Evidence Flashcards
MIMIC
The mnemonic device “MIMIC” is a convenient way to remember the most common non-propen- sity purposes for offering evidence of a defen-
dant’s other crimes or misconduct: M otive
/ ntent
Mistake (absence of)
I dentity
Common plan or scheme
Refreshing recollection
A witness can use any writing to refresh their recollection. But, they usually may not read from the writing while testifying because the writing is not authenticated and not in evidence.
Recorded recollection
A recorded recollection may be read into evidence and heard by a jury, but it cannot be admitted into evidence as an exhibit unless offered by an adverse party.
Hearsay exception- former testimony
Unavailability required. Statement made under oath at same time or at other proceeding at which the party against whom it is offered had motive and opportunity to develop testimony.
Hearsay exception- statement against interest
Unavailability required. Statement against declarant’s pecuniary, proprietary, or penal interest when made.
Hearsay exception- dying declaration
Unavailability required. Statement made while declarant believed death was imminent, concerning the cause or circumstances of the impending death.
Hearsay exception- statement of personal or family history
statement of personal or family history (e.g., birth, death, marriage) made by family member or one intimately associated with the family
Hearsay exception- statement offered against party procuring declarant’s unavailability
statement of unavailable declarant offered against party who intentionally procure declarant’s unavailability.
Hearsay exception- excited utterance
availability immaterial. Statement made while under stress of excitement of startling event.
Hearsay exception- present sense impression
availability immaterial. statement made concurrently with perception of event described.
Hearsay exception- present state of mind
availability immaterial. Statement of then-existing state of mind, emotion or sensation. (usually introduced to establish intent. admissible when state of mind is material issue or to show subsequent acts of declarant)
Hearsay exception- present bodily condition
availability immaterial. spontaneous declaration of physical symptoms.
Hearsay exception- statement for medical diagnosis or treatment
statement of past or present physical condition, or the cause of the condition, made for the purpose of diagnosis or treatment
Hearsay exception- recorded recollection
availability immaterial. record by witness who cannot now remember the facts, made while the facts were fresh in her mind.
Hearsay exception- business records of absence thereof
availability immaterial. records made in the regular course of business, consisting of matter within the personal knowledge of one with a business duty to transmit. Lack of such record may be used to show nonoccurrence of event.
Spousal immunity
One spouse cannot be compelled to testify agains the other spouse in any criminal proceeding.
Only the witness-spouse may invoke spousal immunity (i.e., the party-spouse cannot prevent the witness spouse from testifying)
The privilege can be claimed only during marriage, but covers information learned before the marriage.
(there is an exception as to a confidential communication made between the spouses while they were married)
Confidential marital communications
Communications made in reliance upon the intimacy of the marital relationship are privileged. The privilege applies in both civil and criminal proceedings.
Both spouses have the privilege not to disclose, and to prevent the other from disclosing, a confidential marital communication.
The privilege survives the marriage, but covers only statements made during the marriage.
Is character evidence admissible in a criminal case
Yes, reputation testimony, opinion testimony, mimic.
Defendant may introduce evidence of own good character to show innocence.
Prosecution may introduce d’s bad character when they open the door
Is character evidence admissible in civil cases
Generally not admitted except when character is directly in issue- defamation, negligent hiring, etc. MIMIC.
Nonhearsay- statement by an opposing party
(also called “admission” of a party-opponent)—a statement by or attributable to a party, offered against that party (need not be against interest
Nonhearsay- Prior inconsistent statement of testifying witness
when made under oath at a prior proceeding or deposition
Nonhearsay- prior consistent statement testifying witness
in certain circumstances when offered to rehabilitate an impeached witness
Prior statement of identification of testifying witness
such as photo identifications
In VA, a witness may be impeached with the following types of convictions:
Any felony
Any misdemeanor involving moral turpitude
VA dying declarations
This exception only applies in homocide prosecutions only; and does not apply in civil cases
Admissibility of real evidence
One of the general requirements for admissibility of real evidence is that it be authenticated as being what is proponent claims it is. If the evidence is of a type that is likely to be confused or can be easily tampered with , the proponent of the object must present evidence of chain of evidence. The proponent must show that the object has been held in a substantially unbroken chain of possession. It is not necessary to negate all possibilities of substitution or tampering; rather, what is required is to show adherence to some system of identification and custody.
Federal Rule 1006
The contents of voluminous writings that are otherwise admissible may be presented in the form of a chart as long as the original documents ae available to other party for examination and copying.
Physician-patient privilege
Under the physician-patient privilege, a physician is foreclosed from divulging in judicial proceedings information that he acquired while attending a patient in a professional capacity, which information was necessary to enable the physician to act in his professional capacity. Information given by a patient that deals with a nonmedical matter is not protected by the privilege.
Federal Rule 609
Evidence of conviction of a crime requiring proof of an act of dishonesty or false statement can always be used to attack a witness’s character for truthfulness.
Treaties as evidence
Under the Federal Rules, learned treaties can be used either for impeachment or as substantive evidence.
How can the credibility of an expert witness be attacked
One way the credibility of an expert witness may be attacked is by cross-examining him as to his general knowledge of the field in which he is claiming to be an expert. This can be done by cross-examining the expert on statements contained in any scientific publication that is established as reliable authority. Reliability of a publication may be established by: (i) the direct testimony or cross-examination admission of the expert, (ii) the testimony of another expert, or (iii) judicial notice. The Federal Rules recognize an exception to the hearsay rule for learned treatises and admit them as substantive evidence if: (i) the expert is on the stand and it is called to his attention, and (ii) it is established as reliable authority (see above).
“catch-all” exception for hearsay
Before evidence can be admitted under this exception, an elaborate petrol notice procedure must be followed to assure that the other party has an opportunity to prepare to meet the hearsay evidence.
Authentication of secondary evidence.
Before a writing or any secondary evidence of its content may be received in evidence, the writing must be authenticated by proof showing that the writing is what the propellent says it is. In general, a writing may be authenticated by any evidence that serves to establish its authenticity. One means of authentication under Federal Rule 901(b) is by evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result,
Clergy-penitent privilege
Pursuant to the clergy-pertinent privilege, a person has a privilege to refuse to disclose, and to prevent others from disclosing, a confidential communication by that person to a member of the celery in the clergy member’s capacity as a spiritual adviser. The confession will be protected only when you are telling the priest in his capacity as a spiritual adviser.
Dead Man Act
A typical Dead Man Act provides that a party or person interested in the event, or her predecessor in interest, is incompetent to testify to a personal transaction or communication with a deceased when such a testimony is offered against the representative or successor in interstate of the deceased.
One way in which hand writing can not be identified and therefore accepted as nonhearsay
Pretrial familiarization of a signature of a non expert is not an accepted method of authentication because lay opinion as to the authenticity of handwriting must be based on personal familiarity with the handwriting.
Is evidence of compromises admissible
Evidence of compromises or offers to compromise is inadmissible to prove or disprove the validity or amount of a disputed claim.
Secondary effects of business zoning
Te town may constitutionally limit the location of these establishments to control the secondary effects of these business.
