Evidence Flashcards
How can handwriting be authenticated?
Expert opinion is sufficient but not required; Can also use a comparison with an authenticated specimen by an expert witness or the trier of fact
Judicial Notice: Criminal Cases
If the court takes judicial notice, it must instruct the jury that it may or may not accept the noticed fact as conclusive
Present Sense Impression
A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter
Is the attorney-client privilege waived if raised in the petition or answer?
Yes where a party raises a claim or defense that puts privileged communications in issue
Standard of Proof for Self-Incrimination
Whether there is a “possibility” of incrimination
When a statement/part of a statement is introduced, may the opposing party introduce any other statement or part of the statement?
Yes if the statement ought, in fairness, to be considered at the same time
Can an expert give an opinion to a hypothetical question?
Yes, as long as the facts assumed in the question can be found by the trier of fact based upon admissible evidence
The hypothetical may not omit any material fact that would be essential to a rational opinion and cannot assume any material fact not supported by the evidence
Can an expert base their opinion on facts they do not personally know?
Yes if supplied to the expert outside the courtroom even if the fact aren’t admissible in evidence if the facts are of the kind reasonably relied on by experts in the field
Statement against Interest v. Admission
If the party is absent: Statement against interest
If available: Admission
Can a statement that is not hearsay be used for impeachment or substantive evidence?
Yes, it can be used for both
Extrinsic Evidence: Court Split
Some courts say a document is always extrinsic, others hold a document is not extrinsic if the witness being impeached can provide the foundation of admission of the document
Testimony from another witness about a character trait is also extrinsic
Is a person’s own testimony admissible as habit evidence?
Yes
Evidence of stipulated matters
If the parties have stipulated to something, evidence of that thing is not allowed because it is considered a waste of time
Character Evidence: Community
Includes circles of associates where one lives, works, or regularly socializes
Authentication of Business Records
Allowed only if they are first authenticated by the testimony of the custodian of the records except where the custodian presents a certification certifying to the authenticity of the records
Business Computer Records
Require a more comprehensive foundation; Usually necessary to provide evidence of the procedure used in gathering, storing, and retrieving information
Police Reports: Statements by other people in the report
Only admissible if these statements also fall into a hearsay exception
Former Testimony Exception
Only applies if the parties are identical
Is evidence irrelevant if there are still alternative explanations?
No, evidence does not need to exclude alternative explanations
Subject matter of cross-examination
Should be limited to the subject matter of the direct and matters affecting credibility, but the court has discretion to allow other matters
Test for competency of a child witness
The capacity and intelligence of the child, their appreciation of the difference between truth and falsehood, and their duty to tell the truth
Learned Treatise Hearsay Exception
Allows statements from a treatise to be read into evidence where it is called to the attention of an expert witness or relied on by an expert and is found to be reliable by the court, but the jury may only consider passages read to it by counsel or by a witness
Hearing on the admissibility of a confession
The court must conduct the hearing outside the hearing of the jury and must conclude that a reasonable could find the evidence sufficient
Misleading Question
If it assumes the existence of a fact that is in dispute
Are guns admissible evidence in a drug trial?
Yes as they are considered tools of the drug trade; Guns configured for violent use that are placed near to drug operations are relevant to prove the defendant’s participation in drug activities
Evidence of a prior civil judgment
Inadmissible hearsay
How can a telephone conversation be show to have emanated from a particular parson?
By virtue of its disclosing knowledge of facts known peculiarly to him or that the person was one of only a few having access to the number; A mere assertion of their identify by a person on the phone is not sufficient evidence of authenticity and identity
What may a judge consider when making a ruling on preliminary questions?
Anything, including hearsay and otherwise inadmissible evidence
In a criminal trial, are findings of a forensic analysis admissible?
Affidavits of forensic analysis are not admissible under the confrontation clause as they are testimonial in nature; such affidavits are only admissible if the preparer is unavailable and the defendant had the prior opportunity to cross-examine
Can a court take judicial notice of a birthday?
No unless it is a birthdate of a famous person
