Evidence Flashcards
1
Q
Logical relevance
A
Tendency to make more or less probable
2
Q
Legal Relevance
A
Probative value outweighs
Danger of unfair prejudice, confusing court or misleading jury
3
Q
Authentication
A
Must produce sufficient evidence to support a finding the thing is what the proponent claims
4
Q
Physical Evid Auth
A
Distinctive characteristics or
Chain of Custody
5
Q
Demonstrative Evid Auth
A
If fair representation
6
Q
Writings/Record Auth
A
Admission Eyewitness Voice ID Handwriting verifications Circumstantial evidence Ancient documents: More than 20 years old Free from suspicion Found where they would be kept
7
Q
Self Authentication
A
Public docs bearing gov’t seal Certified copies of public record Official publications by public authority Notarized docs Newspapers and periodicals
8
Q
FRE Self Auth
A
Business records AND
Trade inscriptions
9
Q
BER
A
Requires original writing,
Photograph, or recording to be produced
10
Q
FRE BER
A
Duplicates allowed unless content disputed OR
Unfair to admit the duplicate
11
Q
Exceptions to BER
A
Lost or destroyed Proponent not acting in bad faith In possession of opponent Not obtainable by judicial process Collateral matter
12
Q
Voluminous Writings
A
So voluminous can’t be conveniently
Introduced into evidence
Summary may be introduced
13
Q
Form of Question Obj
A
Leading Compound Facts not in Evidence Non-Responsive Narrative
14
Q
Witness Competency
A
Personal knowledge
Swear oath or affirmation
Understand duty to tell truth
15
Q
FRE Age Witness Competency
A
Intelligence/maturity
Ability between truth and false
Understand importance in truth
16
Q
Dead Man’s Statute
A
Limits ability of witness to testify about
Transactions w/ people who now deceased
17
Q
Impeachment
A
Attacks credibility of testifying witness by one’s own testimony, testimony of another OR extrinsic evidence
18
Q
Ways to Impeach
A
Untruthfulness Prior Criminal Conviction Bias Capacity to Perceive/Remember Contradiction Prior Inconsistent Statement Prior Consistent Statement
19
Q
Untruthfulness Impeachment
A
By reputation or opinion Honesty only when truthfulness attacked No extrinsic Specific allowed on x-exam if probative Must accept answer
20
Q
Prior Criminal Conviction Dishonesty
A
Crimes involving dishonesty allowed to challenge truthfulness within 10 years
21
Q
Prior Criminal Conviction Felony
A
Admissible UNLESS
Defendant witness
Reverse 403
22
Q
Bias Impeachment
A
Extrinsic allowed: Friend or relative of party Bears grudge against party Business relationship w/ party Leniency on pending crim case Financial interest in outcome
23
Q
Capacity to Perceive Impeachment
A
Allowed to show witness
Diminished capacity to perceive
Extrinsic evid allowed
24
Q
Contradiction Impeachment
A
Evidence to challenge underlying facts
If extrinsic, independent admissibility
Non-collateral matters only
25
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
26
Prior Consistent Statement Impeachment
Admissible to rebut recent
Fabrication, improper influence or motive
Must be before bias or motive
27
Recollection Refreshed
A witness may examine any item
| “Refresh” Cannot read from it
28
Lay Opinion
Rationally based on witness perception
Helpful to jury
Not based on scientific or technical knowledge
29
Expert Opinion
Scien, tech, or spec knowledge, skill, training
Reasonably relied on in field
Criminal no opinion about mental state or condition element
30
Character Evidence
Inadmissible to show acted in accordance
31
Other Purpose Character Evidence
```
Allowed if:
Opportunity
Knowledge
Motive
Intent
Absence of Mistake
Identity
Common Plan or Scheme
```
32
Character Evid Civil
Rarely allowed BUT
Reputation, opinion or prior bad acts
Allowed if trait essential element
33
Character At Issue
Rep or opinion if essential element
34
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
35
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
```
36
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
37
Character Rape or Sexual Assault
Prohibits exam of victim promiscuous or sexual activities, sexual history, behavior, and preferences
38
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
39
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
40
DV, Child Abuse or Elder Abuse
Allows evid of prior DV, child abuse, or
More than 10 years
Inadmissible UNLESS
In interest of justice
41
Policy Exclusions Evid
```
Subsequent Remedial Measures
Insurance
Plea Discussions
Pay medical bills
Negotiations
```
42
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
```
43
Insurance Evid
Inadmissible to show neg or wrongful
Admissible to show bias or
Prove agency, owner, or control
44
Plea Discussions Evid
Guilty plea withdrawn
Nolo contendere plea
Made w/ assistance of pros
45
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
46
Pay medical bills Evid
Inadmissible to prove liability
| Statements may be severed
47
Negotiations Evid
Validity or amount of disputed claim OR
Impeach for PIS
Only excluded if made after claim filed
48
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
49
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
50
Exceptions to Attorney/Client Privilege
Crime likely to lead to death or GBI
Breach of duty by either
Services for crime/fraud
51
Spousal Privilege
Cannot be compelled to testify against spouse
Testifying spouse is holder
FRE: Crim only
52
Exceptions to Spousal Privilege
```
One spouse against another
Commit spouse
Establish competence
Crimes against spouse or children
Invalid marriage
```
53
Marital Conversation Privilege
Spouse may not disclose
Confidential comm made during marriage
Survives death and divorce
Joint holders of privilege
54
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
```
55
Doctor/Patient Privilege
Made in confidence by examination
| Patient holder of privilege
56
Exceptions Doctor/Patient Privilege
```
No privilege in crim
Proceeding to recover damages for
Patient conduct (good cause)
Crime/Fraud
Commitment
Competence
```
57
Psychotherapist/Patient Privilege
Persons who are or are reasonably believed
By patient to be someone involved in
Mental health services or counseling
Patient holder
58
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
```
59
Clergy/Penitent Privilege
Protects confidential communications between
Clery/penitents
Joint privilege
60
Hearsay
Out of court statement
| Made for truth of matter asserted
61
Not Hearsay
```
Non-assertive conduct
Effect on listener
State of Mind Indirectly
Impeach credibility
Legally operative fact
```
62
Non-Hearsay
Prior Inconsistent Statement
Prior Consistent Statement
Prior Identification
Party Admission
63
Prior Inconsistent Statement
Declarant testifies at current hearing
Subject to x-exam
Prior OOC inconsistent w/ current testimony
Prior statement under oath
64
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
65
Prior Identification
Declarant testifies at current
Subject to x-exam
Prior statement identifies as someone
Declarant perceived earlier
66
Party Admission
Made by opposing party
67
Vicarious Party Admission
If employee, spokesperson, agent
68
Co-Conspirator Party Admission
Conspiracy existed
Defendant and declarant same conspiracy
Made in furtherance & during conspiracy
No bootstrapping
69
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
```
70
Exceptions Declarant Unavailable
Dying Declaration
Former Testimony
Forfeiture
Statement Against Interest
71
Dying Declaration
```
Declarant unavailable
Sense of immediate and impending death
Must relate to cause of death
Personal knowledge
Homicide or civil case
```
72
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
```
73
Forfeiture by Wrongdoing
Declarant unavailable
| Must intend to deprive court of testimony
74
Statement Against Interest
Declarant unavailable
Conscious statement against interest
Crim needs corroborating circumstances
75
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
```
76
Present Sense Impression
Made while or immediately after
Describes or explains event
Personal knowledge
77
Excited Utterance
Sufficiently startling event
Declarant dominated by shock of event
Relates to event
Declarant has personal knowledge
78
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
79
Medical Treatment
Statement for diagnosis or treatment
Pertinent to diagnosis or treatment
Describes medical history, symptoms, or general cause
80
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
81
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
```
82
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
83
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
```
84
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
85
Criminal Case 6th Amend
“In all crim prosecutions the accused
Shall enjoy the right...to be confronted
With the witnesses against him.”
86
Testimonial for 6th Amend
Under circumstances which
Lead an objective witness to
Reasonably believe the
Statement would be used at trial
87
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
88
Civil Judicial Notice
Must accept
89
Crim Judicial Notice
May find
90
Presumptions Evid
Switches burden of proof
91
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
```
92
Crim Presumptions
No criminal case presumption
Both burdens on pros
Beyond a reasonable doubt
93
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
