Evidence Flashcards
Admissibility of Affidavits
Generally inadmissible, except to impeach
Probative Value Balancing Test
The court must determine whether the probative value of the evidence is substantially outweighed by—
1) the risk of—
a) unfair prejudice,
b) confusion of issues, or
c) misleading jury; or—
2) considerations of—
a) undue delay,
b) waste of time, or
c) needless cumulative evidence.
Competency to Testify
1) personal knowledge
2) capable of understanding truth
Limitations of Cross-Examination
Limited to subject of direct, and issues affecting witness credibility
Distinguishing Firsthand Knowledge
a) distinguish between hearsay and firsthand knowledge (man testifying he saw teenager run from convenience store is firsthand knowledge)
b) distinguish between best evidence rule and firsthand knowledge (event perceived by witness is firsthand knowledge and admissible if content of writing is not at issue)
c) police officer:
1) what witness told him is hearsay;
2) what he observed is firsthand knowledge
Inference vs Presumptions
1) An inference may be accepted or rejected by the trier of fact.
2) A presumption must be accepted by the trier of fact—thus why presumptions are disfavored in criminal trials, i.e. they shift burden.
Judicial Notice
a) Judicially noticed fact is one not subject to reasonable dispute
b) Judge may take judicial notice of laws from any state or foreign country.
c) Civil case: jury must accept as conclusive
d) Criminal case: jury may, but is not required, to accept as conclusive
Permissibility of Leading Questions
Permitted—
1) on cross;
2) direct-hostile witness or adverse party;
3) aid loss of memory, immaturity, or mental weakness
Hearsay
Inadmissible out-of-court statement/declaration, intended to prove the truth of matter asserted (even out-of-court statement of a party/witness on stand, unless exception applies).
Hearsay Exceptions
i. Ancient documents (20 years old)
ii. Business records: made in course of regularly conducted business
iii. Catchall: if trustworthy (transcript where college closed with facts
established)
iv. Dying declaration: believed death imminent; stress or excitement of event;
must be unavailable
v. Markets report
vi. Medical diagnosis or treatment: not statement blaming defendant
vii. Past record recorded
viii. Pedigree
ix. Present bodily condition / state of mind:
1) then-existing mental, emotional, or physical condition;
2) availability immaterial
x. Present sense impression:
1) immediately after event;
2) availability of declarant immaterial (bystander declarant does not need to be available)
xi. Prior testimony (deposition or hearing):
1) reliability – under oath, opportunity to cross;
2) defendant need not be party in prior proceeding if successor;
3) must be unavailable unless used for impeachment, credibility, perjury, refresh recollection
xii. Public records:
1) matters observed by public officials in course of duties;
2) must have firsthand knowledge
xiii. Proof of utterances or writings
xiv. Recorded recollection
xv. Statement/declaration against interest:
1) against one’s penal, pecuniary or proprietary interests;
2) must be unavailable
xvi. Treatises:
a) used on cross with expert, or
b) relied on expert in direct;
c) read into evidence for truth of matter but not admitted
- Florida:
a) permitted in cross of expert regarding validity of opinion;
b) But not admissible for substantive purposes
Hearsay Exceptions: Unavailability Required (D2P2)
i) Dying declaration
ii) Declaration against interest
iii) Prior testimony from deposition or hearing (unless used for impeachment, credibility, perjury, refresh recollection)
iv) Pedigree
Hearsay Exceptions:
Availability is Immaterial (PR)
A) Presumedly truthful utterances
i) Medical diagnosis/treatment
ii) Excited utterance
iii) Present—
1) bodily condition
2) state of mind
3) then-existing condition
4) sense impression
B) Records/Writings
i) Ancient documents
ii) Treatises
iii) Vital statistics records
iv) Public records
v) Business records
vi) Family records (inscriptions on portraits, tombstones)
vii) Recorded recollectionNon-Hearsay (CAPP)
a) Course of—
i) dealing,
ii) usage of trade, or
iii) performance
b) Admissions
i) Admission of a Party -
1) words or acts of party offered against him;
2) observations of party’s actions (i.e., radar)—not admissions;
3) pleadings
ii) Adoptive Implied Admission -
1) tacit admission; reasonable person would have denied;
2) failure to respond is an admission
iii) Co-Conspirator Admission - Made during course or in furtherance of conspiracy
iv) Vicarious Admission - Made—
1) during employment or agency relationship and
2) in relation to a matter within the scope of the employment/agency relationship
c) Prior Outward Manifestations
i) Effect on Listener - Predecessor’s statement to show effect on the listener (party/witness)
ii) State of mind or feelings shown circumstantially through declarations
iii) Prior Witness Identification (witness must be available)
d) Personal—
i) Knowledge
ii) Verbal Acts - Tortious words of slander are oral acts, defamatory statements
Admissibility of Character or Character Trait
1) Inadmissible—
a) to show conformity;
b) in civil cases where character is an issue; or
c) if using other crimes, wrongs, acts to prove character or—by circumstantial evidence—to show conformity.
2) Admissible—
a) to show conformity when defendant opens door, upon which the prosecution can use to rebut;
b) in any case—civil or criminal—where character is an essential element of charge, claim, or defense;
c) using other crimes, wrongs, or acts to show M.I.M.I.C.; and
d) for impeachment on cross-examination.
M.I.M.I.C.
Other crimes, wrongs, acts are admissible to show—
a) motive (as well as knowledge and opportunity),
b) intent,
c) mistake (i.e., absence of mistake or accident),
d) identity, and
e) common [plan or scheme] (as well as preparation)
