Evidence Flashcards
(134 cards)
1
Q
Can character evidence in form of reputation be introduced for impeachment purposes? Substantive purposes?
A
Both
2
Q
Virginia does not permit the introduction of character evidence in the form of
A
Opinion testimony for substantive or impeachment
3
Q
Admissible or no: An heir or devisee’s testimony about a communication or transaction with the decedent that is considered adverse to the estate is admissible if
A
testimony is sufficiently corroborated
4
Q
When there is a non-constitutional evidentiary ruling that is erroneous, the Virginia appellate courts will characterize it as harmless error if
A
All parties have had a fair trial
5
Q
Matter outside of marriage–While a spouse cannot be compelled to testify against his or her spouse in a criminal case, the spouse can
A
Choose to testify
6
Q
A person may refuse to disclose, and may prevent anyone else from disclosing, any confidential communication between himself and his spouse during their marriage, regardless of whether
A
he is married to that spouse at the time he objects to disclosure.
7
Q
In impeaching a witness who is THE criminal defendant or THE party in a civil case, Virginia generally allows only the ___ and the ____, NOT THE ____or ___
A
the fact of a felony conviction or a misdemeanor involving moral turpitude and the number of convictions, not the Name and nature of the crime
8
Q
While a juror generally may not testify about any statement made or incident that occurred during the jury’s deliberations, Virginia recognizes that a juror may testify as to one or more statements made by a juror during trial that exhibited
A
Over racial/national origin bias tending to show that a racial/national origin stereotype or animus was a significant motivating factor in the juror’s vote and casting serious doubt on the fairness and impartiality of the jury’s deliberations or the verdict.
9
Q
a witness’s bias or interest is always relevant to the credibility of his testimony, and consequently, a witness may be
A
impeached on that ground.
10
Q
Virginia does not permit the presentation of otherwise admissible character evidence in the form of
A
Opinion testimony
11
Q
Admissible or no: a prior inconsistent statement made by a witness made under penalty of perjury
A
Not admissible for its truth
12
Q
clergy-penitent evidentiary privilege belongs to
A
The clergy, not the penitent.
Therefore, pastor, as holder of the clergy-penitent privilege, can testify in the defendant’s murder trial if he wants to.
13
Q
Adherence to VA Rules of evidence (except privileges) is not mandatory in administrative and criminal proceedings other than
A
i) trial
ii) preliminary hearings
iii) sentencing proceedings before a jury
14
Q
Objection must be stated with
A
“reasonably certainty” Thus, cannot merely state they object but have to give a reason or else wont be preserved for appeal
15
Q
When parties have had a fair trial, non constitutional, erroneous evidentiary ruling is considered
A
harmless when substantial justice has been reached
16
Q
What must ct do whenever it becomes necessary to ascertain the law of another jurisdiction
A
take judicial notice whether or not specifically pleaded
In taking judicial notice, ct must in criminal case and may in civil consult any appropriate source and may consider any other info, evidence or argument offered on the subject
17
Q
Is a named party who is an individual and one officer or agent of each party that is a public or private corporation, partnership, association, governmental agency, or other entity are not subject to exclusion of witnesses rule?
A
No
neither is witness of crime unless ct concludes their presence would impede the conduct of a fair trail
18
Q
When expert witnesses are to testify in the case, the court may, at the request of all parties, allow
A
one expert for each party to remain in the courtroom
19
Q
Exclusion of witness: Cases dealing w distribution of marital property or determination of child or spousal support
A
ct may upon any party’s motion allow one expert witness for each party to remain in the ct room throughout the hearing
20
Q
What kind of law determines the effect of a presumption in a civil case
A
federal law in any civil action or proceedings as to which federal law supplies the rule of decision
21
Q
VA only permits proof of character evidence by
A
reputation, not opinion testimony
22
Q
Character trait is an essential element of charge, claim, defense, proof can be made by
A
specific instances of conduct of such person
23
Q
Does evidence of other crimes have to bear an exact resemblance to the crime on trial as to constitute a signature?
A
NO. sufficient if the other crimes bear a SINGULAR STRONG RESEMBLANCE to the offense charged…
24
Q
Does prosecution neeed to notify D about their intent to use specific bad act evidence?
A
No
25
Is relevant evidence of repeated physical and psychological abuse of the accused by the victim admissible?
yes in any personal injury, death or attempted subject to general rules of evidence
26
When can a juror testify?
When during trial another juror made one or more statements exhibiting overt racial/national origin bias tending to show that a racial/national origin stereotype or animus was a significant motivating factor in juror's vote and casting serious doubt on fairness and impartiality of jury's deliberations or the verdict
27
VA deadman statute
no judgment may be entereded against a person who is incapable of testifying based on the uncorroborated testimony of an adverse party (doesnt apply to D's who made themselves available via self inflicted injuries)
28
Can entries, memoranda, and declarations by the party so incapable of testifying made while he was capable, relevant to the matter in issue be received as evidence?
Yes
29
Rule Re Impeaching w Reputation/Opinion Testimony
can only impeach by reputation testimony relating to truthfulness but not opinion testimony as to reputation
30
Can specific instances of conduct of a witness be used to attack credibility of a witness?
No
31
What is the time limit to use convictions to impeach?
There is none
32
How can you use a Felony involving moral turpitude to impeach a criminal defendant
only using the fact of a felony conviction or a misdemeanor involving moral turpitude and the number of convictions, not the name and nature of the crime, except for perjury.
33
Can you use name and nature of crimes re moral turpitude to impeach other criminal witness
yes
34
Is a party who calls an adverse witness allowed to impeach that adverse witness with a prior conviction
no
35
How to impeach via prior inconsistent statement
counsel must call statement to attention of witness prior to effecting the impeachment
36
Can you impeach via sttement in writing w/o calling writing to attention of that party?
Yes
37
If the intent is to contradict a witness by the writing then
must call witness's attention to the writing first...if witness denies making it or does not admit its execution, wriying must be shown to the witness...If witness admits its genuineness, witness shall be allowed to make an explanation of the writing...ct may require production of writing for its inspection at any time
38
What kind of witness can you Impeach w prior inconsisent statement?
adverse witness
39
Showing of reliability of expert witness's opinion
is more flexible than federal rules
40
Can experts render opinions as to ultimate facts at issue
yes
41
Can expert in insanity case testify as to D's diagnosis of mental disease and effect of disease
yes but cant say explicitly that D lacked capacity to understand wrongfulness of his actions
42
Evidence of D's mental condition on issue of mens rea is admissible if it ____ and it is ____
i) shows that D did not have the required intent and
ii) it is otherwise admissible under rules of evidence
43
When Expert's Opinion is on Mens rea they must provide
i) WRITTEN REPORT of WITNESS'S OPINIONS and their bases or a written summary of the expected testimony and
ii) EXPERT'S QUALIFICATIONS and contact info
44
in civil cases in Virginia, an expert may testify in terms of opinion or inference and give the reasons for such opinion or inference without prior disclosure of the underlying facts or data, unless
court provides otherwise
45
Expert in criminal cases can give their expert opinion by
expert's testimony or set forth in a hypothetical question
46
Expert opinion based on inadmissible facts: civil
expert can rely on inadmissible facts so long as they are facts of type normally relied on by others in the particular field of expertise in forming opinions and drawing inferences
47
Expert Opinion based on inadmissible facts: Criminal
experts must generally base their opinions on facts in evidence or on facts personally known or observed by expert
48
Admissible? Evidence of polygraph exam
never
49
Copies of a Minor's school record are admissible so long as
they are properly authenticated as true and accurate copies...
However, subject info must be redacted from the records prior to admission of evidence
50
How to authenticate record of regularly conducted activity?
by custodian of record or other qualified witness...Va also alllows gthe record to be certified by witness testimony or by a combo of witness testimony and a certification
51
Medical Bills Are rebuttably presumed authentic upon
P identifying the original bill or an authenticated copy and
the P's testimony i) identifying the health care provider, ii) explaining the circumstances surrounding his receipt of the bill, iii) describing the services rendered and iv) stating that the services rendered in connection w treatment for the injuries received in the event giving rise to the action
52
How can Parties in personal injury suits present evidence re extent, nature and treatment of the injury, the examination of the person so injured and costs of such treatment by
1. Reports from the health care provider; or
2) Record or bills of a hospital or similar medical facility where treatment was performed
53
in civil case of damges over 2,500, evidence of automobile damage and cost to repair may be admitted by
ITEMIZED WRITTEN ESTIMATE OR APPRAISAL
BUT other party must consent, or unless a true copy thereof is mailed or delivered to the adverse party not less than seven days prior to trial.
54
For a recorded phone call to be admissible in civil proceeding, either
i) all parties must have been aware convo was being recorded or
ii) the recorded portion contains admissions to actions that would constitute criminal conduct which is the basis of the civil action, one of the parties was aware of the recording, and the proceeding is not one for divorce, separate maintenance or annulment of marriage
55
Best evidence only applies to
writings... counsel
56
Copies of business records made or received in ordinary course of business are admissible to the same extent as original regarless of whether
original is still in existence
57
Spousal immunity: neither spouse may be compelled to testify for the other except in prosecution for
i) an offense committed by one spouse against the person or property of the other spouse or against the minor child of either
ii) forgery by one spouse of the other spouse's signature or
iii) sexual assualt, incest or abuse of children
58
In civil cases, a person may refuse to disclose, and may PREVENT anuone else from disclosing any confidential communication between himself and his spouse during their marriage, regardless of whether
he is married to that spouse at the time he objects to disclosure
59
Spousal privilege cannot be invoked in
proceeding where spouses are adverse parties or where either spouse is charged w a tort against the person or property of the other or against the minor child of either spouse
60
Is the identity and location of persons having knowledge of relevant facts subject to discovery?
Yes...
However, a party may not discover the identity of specific sources of info that an opposing party may have consulted. protected by work product
61
Physician patient priovilege is only available in
civil proceedings except where physical or mental condition of patient is at issue
62
Psychotherapits patient privilege
except w consnet of the patient, no licensed, counselor, social worker, or psychologist can be required to testify re info communicated in confidence and entrusted to him in a professional capacity....
63
Exception to pscyhotherapist privilege
child abuse and when client's physical or mental condition is at issue
64
Can party's exercise of privilege against self incrimination be used against them?
No except in domestic relations cases, if a party or witness refuses to answer questions about potentially adulterous conduct on ground that the testimony may be self incriminating, the trier of fact may draw an adverse inference against that party or witness
65
Clergy privilege
o regular priest, minister, rabbi, or accredited practitioner over the age of 18 of any religious organization or denomination can be required to give testimony or relinquish documents or notes that would disclose confidential communications made to him in a professional capacity by a person seeking spiritual counsel.
66
Clergy privilege only belongs to
clergy member and not comminicator, so only clergy member can invoke or waive privilege
67
Accountant-client privilege
not recognized in VA
68
Professional journalist privilege protects
the identity of the source of information obtained under a promise of confidentiality during a newsperson’s pursuit of journalism is privileged.
69
A court may compel a newsperson to testify about or disclose information re journalist privilege only if the court finds, after notice and opportunity to be heard, that:
i) info is necessary to prove a material issue in an administrative or criminal proceeding
ii) info is not obtainable from any alternative source
iii) Commonwealth exhausted all reasonable methods for obtaining the info from all relevant alternative sources; and
iv) there is an overriding public interest in disclosure, including the prevention of imminent bodily harm or death
70
Evidence existing before start of compromise negotiations cannot be exlcuded from evidence merely bc
the evidence was disclosed or discussed during the negotations
71
Is plea of nolo comtendre admissible in subsequent civil case
yes if it arises from STO
72
Evidence of D's prior conviction for other sexual offenses is admissible to prove
Any relevant matter
comm must provide d w notice of intent to use such evidence at least 14 days before trial and copies of certified copies of final orders
73
Is witness's prior inconsistent statement treated as non hearsay or under hearsay exception?
No
74
va PERMITS USE OF A WITNESS'S prior consistent statements for rehabbilitation but it is not considered
nonhearsay or under hearsay exception
75
Hearsay exception: Prior statement of identification is admissible so long as
declarant testifies at trial or hearing and is subject to cross exam concerning the statement
76
Admission by party oppoenent
treated as hearsay exception rather than nonhearsay and uses
77
Conclusive Admissions
admissions made by an opposing party in the current judicial proceeding may not only be admissible, but also have conclusive effect. However, to be conclusive they must be unequivocal
78
adoptive admission may be express or by
silence. But when adoption is express prerequisites yo finding an adoption by silence are not required. Instead, the trial ct need only determine tyhat there are sufficient foundational facts from which the jury could infer that declarant heard, understood and acquiesced in statement
79
Statement Against Party That Caused Declarant’s Unavailability
Va does not recognize this hearsay exception
80
Hearsay exception: Absence of Entries in Public Records and Reports
allows gov officer's affidavit that after a diligent search, no record or entry of such record could be found to exist to be admissible as evidence that the gov has no such record or entry.
81
For civil cases, if the statement is to be introduced through an expert witness on direct examination, copies of the specific statements must be designated as
LITERATRURE to be introduced and provided to opposing party 30 days before trial unless otherwise directed by the Ct..
If a statement has been so designated, then the expert need not have relied on the statement at the time of forming his opinion in order to read the statement into evidence during direct examination.
82
Can a crash investigation report prepared for litigation be considered a learned treatise for purposes of the learned treatise rule
no
83
In criminal cases, if an expert witness acknowledges on cross-examination that a published work is a standard authority in the field, an opposing party may
ask whether witness agrees or disagrees w statements in the work....
such proof can be received soley for immpeachment w respect to expert's credibility
84
Admissible or no: In a civil action, evidence of a guilty plea or a plea of nolo contendere for a criminal offense or a traffic infraction that arose out of the same occurrence on which the civil action is based
Yes
However, does not conclusively establish the truth of the underlying facts on which it was rendered.
85
For copy to be admissible, best evidence rule requires that
Evidence that the original was not lost or not available. There must be evidence that the copy was made in the regular course of business and that the person proffering it was the custodian of record or there was a certificate that the custodian had custody of the original
86
Judicial notice
ct may take judicial notice of matters that are common knowledge or capable of determination by sources whose accuracy cant be disputed.
87
Cts may take judicial notice of
governors or judicial signatures on official documents
88
Judicial notice re laws of other states
judges may take judicial notice of laws of other states whether specifically pled or not and that in doing so ct may consult w appropriate document or publication
89
Voluminous writing rule
summaries may be admitted when contents of a voluminous writing cannot be adequately examined in court.
Summary must be made available to other parties for examination at a reasonable time and place but party must object if they didnt receive it. Ct may order they be produced in court
90
Evidence of settlement negotiations/offers
Conduct or any statements made in settlement negotiations are inadmissible to prove or disprove the VALIDTY OR AMOUNT OF DISPUTED CLAIM or to IMPEACH by a prior inconsistent statement or a contradiction
91
Statements made in settlements
party's are prohibited from admitting evidence concerning statements made during settlement compromise or negotations...particularly those promising, offering a valuable consideration in compromising or attempting to compromise the claim at issue where such statements are offered to prove or disprove the validity or amount of a disputed claim
92
Otherwise admissible evidence that existed before commencement of compromise negotations
not excluded merely bc such evidence was disclosed, produced or discussed by a party during negotiations
93
Hearsay
out of court statement not made by the person testifying offered for the truth of the matter asserted and is inadmissible subject to certain exceptions.
94
Excited Utterance
statement made as a result of a startling event and that is made while the declarant is still under the stress of the event and under circumstances negating deliberation.
95
What must ct first do when hearsay is offered
authenticate or identify the declarant
96
Can nonverbal conduct be considered hearsay?
Yes when intended as an assertion
97
Admissibility of a video requires
authentication by preponderance
98
Is evidence of a specific prior act admissible to show the person acted in accordance w that character on a particular occasion?
No
99
Evidence of a person's prior conduct (e.g. other crime, wrongdoing, or act) is admissible for other purposes such as proving
motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident
100
Under the MIMIC evidence rule, D's bad act may be introduced for any purpose so long as that purpose is not to prove that
bc D had a propensity to commit crimes, D committed the charged crime
101
Does prosecution need to provide D w advance notice of their intent to use specific bad act evidence?
No
102
Character evidence is adimissible as evidence in a civil case when it such character is an
essential element of a claim or defense
103
When character evidence is an essential element of a claim or defense in a CIVIL or CRIMINAL CASE, it may be proven by use of
specific instances of conduct, as well as testimony about person's reputation
104
Can specific instances of conduct be used to attack CREDIBILITY of witness
no
105
Witness's prior statement that is inconsistent w witness's testimony may be used to
impeach witness
106
Extrinsic evidence
evidence other than witness's own testimony
107
Extrinsic evidence may be introduced only if
witness is given opportunity to explain or deny the statement and opposing party is given opportunity to examine witness about it....
witness's opportinity to explain or deny statement need not take place b4 the statement is admitted into evidence
108
Witness is qualified as an expert by
knowledge, skill, experience, training or education
109
Can expert's in civil cases render opinions as to whether D had requisite state of mind? (ultimate issue)
Yes but not in Criminal cases
110
Before it is admitted, all tangible evidence must be
authenticated
111
To authenticate an item, propent must produce sufficient evidence supporting a finding that thing is
what proponent claims it is
112
Self authenticating items
i) public documents bearing gov seal and signature
ii) certified copies of public records
iii) official publications issued by a public authority
iv) newspapers and periodicals
v) trade inscriptions
vi) notarized documents
vii) commercial paper
viii) any doc, signature, or other item declared by fed statute to be authentic
ix) records of regularly conducted activity
113
Best evidence rule requires that
the original writing be produced to prove the contents of a writing, recording or photograph including electronic documents, x-rays and videos
114
Best evidence rule only applies when
the contents of the writing are at issue or a witness is relying on the contents of the document when testifying
115
Original is not required and copy may be admitted if
i) original is lost or destroyed and not by proponent acting in bad faith
ii) original cannot be obtained by any available judicial process;
iii) party against whom original would be offered a) had control of the og, b) was at put on notice that og would be subject of proof at trial or hearing, and c) failed to produce it at the trial or hearing
iv) writing, recording or photo is not closely related to a controlling issue
116
Public records may be proved by a
certified copy rather than the original
117
Copies of Business records
copies of records made in ordinary course of business are admissible to same extent as the original regardless of whether original is still in existence
118
Spousal privilege comprises of two distinct privileges
spousal immunity and confidential marital communications
119
Spousal immunity
spouse of a criminal D may not be called as a witness by the prosecution nor may a married person be compelled to testify against his spouse in any criminal proceedings
120
Confidential marital communications
communication made between spouses while married is privileged
121
Exception to spousal immunity
i) offense committed by one spouse against another
ii) forgery by one spouse of other's signature
iii) sexual asssault, incest or absuuse of children
122
Can D prevent spouse from voluntarily testifying against him?
no
123
Crime/fraud exception to Work Product Doctrine: if documents were prepared for purpose of furthering an unlawful act
crime fraud exception removes any protection from discovvering hat work product
124
Is physician patient privilege/psychotherapist available in criminal proceedings?
no
125
Phsyician patient privilege: what is it and who holds the privilege?
covers communications for purpose of obtaining medical treatment.... only PATIENT holds privilege
126
Can a corporation assert 5th amendment right against self incrimination?
NO
127
Can an opposing party in a civil case argue to jury that they should draw a negative inference from D invoking 5th amendment
NO, except in domestic relation cases where party invokes 5th as to adulterous behavior
128
Is evidence re plea negotiations admissible in criminal/civil cases?
No except pleas of nolo contendre are admissible in subsequent civil case arising from STO
129
Prior Consistent Statement is admissible to
i) rebut express or implied charge that Declaranat recently fabricated it or acted from a recent improper influence or motive to testify only if it was made before the declarant had reason to fabricate or the improper influence arose; to rehabilitate declarant's credibility as a witness when attacked on another ground
130
Prior statement of identification
previous out of ct identification of a person after perceiving that person is a hearsay exception
131
Statement by Opposing party
is a hearsay exception
132
Adoptive Admission
Statement of another person that a party expressly or impliedly adopts as his own
133
Silence in response to a statement is considered an adoptive admission if
i) the person was present and heard and understood the statement
ii) person had the abillity and opportunity to deny the statement; and
iii) reasonable person similarly situated would have denied it
(not applicable to post arrest miranda warnings)
134
An unavailable declarant is a person who
i) is exempt on grounds of privilege
ii) refuses to testify despite a ct order to do so
iii) lacks memory of subject matter of statement
iv) is unable to testify due to death, infirmity, or physical or mental disability
v) is absent and cannot be subpoenaed or otherwise made present
