Evidence Flashcards
What is relevance?
Any tendency of a fact to make it more or less probable that a cause of action did or did not occur. (Material and Probative).
What does Rule 403 say?
The court has discretion to exclude relevant evidence if its probative value is substantially outweighed by prejudicial value.
What are 4 common reasons to exclude relevant evidence under Rule 403?
Waste of time
Emotionally disturbing
Repetitive
Confusing
Generally, will evidence of some time, event, or person, other than the that involved in the current case, (similar occurrences) be admissible?
No
What 2 times can P’s prior similar accidents be used against them as evidence?
To prove a pattern of making false claims,
to prove a prior existing injury.
Other than prior accidents at times, what can prior similar occurrences be used as evidence to prove?
Causation, Intent, Values $, Business routine, Industry custom, To rebut a defense of impossibility.
When can habit evidence be used?
To prove that one acted in accordance with the habit on the occasion in question.
What are the 2 requirements to establish a habit?
Frequency
Particularity
What are the 4 main public policy grounds for excluding certain relevant evidence?
Liability insurance,
Subsequent remedial measures,
Settlements and plea bargains,
Payments/offers to pay medical expenses
What is character evidence?
Acting in conformity with general propensity or disposition.
What are the 6 times a prosecutor can use character evidence?
If D has opened the door (him or victim).
In sexual assault cases.
When character is essential element.
Impeachment.
MIMIC
If D claims self-defense in homicide.
If a criminal defendant is using character evidence for himself, what is the requirement?
The character trait must be pertinent to the crime charged.
What are the 3 types of character evidence?
Specific acts.
Opinion.
General reputation.
When character evidence is allowed in a criminal trial, what kind can be used on direct exam?
Opinion or general reputation.
What does MIMIC stand for?
Motive
Intent
Mistake
Identity
Common plan or scheme
What are the 4 times character evidence can be used against a defendant in a civil trial??
Character is essential element.
Sexual assault cases.
Impeachment
MIMIC
When is the only time a defendant can use a victim’s prior sexual acts against her in a civil trial?
When the probative value outweighs unfair prejudice.
When are the only 2 times a defendant can use a victim’s prior sexual acts against her in a criminal trial?
To prove different source of injury or DNA.
To prove prior consensual relationship between D and P.
What are the 3 common cases where character evidence is an essential element?
Defamation
Negligent hiring/entrustment
Child custody
How many days before trial does a prosecutor need to disclose that he will use defendant’s prior sexual bad acts in the trial, without good cause?
15 days
When can a prosecutor use specific bad acts as character evidence?
Only to rebut the defendant’s own character witness’ testimony, otherwise it must be opinion/reputation evidence to rebut from someone else.
To use specific examples of a prior act for MIMIC reasons, what is the special requirement?
There must be sufficient evidence for the jury to believe that the prior specific act occurred.
An ‘ancient document’ need not be authenticated when what 3 elements are met?
At least 20 years old.
In condition of no suspicion.
In place where such writing would likely be kept.
What are the 3 ways of authenticating handwriting?
Opinion of lay witness familiar.
Handwriting expert.
Jury comparison.
What is the ‘reply letter doctrine’ regarding authentication?
A writing can be authenticated by evidence that it was written as a response to a communication.
What kind of evidence does the ‘best evidence rule’ apply to?
Writings, recordings, and photos.
What is the ‘best evidence rule’?
Absent a satisfactory excuse, the original must be produced if its terms are material to the case.
What 2 situations does the ‘best evidence rule’ apply?
The writing itself creates rights/obligations.
Witness knowledge results from seeing the writing.
When are duplicates not allowed to replace an original?
Circumstances make it unfair OR authenticity of original is in question.
What can a witness use on the stand to refresh their recollection?
Any writing or object.
Who can introduce a memory recollection writing into evidence?
Only opposing counsel IF it was used to refresh your witness’ recollection.
What can be done if a witness is still unable to recollect something even after reviewing a memory recollection document?
Have it read into evidence after laying a proper foundation.
What are 3 requirements to lay a foundation for a memory recollection record?
Witness has personal knowledge of facts in record, Record made or adopted by witness, Record made when the matter was fresh.
What are the 4 requirements for expert testimony?
Specialized knowledge needed
Opinion based on sufficient data.
Opinion based on reliable methods.
Reliable application of methods to the facts.
What are the 4 Daubert factors that courts use to for expert reliability?
Testing of methods,
Rate of error,
Acceptance by other experts in field,
Peer review/publications
What is an expert witness NOT allowed to give an opinion about in a criminal case?
Defendant’s mental state when it’s an element of the crime.
What are the 2 methods for exposing a witness’ prior inconsistent statement?
Cross-exam,
Extrinsic evidence
When trying to introduce extrinsic evidence to establish an inconsistent statement, it will only be allowed if it is…?
material…not collateral.
When crimes can be used to impeach a witness?
If convicted of a felony or other crime involving dishonesty.
When is a court required to allow a conviction to be introduced to impeach a witness?
When it involves a crime of dishonesty.
When does a court have discretion to allow a conviction to be introduced to impeach a witness?
When it was a felony.
When can a prior consistent statement be used in court?
When used to rebut an impeachment of the witness.
What is the 2 requirements to use a witness’ prior bad act, not constituting a conviction, to impeach them as dishonest?
Prior bad act involved dishonesty,
AND there’s a good faith basis to believe it happened.
What is a ‘statement’ for hearsay purposes?
Any oral or written assertion, or nonverbal conduct intended to be an assertion.
An out of court statement used for its truth, made by a current testifying witness, is not considered hearsay in these 3 situations:
Identification purposes,
prior inconsistent statement under oath,
prior consistent statement when used to rehabilitate.
What are the 2 broad categories of out of court statements used for their truth that are considered non-hearsay?
Prior statements of those currently testifying-sometimes,
Statements by opposing parties.
When can silence mean acquiescence of a statement-3 elements?
Heard and understood,
capable of denying,
reasonable person would deny.
A non-hearsay statement by an agent/employee are admissible if-2 elements?
Concerned matter within scope of agency,
Made during existence of agency.
When can a co-conspirator non-hearsay statement be used?
When the co-conspirator made the statement in furtherance of the conspiracy,
AND when the court establishes by preponderance a conspiracy and participation.
Can the out of court statement, alone, be enough to establish a representative relationship for hearsay purposes?
No-there must be independent evidence.
What 4 ways is a witness unavailable for testimony?
death/serious illness
privilege
refusal/can’t remember
Absent beyond reach of court
What are the 5 exceptions to the hearsay rule for witnesses who are unavailable?
Former testimony,
Dying declarations,
Statements against interest,
Family History,
Statements by party procuring unavailability.
What is a statement against interest?
when it’s against your pecuniary, proprietary, or penal interests.
What is the special rule for statements against interest when it comes to criminal cases?
The statement must be corroborated by someone else.
In what kinds of cases does the dying declaration exception apply?
Civil or homicide only.
What is required for a statement to be a dying declaration?
Declarant believed their death was imminent,
Statement involves 1st hand knowledge of cause of death.
Is a party opponent statement non-hearsay if offer by the declarant himself?
No-it must be the party opponent who introduces it.
What is an excited utterance?
A statement relating to a startling event made while still under the stress of the event.
What is a present sense impression?
Describes an event or condition during or immediately after.
What is a present state of mind statement?
One’s intent, motive, plan, or condition at the time of making the statement.
What statements fall under the ‘medical diagnosis’ exception to hearsay?
Only the statements regarding diagnosis and useful for treatment…not blame.
What are the 4 elements for statement to be a business record?
It’s a business,
Made in course of regular business,
made near time of event,
by someone with knowledge or duty to inform.
When can a court refuse to allow a business record as an exception to hearsay?
If opponent shows it lacks trustworthiness.
What is the date of age for a document to fall under the ‘ancient documents’ exception to hearsay?
January 1, 1998
What law do privileges fall under for FQ cases…diversity cases?
FQ-Federal common law,
Diversity-State law
What is the most common privilege that does NOT fall under federal common law?
Medical doctor-Patient privilege
What are the 4 exceptions to the physician-patient privilege?
No privilege by contract,
Patient puts physical condition at issue in trial,
Physician aided in wrongdoing,
Physician and patient are in dispute case.
What kind of cases does spousal immunity privilege apply?
Criminal cases only
What kind of cases does the Confidential Marital Communications privilege apply?
Any case
What is the main requirement to invoke spousal immunity privilege?
Must be married at the time of trial.
Who holds the spousal immunity privilege?
The witness spouse
What is the main requirement to invoke the privilege for Marital Communications?
The communication was made while married.
Who can invoke the Marital Communication privilege?
Either spouse
When does spousal communication privilege terminate?
Never
When do the spousal privileges not apply 3 times?
spouses are opponents,
Family violence,
joint crimes
