develop testimony
*dying declarations: only available in homicide and civil actions
*statements against interest: against pecuniary or proprietary interest, subject to civil or criminal liability, invalidates claim against another
*statements of personal or family history
*forfeiture by misconduct
elements for dying declarations
*the declarant believed they were dying
*the declarant believed that such death was imminent
*the statement is about the cause of or some other relevance to their death
define hearsay
an out-of-court statement made to prove the truth of the matter asserted
name several nonhearsay purposes
*verbal action or legally operative fact
*effect on the listener
*state of mind (soundness)
*proof of D’s worldview or beliefs
*D had notice of a fact or condition
name two types of not hearsay
*testifying declarant: prior inconsistent statements made under oath in a judicial process, prior consistent statements, prior identification
*admission of party opponent: includes statements adopted and made by agents or co-conspirators
public policy exceptions to admissibility
*liability insurance
*subsequent remedial measures
*settlement and plea negotiations and offers
*offer to pay medical expenses
*past sexual conduct
exceptions to the past sexual conduct public policy exception (criminal vs. civil)
*to prove D is not the source of physical evidence
*to prove consent
*when it is unfair to D
vs.
anytime the probative value substantially outweighs any prejudice
exceptions to the best evidence rule
*unavailable documents: lost/destroyed, other party has control
*public records: certified copy required
*voluminous writings
*admission by a party (deposition, testimony, or written statement)
*collateral issue
four types of privilege
*attorney-client: confidential communication to secure legal advice
*doctor/therapist-patient
*5A against self-incrimination
*spousal, including confidential marital communication and spousal immunity
what can form the basis of an expert opinion?
*personal knowledge
*evidence at trial
*information reasonably relied upon by experts in the field
requirement for authentication
evidence sufficient to support a finding the thing is what the party says it is
what is the best evidence rule?
if a witness is discussing a document’s contents, which are at issue, the document must be provided
define “at issue” for the best evidence rule
*the document is proof of an event
*the witness only learned of an event from the document
*the document has actual legal effect
Daubert factors
*qualified by knowledge, skill, training, experience, or education
*base testimony on sufficient facts or data
*base testimony on reliable principles and methods
*apply those principles and methods reliably to the facts of the case
three ways to rehabilitate a witness
*chance to clarify/explain
*prior consistent statements
*rebut an attack of untruthfulness with reputation or opinion testimony of truthfulness
when is testimony about specific prior acts allowed?
*character at issue in case
*MIMIC
*prosecutor cross-examining D’s witnesses about D’s pertinent trait or a victim’s trait (on rebuttal)
*cross-examining about truthfulness (if have a reasonable basis for the question)
when are criminal convictions admissible (generally vs. for criminal defendants) for attacking truthfulness?
*crime of dishonesty or false statements
*convicted of a felony
*AS LONG AS less than 10 years unless reverse 403 can be satisfied
vs.
the probative value must outweigh any prejudice
what witnesses can’t be excluded from the courtroom?
*parties to the case
*witnesses essential to the case presentation
*a person permitted by state rule to remain
topics a juror can testify about post-verdict
*extraneous, prejudicial information improperly brought to the jury’s attention
*outside influences improperly brought to bear on a juror
*clerical or technical errors on the verdict form
*reliance on racial stereotypes for a conviction
define relevance
*makes the fact at issue (of consequence in deciding the action) more likely than it would be without the evidence (inc. going towards weight or credibility of admissible evidence)
*material + probative
when can relevant evidence be excluded?
when any prejudice substantially outweighs the probative value
general allowances for admitting character evidence
*when character is an essential element
*for impeachment
*prior acts for MIMIC (motive, intent, absence of mistake, identity/MO, common plan or scheme)
when does a party adopt a statement by silence (adoptive admission)?
*present and understood the statement
*ability and opportunity to deny
*a reasonable person would have denied the statement
define the rule of completeness
if a party introduces part of a document (written statement), the other party may introduce other portions of that document or another statement, even if usually inadmissible, for context if in fairness they should be considered at the same time
define curative admission
when the court erroneously admits evidence, it may allow the introduction of additional inadmissible evidence to rebut the previously inadmissible evidence and remove unfair prejudice
may evidence be admitted when proof of its relevance has not yet been introduced?
*yes, on the condition that proof be introduced later
*must show sufficient evidence that a reasonable jury could find the fact by a preponderance of the evidence
what constitutes personal knowledge for witnesses?
*perceived the matter firsthand
*present recollection of that observation
examples of when character is at issue in a civil/criminal case (character evidence)
*defamation: P’s character
*negligent entrustment: person entrusted
*child custody: parent/guardian
*entrapment: D
*negligent hiring: person hired
what type of conviction is never allowed in a civil case or against a criminal defendant to prove truthfulness?
a juvenile adjudication
types of impeachment
*bias
*sensory ability
*character evidence for truthfulness
*specific contradiction
*prior inconsistent statements
what two purposes may a prior inconsistent statement be used for?
*impeachment
*substantive evidence if meet hearsay rules
define collateral matter
matter irrelevant to the case’s outcome, so extrinsic evidence of it is inadmissible
requirement for witness opinions
*lay witness: must be helpful to the trier of fact in understanding the witness’s testimony
*expert: based on expert knowledge and will help the trier of fact understand the evidence or determine a fact in issue
when are duplicates not allowed under the best evidence rule?
*a genuine question about the original’s authenticity exists
*the circumstances make it unfair to admit the duplicate
to what documents does the best evidence rule apply?
recordings, photographs, and writings only
issues the jury determines about documents (related to best evidence rule)
*whether the document ever existed
*which document is the original
*whether other evidence introduced reflects the content of the document
requirements for an inadvertent disclosure to NOT be a waiver of attorney-client or work product privilege
*disclosure made in a federal proceeding or to federal agency
*disclosure was inadvertent
*privilege holder took reasonable steps to prevent disclosure
*privilege holder promptly took reasonable steps to rectify error
when is a specific act allowed for impeachment based on character evidence?
only for prior convictions
when is a party entitled to the rebuttable presumption that destroyed evidence was unfavorable to the party that destroyed it?
*the destruction was intentional
*the evidence was relevant
*the injured party sought the evidence with due diligence
when is extrinsic evidence allowed for impeachment?
*anytime except to show character for untruthfulness
*in that instance, only allowed to show prior conviction
