Evidence Flashcards
What must evidence be to be admissible according to FRE 403?
Relevant
Relevance can be logical or legal.
Define logical relevance in the context of evidence.
If evidence has any tendency to make a material fact of consequence more or less probable than it would be without the evidence.
List some instances where similar happenings may be relevant.
- Prove intent
- Rebut defense of impossibility
- Show causation
- Establish a pattern in fraudulent claims
- Show a preexisting condition
- Comparable sales relevant to establish value
- Evidence of habit
- Routine practice
- Industrial custom
What is legal relevance?
The court may exclude evidence if its probative value is substantially outweighed by the risk of unfair prejudice, confusion, or waste of time.
Which types of evidence are inadmissible to prove culpable conduct?
- Liability insurance
- Subsequent remedial measures
- Settlement offers
- Offers to pay medical expenses
- Criminal pleas
In criminal cases, what is the rule regarding character evidence for defendants?
Prosecutor can’t first offer character evidence unless in a homicide case where the defendant alleges self-defense.
What is the Rape Shield Law in criminal cases?
Reputation and opinion not allowed for the victim; specific acts are OK to show third-party source of physical evidence or prior consent.
In civil cases, under what conditions can character evidence be admitted?
Inadmissible to prove conduct unless character is at issue.
What types of evidence can be used in civil cases where character is at issue?
- Opinion
- Reputation
- Specific acts
What must a witness demonstrate to be considered competent?
- Personal knowledge
- Present recollection
- Ability to communicate
- Sincerity
What are some grounds for disqualification of a witness?
Only judges and jurors are automatically disqualified; no disqualification for insanity, religious belief, or age, but may affect credibility.
List some common objections to witness testimony.
- Calls for narrative
- Unresponsive
- Leading questions
- Assumes facts not in evidence
- Argumentative
- Compound
What is impeachment in the context of witness testimony?
Evidence to attack the credibility of witnesses.
What is required for prior inconsistent statements to be admissible?
Extrinsic evidence is OK if not a collateral matter and the witness is given an opportunity to explain or deny.
Under what conditions can prior convictions be admitted to impeach a witness?
- Felonies and misdemeanors involving false statements are always admissible unless over 10 years old.
- Felonies not involving false statements subject to balancing; misdemeanors not admissible.
What is required for lay opinion testimony to be admissible?
Based on the witness’s perceptions and helpful to the trier of fact.
What are the requirements for expert opinion testimony?
- Helpful to the jury
- Qualified
- Supported by proper factual basis
- Reasonable degree of certainty
- Based on reliable principles that were reliably applied
What is the Fed/Daubert standard for expert testimony?
- Theory/technique must be peer-reviewed and published
- Tested and subject to retesting
- Low error rate
- Reasonable level of acceptance
What is judicial notice?
If facts are generally known within the jurisdiction or capable of accurate and ready determination using sources whose accuracy can’t reasonably be questioned.
In civil cases, what is the effect of judicial notice?
Judicial notice is conclusive.
In criminal cases, what is the jury’s requirement regarding judicial notice?
The jury may but doesn’t need to accept.
What is the standard of proof in criminal cases?
Beyond a reasonable doubt.
What is the standard of proof in civil cases?
Preponderance of evidence.
What does a presumption do in a legal context?
Shifts the burden to the party against whom the presumption is asserted.
What methods can be used to prove the authenticity of signatures?
- Admission
- Eyewitness testimony
- Expert opinion
- Lay opinion by someone familiar with the signature
- Circumstantial evidence
- Genuine exemplar.
What types of documents are considered self-authenticating?
- Certified public documents
- Acknowledged documents
- Official publications
- Newspapers
- Periodicals
- Business records
- Trade inscriptions.
What must photos do to be reliable in court?
Fairly and accurately depict what it is purporting to show at the time of the event.
What is required for the admissibility of non-unique items?
Chain of custody.
What is the Best Evidence Rule?
Evidence is offered to prove the contents of a writing; originals and duplicates are acceptable.
When is testimony allowed if the original document is lost or destroyed?
Unless there is bad faith by the proponent of testimony.
What is hearsay?
An out of court statement offered to prove the truth of the matter asserted in the statement.
Are hearsay statements usually admissible in court?
No, they are usually inadmissible.
What are facts of independent legal significance?
Facts that are admissible because they are not hearsay.
What does the effect on hearer refer to in hearsay exemptions?
Emotional impact, knowledge, notice.
What is an admission by party opponent?
Not subject to personal knowledge requirement or the opinion rule.
What constitutes vicarious party admission?
If an employee is an authorized spokesperson or acting within the scope of employment.
What is an adoptive admission?
Silence is an admission if the party heard and understood, was able to deny, and a reasonable person would have denied.
What is a prior inconsistent statement under oath used for?
Impeachment and substantive proof.
When can a prior consistent statement be used?
To rebut a charge of lying if made before a bribe or inconsistent statement.
What is a prior statement of identification?
Identification of a person made after perceiving them.
What is the exception for former testimony?
The party against whom offered had the opportunity and motive to conduct an examination.
What is a dying declaration?
A statement made by someone believing they are about to die regarding the cause or circumstances leading to injury.
What qualifies as a statement against interest?
If it was against pecuniary, penal, or proprietary interest at the time made.
What is required for personal/family history statements?
Declarant must be a family member or close associate and require personal knowledge.
What is the exception for statements offered against a person causing declarant unavailability?
Only if the person offered against engaged or acquiesced in intentional wrongdoing.
What is a present sense impression?
A statement made while perceiving an event or immediately thereafter.
What is the time frame for ancient documents to be considered admissible?
20 years.
What is recorded recollection?
A statement made by a witness who once had personal knowledge and whose memory is now not refreshed.
When is state of mind admissible?
If directly at issue and material, or to establish intent.
What qualifies a public record for admissibility?
- Describes activity of office
- Describes matter observed pursuant to duty imposed by law
- Contains factual findings from investigation made pursuant to authority granted by law.
What constitutes a business record?
A record of event, condition, opinion, or diagnoses kept in regular course of business, made at or near the time of the matter described.
What is the admissibility of a judgment of previous conviction?
Admissible in both civil and criminal cases to prove any fact essential to judgment.
What is the federal catch-all exception?
Guarantees of trustworthiness; strictly necessary; and notice given to adversary as to nature of statement.
What can make a statement inadmissible against a defendant in a criminal case?
Confrontation Clause
Testimonial statements are inadmissible unless the declarant is unavailable and the defendant had an opportunity to cross-examine the declarant when the statement was made.
What is required for attorney/client privilege to apply?
Communication between attorney and client intended to be confidential and made to facilitate legal services
The privilege is waived unless the client chooses to maintain it.
Does attorney/client privilege apply to communications from employees or agents?
Yes, if the corporation authorizes them to communicate
The privilege extends beyond the client’s death.
What is the scope of the psychotherapist-social worker/client privilege?
Communication between patient and psychotherapist intended to be confidential and made to facilitate professional psychological services
This privilege can be waived by the patient.
When does doctor/patient privilege not apply?
If the patient puts physical condition at issue, physician’s services were sought to aid in a crime, or case alleges breach of duty arising out of the relationship
This privilege is limited in scope compared to others.
What type of privilege allows a witness to refuse to testify against their spouse in criminal cases?
Spousal privilege (testimonial)
This can be waived by the testifying spouse.
Under what conditions does spousal privilege not apply?
In cases where one spouse is charged with a crime against the other spouse or their children
Legal marriage is required at the time of the trial.
What does confidential communication spousal privilege protect?
All communications during marriage
Requires legal marriage at the time of communication; both spouses hold the privilege.
True or False: Attorney/client privilege applies to malpractice actions.
False
Attorney/client privilege does not apply in malpractice actions.
Fill in the blank: The Confrontation Clause makes testimonial statements inadmissible unless the declarant is _______ and the defendant had an opportunity to _______ the declarant.
unavailable; cross-examine
This rule applies only in criminal cases and only when the prosecution is offering the evidence.
What is the significance of a statement that has words forming legal significance based in substantive law?
It can form a contract or state that the transfer of title is a gift.
These statements have independent legal significance and can affect the outcome of a case.
In a negligence case, what is the effect of words that show knowledge or notice on the part of the listener?
They are relevant to the issue of motive.
Such statements can demonstrate the listener’s awareness of particular facts or circumstances.
What does it mean when a statement proves the writer had knowledge of the facts?
It shows a connection to the claim at issue.
This type of evidence can be crucial in establishing a party’s awareness of relevant information.
What is circumstantial evidence of state of mind?
Statements used to demonstrate that the declarant believed them to be true.
This can also include demonstrating insanity or knowledge.
What qualifies as an admission by a party opponent?
Statements of admission made by a party or someone attributable to a party.
Personal knowledge is not required, but legal conclusions are inadmissible.
What is a vicarious party admission?
Statements made by employees or co-conspirators within the scope of their employment or conspiracy.
This includes statements made by partners within the scope of partnership.
Under what conditions may silence be considered an admission?
If the party heard and understood, was capable of denying, and a reasonable person would have denied the accusation.
These conditions help determine if silence implies consent or acknowledgment.
What is required for a prior inconsistent statement to be admissible for impeachment?
It must be made under oath at a prior proceeding or deposition.
This type of statement can also serve as substantive proof.
When is a prior consistent statement admissible?
If made before an alleged bribe or inconsistent statement.
It can be used as substantive proof or to bolster credibility.
What is a prior statement of identification?
Statements of identification made after perceiving him, not requiring an oath or formal proceeding.
This allows witnesses to confirm identity without formalities.
What is a reason for unavailability in hearsay exceptions?
Privilege
Death or Illness
Failure of memory
Refusal to testify despite court order
Proponent can’t procure attendance by process or other reasonable means
These are various circumstances that can render a witness unavailable for testimony.
What is the requirement for former testimony to be admissible?
Party against whom testimony is now offered had an opportunity to examine and similar motive to conduct the examination
In civil case, party against whom testimony is now offered was not a party but has a close privity-like relationship with the earlier party (predecessor in interest)
This outlines the conditions under which former testimony can be used as evidence.
In which types of cases is a dying declaration admissible?
Civil cases
Homicide cases
Dying declarations are only admissible in these specific legal contexts.
What qualifies as a statement against interest?
At time made, against pecuniary, penal or proprietary interest
If offered to exculpate accused, must have corroborating evidence
This definition helps to identify statements that may be admissible under hearsay exceptions.
What does personal or family history include?
Birth
Marriage
Divorce
Death
Relationship
These are specific topics that are relevant to personal or family history statements.
When is a statement offered against a person causing the declarant’s unavailability admissible?
If party against whom offered engaged or acquiesced in intentional wrongdoing to cause unavailability
This establishes a condition for admitting hearsay statements related to a person’s unavailability.
What is the acronym for hearsay exceptions where unavailability is immaterial?
P.A.P.E.R.S. P.B.J.
This acronym helps to remember the exceptions where the unavailability of a witness does not affect the admissibility of the statement.
What is required for a present sense impression to be admissible?
Made while perceiving an event or immediately thereafter
This outlines the timing and context necessary for a present sense impression to qualify as admissible evidence.
What defines ancient documents in hearsay exceptions?
Authenticated document over 20 years old
This criterion establishes the age and authenticity requirements for ancient documents to be considered as evidence.
What is the purpose of a past physical condition statement?
Made to medical personnel to assist in diagnosing or treating
Cause or source of condition also admissible if pertinent to diagnoses or treatment
These statements are crucial for medical assessments and legal cases involving health conditions.
What characterizes an excited utterance?
During or soon after a startling event
Made under stress of excitement of event
Concerning immediate facts of event
This outlines the conditions under which excited utterances can be admitted as evidence.
What are the requirements for recorded recollection?
W once had personal knowledge
Document made by W under W’s direction or adopted by W
Written or adopted when memory is fresh
Accurate when made
W now has insufficient recollection
These conditions ensure the reliability of recorded recollections as admissible evidence.
What does the state of mind (present) refer to?
State of mind, emotion, sensation, or physical condition
Admissible only when state of mind is directly in issue and material OR to establish intent of person and as circumstantial evidence that intent was carried out
This concept is relevant for establishing the mental state of individuals in legal contexts.
What types of records are included under public records?
Record describing activities of office
Describes matters observed pursuant to duty imposed by law
Record contains factual findings resulting from investigation made pursuant to authority granted by law, unless untrustworthy
These records can provide important evidence in legal proceedings.
What does P.A.P.E.R.S. stand for in the context of hearsay exceptions?
P.A.P.E.R.S. stands for:
* Records of a Regularly Conducted Activity
* Judgments of Prior Convictions
* Vital Statistics
* Property Interest Documents
* Learned Treatises
* Family Records
* Market Reports
These elements outline various exceptions to the hearsay rule.
What are the criteria for Records of a Regularly Conducted Activity to be admissible?
Criteria include:
* Records of events, conditions, opinions, or diagnoses
* Kept in the regular course of business, organization, or occupation
* Made at or near the time of the matter described
* By a person with personal knowledge or within the knowledge of someone with a business duty to transmit info
* Regular practice to make such recordings
Police records may apply in civil cases but not in criminal cases.
Are judgments of prior convictions admissible for misdemeanors?
No, misdemeanors are not admissible.
What types of documents fall under Vital Statistics?
Vital Statistics include:
* Births
* Deaths
* Marriages
These documents must be made to public office as required by law.
What are Learned Treatises?
Learned Treatises are standard scientific treatises or authoritative works used as substantive evidence.
In which cases is character evidence admissible in civil cases?
Character evidence is admissible in:
* Defamation
* Negligent Entrustment
* Child Custody
This is an exception to the general rule that character evidence is inadmissible.
What is the rule regarding character evidence in criminal cases for the defendant?
The prosecution cannot first offer character evidence, except in specific circumstances such as sexual assault or child molestation cases.
What can the defendant offer in a criminal case regarding character evidence?
The defendant can offer character evidence to prove or disprove conduct.
What is the Rape Shield Law in criminal cases?
Under the Rape Shield Law:
* Reputation and opinion of the victim are not allowed
* Specific instances are admissible to show third-party source of semen or injury or prior acts of consent between defendant and victim.
What methods can be used for impeachment?
Methods of impeachment include:
* Impeachment by Contradiction
* Impeachment by Prior Inconsistent Statement
* Impeachment by Evidence of Bias, Interest, or Motive
Each method has specific rules regarding evidence admission.
What is required when admitting extrinsic evidence for impeachment?
The witness must be given an opportunity to explain or deny the inconsistency.
True or False: Specific instances of a victim’s sexual history are admissible in civil cases.
True.
Fill in the blank: Character evidence is ______ to prove conduct in civil cases.
inadmissible.
What is impeachment by prior convictions?
A method to discredit a witness’s credibility based on past convictions.
Which crimes are always admissible to impeach credibility?
Felonies and misdemeanors involving false statements.
What is the exception for crimes involving false statements regarding time?
If conviction or release from prison is over 10 years old, it is subject to balancing.
Are felonies not involving false statements admissible for impeachment?
Yes, but subject to balancing.
Are misdemeanors not involving false statements admissible for impeachment?
No, misdemeanors are NOT admissible.
What type of evidence can be used if prior convictions are admissible?
Extrinsic evidence can be used.
What does impeachment by non-conviction bad acts involve?
Acts involving lying that are admissible in civil and criminal cases.
Is extrinsic evidence allowed in impeachment by non-conviction bad acts?
No, extrinsic evidence is not allowed.
What is allowed when impeaching with reputation and opinion regarding truthfulness?
Extrinsic evidence is admissible and the opinion of the witness is admissible.
What does impeachment with sensory deficiencies aim to show?
That a witness’s faculties of perception or recollection are impaired or that they lack personal knowledge.
How can sensory deficiencies be demonstrated during impeachment?
Through cross-examination or extrinsic evidence.
