Evidence Flashcards
confidential marital communications privilege
covers confidential marital communications bw spouses WHILE THEY WERE MARRIED &
privilege extends beyond termination of marriage
Spousal immunity privilege
A currently married person may not be compelled to testify against his spouse in any criminal proceeding
Can only be asserted during a valid marriage
Is a motel clerk’s consent to governmental search of a guest sufficient to justify a search?
No
“Opening the door” to attacks on character applies only to
criminal proceedings
When can a party bring up specific instances of conduct to prove character evidence in a civil trial?
When character evidence is an essential element of a claim/defense
For crim, molestation cases specific instances of conduct are admissible
Must a party object after court makes a definitive ruling on the admissibility of evidence?
No
When is withdrawal appropriate in CL conspiracy?
Not possible the moment agmt is created
bursting bubble approach to presumptiosn
once an opposing party has produced sufficient evidence to overcome a presumption, the presumption bursts and the fact finder must weigh the evidence to decide the issue
in federal diversity cases, which law supplies the rule of decisions and PRESUMPTIONS related to the claim/defense
state law
party may attack a W for character for truthfulness by introducing
- reputation/opinion testimony about the character or
- pertinent SPECIFIC INSTANCES of W’s conduct (e.g., crime of dishonesty/felony)
When can felony conviction be admissible to impeach a witness
When
1. felony conviction (not involving dishonesty) is less than 10 years old &
2. W is not a criminal ∆
UNLESS probative value is SUBST’LLY outweighed by its prejudicial effect
EXCEPTION: when conviction has been pardoned, annulled, or cert. of rehabilitation
6A confrontation clause
bars admission of testimonial statements made by an unavail. decl. unless the ∆ has had the opp. to cross-examine that decl.
6A Confrontation Cl Exception
When criminal ∆ wrongfully and intentionally causes decl.’s unavailabiltiy
Best Evidence Rule
original/reliable duplicate of a recording, writing, or photograph be produced to prove its documents
Best Evidence Rule exception
When:
1. all originals are lost/destroyed &
2. loss/destruction was not a product of the party’s bad faith
objection to use unavailable decl’s hearsay statement is forfeited if:
party
1. wrongfully caused decl’s unavailability &
2. did so intending that result
must be proven by PREPONDERANCE OF EVIDENCE
Character evidence inadmissible to
prove that the person acted in accordance w/that character trait on a particular occasion
Can expert witnesses be subject to cross-examination?
Yes, re: adequacy of the expert’s knowledge (general knowledge in their field of expertise + specific knowledge of the facts underlying their testimony)
Hearsay state of mind exception
Statement of the declarant’s then-existing state of mind–statements of motive, intent, or plan
Where both the tape recording of a conversation and the W is available at trial, is the testimony of the W barred by Best Evidence Rule?
No (a special rule)
Best Evidence Rule applies to which 3 things
- recording
- writing
- photograph
to prove the document’s content
Are offers to compromise not in the process of compromise negotiations admissible
Not admissible
Exceptions to Compromise Offers & Negotiations Rule
- made during negotiations in civil dispute involving gov’t regulatory, investigative, or enforcement agency AND offered in subsequent CRIMINAL case; or
- a. proving W’s bias/prejudice;
b. negating contention of undue delay;
c. proving effort to obstruct criminal investigation/prosecution
Is a statement about pregnant a then-existing physical condition?
Yes, and is excluded from hearsay
Past recollection recorded hearsay exception only applies
To records that
- concerns a matter a W once knew but cannot recall at trial [If W remembers this exception CANNOT be used],
- made by or based on information from someone with personal knowledge, and
- made & kept as a regular practice in the course of regular activities of the business
Witness’s character for truthfulness can be attacked by SIC only on
cross-examination if:
1. the bad act is probative of the W’s truthful char. AND
2. inquiry is made in good faith
generally, extrinsic evidence cannot be used to prove SIC involving a prior bad act that
did not result in a criminal conviction
collateral evidence rule (evidence)
cannot use of extrinsic evi to impeach a W on a collateral issue (i.e., an issue irrelevant to the outcome of the case)
Expert witness may offer an opinion on an ultimate issue (i.e., pt that is sufficient to resolve the case)
in civil cases;
but in criminal case, expert may NOT offer opinion about whether the ∆ possessed the requisite mental state for the charged crime/asserted defense
Authentication requires clear and convincing evidence that item is what the proponent claims it to be
No it requires an even lesser std (more than 50%)–preponderance of the evidence
Declarant is considered unavailable if:
- absent from trial or hearing AND
- proponent could not obtain the Decl’s attendance by subpoena or other reasonable means
character evidence admissible in which civil cases
- defamation
- child custody
- negligent entrustment
- misrepresentation/fraud
Admissible evidence of medical diagnosis/treatment
describe medical history, symptoms, or general cause
NOT WHO was responsible for their injury
proper rehabilitation of W only pertains to
truthful character
not perception of an event–e.g., W’s ability to perceive the ∆ in the dim light
T/F: ∆’s 6A right to confrontation places constraints on the use of the Decl’s prior out-of-ct statement when the Decl. is available for cross-examination at trial
False
Bc when a co-∆-Decl. also testifies, ∆ has the opportunity to confront the witness on cross-examination
warrantless search incident to lawful arrest limited to
- person’s body and areas in his/her immediate reach AND
- conducted immediately before/after a valid arrest
Is a person’s mere presence with a criminal enough to create probable cause
No, not a reasonable belief (i.e., greater than mere suspicion) that the person arrested committed a crime
if hearsay statement is contingent on something happening
it is not a state-of-mind exception
