Evidence Flashcards
Who makes the determination of admissibility of evidence?
Within the sound discretion of the court.
Hearsay
An out-of-court statement offered to prove the truth of the matter asserted.
What is a statement?
An oral or written assertion or nonverbal conduct intended as an assertion.
Declarant
A person who makes a statement.
What is a prior inconsistent statement?
A prior statement inconsistent with the witness’s hearing testimony.
What are the requirements for admitting a prior inconsistent statement?
- Offered for impeachment purposes
- The witness is given an opportunity to explain or deny the statement
- The opposing party has an opportunity to interrogate the witness.
What is a prior consistent statement?
A prior statement consistent with the witness’s hearing testimony.
What conditions allow for a prior consistent statement’s admissibility?
- Offered for rehabilitation; and
- The witness has been impeached with a prior inconsistent statement; or
- The witness has been impeached based on improper influence or motive to falsify.
Admission by Party-Opponent
Exception to the hearsay rule - A statement offered against a party that is the party’s own statement or adopted belief (or that of agent or co-conspirator) (includes an out-of-court statement made by a criminal defendant)
Present Sense Impression
Exception to the hearsay rule - A spontaneous statement describing an event or condition made contemporaneously while perceiving it.
Excited Utterance
Exception to the hearsay rule - A spontaneous or impulsive statement made by a declarant prompted by a startling event.
Other exceptions to the hearsay rule
- Then-Existing Mental, Emotional, or Physical Condition
- Statement Made for Medical Diagnosis or Treatment
- Recorded Recollection
- Records or Absence of a Record of a Regularly Conducted Activity
- Public Records or Absence of a Public Record
- Records of Vital Statistics
- Religious Records Concerning Personal/Family History
- Family Records
- Property Records
- Statements in Ancient Documents
- Market Reports, Learned Treatises, Periodicals, Pamphlets
Hearsay Exceptions that apply only when the Declarant is unavailable as a Witness
- Former Testimony
- Dying Declaration (In Virginia, only in homicide prosecution when made by victim and going to the cause of death)
- Statement Against Interest
- Statement of Personal or Family History
- Statement Offered Against a Party That Wrongfully Caused the Declarant’s Unavailability
Attorney-Client Privilege
Covers communications made between privileged persons in confidence for legal assistance.
Work Product Doctrine
Documents prepared by a lawyer or team in anticipation of litigation are generally privileged.
What happens if communication takes place under circumstances such that persons outside the privilege can overhear what is said?
The privilege is waived.
Exception to Work-Product Doctrine
Opposing party shows (1) substantial need for the materials and (2) that it cannot obtain their equivalent without undue hardship.
Admissibility of Copies of Documents (Rule 2:1005(d))
If the original document is either unavailable or lost, copies of original documents can be admitted into evidence if authenticated.
For a copy to be admissible under this exception:
- The copy must be made in the regular course of business,
- The person offering the copy must be the custodian of the record, or there must be a certificate from the custodian affirming custody of the original.
The Best Evidence Rule
Requires that the original document be either unavailable or lost before a copy can be admitted.
Judicial Notice
A court may take judicial notice of a factual matter not subject to reasonable dispute if:
- It is common knowledge, or
- It is capable of accurate and ready determination by sources whose accuracy cannot reasonably be questioned.
Judicial Notice of Laws from Other States (Rule 2:202)
Courts may take judicial notice of the laws of other states, whether they are specially pleaded or not.
Admissibility of Summaries (Rule 2:1006)
Summaries of voluminous documents are admissible if the original documents are too voluminous to examine in court.
The summary must be made available to the opposing party for reasonable examination at an appropriate time and place.
The court may order that the summary be produced in court for review.
A declarant is considered unavailable if they:
- Are exempted from testifying due to privilege (e.g., attorney-client privilege).
- Refuse to testify, despite a court order.
- Lack memory of the subject matter.
- Cannot be present due to death or illness.
- Are absent and cannot be reasonably procured, despite efforts to bring them to court.
