EVIDENCE Flashcards
Evidence
Under Common law and the FRE, evidence is every type of proof, presented in court and allowed by the judge, intended to help the fact finder reach a conclusion about facts material to the case.
Relevance
Under FRE 401, evidence is relevant if (1) it has any tendency to make a fact more or less probable than it would ne without the evidence and (2) the fact is of consequence in determining the action.
Discretionary Relevance
Under FRE 403, the court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.
Character Evidence
under Common law and the FRE, character evidence is evidence offered to show the character or character trait of a party or witness. As a general rule, character evidence is not admissible to probe that a person acted in conformity with the character or character trait on a particular occasion, subject to several exceptions.
Best Evidence Rule
Under FRE 1002, the best evidence rule states that an original writing, recording, or photograph (or in most cases, a proper duplicate) is generally required in order to prove its contents; however, secondary evidence of the writing, recording, or photograph may be used if the original is unavailable.
Dead Man’s Act
Under the Dead Man’s Act, a witness is incompetent to testify about communications or personal transactions with a decedent, when the testimony is offered against the representatives or successors of the interest at issue, unless there is waiver.
Opinion Testimony by Experts
Under the FRE, expert opinion is admissible if: (1) the subject matter is proper for expert testimony, (2) the witness is qualified to testify on the issue, (3) the witness possesses reasonable certainty for the opinion, and (4) the opinion is supported by an appropriate factual basis.
Impeachment
Under common law and the FRE, impeachment is the process of calling the credibility of a witness into question. The primary method of impeachment is by cross-examination; other times, witnesses may be impeached by extrinsic evidence to cast a cloud of doubt on the witness’s credibility.
Hearsay
Under FRE 801, hearsay is an out-of-court statement offered in evidence as an assertion to prove the truth o the matter asserted.
Nonhearsay Statements
Under the FRE, certain statements fall outside the definition of hearsay, including: (1) statements that are verbal acts or legally operative words, (2) statements showing the effect on the listener, (3) “statements” from nonhuman declarants, and (4) statements proving an inconsistent statement.
Exemptions from the Hearsay Rule (No Hearsay)
Under FRE 801(d), certain statements are exempted from the hearsay rule, including (1) prior inconsistent statements given under oath as substantive evidence, (2) prior consistent statements, if the declarant is available for cross-examination, (3) prior statements of identification or description, and (4) an opposing party’s statements (sometimes called “party admissions”)
Party Admissions
An opposing party’s statements (“party admissions”) is a statement made or act done that amounts to a prior acknowledgement by one of the parties to an action of one of the relevant facts. If the party said or did something that is inconsistent with the party’s position at trial, he is estopped from objecting to use of the evidence.
Exceptions to the Hearsay Rule ( Hearsay, but Admisible)
Under the FRE 803, certain statements are admissible despite the hearsay rule regardless of the declarant’s availability, including: (1) excited utterances, (2) present sense impressions, (3) statements of mental, emotional, or physical condition, (4) statements made for purposes of medical diagnosis and treatment, (5) business records, (6) public records and reports, and (7) learned treatises. Other exceptions to the hearsay rule require that the declarant be unavailable, including: (1) dying declarations, (2) former testimony, and (3) statements against interest. Past recollection recorder requires that the declarant be available.
Unavailable Declarant
Under FRE 804(a), a declarant is considered to be unavailable as a witness if the declarant: (1) is exempted from testifying on grounds of privilege; (2) refuses to testify despite a court order to do so; (3) testifies to not remembering the subject matter; (4) is dead; (5) suffers then-existing infirmity, physical illness or mental illness; or (6) is absent and the statement’s proponent has not been able to secure the declarant’s attendance or testimony through reasonable means.
Testimonial Privilege
A privilege is a rule that excludes evidence that would be otherwise admissible to protect a fundamental principle or relationship.
