Evidence 31-40 Flashcards
When may a Lay Witness offer an opinion?
If it is:
Rationally based on the witness’s perception;
Helpful to clearly understand the testimony or to determine a fact in issue;
AND additionally, under the FRE:
Not based on scientific, technical, or other specialized knowledge.
Priority: HIGH
When is Expert Witnesstestimony permitted?
When the:
Witness is qualified as an expert;
Opinion is helpful to the jury;
Witness believes in the opinion to a reasonable degree of certainty;
Opinion is supported by sufficient facts/data;
AND
Opinion is based on reliable principles/methods that were reliably applied.
Priority: HIGH
Expert Testimony
What is reliability based on (FRE vs. CA)?
FRE Daubert/Kumho standard:
Reliability is based on the methodology’s: (1) Publication and peer review; (2) Error rate; (3) Testability; AND (4) Whether it is generally accepted in the field.
CA Kelly/Frye standard:
Reliability is based on whether a methodology is generally accepted in the field.
Priority: Medium
What is Hearsay?
An out of court statement,
That is offered to prove the truth of the matter asserted.
*Hearsay is ONLY admissible if it falls under an exception.
*A statement is an oral/written assertion or nonverbal conduct if intended as an assertion (it MUST assert something).
Priority: HIGH
What is Non-Hearsay?
An out of court statement that is offered to prove something other than the truth of the statement. It IS admissible.
Non-Hearsay includes:
Verbal acts of independent legal significance.
Statements to show the effect on the listener.
A prior inconsistent statement used to impeach.
Circumstantial evidence of the speaker’s state of mind.
Priority: HIGH
What is a Statement by a Party Opponent?
(deemed non-hearsay under the FRE, and a hearsay exception under CA)
Any statement offered against an opposing party,
That either:
Was made by the party in an individual or representative capacity;
Is adopted or believed to be true;
Was made by an authorized person;
Was made by the party’s agent or employee; OR
Was made by the party’s co-conspirator in furtherance of the conspiracy.
Priority: HIGH
Hearsay Exclusion
When are Prior Statements of Identification by a declarant witness deemed Non-Hearsay (under FRE and CA)?
FRE:
If the declarant testifies; AND
If the declarant is subject to cross-examination
CA: Prior statements made are an exception to the hearsay rule if:
It identifies someone who participated in the crime;
It was made at the time of the crime and was fresh in the witness’s mind; AND
Before the evidence of the statement is offered, they testify that they made the identification and that it was a true
reflection of his opinion at the time.
Priority: Low
Hearsay Exceptions / Exclusions
When does a person’s silence constitute an Adoptive Admission?
When:
The person heard the statement; AND
A reasonable person would have denied the statement.
*This is excluded from hearsay (deemed non-hearsay) under the statements made by a party opponent hearsay rule.
Priority: Medium
Hearsay Exceptions / Exclusions
What is a Vicarious Admission?
Admissions made by:
An authorized spokesperson;
A principal or agent made during the scope of the agency relationship - (Not applicable in CA); OR
Co-Conspirators.
*This is excluded from hearsay (deemed non-hearsay) under the statements made by a party opponent hearsay rule.
Priority: HIGH
Hearsay Exceptions
What is a Statement Against Interest, and when is it admissible?
When:
it’s a statement made against one’s own penal, proprietary, or pecuniary interest when made;
the declarant has firsthand knowledge;
a reasonable person in the declarant’s position would have made the statement only if the person believed it to be true; AND
the declarant is unavailable.
*In CA, statements made against one’s societal interests are also admissible.
**Under the FRE, if offered in a criminal case, it MUST be supported by corroborating circumstances that clearly indicate its trustworthiness.
Priority: HIGH
