Evidence Flashcards

Question

Juror testimony

Answer 1

NOT before his own jury, NOT about manner in which reached decision - statements made, thought processes, votes taken. MAY about improper outside influences - extraneous prejudicial info, outside influence, clerical error.

Answer 2

Can't bring in extrinsic evidence on collateral matters in order to impeach. OJO! bias or prejudice, sensory defects never collateral, always material, so extrinsic evidence ok

Answer 3

ALWAYS material, can be shown by reputation or opinion or cross examination about specific acts but NO extrinsic evidence (good faith belief). OJO character for TRUTHfulness only material if has already been attacked.

Answer 4

1. felony with 1+ yr punishment subject to 403 (for D substantially outweigh) 2. crime involving dishonesty/false statements, no balancing: perjury, fase statement, fraud, embezzlement, false pretense, other crimen falsi readily determined 3. crimes 10+ years old from date of later conviction/release only if probative substantially outweigh prejudice 4. juvenile inadmissible against D, other witnesses judge decides OJO! in MD must be proved by CCE. Also past crimes can also come in for domestic violence protective order hearing OJO! in MD can only use infamous crime or other relevant to credibility: treason, theft, drug distro, common law felonies, crimes involving deceitulness or falsification. Using date of conviction only, 15+yr old NOT admissible, juvenile NOT admissible.

Answer 5

1. hostile witness 2. adverse witness 3. child witness 4. prelim background info 5. refresh recollection 6. x-exam

Answer 6

 must demonstrate witness does not remember, can lead NB: no FH knowledge requirement, doesn’t need to be theirs  can keep in hands while testifying → adverse party has right to 1. inspect 2. x-exam 3. show to jury 4. enter into evidence (almost never)

Answer 7

OJO! If unsworn, only admissible to impeach. Extrinsic evidence IS permissible as long as 1. witness opportunity to explain/deny 2. opposing counsel can interrogate UNLESS interests of justice

Answer 8

SHALL happen UNLESS 1. it's a party or their representative 2. a person whose presence is essential 3. victim 4. expert witness 5. prosecutor's investigator -> mistrial, contempt, harmless error

Answer 9

VEMPSS: value of own land, emotional state of others, measurements, physical states, sensory descriptions, sanity of testator (wills only) OJO in MD if convicted of perjury can no longer be witness

Answer 10

SKEET: skill, knowledge, education experience training can testify IF 1. based on sufficient facts/data 2. product of reliable principles/methods and 3. witness has applied methods reliably. OJO MD no application requirement

Answer 11

TAPES: testability, acceptance in the field, peer review, error rate, standards (maintenance of)

Answer 12

1. facts personally known to the expert 2. facts made known at trial 3. facts acquired prior to trial, even hearsay, if reasonable, generally relied upon

Answer 13

General rule: may testify embracing ultimate issue. OJO! in crim trial, can't testify as to whether D had requisite mental state that is an element of or defense to the crime. Also can't opine as to truthfulness of other witness OJO! in MD CAN testify to criminal responsibility based on insanity, but not to required mental state.

Answer 14

1. oral, written, or nonverbal assertion 2. made by a person not at trial 3. offered to prove truth of matter asserted

Answer 15

1. effect on the listener 2. state of mind (delusion) 3. verbal acts - legal operative significance e.g. K, defamation, crime 4. condition of the speaker 5. nature of the place OJO a warning that apprises the person of a dangerous condition has a substantive legal significance independent of the truth or falsity of the statement itself.

Answer 16

statement OR adopted by silence if 1. heard and understood 2. was at liberty to respond 3. circumstances called for a response 4. party failed to respond OJO not in front of police OR agent, rep, co-conspirator

Answer 17

Must be about scope of employment but not within scope and during existence of relationship. OJO prove relationship conditional relevance 104

Answer 18

Must be 1. during conspiracy (NOT after arrested) and 2. in furtherance of. OJO prove conspiracy conditional relevance 104. Can bootstrap statement itself with other evidence to prove conspiracy (by preponderance)

Answer 19

IF available at trial and for x-exam: 1. past inconsistent statement to impeach - must be given opp to explain/deny 2. past inconsistent statement for truth if given under oath (affidavit doesn't count) 3. past consistent statement IF to rebut charge of recently fabrication/acting from recent improper influence or motive 4. identification

Answer 20

1. personal knowledge 2. spontaneous/not reflective 3. made while or right after event 4. mostly oral 5. doesn't have to be startled

Answer 21

1. startling event 2. still under influence so can't censor self OJO time passage 3. personal knowledge

Answer 22

can be present or forward looking intention but NOT backward looking. must be about self, edit out other person

Answer 23

1. to medical personnel or to other to seek help 2. by anyone in order to seek help 3. can be in prep for expert testimony at trial

Answer 24

IF witness has present memory problem and record made at the time and is accurate -> give to witness, who adopts it on the stand, can read into evidence. Other party can inspect, use to x-examine, show to jury, intro as evidence.

Answer 25

1. made and intro'd with someone with first hand knowledge 2. kept in regular course of business 3. business duty to record by person who recorded 4. at or near time of event. ABSENCE of record also admissible to prove nonoccurance

Answer 26

1. made/intro'd with someone with first hand knowledge but does NOT need to be regularly kept or made near time of event 2. in crim trial NOT police records 3. in civil cases fact findings w/ conclusions ARE admissible unless signs of lack of trustworthiness

Answer 27

1. Vital statistics 2. records of religious orgs 3. marriage etc. certificates 4. family records 5. records documenting interest in property 6. ancient (20+ yr) documents that are authenticated 7. market reports 8. learned treatises 9. reputation concerning family history 10. reputation concerning boundaries 11. reputation about character 12. judgment of previous conviction 13. judgment as to history or boundaries

Answer 28

privilege, refusal, death/then-existing infirmity, unable to procure through reasonable means (NB: foreign nationals) EXCEPT if proponent wrongfully caused unavailability in order to prevent testimony

Answer 29

1. testimony under oath offered against party who CRIM had opportunity and similar motive to develop or CIVIL had a predecessor in interest 2. dying declaration in CRIM homicide or CIVIL any where declarant believed death was immanent and was about his own death 3. statements against interest - pecuniary, proprietary, punitive OJO in CRIM if shifts blame has to be corroborated 4. pedigree - decl's family history 5. offered agst party who wrongly and intentionally procured unavailability (preponderance) (also CC) OJO! MD only for violence and drug cases, prior statement must have been under oath, written and signed, or contemporaneously transcribed

Answer 30

IF testimonial (made under circumstances that would lead an objective witness to reasonably believe that it would be available for use later at trial) THEN right to x-examine. EXCEPT ongoing emergency. USE primary purpose test.

Answer 31

1. more probative on the point than any other evidence 2. equivalent circumstances guarantee trustworthiness 3. on a material fact 4. serves interest of justice

Answer 32

is the exhibit what the proponent says it is? issue of conditional relevance under 104(b): sufficient evidence for the jury to find so

Answer 33

must fairly and accurately represent as testified to by a witness familiar with it

Answer 34

personal knowledge, distinctive characteristics, OJO for fungible items chain of custody where break goes to weight, photos accurate portrayal as testified to by person with knowledge

Answer 35

by someone with first hand knowledge. "reply doctrine" circumstantial evidence written by person to whom original letter sent. ancient documents: if found in place expected.

Answer 36

1. layperson with familiarity from before litigation 2. by expert anytime

Answer 37

outgoing: right number, answer with right name. incoming: reliable process to identify source of call or circumstantial evidence. business: used registered number and conversation related to transactions engaged in by that business

Answer 38

CONTAC: Certified, Official publications (govt), Newspapers, Trade inscriptions (food labels), Acknowledged (notorized), Commercial paper

Answer 39

IF the contents of a writing, recording, photo at issue, then need original OR duplicate unless a. concerns raised as to authenticity or b. would be unfair to admit in lieu of.

Answer 40

1. prove by other means 2. easy to remember (license plate) OR 1. lost or destroyed unless through bad faith by proponent 2. can't be obtained by legal means 3. in possession of the opponent 4. not closely related to controlling issue

Answer 41

Prior/subsequent accidents admissible to prove 1. dangerous condition existed 2. product is defective 3. cause of accident 4. notice of dangerous condition ONLY IF substantially similar conditions. ABSENCE of prior similar accidents to rebut claim of dangerous condition or show lack of negligence

Answer 42

Most states have by statute. Many states do not apply this privilege (1) if the patient's physical condition or competency is in issue; (2) in criminal trials; (3) in cases where the patient is suing the physician for malpractice; or (4) where the communication was made to assist in the commission of a future crime or fraud.

Answer 43

a prior conviction of a party (after a trial or plea and dash, but not after a nolo contendere conviction) of a crime punishable by death or imprisonment in excess of one year is admissible as substantive evidence of facts essential to sustain that conviction.

Answer 44

Children over the age of nine are permitted to testify under oath as long as they understand the nature of the oath under which they testify. A witness understands the nature of the oath if she understands the difference between the truth and a lie, the necessity of telling the truth and that she could be punished if she does not tell the truth while under oath.

Answer 45

Evidence that the plaintiff has previously filed a tort claim similar to the one at issue before the court is not admissible to prove that the current claim is meritless. Where the plaintiff has previously filed tort claims that were proven false, evidence of such claims is admissible in current litigation to prove that the plaintiff engaged in a common plan or scheme to wrongfully obtain tort damages.

Answer 46

if: 1) the party against whom the evidence is offered heard, understood and was capable of responding to the statement; and 2) a reasonable person in the party's position would have responded. TIP: look for questions in which someone is accused of a malum in se crime like rape or murder

Answer 47

between hi and bye to the jury, but excluding sentencing and juvenile restitution hearings and grand jury

Answer 48

two times: when evidence received and during final jury instructions

Answer 49

If admitting only a portion would be unfair, can consider the rest BUT the rest must come in on x-examine, not direct

Answer 50

Can be imperfect self-defense murder -> manslaughter

Answer 51

In crim case, D can call a witness only to have them take the 5th in order to create inference that witness may have committed the crime. Must be determination by judge that sufficient evidence exists linking the witness to the crime.

Answer 52

No testimony concerning transaction or statement made by dead person or though agent after death (or incompetent person) UNLESS called by opposing party or was put into evidence in same proceeding concerning same transaction. Only a party is barred from so testifying.

Answer 53

for child abuse, if small child blurted out what happened to a family member or similar adult, that adult can testify about the statement