EVIDENCE Flashcards
What is the purpose of offering a statement as evidence?
To prove it was said (nonhearsay) or to prove it is true
What is nonhearsay?
Verbal act or legally operative words, state of mind, effect on listener or reader, prior statements of a trial witness and opposing party’s statements
What are some examples of verbal acts?
Defamation, words that show contract formation, etc.
What is the state of mind evidence?
Statements like ‘I’m the Queen of England’ to show declarant is crazy.
What is the effect on listener or reader used for?
Usually offered to prove motive or intent
What prior statements of a trial witness can be used as nonhearsay?
1) Prior statement of identification.
2) Prior inconsistent statement (made under oath at a formal trial, hearing, or deposition and the declarant is at trial subject to cross-examination concerning the statement).
3) Prior consistent statement used to rebut a charge of recent fabrication of improper motive/influence.
Tip: the declarant must be testifying at trial for these to apply.
Which are the opposing party’s statement that can be used as non hearsay?
1) Any statement made by the opposing party that is offered against that party
2) Adoptive admissions (statements a person adopts through silence)
3) Agent/employee statements made by the agent/employee offered against the principal during the existence of the relationship and concerning a matter within the scope of the agency/employment
4) Statements by co-conspirators made during the course of and in furtherance of the conspiracy
Tip: Don’t make this harder than it is. If a party says something, it can be used against them without a hearsay issue.
What are the hearsay exceptions in which the declarant must be unavailable?
- **Forfeiture by wrongdoing **
- Former testimony
- Statement against interest
- Dying declaration
- Statement of personal or family history (e.g., birthdate and marriage date)
What constitutes forfeiture by wrongdoing (witness tampering)?
A party engages in wrongdoing to make a witness unavailable for trial.
What constitutes former testimony?
Hearsay exception
Declarant is unavailable and had given testimony at a former proceeding or deposition, and it is admitted against a party or someone in privity who had the motive and opportunity to develop the statement.
What is a dying declaration?
Declarant is unavailable, the statement was made while he believed death was impending, it concerns the cause or circumstances of death, and it is used in a homicide or civil case.
Tip: memorize these elements!
What is a statement against interest?
Declarant is unavailable and made a statement he knew was against his interest at the time the statement was made.
What is the Sixth Amendment Confrontation Clause?
In criminal cases, if the statement is testimonial, the declarant is unavailable, and the defendant had no opportunity to cross-examine the declarant, the statement will generally not be admitted (pursuant to the Sixth Amendment Confrontation Clause).
What are the hearsay exceptions in which the declarant may be available or unabailable?
- Present sense impression
- Excited utterance
- Then-existing mental, emotional, or physical condition
- Statement for medical treatment or diagnosis
- Recorded recollection
- Business records
- Public records (made by an agency, but not police reports in criminal cases)
- Learned treatises (read into evidence if an expert is on the stand)
- “Catchall” exception (for trustworthy statements)
- Others (reputation about character, familial relations, etc.)
What is a present sense impression?
Declarant describes or explains events as it is happening or immediately thereafter.
What is an excited utterance?
There is a startling event, the declarant makes a statement while under the stress of
excitement, and the statement relates to the event.
What is a statement of then-existing mental, emotional, or physical condition?
Declarant states his then-existing feelings, physical conditions, or intent.
What is a statement for medical treatment or diagnosis?
Declarant makes a statement about past or present symptoms or the cause(s) to get diagnosed or treated.
What is a recorded recollection?
A witness has insufficient recollection of the event, but he had personal knowledge of the event at a former time, made or adopted a statement while the event was fresh in his memory, and can vouch for the accuracy of the statement when made or adopted.
What are business records?
Hearsay exception
A record made in the regular course of business at or about the time the event occurred that contains information observed by employees of the business (or an independent hearsay exception exists).
What reasons there are for excluding relevant evidence?
Relevant evidence is admissible but may be excluded if the probative value is substantially outweighed by a danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.
What evidence is permissible at the judge’s discretion?
Real, demonstrative, and experimental evidence are permissible in the judge’s discretion.
In which cases a duplicate of a writing, recording, or photograph is inadmissible?
An original writing, recording, or photograph is generally required, but a duplicate is admissible to the same extent as an original unless it is unfair to admit it or there is a genuine question about authenticity
What is the best-evidence rule?
One only needs to present documentary evidence when one wants to prove the contents of a writing. This means that the writing is (1) a legally operative document (e.g., a will, contract, etc.), or (2) the witness learned about the event solely from the writing or record and has no independent knowledge of the event.
Tip: this is often the wrong answer choice on the MBE.
What are the rules corcening use of summaries?
A party may use a summary, chart, or calculation if records are voluminous. However, the proponent must allow the other parties to examine or copy the originals or duplicates and the court may order them to be produced.
What does the completeness rule state?
When a party introduces part of a writing or transaction, the other party can ask that the rest of it be introduced as well if, in fairness, the rest ought to be considered contemporaneously with it. By introducing the writing or transaction, the party initially offering the evidence has waived any objections based on hearsay, competency, etc.
Character evidence is generally inadmissible for what?
Character evidence is generally inadmissible to prove that someone acted in accordance with his character.
In what cases is character evidence admissible in civil cases?
In civil cases, it is only admissible in cases regarding negligent entrustment or hiring, defamation, and child custody. It can be proven by (ROS) reputation, opinion, and specific acts.
In what cases is character evidence admissible in criminal cases?
In criminal cases, the defendant must open the door and can use (RO) reputation or opinion evidence. The prosecution can use (ROS) reputation, opinion, and specific acts.
What is habit and routine practice evidence?
Evidence of a person’s or organization’s habit or routine practice may be admitted to prove that it acted in accordance with the habit or routine practice.
How a defendant’s prior bad acts may be proven?
A defendant’s prior bad acts may be admissible to prove (MIMIC): motive, intent, lack of mistake, identity, common scheme or plan.
Tip: MIMIC can be used in criminal and civil cases.
What is refreshing recollection?
If a witness’s memory fails him, he may be shown a document or record to jog his memory.
What is presumed about the competency of witnesses?
Every witness is generally presumed to be competent regardless of religious beliefs, bias, etc
What is judicial notice?
The court may judicially notice a fact that is not subject to reasonable dispute because it is generally known within the jurisdiction or it can be accurately and readily determined from sources whose accuracy cannot be questioned.
What are the roles of judge and jury?
The judge decides if evidence is admissible. The jury decides issues of authentication and credibility
What is limited admissibility?
Sometimes evidence is admissible for one purpose and not another. In such a case, a court may give a limiting instruction to the jury.
What is a presumption?
A “presumption” means that a certain fact is assumed to be true unless the other side provides evidence to the contrary. In a civil case, a presumption can shift the burden of proof to the party against whom the presumption is directed. But the burden of persuasion is not affected and it remains on the party who had it originally.
What is the scope of examination during a cross-examination?
Cross-examination (i.e., the questioning of a witness by an opponent) should only cover matters within the scope of direct examination and matters affecting credibility.
When can leading questions be used?
Leading questions (i.e., those that suggest an answer, like “isn’t it true that…”) are permitted on cross-examination. They are only allowed on direct examination (a) to develop preliminary matters (e.g., name and address), (b) for young or forgetful witnesses, or (c) for hostile witnesses or the adverse party.
In self-defense cases, what type of evidence may a criminal defendant offer regarding the victim?
A criminal defendant may offer evidence of the victim’s violent character using (RO) reputation or opinion evidence. The prosecution may rebut by introducing (RO) reputation or opinion evidence of the victim’s or defendant’s character.
When can prior sexual misconduct of a defendant be admitted in court?
If a defendant is accused of a sexual assault or child molestation, the court may admit evidence that the defendant committed any other sexual assault or child molestation. The evidence may be considered on any matter to which it’s relevant, including that he acted in accordance with his character.
Tip: remember that only specific acts can be offered.
In a criminal case, what can specific instances of a victim’s prior sexual misconduct be used to prove?
In a criminal case, specific instances can be offered to prove the source of semen, injury, or other physical evidence; consent; or when excluding it would violate the defendant’s constitutional rights.
In a civil case, when is evidence of a victim’s prior sexual misconduct admissible?
In a civil case, evidence is not admissible unless the probative value substantially outweighs the danger of harm or unfair prejudice. The court may admit reputation evidence only if the victim places it in controversy.
What can a prior inconsistent statement used for?
If a party makes a prior statement that is inconsistent with her testimony at trial, it may be used for impeachment.
Tip: it may also be used as “substantive evidence” (i.e., the truth of the matter asserted) if it falls within a hearsay exception or exclusion (e.g., prior inconsistent statement or an opposing party’s statement).
What is required for extrinsic evidence to be permitted in the case of a prior inconsistent statement?
Extrinsic evidence may be used only if the witness is given an opportunity to explain or deny the statement at some point. This does
not apply if the witness is the opposing party, not in court at all, or if the interests of justice require.
What type of bias can be suggested regarding a witness?
If a witness is a family member, friend, enemy of a party, paid by the party, granted immunity, or if other circumstances show bias, then that can be used to suggest the witness has motive to lie.
When can extrinsic evidence be used regarding bias of a witness?
Extrinsic evidence may be used only if the witness is asked about the facts that suggest bias and the witness denies those facts.
What types of convictions are allowed into evidence under the federal rules?
There are two categories of convictions that are allowed into evidence under the federal rules: (1) felony or misdemeanor convictions where the prosecution is required to prove an act of dishonesty or false statement as part of the crime—these are automatically admitted, and (2) felony convictions that meet a balancing test that weighs the probative value and prejudice.
What is the time limit for admitting evidence of a conviction?
If more than 10 years have passed since the witness’s conviction or release from confinement for it, whichever is later, evidence of the conviction is generally not admissible.
Can specific instances of misconduct be used to impeach a witness?
If a witness engaged in a “bad act” that is probative of truthfulness (e.g., lying and cheating) he may be questioned about it on the stand.
Is extrinsic evidence permitteed regarding specific instances of misconduct?
Extrinsic evidence is not permitted! If the witness denies the misconduct, evidence is not admissible to prove that it occurred.
What conditions allow for the impeachment of a witness due to contradiction?
A witness may be impeached during cross-examination if she made a mistake or lied about anything she said during direct examination.
Can extrinsic evidence be used against a witness that contradicts himself?
If the witness won’t admit her mistake, extrinsic evidence may be used as long as the fact at issue is not a collateral (irrelevant) fact.
One must confront the witness prior to offering extrinsic evidence.
Can sensory deficiencies ot a witness be used against him?
Anything that concerns the witness’s perception or memory (e.g., if the witness is deaf, blind, has a bad memory, etc.) can be used to suggest the witness is mistaken.
Extrinsic evidence is permitted.
What is required for a party to call a character witness for truthfulness?
A party may call its own character witness to testify that the witness in question has a bad reputation for truthfulness or, in the character witness’s opinion, that the witness is not truthful.
The witness is extrinsic evidence.
What qualifies a witness as an expert?
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify if it is helpful to the trier of fact and based on sufficient facts or data.
What are the bases on which an expert may base their opinion?
An expert may base an opinion on (1) personal knowledge, (2) facts that are in the record and made known to the expert by a hypothetical or testimony at trial, or (3) facts not in the record if they are the kind of facts other experts would reasonably rely on.
What is the ultimate issue rule?
An expert opinion may embrace an ultimate issue. But, in a criminal case, an expert witness must not state whether the defendant had the requisite mens rea.
What are the requirements for a lay witness’s opinion to be admissible?
A lay witness’s opinion is admissible if it is
rationally based on the witness’s perception; helpful to determining a fact; and not based on scientific, technical, or other specialized knowledge. A lay witness must have personal knowledge.
What is required for a court to exclude a nonparty witness?
At a party’s request a court must order a nonparty witness to be excluded. However, a court cannot authorize excluding a party, a person whose presence is essential to the claim or defense, or someone authorized to be present.
What must a proponent produce to authenticate an item?
The proponent must produce evidence
sufficient to support a finding that the item is what the proponent claims it is.
Who can authenticate handwriting?
To authenticate handwriting, one may use (1) a lay witness who was familiar with the handwriting before the litigation, (2) an expert witness, or (3) the trier of fact (e.g., the jury may compare the handwriting with an authenticated specimen).
Who can authenticate a voice?
Anyone can authenticate a voice—including a lay person—even if the person acquired familiarity with the voice solely for the purpose of litigation
Who can authenticate a photograph?
Anyone who has personal knowledge of the scene in the photograph may authenticate it.
Tip: the photographer is not necessary to authenticate a photograph!
Which are the privileges regarding confidentiality?
- Spousal immunity
- Confidential communications
- Attorney-client privilege
- Psychotherapist-patient privilege * Work-product doctrine
What are the conditions for spousal immunity in a criminal trial?
(1) it applies in a criminal trial, (2) it is held by the witness spouse, and (3) the parties must be married at the time of trial.
What are the conditions for confidential communications between spouses?
(1) it applies in a civil or criminal trial, (2) it is held by both spouses, (3) the communication was confidential, and (4) it was made during the marriage.
What does attorney-client privilege protect?
The privilege applies to confidential communications between an attorney and client (or either’s agent) or prospective client made for the purpose of obtaining legal advice.
What does the psychotherapist-patient privilege protect?
Confidential communications between a patient and a doctor for the purpose of diagnosis or treatment are protected.
Under what conditions can work-product doctrine materials be discovered?
Material prepared for litigation may not be discovered absent a showing of a “substantial need” and “undue hardship.”
Is insurance coverage admissible to prove negligence?
No, insurance coverage is inadmissible to prove negligence but may be used for other purposes (e.g., to show agency, ownership, control, or bias).
Are subsequent remedial measures admissible to show negligence?
Subsequent remedial measures are inadmissible to show negligence or guilt but may be used for impeachment, to show ownership or control, or to show feasibility of precautionary measures if disputed.
Are offers to settle a disputed claim and statements made during negotiations admissible?
No
Is an offer to pay medical bills admissible to prove liability?
No
Is a guilty plea admissible as evidence?
Yes
Are statements made during negotiations that did not result in a guilty plea admissible?
No. An offer to plead guilty, a guilty plea later withdrawn, a no contest plea, and statements made during negotiations that did not result in a guilty plea are inadmissible.
