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Fall 14 > Evidence > Flashcards

Evidence Flashcards

1
Q

Evidence is relevant if:

Logical Relevance

A
  1. It has a tendency to make a fact more or less probable than it would be without the evidence; &
  2. The fact is of consequence in determining the action
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2
Q

Balancing Test (Legal Relevance)

A

Evidence may be excluded if its value is substantially outweighed by one or more:

a. Danger of: unfair prejudice, confusing the issues, misleading jury
b. concerns of undue delay, waste of time, needless presentation of cumulative evidence

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3
Q

Evidence of Flight

A

probative value as circumstantial evidence of guilt depends on degree of confidence w/ which 4 inferences can be drawn:

  1. ∆ behavior –> flight
  2. flight –> consciousness of guilt
  3. consciousness of guilt –> consciousness of guilt concerning crime charged
  4. consciousness of guilt concerning crime charged –> actual guilt of crime charged
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4
Q

Categorical Policy Exclusion

A
  1. subsequent remedial measures
  2. settlement offers
  3. offers to pay for med & similar expenses
  4. pleas
  5. proof of liability insurance
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5
Q

Form Problems (Qs not allowed)

A
  1. compound
  2. repetitive/duplicate
  3. argumentative/harassing
  4. assuming facts not in evidence
  5. asking witness to speculate - estimations ok
  6. overly broad/confusing
  7. narrative - exception: client is going to lie
  8. leading - ok on cross or hostile or young witness
  9. non responsive
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6
Q

Witness Competency Requirements

A

everyone presumed competent unless otherwise provided
Requirements:
1. ability to communicate in some way
2. ability to perceive events which they’re testifying about (personal knowledge)
3. ability to recollect/remember
4. honesty/understanding of obligation to tell the truth

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7
Q

Dead Man’s Act/Statute

A

claiming against someone who is dead; you can’t testify because they can’t.
not around anymore/not a fed statute. wouldn’t apply unless it’s a diversity case & it’s state law

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8
Q

Children as witnesses (competency requirements)

A

Whether the child can:

  1. Perceive & remember events accurately
  2. Communicate them intelligibly
  3. Understands the difference between truth/falsehood & obligation to tell truth; &
  4. Respond intelligently to Q’s on cross-exam
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9
Q

What is hearsay?

A

An out-of-court statement offered to prove the truth of the matter asserted

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10
Q

Out of Court Statements Not Offered for Their Truth

A
  1. offered as circumstantial evidence of declarant’s state of mind
  2. offered to show effect on listener
  3. legally operative stmts/verbal acts
  4. inconsistent stmts offered to impeach
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11
Q

Statements of a Party Opponent (hearsay exemptions)

A
  1. party’s own words
  2. adoptive admissions
  3. stmts by agents
  4. co-conspirators stmts
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12
Q

Past Statements of Witnesses and Past Testimony

Hearsay Exemptions

A
  1. prior inconsistent stmt not under oath
  2. prior inconsistent stmt under oath
  3. prior consistent stmt offered to rebut charge of recent fabrication or improper motive
  4. prior stmt of identification
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13
Q

Hearsay Exceptions When Declarant Is Unavailble

A
  1. former testimony
  2. stmts against interest
  3. dying declerations
  4. forfeiture by wrongdoing
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14
Q

Hearsay Exceptions When Declarant’s Unavailability Is Irrelevant

A
  1. excited utterance
  2. present sense impression
  3. present state of mind
  4. stmt of past or present bodily condition for diagnosis/treatment
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15
Q

Documentary Exceptions

A
  1. past recollection recorded
  2. business records
  3. public records & reports
  4. records of births, marriages, death, etc.
  5. ancient documents
  6. learned treatises
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16
Q

Present Recollection Revived

A

used to refresh before or after testifying; now that you remember you’re testifying like any other witness.

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17
Q

Residual Exception (Hearsay)

A

elements:

  1. = guarantees of trustworthiness
  2. stmt offered as evidence of material fact
  3. more probative than any other evidence proponent can obtain through reasonable efforts
  4. admitting serves purpose of rules & interests of justice
  5. admissible only w/ reasonable notice to adverse party

declarant doesn’t have to be unavailable, but if they are you usually wont meet requirements

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18
Q

Party’s Own Words - exemption

A

stmts of party opponent

  1. was made by the party in an individual or representative capacity
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19
Q

Adoptive Admissions - exemption

A

stmts of party opponent

stmts party manifested that it adopted or believed (or failed to protest) to be true

admission by silence:

  1. heard & understood by party
  2. party at liberty to respond
  3. circumstances naturally called for response
  4. party failed to respond
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20
Q

Statements by Agents - exemption

A

stmts of party opponent

  1. made by a person whom the party authorized to make a stmt on the subject
  2. made by party’s agent or employee on a matter w/in scope of that relationship while it existed
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21
Q

Co-conspirators Statements - exemption

A
  1. stmt was made in course of conspiracy
  2. stmt was made in furtherance of conspiracy

conspiracy incl. declarant & party its being offered agaisnt

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22
Q

Prior Inconsistent Statement of Witness Under Oath

A

admissible for impeachment & substantive

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23
Q

Prior Inconsistent Statement of Witness Not Under Oath

A

impeachment only.

witness given chance to explain & adverse party gets chance to examine witness about it

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24
Q

Prior Consistent Statement of Witness Offered to Rebut Charge of Recent Fabrication or Improper Motive

A
  • can be offered for its truth
  • doesn’t have to be under oath
  • usually no reason to bring in unless stmt attacked
  • time limit: must show stmts were made prior to improper motive/fabrication
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25
Q

Prior Statement of Identification By The Witness

A

admissible provided person who made identification is a witness in this proceeding & subject to cross exam

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26
Q

A declarant is considered to be unavailable as a witness if the declarant:

A
  1. ct rules privilege applies
  2. refuses to testify
  3. testifies to not remembering
  4. cannot be present or testify bc of death or then-existing infirmity, phys or mental illness; or
  5. absent & stmts proponent hasnt been able to (& has made a reasonable effort) to procure declarant’s attendance or testimony
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27
Q

Former Testimony

A

declarant must be unavailable.

  1. must’ve been under oath
  2. now offered against party whose predecessor in interest had chance & similar motive to develop it by direct or cross exam

crim cases: party you’re offering it against must’ve been a party in previous prosecution & opportunity to cross examine

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28
Q

Statements Against Interest

A

declarant must be unavailable.

  1. stmts against penal or pecuniary interest at time made
  2. based on personal knowledge
  3. only self incriminating portions of stmt admissible

crim: must be supported by corroborating circumstances that clearly indicate trustworthiness

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29
Q

Dying Declarations

FRE

A

declarant must be unavailable.

  1. in homicide prosecution or civil case
  2. stmt made under fear/belief of imminent death
  3. related to cause or circumstances of that death
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30
Q

Forfeiture By Wrongdoing

A

declarant must be unavailable.

stmt offered against a party that wrongfully caused (or acquiesced in wrongfully causing) declarant’s unavailability as a witness, & did so intending that result.
wrongdoing doesn’t have to be crim.

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31
Q

Excited Utterance

A

declarant’s unavail irrelevant.

  1. relates to a startling /exciting event or condition
  2. while still under stress of excitement (contemporaneously w/ event)

rationale: no time to fabricate

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32
Q

Present Sense Impression

A

declarant’s unavail irrelevant.

  1. describes or explains event or condition
  2. while or immediately after perceiving
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33
Q

Present State of Mind

Then-Existing Mental, Emo, or Physical Condition

A

declarant’s unavail irrelevant.

stmts of declarants then-existing state of mind (motive, intent, plan) or emo, sensory, or phys condition (mental feeling, pain, bodily health)
Hillmon doctrine incl intent.

not incl stmt of memory or belief. no inference drawn.

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34
Q

Statement of Past or Present Bodily Condition for Diagnosis/Treatment

A

declarant’s unavail irrelevant.

  1. made for, & reasonably pertinent to, med diagnosis or treatment; &
  2. describes med history; past or present symptoms/sensations; their inception; or gen cause.
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35
Q

Past Recollection Recorded

A
  1. re: matter witness no longer remembers
  2. created while fresh in memory
  3. accurately reflects knowledge
    Elements:
  4. first hand knowledge
  5. stmt made at/near time of event while witness had clear/accurate memory of it
  6. now lacks present recollection of event
  7. must vouch for accuracy of written memo
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36
Q

Business Records

A
  1. personal or transmitted knowledge
  2. kept by regularly conducted bizz
  3. reg practice to record
  4. qualified testifying witness
  5. no lack of trustworthiness

entires made in reg course of business (at/near time of event) by a person who has a business duty to accurately record the info & who has personal knowledge or receives info from someone with personal knowledge & business duty to accurately report

absence of record also admissible.

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37
Q

Public Records & Reports

A

A. record or stmt of public office sets out:
1. office activities;
2. matter observed while under legal duty to report, but not incl in a crim case a matter observed by law enforcement personnel; or
3. in civil case or against gov in crim case, factual findings from legally authorized investigation;
AND
B. opponent doesn’t show that the source of info or other circumstances indicate lack of trustworthines

• maintained by gov entity

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38
Q

Ancient Docs

A

stmts made in docs more than 20 yrs ago. found in place where would likely be found if authentic

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39
Q

Subsequent Remedial Measures –

Inadmissible/Admissible for

A

Inadmissible to prove:

  1. negligence
  2. culpable conduct
  3. product defect
  4. need for warning or instruction
Admissible for:
1. Impeachment
If, disputed--
2. ownership
3. control
4. feasibility of precautionary measures

Rationale: encourage remedies

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40
Q

Settlement Offers –

Elements, Admissible, Inadmissible

A

Elements:

  1. Claim
  2. Claim disputed re: liability/amount

Inadmissible:

  1. compromise/attempts to compromise a disputed claim & conduct/stmts during negotiations to prove validity/amount of disputed claim
  2. impeachment by prior inconsistent stmt or a contradiction

Admissible:

  1. proving witness bias/prejudice
  2. negating contention of undue delay
  3. proving effort to obstruct crim investigation or prosecution
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41
Q

Offers to Pay for Med & Similar Expenses

A

Inadmissible:
1. offers to pay/actually paying med expenses to prove liability
Admissible:
1. any other relevant purpose

doesn’t cover apologies, attempts to compromise, or stmts made during negotiations

Rationale: product of human impulse; encourage assistance of others

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42
Q

Pleas

A
  • applies in civ & crim
  • always barred except where specifically permitted: by ∆ on his own behalf

Inadmissible: (against ∆)

  1. guilty plea later w/drawn
  2. nolo contendere plea
  3. any unsuccessful guilty plea or any stmts regarding it
  4. stmts in plea negotiations made w/ prosecutor (no impeachment)
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43
Q

Proof of Liability Insurance

A

Inadmissible:
to show liability, fault or ability to pay

Admissible, other purposes such as:

  1. proof of witness bias/agency
  2. ownership or control, if disputed
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44
Q

competency of a witness - religious beliefs/opinions

A

not admissible to attack/support credibility. ok for showing bias

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45
Q

lay opinion requirements

A
  1. helpful to trier of fact
  2. based on perception of witness
  3. no specialized knowledge, training, or skill needed
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46
Q

expert opinion requirements

A
  1. helpful to trier of fact
  2. properly qualified
  3. relied on materials which reasonable experts rely upon (duabert factors)
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47
Q

duabert factors

A
  1. Whether the technique “can be (and has been) tested”
  2. Whether it has been “subjected to peer review & publication”
  3. The known or potential rate of error
  4. The existence & maintenance of standards controlling the technique’s operations; and
  5. “General acceptance” in the relevant scientific community
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48
Q

if expert is testifying regarding some novel theory…

A

expert’s opinion must be based on the reliable methods or processes of scientific thought; and
those methods have to be reliably applied to the facts

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49
Q

learned treatises

A

admissible if established as reliable & it was utilized in examining or cross-examining an expert witness OR if the expert relied on the treatise during testimony

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50
Q

Subsequent Remedial Measures - 3rd parties

A

not barred; but may not be relevant
probative value of most SRM is they amount to admission by ∆ that previous conduct was unsafe , which may not make it past 403

51
Q

Settlement Offers - rationale

A
  1. encourage parties to drop their guard & talk freely w/o fear that confession will be used at trial
  2. settle out of ct & lessen cost of litigation to society
52
Q

pleas - rationale

A

encourage guilty pleas

53
Q

pleas - exceptions

A

Prosecution can offer:

  1. perjury (stmt under oath, on record, in counsels presence)
  2. complete partial account of plea discussion
54
Q

Proof of Liability Insurance - rationale

A
  1. unlikely insured are more careless/ or careful
  2. jury might otherwise seek deep (insured) pocket or reduce recoveries to insured π
  3. encourages insuring & avoids windfall for opponent of an insured party
55
Q

definition of “statement”

A

a person’s oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.

Did the declarant assert (communication) the facts?

56
Q

when is the confrontation clause triggered?

A

must be criminal case.

  1. someone gives testimony in court against ∆
  2. testimonial out of court hearsay stmt is offered against ∆

stmt inadmissible unless ∆ has chance to cross-exam

57
Q

confrontation clause - exceptions

A
  1. dying declaration
  2. there has been a prior opportunity & declarant is unavailable
  3. forfeiture by wrongdoing
  4. declarant is a witness
58
Q

confrontation clause - forefeiture by wrongdoing exceptions

A
  1. HOMICIDE: only when ∆ has killed victim w/ intention of making them unavailable as a witness in a proceeding against them
  2. DOMESTIC VIOLENCE: may come in where there’s reputation/prior instances; safe assumption ∆ purposely made them unavailable
59
Q

factors in determining if a stmt is testimonial / non-testimonial

A
  1. formal or informal setting?
  2. custody?
  3. formal interrogation?
  4. PURPOSE: was it a reaction/response to an ongoing emergency (non) OR to gather/give evidence (testimonial)
60
Q

911 calls & reports re: confrontation caluse

A

Reports considered testimonial bc they’re prepared solely for purpose of evidence against ∆ at trial (except when they are a basis for expert opinion)
Stmts made to police or 911 operators for purposes of responding to emergency are not testimonial

61
Q

Bruton Doctrine (confrontation clause)

A

concerns out of ct admission made by an accomplice tried jointly w/ ∆
words are admissible against accomplice, but most likely will fail confrontation clause against ∆
violates ∆’s rights when co∆’s confession admitted - even w/ limiting instructions

62
Q

approaches to dealing with co-∆’s (bruton doctrine)

A
  1. Separate trials
  2. Separate juries
  3. ∆1 agrees to testify
  4. Redaction: (not ok to replace name w/ “deleted” or the like. If we want them tried jointly we can be vague about other participants (otherwise it is too obvious & just like leaving the name in)
  5. Bench trial (but ∆’s have right to jury trial)
63
Q

A lay witness is generally allowed to give an opinion on an area which is in the ordinary understanding of a lay person:

A

i. Weather
ii. Speed
iii. Intoxication
iv. Sanity
v. Handwriting
vi. Distance

64
Q

what is judicial notice?

A

asking a court to accept a fact as true w/o needing to introduce evidence

65
Q

kinds of judicially noticeable facts

A
  1. facts of common knowledge

2. facts capable of verification by reference to a source of unquestioned authority

66
Q

Consequences of Judicially Noticed Fact

A

civil cases:
- fact is conclusive
- ct will instruct juror that fact is est for purpose of this trial & you must accept it as true
crim cases:
- fact not conclusive
- fact considered evidence that juror can give as much weight as they think is warranted & may disregard

67
Q

marital communications priv (general rule)

A
  1. protects confidential comm made between spouses during marriage
  2. priv belongs to both
  3. only applies to what is said, written, or actions intended to be communications (not underlying facts)
68
Q

spousal testimonial priv

A
  • rule: cannot force one spouse to testify against other in crim case. priv belongs to witness-spouse
  • applies in crim cases
  • if spouse chooses to testify, still cant waive marital priv
69
Q

marital communications priv exceptions

A
  1. ∆ on trial for domestic violence, threats to minor children or spouse. spouse may testify re: comms re: that crime
  2. crime-fraud: enlisting spouse in crim scheme you’re later prosecuted for. comms (after spouse joins) not protects
70
Q

attorney-client priv - scope

A
  1. priv is client’s
  2. protects confidential comms made to facilitate professional services
  3. protects only confidential comms (clients intent, precautions taken, waived when disclosed to others)
71
Q

attorney-client priv - inadvertent disclosure

A

When made in a fed proceeding or to a fed office or agency, disclosure does not operate as a waiver in a fed or state proceeding if:

  1. Disclosure is inadvertent;
  2. Holder of priv took reasonable steps to prevent disclosure; &
  3. Holder promptly took reasonable steps to rectify the error
72
Q

attorney-client priv - work product protection

A

tangible material (or its tangible equivalent) prepared in anticipation of litigation or for trial

when lawyer receives info inadvertently - only ethical obligation is to inform sender

73
Q

attorney-client priv - source of fees & client’s identity

A

gen not regarded communications bc preliminary to relationship

exception: identity in some circumstances (police don’t know identity of who they’re looking for)

74
Q

attorney-client priv - gov lawyer

A

same protection

rationale: gov officials need legal advice to perform & its a public interest

75
Q

attorney-client priv - crime-fraud exception

A

seeking attorneys advice on how to perpetuate a fraud or crim conduct (no protection or priv)

comm itself can reveal crime or fraud; external evidence not needed

existence of priv is prelim Q of fact. trial judge can listen in camera review when based on good-faith assertion.

76
Q

privs recognized in fed ct

A
  1. attorney-client
  2. clergy-penitent
  3. psychotherapist-patient
  4. marital comm
  5. spousal incapacity
  6. 5th A right against self-incrim
77
Q

character evidence - crim case

general rule

A

not admissible to show propensity

78
Q

character evidence - crim case

exceptions

A
  1. ∆ opens door by putting on evidence of his good character by opinion/rep testimony
    • testimony must be relevant to pertinent character trait
    • prosecution can respond by putting on its own rep/opinion witnesses & cross examining ∆’s witnesses re: specific acts of misconduct
  2. In prosecutions case in chief, it’s offered for some purpose other than to show propensity (MIMICK)
79
Q

character evidence - MIMICK

A 
Motive
Intent
Mistake/absence of (doctrine of chances)
Identity (M.O., reverse 404)
Common scheme/plan
Knowledge
80
Q

Character of Victim

character evidence - crim case

A
  • ∆ can offer evidence of victim’s character for pertinent trait via opinion/rep testimony
  • ∆ offers evidence of his good character -> prosecution can put on evidence of victim’s good character via opinion/rep & ∆’s bad character for relevant trait
  • Homicide case: if ∆ asserts self defense or victim was 1st aggressor, prosecution can put on evidence of victim’s good character via opinion/rep (but not ∆’s bad character since ∆ hasn’t made it about that)
81
Q

Sexual Assault Cases

character evidence - crim case

A

evidence of victim’s prior sexual history admissible:

  1. prior acts w/ ∆ to show consent on this occasion
  2. other acts close in time to alleged assault to show someone other than ∆ is source of phys evidence; or
  3. necessary to safeguard ∆;s constitutional right to fair trial
82
Q

General Rule

character evidence - civil case

A

not admissible, even if ∆ opens door

83
Q

Exceptions

character evidence - civil case

A
  1. character is an issue (defamation, child custody, negligent entrustment, damages in loss of consortium, or wrongful death)
  2. MIMICK + notice
84
Q

Sexual Assault

character evidence - civil case

A

evidence of ∆’s prior acts of molestation or sexual assault are admissible for any relevant purpose in civil cases involving molestation/sexual assault

85
Q

Evidence of Habit

character evidence - civil case

A

evidence of someone’s habit or an orgs routine practice may be admitted to prove that on a particular occasion the person or org acted in accordance with the habit or routine practice.
ct may admit evidence regardless of whether it was corroborated or there was an eye witness

86
Q

modes of impeachment - mistaken

A

lawyer calls a witness mistaken by casting doubt on her powers of perception, memory, or narrative accuracy
- no limit on this

87
Q

modes of impeachment - non character based

A
  1. conflicting evidence
  2. past inconsistent stmt
  3. evidence of bias & prejudice (extrinsic evidence admissible to show)
88
Q

modes of impeachment - character based

A
  1. opinion or reputation testimony
  2. evidence of past convictions
  3. evidence of specific acts (on cross exam only)
89
Q

who may impeach?

A
  • either party can attack a witness’s credibility

* cannot put on evidence of good character if you haven’t been attacked

90
Q

impeachment - character based - opinion or reputation testimony

A

Either party may offer evidence of a witness’s character for untruthfulness. Opponent may then rebut with the witness’s character for truthfulness.

91
Q

impeachment - crimes involving false stmts

A

• can be misdemeanor or felony
• admissible w/o 403
• ct has no discretion to exclude but cannot be too remote (10 yr rule: gen not admissible unless especially relevant)
ex: perjury, fraud, emebezzlement

92
Q

Bias

A

describes relationship between a party and a witness, which might lead the witness to slant his testimony in favor of or against a party

93
Q

Evidence of Bias & Prejudice - Impeachment

A
  • always admissible for impeachment purposes.

* Extrinsic evidence is admissible to show that a witness suffers from prejudice or bias

94
Q

Felonies Not Involving Dishonesty/False Stmt

Impeachment - Evidence of Past Conviction

A
  • crimes punishable for 1yr+
  • 403 applies if ∆ not witness
  • when witness is ∆: can only come in if prosecution can show old crimes more probative than prejudicial. prosecution has burden
  • 10 yr rule
  • can be proved by: cross or direct exam or record of conviction introduced
95
Q

Felonies Not Involving Dishonesty/False Stmt - special balancing test if ∆ is witness

A

factors:
1. nature of the crime (relevant to trait?)
2. time of conviction & witness’ subsequent history (rehab?)
3. similarity between past & charged crime ( - )
4. importance of ∆’s testimony
5. centrality of cred issue
(4 & 5 usually balance out)

96
Q

Prior Bad Acts Involving Dishonesty - impeachment

A
  • not conviction; significant lie
  • extrinsic evidence not admissible. if witness denies, that’s it.
  • convictions 10+ yrs cannot be snuck in here
  • Q must be conducted in good faith
97
Q

juvie records - impeachment

A

we make it hard to get in.
admissible only if:
1. crim case;
2. ∆ not witness/juvie;
3. adult’s conviction for that offense would be admissible to attack his cred; &
4. admitting is necessary to fairly determine guilt or innocence

98
Q

rape shield law - prohibits…

A
  1. evidence offered to prove victim engaged in other sexual behavior; or
  2. evidence offered to prove a victim’s sexual predisposition

not admissible in civil or crim proceedings involving alleged sexual misconduct

99
Q

rape shield law - exceptions for crim cases

A
  1. prove someone other than ∆ was source of semen, injury, other phys evidence;
  2. offered by ∆ to prove consent or if offered by prosecutor; &
  3. evidence whose exclusion would violate ∆’s constitutional right
100
Q

rape shield law - exceptions for civil cases

A

ct may admit to prove victim’s sexual behavior/predisposition if its probative value substantially outweighs the danger of harm to any victim & unfair prejudice to any party

101
Q

rape shield law - complainant as witness

A

can be attacked like any other witness (just not allowed to put on evidence of sexual history)

102
Q

rape shield law - past allegedly false accusation

A

past sexual history being used as impeachment evidence to attack victims cred is not barred

103
Q

rape shield law - ∆’s state of mind

A
  • victim’s prior sexual history is not admissible to show ∆’s state of mind when it is not an issue
  • more likely to come in when there is ambiguity
104
Q

rape shield law - narrative integrity

A
  • concept doesn’t have constitutional significance so ct will interpret narrowly
  • ct will try to find way around it & still have fair trial since point is to protect victim
  • stephens v miller case: “I heard you like it like that”
105
Q

Authentication

A

proponent must produce evidence sufficient to support a finding that the item is what he claims it is

standard: reasonable trier of fact would find that it is what you’re saying it is

106
Q

Authentication Examples

A
  1. testimony of a witness w/ knowledge
  2. non-expert opinion about handwriting (cannot be acquired for current litigation)
  3. comparison by an expert witness or trier of fact
  4. distinctive characteristics & the like
  5. opinion identifying a voice
  6. evidence about a phone convo
  7. evidence about public records
  8. evidence about ancient docs or data compilation
  9. evidence about a process or system
  10. methods provided by a satute or rule (fed/supreme ct)
107
Q

authentication - opinion identifying a voice

A

Can be heard firsthand, recording, electronic transmission. Based on hearing voice at any time under circumstances that connect it w/ alleged speaker

108
Q

authentication - evidence about a phone convo

A

that a call was made to # assigned at the time to:

  1. particular person, if circumstances, incl self-identification, show that the person answering was the one tht called; or
  2. particular bizz, if call was made to a bizz & call related to bizz reasonably transacted over the phone
109
Q

authentication - evidence about public records

A
  • doc was recorded or filed in a public office as authorized by law; or
  • a purported public record or stmt is from the officer where items of its kind are kept
110
Q

authentication - evidence about ancients docs or data compilations

A
  1. is in condition that creates no suspicion about its authenticity;
  2. was in place where likely to be found; and
  3. at least 20 years old when offered
111
Q

authentication - evidence of a process or system

A

evidence describing a process or system & showing it produces an accurate result

112
Q

Self-Authenticating

A

requires no evidence in order to be admitted.

  1. domestic public docs that are signed & sealed
  2. docs w/ certification
  3. official publications (issued by public authority)
  4. newspaper & periodicals
  5. trade inscription & the like
  6. commercial paper & related docs
  7. presumptions under fed statute
113
Q

chain of custody

A
  • may have to prove, in addition to authentication (if other side brings up; judge decided on case by case basis)
  • normally good enough if it supports a finding that item in question is the same item & is in substantially the same condition
114
Q

silent witness theory (authentication)

A
  • photographer not necessary to lay proper foundation for admissibility of proffered photos
  • test: whether photos accurately represent the facts allegedly portrayed in them
  • ability to show process of how photo/video was taken
115
Q

best evidence rule

A

an ORIGINAL writing, recording, or photo is required in order to prove its CONTENTS unless:

  1. all originals lost/destroyed, not in bad faith
  2. original cannot be obtained by any available judicial process
  3. party against whom the original would be offered had control of orig; was put on notice that it’d be subject of proof @ trial/hearing; & fails to produce it; or
  4. it’s not closely related to controlling issue
116
Q

a duplicate is admissible to the same extent as the original unless
(best evidence rule)

A
  1. genuine Q raised about originals authenticity; or

2. circumstances make it unfair to admit the duplicate

117
Q

definition of “original” and “writing” (best evidence rule)

A
  • original: writing/recording itself or any counterpart intended to have the same effect by the person who executed/issued it. for e-stored info: printout or other output readable by sight if it accurately reflects info (no copy & paste)
  • writings: letters, words, numbers, drawings
118
Q

Absence of a Public Record

A
  1. Diligent search failed to disclose a public record or stmt
  2. Testimony admitted to prove
    • Record doesn’t exist; or
    • A matter did not occur/exist, if a public office regularly kept a record or stmt for a matter of that kind; &
  3. In a crim case, prosecutor who intends to offer a certification provides written notice before trial and ∆ does not object
119
Q

compulsory process

A

Provides crim ∆’s w/ meaningful opportunity to present a complete defense. Prosecutor has power to compel witnesses to attend, & 6th A levels playing field for ∆’s

120
Q

compulsory process - 2 factor analysis by court

A
  1. ∆’s critical need for evidence; and

2. existence of “persuasive assurances of trustworthiness”

121
Q

Interlocking confessions

A
  • separate confessions by ∆’s that “interlock”
  • still have right to confront & cross-exam
  • incriminating stmt made by non-testifying co∆ is not admissible at joint trial even where ∆’s own incriminating stmt is admitted
  • rationale: consistency between 2 stmts more harmful to ∆ than inconsistency
122
Q

proper bases of expert opinion testimony

A

an expert may base an opinion on facts or data that she has

  1. been made aware of (before or at hearing); or
  2. personally observed
123
Q

narrative integrity - character evidence crim cases

A
  • not part of MIMICK
  • Evidence of other acts admissible when the evidence is “inextricably intertwined” w/ facts giving rise to charges against ∆. Evidence is necessary for prosecution to offer a coherent narrative re: commission of the crime
124
Q

psychotherapist-patient privilege

A

The psychotherapist-patient privilege protects confidential communications between a patient and a psychotherapist, such as a licensed psychologist, if the communications were made for the purpose of diagnosing or treating the patient’s mental or emotional condition

Fall 14 (3 decks)

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