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Evidence Flashcards

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1
Q

Refreshing Recollection

A

If a witness does not remember something - their recollection can be refreshed by any object, sound, smell, ANYTHING (writing)

Witness cannot just start reading off the writing
May briefly gaze upon the refresher, then testify from memory

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2
Q

Refreshing Recollection - opposing side

A

Court has discretion whether to let the opposing side view it -
Then may
Inspect the refresher
Use the refresher on cross-exam against the witness
Introduce it into evidence as an exhibit

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3
Q

Objections - statements opposing something that has happened in court or that is about to happen

A

Asking for the judge’s immediate ruling on it
must be (1) timely - at the earliest opportunity possible, and (2) specific (say you are objecting on grounds of relevancy, hearsay, inadmissible character evidence, etc)

If witness leaves the stand, it is not timely and it is too late to object - issue is waived on appeal

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4
Q

Jury instructions - can object later on IF

A

plain error affecting substantial rights has occurred

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5
Q

Plain error objection

A

Need to show the instructions are a clearly inaccurate statement of law that would probably lead to an incorrect verdict -

Otherwise, without plain error - the objection is waived if it is not timely
REMEMBER SUBSTANTIAL RIGHTS

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6
Q

When the opponent at trial argues against the admission of a piece of your evidence, you may make an

A

offer of proof

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7
Q

Offer of the proof is telling the judge

A

(1) what the evidence is
(2) an explanation of how the evidence relates to the case itself, and
(3) arguments supporting admissibility of the evidence

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8
Q

Motions to strike evidence at trial

A

Happens when some evidence got in that shouldn’t be admissible, and
you’re asking for the jury to disregard it and preserve the error on appeal

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9
Q

In order for a lay-witness opinion to be admissible it must be:

A

RATIONALLY BASED ON THE WITNESS’S PERCEPTION
+ helpful to the jury
+ not based on technical, scientific, or other specialized knowledge

NO opinions allowed, NO conclusions allowed

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10
Q

Lay witnesses can’t give opinions on “ultimate issues”

A

but can give an opinion on identification of drugs, speed of moving vehicle, whether someone was drunk, etc.

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11
Q

If you are familiar with someone’s handwriting PRIOR to the trial

A

you may testify to the similarities you see in handwriting samples because
they are rationally related to you perception!

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12
Q

Competency of children testifying

A

Must have the capacity to understand their obligation related to telling the truth

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13
Q

Interpreters have to take an oath to make a true translation

A
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14
Q

Dead Man’s Statute

A

in CIVIL actions, cannot testify in support of your OWN interest about a dead person’s estate

A witness in violation of the dead man’s statute is deemed incompetent and CANNOT testify.

No federal dead man’s statute, in diversity cases, they will apply a state dead man’s statute

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15
Q

Judicial Notice

A

court takes notice of facts generally known in the jurisdiction or facts that NO ONE is arguing about from accurate, unquestionable sources

ex. farmer’s almanac, historical facts, geographical facts

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16
Q

Court can take judicial notice of a fact on it’s own OR

A

at the request of a party who supplies them with necessary information

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17
Q

No mandatory presumptions in criminal cases

A

you are PRESUMED INNOCENT
Prosecution must prove EACH AND EVERY ELEMENT of the crime

Nothing is MANDATORY - jury CAN accept but doesn’t have to!

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18
Q

Judicial notice in civil cases

A

MANDATORY

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19
Q

Judges - Determine preliminary questions of fact upon which admissibility depends

A

Determine whether a witness is competent
Not bound by the rules of evidence - can consider affidavits which are hearsay
Jury doesn’t have to be present

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20
Q

Judges (NOT juries) determine admissibility of HEARSAY evidence and confessions

A

When determining the admissibility of hearsay evidence and confessions, it must be OUTSIDE the presence of the jury

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21
Q

Judges run the courtroom

A

Determine the order of the witnesses, the timing, who presents evidence first
Determine what evidence comes in (maybe even for one specific purpose but not another, and they tell this to the jury)

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22
Q

Judges trick question

A

a judge can let in circumstantial evidence

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23
Q

Determination of credibility

A

Judges determine admissibility
juries determine credibility and reliability of witness testimony

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24
Q

Jury misconduct

A

Lying during voir dire or running your own experiments, googling stuff could lead to a NEW TRIAL

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25
Q

Can jurors talk to the press?

A

Not until the trial is done!

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26
Q

In criminal OR civil cases jurors can never testify about deliberations that place to get a verdict or indictment

A

can testify about outside influence

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27
Q

Jurors are disqualified as witnesses in trials they are sitting on IF

A

the other side objects

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28
Q

Juror misconduct - crazy, overt acts or concealed bias

A

Refusing to deliberate at all
Intentionally agreeing to nullify the verdict
Communication with others about the case
Jurors bringing in expert or specialized opinions

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29
Q

The state has the burden of proving every element of the offense

A

Trick question will suggest the jury has to prove it.

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30
Q

Presumptions at trial

A

Defendant is presumed innocent.
Government officials are presumed to carry out their duties competently.
People missing for a certain amount of time are presumed dead.

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31
Q

Abuse of Discretion

A

The appellate court will NOT overturn a judge on abuse of discretion grounds unless he acted arbitrarily or irrationally.

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32
Q

Leading questions

A

Allowed on cross-exam
Usually NOT allowed on direct exam
Allowed ONLY for hostile witnesses who are adverse

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33
Q

Leading questions are sometimes allowed on direct in certain limited circumstances

A

Introductory matters
Very young or forgetful witnesses

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34
Q

Scope of cross examination

A

You can only ask about matter’s within the scope of the direct examination OR
things that test the witness’s credibility (bias, perception, memory)

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35
Q

Impeachment

A

always relevant and can always be brought up, even if it’s not within the scope of earlier questioning

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36
Q

When a witness “opens the door” and brings something in which is OUTSIDE the scope of previous questioning

A

Now the other side will have a chance to respond to cure the prejudice

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37
Q

Witnesses can generally be excluded from the courtroom

A

so they don’t hear what other people are saying and tailor their testimony to this

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37
Q

A person whose presence is essential to a party presenting their case (like a jury expert or a summary witness) cannot be excluded

A

People permitted by statute (like victims) cannot be excluded

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38
Q

A party themselves (like the defendant)

A

doesn’t have the right to be present for ALL parts of trial

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39
Q

Impeachment

A

casting an adverse reflection on the veracity of a witness
(calling them out on their BS)

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40
Q

Impeach through…

A

Cross-examination (even your own witnesses)
Extrinsic evidence (calling other witnesses or bringing in documents to prove someone is lying)

You can’t call a hostile witness solely to impeach them

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41
Q

Impeachment - Sensory deficiencies

A

If the witness is deaf, blind, drunk, mentally ill, or lacking knowledge

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42
Q

Impeachment - Sounds of Silence

A

Civil trial - prior silence can be used for impeachment - a jury can draw an adverse inference based on your pre-trial silence

Criminal case - you have the right to remain silent, so post-Miranda, post-arrest silence CANNOT be commented on or used to impeach

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43
Q

Impeachment with prior convictions

A

Depends on:
Amount of time passed
What type of crime it is
And whether our witness is the defendant or not

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44
Q

Impeachment on prior convictions
Crime within 10 years ago

A

Dishonesty crime - comes in no matter what

Non-dishonesty crime
Defendant is a witness - felonies ONLY but excluded unless probative value outweighs prejudicial risk
Defendant is NOT witness - admissible as long as it passes 403 balancing test (not meant to waste tike, confuse jury, etc)

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45
Q

Crimes OVER 10 years old (from RELEASE from prison OR conviction, whichever is later)

A

Comes in only if the PROBATIVE value of the conviction SUBSTANTIALLY outweighs its prejudicial effects AND
you have to give the other side ADVANCED notice of your intent to use it

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46
Q

Crimes OVER 10 years old (when defendant is a witness)

A

Probative value must outweigh the prejudicial risk

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47
Q

Crimes OVER 10 years old (when witness is NOT the defendant)

A

Prior felony convictions are admissible if they pass the 403 balancing test (will not confuse or mislead the jury, result in unfair prejudice, needlessly present cumulative evidence)

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48
Q

Defendant + felony under 10 years

A

must be probative

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49
Q

normal witness

A

over 10 years = substantial
under 10 years defendant = probative
under 10 years witness = not wasting juries time

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50
Q

Impeach with prior bad acts

A

specific bad acts which involved untruthfulness (lying, deceit, NOT prior arrests) - cross exam only

if witness says NO - can’t bring in extrinsic evidence to prove he did lie - have to accept the denial & move on

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51
Q

Bad acts - can only reference the bad act itself, not any consequence that flowed from it.

A

also can’t impeach on collateral matters or irrelevant issues unrelated to truthfulness

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52
Q

Impeachment by Contradiction

A

Have to use direct impeachment, not collateral matters unrelated to the main facts

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53
Q

Impeachment based on bias or interest

A

keep an eye out for financial interest or a personal vendetta against someone they are testifying about

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54
Q

Prior inconsistent statements

A

usually not available as substantive evidence

if we want to impeach someone with extrinsic evidence of a prior inconsistent statement, the witness has to be given an opportunity to explain or deny the statement

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55
Q

Hearsay declarant may be impeached with a prior inconsistent statement without giving a chance to explain or deny

A

The credibility of BOTH the testifying witness and the hearsay declarant can be attacked through impeachment methods like prior inconsistent statements, prior convictions, bias, sensory deficiencies - can be attacked

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56
Q

If a prior inconsistent statement is from an opposing party, no opportunity to explain or deny is needed

A

It will get in as an opposing party admission

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57
Q

If the court finds in the interest of justice that the prior inconsistent statement should get in without an opportunity to explain or deny from the witness

A

it gets in

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58
Q

When can a prior inconsistent statement be brought in both to impeach and as substantive evidence?

A

when it is given under oath at a prior formal hearing, proceeding, trial, or deposition

when they are from an opposing party they can be brought in substantively and be considered for their truth

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58
Q

Prior consistent statements only come in when:

A

Declarant testifies and is subject to cross; AND
Previous statement is consistent with declarant’s in court testimony; AND
The opposing party has attacked the witness’ in-court testimony; AND
Statement must have been made BEFORE the motive to fabricate could arise

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59
Q

FRE apply in all proceedings except:

A

Grand jury proceedings
When judge is determining preliminary issues of fact
Extradition proceedings
Preliminary hearings to determine PC
Sentencing
Parole/probation hearings
Hearings related to search warrants
Bail and bond proceedings

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59
Q

Prior consistent statement is a hearsay exception that comes in as substantive evidence

A

NOT just to rehabilitate, it can be considered by the jury for its truth

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60
Q

All relevant evidence is admissible as long as it is not hearsay and doesn’t hit a 403 danger

A

403 dangers: confusing or misleading the jury, wasting time, causing unfair prejudice, or being needlessly cumulative

UNFAIR surprise is not a reason - it is NOT a reason to exclude evidence

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61
Q

Standard to determine whether something is relevant?

A

Does the evidence have any tendency to make a fact of consequence MORE or less likely?

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62
Q

Evidence of flight is relevant as circumstantial evidence of consciousness of guilt

A

Defendant destroys evidence
Uses an alias
Runs from law enforcement and flees the country
Escapes from jail

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63
Q

Correct answers for relevancy questions almost always use what words?

A

Probative or tendency

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64
Q

Sometimes a situation where evidence MIGHT be relevant but the jury will likely put too much weight on it OR

A

there is a danger of unfair prejudice

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65
Q

Sometimes things are too prejudicial because they are…

A

excessively emotional, shocking, or grotesque and they’d overwhelm the juries senses

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66
Q

If the other side opens the door or puts a fact in controversy, you can take them down with evidence you normally wouldn’t be allowed to get in

A

The judge will almost always allow you to respond to any evidence placed in front of the jury in order to cure the prejudice or respond to controverted facts

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67
Q

Objections that can be made that might keep potentially relevant evidence out

A

Lack of foundation - witness has insufficient personal knowledge

Calls for speculation - have to testify based on personal knowledge, not guessing

Compound - asks two questions at the same time time & yes or no could be the answer to either

Argumentative - not an actual question, being sarcastic, picking a fight

Calls for legal conclusion - ex “Do you think he was negligent?” - NOT allowed

Misstating the evidence - question includes evidence that was never presented

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68
Q

Before admitting evidence - must show it is authentic

A

Don’t have to PROVE but have to offer SUFFICIENT EVIDENCE - burden is LOW

one way is chain of custody to show the object is what we say it is - but only needed for items that are NOT readily identifiable

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69
Q

Authentication of photographs

A

Testimony of the photographer themselves; OR
Testimony of someone who WITNESSED the photography; OR
Testimony of someone who was there at the time or who HAS BEEN TO THE LOCATION OF THE PHOTOGRAPH to testify that the photograph is a FAIR and ACCURATE REPRESENTATION of the area

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70
Q

Authentication of photograph - unattended camera

A

If camera is unattended, like a traffic camera - must show it was:
Properly installed
Film was properly removed
THEN show chain of custody

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71
Q

Xrays can’t be authenticated by testimony of a witness that they are an accurate representation of the time, instead must show:

A

The process used to create the xrays is accurate
the machine was working properly, AND
The operator was qualified to use the machine

Must show that it came through the proper chain of custody

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72
Q

How to authenticate documents?

A

Party admissions: if a party says they actually wrote a document - this is sufficient to authenticate it
or
Personal knowledge: witness says they viewed someone else write a document works to authenticate it as well

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73
Q

Authenticate ancient documents

A

Presumption of authentication if:
Document is AT LEAST 20 years old
There is no suspicious things on it (no white-out marks, etc)
It is found in a place of natural custody (like an old book or newspaper at a library)

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74
Q

Authenticate handwriting

A

1) handwriting expert
2) lay witness opinion (someone who PREVIOUSLY was familiar with the author’s handwriting)
3) visual comparison by the jury

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75
Q

Authenticate phone calls

A

Outgoing calls we need to prove (1) we called the right number, (2) the person who we called answered & identified themselves

Incoming phone calls (trickier) - (1) need the caller to identify themselves, and either (i) recognize their voice, (ii) recognize what they are talking about, (iii) recognize their reply technique when you ask a question

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76
Q

Voice can be identified based on opinion testimony of any person who is familiar with the speaker’s voice

A

Familiarity may be acquired at ANY TIME

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77
Q

Self-authenticating documents

A

Official publications
Newspapers and periodicals
Trade inscriptions
Notarized documents
Certified copies of public records OR certified copies of business records (like a vehicle registration form)
Commercial paper

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78
Q

Character evidence

A

Evidence that describes the nature or disposition of a person, or how it is anticipated they will act under certain defined circumstances

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79
Q

Three ways to prove character

A

1) Opinion Testimony - a witness testifies, “I know X personally, and in my opinion he is a very honest person”

2) Reputation Testimony - a witness testifies, “I know X’s reputation in our community, and he is considered to be extremely non-violent”

3) Specific acts - a witness testifies, “A year ago I saw X save a grandma from being attacked by a mugger.”

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80
Q

Character - civil cases

A

Evidence of good character is NOT allowed in civil cases
Can only be brought into civil cases where character is AN ESSENTIAL ELEMENT OF THE CLAIM OR DEFENSE

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81
Q

When proving that a defendant should not have hired someone, character is an essential element of the claim

A

It is necessary to prove the third person had a bad character and shouldn’t have been hired - so character evidence is allowed.

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82
Q

When being a “good parent” is at issue

A

character is essential to the claim, so character evidence comes in

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83
Q

If someone is suing you for defamation, a defense to that claim is truth

A

so character evidence will be able to come in

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84
Q

If you entrust something to someone, the other side has to prove that the person entrusting…..

A

KNEW the person was incompetent - character is at issue

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85
Q

Anytime character is an essential element of a claim or defense in a civil case - you can bring in ANY of our three ways to prove character

A

(1) opinion
(2) reputation AND
(3) prior bad acts

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86
Q

Is character evidence admissible in normal civil cases such as assault and battery?

A

NO

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87
Q

Criminal cases - the prosecution CANNOT be the first side to bring up character evidence

A

UNLESS we are talking about rape, sexual assault, and child molestation cases

Then prosecution is allowed to strike directly at a defendant using propensity evidence.

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88
Q

If being charged with child molestation, and have been accused of it in the past, the prosecution can get on the stand and say

A

This defendant is a child rapist who has been accused of it in the past before, even though he was not convicted.
EVEN if the defendant never testifies.

89
Q

Who opens the door to character evidence?

A

The defendant

90
Q

Defendant may introduce evidence of a relevant character trait (through reputation or opinion testimony of a character witness)

A

which then opens the door for the prosecution to rebut this evidence

They can introduce this reputation or opinion evidence even if they do not testify

Defendant cannot open up with prior act character evidence

91
Q

Defendant can only open the door with a pertinent character trait to the crime at issue

A

Murder case - evidence that the defendant is violent or peaceable is related to the charge -so the defendant can open the door with this evidence

Fraud case - honesty is pertinent character trait, so the defendant can open the door to reputation or character evidence about honesty

Perjury case - truthfulness is relevant character trait

Battery case - honesty is NOT a relevant character trait

92
Q

How can the prosecution respond to reputation and opinion witnesses that the defendant has offered up?

A

Can respond with their own reputation or opinion witness

Ask the character witness about specific (prior) bad acts related to the defendant

93
Q

Evidence of a victim’s character can be introduced in

A

self-defense situations

if victim has a bad reputation for violence - this comes in because it can show the victim was the initial aggressor.

94
Q

Prosecution may challenge reputation or opinion evidence of the victim in two ways

A

May respond by showing:
The victim’s good character; OR
The defendant’s bad character for the same trait (the defendant has a reputation for being violent themselves)

95
Q

Homicide cases - if defendant offers ANY evidence that the victim was the first aggressor

A

the prosecution can offer evidence of the victim’s good character for peacefulness

96
Q

Habit - should be regular, specific, and must be an involuntary or semiautomatic response

A

evidence of a habit or routine practice of business is admissible to prove that the person/business acted in conformity with their habit or routine

97
Q

MIMIC Evidence is NOT character evidence

A

Motive
Intent
Mistake or accident, or absence of mistake
Identity (modus operandi)
AND
Common scheme or plan

98
Q

MIMIC evidence can be proven by prior convictions or

A

Evidence that proves the act occurred
sufficient evidence for a reasonable jury to conclude that the defendant did these acts by a preponderance of evidence (court will weigh probative value vs. prejudicial value)

99
Q

Expert witness has knowledge, skill, training or education to give a specialized opinion about the evidence in a trial or fact at issue

A

Must be:
Qualified
Testimony must be based on sufficient facts or data…and be the product of reliable principles and methods, AND the expert witness ACTUALLY must have used those reliable principles and methods in this case
Testimony needs to be helpful to the jury

100
Q

Party offering the expert has to show by a preponderance of the evidence that he is qualified and the judge has huge discretion to not let someone sketchy in as an expert

A

Decision will be reviewed under the abuse of discretion standard

101
Q

Expert can testify based on:

A

Personal knowledge
Evidence presented at trial and witnesses he has heard
Use of a hypothetical
Facts outside the record IF those facts are typically relied on by experts in the field

102
Q

in a civil case - an expert can give an opinion on an ultimate issue - such as cause of accident, whether a product is defective, whether signature is forged, etc.

A

can’t give opinion on a legal conclusion related to an ultimate issue

factual opinions = fine
legal conclusions = bad

103
Q

Experts can be cross examined to show bias

A

the other side can attack their credibility, their education, their credentials, their bias - can be impeached with prior inconsistent statements & they can be cross examined on conflicting data in the field

104
Q

Scientific evidence from experts

A

Must meet the TRAP factors
Tested principles and methodology
Rate of error must be low
Acceptance by other experts in the field
Peer reviewed
(Memorize these)

105
Q

Experts can use learned treatises to aid testimony

A

can get in through
Court taking judicial notice
The other expert
Your expert testifying

can come in as substantive evidence when an expert is on the stand & explaining to the jury - can also be used to impeach the other side’s expert

relevant portions can be read into evidence but the jury cannot take the treatise back with them into the deliberation room

106
Q

A lot of right answers for expert witnesses say the words

A

“it would be helpful to the jury” or “it would assist the trier of fact”

107
Q

Demonstrative exhibits

A

Physical objects used as aids to help the jury understand the testimony
real evidence might be physically inconvenient, too voluminous, or indecent

Photos
charts
experiments
Injuries & people

108
Q

Spousal immunity privilege

A

You can’t be forced to testify against your spouse
It is broader than the marital communications privilege.
It’s about TESTIFYING

109
Q

Marital communications privilege

A

You can’t share confidential pillow talk during a marriage privilege
It’s about PRIVATE COMMUNICATIONS

110
Q

Marital privilege but NOT spousal immunity

A

You can testify to observations, general knowledge of the spouse’s behavior or actions, and EVEN COMMUNICATIONS, provided they were not confidential.

111
Q

Spousal immunity

A

Applies only CRIMINAL CASES
You CANNOT prevent your spouse from testifying if they waive this privilege
Ends upon divorce
Covers all information learned DURING AND BEFORE the marriage

Privilege is NOT available if the government grants the defendant spouse immunity
If the government only gives the witness spouse immunity, the privilege stands and you can still refuse to testify, even if they give YOU immunity

112
Q

Spousal testimony privilege is “the faithful lover” privilege

A

Spouse CAN testify if they want to, but if they are a FAITHFUL lover, they do not have to.

113
Q

Marital communications privilege

A

Applies in criminal AND civil cases
One spouse may not testify (even if they want to) to any confidential communications between the couple during a valid marriage UNLESS the other spouse waives the privilege

Privilege stays alive EVEN IF the marriage ends
Both spouses hold the privilege and can use it to STOP each other from testifying
Privilege SURVIVES divorce
Communication actually MUST BE CONFIDENTIAL
Must be made DURING marriage

114
Q

Exceptions to marital communications privilege

A

Violence against spouse/children
Communication where BOTH spouses are planning to commit a crime or in furtherance of a crime
If one spouse is getting MONEY from the illegal activity of another spouse, the privilege around those communications no longer stands
Communications to third parties

115
Q

Work Product - must show good cause to compel work product (may be subject to in camera review by the judge before it is tendered to the other side)

A

Documents prepared by an attorney for their own use when fighting their clients case - in anticipation of litigation

Conclusions, legal theories, mental impressions, opinions on discovery, strategy notes

NOT protected by attorney client privilege, but instead they are protected by the work product rule

116
Q

Technical reports prepared by an expert are NOT work product

A

And they are discoverable

117
Q

Attorney-client privilege

A

Communications between an attorney (and their law clerks an staff) and the client are usually privileged from disclosure

Includes written client communications.

If someone listens in and eavesdrop, still privileged

ONLY applies to confidential communications, NOT acts

118
Q

Attorney client privilege between 2 or more clients with a common interest consulting an attorney together

A

Still have a privilege against 3rd parties - but they DO NOT have a privilege against each other if they get into litigation down the road

119
Q

No privilege for pre-existing documents and discovery

A

Identity is not privileged

One small exception - last link doctrine:
if the attorney is the last link connecting the client to the crime, then they do NOT have to give up the client name

120
Q

Attorney client privilege can be waived

A

THE CLIENT ONLY
it survives death

121
Q

Attorney client privilege does not apply when

A

You are using a lawyer’s services to further a FUTURE crime or fraud WHICH YOU HAVEN’T COMMITTED YET

122
Q

If the client asks the attorney to conceal evidence

A

This won’t be protected
If the attorney personally observes the client doing illegal activity - it won’t be protected

123
Q

Attorney/client dispute

A

If the client sues the attorney for malpractice, or the attorney sues the client for a fee,
no more privilege related to anything involving the fee or the aspect of the representation alleged to be malpractice

124
Q

Inadvertent disclosure

A

Client or lawyer accidentally send an e-mail with some attorney-client privilege information or work product

Not waiver of privilege as long as reasonable steps are taken to prevent & rectify the disclosure

125
Q

Voluntary disclosure - it is waived

A

Waive through conduct – ex. talking loudly at a restaurant about privileged shit

if you half-waive and discuss only part of a privileged communication, the other communications or documents on this topic will also come in - can’t selectively disclose to the government

126
Q

If you are forced to disclose something in court BY THE COURT ITSELF

A

it does not operate as a waiver against this information

127
Q

What is not privileged?

A

Fee information
Observations of a client’s demeanor
Client planning some illegal ass shit and trying to use you to help
Identity of the client (unless the identity would be the LAST link to a crime or reveal privileged communications)
The fact that you are representing a clinet
Battles between two FORMERLY jointly represented co-clients

128
Q

Doctor-patient privilege

A

Federal courts DO NOT recognize & it is not in the FRE.
ONLY applied in diversity cases if a state has the privilege

129
Q

Doctors, therapists, and social workers are required to disclose communications that happen in the course of the professional relationship

A

ONLY communications involving medical or mental health treatment ARE protected though

130
Q

If a communicated is disclosed to a third party party related to the therapist or doctor, the privilege is not waived (like the doctor’s assistant)

A

If it is disclosed to a random third party, it’s waived

Small exception with therapists:
Therapists owe a duty to SPECIFIC, identifiable people who their patient is making threats about

131
Q

Patient holds the privilege

A

But if patient can’t assert it, the doctor is then under a duty to assert it for the patient

132
Q

Doctors & therapists

A

Saying or doing criminal or illegal shit = not protected
No duty to report mental health or physical health information UNLESS the case puts it in issue (injury or insanity status)
Specific threats to people = must report
Non-specific threats = don’t need to report
No federal privilege for any of these - ONLY recognized in diversity cases when the state has the privilege

133
Q

Journalists
Patient-child
Accountant client

A

No federal privilege exists

134
Q

Priests or Clergy

A

Confidential spiritual communication is protected

135
Q

Self-incrimination

A

Witness can’t be forced to testify against themselves
Applies in both criminal and civil proceedings where testimony is forced (so even in depositions)
it applies to civil proceedings if you are asked a question that puts you in danger of criminal prosecution

Can only invoke to avoid criminal prosecution, not loss of employment or embarrassment

136
Q

Jury shouldn’t know about insurance coverage

A

Not admissible to prove negligence or show that because someone had insurance, they knew they were liable to fuck up in the future, or to show they are getting insurance money so they don’t need a verdict in their favor

137
Q

Insurance can be used to show

A

Ownership or control to impeach

138
Q

Subsequent remedial measures

A

Fixes or repairs or changes you do after someone got injured by a product or condition
usually not discoverable

139
Q

Subsequent remedial measures can be used

A

to Impeach

140
Q

Settlement discussions in civil cases are not admissible to show someone is at fault or liable to prove how much damages they caused in

A

(1) the current case, and (2) subsequent criminal prosecution

141
Q

You can’t have settlement talks with someone that fall through and then tell them to the jury.

A

if you expose the offer to settle - this is a mistrial because we want to encourage settlement, not discourage it

142
Q

To have a real and protected settlement discussion, we need

A

(1) a real dispute about how much money is owed.
(2) a real claim (this doesn’t necessarily have to be filing of a lawsuit)

If the parties are agreeing, this is NOT a settlement discussion, that is an opposing party admission of guilt

“it is a statement made in the course of compromise negotiations.”

143
Q

When can you bring in settlement discussions?

A

(1) to impeach with bias
(2) to negate an accusation that you were delaying the case

144
Q

If a claim is not disputed, it’s coming in as…

A

an opposing party admission

(look for this especially in a civil case)

145
Q

An offer to plead guilty in a criminal case is never admissible, even in a civil case later on

A

A withdrawn guilty plea is NEVER admissible.
A guilty plea CAN be brought up in later case.

146
Q

Offers to pay medical expenses when an accident occurs are NOT admissible to prove….

A

culpable conduct
BUT if you make admissions of facts RELATED to the offer - this is an opposing party admission

147
Q

Rape Shield Doctrine -
In a civil and criminal proceeding where sexual harassment or rape is alleged (or other sexual misconduct) we CANNOT bring in evidence of past sexual behavior of a victim UNLESS

A

The other side is put on NOTICE and it is relevant to the identity of the alleged rapist; OR

The other side is put on NOTICE and it relates to past sexual behavior between the victim and the accused rapist

148
Q

Rape shield doctrine - evidence can only be brought in criminal cases in three circumstances:

A

(1) To prove someone other than the defendant was the source of physical evidence SO LONG AS the relationship occurred at roughly the same time as the alleged incident with the accused rapist
(2) If Defendant is claiming consent and ONLY WHEN DEFENDANT IS CLAIMING CONSENT!!! You can bring in the victim’s past sexual behavior to show that the victim consented to the sexual behavior at issue.
(3) And finally, if the victim says they are chaste and pure.

149
Q

In civil cases, the victim’s past sexual behavior is admissible if…

A

its probative value substantially outweighs its prejudicial effect

150
Q

Before trying to get any of victim’s prior sexual conduct admitted, the defendant must make a motion with…. (how many days)

A

15 days of trial accompanied by a written offer of proof for hearing in front of the judge

151
Q

Best Evidence Rule

A

Concerned with disputes about what is actually depicted on the document itself (or the recording or picture)
NOT the facts the document, recording, or picture MIGHT BE EVIDENCE of

152
Q

When contents of a document are disputed, you don’t actually have to bring in the original document

A

ANYTHING produced mechanically, a carbon-copy, a computer print out works.

153
Q

Excuse for not having the original document under the Best Evidence Rule

A

(1) Destroyed without bad faith on your part
(2) Lost/cannot be found with due diligence
(3) Cannot be obtained with legal process

154
Q

If the contents are voluminous writings or paragraphs or documents or records or too large to bring into court and present one by one

A

Can present in forms of charts or summary exhibits
but originals must be made available to the party opponent to examine for accuracy and authenticate them

155
Q

Completeness rule

A

when only a part of a writing is offered into evidence (or part of a recording), the other side has the right to offer the rest of the writing or recording if not doing so would lead to an unfair result

156
Q

When can an omitted portion be put into evidence?

A

Avoid misleading the jury
To explain/give context to the admitted portion
To ensure a fair and impartial understanding of the omitted portion

157
Q

Hearsay is an out-of-court statement offered to prove the truth of the matter asserted.

A

Testimony given by a witness who is telling what someone else SAID, not about what they themselves know personally.

Basically means:
We want first hand-accounts
We want the jury to evaluate the people that say words.
We don’t want statements coming in based on the credibility of someone who is not even there at the trial.

158
Q

Three responses to a hearsay objection

A

(1) Not offered for the truth, not a statement, not out-of-court
(2) NOT hearsay b/c it is an exclusion/exemption
(3) IT IS hearsay, and my opponent has right to point it out, BUT it is an exception

159
Q

What is a statement?

A

Can be oral assertions, written assertions, non-verbal conduct - and it MUST be out of court

160
Q

Are emotional reactions hearsay?

A

No because they are NOT INTENDED as assertions.

161
Q

Is impeachment hearsay?

A

It is non-hearsay because you aren’t offering it to prove the truth of the matter asserted, you are using it to say someone is lying

162
Q

Words of independent legal significance

A

Non-hearsay
The words of a contract or the words of marriage themselves create legal obligations, regardless whether they are true or not.

163
Q

Statements manifesting awareness

A

The “explains conduct” non-hearsay rule

These are statements offered to show the effect on the listener, essentially that the listener had either NOTICE or KNOWLEDGE and THEREFORE they are NOT offered for their truth

164
Q

Example of someone trying to bring in a statement to show notice

A

A toaster company as received 50 letters about their toaster catching on fire.
Admissible = NOT to show they are defective, to show they were put on NOTICE

165
Q

Statements showing an effect on the listener can be used to

A

Show why someone took a particular action
OR
To show why someone didn’t take an action

166
Q

If you’re asking someone why they acted a certain way or whether someone had notice,

A

You can bring in a little statement to show the effect on the LISTENER (you)

167
Q

Effect on the listener to show why someone did not know they were committing a crime

A

Ex. Bring in a statement to show you did not steal some property - you bring in a statement where the person says “My mom gave that X to me yesterday.”

Bringing in that statement not to talk about the mom, but to show it had an effect on you and you weren’t trying to steal the property.

168
Q

Circumstantial evidence of a speaker’s state of mind (Present state of mind)

A

They are not bringing it in for the truth of the matter asserted —- they are bringing it in show someone is crazy
words spoken by someone else, and you take those words to make ADDITIONAL INFERENTIAL STEP about the person’s state of mind - it is NON-HEARSAY

169
Q

Non-hearsay responses to an objection “attacking the definition”
NOT hearsay because they are not offered for the “truth of the matter asserted” or “statement” or “out-of-court” definition

A

(1) Effect on the listener
(2) Impeachment
(3) Circumstantial evidence of speaker’s state of mind
(4) Words of independent legal significance
(5) Notice/knowledge

170
Q

FRE 801 (aka hearsay EXCLUSIONS)

A

Non-hearsay because Rule 801 says it is not hearsay

171
Q

Three types of Prior Statements by Trial Witnesses

A

Prior inconsistent statements under oath
Prior consistent statements
Prior statement of identification

Let in for impeachment and for their truth

172
Q

Prior inconsistent statement under oath

A

Under oath: at a hearing, proceeding, OR DEPOSITION

It gets in for BOTH impeachment and substantive truth if the person who said it testifies at trial and available for cross-examination.

173
Q

Prior inconsistent statement (NOT made under oath)

A

available for impeachment only

174
Q

Prior inconsistent statements

A

Time to rebut a charge of recent fabrication or improper motive

gets in as substantive evidence

175
Q

Prior statement of identification

A

Often happens when people identify someone & then change their story at trial.

Could be due to witness intimidation

176
Q

If a witness identifies someone at trial, but now on the sand, they mysteriously “can’t remember” - the court wants that earlier more reliable identification in

A

so if the witness is
1) subject to cross-exam, and
2) statement they made earlier is about identification
The first statement gets in - it’s more reliable

177
Q

Earlier identification OUT OF COURT + available for cross IN COURT and can’t remember =

A

Earlier identification admissible as non-hearsay

(If the witness refuses to testify at trial - their prior identification is NOT getting in)

178
Q

Opposing party admissions

A

Any statement another party makes, at any place, at any time, and under ANY circumstance is admissible against the party who made the statement.

It can even be based on silence

179
Q

Adoptive admissions

A

If someone says something that a reasonable person would have denied or responded to, their silence can be deemed an admission, their silences speaks volumes

If a normal person wouldn’t have responded to it, silence cannot be counted as an admission

Post-Miranda silence cannot never be commented on in a criminal case

180
Q

Adoptive admissions by signature

A

If you sign something - it can be viewed as an adoption

181
Q

Statements of authorized persons

A

If party (like your lawyer) is authorized to speak on behalf of you - it is treated as if you said it.

182
Q

Vicarious admissions by employee’s concerning matters within the scope of their employment

A

Anything said at work or after work if you’re hanging out on the job site, it will be vicariously admissible against your employer

It is not admissible if you quit, are fired, have retired, etc.

183
Q

Co-conspirator admissions

A

Non-hearsay and admissible for their truth

Proper co-conspirator admission need:
1) two co-conspirators
2) statement must take place during the conspiracy itself
3) Must be in furtherance of the conspiracy

Even statements made by co-conspirators before the defendant actually joined the conspiracy can be used against them.
Statements made AFTER you get arrested can be used against you (unless you become a government witness or withdraw)

184
Q

A party cannot introduce their own party statement

A

This would be a self-serving admission by a party themselves - not an opposing party admission

185
Q

Hearsay within hearsay

A

Hospital report

(1) Patient is bleeding from the head.
(2) Patient Patty states, “A flower put fell on my head.” is this statement within the report admissible?

Hospital report - business record, then Patty’s statement in as a statement for medical diagnosis and treatment

186
Q

Hearsay Exception - Present Sense Impression

A

Statement describing an event AS IT IS OCCURRING or directly after it occurred

Must explain or describe the event and must be made at the SAME time you are perceiving it

Watch out for someone telling someone else about a license plate as someone speeds away or recording the plate number on audio - present sense impression

187
Q

Excited utterance

A

Statement made while still under the stress of the STARTLING EVEN
Short time between the startling event & the statement
The time can be a lot longer than the present sense impression, even a few hours if still under the stress of a startling event
Did not have time to reflect and falsify

look for an exclamation mark!

188
Q

Sometimes the MBE will sneak in a dying declaration that isn’t made under a sense of impending death - this is a

A

EXCITED UTTERANCE

189
Q

Excited utterances by children

A

The courts are much more lenient on the timeframe allowed for a statement to get in as an excited utterance

190
Q

Present states of mind

A

It can be used to show the declarant’s THEN EXISTING state of mind
The declarant can be anyone, they do not need to be available

Must be CURRENT states of mind

191
Q

Current physical conditions

A

Ex. “My neck hurts”
NOT “my neck hurt last week” - This is about a past physical condition

Past physical conditions are ONLY admissible if made to a medical professional for the PURPOSE of a medical diagnosis

192
Q

Present intent to do a future act

A

Cannot bring in statements of memory or belief when it comes to present state of mind

ONE exception: if the statement is of a memory or belief of the past relating to a will execution of a dead person - it can get in

193
Q

Statements made for medical diagnosis

A

Made to medical personnel regarding PAST or PRESENT symptoms
OR the general reason of why you need treatment/diagnosis can get in as a hearsay exception

Statements must describe: pain, past or present symptoms, sensations, the cause of injury, REASONABLY RELATED TO THE ACTUAL INJURY, not just blaming a person

194
Q

Statements made for medical diagnosis can be made to:

A

nurses, EMTs, even family members as long as you think the family member will GIVE the statement to the doctor - these are ALL admissible

195
Q

Statements made to expert witnesses who are diagnosing you and testifying can get as…

A

HEARSAY exceptions

196
Q

Statements made to expert witnesses who have a dual purpose of…

A

Providing a diagnosis AND testifying for you at trial can get in as hearsay exceptions

197
Q

Past recollections recorded

A

If a witness wrote a document when they had a fresh memory, but now they cannot remember on the stand, the document can be READ into evidence but NOT admitted as an exhibit UNLESS at the request of the other party.

198
Q

To read a document into evidence, the document must:

A

Showing the writing to the witness must FAIL to refresh their memory

Witness needed to have PERSONAL first hand knowledge of what they were writing about when they wrote about it

Writing must either be MADE by a witness, or ADOPTED by the witness

Writing must have taken place when the event was FRESH in their memory

Witness must actually be able to say it is ACCURATE

Then it gets read into evidence, but only admitted if the other side requests it.

199
Q

Exception for Business Records

A

Any type of record, any form - data, document, memo, etc.
Made in the ordinary course of business
Business regularly keeps such records as these
Entries were made AT or NEAR the time of event actually occurred
Matter is made with personal knowledge
Made by person with a business duty

200
Q

If someone prepares a business record solely for the purpose of litigation

A

The business record lacks trustworthiness and won’t get in.

If there is a clear self-serving motive to fabricate the record, it will be untrustworthy and inadmissible.

201
Q

Police reports may be considered business records or public records in CIVIL cases, but NOT

A

Criminal cases

202
Q

Absence of a business record

A

if a business didn’t make a record, that they normally would have made, a witness can bring in to be like “why didn’t you make this record?”

can come in as an additional hearsay exception

Good example would be like a medication chart

203
Q

Public records (reports, fire marshal reports, statements, data) are admissible as long as:

A

Actual public records - showing activities of a public agency or matters which are observed pursuant to a LEGAL DUTY to report

Admissible regardless of whether the declarant is available as witness or not

204
Q

Learned treatises

A

Statements that are contained in public treatises or periodicals on the topic of medicine, science, history, art, physics, are able to be ADMITTED through their hearsay exception

Need to establish the authority of our little treatise and authenticate it

205
Q

How to get in treatises

A

On DIRECT exam of your own expert, your expert must (1) recognize the treatise, and (2) say they relied on it to authenticate it

On cross exam against an expert, show the treatise to prove him wrong - if he doesn’t know what it is, you can try to get judicial notice through the judge, or call your own expert to testify that the treatise is reasonably relied upon in the field.

206
Q

Treatise can be admitted substantively AND to impeach, if necessary, BUT

A

it doesn’t actually GET ADMITTED INTO EVIDENCE

207
Q

Former testimony hearsay exception

A

Prior inconsistent statement under oath - the person must be AVAILABLE and given the opportunity to explain or deny

208
Q

When is the declarant unavailable?

A

Privilege
Memory
Refusal
Death/incapacity
Absent and reasonable efforts

209
Q

Can the defense ask questions at grand juries?

A

No!!!

so prior testimony from a now dead witness but the prior testimony was at a grand jury - not coming in

210
Q

What is not former testimony?

A

an affidavit, it is hearsay
no one cross-examined anyone

211
Q

Statements against interest

A

Statements against peoples financial or legal interest
Hearsay exception
Anyone can make the statements, doesn’t have to be parties!
Statement HAS to based off personal knowledge
DECLARANT MUST BE UNAVAILABLE
Must be non-testimonial - CANNOT be made to police
(Often answer choice will say “the statement is against interest and is non-testimonial”)

212
Q

Opposing party admission

A

Non-hearsay
Doesn’t have to be against interest
Can be ANY STATEMENT
This has to be FROM a party OR their agent
Doesn’t have to be unavailable

213
Q

Dying declaration

A

Made when the declarant BELIEVES that death is both certain and imminent - must believe they are about to die
But you don’t have to actually die, just BELIEVE you were going to die is enough.

214
Q

Dying declaration

A

Statements are ONLY admissible in homicide or ANY civil cases
MUST BE UNAVAILABLE

Murder Cases - Civil Cases
Mighty Chipmunks

215
Q

Hearsay Exception for records of vital statistics

A

Marriage, death, birth certificates

216
Q

Hearsay exception: Market reports and publications

A

Stock prices, etc.

217
Q

Hearsay exception: Family records also get in

A

Genealogies, family tree charts, tombstone words, family portraits, and statements about a declarant’s own family history (birth, death, divorce, adoption) if they are unavailable

218
Q

Hearsay exception: Recorded documents affecting property interest and statements within documents affecting property interests

A

like property ownership

219
Q

Hearsay exception: Prior felony convictions

A

are admissible

220
Q

Testimonial statement is just someone talking shit about a defendant

A

If an unavailable witness (1) Identifies the defendant, (2) accuses him of wrongdoing, (3) describes the circumstances of how the defendant committed the crime, (4) establishes elements of the crime for the prosecution, (5) is made with some degree of formality to the cops after the crime is over ….this is testimonial

221
Q

Emergency doctrine

A

Present sense impression
911 call accusing a defendant = that comes in
Witness talking shit after out defendant gets arrested? Testimonial and violates confrontation clause

if the primary purpose of the communication is to respond to an ONGOING EMERGENCY, it is NOT testimonial.

if the primary purpose of the communication is to help solve the crime after the defendant has been arrested, IT IS TESTIMONIAL

222
Q

Forensic lab reports/blood tests which IDENTIFY the defendant as the person who committed the crime are TESTIMONIAL and need the person who performed them to BE THERE or

A

it violates the confrontation clause

223
Q

Business records don’t directly ACCUSE a defendant of anything, they are talking about business stuff - like the defendant’s bank records

A

so they can come in even if the defendant doesn’t have a chance to cross examine

224
Q
A

MBE (9 decks)

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