Evidence Flashcards
Letter Authentication
A document can be authenticated by establishing that it qualifies as a reply letter. To do so, the proponent must show that (1) the document was written in response to an earlier communication and (2) the contents make it unlikely that it was written by someone other than the recipient of the earlier communication.
Matter of Law v. Matter of Fact
Matters of law are decided by the judge, while matters of fact are decided by the trier of fact.
Expert Witness Being Asked about Hypothetical
When examining an expert witness, a party may ask a hypothetical question so long as it includes any undisputed material facts.
Attorney-Client Privilege
Attorney-client communications are not privileged if made to further an ongoing or future crime or fraud and can be disclosed by the attorney without the client’s (ie, privilege-holder’s) consent.
Authenticating Evidence
Tangible evidence must be authenticated before it can be admitted into evidence. This requires that the proponent produce extrinsic evidence—ie, evidence outside the document—to support a finding that the thing is what the proponent claims it to be.
However, some tangible evidence is self-authenticating and therefore admissible without extrinsic evidence of authenticity. This includes:
- Trade inscriptions (eg, a can label) affixed in the course of business that indicate ownership
- Official publications issued by a public authority (eg, a pamphlet issued by a state’s highway department)
- Printed materials purporting to be a newspaper or periodical
Real evidence (eg, bag of white powder) is only admissible if it is properly authenticated—ie, proven to be what the proponent claims it to be. This foundation can be laid by:
- Presenting identification testimony – testimony from a witness who can recognize the item based on personal knowledge of the item’s distinctive and readily identifiable features;or
- Establishing a chain of custody – evidence establishing a substantially unbroken history of the item’s condition, location, and custodians from when it was acquired to when it is presented in court.
Authenticating Models
Reproductions (eg, models, drawings, photographs, maps) may be authenticated by the testimony of a witness with personal knowledge that the reproduction accurately depicts what its proponent claims it does.
Impeaching Showing Bias or Self-Interest
A party may impeach a witness by establishing that bias or self-interest motivated the witness to testify falsely.
Character Witness
After a witness’s character for truthfulness has been attacked, the party who called the witness may rehabilitate that character by offering (1) reputation testimony, (2) opinion testimony, or (3) testimony on cross-examination regarding specific instances of conduct.
Past Sexual Conduct
In criminal and civil cases involving sexual assault or child molestation, evidence that the accused committed any other sexual assault or child molestation is admissible for any relevant purpose—even to show the accused’s propensity to commit the charged assault or molestation.
The Physician-Patient Privilege
The physician-patient privilege, if recognized by state law, applies in federal diversity suits unless (1) the patient’s physical condition is at issue, (2) the patient-physician communication was part of a crime or tort, (3) there is a dispute between the patient and physician, or (4) the patient contractually waived the privilege.
Declarant is Unavailable
A declarant is unavailable if (1) he/she is absent from the trial or hearing and (2) the proponent could not obtain the declarant’s attendance by subpoena or other reasonable means.
Declarant’s Former Testimony Hearsay Exception
The parties need not be identical in the two actions for the former testimony of an unavailable declarant to be admissible.
Grand Jury
The Federal Rules of Evidence—except those regarding privilege—do not apply at grand jury proceedings. Therefore, exclusionary evidentiary rules (eg, the rule against hearsay) are inapplicable in a grand jury hearing, but the attorney-client privilege can still be asserted.
Relevance of Evidence Showing Consciousness of Guilt
Evidence showing a defendant’s consciousness of guilt is relevant because it makes the material fact of the defendant’s guilt more probable.
Expert Testimony Reliability of Evidence
A party seeking to admit expert testimony must prove that the testimony is reliable by a preponderance of the evidence. Reliability is a preliminary question for the court to determine, not a question of weight for the jury.
Forfeiting Hearsay or Confrontation Clause Objection
To forfeit a hearsay or confrontation clause objection to an unavailable declarant’s out-of-court statement, a defendant must have (1) wrongfully caused, or acquiesced in wrongfully causing, the declarant’s unavailability and (2) done so intending that result.
