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LA BAR > Evidence > Flashcards

Evidence Flashcards

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1
Q

Relevant

A

tends to make the existence of any fact of consequence to the outcome more or less probable

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2
Q

Discretionary Exclusion

A

judge had BROAD discretion to exclude relevant evidence if its probative value is SUBSTANTIALLY OUTWEIGHED by the danger of UNFAIR PREJUDICE (confusion of issues, mislead jury, undue delay, waste of time)

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3
Q

Public Policy Exclusion -Both CIVIL and CRIMINAL

A
  1. existence of liability insurance coverage or amount (unless to impeach a witness, factual dispute, cause of action against insurer)
  2. Plea of guilty or nolo contendere later withdrawn or set aside
  3. Polygraph
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4
Q

Public Policy Exclusion -CRIMINAL only

A

contacting or retaining attorney unless within crime-fraud exception to attorney-client privilege

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5
Q

Public Policy Exclusion - CIVIL only

A
  1. Subsequent remedial measures
  2. compromises or offers
  3. offer to pay medical or similar expenses
  4. amount paid in settlement (except failure to maker settlement)
  5. workers comp claim
  6. Previous plea of nolo contendere
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6
Q

character evidence - 3 concerns

A
  1. purpose for which evidence of character is offered
  2. method to be used to prove character
  3. kind of case (civil or crim)
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7
Q

Purpose for offer of character evidence

A

may be offered:
1. serve as circ evidence of how a person probably acted during the event at issue in case
2. persons character is an ultimate issue in the case; OR
3. impeach the credibility of a witness

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8
Q

Means of Proving Character

A
  1. testimony of a character witness as to general reputation in the community; OR
  2. RARELY by evidence of specific acts
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9
Q

Evidence of Character in Civil Case

A

Generally not admissible in civil cases

rare “directly in issue” reputation testimony and specific acts evidence are admissible to prove character

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10
Q

Character Evidence - Accused in criminal case

A

prosecution cannot initiate, defendant can

ONLY reputation testimony allowed by defendant (no opinion or specific acts)

Prosecution can rebut with cross or own character witnesses

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11
Q

Victim’s Character

A

D’s initiative - hostile demonstration or overt act

  1. Reputation testimony about pertinent trait; OR
  2. Evidence of prior threats

DOMESTIC VIOLENCE EXCEPTION: D pleads self defense, they were living together, history of behavior between the two

Prosecution may rebut

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12
Q

Homicide Vic Character

A

Victim character of peacefulness allowed regardless if D opens the door

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13
Q

Sexual Assault Character

A

past behavior of victim inadmissible

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14
Q

Human Trafficking Character

A

Past behavior is inadmissible

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15
Q

Specific Acts of Misconduct

A

Generally inadmissible if offered solely to establish criminal disposition or bad character

If independently relevant to some issue other than D’s character or disposition to commit crime charged

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16
Q

M.I.M.I.C. (prior acts admissible)

A

Motive
Intent
Mistake (absence of)
Identity
Common Plan or Scheme

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17
Q

Similar Acts

A

Sexual Crimes
Domestic Abuse/Children
Certain Civil (DA, fam vio, sex abuse)

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18
Q

Judicial Notice of Fact

A

recognition of a fact as true w/o formal presentation of evidence

common knowledge or capable of verification

conclusive in civil not in crim

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19
Q

Judicial Notice of Law - Mandatory or Permissive

A

must take notice of fed and state law and official reg of forum state and fed

may take muni ords and private acts or resolutions of congress or the state legislature

foreign countries maybe

20
Q

Authentication

A

admitted only if it is authenticated by proof showing evidence is what the proponent claims

21
Q

Physical Evidence -Authentication

A

identified as to what it claims by
1. testimony of witness
2. object has been held in a substantially unbroken chain of possession

22
Q

Doc Evidence (authentication)

A
  1. admissions
  2. eyewitness test
    3 handwriting verifications
  3. Ancient Documents
  4. Reply letter doctrine
  5. Photographs
  6. X-rays
23
Q

Oral Statements - Authentication

A

Voice id
telephone

24
Q

self-authenticating Docs

A

certain documents prove themselves

bears seal
cert public docs
newpapers
commercial paper and docs
labor reports
certified copies of original docs

25
Q

Best Evidence Rule

A

originally writing must be produced

duplicates are inadmissible if:
1. authenticity of original is challenged
2. unfairness would result
3. original is testament for probate

26
Q

Competency of Witnesses

A

presumed to be competent until contrary presented

  1. must have personal knowledge
  2. declare he will truthfully testify
27
Q

Leading Questions

A

permitted:
1. Cross
2. necessary to develop witness’s testimony
3. examining an expert
4. witness is hostile, adverse party, ided with adverse party, or unable or unwilling to respond

28
Q

Improper Questions and Answers

A

?s - cant be answered w/o making unintended admission

answers - lack foundation/no knowledge

29
Q

Use of memoranda by witness

A

cannot read testimony from prepared memo

exception
1. refresh recollection
2. past recollection
3. inspection and use on cross

30
Q

Opinions by Law Witnesses

A

admissible with respect to:
1. appearance
2. state of emotion
3. senses
4. voice/handwriting
5. speed of object
ETC

31
Q

Opinion by Expert

A
  1. subject matter is scientific, technical or specialized
  2. Qualified
  3. Reasonable probability
  4. proper factual basis
32
Q

Cross-Examination

A

LA allows wide open cross

not limited to matters brought up on direct

33
Q

Credibility-impeachment

A

casting of adverse reflection on the veracity of the witness

may not be attacked until witness has been sworn and cant be supported until attacked

34
Q

Types of Impeachments

A

Prior inconsistent statement

bias, corruption, or interest

Conviction of crime (any crime any time in criminal cases to impeach for credibility)

35
Q

Civil Case - past conviction impeachment

A
  1. felony
  2. dishonest or false statement crimes

NOT ADMISSIBLE if over 10 years old

36
Q

Impeachment of Hearsay Declarant

A

nontestifying may be attacked if evidence would be admissible if they were testifying

37
Q

Hearsay

A

Statement made out of court offered to prove the truth of the matter asserted

38
Q

Statements that are NOT hearsay

A
  1. prior statement by Witness
  2. Admission by Party-Opponent
  3. Things said and done
39
Q

Hearsay Exceptions - Declarant Unavailable

A
  1. Exempt for privilege
  2. refuses to testify
  3. does not remember
  4. death or illness
  5. absent
40
Q

Declarant Unavailable - Former Testimony

A
  1. party against whom testimony is offered was party in former action
  2. same subject matter
  3. had opportunity to examine witness
41
Q

Declarant Unavailable - Statement Against Interest

A

made against the declarant’s interests when made

42
Q

Declarant Unavailable - Dying Declaration

A
  1. believed death was imminent
  2. cause or circumstance relating to death
43
Q

Declarant Unavailable - Personal Family history

A

made before controversy

44
Q

Declarant Unavailable - Sex Assualt by Child Declarant

A

under 12 years old

45
Q

Declarant Unavailable - Stmts offered against party procuring unavailability

A

against person who killed witness

46
Q

Declarant Unavailable - Catch All (civil only)

A
  1. statement possesses circumstantial guarantees of trustworthiness
  2. proponent made reasonable effort to adduce other evidence
  3. notice was given to other side
47
Q

Hearsay Exception - Availability Immaterial

A
  1. Present state of mind
  2. excited utterances
  3. present sense impressions
  4. Declarations of physical condition
  5. Business Records
  6. past recollection recorded
  7. Official records and writings
  8. Ancient Docs
  9. Treatises
  10. Reputation
  11. Family Records
  12. Market Reports

LA BAR (25 decks)

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