Evidence Flashcards
Objections
Calls for narrative Unresponsive Leading questions Assumes facts not in evidence Argumentative Compound
Must be timely and specific or it is waived
Logical relevance
Any tendency to make a material fact of consequence more or less probable
Similar Happenings
Usually irrelevant
Unless used to show 1 causation 2 preexisting condition 3 intent 4 rebut defense of impossibility 5 habit 6 routine practice 7 industrial custom
Legal Relevance
The probative value of the evidence is outweighed by its prejudicial effect.
Admissibility of liability insurance
Inadmissible to prove culpable conduct. May be admissible for some other reason, such as to prove bias, prejudice or control.
Character evidence - civil
Inadmissible unless type of case where character is the issue (defamation, negligent entrustment, child custody)
Opinion, reputation and specific acts can be used in character related cases.
Prior sex assaults and child molestations are admissible to prove conduct
Character evidence - crim
Only if D opens the door.
Can only ask spec acts in cross not on direct
Admissibility of specific acts
Mimic
Motive Intent Mistake Identification Common scheme
Impeaching a witness
Contradiction Prior inconsistent statement Bias/ interest/ motive Prior conviction Non-conviction acts Truthfulness (reputation, opinion) Sensory deficiencies
Prior inconsistent testimony
Cross exam or extrinsic evidence
Self authenticating
Certified public docs Acknowledged docs Official pubs Newspapers Periodicals Bus records Trade inscriptions
Lay opinion
Admissible if based on w’s perceptions and helpful to jury or trier of fact.
Expert opinions
Helpful to jury Qualified Factual basis Reasonable degree of certainty Reliable principles
Judicial Notice
Generally known in jx or
Capable of accurate determination by source whose accuracy cannot reasonably be questioned.
Civil - conclusive
Crim - Jury may accept. This means any jury instructions will state that the jury may but is not required to accept the judicially notified fact.
Burdens of proof
Crim. Beyond reasonable doubt
Civil. Preponderance of the evidence.
Hearsay
Out of court statement offered to prove the truth of the matter asserted.
Hearsay exemptions
These are NOT hearsay
- Facts of independent legal significance
- Effect on hearer
- Speakers knowledge of facts
- State of mind
- Admission by party opponent
- Vicarious party admission
- Adoptive admission
- Prior inconsistent statement under oath
- Prior consistent statement to rebut charge of lying
Hearsay Exceptions req unavailability
Hearsay but allowed under circumstances
Former testimony Dying declarations Statement against interest Personal / family history Statement offered against person procuring Declarant unavailable
Unavailability.
- Privilege
- Death illness
- Cannot procure
- Refusal to testify
- Failure of memory
Dying declarations
Civil or homicide
Believe he is about to die and describes cause or circumstance leading to injury
Other hearsay exceptions
Present sense impression Ancient doc Past physical condition Excited utterance Recorded recollection State of mind Public record Business record Judge of previous conviction Learned treatises
Recorded recollection
W once had personal knowledge Made by w or under w's direction Written when memory was fresh Accurate when made W now doesn't remember
Learned treatises
If court finds it reliable May be read into evidence not as an exhibit.
Attorney client privilege
Communication between attorney and client or rep. Intended by client to be confidential and made to facilitate legal services is confidential
Prob extends beyond death
Applies to consultants hired by attorney to facilitate legal services
Not confidential if made in presence of 3rd party
Spousal testimony privilege
Held by witness not spouse on trial
Cannot be held in contempt for refusing to testify against spouse.
In criminal cases
Key difference between this one and communication priv. Is this extends to everything. If it’s not testimony about communication your spouse can choose to testify, you can’t stop him or her.
Spousal confidential communication privilege
Protects all communication during marriage. Legal marriage at time of comm
Both spouses hold priv and can prevent testimony of the other.
