evidence Flashcards
Criminal Burdens of Proof for Prosecution & Defendant
How to think about “burden of proof” conceptually
Denial v. affirmative defense
How to shift burden of proof
Types of facts judicially noticed
Must jury accept noticed fact as true (civil & criminal)
Character evidence for substantive use flowchart
Character evidence admissibility flowchart
Rules relating to content of writings, recordings, and photographs
- Best evidence rule
- admissibility of other evidence of content (original not required when CLOTS applies–collateral issue, lost, opponent possession / refused delivery, testimony/admission by opponent, subpoena cannot obtain original)
- Summaries of voluminous writings, recordings, photos
Requirements for opinion testimony by lay witnesses
Proper scope of lay, non-expert opinion (i.e., actual topics)
Are legal conclusions by lay witnesses admissible?
NO
Bases of opinion testimony by experts
Expert opinions on ultimate issue
attorney client privilege
Declarant unavailable hearsay exceptions
I Don’t Have The Witness:
Interest, against
Dying Declaration
History, personal/family
Former testimony
Wrongdoing/forfeiture (made unavail)
Hearsay exceptions, availability immaterial
My Big TRICEPS
Medical diagnosis/treatment
Business records
Treatise
Recollection recorded
Impression, present sense (present sense Impression)
Conviction
Excited utterance
Public records
State of mind
Items for which extrinsic evidence of authenticity is not required
Authentication principle (evidence) (what is authentication in relation to admissibility)
condition precedent to admissibility
What does authentication require (i.e., what’s the standard)
sufficient evidence to support finding that matter in question is what its proponent claims it to be
“sufficient evidence” for authentication purposes
that which a reasonable person could find “genuine” by a preponderance of the evidence
who determines admissibility / weight
admissibility: judge
weight: jury
What evidence needs to be authenticated
generally, only tangible evidence
What kind of witness is required for extrinsic authentication
sponsoring witness
Direct physical evidence authentication method
someone with personal knowledge of, or familiarity with the item, or a “custodian of records” testifies to authenticate
Circumstantial physical evidence authentication methods
may be authenticated by chain of custody, ancient documents rule, or other distinctive characteristics
Rule of completeness
- one party introduces part of writing/recording/oral statements
- adverse party may immediately introduce any other part which, in fairness, out to be considered in conjunction
general competency rule, evidence
Implications for age, for example
generally, everyone is competent to testify (no age limit, goes to weight for jury to determine)
personal knowledge requirements for lay and expert witnesses
lay witness: must have personal knowledge
expert witness: need not
competency of judge as witness
The presiding judge may not testify in a trial (the objection is automatic and need not be made)
competency of juror as witness
Impeachment by prior crime flow chart
