Evidence Flashcards
Authentication of Handwriting
May be authenticated by non-expert’s opinion testimony stating handwriting is genuine based on familiarity with it, which was not acquired for current litigation.
What is propensity?
Demonstrates that on a particular occasion the person acted in conformity with a character trait.
When is character evidence admissible?
Non-propensity purposes;
When “character in issue”; or
Exception for propensity purposes.
What is habit?
Regular response to repeated situation.
Four elements:
- specificity
- repetition
- duration
- semi-automatic or reflexive
Is any prior conviction admissible for impeachment, regardless of age?
No; if 10 years have passed since the conviction or release from confinement (whichever is later), evidence of the conviction is admissible only if:
- probative value substantially outweighs risk of unfair prejudice; and
- proponent gives reasonable written notice to adverse party of intent to use it.
Is bias a ground for impeachment?
Yes - bias, corruption, motive, partiality, or interest is always relevant for impeachment.
Expert Witness - Relying primarily on experience
Must explain:
- How experience led to conclusion reached;
- Why that experience is sufficient basis for opinion; and
- How experience is reliably applied to facts.
Can expert offer opinion on ultimate issue?
Yes, but in a criminal case, expert cannot state opinion about whether defendant had requisite mens rea (element of crime or defense).
When is a co-conspirator admission an exception to hearsay?
Admissible against another co-conspirator if
- conspiracy existed between the two;
- statement made during conspiracy;
- made in furtherance of conspiracy; and
- some independent evidence to establish existence of conspiracy is proven (outside the statements themselves).
Foundation and LEOs: business records
Witness who lays foundation does not need to be author of the record or attest to its accuracy.
LEO reports are inadmissible against criminal defendant under business records exception.
When is a statement against interest an exception to hearsay?
Admissible when:
- against declarant’s criminal, property, or civil liability interests;
- declarant has firsthand knowledge;
- reasonable person in declarant’s position would have made statement only if they believed it to be true; and
- declarant unavailable.
If offered in criminal case, statement must be supported by corroborating circumstances that clearly indicate its trustworthiness.
When is former testimony an exception to the hearsay rule?
- Declarant is unavailable;
- Testimony was given as witness at trial, hearing, or lawful deposition (whether current or different proceeding); and
- Testimony now offered against a party who had (or in civil case whose predecessor in interest had) opportunity and similar motive to develop it by direct, cross, or redirect.
How and when may court take judicial notice? What is impact in civil or criminal cases?
FRE limits notice to facts submitted to jury/judge (not legislative fact or notice of law).
- May take on own initiative;
or - If party requests it take notice and supplies necessary information.
Party entitled to be heard at any stage of proceeding.
Civil case: court will instruct jury must accept fact as conclusive
Criminal case: court will instruct jury may/may not accept fact as conclusive.
What are exceptions to Psychotherapist-Patient Privilege?
- Court-ordered examination
- Civil commitment proceeding
- Patient places psychiatric condition in issue
- “Dangerous patient” - therapist has duty to warn is knows/reasonably should know patient poses serious threat of violence to foreseeable victim
