Evidence Flashcards
Does D open the door to his character simply by testifying?
NO, but he does put his credibility at issue and can be attacked.
Can D call any witness to testify to any of his good characters?
No, D can call anyone to testify to his good character , but MUST BE RELATED TO THE TRAIT AT ISSUE.
Can talk about good reputation and good opinion, but not specific instances on direct.
How can P rebut D’s good character evidence?
What can P do
- call a witness to testify his rebutting opinion about D
- call a witness to testify re D’s reputation to the contrary
- cross D’s witness with specific instances.
What P cannot do:
- if w denies the specific instance, P CANNOT OFFER ANY EXTRINSIC PROOF, must accept answer as it is.
- P cannot offer rebutting extrinsic evidence re any specific instance.
Careful: difference between D offering good relevant character er evidence v. rule that cannot bolster your witness until attacked.
D can always open the door to his character by introducing w’s testimony re his reputation or w’s opinion re D’s trait at issue.
THIS IS AN INDEPENDENT GOOD GROUNDS, AND IS NOT BARRED when
D testifies as a witness => can’t say now bringing a witness will be bolstering your unattached witness.
When P cannot bring trustworthiness ev. against D?
When P always can?
Note: when D testifies, P can always bring in trustworthiness attack => as impeachment (cannot say it is not relevant)
When D does not testify and the issue at the case is not tied to trustworthiness (fraud, etc.), P cannot bring trustworthiness evidence.
Can D open the door to character in a civil case?
NO, this rule applies only in criminal context.
in civil, character only comes in if:
1) sexual assault/child molestation
2) character is at issue
- defamation
- negligent instrument
- child custody
- loss of consortium
- negligent hiring
can use all => reputation, opinion, specific instance.
When is the character at issue in a civil case?
Character is said to be at issue in a civil case when proof of a person’s character, as a matter of substantive law, is an essential element of a claim or defense.
For example, when a defendant in a negligent hiring case is alleged to have hired an unstable employee, the character of the employee is indeed at issue in the case.
Defamation cases are another example of where character is at issue (e.g., defendant may use character evidence as part of her affirmative defense that she spoke the truth when she called plaintiff a thief).
However, these types of situations are rare.
In a typical breach of contract, battery, or product liability case, the character of the parties is not directly at issue.
Such circumstantial use of prior behavior patterns for the purpose of drawing the inference that, at the time and place in question, the actor probably acted in accord with her prior behavior pattern is not permitted in civil cases.
Habit v. Character evidence
Habit evidence concerns a person’s regular response to a specific set of circumstances.
Character evidence describes one’s disposition with respect to general traits.
how sure must cross examiner be about bad acts to ask the w?
33% - ish is enough
L must have reasonable bases to believe that bad act happened.
Can use extrinsic evidence (EE) or Specific Instance to prove character
- bais
- habit
- sex abuse/child mol.
- past conviction
- prior inconstant st. impeachment
Cannot use EE or specific instance
- attack w truthfulness with a counter-witness on direct
- cross w about non-convict untruthfulness (better try bias cuz can bring SI and EE)
Impeachment bases (WON)
Liar by Nature – attack truthfulness
- calling CW on direct on say W is a liar
- cross w about non-convict misconduct
- cross w about his convictions (once a convict, always a liar)
Prior Inconsistent Statement of W - testimony is not accurate
Prior EE - w is a liar based on facts
Won’s 7 ways to attack an Expert
1) Qualified? (knowl., skill, experience, ed., training)
2) Proper Topic? (assist jury, gives tools, no bold concl, disabuse misconception, add depth, beyond the ken
3) Data problem? – other experts rely? Reliable in this case, hearsay? If yes - reverse 403), testimonial?
4) Reliable? (methodology) – Daubert + analytical gaps, expert’s experience, alternat., is the field reliable
5) Logical deficiency? (methd) Kumho -analytical gap?
6) Relevant (method) – fits facts of the case or does not makes sense for our case?
7) 403? – too prej. science (Korean bizman - not probat. to talk about honesty of a race; 2% lie is too strong)
Won - Not hearsay because
Not Hearsay Because
1) Natural verbal act (ouch) – NA 2) Not implied assertion – what’s offered for does not match the intent
3) not assertion –did’t intend to assert what it’s here for
4) not made out of court
5) shows state of mind (knew, felt, believed) – not for truth
6) impeach – not for truth
7) verbal act of legal consequence (defamation, K) – not for truth.
8) explains ambiguity behind physical act – not for truth (pen back)
In order for a defendant’s prior misconduct to be admissible for some relevant non-character purpose (motive, intent, etc.), there must be:
sufficient evidence to support a jury finding that the defendant committed the prior act.
33% 😉
When no 403?!
P brings in honesty-related past conviction
Reverse 403 - if prior conviction is over 10 from date of conviction or release, whatever is later
Does doc. used to refresh recollection have to be authenticated?
Nope.
not a hearsay either (question to look up: IF OP OFFERS REFRESHING DOC INTO EVIDENCE, DOES IT HAVE TO BE AUTHENTICATED?
“past recorded recollection” Hearsay exception
- where a witness’s memory of an event cannot be revived by reviewing a memorandum or other record
- made by the witness
- at or near the time of the event,
a party may introduce the record into evidence by reading it aloud to the jury.
note: this does not automatically make the document admissible, unless OP request to be admitted.
What can w use to refresh recollection?
A witness may use any writing or thing for the purpose of refreshing her present recollection.
present recollection refreshed V. past recollection recorded
Present Recollection Refreshed = w reviews silently and remembers and testifies.
- note: can use ANYTHING to refresh memory, even if it is tax record saying the number that L has been asking about, W looks at it, say I remember now.
=> OP can request to admit into evidence as na exhibit.
Past Recollection Recorded = w still does not remember, writing by w, near the time of the relevant event, can read out loud to the jury.
NOTE: this does not admit it as an exhibit into evidence unless OP requests to admit into evidence as na exhibit.
Can lay witness make conclusive statement about whether there was authority to act?
No! When agency or authorization is in issue, a lay witness generally may not state a conclusion as to her authorization. Thus, a lay witness cannot testify that her employer directly authorized her to enter into a contract where that is at issue in the case.
examples of what lay witness can testify to
- A was drunk
- car was going fast / estimate car speed
Expert testimony
=> Helpful
(i) The opinion must be relevant, and
(ii) The methodology underlying the opinion must be reliable.
=> The opinion of an expert witness may embrace the ultimate issue in the case
=> To testify as an expert, a person must have special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates.
=> The expert must possess reasonable certainty or probability regarding his opinion. If the opinion of the expert is a mere guess or speculation, it is inadmissible.
WHAT CAN EXPERT WITNESS BASE ITS OPINION ON?
the expert may base an opinion on
=> facts that he knows from his own observation
=> facts presented in evidence at the trial and submitted to the expert (can sit at the courtroom ant listen)
=> facts not in evidence that were supplied to the expert out of court and which are of a type reasonably relied upon by experts in the particular field in forming opinions on the subject.
If facts on which experts based on is inadmissible, the proponent of the expert opinion MUST NOT DISCLOSE those facts to the jury UNLESS the court determines reverse 403.
Lay witness elements:
(i) rationally based on the perception of the witness;
(ii) helpful to a clear understanding of her testimony or to the determination of a fact in issue; and
(iii) not based on scientific, technical, or other specialized knowledge. Matters involving sense recognition, such as what something smelled like, are common subjects of opinion testimony.
When crossing re prior bad acts, can judge stop the questioning.
Yes, judge can allow the L to go on and on or stop at one point.
Note: L on cross can not introduce EE, even if w lies, all he can do is keep questioning 🤓
When is prior statement of testifying w not hearsay?(exemption)
w must now be present at court and subject to cross 👇🏻🙉
- PRIOR CONSISTENT st. to rebut NON-character related attack if st. was made within reasonable time and makes sense as a rebuttal.
> recent fabrication
> improper influence/motive
> st. made BEFORE bribe accusation to show was not affected by bribe. - Statement of identification made after seeing the person.
- if it is a prior INCONSISTENT statement given under oath (trial or depo) - can be character-related (ok if for impeachment)
Prior inconstant statement - hearsay exception
- if under oath (trial/depo) can come in to prove truth of the matter asserted.
- if not under oath - to impeach only, not to the truth.
previous felony conviction for lying over 10 years
reverse 403 - probably inadmissible
Can description of past condition be an exception?
Yes if made to medical people for treatment purposes.
No description of then existing condition exception.
When is the communication between corporation employee and corp. lawyer not privileged?
if the employee is not connected to the incident and is a mere witness.
- ex: corp. truck hit a pedestrian, another corp employee sees this. Corp asks employee to write a letter to corp. lawyer explaining what happened. => no privilege!
Does the best evidence rule apply to testimony?
No, not to oral stuff, but to written docs, recording, etc.
Hearsay and Privileged Communication
- check who’s testifying? (spousal privilege may bar spouses from testifying at all)
- check if actually privileged - no privilege if it was said aloud and others heard it.
- if others overheard privileged people yelling at each other, no privilege will bar them, overhearing party may testify if it falls under a hearsay exception.
Does the judge have a discretion to exclude a testifying witness from courtroom during other witness’ testimony?
No, the judge HAS TO exclude witness IF A PARTY REQUESTS.
If party does not request, the judge MAY exclude on its own.
Can judge allow cross-examining witness outside of the scope of direct?
Yes, usually not allowed, but judge can choose to allow.
Can L use leading questions on cross?
Usually allowed, but judge has discretion to not allow (including cross of D by D’s lawyer.)
Can you use stuff beyond the scope of direct on cross?
Yes, can use stuff to impeach even if not raised on direct
also, judge has discretion to allow more expansion as long as does not turn into abuse of discretion.
Check for party opponent exception
is it cross or direct?
D’s previous statement not hearsay if he’s on cross => party opponent
D’s previous statement are hearsay on direct => is introducing his own previous statement
What is NOT hearsay (exemptions)
- prior inconsistent statements of testifying w taken under oath in previous depo or trial
- PRIOR CONSISTENT st. of testifying w to rebut NON-character related attack if st. was made within reasonable time and makes sense as a rebuttal.
- prior id statements
- opposing party statement
Can you impeach your own witness?
Yes => For the purpose of impeaching the credibility of a witness, a party may show that the witness has, on another occasion, made statements that are inconsistent with some material part of his present testimony.
Prior inconsistent statement under oath
A testifying witness’s prior inconsistent statement made while under oath and subject to penalty of perjury in a deposition or prior hearing is not hearsay under the Federal Rules, and is therefore admissible as substantive evidence of the facts asserted.
Can you use extrinsic evidence to impeach with prior inconsistent statement?
Yes, can use EE!
When can you use prior inconsistent statement to prove truth of the matter?
if made under oath (prior trial, depo) => not hearsay at all.
Does spousal or marital communication privilege cover a conduct of spouse in response to police searching home?
NO! admissible if relevant.
Spousal immunity prohibits the prosecution from compelling one spouse to testify against the other in a criminal proceeding.
The privilege for confidential marital communications protects communications (i.e., expressions intended to convey a message) between spouses made in reliance on the intimacy of the marital relationship.
No privilege applies to observations of a spouse’s condition, actions, or conduct.
Furthermore, this is a testimonial privilege and probably would not prevent the wife from handing over real evidence.
Would it cover if a spouse had given the jacket to wife to hide?! => wife would have to turn over the jacket if asked by police, but could not testify about what husband told him about jacket (this would be protected).
Can you use extrinsic evidence to impeach?
Yes, but must meet foundation requirement => give w opportunity to explain/deny.
includes: => prior inconsistent statement => bias, interest, motive => past convictions => reputation or opinion
cannot use EE
=> non-conviction misconduct re untruthfulness
Offer to pay medical stuff
not admissible
> stuff around it is admissible UNLESS is part of a settlement offer
Does a testifying OP have to have personal knowledge?
Lack of personal knowledge does not necessarily exclude an opposing party’s statement.
An opposing party’s statement may be in the form of an opinion. The only requirement is that it concern one of the relevant facts
What is not hearsay?
- independent legal consequence
- effect on w (not for truth)
- evidence of state of mind (I am Santa)
- Opposing party
- Prior inconsistent statements of testifying witness
> if under oath, - Prior consistent statements of testifying witness
> rebut non-character attack, or ID
When is silence an adoptive statement?
(i) the party must have heard and understood the statement;
(ii) the party must have been physically and mentally capable of denying the statement; and
(iii) a reasonable person would have denied the accusation under the same circumstances.
Party can be vicariously responsible for
Authorized spokesperson;
partner;
co-conspirator;
principal-agent
NOT responsible for what co party (co-defendant) says
When can an employee statement be attributed to employer for OP hearsay exception purposes?
The statement can be attributed to the employer, provided
(i) it was made while the person was employed by the employer (not before or after the period of employment) and
(ii) the statement related to the employment.
exceptions to foundational requirement for EE (opportunity to deny or explain)
> if the inconsistent statement was made by a hearsay declarant, the declarant may be impeached despite the lack of a foundation.
> foundation is not required when the inconsistent statement qualifies as an opposing party’s statement.
hearsay v. EE foundational requirement analysis
Hearsay => statement, offered to prove truth
EE => Whether the witness is given an opportunity to explain or deny the inconsistent statement relates to whether extrinsic evidence of the statement can be used to impeach the witness. It does not relate to the hearsay analysis.
Can a party impeach her own witness?
YES, because the Federal Rules permit a party to impeach its own witness, even if not “surprised.”
but cannot put a witness up just to impeach them.
Is quoting the defamatory statement a hearsay?
NO, In a defamation action, evidence of the statement alleged to be defamatory is not hearsay because the evidence is by definition not offered to prove the truth of the matter asserted. It is offered only to show that the actionable statement was made.
Can you use religious belief to attack credibility?
Evidence of the religious beliefs of a witness is not admissible to challenge credibility. Lack of religious belief is no longer a basis for excluding a witness. Not only are a person’s religious convictions irrelevant in determining the competence of a witness, Federal Rule 610 provides that a witness’s religious beliefs or opinions are not admissible to show that the witness’s credibility is thereby impaired or enhanced.
ex: cannot ask in cross - isn’t it true that you are atheist even though you took an oath before your testimony?
Is a witness incompetent because he served on a jury against the D ?
A witness is not rendered incompetent simply by having served on a jury in a prior case involving a party to the current suit. Such prior jury service might render the witness’s testimony unpersuasive, but it would not make it inadmissible.
What does best evidence rule cover?
DOCUMENTS - “letters, words, numbers, or their equivalent, set down in any form”
does NOT cover other stuff - statutes, etc. to testimony
Secondary evidence under best evidence rule
IF original is destroyed, and no bad faith
- a person can get out and testify
- a photograph etc of the original OK
can you admit evidence obtained under hypnoses?
Yes, not unconstitutional, BUT note that cannot use this to show the crime D’s state of mind at the time crime was committed.
Expert opinion re crim D’s state of mind.
in criminal case, when D’s mental state is a required element of crime, EXPERT CANNOT testify that IN HIS OPINION, D has to did not have the state of mind.
Jury must decide this.
Includes, proving fear in self-defense case.
Bias
existent when there is a special relationship bw parties, good or hostile.
can impeach with EE (must lie foundation - opportunity to explain)
can use religious beliefs to show bias.
When can w’s religious views be inquired about?
- CAN ask to show interest, bias
- CANNOT ask to show w’s truthfulness is affected by her religion (asking about why’s he took an oath before testifying even though she is an atheist)
Can Congress create commissions and appoint members?
Sure, but the purpose of the commission must be to do internal legislative tasks -
> do investigations into an issue
> make recommendations to Congress.
> make rules
CANNOT
> prosecute
> enforce stuff
When are courts not allowed to rule on private covenants cases?
When the covenants are unconstitutional - discriminate based on age/ violate equal protection, etc.
W’s prior statements of identification
not hearsay and can be admitted, but w must be testifying at trial and be subject to cross.
Cannot refuse to testify - if w is not testifying, it is a hearsay without any exception.
Does a learned treatise that expert relied on have to be admitted into evidence as an exhibit?
NO, can be read to the jury - falls under the treaties hearsay exception.
Cannot be admitted as an exhibit and given to jury just because it is under hearsay exception.
Can a writing be authenticated by evidence that the writing was done in response to another genuine communication bw the same parties?
YES - can be thus authenticated.
if a caller self-identifies, is this enough for authentication?
NO the person call can authenticate, but NOT the caller.
is killing yourself to id witnesses and making a list, later discoverable?
YEAP, identities of people with knowledge of discoverable matters are discoverable, the plaintiff’s attorney’s list is not considered work product
Chain of custody for authentication
if the chain of authentication custody is broken, evidence is not admissible.
NOTE: evidence can be in a form of a person testifying about stuff done to evidence. Ex: if blood sample has not been authenticated, lab chemist cannot testify that that blood matched D’s blood.
What can a treatise be used for
to impeach and as substantive evidence. must be
Hearsay exception (comes it as substantive) if
(i) the expert is on the stand and it is called to his attention, and
(ii) it is established as reliable authority.
=====> (i) the direct testimony or cross-examination admission of the expert,
=====> (ii) the testimony of another expert, OR
=====> (iii) judicial notice.
Are prior convictions admissible in civil case.
YES to prove anything about D’s committing that crime.
NOTE: cannot use this as character evidence usually not allowed in civil cases (like in criminal) to show that D acted in accordance to it.
Can a w’s prior statements of warning D about a danger be non-hearsay?
YES, in a negligence case, where knowledge of a danger is at issue, a person’s warning statement is admissible for the limited purpose of showing knowledge or notice on the part of a listener.
Can attorney’s affidavit saying that the worker client seemed “incoherent and paranoid” admissible.
YES if hearsay exception applies
> no L/C confidentiality problem cuz not a client communication with expectation of privacy
> not an expert witness problem of talking about their opinion of D’s state of mind when it matters.
==> viewed as a lay witness option from personal observation that does not require expert-specific knowledge and is helpful.
Approach
> crim or civil
> cause of action
> what is it offered for?
> what’s the relevance?
Judicial Notice
When the facts is indisputable or can be verified through specific scientific principles.
> Must be a fact known within the jurisdiction of the court
> Facts ready to be verified
Effects:
- Criminal - P’s burden to produce evidence for the fact judicially noticed is met, BUT jury does not have to take it as conclusive
- Civil - Jury must take as conclusive
Preliminary questions of admissibility (that judge decides)
- qualification of person to be witness
> expert witness
- privilege
- admissibility of evidence
> hearsay
=> must be decided by the judge, not jury
what can be used to refresh recollection?
ANYTHING!!!!
> can be writing,
> asking leading questions to refresh (OP can see this doc, cross with it, also introduce relevant portions into evidence).
best evidence rule
- writing
- recording
- photographs
what can expert ALWAYS base its opinion on?
- ANYTHING that reasonable people in the field use to base their opinion on. even if inadmissible
- personal observation (does not have to - can be stuff based on what he learned in or before trial)
- authoritative text
lay witness can testify
to anything they perceived with first hand knowledge
5 Rules character evidence in crime cases
CE in criminal cases is inadmissible unless D opens the door
1 - P cannot introduce any evidence of D’s bad character if purpose of the evidence is to show that D acted in conformity and committed the charged crime.
2 - D is allowed to present evidence of good character to show that he acted in accordance with that good character and did not commit crime. This is limited to reputation or opinion on direct (no SI).
3 - If D does present evidence of good character to show they probably did not commit the crime, P can rebut re the same trait. Limited to rep or opinion on direct.
4 - Prior crimes/bad acts never admissible to show D acted unlawfully again and committed the charged crime BUT can come in for other stuff - MIMIC. *403.
5 - if D takes the stand, automatically places character for truthfulness in issue. P can present ev. to show that witness D is not truthful.
Character evidence in Civil case
not admissible unless 1) directly in issue, or 3) essential elements of P’s claim or defense.
1 - cannot show that they acted with with trait during the event that caused this litigation
2 - if some other purpose and relevant – character rule will not keep it out. Other purpose => defamation, child custody, negligent entrustment, hiring retention.
3 -
5 types of impeachment
- prior inconsistent statement
- bias, motive to misrepresent
- prior conviction
- untruthfulness non-conviction SI (only cross, no EE)
- bad reputation in community for truthfulness (EE)
statement against interest
must be unavailable
Prior ID statement
Must be available to testify and be crossed!
+ prior inconsistent + prior consistent
is it ok if the declarant is not given opportunity to explain or deny?
YES, there is an exception for declarant, remember usually impeached person must be given given this opportunity, but can impeach declarant as a normal w testifying w even if he is not available
when can dying declaration come in?
in crim cases => homicide only ! cannot be used for an attempted murder charge!
Civil cases!
Note: if this does not apply (w is available or crim not homicide) check excited utterance.
Be careful when accident - and someone is offering to pay
NEED THREATENED LITIGATION
do not jump to settlement negotiation public policy exception => make sure there is a threatened litigation first.
Note: if someone jumps out of car and say I will pay you - not a settlement negotiation and will come in because there is no threat of litigation .
Can you bring up that the witness has entered into plea agreement in cross?
YES, if it can show bias or interest. Remember always relevant.
Do not be intimidated and no NOT confuse with public policy exception re not admitting plea stuff - this is ok for impeachment
also can bring EE here
What tangible evidence can you present to jury to review (smell, sense)?
ANY relevant evidence, unless a rule keeps it out.
do not overthink this. A coat that is the subject of the litigation is admissible (can have jury sniff). Just make sure to check authenticity.
These stuff can come in a direct evince, do not get confused by hearsay, impeach etc. answer choices.
handwriting authentication
can be done by
- someone familiar with handwriting before trial, BUT cannot become familiar for purposes of trial.
- use of expert: NOTE
- give it to jury to compare
When can a third party authenticate handwriting
- if expert witness
- lay witness only ok if the testimony is actually helpful . Ex: cannot bring in a friend to compare the letter in question to the letter written by D 2 years ago. This is NOT helpful because jury can compare the letters, we do not need a friend to come in and make the comparison if he has no expert knowledge. He would not add anything.
Best evidence rule testimony issue
> this rule does not apply to testimonies, only documents, audio, and photos.
> BUT when a document is involved, must present the original version (or the copies if authenticity is not disputed).
> if doc. is involved, can testify about the contents ONLY IF doc is not available => secondary evidence rule
Spousal privileges
testimonial => criminal only (ends with divorce), testifying party holds privilege (and talk if she wants to)
communication => criminal and civil (surveys divorce) - both hold privilege
IS D’s character ev. available in civil trials if D opened the door?
NO, not it civil, but yes in crim.
Can you use prior behavior examples to show conformity with habit?
NO, you can use habit to show that NEW behavior in question was in conformity with habit, or can use to establish habit, but CANNOT use prior acts to show that prior acts confirmed with habit.
When judge admits evidence for which minimal authenticity has been established, what does judge tell jury about the evidence?
Introducing party must only give enough to convince the judge that jury could find it authentic, but by admitting the evidence, judge does not approve the authenticity. Jury must do this!
Judge must instruct the jury that it is up to them to decide whether the letter is authentic.
is prior inconsistent statement that is not under oath a hearsay?
YES! - inly comes in for impeachment
note: not hearsay if under oath
when do you need testifying witness subject to cross for hearsay?
> prior consistent
prior inconsistent under oath
prior ID
OP
note: if w is not testifying subject to cross: these are considered hearsay not within an exception.
PSI
can be stuff like “Now that the sun is out, I’ll be able to get great tan”
when a part of statement is introduced
adverse party may introduce any OTHER party of the statement that is required for fairness.
think business records, medical records etc.
business records exception
> Declarant must have personal knowledge or received it from someone with personal knowledge who transmitted it through course of ordinary business.
careful with this: if hospital related, can be overcome my medical exception if about treatment.
Vicarious OP admission
Statements by the agent concerning any matter within scope of agency is admissible as OP admission.
Is conspirator statement admissible?
yes, if made while participating in conspiracy and in furtherance of a conspiracy to commit a crime or civil wrong.
statements around offer to pay medical expenses v. statements around offer to settle
around medical expanses => not admissible if no other exception
around offers to settle => admissible
Presence of whom does not destroy confidentiality?
if third parties are reasonably necessary for consultation (L’s secretary, paralegal ok, child’s parent, other privileged people)
when can a judge exclude relevant evidence
- 403
- cumulative
- waste of time
- confuses issues
common knowledge of stuff for judicial knowledge
must be within jurisdiction of the court
this is not just public records, but a court record. => Cannot take a judicial notice of public records, like a recorded deed.
Best evidence rule
if you are proving the content of the writing (recording, photos) => use the original if available.
when does best evidence rule not apply?
- if you can prove the facts INDEPENDENT of the writing => NO best evidence rule applies. BER only applies if trying to prove the CONTENTS of the thing.
- if original is NOT available, can admit anything else instead (testimony, photocopy etc.). Note: it is enough if the court finds that after a REASONABLE search, the original could not be found.
handwriting v. voice authentication
handwriting can be authenticated:
> by a person with familiarity BEFORE trial (not that learned for purposes of trial)
> expert witness
> trier of facts (jury can compare things)
Voice authentication
> by somebody with familiarity => CAN BECOME FAMILIAR FOR PURPOSES OF TRIAL OR BEFORE TRIAL
> expert witness
> trier of facts
Note: watch out for cases where a person authenticating has not heard the voice, but someone told her it was the voice. (this is based on hearsay)
Note: hearing a voice live is enough to authenticate phone voice (ok if no better answer).
Is reputation hearsay?
NO, this is an exception.
prior felony conviction
comes in unless 403
note: this can be for the EXACT same crime at issue in this case, do not be scared to pick it, 403 will cover it.
Can you bring a witness to describe previous untruthful behaviors of testifying D?
NO
> non-conviction bad acts re truthfulness => ONLY in cross, no extrinsic
> can bring someone to testify, but only reputation or opinion (can use EE for this, but not SI)
Can a juror testify in a future trial?
Cannot testify
1) before the jury they are a member of (same case)
2) Post-verdict proceeding re certain matters involving jury deliberations
CAN TESTIFY
- in all other cases: can bring a former juror to testify what he heard during the first trial
for OP statement to be admitted, the person must be
the actual party in the case, an agent, co-conspirator, D’s representative, etc.
being a passenger in the car is not in itself enough
for OP agent statement to be admissible, what base must the proponent of introducing such statement provide?
sufficient info that a jury could actually find that there was agency (authority)
generally, who can testify as witness?
anyone if has personal knowledge and takes an oath to testify truthfully. (even a 4 year old child if can establish these bases.
Can reading car license numbers be considered not hearsay.
Yes, if looking at the scene and reading => PSI exception.
Presumption
be careful: when there is a presumption and supporter introduced some evidence, burden shifts to the opposing party to rebut. BUT be careful that if OP even says “I did not get it”, it is enough rebuttal and jury is free to find either way.
If there is ANY evidence from other side, even of denial, do not pick an answer that says burden shift.
for doctor hearsay exception be careful:
does NOT apply to stuff doctor said: only stuff patient said.
Does a court have to admit a rebuttal to a previously admitted irrelevant evidence?
No, the court may, but does not have to admit this.
Do you have to refer to specific sources to take judicial notice of a fact?
Not always,
While facts that are not generally known and accepted may be a subject of judicial notice if they are easily verified by resorting to easily accessible, well-established sources (i.e., facts capable of certain verification), facts that are matters of common knowledge in the community, such as the location of the city hall, may be judicially noticed without resort to reference materials.
hearsay treatise exception
allows reading parts of treatise into the evidence, but does not permit admitting the whole thing into the evidence. (jury should only read and rely on the relevant used parts)
testimonial v communication privilege
testimonial - allowed a spouse to refuse to testify against spouse in crim case.
comm. may have to testify if it is about non communicative non-privileged stuff.
hearsay exception for certification to prove absence of public record
must be prepared by public official with due diligence to show that public records searched showed a certain result.
is fraud a truthfulness conviction that is automatically acceptable?
YES, can come in both substantively (show that it was D who did the crime because he did it before) and for impeaching a testifying witness.
In defamation for slander, what does showing that the statement made is true trough reputation evidence help prove?
both absence of guilt and that less damages should be awarded.
if sued for calling A a thief and bring a witness to testify that A has a reputation of being a thief => shows defamation defense AND that P should be awarded less damages because she already has a bad reputation and could not have suffered much economic damages from being called a thief
what is not a business record for the exception?
A doctor writing a doctor’s note to A’s employer. This is not a regularly conducted activity on the course of business.
Note: if another doctor bases her opinion of this letter, because it is a hearsay, the letter would not be admitted unless reverse 403.
if P’s consciousness is at issue, can a lay witness testify that she saw P and she was unconscious?
Yes, if meets all lay witness elements (no bans)
One matter about which a lay witness may testify is the general appearance or condition of a person.
W is being asked to testify as to the plaintiff’s general condition (i.e., whether she was conscious or unconscious). Having been on duty in the emergency room when the plaintiff was brought in, the orderly had the opportunity to observe the plaintiff. Thus, he is in a position to offer an opinion as to the plaintiff’s unconscious condition based on his own perception.
It is easier for the orderly to express his testimony this way than to go into detail about specific manifestations of the plaintiff’s condition. Also, this opinion aids in the determination of a disputed factual issue (i.e., whether the plaintiff ever lost consciousness). Therefore, the orderly’s testimony is admissible as proper lay opinion testimony.
Can D’s statement fall under a hearsay exception, but still not come in?!
YES! do not forget to check Confrontation clause in CRIMINAL CASES. If D said something testimontary (not emergency) and is not not available, and Def. never got a chance to question her => violated CC (Def’s constitutional rights!) EVEN IF GOOD UNDER HEARSAY EXCEPTION.
prior convictions that do not include dishonesty but are relevant
can not be introduced as a matter of right!
These come in to impeach, so make sure prejudice does not outweigh the probative value.
compare: for dishonesty convictions, no 403
can D offer P’s relevant character first?
Sure, if is arguing Self-defense, can always open the door,
note: does not have to be homicide only.
is info about lawyers hours billed for C privileged?
No, AC privilege only covers com and Ac re lagal consultation, hours worked are not privileged.
when can Lawyer read treatise into evidence?
There is a hearsay exception that allows portions of learned treatises to be read into evidence, but this exception applies ONLY when the treatise is being used on direct or cross-examination of an expert witness.
prior inconsistent statement in grand jury that was sworn, can it come in substantively?
Yes, as long as it is sworn, + depos, trial testimony.
note the important part is that under penalty of perjury!
confidential marital communication ends
if a spouse actually goes around and starts sharing the confidential info. In such a case, the telling spouse retains the privilege to keep this one from testifying, but the blabbing one waives her immunity.
not for the truth hearsay when admitting statement in negligence action
in a negligence case, where knowledge of a danger is at issue, a statement of warning is admissible for the limited purpose of showing knowledge or notice on the part of a listener.
Careful re Declarant’s knowledge requirement
Dying Declaration - D must have actual knowledge - if it’s an opinion, no matter how strong - not enough
statement based on mere suspicion rather than actual knowledge does not constitute a statement concerning the cause or circumstances of an “impending death” for purposes of the dying declarations exception.
telling a person about symptoms experienced
is NOT USUALLY HEARSAY, because falls under present physical condition exception.
Statements of symptoms being experienced, including the existence of pain, are admissible under the Federal Rules, even if not made to a doctor or other medical personnel.
burden of persuasion and going forward with evidence
The burden of persuasion is the burden of a party to persuade the jury to decide an issue in its favor. If, after all the proof is in, the issue is equally balanced in the mind of the jury, then the party with the burden of persuasion must lose. The burden of persuasion does not shift from party to party during the course of a trial.
The burden of going forward with the evidence is the burden of producing sufficient evidence to create a fact question of the issue involved. If a plaintiff makes out a prima facie case, he has met his burden of going forward with the evidence and the burden shifts to the defendant.
Can a judge call and examine witnesses?
YES! The judge may call and examine the witness, but the parties are entitled to cross-examine the witness. A court is entitled to examine any witness called by any party, and may also call a witness on its own or at a party’s request
Proof of personal knowledge of a testifying w can be established by her own past statements if he was unconscious !!
W remembers telling passer-by who hit her but does not remember who actually hit her. + some evidence of injuries and stuff.
Can an expert testify as to the mental state of D?
criminal cases => no!!
civil - can give opinion of mental state (like if D crushed car on purpose), although cannot testify to the outcome of the case.
