Evidence Flashcards
Evidence is relvant if it…..
has any tendency to make a material fact more probable or less probable than would be the case without the evidence
Generally, other accidents involving D are inadmissible becuase they suggest nothing more than general carelessness, what is the exception to this?
Other accidents may be admissible if they occurred under substantially similar circumstances, but can only be admitted to prove either 1) existence of danger, 2) causation or 3) prior notice to D
What is the VA distinction to the exclusionary rule regarding settlement of disputed civil claims?
In VA, STATEMENTS OF FACT made DURING SETTLEMENT in CIVIL LITIGATION ADMISSIBLE
In Fed, admissible in a later criminal case, if settlement dispute was with government regulatory agency
Both JDXs allow settlement evidence to impeach for bias
What is the nolo contendre plea distinction in VA?
VA allows criminal D’s nolo contrendre plea to be admitted against him in civil litigation
What does the Rape Sheild Law Do? What are the exceptions?
opinion or repurtation testimony about the victim’s sexual propensity and evidence of specific sexual behaivor of the vicim is ordinarily inadmissible.
Cirminal Case Exceptions: 1) used to prove that someone other than D was the source of the semen
2) victim’s sexual activity with D, if consent is asserted
3)
Civil Case Exception: if the probative value substantially outweighs the danger of harm to the victim
What are the three situations in which character evidence is a esstial element of the claim or defense and therefore admissible
1) Tort: Negligent hiring or entrustment
2) Defamation
3) Child custody dispute
How can the prosecution use specific bad acts of the Defendant in his case-in-chiefl?
Never, if the only purpsoe is to suggest that because of D’s bad character he is more liekly to have committed the crime
But, may be admissible to show Motive Intent Mistake or accident (or lack thereof) Identity Common Scheme or Plan
When can documents authenticity be inferred under the ancient document rule?
1_ Doc is at least 20 years old (30 years old in VA)
2 Facially free of deficiencies
3 found in its place of natural custody
What are the best evidence rule, “escapes”?
1) Voluminous records can be presented through summary or chart, provided the originial records would be admissible and they are available for inspection.
2) Certified copies of public records
3) Collateral documents (docs the judge determines to not important to the case)
What is the Dead Man Statute?
applicable in some states:
1) in a cilv action
2) an interested witness
3) is incompetent to testify
4) against the estate of a decedent
5) concerning communications or transactions between the interested witness and the decedent
VA, abolished dead man’s rule. such testimony is allowed, if corroborated by some other evidence
Lay Opinion is admissible if:
it’s rationally based on witnesses knowledge, AND helpful to deciding a fact
Expert Witness testimony is admissible if:
Qualified: (Education and/or experience)
AND
Proper Subject Matter: (scientific, technical or other specilized knowledge that will be HElpful to jury in deciding a fact (opinion is not helpful if its propositions are obvious)
What are the elements to satisfy the buisness records hearsay exception?
1) records of a business of any type
2) made in the regular ourse of business
3) the business routinely keeps such records
4) made contemporaneous (at or about the time of the event recorded)
5) consists of statements observed by the employees
What is the present sense impression hearsay exception and the VA distinction?
Description of an event made while the event is occuring or immediatly thereafter. In VA has to be contemporaneous cannot be made immediately after
What are the grounds for unavailability for hearsay exceptions?
1) privilege
2) absence from JDX (cannot be found w/ due diligence
3) illness or death
4) lack of memory
5) stubborn refusal to testify
What is the 6th amendment confrontation clause rule?
prosecution cannot use a hearsay statement against a criminal defendant (even if it falls within a hearsay exception) if the statement is TESTIMONIAL the declarant is unavailable and the defendant had no opportunity for cross examination
What are the attorney client privilege excpetions?
1) future crime or fraud
2) legal advice at issue
3) attorney client dispute
What is the VA distinction to the Physician Patient Privilege?
Applicable only in civil trials in VA (available in both criminal and civil in Fed)
What is the dying declaration VA distinction?
Not available in civil cases, only available in homicide cases. (available for homicide cases and civil cases in Fed)
Which of the following relationships between a declarant and a party might be sufficient for a vicarious admission?
A Partners
B Joint tenants
C Co-parties
D Spouses
Partners
Under the “past recollection recorded” exception to the hearsay rule, certain writings made by a declarant at or near the time of the event in question may be admissible. When does the exception apply?
The exception applies where the witness’s memory of the event cannot be revived by looking at the writing.
When a defendant has introduced evidence of a bad character trait of the alleged victim, the prosecution may counter with what type of evidence?
Reputation evidence about the D’s good or bad character for the same trait OR opinion evidence about the D’s bad character for the same trait.
IN VA, OPINION TESTIMONY INADMISSIBLE
The Federal Rules of Evidence permit a party to cross-examine a witness regarding the witness’s prior act of misconduct only where the act:
Probative for truthfulness
What may a judge NOT consider when deciding whether or not to admit evidence?
judge cannot consider whether evidence will make it more likely that P will win
When a judge judiciably notices a fact does the man its conclusively established?
In civil cases YES
In criminal cases NO, but burden of producing evidence has been satisfied
