Evidence Flashcards
Telephone Conversations Authentication Methods
can be authenticated by any party to the call who testifies that: (1) they recognized the other party’s voice; (2) the speaker had knowledge of certain facts that only a particular person would have; (3) they called a particular person’s number and a voice answered as that person or that person’s residence; or (4) they called a business and talked with the person answering the phone about matter relevant to the business
Opinion of a lay witness generally admissible with respect to:
the general appearance or condition of a person; the state of emotion of a person; matters involving sense recognition; voice or handwriting identification; the speed of a moving object; the value of the witness’s own services or property; the rational or irrational nature of another’s conduct; and a person’s intoxication
Federal Rules of Evidence do not apply in
(1) the court’s determination of a preliminary question of fact relating to admissibility; (2) grand jury proceedings; and (3) other miscellaneous proceedings, including those involving sentencing, extradition, issuing an arrest or search warrant, preliminary examination in a criminal case, bail, and probation
Evidence is relevant if
it has any tendency to make the existence of any fact of consequence to the case more or less probable; must be material + probative
403 Considerations
(1) danger of unfair prejudice; (2) confusion of the issues; (3) misleading the jury; (4) undue delay; (5) waste of time; (6) needless presentation of cumulative evidence
Evidence or prior accidents or injuries caused by the same event or condition and occurring under substantially similar circumstances is admissible to prove:
(1) the existence of a dangerous condition, (2) that the dangerous condition was the cause of the present injury, and (3) that the defendant had notice of the dangerous condition (if the other accident occurred before the plaintiff’s accident)
Habit Evidence
describes a person’s regular response to a specific set of circumstances
Generally inadmissible in any criminal or civil case against the defendant who made the plea or participated in discussions
(1) offers to plead guilty; (2) withdrawn guilty please; (3) actual pleas of nolo contendere; or (4) statements of fact made during any of the above plea discussions
When character is in issue [generally]
(1) defamation cases where truth is a defense (plaintiff’s character is at issue); (2) negligent hiring or entrustment cases (hired/entrusted person’s character is at issue); and (3) child custody cases (parents’ character is at issue)
Non-character purposes
Motive; Intent; Mistake (absence of); Identity; Common plan or scheme
Writing can be authenticated by
(1) opinion of a lay witness who has familiarity with alleged writer’s handwriting that wasn’t acquired for the purposes of litigation; (2) opinion of an expert who has compared the writing to samples of the alleged writer’s handwriting; or (3) the fact-finder’s comparison of the writing to samples of the alleged writer’s handwriting
Self-authenticating Documents
domestic public documents bearing a seal, and similar official foreign public documents; official publications; certified copies of public records or private records on file in a public office; newspapers and periodicals; trade inscriptions and labels; acknowledged (notarized) documents; commercial paper (including signatures thereon) and related documents; and business records, electronically generated records, and data copied from electronic device if records are certified + the proponent gives the adverse party reasonable written notice and opportunity for inspection
Dead Man Acts
provide that in a civil case, an interested person (or their predecessor in interest) is incompetent to testify to a personal transaction or communication with a deceased, when such testimony is offered against the representative or successors in interest of the deceased
Impeachment via Prior Inconsistent Statements
a party may show, by cross-examination or extrinsic evidence, that the witness has, on another occasion, made statements inconsistent with some material part of their present testimony; to prove by extrinsic evidence, the proper foundation must be laid and the statement must be relevant to some issue in the case
Impeachment via Any Prior Conviction
a witness may be impeached by any crime, felony or misdemeanor, requiring an act of dishonesty or false statement; court has no discretion to bar impeachment by these crimes
Impeachment via Prior Felony Conviction
a witness may be impeached by a felony that does not involve dishonesty or false statement, but the court has discretion to exclude these convictions; if witness = criminal defendant, reverse-403 lite balancing test; if any other witness = 403 balancing test
Impeachment via Non-Conviction Bad Acts
subject to discretionary control of the trial judge, a witness may be interrogated upon cross-examination with respect to an act of misconduct if the act is probative of truthfulness; cross-examiner must have a good faith basis to believe the witness committed the misconduct
Impeachment of Hearsay Declarant
the credibility of a hearsay declarant may be attacked (and if attacked, may be supported) by evidence that would be admissible if the declarant had testified as a witness
A prior statement by a testifying witness who is subject to cross-examination is not hearsay if:
(i) the prior statement is one of identification of a person as someone the witness perceived earlier; (ii) the prior statement is inconsistent with the declarant’s in-court testimony and was given under oath at a prior proceeding; or (iii) the prior statement is consistent with the declarant’s in-court testimony and is (1) offered to rebut a charge that the witness is lying/exaggerating + statement was made before any motive to lie, or (2) offered to rehabilitate a witness whose credibility has been impeached on some other ground
A statement by an agent or employee is admissible against the principal if the statement:
(1) concerned any matter within the scope of their agency or employment, and (2) was made during the existence of the agency or employment relationship
Statements by Co-Partners
after a partnership is shown to exist, a statement of one partner relating to matters within the scope of the partnership business is binding upon their co-partners
Statements by Co-Conspirators
statements of one conspirator, made to a third party in furtherance of a conspiracy to commit a crime or civil wrong at a time when the declarant was participating in the conspiracy, are admissible against co-conspirators
A declarant is unavailable if they
(i) are unable to testify due to death or physical/mental illness; (ii) are exempt from testifying because of privilege; (iii) refuse to testify concerning the statement despite a court order; (iv) testify that they do not remember the subject matter; or (v) are absent and the proponent is unable to procure their attendance/testimony by process or other reasonable means
Dying Declaration
in a homicide prosecution or any civil case, a statement made by a now-unavailable declarant is admissible if (i) the declarant believed their death was imminent and (ii) the statement concerned the cause or circumstances of what the declarant believed to be their impending death
Excited Utterances
an out-of-court statement relating to a startling event, made while under the stress of the excitement of the event, is admissible
Present Sense Impressions
a statement that describes or explain an event or condition, and is made while or immediately after the declarant perceives the event or condition
Federal Common Law Privileges
attorney-client; spousal immunity; confidential marital communications; psychotherapist/social worker; clergy-penitent; governmental
Spousal Immunity (Testimonial) Privilege
a married person may not be compelled to testify against the legal interests of their spouse in any criminal proceeding; privilege lasts only during the marriage and belongs to the witness-spouse
Confidential Marital Communications
in any civil or criminal case, confidential communications between spouses during a valid marriage are privileged
Neither Marital Privilege Applies
(i) when the communications or acts were in furtherance of a future joint crime or fraud; (ii) in legal actions between the spouses; or (iii) cases where a spouse is charged with a crime against the testifying spouse or either spouse’s children
