Evidence Flashcards
Methods of Impeachment
Contradiction, Prior insonsistent statement, bias or interest, sensory deficiencies, reputation and/or opinion of untruthfulness, prior acts of misconduct, prior criminal conviction
Impeachment by Prior Inconsistent Statement
-May be used to impeach present testimony
-May be established through cross-extrinsic evidence
-If PIS is hearsay, inadmissible as substantive evidence (truth of matter asserted)
Impeachment by prior instances of misconduct
-May be questioned on cross-exam about any prior misconduct probative of truthfulness
-Arrests are not misconduct
-No extrinsic evidence permitted
Impeachment based on opinion or reputation for untruthfulness
-Witness may be impeached by testimony describing his reputation for untruthfulness in the community
Impeachment by prior conviction
-Felonies not involving dishonesty/false statements
>If W is D: admissible if govt shows probative value outweighs prejudicial effect
>If W is not D: admissible but court can exclude under 403
-Prior conviction involving act of dishonesty:
>Always admissible - court has no discretion to exclude under 403 - includes felonies and misdemeanors
-Convictions more than 10 years old: not admissible unless probative value substantially outweights unfair prejudice and adverse party is given notice
Present recollection refreshed
-Use of documents to refresh W’s memory during testimony
-W cannot read aloud from a document, but can look at it briefly, then continue testimony unassisted
-Opponent may inspect and offer into evidence anything used to refresh W’s memory
-Document is not read into evidence
Recorded recollection
-Contents of a record/document W previousl ymade or adopted is read into evidence
-Requirements
>W once had knowledge of the record’s subject matter
>W’s memory is insufficient to testify as to the record’s contents
>Record was made or adopted by W when the matter was fresh in W’s memory
>Record accurately reflects W’s knowledge
-Recorded recollection is a hearsay exception, as such, it may be read into evidence
Lay opinions
-Opinion testimony is admissible if it is (1) rationally based, (2) helpful, and (3) not expert (not based on scientific, technical, or other specialized knowledge)
-Examples: speed of a car, emotional state of an individudla, voice or handwriting recognition, sense recognition, intoxication
Expert opinions
Expert testimony is admissible if:
(1) Helpful
(2) Qualified - expert must possesss special knowledge, skill, experience, training, or education
(3) Reasonable certainty - expert must believe in her opinion to a reasonable degree of certainty
(4) Proper factual basis - opinion must be based on facts (may base opinion on admitted evidence, personal knowledge, or inadmissible evidence properly relied upon)
(5) Reliable principals reasonably relied upon - if expert opinion is based on scient, court also considers whether evidence is: (i) peer tested and capable of retesting; (ii) published; (iii) has a low error rate; and (iv) reasonably accepted in the field of study
Testimonial privileges
-Attorney-client
-Clergy-penitent
-Spousal
-Martial communications
-Governmental
-Psychotherapist/social worker-patient
-Self-incrimination
-NOTE: these privileges are not FRE rules; the MBE usually assumes the existence of these privileges, but an answer choice indicating any of these privileges is an evidentiary rule will be incorrect
Attorney-client privilege
-to be protected, must be (1) intended to be confidential, and (2) made to facilitate legal services
-Exceptions: (1) crime or fraud, and (2) attorney defending malpractice claim
Spousal testimonial privilege
-CRIMINAL ONLY
-A person whose spoude is a D in a criminal case cannot be: (A) called as a witness by the prosecution, or (B) compelled to testify against his spouse in a criminal proceeding
-Only the W spouse may invoke the privilege (i.e., D cannot prevent a willing spouse from testifying against her)
-Privilege can only be invoked during marriage
Marital communications privilege
-Confidential communications made during marriage are privileged in any later proceedings (applies even if spouses divorce after confiential communication was made)
-Either spouse may invoke the privilege
-A spouse can lose the privilege if he breaks confidentiality (relays to third party) (the other spouse still retains the privilege)
-Exceptions: (A) suits between spouses, (B) suits in which one spouse is charged with a crime or tort against children, and (C) suits ni which spouses are co-defendants
Authentication: Ancient documents
Automatically authenticated if: (1) 20 or more years old, (2) does not rpesent any irregularities on its face, and (3) found in a place of natural custody
Authentication: Photos
must have personal knowledge to authenticate
Authentication: Voice
Whether heard firsthand or through a recording, a voice may be identified by anyone who heard the voice at any time
Authentiation: Non-unique items
-item facially indistinguishable from others of its kind (e.g., bag of white powder, generic syringe)
-proponent must establish “chain of custody,” i.e., that the proffered evidence is the same item it is claimed to be
Best evidence rule
-If evidence if offered to prove the contents of a writing, an original document must be used unless it is unavailable
-also allows duplicates
-testimony regarding contents is admissible if original is lost or destroyed, unless done so in bad faith by proponent of testimony
-Voluminous documents exception - a voluminous series of ducments may be summarized in court - originals relied upon must be available for inspection
Judicial notice of laws
-court MUST take notice of federal and state laws and regulations
-court MAY (has descretion) take notice of all other laws (municipal ordinances, foreign laws, etc)
Effect of judicially-noticed facts/laws
Civil: jury MUST take judicially-noticed facts as conclusive
Criminal: jury MAY take judicially-noticed facts as conclusive, but is not required ot
Hearsay definition
Hearsay - an out-of-court statement offered to prove the truth of the matter asserted
-is generall inadmissible, subject to certain exceptions and exemptions
Admissible out-of-court statements
-Out-of-court statements are not hearsay if offered to prove anything other than the truth of the matter asserted
-Common non-hearsay out-of-court statements:
1. Statements of independent legal significance - statemetn contains legally operative words; nt hearsay becuase offered to show that the statement was said, not whether it was true
2. Statements offered to show their effect on the listener or reader
3. Statements offered to show speaker’s knowledge
4. Statements offered to show state of mind
Non-hearsay exemptions
-Statement of party-oponent - out-of-court statemtns by a party are admissible if offered against that party
-Declarants-W’s prior statement - a prior statement by a declarant who testifies and is subject to cross-examination is admissible where the statement is either (a) inconsistent with declarant’s testimony and given under oath, (b) prior consistent statement (admissible to rebut charge of fabrication, improper motive or influence, or rehabilitate credibility), or (c) proior statement of identification after perception
List of hearsay exceptions
Declarant unavailability required:
1. Former testimony exception
2. Statemetns against interest
3. Dying declarations
4. Statements of personal or family history
5. Statements offered against party procuring declarant’s unavailability
Declarant unavailability is immaterial:
1. Present state of mind
2. Excited utterances
3. Present sense impressions
4. Physical condition (for medical diagnosis or treatment)
5. Past recollection recorded
6. Business records
7. Public records or reports
8. Judgments and prior convictions
9. Ancient documents
10. Documents affecting property interests
11. Learned treatises
12. Family records
13. Market reports
“Unavailability” of declarant
Declarant is unavailable if either:
-Privilege
-Death of physical/mental sickness
-Refusal to testify despite a court order
-Lack of memory
-Absent - beyond the reach of court’s subpoena power and the statement’s proponent has not been able to procure attendance or testimony
Hearsay Exceptions: Former Testiomony
Admissible if:
(1) Declarant is currently unavailable;
(2) Declarant’s prior testimony was given under oath; and
(3) Party against whom testimony is now offered was either: (a) a party in the previous action and had an opportunity to cross-examine the declarant, or (b) a predecessor in interest of a party in the previous action, in which there was an opportunity to cross-examine declarant and a similar motive for doing so
Hearsay Exceptions: Statements Against Interest
A hearsay statement is admissible if, at the time it was made, it was against the pecuniary or legal interests of the declarant
Requirements:
(1) Declarant is current unavailable;
(2) Statementwas contrary to declarant’s pecuniary, proprietary, or penal interest when made; and
(3) A reasonable person would not have made the statemetn unless he believed it to be tru
Hearsay Exeptions: Dying Declarations
A hearsay statement is admissible if the declarant made the statement under the belief of impending death and the statement describes the cause or circumstances of the impending death.
Requirements
(1) Declarant is currently unavailable
(2) The out-of-court statement was made under the belief of impending death
(3) The statement was made regarding the cause or circumstances surrounding the belief of impending death
Only available in:
Civil cases
Homicide cases
Hearsay Exceptions: Statement concerning present state of mind or condition
Hearsay statements are admissible if they concern a declarant’s state of mind, emotion, sensation, or physical condition existing at the time the statement was made.
Statements of memory of belief are inadmisible becuase they do not reflect on a then-existing condition.
Confrontation Clause
An otherwise admissible out-of-court statement offered against D in a criminal case may be excluded under the 6th Amend. Confrontation Clause
Will be excluded if:
(1) The declarant is currently unavailable;
(2) D had no prior opportunity to cross-examine the declarant about the statement at the time it was made; and
(3) The statement is testimonial
Exception: An out-of-court statement will not be excluded if the declarant is unavailable as a result of D’s wrongdoing
Confrontation Clause: Co-Defendant Statements
The Confrontation Clause bars admission of an out-of-court statement by a non-testifying co-D if the statement expressly implicates another D.
Exceptions: a co-D’s out-of-court statement is admissible if either:
(a) Declarant co-D testifies;
(b) Redaction - portions of the co-D’s testimony referring to the non-declarant D are redacted
(c) Coerced confession - the statement used to rebut a charge of a coerced confession
