EVIDENCE Flashcards
Regular Impeachment
- contradictions
- any evidence can be used to impeach testimony
Witness about their Own Conduct
two scenarios:
1. prior conviction
2. non-conviction/bad act
Witness asked about a prior conviction
- if conviction if for crime of truthfulness / dishonesty = admissible
- if conviction if for felony = inadmissible (unless 10 years have passed & passes balancing test)
Witness asked about non-conviction / bad act
- if just bad act committed by witness = inadmissible
- bad act that relates to dishonesty - may ask witness while on stand, but once they deny it and leave stand, questioning about that ends
CANNOT BE PROVED VIA EXTRINSIC EVIDENCE
Character Evidence rule
character evidence = bad things party did in the past
INADMISSIBLE
Character evidence in Civil Cases
admissible when character of defendant is in issue:
1. Defamation (libel/ slander/slander per se)
2. Child custody
3. Negligent entrustment
4. Misrepresentation
Character evidence in criminal cases – D opens door
a. After plaintiff rests, Defendant may bring in evidence of their own good character but must be for either honesty/truthfulness OR peacefulness
b. Correct trait is based on the crime they are charged with – trying to negate the character trait of the crime
c. If they do admit their good character, then after the prosecution can admit their bad character
character evidence in criminal cases - MIMIC
Motive; Intent; Mistake; ID; Common Plan/Scheme
a. Mistake can also be to show absence of mistake
b. Common plan/scheme = specific/personal/unique to that criminal (like a signature mark)
Hearsay
out of court statement offered to prove the truth of the matter asserted = NOT ADMISSIBLE
Present Sense Impression
Observations
a. Talking about what you’re observing it WHILE you’re observing it
b. Who; what; where
Excited Utterances
Statement made while excited!
then existing state of mind
a. Refers to intent or emotion
b. Statement about future conduct, travel, etc.
c. Statement about emotions
Business Record
record kept in regular course of business
a. Must be done all the time
b. Have to be asking about the entire document
c. Notations, statements transcribed = inadmissible
Dying declaration
a. Statement made in belief of impending death;
b. Statement about why they think they’re dying;
c. Only in homicide or civil cases;
d. At trial, person must be legally unavailable to testify
Statement Against Interest
a. Declarant (party or non party) makes a statement
b. Statement that makes you look liable / guilty
c. Person that made the statement must be unavailable to testify
Admissions
- by party to the case
- statement that would make you look responsible
- person can be available
Adoptive Admissions
silence when a reasonable person would object
Vicarious Admissions
admissions by employees will be admissible against employers
Prior Sworn Inconsistent Statement
a. Under oath, subject to cross examination
b. Bringing in to impeach
c. NOT hearsay – admitted as “substantive evidence”
d. When statement was made under oath, correct answer will be: admissible to impeach AND as substantive evidence
Prior Consistent Statement
if the reason being brought in is to refute or deny that you lied/fabricated a statement
Attorney-Client Privilege
a. Attorney—client relationship – anyone working on behalf of lawyer on your case counts
b. Actual conversation needs to be confidential in nature
c. Privilege lasts forever
d. Not privileged: convos not related to your representation (i.e. about fees) OR seeking advice on committing future crimes
Husband/Wife - Communication Privilege
- Applies to any type of case, civil or criminal
- Asking 1 spouse to disclose confidential COMMUNICATIONS between spouses
- Either spouse can stop the other – mutual
- “tell you” “discussed”
- Survives divorce
Husband/Wife - Testimonial Privilege
- criminal cases only
- must be married at time of trial
- witness spouse can unilaterally decide whether or not they want to testify as to what they know, believe, saw, think, etc.
Doctor-Patient
a. Covers communications made for purpose of medical treatment
b. Other people can be around and still private if they are there for interest of patient or helping with treatment
when does best evidence rule apply
rule applies when document is material to the case and trying to prove contents of writing OR when witness has no other way to corroborate their testimony
Trying to prove contents of doc
i. If document is material + trying to prove contents best evidence = original
ii. When it is material, a copy will be allowed if all effort to find original has been made, and no evidence of tampering
Presumption: copy is okay/authentic – would need evidence of tampering to say otherwise
Lay Witnesses
a. Generally, anyone can be a witness
b. Have to know the difference between a lie and the truth
c. Understand what’s going on
d. Have PERSONAL KNOWLEDGE
e. Can testify to common perceptions (time, speed, etc.)
Expert Witnesses
a. Judge determines someone as expert
b. Experts have to lay foundation – usually proving education/ background using resume
c. Always subject to cross examinations
d. Never subject to judicial notice
e. Crim cases: experts CANNOT state an opinion on D’s mental state
f. Are only considered experts on the subject they have a background in. if they give opinion on a different subject, that isn’t an expert opinion
subsequent remedial measures
- Cannot offer evidence that party fixed something after an injury to prove negligence or liable
- Can be offered to show ownership or control
Offer to Settle/Compromise
- Any statement made as an offer to settle a case is inadmissible to show liability
- Admission + offer = go together so = NOT admissible
- Offer before legal dispute = admissible
Offer to Pay Medical Expenses
- Statement made to pay medical bills also not admissible
- Admissions + offer to pay = severable and are admissible
what is judicial notice
evidence admitted by the judge without additional evidence = evidence not in dispute = taking judicial notice
Once Court takes judicial notice of a fact…
- Criminal Case: Jury MAY accept fact as conclusive
- Civil Case: Jury MUST accept fact as conclusive
