Evidence Flashcards
rule for probative evidence
evidence has a tendency to make a fact more or less probable
rule for material evidence
evidence is of consequence in deciding
when can you exclude relevant evidence
probative value is substantially outweighed by range of unfair prejudice
rule for relevance dependent on existence of fact
must have sufficient evidence that fact does exist and so it can be admitted on condition that the fact is later introduced
rule for character evidence in civil case
inadmissible to show person acted with accordance of a particular trait on a particular occasion
exception: trait is an element
rule for character evidence in criminal case
∆’s character
- by prosecution: not allowed to show propensity
- by defense: ∆ can put on evidence of good character using reputation or opinion – but opens the door
victim’s character
- by defense: can put on evidence but opens the door for prosecution to rebut victim’s character AND come after∆ for that same trait
when can you use specific bad acts
ONLY for non TOMA purposes:
Motive
Intent
Absence of Mistake
Identity
Common plan
can ask witness about specific bad acts on cross
test for witness competence
takes oath to tell truth
personal knowledge
knows difference between true and false
methods to impeach witness
- bias
- defects in memory/perception
- showing bad character for truthfulness
methods for impeaching a witness with bad character for truthfulness
- prior bad acts
- prior convictions
- reputation evidence
- prior inconsistent statements
- contradicting with counter proof
how do you use prior bad (un convicted) acts to impeach witness by showing bad character for truthfulness
- can only do it on cross
- can ask about an act that shows untruthfulness
- but only intrinsic evidence allowed so must accept answer
how do you use prior convictions to impeach witness for bad character for truthfulness
- must be felony or dishonest misdemeanor
- within last 10 years
how do you rehab witness
allow witness to explain on redirect
show good character
show prior consistent
how do you use present recollection refreshed
o Establish that witness can’t remember
o Ask witness if it would be helpful to see specific document
o Show document to witness
o Confirm it helped
o Take document away and proceed
o Evidence is the testimony, not the document
test for if someone can be an expert witness
Testimony is based on sufficient facts and data
Testimony is product of reliable principles and methods
Witness has applied those principles and methods
when can lay witness offer opinion
Anyone can offer opinions as long as
Rationally based on witness’s perception
Helpful to clear understanding or determination of fact
four step analysis for hearsay
- is it relevant? Non TOMA purposes?
- is it non hearsay?
- do any hearsay exceptions apply?
- if criminal: any 6th amendment confrontation issues?
what are the non TOMA purposes
- Impeachment
- Verbal act
- Effect on listener
- Verbal object/marker
- Circumstantial evidence of state of mind
- Circumstantial evidence of special knowledge
what is non hearsay
Prior inconsistent statement by declarant witness
Prior consistent statement by witness
Prior statement of identification by witness
Statement by party opponent
what counts as statement by party opponent
- His own statement
- Statement he adopted with silence
- Someone he authorized or his agent
- Co conspirator
What are the unrestricted hearsay exceptions
- present sense impression
- excited utterance
- then existing mental, physical, emotional condition
- medical treatment
- past recollection recorded
- business records
- public records
- learned treatise
what are the hearsay exceptions if witness is unavailable
- former testimony
- dying declaration
- statement against interest
- statement of personal or family history
- statement by someone ∆ prevented coming to trial
five requirements for hearsay
- out of court
- statement
- by a qualifying declarant
- offered for truth of the matter
- not prior statement by declarant witness or statement by party opponent
how do you authenticate physical objects
Usually personal knowledge, distinct characteristics, chain of custody
how do you authenticate photos
someone with personal knowledge
how do you authenticate x rays
have to show machine was working and everything done correctly
how do you authenticate documents
stipulation, eyewitnesses, handwriting
ancient: 20 years old, in place where it makes sense to be
how do you authenticate oral statements
voice: anyone who has ever heard it can ID
telephone: recognize voice, speaker knew stuff, number was his, he identified self
what is the best evidence rule
original document must be brought to court to prove contents of document when the CONTENTS are at issue
duplicates ok if no suspicion
original not required if destroyed/lost in good faith
what is the parole evidence rule
Complete integration: no extrinsic evidence
Partial integration: evidence that adds but does not contradict is admissible
when is parole evidence always ok
o Clarify ambiguity
o Prove course of dealings
o Show fraud/duress/mistake
o Show presence/absence of consideration
describe spousal privilege
Don’t have to testify against spouse (Ends on divorce)
Confidential marital communications (lasts forever)
Majority view: both spouses hold privilege and can stop the other from testifying
define attorney client privilege and exceptions
Confidential communication for purpose of receiving legal advice
Crime fraud
Dispute
Former co-clients now adverse
what is the work product doctrine
documents prepared in anticipation of litigation are protected unless i) substantial need and ii) undue hardship
what do we not consider as evidence due to public policy
- Subsequent remedial measures
- Compromise offers and negotiations
- Insurance
- Sexual conduct
when can you discuss victim’s sexual history
can use to show ∆ wasn’t source of physical evidence, if character placed in issue by victim, probative value substantially outweighs prejudice
when can you talk about ∆’s sexual conduct
sexual assault or diddling case
test for if statement was testimonial
was the main objective emergency assistance?
o Could speaker anticipate this being told in court?
when is sixth amendment right to confront waived
if declarant is unavailable because of ∆
Rule 403 balancing test says exclude evidence if the probative value is substantially outweighed by danger of:
- Unfair prejudice
- Confusion of the issues
- Misleading the jury
- Undue delay/waste of time or
- Needless presentation of cumulative evidence
in essays, remember to always discuss ____ first
relevance!
Relevant if makes material fact more or less likely
Explain how that fact helps case
expert evidence is admissible if it
relevant: will help trier of fact understand the evidence or determine a fact in issue AND
reliable: based on sufficient facts /data and reliable principles /methods
party seeking to admit must prove by preponderance
when does defendant forfeit right to hearsay/confrontation clause because he made the declarant unavailable
when proved by preponderance of evidence that he
wrongfully caused declarant’s unavailable
did so intending to keep witness form talking
when does a party have to object if they want to preserve the right to challenge the admission of evidence on appeal
at the first opportunity
and must state the grounds for the objection
