Evidence Flashcards
When the cost to obtain the original is too prohibitive to the requesting party:
FRE 1004, the original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if:
(1) the writing, recording, or photograph is not closely related to a controlling issue;
(2) all the originals have been lost or destroyed;
(3) the opponent has possession of the original and has refused to deliver it;
(4) there has been testimony or admission by opponent; or
(5) an original cannot be obtained by subpoena
Daubert test
(1) has the theory been tested?
(2) general acceptance in the relevant community;
(3) peer review regarding the scientific theory;
(4) degree or rate of error; and
(5) standards
NOT: whether there has been a third-party publication of findings
Spousal privilege
In a CRIMINAL case, this privilege can prevent a married person from having to testify against her spouse.
The essential element rule
the plaintiff is allowed to prove that if the bar owner had checked the bartender’s employment history, the owner would likely have discovered that the bartender had a violent reputation.
The testimony of others attacked by the bartender in bars where he previously worked is relevant to the issue being litigated here and is admissible.
The evidence is not being introduced to prove that the bartender’s past history of violence made it more likely that he committed the violent attack on the plaintiff, but to prove the bar was negligent in hiring a bartender with a violent work history.
Character trait- defendant and victim
FRE 404, evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.
A defendant in a criminal case may offer evidence of the defendant’s pertinent trait, and the prosecutor may rebut it.
The defendant may also offer evidence of the victim’s pertinent trait, and the prosecutor may rebut it and offer evidence of the defendant’s same trait.
In a homicide case, the prosecutor may offer evidence of the victim’s trait of peacefulness to rebut evidence that the victim was the aggressor
Attorney-client privilege
Covers information that the lawyer asks for from his client, including when asking a supervisor for a report.
Summary evidence
a proponent may use a summary to prove the content of voluminous writing that cannot be conveniently examined in court as long as originals or duplicates of the full text are made available for examination or copying, or both, by other parties at a reasonable time and place.
Deposition hearsay exception
testimony in another hearing or deposition is excepted from hearsay if:
(1) the former witness is unavailable in the present proceeding; and
(2) the party against whom the former testimony is offered had an opportunity to develop the former testimony by direct, redirect, or cross-examination and had a similar motive to develop the former testimony by cross-examination
Essential element of a charge, claim, or defense
When a person’s character or character trait is an essential element of a charge, claim or defense, the character or trait may also be proved by relevant specific instances of the person’s conduct
Opponent party statement
Not hearsay if offered against an opposing party and was made by an opposing party
Doctor-patient privilege
Hearsay exception- except when opposing party opened the door to discuss medical status
Best evidence- no original
If an original doesn’t exist, there must be some plausible reason for not producing it
Character as a substantive issue in the litigation
evidence of character is directly relevant and is admissible in any form: reputation, opinion, or specific instances of conduct
A presumed fact
a fact whose existence can be inferred from the existence of a basic fact.
permissive- jury may infer a presumed fact from the existence of a basic fact
mandatory presumption- requiring presumed fact be inferred, unconstitutional in criminal trial
Criminal trial- always a permissive presumption, burdens of production and persuasion are not affected
Marital communication privilege- destroyed?
Destroyed when a third-party is listening whose presence was known or reasonably possible
