Evidence Flashcards
Hearsay
Hearsay (definition)
- an out-of-court
- statement (or nonverbal assertive conduct)
- offered for the truth of the matter asserted
Hearsay
Hearsay: Offered to prove it was said
- nonhearsay
- Verbal Act or legally operative words (e.g. defamation, words that show contract formation, etc.)
- state of mind (I’m the Queen of England” to show defendant insane)
- Effect on listener or reader (usually shown to prove intent.
Hearsay
Prior Statements of Trial Witness
- Prior statement of identification
- Prior inconsistent statement (made under oath and subject to cross exam.)
- Prior Inconsistent statement used to rebut a charge of recent fabrication of improper motive/influence.
Declarer must be testifying at trial
Hearsay
Opposing Party’s Statements
If a party says something, it can be used against them without a hearsay issue.
1. Any statement made by the OP that is offered against the OP
2. Adoptive admissions (statements a person adopts through silence)
3. Agent employee statements made during the relationship and concerning a matter within the scope of that relationship (with OP)
4. Statemnts made by co-conspirators during the course of and in furtherance of the conspiracy
Hearsay Exceptions
Declarent unavailable if (5):
- Invokes a privelege
- is absent from the jurisdiction
- is ill or dead
- lacks memory
- refuses to testify
Hearsay Exceptions
Forfeiture by Wrongdoing (unavailable)
(witness tampering) A party engages in wrongdoing for the purpose of making a winess unavailable for trial.
Hearsay Exceptions
Former Testimony
(unavailable)
Declarant is:
1. unavailable
2. had given testimony at a former proceeding or deposition,
3. It is offered gainst a party or someone in privity who had the motive and opportunity to develop the statement. (opportunity to cross)
Hearsay Exceptions
Statement Against Interest
(unavailable)
Declarent is (1) unavailable and (2) made a statement they (3) knew was against their interest (4) at the time it was made.
Hearsay Exceptions
Dying Declaration
(unavailable)
Declarent is (1) unavailable, (2) statement was made while he believed death was impending, and (3) it concerns the cause or circumstance of death, and (4) it is used in homicide or civil case (memorize these elements)
Hearsay Exceptions
Statement of Personal or Family History
(unavailable)
Becuase someone has to tell you your name and who your family is. Kind of stupid, byt whatever.
Hearsay Exceptions: Declarent Available or Not
Present Sense Impression
declarent describes or explains events as it is happening or immedietly thereafter.
Hearsay Exceptions: Declarent Available or Not
Excited Utterance
- There is a startling event,
- Declarent makes a statement while under the stress of excitement from event, and
- The statement relates to the event.
Hearsay Exceptions: Declarent Available or Not
Then-existing mental, emotional, or physical condition
Declarent states his then-existing feelings, physical conditions, or intent.
Hearsay Exceptions: Declarent Available or Not
Statement for medical treatment or diagnosis
declarant (1) makes statement about (2) past or present symptoms or the causes (3) to get diagnosed or treated.
Hearsay Exceptions: Declarent Available or Not
Recorded Recollection
A witness has (1) insufficient recollection of the event, but he had (2) personal knowledge of the event at a former time (3) made or adopted a statement while the event was fresh in in his memory, (3) and can vouch for the accuracy of the statement when made or adopted.
Hearsay Exceptions: Declarent Available or Not
Business Records
A record (1) made in the regular course of business (2) at or about the time the event occurred that (3) contains information observed by employees of the business (or an independent hearsay exception exists).
Hearsay Exceptions: Declarent Available or Not
Public Records
Made by an agency not a police report in a criminal case.
Hearsay Exceptions: Declarent Available or Not
Learned Treatises
Read into evidence if an expert is on the stand.
Hearsay Exceptions: Declarent Available or Not
“Catchall” Exception
for trustworthy statements
Hearsay Exceptions: Declarent Available or Not
Others
regulation about character, familial relations, etc.
Presentation Evidence: Introduction of Evidence
Refreshing Recollection
If a witness’s memory fails him, he may be shown a document or record to jog his memory.
Presentation Evidence: Introduction of Evidence
Competency of Witnesses
Every witness is generally presumed to be competent regardless of religious beliefs, bias, etc.
Presentation Evidence: Introduction of Evidence
Judicial Notice
The court may judicially notice a fact that is not subject to reasonable dispute because it is generally known within the jurisdiction or it can be accurately and readily determined from sources whose accuracy cannot be questioned.
Presentation Evidence: Introduction of Evidence
Roles of Judge and Jury
- The judge decides if evidence is admissible.
- The jury decides issues of authenticity and credibility.
- “Goes to the weight, not the admissibility”
Presentation Evidence: Introduction of Evidence
Limited Admissibility
Sometimes evidence is admissible for one purpose and not another. In such case, the court may give a Limiting Instruction to the jury.
Presentation Evidence: Presumptions
Presumption
- A Presumption means that certain fact is assumed to be true unless the other side presents evidence to the contrary.
- In a civil case, a presumption can shift the burden of proof to the party against whom the presumption is directed. But the burden of PERSUASION is not affected and it remains on the party who hadi originally.
Presentation Evidence: Mode and Order
Presentation of Evidence: Mode and Order
Leading Questions
“isn’t it true that. . .” Typically, only allowed on Cross-Examination
* Allowed on Direct (a) to develop preliminary matters (name and address), (b) for young and forgetful witnesses, or (c) for hostile witnesses or the adverse party.
Relevancy and Writings, Recordings, and Photos
Relevant Evidence
Relevant evidence is admissible but may be excluded if the probabtive value is substantially outweighed by a danger of:
1. unfair prejudice
2. confusing the issue
3. misleading the jury
4. undue delay
5. wasting time, or
6. needlessly presenting cumulative evidence.
Real, experimental, and deminstrative evidence is admissible in the judge’s discretion.
Relevancy and Writings, Recordings, and Photos
The need to produce an original writing, recording, or photograph
- Original is generally required
- Duplicate admissible to the same extent unless it is unfair to admit it or there is a genuine question about authenticity.
Relevancy and Writings, Recordings, and Photos
Best Evidence Rule
Only needs to present documentary evidence when one wants to prove the contents of the writing.
This means that the writing is
* (1) a legally operative document (e.g. a will, contract, etc.), or
* (2) the witness learned about the event solely from the writing or record and has no independent knowledge of the event.
Often the wrong answer choice on the MBE
Relevancy and Writings, Recordings, and Photos
Summaries
(evidence)
- A party must use a summary, chart, or calculation if records are voluminous.
- However, the proponent must allow the other party to examine the records on which the summary is based.
- The court may order the records produced.
Relevancy and Writings, Recordings, and Photos
Completeness Rule
When a party presents a part of a writing or transaction, the other party can ask that the rest of it be introduced as well, if:
* in fairness, the rest ought to be considered contemporareously with it.
* By introducing the writing or transaction the presenting party has waived any objections based on hearsay, competency, etc.
Impeachment
Prior Inconsistent Statements
(witness)
- If a party makes a prior statement that is inconsistent with their testimony at trial, it may be used for impeachment purposes.
- Extrinsic evidence may be used if the witness is given an opprtunity to explain or deny the prior statement at some point. this does not apply if the witness is the OP, not in court at all, or if the interest of justice requires.
It may also be used as “substantive evidence” (truth of the matter asserted) if it falls within a hearsay exception or exclusion.
Impeachment
Bias
(Witness)
If a witness is a:
* family member
* friend
* enemy of a party
* paid by the party
* granted immunity
* or if other circumstances show bias
then that can be used to suggest the witness has a motive to lie.
Extrinsic Evidence may be used only if the witness is asked about the facts that suggest bias and the witness denies those facts.
Impeachment
Conviction of a Crime
(witness)
There are two categories of convictions that are allowed into evidence:
1. felony or misdemeanor convictions where the prosecution must prove an act of dishonesty or false statement as part of the crime - these are automatically admitted.
2. felony convictions that meet a balancing test that weighs the probative value and prejudice.
Extrinsic Evidence: the conviction is permitted (if more than years have passed since the conviction or release date, whichever is later, evidence of. the conviction is generally not admissible.
Need to study more on this
Impeachment
Specific Instances of Misconduct
(witness)
If a witness is engaged in a “bad act” that is probative of truthfulness (e.g. lying and cheating), he may be questioned about it on the stand.
Extrinsic Evidence: Not permitted, even if the witness lies and denies the conduct.
Confrontation: required, getting the witness to admit is the only way to prove.
Impeachment
Sensory Deficiencies
(witness)
Anything that concerns the witness’s perception or memory can be used to suggest that the witness is mistaken.
Extrinsic Evidence: permitted.
Impeachment
Contradiction
(witness)
- A witness may be impeached during cross examination of she made a mistake or lied about anything she said during direct.
- Extrinisic Evidence allowed if witness won’t admit mistake, but only if issue is not a collateral (irrelevant) fact.
- Confrontation required.
Impeachment
Reputation or Opinion for Truthfulness
(witness)
A party may call its own witness to testify that the witness in question has a bad repuation for truthfulness or, in the character witness’s opinion, that the witness is not truthful.
The witness is extrinsic evidence
Character Evidence
Character Evidence (admissibility)
Character Evidence is generally inadmissible to prove that someone acted in accordance whith their character.
* Civil Case: only admissible in cases regarding negligent entrustment or hiring, defamation, and child custody. It can be proven by (ROS), reputation, opinion, or specific acts.
* Criminal Case: the defendant must open the door and can use R or O, while the prosecution can use R, O, or S (once the door is open).
Character Evidence
Habit and Routine Practice (admissibility)
Evidence of a person or organization’s habit or routine practices may be admitted to prove that it acted in accordance with that habit or routine.
Character Evidence
A defendant’s prior bad acts may be admitted to prove what? (MIMIC)
Any of the following, MIMIC:
* Motive
* Intent
* Lack of Mistake
* Identity
* Common Scheme
Character Evidence
Character Evidence offered in Self-Defense cases
- A criminal defendant may offer evidence of a victim’s violent character using R and/or O evidence.
- If Def does the Pros may rebut by introducing R and/or O of the victim or Def’s character.
Character Evidence
Prior Sexual Misconduct of a Defendant (evidence)
- If a defendant is accussed of sexual assault or child molestation, the court may admit the evidence that the defendant committed any other sexual assault or child molestation.
- the evidence may be considered on any matter to which it’s relevant, including that he acted in accordance with his character.
Only specific acts can be considered.
Character Evidence
Prior Sexual Misconduct of a Victim
- In a criminal case, specific instances can be offered to prove the source of semen, injury, or other physical evidence; consent, or when excluding it would violate the defendant’s constitutional rights.
- In a civil case, evidence is not admissible unless the probative value substantially outweighs the danger of harm or unfair prejudice. The court may admit reputation evidence only if the victim places it in controversy (opens the door).
Witnesses
Expert Qualification
A witness who is qualified as an expert by knowledge, skill, training or education may testify if it is helpful to the trier of fact and based on sufficient facts or data.
Witnesses
Expert Bases of Testimony
An expert may base an opinion on:
1. Personal knowledge,
2. facts that are in the record and made known to the expert by a hypothetical or testimony at trial, or
3. facts not in the record if they are the kind of facts other experts would reasonably rely on.
Witnesses
Ultimate Issue Rule
An expert opinion may embrace an ultimate issue. But, in a criminal case, an expertt witness must not state whether the defendant had the requisite mens rea.
Witnesses
Lay Witnesses
A lay witness may testify if their testimony is:
1. rationally base on the witnesses perception,
2. helpful to determining a fact (probabtive),
3. and not based on scientific, technical, or other specialized knowledge.
A lay witness must have personal knowledge.
Witnesses
Exclusion of Witnesses
At a party’s request a court must order a nonparty witness to be excluded.
However, a court cannot authorize excluding a party, a person whose presence is essential to the claim or defense, or someone authorized to be present.
Authentication
Authentication
The proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.
Authentication
Handwriting
to authenticate handwriting, one may use:
1. a lay witness who was familiar with the handwriting before the litigation,
2. a expert witness, or
3. the trier of fact may compare the handwriting to an authenticated sample.
Authentication
Voice
anyone can authenticate a voice - including a lay witness - even if the person acquired familiarity of the voice during litigation.
Authentication
Photograph
Anyone who has personal knowlegde of the scene depicted may authenticate the photograph.
Presence of photographer not needed.
Priveleges and Policy Exclusions
Spousal Immunity
(1) it applies in a criminal trial, (2) it is held by the defendant’s (or witness) spouse, and (3) the parties must be married at the time of the trial.
Priveleges and Policy Exclusions
Confidential Communications (between spouses)
(1) applies in a civil or criminal case, (2) it is held by both spouses, (3) the communication was confidential, and (4) it was made during the marriage.
Priveleges and Policy Exclusions
Attorney-Client Privilege
Applies to the confiidential communications between an attorney and client (or either’s agent) or prospective client made for the purpise of attaining legal advice.
Priveleges and Policy Exclusions
Psycotherapist-client privilege
confidential communications bewteen a patient and a doctor for the purpose of diagnosis or treatment are protected.
Priveleges and Policy Exclusions
Work-Product Doctrine
Material prepared for litigation may not be discovered absence a showing of a “substantial need” and “undue hardship.”
Priveleges and Policy Exclusions
Insurance Coverage
Inadmissible to prove negligence but may be used for other purposes (e.g. to show agency, ownership, control, or bias).
Priveleges and Policy Exclusions
Subsequent Remedial Measures
Are inadmissible to show negligence or guilt but may be used for impeachment, to show ownership or control, or to shpw feasibility of precautionary measures if disputed.
Priveleges and Policy Exclusions
Admissibility of an Offer to Settle a Disputed Claim
Statements made during settlement negotiations are inadmissible.
Priveleges and Policy Exclusions
Admissibility of an Offer to Pay Medical Expenses
Inadmissible to prove liability.
Priveleges and Policy Exclusions
Admissibility of a Previous Guilty Plea
- A gulty plea is admissible.
- However, an (1) offer to plead guilty, (2) a guilty plea later withdrawn, (3) a no contest plea, and (4) statements made during negotiations that did not result in a gulty plea are inadmissible.
