Evidence Flashcards
Regarding the Best Evidence Rule, when proving the contents of a writing, when is the originally writing not required?
1) All originals are lost or destroyed (unless destroyed in bad faith by proponent)
2) No original can be obtained via judicial process or procedure
3) Original is in possession of a party opponent; OR
4) Writing is not closely related to a controlling issue
What is the spousal immunity privilege?
General rule is that the spouse of a **criminal defendant* may not be called as a witness, nor can they be compelled to testify.
[CA: Any proceeding, not just criminal cases!)
1) Witness spouse holds privilege
2) About events before and during marriage
3) Can only assert while married
What is the marital communications privilege?
General rule that any communication made while married is privileged. Applies in civil an criminal cases.
1) Both spouses hold privilege
2) Only communications **during marriage*
3) May assert after marriage ends
When are leading questions permissible on direct?
When it is necessary to develop testimony. Usually comes up in:
1) Child witness
2) Age, Physical, or Mental Defect
3) Hostile Witness
4) Adverse Party
5) Associated with Adverse Party
What is the Rule of Completeness?
Permits a party to compel the introduction of evidence that, in fairness, shold be considered at the same time as an admitted writing or recording statement.
This means that if fairness DOES NOT require introduction, the party will have to wait until their own case in chief.
Does the Rule of Completeness apply to separate writings?
Yes; it can apply to a separate related writing, record statement, or photograph!
What is the Dead Man’s Statute?
Prevents a surviving party of a contract form serving as a witness regarding any matter occurring before the death of the other party.
Has since been abolished under FRE.
What is a sequestration and what must to court do when it is requested?
At party’s request, court must order **the exclusion of witness from the courtroom so they cannot hear testimony of other witnesses.
UNLESS there is an exception!
What parties are exempted from sequestration?
1) Parties
2) The crime victim, sometimes [ONLY APPLY IF EXPLICLITY TOLD]
3) FRE, the prosecutors lead investigator
Under the FRE, when does disclosure of a protected communication not operate as a waiver?
1) Disclosure was Inadvertent
2) Holder of privilege took reasonable steps to prevent disclosure
3) Holder promptly took steps to rectify, such as contacting disclosed party and *requesting return or destruction** of information.
Does the photographer of a photo need to identify the photograph themselves?
No! Anyone can authenticate the photograph if they have personal knowledge and can provide proper foundation.
When may a witness’s character be attacked as to their truthfulness or untruthfulness?
1) Credibility can be done by reputation or opinion
2) Testimony has to actually be probative of truthfulness or untruthfulness
What is the hearsay exception for learned treatises?
1) Statement contained in published treatises/book/article on subject of history, medicine, science, or art
2) Established as a reliable authority by witness, expert, or judicial notice
3) Expert relied on it during direct or it was brought to expert’s attention on cross.
Even if a statement meets the treatise hearsay exception, could the actual source (i.e. the book it comes from be introduced into evidence?
No!!!! The treatise itself, is not admitted into evidence.
If evidence can come in as substantive evidence, may the same evidence come in for impeachment?
Yes!
When is a defendant’s character trait admissible in a civil case?
What about in a criminal case?
Only if it is an essential element of a claim or defense. Otherwise, cannot use evidence to prove that defendant acted in conforming with character trait.
In contrast, criminal cases would permit the defendant to “open the door” by using such evidence on themselves!
What are civil causes of actions where a defendant’s character is an essential element?
1) Defamation
2) Negligent Hiring
3) Negligent Child Care
4) Fraud
5) Negligent Entrustment
When may demonstrative evidence be used?
Can be used to
1) Prove contents of voluminous or confusing documents that cannot be conveniently examined in court
2) So long as party provides originals or duplicates to other party
What is the hearsay exception for a statement concerning a mental, emotional or physical condition?
Admissible if statement about declarant’s then existing:
1) State of Mind (motive, intent, plan)
2) Emotional, Sensory, Physical Condition (mental feeling, pain, bodily health)
Can you impeach a witness for untruthfulness through specific extrinsic bad acts?
No! You cannot impeach by extrinsic evidence of a specific instance of conduct!
When the defendant brings in evidence of a good character trait, must the trait actually be relevant to the cause of action?
Yes, the evidence must be relevant to the character trait at issue.
For example, if I am being tried for battery, evidence that I am a truthful person is irrelevant.
When may a final judgment of conviction not be excluded as hearsay?
If the judgment was entered after trial.
Does not apply to acquittals!
If the government choses to prosecute a witness who provided incriminating testimony, but was given use immunity, what must they do?
Government must demonstrate that the compelled testimony did not provide an investigatory lead to the prosecution.
May a party introduce evidence that is relevant to the weight and credibility of other admitted evidence, even if the judge has already decided he evidence is admissible?
Yes! A party can seek the discredit the credibility of admitted evidence, even if the judge says it is admissible.
Remember, judge determines admissibility; jury decides weight!
Can evidence be admitted on the condition that proof to the evidence’s relevancy would be admitted later?
Yes! Court may admit proposed evidence on the condition that proof to relevancy be introduced later.
AKA Conditional Relevancy!
IWhen does the dying declaration hearsay exception apply?
1) In civil cases
2) In criminal homicide cases
