Evidence Flashcards
Logical relevance
Tendency to make more or less probable
Legal Relevance
Probative value outweighs
Danger of unfair prejudice, confusing court or misleading jury
Authentication
Must produce sufficient evidence to support a finding the thing is what the proponent claims
Physical Evid Auth
Distinctive characteristics or
Chain of Custody
Demonstrative Evid Auth
If fair representation
Writings/Record Auth
Admission Eyewitness Voice ID Handwriting verifications Circumstantial evidence Ancient documents: More than 20 years old Free from suspicion Found where they would be kept
Self Authentication
Public docs bearing gov’t seal Certified copies of public record Official publications by public authority Notarized docs Newspapers and periodicals
FRE Self Auth
Business records AND
Trade inscriptions
BER
Requires original writing,
Photograph, or recording to be produced
FRE BER
Duplicates allowed unless content disputed OR
Unfair to admit the duplicate
Exceptions to BER
Lost or destroyed Proponent not acting in bad faith In possession of opponent Not obtainable by judicial process Collateral matter
Voluminous Writings
So voluminous can’t be conveniently
Introduced into evidence
Summary may be introduced
Form of Question Obj
Leading Compound Facts not in Evidence Non-Responsive Narrative
Witness Competency
Personal knowledge
Swear oath or affirmation
Understand duty to tell truth
FRE Age Witness Competency
Intelligence/maturity
Ability between truth and false
Understand importance in truth
Dead Man’s Statute
Limits ability of witness to testify about
Transactions w/ people who now deceased
Impeachment
Attacks credibility of testifying witness by one’s own testimony, testimony of another OR extrinsic evidence
Ways to Impeach
Untruthfulness Prior Criminal Conviction Bias Capacity to Perceive/Remember Contradiction Prior Inconsistent Statement Prior Consistent Statement
Untruthfulness Impeachment
By reputation or opinion Honesty only when truthfulness attacked No extrinsic Specific allowed on x-exam if probative Must accept answer
Prior Criminal Conviction Dishonesty
Crimes involving dishonesty allowed to challenge truthfulness within 10 years
Prior Criminal Conviction Felony
Admissible UNLESS
Defendant witness
Reverse 403
Bias Impeachment
Extrinsic allowed: Friend or relative of party Bears grudge against party Business relationship w/ party Leniency on pending crim case Financial interest in outcome
Capacity to Perceive Impeachment
Allowed to show witness
Diminished capacity to perceive
Extrinsic evid allowed
Contradiction Impeachment
Evidence to challenge underlying facts
If extrinsic, independent admissibility
Non-collateral matters only
Prior Inconsistent Statement Impeachment
Inconsistent statement material to witness’ testimony
Extrinsic inadmissible UNLESS given opp to explain or deny
If under oath, may be for substantive truth
Otherwise, impeachment
Not allowed for collateral matter
Prior Consistent Statement Impeachment
Admissible to rebut recent
Fabrication, improper influence or motive
Must be before bias or motive
Recollection Refreshed
A witness may examine any item
“Refresh” Cannot read from it
Lay Opinion
Rationally based on witness perception
Helpful to jury
Not based on scientific or technical knowledge
Expert Opinion
Scien, tech, or spec knowledge, skill, training
Reasonably relied on in field
Criminal no opinion about mental state or condition element
Character Evidence
Inadmissible to show acted in accordance
Other Purpose Character Evidence
Allowed if: Opportunity Knowledge Motive Intent Absence of Mistake Identity Common Plan or Scheme
Character Evid Civil
Rarely allowed BUT
Reputation, opinion or prior bad acts
Allowed if trait essential element
Character At Issue
Rep or opinion if essential element
Character Defendant of him/herself in Crim
Reputation or opinion only UNLESS trait essential element
Prosecution may rebut with same pertinent trait by rep or opin
Cross-X allows specific instances
Extrinsic not allowed to contradict witness’ testimony & prosecution must accept answer
Character Defendant of victim of Crim
Rep or opin only Prosecution may rebut by rep or opin NOT for rape victims Cross-X allows specific instances Extrinsic not allowed to contradict the witness’s testimony & prosecution must accept answer
Character Defendant claim first aggressor
Homicide by rep or opin to
Rebut non-character evidence by
Defense that victim first aggressor
Cross-X allows spec instances
Character Rape or Sexual Assault
Prohibits exam of victim promiscuous or sexual activities, sexual history, behavior, and preferences
Exceptions to Character Rape or Sexual Assault
Source of semen, injury, or physical evid
Sexual acts w/ defendant for consent
Sexual acts w/ defendant by prosecution
Crim if violates defendants con law rights
Civil case if prob value substantially outweighs danger of harm to the victim or unfair prejudice to any party
Character Sexual misconduct of accused in sex crime
Plaintiff/pros against
Defendant of prior, similar, wrongful sex or
Child molest acts for any purpose by spec instances
DV, Child Abuse or Elder Abuse
Allows evid of prior DV, child abuse, or
More than 10 years
Inadmissible UNLESS
In interest of justice
Policy Exclusions Evid
Subsequent Remedial Measures Insurance Plea Discussions Pay medical bills Negotiations
Subsequent Remedial Measures
Remedial measures that would have made injury less likely to occur Not allowed for: Negligence Culpable Conduct Defect in product or design Need warning instruction Except: Ownership or control Feasibility of precautionary measures
Insurance Evid
Inadmissible to show neg or wrongful
Admissible to show bias or
Prove agency, owner, or control
Plea Discussions Evid
Guilty plea withdrawn
Nolo contendere plea
Made w/ assistance of pros
Exceptions to Plea Discussions Evid
Allowed if made in same plea as another statement that has been introduced if statements should be considered together or in criminal proceeding for perjury and statement was made under oath, on record, and w/ attorney present
Pay medical bills Evid
Inadmissible to prove liability
Statements may be severed
Negotiations Evid
Validity or amount of disputed claim OR
Impeach for PIS
Only excluded if made after claim filed
Privileges Evid
Can limit party’s ability to demand info about specific communications made w/ certain relationships
Holder of privilege holds power to claim or waive
Attorney/Client Privilege
Protects confidential conversations related to legal advice between lawyer and client
Client holder of privilege
Underlying info not privileged
Does not survive death
Exceptions to Attorney/Client Privilege
Crime likely to lead to death or GBI
Breach of duty by either
Services for crime/fraud
Spousal Privilege
Cannot be compelled to testify against spouse
Testifying spouse is holder
FRE: Crim only
Exceptions to Spousal Privilege
One spouse against another Commit spouse Establish competence Crimes against spouse or children Invalid marriage
Marital Conversation Privilege
Spouse may not disclose
Confidential comm made during marriage
Survives death and divorce
Joint holders of privilege
Exceptions to Marital Conversation Privilege
Crime/fraud Commit spouse Competence hearing Proceeding between spouses Criminal case against spouse or for children Juvenile proceeding Spouse defendant in crim and offers
Doctor/Patient Privilege
Made in confidence by examination
Patient holder of privilege
Exceptions Doctor/Patient Privilege
No privilege in crim Proceeding to recover damages for Patient conduct (good cause) Crime/Fraud Commitment Competence
Psychotherapist/Patient Privilege
Persons who are or are reasonably believed
By patient to be someone involved in
Mental health services or counseling
Patient holder
Exceptions to Psychotherapist/Patient Privilege
Patient puts mental condition in issue Services for crime/fraud Dispute between psycho/patient Patient dangerous to self/others Therapist court appointed Patient minor and possible crime victim
Clergy/Penitent Privilege
Protects confidential communications between
Clery/penitents
Joint privilege
Hearsay
Out of court statement
Made for truth of matter asserted
Not Hearsay
Non-assertive conduct Effect on listener State of Mind Indirectly Impeach credibility Legally operative fact
Non-Hearsay
Prior Inconsistent Statement
Prior Consistent Statement
Prior Identification
Party Admission
Prior Inconsistent Statement
Declarant testifies at current hearing
Subject to x-exam
Prior OOC inconsistent w/ current testimony
Prior statement under oath
Prior Consistent Statement
Declarant testifies at current
Subject to x-exam
Prior OOS consistent with current
Offered to rebut recent fabrication OR
Acted under improper influence or motive OR
Rehabilitate when attacked for other reason
Prior Identification
Declarant testifies at current
Subject to x-exam
Prior statement identifies as someone
Declarant perceived earlier
Party Admission
Made by opposing party
Vicarious Party Admission
If employee, spokesperson, agent
Co-Conspirator Party Admission
Conspiracy existed
Defendant and declarant same conspiracy
Made in furtherance & during conspiracy
No bootstrapping
Declarant Unavailable
Cause through no fault of proponent Prevents witness from testifying including Death, mental or disability Beyond subpoena power Invokes privilege Refuses after order Cannot recall subject matter
Exceptions Declarant Unavailable
Dying Declaration
Former Testimony
Forfeiture
Statement Against Interest
Dying Declaration
Declarant unavailable Sense of immediate and impending death Must relate to cause of death Personal knowledge Homicide or civil case
Former Testimony
Declarant unavailable Primary issue of former hearing & current same Similar motive and interest to x-exam Criminal same party Civil same or party in predecessor
Forfeiture by Wrongdoing
Declarant unavailable
Must intend to deprive court of testimony
Statement Against Interest
Declarant unavailable
Conscious statement against interest
Crim needs corroborating circumstances
Exceptions Availability Doesn’t Matter
Present Sense Impression Excited Utterance State of Mind Medical Treatment Past Recollection Recorded Business Records Public Records and Reports Final Judgment of Previous Conviction
Present Sense Impression
Made while or immediately after
Describes or explains event
Personal knowledge
Excited Utterance
Sufficiently startling event
Declarant dominated by shock of event
Relates to event
Declarant has personal knowledge
State of Mind Evid Excep
Then existing physical or mental state
Directly stated
Is at issue
Does not apply to memory or belief UNLESS relates to execution, revocation, id or terms UNLESS declarant’s will
Medical Treatment
Statement for diagnosis or treatment
Pertinent to diagnosis or treatment
Describes medical history, symptoms, or general cause
Past Recollection Recorded
Read into record if declarant testifying
First-hand knowledge at some point
Lacks sufficient recollection of event
Record of some sort
Made or adopted by declarant at or near event
Record accurately reflects facts once knew
Business Records
Record of act, event, condition, or diagnosis First-hand knowledge Bus duty to acquire info & report it Made at or near event by someone w/ duty to record Part of regular course of bus Kept in regular course of bus Opponent no lack of trustworthiness Crim: no police observations
Public Records and Reports
Office’s activities
Matter observed while under legal duty to report
Exception crim case observations by law enforcement
Civil case or evidence by defendant against gov’t in crim
Factual findings from authorized investigation
Final Judgment of Previous Conviction
Judgment from trial or guilty plea Crime was felony Prove fact essential in judgment When offered by pros in crim other than impeach Judgment was against defendant
Hearsay Catchall
Does not fit within 803 or 804
Equivalent guarantees of trust offered as evid of material fact
More probative than other evid for reasonableness on particular point
Best serves these rules and justice
Proponent give adverse party notice
Criminal Case 6th Amend
“In all crim prosecutions the accused
Shall enjoy the right…to be confronted
With the witnesses against him.”
Testimonial for 6th Amend
Under circumstances which
Lead an objective witness to
Reasonably believe the
Statement would be used at trial
Judicial Notice
Process of establishing facts
Without presenting evidence
Facts not subject to reasonable dispute:
Generally known within JDX
Capable of accurate and ready determination by
Source who cannot be reasonably questioned
Civil Judicial Notice
Must accept
Crim Judicial Notice
May find
Presumptions Evid
Switches burden of proof
Civil Presumptions
Operates to shift burden of: Producing evidence to opposing party Rebuttable presumptions Mail delivery Legitimacy Sanity That death is not suicide Death from seven years’ absence
Crim Presumptions
No criminal case presumption
Both burdens on pros
Beyond a reasonable doubt
Prelim Hearings Evid
Court decide prelim questions about witness qualified, privilege exists, or evidence admissible
MUST conduct hearing prelim question outside presence of jury if:
Hearing involves admissibility of confession
Testifying defendant in criminal case requests OR
Justice so requires
