Evidence Flashcards
What makes evidence relevant?
Makes any pertinent fact more or less probable.
Habit distinguished from character
Habit describes a regular response
Character describes disposition
FRE 406
habit admissible to prove someone acted in accordance with habit on a particular occasion
“Jeff is a carless driver.”
habit or character?
character
“Jeff never slows down for the yield sign at the end of the street.”
habit or character?
habit
Liability insurance permissible?
Not for negligence or ability to pay (public policy)
Yes for ownership/control, impeachment, liability admission
Settlement offers permissible?
Not to prove/disprove validity/amount of disputed claim, or to impeach a witness by prior inconsistent statement/contradiction.
Subsequent remedial measures permissible?
Not for negligence, design defect, need for warning (public policy)
Yes for ownership/control, rebutting a claim that precaution wasn’t feasible, opposing party destroyed evidence
When are settlement offers permissible?
In a criminal case, when addressing statements made during compromise negotiations regarding a civil dispute with a government authority.
(D admissions during civil settlement with SEC are admissible in his criminal trial)
Are offers to pay medical expenses admissible?
No, but accompanying statements of fact are.
Does taking the stand put a D’s character at issue?
No, but it puts his credibility at issue.
When is evidence of prior acts of misconduct admissible?
MIMIC: motive intent mistake (absence of) identify common plan/scheme
ancient document provision
document may be authenticated by evidence that it is:
at least 20 years old
condition doesn’t leave authenticity suspect
found in a place where such a writing would be kept
x-ray authentication
accurate process
machine was in working order
qualified operator
who may identify a voice?
anyone who has heard the voice at any time
best evidence rule
To prove the terms of a writing, if the terms are material, must produce the original writing. Secondary evidence (oral testimony, etc.) admissible only if the original writing is unavailable.
handwritten copies–what type of evidence and when admissible?
secondary evidence
admissible only when originals unavailable
when are leading questions permitted?
on cross
to intro new material
when witness needs aid b/c of memory loss, immaturity, physical/mental weakness
hostile witness
when a past recorded recollection is read into evidence and heard by the jury, is it admitted into evidence as an exhibit?
only when offered by an adverse party
present recollection refreshed and past recollection recorded–hearsay?
present recollection refreshed: not HS b/c not offend into evidence
past recollection recorded: HS, but falls w/in an exception
when is lay witness opinion testimony admissible?
rationally based on witness perception
helpful to a clear understanding of testimony or determination of a fact at issue
not based on scientific, technical, or other specialized knowledge
May lay witnesses testify whether one acted as an agent?
No
May lay witnesses testify whether an agreement was made?
No
When may an expert not give an opinion on the ultimate issue?
When the defendant’s mental state is an element of a crime or defense, an expert may not state an opinion whether the accused had that mental state.
Per federal rules, what are the limits on impeachment?
Anybody may impeach anybody.
Per FRE, does an opportunity to explain or deny need to precede the introduction of a prior inconsistent statement?
No
What discretion does a court have to bar impeachment by evidence of past crimes concerning dishonesty?
None
What convictions are inadmissible?
Those for which conviction or release from jail (whichever later) is more than ten years passed
Does FRE permit an impeaching witness to speak to the character for truthfulness of another witness?
Yes
Is a privilege waived when someone wrongfully discloses privileged information without the privilege holder’s consent?
No
Does a waiver of a joint privilege holder impact the right of the other privilege holder to assert?
No
Does physician-patient privilege apply to an exam made at an attorney’s request?
No, because no treatment is contemplated.
Exceptions to attorney-client privilege
attorney’s services were sought to aid in planning/commission of something the client should have known was crime or fraud
regarding communication relevant to an issue between parties claiming through the same deceased client
communication relevant to an issue of breach of duty in a dispute between attorney and client
Qualifications for physician-patient privilege
professional relationship exists
info acquired in course of treatment
info necessary for treatment
Physician-patient privilege in personal injury suit?
No: the patient put his physical condition at issue
Ho long does spousal immunity last?
Length of the marriage (refusing to testify against spouse)
How long does privilege for confidential marital communication last?
Always (can’t divulge things said within marriage)
When no spousal privilege or immunity applies
Legal action between spouses, cases involving crimes against the testifying spouse or either spouse’s children
past recollection recorded doctrine
A party seeks to read into evidence the contents of a writing that was made or adopted by the witness. Requires foundation be laid.
Is a business record prepared in anticipation of litigation admissible under the business records HS exception?
No; must be prepared in the regular course of business.
What type of HS is an admission by a party opponent?
Non-HS.
If a party fails to respond to accusatory statements when a reasonable person would have spoken up, is that silence admissible?
Yes, as an admission, therefore non-HS.
When may the statement-against-interest HS exception be applied?
Declarant unavailable
Are plea bargains admissible?
Yes, as non-HS admissions if followed-through; withdrawn plea bargains, no los, etc. are not admissible.
What type of HS is an admission by a party opponent?
Non-HS
Is testimony regarding a defendant’s attempt to bribe a witness admissible?
Yes, as a non-HS admission.
What are the hearsay exemptions?
admissions by party opponents
prior statements:
- inconsistent (if under oath at prior proceeding)
- consistent (if rebutting charge of lying, and made before motive to exaggerate)
- prior id: if testifying and subject to cross
HS exceptions
declarant availability irrelevant
present sense impression excited utterance then-existing emotional, physical, mental state medical diagnosis/treatment past recollection recorded business record public record
May police reports be admitted as public records in criminal cases?
No
When may a past recollection recorded be introduced, and on what terms?
attempt to refresh failed
witness wrote when event was fresh
witness may read it into evidence
only an opponent may admit the document into evidence
“I have a headache.”
“I had a headache.”
Which qualifies for HS exception?
“I have a headache”
Then-existing mental/emotional/physical state
Why are excited utterances permissible HS exceptions?
Excitement precludes propensity to lie
HS exceptions
declarant unavailable
PRISM Privilege (assertion) Refusal (to testify) Incapacity Subpoena (failure to comply) Memory (lack thereof)
Qualifications for dying declaration
HS exception declarant unavailable must concern cause of death made when death believed imminent only civil + criminal homicide
In what types of matters are dying declarations admitted?
civil + criminal homicide
Is character evidence admissible in civil cases?
Only when directly at issue, i.e. defamation.
When and on what terms is a criminal defendant permitted to introduce evidence of good character?
At any time, when concerning a character trait pertinent to the charge (to support probability of innocence).
When and how may courts permit evidence of a bad character trait of a victim?
Reputation and opinion evidence – NOT specific acts – may be offered when relevant to a charge or defense.
When are other crimes admissible as identity evidence?
When they show a very unique style amounting to a signature.
Using a specific pearl knife is a signature; throwing a brick through a window is not.
When does the Confrontation Clause block HS testimony?
offered against the accused
declarant unavailable
statement was testimonial
accused has no opportunity to cross the statement
When is a statement non testimonial?
When the primary purpose of interrogation is to enable the police to help in an ongoing emergency.
Think 911 call
When is a statement testimonial?
Primary purpose is to establish or prove past events potentially relevant to a later criminal prosecution.
If a girl is attacked by her boyfriend, the police come and put him in the back of a car, then question her, are the girl’s statements testimonial?
Yes: the emergency is resolved because the boyfriend is locked up, and she is describing past events.
If a girl is attacked by her boyfriend, the police come and put him in the back of a car, then question her, and the police want to testify as to her statements when she is unavailable at the boyfriend’s trial, may they so testify?
While the girl’s statements are not barred by hearsay, the statements violate the Confrontation Clause because they are testimonial.
May a treatise be used as substantive or impeachment evidence?
Both
May an expert be cross-examined with a treatise?
Yes
Is a grand jury statement admissible in a subsequent court proceeding as substantive or impeachment evidence?
Both
Does prior grand jury testimony qualify under a HS exception?
No; it’s admissible non-HS
May a witness be asked about a guilty plea she accepted?
Yes; she’s not the defendant and she accepted.
The rule only applies to offers and withdrawn pleas.
When may specific acts of misconduct be offered to attack a witness’ character for truthfulness?
Only on cross
While cross examining D for assault and battery, prosecution asks whether he was convicted of fraud within the past year. Permissible?
Yes: D took the stand, so his credibility and penchant for truthfulness are relevant. Fraud is a crime of dishonesty.
Does a prior identifying statement constitute hearsay?
Not if the witness testifies and is subject to cross.
Foundational requirement for inconsistent statements during impeachment
Witness must be given opportunity to explain or deny
HS qualification for prior inconsistent statements
made under oath: permissible non-HS
not made under oath: HS
