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Rule Statements > Evidence > Flashcards

Evidence Flashcards

1
Q

Exception to general rule that opinions by lay witnesses are inadmissible:

A

Opinion by lay witness admissible if:

  • rationally based on perception of witness;
  • helpful to a clear understanding of the testimony or to determination of a fact in issue;
  • not based on scientific, technical, or other specialized knowledge
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2
Q

Character Evidence in Civil Case

A

Describes a person’s disposition and is generally irrelevant in a civil case, unless character is directly in issue

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3
Q

Habit Evidence

A

Habit describes a persons regular response to a specific set of circumstances

If relevant, evidence of habit is admissible to prove that the conduct of a person was in conformity with that habit

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4
Q

Evidence is Relevant

A

Relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence

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5
Q

Rule 403

A

Court may exclude relevant evidence if it’s probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, waste of time, or misleading the jury.

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6
Q

Methods of Proving Character Evidence

A
  1. Reputation
  2. Opinion (W testifies about personal opinion)
  3. Specific Acts
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7
Q

Purposes for Offering Character Evidence

A
  1. Conformity/Propensity
  2. Impeachment
  3. Any other purpose
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8
Q

Character Evidence being offered to prove conformity/propensity

A

Generally inadmissible to show the person acted that way during events of this case

Exceptions:
1. Criminal D may introduce evidence of OWN GOOD CHARACTER for a PERTINENT trait to show they wouldn’t commit a crime (reputation/opinion)

  1. Criminal D may introduce evidence of victim’s bad character for pertinent trait to show he is innocent (reputation/opinion)
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9
Q

Exception 1: When criminal D introduces evidence of own good character for a pertinent trait to show they wouldn’t commit a crime, what can prosecution do?

A

Once D opens the door, the prosecution can rebut:

  1. Call own character W to provide reputation/opinion testimony about D’s bad character
  2. Cross-examine D’s character witness; may inquire about D’s b ad acts relevant to the trait
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10
Q

Exception 2: When Criminal D offers evidence of a victim’s bad character for pertinent trait

A

Look for crime where D is charged with a violent crime AND is claiming self-defense

The victim’s character for violence is relevant to defendant’s innocence

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11
Q

Character Evidence Used to Impeach

A

Involves casting an adverse reflection on the truthfulness of the Witness

*cannot be used to impeach BEFORE there is anything to impeach

Common Impeachment Methods:
1. Prior consistent statements
2. Bias
3. Prior criminal convictions
4. Prior bad acts
5. Character for untruthfulness
6. Inability to perceive/lack of knowledge
7. Contradiction

Main issues w/ impeachment:
- Is extrinsic evidence admissible?
- If admissible, must a foundation be laid?

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12
Q

Impeachment with Prior Criminal Convictions

A
  • Crimes involving dishonesty/false statement (always admissible)
  • Felonies (as long as not more than 10 years) unless judge finds they are too prejudicial

*No foundation requirement for admitting conviction of certification

*Pay attention to facts: evidence cannot be used for impeachment purposes before there is an anything to impeach

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13
Q

Impeachment by Prior Inconsistent Statement

A
  • Always can ask about it on the stand
  • Only can present extrinsic evidence if major issue to the case

To introduce extrinsic evidence, counsel must give W opportunity to admit/deny the prior statement

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14
Q

Impeachment with Prior Bad Acts

A
  • W may be impeached on cross w/ specific acts of misconduct involving untruthfulness
    (no extrinsic evidence allowed)
  • Can only ask about the bad act (NOT any consequences of it = arrest)

No extrinsic evidence allowed (have to take word as it is)

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15
Q

Reputation/Opinion Evidence of Untruthfulness

A
  • Impeached W has bad reputation in their community for truthfulness (reputation)
  • Character W is personally familiar with impeached witness’s bad character for truthfulness (opinion)
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16
Q

Impeachment by Sensory Deficiencies / Ability to Perceive

A
  • Shown on cross or extrinsic
  • W unable to perceive the things he testified about/lacks knowledge of the facts at issue
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17
Q

Impeachment by Contradictory Facts

A
  • Evidence that contradicts witness’s testimony on one point, to cast doubt on witness’s testimony as a whole
  • If major point –> extrinsic evidence generally allowed
  • If minor point –> cross-examination only
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18
Q

Crimes, wrongs, acts generally inadmissible unless offered to prove:

A

MIMIC

Motive;
Intent;
Mistake;
Identity;
Common plan/scheme

*evidence of D’s other acts of sexual assault/child molestation is admissible in criminal and civil case where D accused of committing sexual assault/child molestation

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19
Q

Witness Competency

A

Presumed to be competent unless established to contrary

Sufficient evidence to support finding that witness has personal knowledge of matter they are going to testify about

Children = depends on capacity/intelligence
Insane person = May testify provided that they understand obligation to speak truthfully and have capacity to testify accurately

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20
Q

Refreshing Memory vs. Recorded Recollection

A

Refreshing memory can occur at any time with any evidence; doesn’t need to be admitted into evidence

Only use recorded recollections if the witness’s memory still not refreshed after seeing the evidence –> then the record itself can be read into evidence if proper foundation laid

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21
Q

Proper Foundation

A
  1. W has insufficient recollection to testify accurately/truthfully
  2. W had personal knowledge of facts in the record when record was made;
  3. Record was made by the W under their direction or adopted by W;
  4. Record was made when the matter was fresh in the W’s mind;
  5. Record accurately reflects W’s knowledge
22
Q

Opinion Testimony by Lay Witness

A

Generally inadmissible, unless:

  1. Rationally based on W’s perception;
  2. Helpful to clear understanding or determining fact in issue;
  3. Not based on scientific, technical, or specialized knowledge
22
Q

Expert Witness Testimony

A

Proponent must demonstrate to court that:

  1. Subject matter is now where scientific, technical, or other specialized knowledge would assist trier of fact
  2. Opinion based on sufficient facts/data
  3. Opinion is the product of reliable principles and methods;
  4. Expert’s opinion reflects reliable application of the principles/methods to the fact of the case
23
Q

Reliability of Expert Testimony = Daubert Factors

A

TRAP

  1. Testing rate of principle/methodology
  2. Rate of error
  3. Acceptance by experts in the same discipline
  4. Peer review and publication
24
Q

Expert Testimony Can be Based on 3 sources of information:

A
  1. Experts own personal observation;
  2. Facts made known to expert at trial;
  3. Facts not known personally but supplies to the expert outside the courtroom and of a type reasonably relied upon by other experts in the field (don’t need to be admissible in evidence)

*generally able to testify on ultimate issue, unless criminal D and the defendants mental state constitutes element of crime/defense (expert may not state opinion as to whether the accused did/did not have mental state in issue)

25
Q

Hearsay

A

Out of court statement made by the declarant, testifying at the current trial or hearing, offered in evidence to prove the truth of the matter asserted

*must always come from a PERSON

26
Q

Common non-truth purposes = not hearsay

A
  1. Words of contract/legally operative facts
  2. Statements offered to show effect on listener
  3. Statements offered as circumstantial evidence of declarant’s state of mind
  4. Statements offered to impeach
27
Q

Opposing Party Statement or “Admission”

A

Statement by/attributable to a party, now being offered against that person (cannot be party’s own statement)

  • Silence considered when it would be reasonable to deny
  • Vicarious admissions included where the statement made by another person, but attributable to the party because of the relationship between them (employer/employee)
  • Guilty pleas in prior cases
27
Q

Items that are designated NON-HEARSAY = removed from hearsay definition

A
  1. Statement by opposing party
  2. Testifying W’s prior inconsistent statement
  3. Testifying W’s prior consistent statement that rehabilitates the witness
  4. Testifying W’s prior statement of identification

*declarant must be on the stand for 2, 3, and 4)

28
Q

Correct answer choices in Opposing Party Statement/Admissions Questions Could be Stated as Follows:

A

“Admissible as an admission by a party”

“Admissible as a statement by a party opponent”

“Admissible nonhearsay”

29
Q

Testifying Witnesses Prior Inconsistent Statement Can be Used to Impeach AND as Substantive Evidence When:

A
  1. Statement given under oath at legal proceeding
  2. A statement that falls within another exclusion/within one of the hearsay exceptions

*must be on the stand

30
Q

Prior Consistent Statements

A

Occurs when W is accused on lying on the stand because of recent bias/motive

Prior consistent statement is NOT hearsay if it was made BEFORE the bias/motive arose

31
Q

Prior Statement of Identification

A

When a W on the stand previously identified a person and is testifying about that previous identification

32
Q

Exceptions to Hearsay WHEN DECLARANT IS UNAVAILABLE

A
  1. Dying Declarations
  2. Former Testimony
  3. Statements Against Interest
33
Q

Former Testimony Exception

A
  1. Unavailable
  2. Testimony was given under oath, hearing or deposition in same or different case;
  3. Party against whom testimony being offered had opportunity and similar motive to develop the declarants testimony

often facts will have all requirements, except for one; like the declarant being available WATCH OUT –> if prior inconsistent statement could still come in as impeachment

34
Q

Dying Declarations

A

only available in CIVIL or HOMICIDE case

  • Declarant unavailable
  • Declarant believes death was imminent and statement concerns the cause/circumstance of what the declarant believed to be their impending death
    (cannot be mere speculation/must be based on first hand knowledge)

*if fails under dying declaration, always consider excited utterance

“get away with murder” –> might not be enough for imminent death

35
Q

Statements Against Interest

A
  1. Statement of unavailable W may be admissible if it was against that person’s pecuniary (money/property/penal/criminal) interest when made –> reasonable people wouldn’t lie about things that make them look bad
  2. Must have personal knowledge
  3. Must have been against their interest when the statement was made

Usually will be:
- criminal D offers someone else’s confession to the crime
- When govt. tries to admit evidence to convict
- if in criminal case –> MUST be corroborated

36
Q

Hearsay Exceptions Available Regardless of Declarants Availability

A
  1. Present Sense Impression
  2. Excited utterance
  3. Present state of mind/physical condition
  4. Statements for purposes of medical diagnosis/treatment
  5. Business Records

(most common) there are more in outline

37
Q

Present Sense Impression

A

Statement that describes/explains an event or condition and is made while or immediately after the declarant perceives the event or condition

timing important

*can include present physical sensation/pain/symptoms even if not made to doctor

38
Q

Excited Utterance

A

Verbs of excitement, phrases indicating excitement, and !!!

  • Made while under the stress of excitement of the event;
  • Doesn’t have to be right away, just under “stress”
  • Sometimes failed dying declarations will succeed as excited utterances
39
Q

Present State of Mind/Physical Condition

A

Statement of declarant’s then-existing present state of mind

Motive, intent, plan

Intent to engage in future behavior can be used to prove that declarant actually engaged in that behavior
- CANNOT be about past physical condition

40
Q

Statements Made For Medical Diagnosis/Treatment

A
  • Describes a person’s medical history, past or present symptoms or inception/general cause
  • Can go back in time
  • Cannot identify perpetrator/explain what happened through this exception UNLESS it’s a child abuse victim identifying their abuser through treatment
41
Q

Business Records/Records of Regularly Conducted Business Activity

A

Any writing or record made as a memo of any act, event, condition, opinion, or diagnosis is admissible if the following elements are met:

  • Entry made in regular course of business;
  • Business must regularly keep such records;
  • Entry made near time of event;
  • Business record must consist of matters within PERSONAL knowledge of the entrant (cannot be statement by a third party to the organization)

*almost anything can qualify as a Business
*often pose hearsay within hearsay issues

42
Q

Authentication of Real Proof/Documents

A

Before something can be admitted, it must be authenticated.

General standard for authentication: Evidence sufficient to support a finding that the item is what the proponent claims it is (often right answer)

43
Q

Hearsay within Hearsay

A

Admissible if BOTH outer hearsay statement AND inner statement fall within an exception to the hearsay rule

44
Q

Confrontation Clause and Hearsay

A

Hearsay statement will NOT be admitted when:
- statement being offered against the accused in a criminal case;
- declarant is unavailable
- statement was “testimonial” in nature;
- accused had no opportunity to cross-examine the declarant’s testimonial statement prior to trial

45
Q

Testimonial statements

A

sworn testimony, grand jury, prior trial, preliminary hearing

statements to police officers depend on primary purpose
- if to aid in ongoing emergency –> NOT testimonial
- if to prove information for later prosecution –> testimonial

46
Q

Spousal Immunity Privilege

A

only applicable to criminal case

  • Married person whose spouse is a defendant in a criminal case may not be called as a witness by the prosecution
  • Must be a valid marriage for privilege to apply and privilege lasts ONLY during the marriage
  • Matters if spouses were married AT TIME OF TRIAL
  • Witness-spouse can choose to testify (don’t need both spouses to agree, just testifying spouse)
47
Q

Confidential Marital Communications Privilege

A

applicable in civil OR criminal cases

  • Confidential communications between spouses during a valid marriage are privileged
  • EITHER spouse can invoke/refuse to disclose to prevent other spouse from doing so
  • Marital relationship must exist when communication is made
  • Statements made in front of a third party = NOT privileged
48
Q

Other privileges

A
  1. Attorney-client = confidential communications between attorney and client made during professional legal consultation, unless privilege is waived or exception applies
  2. Psychotherapist/social worker
  3. Clergy-penitent privilege: if penitent made communication to the clergy member as spiritual advisor
  4. State based privilege (doesn’t apply at federal level)
    - physician/patient
    - accounant-client
    - professional journalist
49
Q

Spousal Immunity/Marital Communications Do NOT Apply In These Situations

A
  1. Communications or acts in furtherance of a future joint crime/fraud;
  2. In legal actions between the spouses;
  3. In cases where a spouse is charged w/ a crime against the testifying spouse or either spouse’s children
50
Q

Judicial Notice

A

Recognition of a fact as true without formal presentation of evidence
- facts not subject to reasonable dispute

Party must formally request that notice be taken and provide court with necessary information; can occur at any stage of proceeding

In civil case –> judicially noticed fact is conclusive

In criminal case –> jury is instructed that it may, but is not required to, accept the judicially noticed fact as conclusive

Rule Statements (13 decks)

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