Evidence Flashcards
1
Q
Any witness, including a criminal defendant, may be impeached with evidence of what kind of past criminal conviction?
A
conviction of past crime (w/in 10 years) involving dishonesty or false statement, even misdemeanors (related to impeachment because shows he’s a liar!)
2
Q
what’s the standard to determine whether the court may bar evidence of a past conviction NOT involving dishonestly or false statement to impeach a witness?
A
403
3
Q
what’s the best evidence rule?
A
It requires that the original document or a reliable duplicate be produced to prove the contents of a writing
4
Q
when does the best evidence rule apply?
A
The rule applies only when the contents of a document are at issue or a witness is relying on the document when testifying – we wanna make sure the CONTENTS are correct
5
Q
Is evidence generated by a machine or an animal considered admissible, or hearsay?
A
admissible. it’s NOT hearsay
6
Q
there is an exception to the hearsay rule for judgments of conviction; is there a similar exception that allows for admitting a judgment of acquittal
A
no
7
Q
**A prior inconsistent statement may be used to impeach a witness. When can that same evidence also be used as substantive evidence?
A
If a prior inconsistent statement by declarant was made under oath, it is admissible both to impeach the declarant’s credibility and as substantive evidence, so long as the witness testifies now and is subject to cross re: the statement (need not actually be crossed)
Because prior statement was under oath –> very credible –> substantive evidence
8
Q
when are settlement offers and negotiations admissible?
A
While settlement offers and negotiations generally are not admissible (to prove liability, ie that they committed a crime) for public policy reasons, they ARE admissible to prove the bias or prejudice of a witness, to negate a claim of undue delay, or to prove obstruction of a criminal investigation or prosecution.
(Because the son was offered a reduced sentence in exchange for his testimony, the jury should be able to weigh that fact when considering his credibility)
9
Q
A declarant is considered unavailable as a witness when ____________________________.
A
the declarant is absent
B
the proponent has procured the declarant’s unavailability
C
the declarant lacks memory of the subject matter of the statement
D
the declarant has been granted immunity
A
C
the declarant lacks memory of the subject matter of the statement
10
Q
machine evidence and hearsay
A
Evidence generated by a machine, such as an automatically generated time stamp on a fax, a printout of results of computerized telephone tracing equipment, and raw data (such as blood-alcohol level) generated by a forensic lab’s diagnostic machine, is not hearsay
11
Q
Is evidence of a juvenile conviction ever admissible in a civil case? If so, when?
A
Never
12
Q
Evidence of a juvenile conviction may be used to impeach a witness other than the defendant only if. . .
A
(i) it is offered in a criminal case,
(ii) an adult’s conviction for that same offense would be admissible to attack the adult’s credibility, and
(iii) admitting the evidence is necessary to fairly determine guilt or innocence.
13
Q
Pedestrian (P) testified that he always waits for the pedestrian crossing signal before crossing major intersections. D (Bus Co) asked P on cross about his prior ticket for jaywalking. Should this question be permitted?
A
Yes, because a witness may be impeached by evidence that contradicts the witness’s testimony.
14
Q
Does hearsay rule apply even when witness is present and can be crossed?
A
Yes, applies to any out-of-court statement (e.g., a record), even if the declarant is testifying and can be crossed
15
Q
does rule of completeness apply only to two statements from the same writing?
A
no, need not be a part of the writing or recorded statement introduced by the adverse party. The only requirement is that, in fairness, the two should be considered together
16
Q
confidential marital communications privilege:
a communication made between spouses while they were married is privileged if the communication was made in reliance on the sanctity of marriage. So if wife wants to reveal confidential communications that the husband had made to her while married, can husband prevent her?
A
yes, either spouse may assert the privilege and refuse to testify about the communication or even PREVENT the other spouse from testifying
17
Q
spousal immunity privilege
A
In a criminal case, the witness-spouse holds the spousal immunity privilege and may choose to testify, but cannot be compelled to do so.
The privilege applies to…
events that occurred before + during marriage
Here, the wife can choose to testify; the defendant cannot prevent her from taking the stand against him.
However, the wife is *prohibited from testifying as to confidential marital communications between the two.
18
Q
Past recollection recorded exception to the hearsay rule:
A
If a witness is unable to testify about a matter for which a record exists, that record is not excluded as hearsay if…
(i) the record is on a matter that the witness once knew about,
(ii) the record was made or adopted by the witness when the matter was fresh in the witness’s memory,
(iii) the record accurately reflects the witness’s knowledge when it was made, and
(iv) the witness states that she cannot recall the event well enough to testify fully and accurately, even after consulting the record on the stand
You CAN admit the recording into evidence, but CANNOT enter it as an exhibit (unless other side okay’s it)
19
Q
In civil cases, when may specific instances of conduct be used to prove character?
A
only when character is an essential element of a claim or defense (usually defamation cases – accused of being adulterer, can admit evidence of promiscuity)
20
Q
Although evidence of subsequent remedial measures is generally not admissible to prove negligence for public policy reasons, it may be admissible for . . .
A
other purposes, like to prove ownership or control of the cause of harm, if disputed.
21
Q
A statement made by a party to the current litigation is not hearsay if it is offered by an opposing party.
A
Because D’s purported letter has been authenticated by D’s supervisor (via handwriting), P may admit D’s letter
22
Q
dying declaration
A
declarant believes that her death is imminent, and the statement pertains to the cause or circumstances of HER OWN death that she believes to be imminent.
Here, the lady’s last words to paramedic after heart attack was “I killed my husband the other day,” but that has nothing to do with her heart attack
23
Q
statement against interest
A
A statement made by a declarant who is unavailable to testify is not excluded as hearsay if the statement was (1) against the declarant’s interest at the time it was made, and (2) would not have been made by a reasonable person unless he believed it to be true
24
Q
the attorney-client privilege does not protect communications made to enable or aid in the commission of what the ___ knew or should have known was a crime or fraud.
A
client. so you can force attorney to testify if attorney had no idea that his advice was helping client commit crime but CLIENT DID KNOW
25
when state substantive law is determinative of the existence of a ___ or __ under the Erie doctrine, then ___ also governs the effect of a presumption related to the __ or __
claim or defense
state law
claim or defense
26
post trial, attorney speaks with juror, who says that the jury misunderstood the judge’s instruction regarding the standard of proof to apply in the case. Can attorney use this info for new trial?
no, a juror generally may not testify as to any matter or statement that occurred during the course of the jury's deliberations
27
post trial, attorney speaks with juror, who says he relied heavily on testimony that the judge had stricken from the record. Can attorney use this info for new trial?
no, the juror may not testify as to his mental process concerning the verdict, even if it involved relying on evidence stricken from the record
28
which prior statement by a witness may be used to impeach her?
one inconsistent with a material part of her present testimony
However, extrinsic evidence of a witness’s prior inconsistent statement may be introduced only if the witness is given the opportunity to explain or deny the statement and the opposing party is given the opportunity to examine the witness about it.
29
if a statement is being introduced for impeachment purposes only, is it hearsay?
no because it's not being offered to prove what it asserted -- it's being offered to IMPEACH ("you SAID something else before")
30
when can statements made by a defendant during plea negotiations be admissible?
via waiver
31
what's an opposing party’s statement?
Party A's statement is NOT hearsay (admit!) if it's offered by Opposing Party B
here, their statement was in police report
32
When may a witness may be asked about specific instances of conduct?
On cross, if it's probative of the truthfulness or untruthfulness of (i) the witness or (ii) another witness about whose character the witness being cross-examined has testified.
33
**Can convictions for FELONY crimes *NOT involving fraud or dishonesty* that are less than 10 years old be admissible to impeach a witness? If so, when?
Yes. objecting party must show that the conviction fails 403 (because we presume a FELONY reveals dishonesty) (but older than 10 years old = forgive and forget)
34
**Are misdemeanor convictions admissible to impeach a witness? If so, when?
yes, but only if they are probative of untruthfulness
35
If more than 10 years have elapsed since the conviction, when is evidence of the crime admissible?
Not admissible, unless the court determines that the probative value substantially outweighs prejudice (reverse 403)
36
How do you authenticate X-ray images, electrocardiograms, and similar items that are physical representations of things that cannot otherwise be seen?
show that an accurate process was used, that the machine used was working properly, and that the operator of the machine was qualified to operate it. Also, establish the chain of custody.
37
can you introduce potentially relevant evidence that relies on a conditional fact?
When the relevance of evidence depends upon whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist.
The court may admit the proposed evidence on the condition that the proof is introduced later.
In determining that sufficient evidence has been introduced, the court must examine all of the evidence and decide whether the jury could reasonably find the conditional fact by a preponderance of the evidence
38
in deciding preliminary questions regarding the competency of evidence, is the judge bound by the Federal Rules of Evidence, privileges, both, or neither?
only privileges
39
before trial, if dad (now dead) nodded in response to question about whether his daughter kills animals (case is about her killing her child), and P wants to introduce the nod to demonstrate that the defendant had a violent history against animals, is the nod admissible?
no, it's hearsay: nod is used to prove the truth of the matter asserted (that daughter killed animals). Fact that dad's dad is irrelevant
40
CALIFORNIA: If a defendant claims self-defense in a murder trial, may P offer evidence re: the victim's good character under the Federal Rules of Evidence (FRE), or the California Evidence Code (CEC) (or both) (or neither)?
under the FRE, but not the CEC.
41
CALIFORNIA: When a statement accompanies an offer to pay medical expenses, both the offer and the statement are admissible or inadmissible (or one or neither)?
NEITHER are admissible
Although fed allows you to admit the statements surrounding the offer ("Sorry for hitting you!")
42
**present sense impression
A statement [describing or explaining an event or condition] that is made while or immediately after the declarant perceived it, is not excluded as hearsay.
eg woman relaying license plate numbers to husband as she sees them
43
excited utterance
A statement made about a startling event or condition while the declarant is under the stress of excitement that it caused is not excluded as hearsay. Under this exception, the event must shock or excite the declarant, and the statement must relate to the event,
44
what evidence must be authenticated?
all tangible evidence must be authenticated. Produce sufficient evidence to support a finding that the thing is what P claims
45
Voter registration listed used to determine voire dire. 90% ended up being women. okay?
yes
46
If witness is testifying about declarant’s statement, can opposing party ask a question re: DECLARANT’s bias?
Yes
47
When must re-direct examination be permitted?
If there were significant new matters raised on cross
48
When May subsequent remedial measures me admissible?
To show ownership or control over the property in question
49
Are public records admissible?
Yes under hearsay exception for public records
50
**Can lay witness—who acquires familiarity with handwriting “in order to authenticate the signature”—properly authenticate the signature?
No, because the familiarly with the handwriting CANNOT be acquired solely for purposes of litigation
51
Can an animals actions be considered hearsay?
No, hearsay applies only to people
52
When’s a leading question least permissible?
When questioning a disinterested witness on direct.
| Leading questions are MORE likely to be permitted with a kid
53
to determine whether a state has personal jdx over a corporation...
use the minimum contacts test (CFR): relatedness (b/t the cause of action and forum state), contacts (b/t forum state and D), and fairness (drag D internationally?). putting items in stream of commerce in that state isn't enough
54
when is a past civil judgment admissible?
never
55
may a court refuse to admit evidence related to a collateral issue? why / why not?
yes, because a party generally may not impeach the credibility of a witness by introducing extrinsic evidence of a collateral matter. Instead, the party must accept the witness’s testimony.
56
Can you admit evidence offered to prove a victim’s sexual conduct or predisposition in a *civil* case involving alleged sexual misconduct? If so, when?
yes, if the court determines that the probative value substantially outweighs the danger of harm and unfair prejudice
57
When a court erroneously admits evidence, it may...
permit the introduction of additional inadmissible evidence to rebut the previously admitted evidence (to minimize prejudice)
58
can you introduce misdemeanors as *impeachment* evidence?
only if w/in 10 years and involve dishonesty or false statement -> trying to impeach so let's focus on dishonesty
59
Testimony that a diligent search failed to disclose a public record/statement [may / may not] be admitted to prove that the record/statement does not exist, or that a matter did not occur/exist, if a public office regularly kept a record of statements for a matter of that kind
may
60
the trial judge decides preliminary questions as to the ___ of evidence, while the jury determines the __ and __ of the evidence
judge -> admissibility
| jury -> weight and credibility of admitted evidence
61
**A defendant's past crimes or other wrongful acts are not admissible *to show his criminal propensity*, but they are admissible as circumstantial evidence of MIMIC, meaning...
```
Motive
Identity
Absence of Mistake
Intent
Common Plan/Scheme
```
62
A statement contained in a medical treatise that has been established as a reliable authority by the testimony of P's expert witness [is / is not] excluded as hearsay if the statement is called to D's expert’s attention on cross-examination.
Is not excluded.
Although the treatise must be established as a reliable authority in order for a passage from the treatise to be read into evidence, there is no requirement that the expert who establishes the treatise as a reliable authority rely on the passage in forming her own opinion.
63
voice authentication
When a statement is made by someone whose voice is only heard, but not seen, it must be authenticated
64
Statement to compromise only applies when...
There’s an already-disputed claim
65
Can jury ever examine a treatise? If so, when?
No, counsel/witness may only read aloud (if not, jury will consider stuff it shouldn’t)
66
When one witness’ cross testimony includes a collateral issue, can opposing counsel call her witness to counter that testimony?
No because it’s unnecessary since the issue is collateral—will drag out the case
67
Then-existing mental condition exception
Hearsay permitted if relates to declarant’s then-existing state of mind, like their plans
68
Can opposing party’s employee’s statement be admissible despite hearsay?
Yes as a vicarious admission of party-opponent because employee was acting in scope of employment during employee-employer relationship
69
Past recollections recorded
Only when questioner *lays the foundation* that witness’s memory is in question, or that the contents are accurate based on when the events were fresh in her mind
70
Can an expert express an opinion re: D’s mental state at time of killing?
No (eg can’t say that via hypnosis discovered that D was in fear at time of killing)
71
Do federal courts recognize a physician-patient privilege?
No :O (feds don’t care about your doctor)
72
Evidence of prior crimes is admissible to impeach a witness if...
it’s a felony (10 years) or involves dishonesty—reasoning: show D is inclined to lie. He’s a felon!
So prosecutors can ask “were you convicted of tax fraud last year?” for trail re robbery
73
Dying declaration:
Does declarant need to be unavailable?
Is it admissible in any type of case?
Yes, must not be available.
| Only cases: homicide or civil
74
on essay, when doing character analysis, which other topic must you mention?
Impeachment: Evidence may be inadmissible for use as character evidence but admissible for impeachment
so character discussion (Trump) -> impeachment
75
if a witness wants to testify that she thinks the man's voice was the one on the call but is uncertain, can she testify? or does she have to bring in the tame (whose existence is known to D)
she can testify because the victim's lack of certainty goes to the weight to be given to her testimony, not to its admissibility
the best evidence rule requires producing the original when the *contents of a recording are being introduced into evidence*, but here the victim's trying to testify to her personal knowledge of the caller's VOICE, not introducing the recording into evidence
76
Court admitted testimony by P about D (that D and wife fought) that was irrelevant to lawsuit. D wants to testify in response that he/wife never fought. Should/must court let D respond, and does D need to object first?
court MAY permit D to answer, regardless of whether he objected.
So: court MAY allow irrelevant curative evidence to rebut previously admitted irrelevant evidence (as long as curative one isn't prejudicial). We need to give court chance to fix it's fuck up, and don't need to force other side to object first.
77
is a witness' refusal to testify considered an unavailable witness?
yes (so if gave former testimony at previous trial but doesnt wanna testify now, can bring it in under hearsay exception)
78
when a witness has been impeached based on his character for untruthfulness ("look he committed tax fraud"), can witness be rehabilitated w/ opinion/reputation evidence of truthfulness?
yes
79
**does present sense impression count when it's re: something witnessed a few minutes ago?
no. present sense impression: statement must've been made while witness perceived the event of IMMEDIATELY after event occurred
80
cross is limited to...
subject matter of the direct + matters affecting credibility
81
are fee arrangements and payments protected by attorney-client privilege?
no, A-C privilege applies only to confidential *communications* made to facilitate legal rep
So P CAN ask D's atty to produce records re: how much D has paid in atty fees
82
ancient documents exception to hearsay is limited to statements in documents prepared before which year?
1998
83
when a client seeks his attorney's advice in furtherance of planning to commit an illegal activity, the attorney-client privilege does not apply, [only if / regardless of whether] the attorney was aware of the illegal activity
regardless of whether the attorney knew -- focus is on CLIENT's intent
84
**hearsay exception for then-existing state of mind covers [A, B, and C]
then-existing mental, emotional, or physical condition ("He told me, 'I'm going to return the car asap'" or "He told me that he loves her"
[MEEEP...moy...mental/emotional/physical]
85
when someone gives a statement to the police after being arrested, does the motivation to lie exist?
yes
86
**prior consistent statement
exception to hearsay that, regardless of whether made under oath, is not hearsay when offered to rebut an express or implied charge that a witness is lying or exaggerated (so if testifying on *direct*, it's not in response to anything, so doesn't fit here)
it's only admissible if it was made BEFORE the alleged motive to lie/exaggerate came into being (so a statement to cops while arrested wouldn't qualify because they already had the motive to lie)
87
a prior consistent statement is only admissible if...
it was made BEFORE the alleged motive to lie/exaggerate came into being (so a statement to cops while arrested wouldn't qualify because they already had the motive to lie)
88
when witness-declarant himself (D) offers his own (D) out-of-court statement, is it auto admissible as opposing party statement?
no because offering it for himself -- so not an OPPOSING party statement offered against that side
89
if a party requests it, must the court order witnesses excluded so that they can't hear the testimony of other witnesses?
yes
90
does judge have discretion to expand scope of cross beyond stuff raised on direct?
yes :O
91
is "admissible as an admission" same as "admissible as an opposing party statement?
yes
92
when P made a record (eg diary), based on first-hand knowledge, when the matter was fresh in her memory, which accurately reflected her knowledge (I know that whatever I put in my diary was true), but she has insufficient recollection at trial (ie showing her the diary didn't refresh her memory memory wasn't be refreshed), can the info in the record (eg diary) be admitted?
yes. witness should be allowed to read the diary into evidence, but it CANNOT be offered as an exhibit (so it's excluded from deliberations), unless adverse party offers it
(past recollection recorded)
93
does spousal immunity cover events before marriage?
yes, wife can refuse to testify about stuff husband told someone else before wife was even married to him
94
P said D's machine was defectively designed. 2 wires come together to shock P. D said it was impossible to prevent wires from coming together. Can P introduce evidence showing that the machine was redesigned to prevent wires from coming together?
yes! although subsequent remedial measures are typically not admissible to prove negligence/defect, evidence re these measures are admissible to establish the *feasibility of a precautionary measure* (and to show proof of ownership, control, impeachment)
"See, it IS PHYSICALLY POSSIBLE"
95
D's on trial for robbing bank w/ BFF, who fled country. BBF's mom said he told her "Mom I have to go, I robbed a bank." Admissible?
yes as a statement against penal interest. it's not testimonial under the Confrontation Clause because it was made to a family member, not for the purpose of creating a substitute for in-court testimony
96
how's a statement against penal interest different from an opposing party statement?
a statement against penal interest could be made by a *non party*
97
**statement is likely to be testimonial if...
statement prepared for purpose of being used in a criminal prosecution
made during police interrogation, like interviews by police at crime scene (as long as statement isn't re: ongoing emergency)
in those cases, D must have right to confront/cross the W against him (if not, like if testimonial + declarant is unavailable, violates Confrontation Clause)
98
**a prior inconsistent statement (here previously given to police, contradicts what D says on the stand), [is / is not] admissible to impeach D's trial testimony
is (and also might be admissible as substantive evidence if opposing party statement, previously said under oath and now subject to cross [credible] etc)
99
is there a hearsay exception for a certification offered to prove the absence of a public record
yes
100
is a party entitled to depose consulting experts (those retained in anticipation of litigation but who aren't expected to testify at trial)?
no, only entitled to depose testifying experts. can depose consulting expert if u show exceptional circumstances where it's impracticable to obtain facts by other means
101
**if errors re: admitting evidence and jury instructions were made with ___, and P had objected to them, then appeals court could reverse
with prejudice
102
**could written out answers to a questionnaire count as a statement for medical diagnosis/treatment?
yes, doesn't need to be oral
photocopy okay unless question of authenticity arises or it'd be unfair to admit it over original
103
business records exception
statements in the record must've been made by someone who had a duty to make it as part of the regularly conducted business activity (so patient's answers to questionnaire do NOT count because PATIENT (who made the statements) didn't have a duty to as patty of biz activity
104
A and B charged w/ conspiracy. B skipped bail, can't be found. if someone testifies that B said something, will that be admissible as opposing party statement?
no because B is not a party (not there)
105
does statement against interest (hearsay exception) need to be made by an unavailable declarant?
yes (statement can be from ANY non-available person, even someone who's a stranger to the litigation)
106
statement against interest elements
1) statement against declarant's PPP (pecuniary, proprietary, or penal) interest
2) w/ knowledge of the facts
3) by an unavailable declarant
107
what're the 2 proper areas on cross?
1) subject matters covered on direct
| 2) W's credibility
108
hearsay exception: summary of voluminous documents vs. absence of an entry from a public record (or absence of a particular biz record)
absence of an entry from a public record = I searched but couldn't find (no record that guy was in jail)
summary = summarize the contents of the records
109
physician died but had affidavit confirming that he examined passenger (P) before the accident and found him suffering from back injury. admissible as a statement of present bodily condition made to a physician?
no because the affidavit concerns the physician's examination of the passenger, NOT the passenger's statements to the physician of present bodily condition
110
**hearsay evidence relied upon by an expert can generally be introduced. when can it NOT?
when it poses too great a risk of prejudice/confusion
experts may rely on hearsay in reaching conclusion if other experts would reasonably rely on info like that
111
which one of these alone is enough for presumption of juror bias/can strike for cause: stock ownership, or having spouse who worked for one of the parties
either is enough
112
In civil case, can expert testify re: D having requisite mens rea to commit crime? what about in criminal case?
expert can in civil, not in criminal
but in both, expert cant give opinion on legal outcome (eg applying legal rules to come to dispositive conclusions)
113
**good faith exception
only applies when a warrant issued to the police is invalid but they reasonably believed it was valid and relied upon that belief (eg computer mistake)
114
is an officer's testimony re: W's prior identification of D admissible as non-hearsay, allowing prior statements of identification (when W said on stand that she couldn't identify D as the robber)?
yes
115
are hearsay statements admissible if the declarant can testify and is available for cross?
NO! hearsay is hearsay
116
if a witnesses uses a writing (eg report) to refresh her memory before testifying, the court may, must, or cannot grant D's request to examine it?
may, if justice requires it (eh it was before testimony, only show D if we NEED to)
117
if a witnesses uses a writing to refresh her memory during her testimony, the court must/may/cannot grant D's request to examine it?
must (report's up there, just show it to D if D asks)
118
reply-letter doctrine
W's testimony that initial inquiry letter was sent authenticates D's reply letter
no need to even prove contents of inquiry letter
119
expert testifies that D retained him for a fee to test identical lawnmowers and, if his opinion was helpful, to testify in the case." allowed?
yes. just can't be paid a fee for the fact of testifying/not testifying, or for the substance of the testimony
here, expert was paid for his services: performing testing
he wasn't paid to give a specific opinion
he was asked to testify based on the findings of his testing which were favorable to D
120
P sued D in car accident case. At trial, P wishes to show by extrinsic evidence that D's primary witness is also D's partner in a gambling operation. This evidence is admissible or inadmissible? why?
admissible, as evidence of the witness's possible bias in favor of D
so: extrinsic evidence of bias is admissible
121
evidence of a witness's religious beliefs is not admissible to attack or support W's __, but may be used to show __
not for credibility (not for: he tends to lie), but okay for bias (eg dislikes military)
122
for declaration against interest, you must be given facts that the declarant is __
unavailable. the declarant himself must risk some liability to himself w/ the statement
123
**testimony about a witness' prior inconsistent unsworn statement is hearsay. can it still be used to impeachment him?
eg: witness testified that D committed a robbery. D then calls cellmate to testify that the witness told him that the witness committed the robbery alone (so: this is testimony about a W's prior inconsistent unsworn statement - allowable as impeachment evidence?
yes
124
**expert witness, during own testimony, identified a text as reliable authority in the field. he wants to read to the jury passages from this book on which he had relied in forming his opinion on the proper standard of care
is it admissible/inadmissible as a basis for his opinion? as substantive evidence of the property standard of care?
yes to both.
under the learned treatise exception to the hearsay rule, the passage from the text is *substantively admissible because it was established as a reliable authority on direct of the expert (and also admissible as basis of his opinion)
125
statements made during a phone conversation may be authenticated by one of the parties to the call (eg recipient of call) who testifies that the speaker has knowledge of certain facts that only a particular person may have (eg if the witness had given his unlisted number only to D and a few others, then phone call purported to be D may be admitted because only D and few others had it)
a phone call may also be authenticated if a party called Mr A's cell and a voice answered "This is Mr A / his residence"
But self-authentication by the CALLER is insufficient to allow admitting it against the purported speaker
126
when answer choice says "admissible as circumstantial evidence that XYZ," what does it mean?
that the evidence is relevant and admissible
127
for hearsay, remember: is it being offered for the TRUTH of the matter asserted?
if not, not hearsay (may admit)
128
impeachment by contradiction
one impeachment method is to contradict W's testimony by:
1) using cross to get W to concede that he was wrong in direct
2) using other previously-introduced testimony/evidence as a weapon during cross to show that W lied/wrong
3) show that W has previously made statements inconsistent w/ her testimony at trial
4) introduce new evidence (testimony by second W or physical evidence) showing that OG W's story isn't correct
BUT MAKE SURE NOT TO INTRODUCE EXTRINSIC EVIDENCE ON A COLLATERAL ISSUE
129
when cops have probable cause to believe car contains drugs, can they search the entire vehicle, including every container/space?
yes, including driver's pocket
130
is telephoning wife immediately after being assaulted considered excited utterance?
yes
131
**is an expert required to first testify to the underlying facts or data, before stating her opinion/reasons for it?
no, just needs to be qualified as an expert
132
evidence of insurance may no be used to prove...
that D acted negligently/wrongfully, but it CAN be admitted for other purposes, like proof of motive/ID/etc
133
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| 9/14
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| 9/14
134
**present recollection refreshed vs past recollection recorded
present recollection refreshed = let W view almost any item, even if hearsay, to help in remembering SOMETHING he says he's forgotten on stand. refresh..remember something
past recollection recorded = requires that W be COMPLETELY devoid of memory. Foundation needed to show letter was made when the matter was fresh in his memory and that it reflected that memory accurately
135
can a guilty plea of DUI be admitted in a subsequent trial (re: same crash) as proof of D's intoxication?
yes
D's guilty plea of DUI is an admission that he was, in fact, DUI. As an admission, the record of D's conviction can be admitted as proof of his intoxication
136
can eyewitness' hearsay statement inside of a properly authenticated police report be admitted?
no because the police report is admissible BUT any hearsay statements within it, like this one, are not: when an out-of-court statement is contained w/in another out-of-court statement, EACH individual statement must be admissible
report is hearsay BUT still admissible under public record exception; but the hearsay within it (eyewitness statement) doesn't satisfy an exception here
137
when an out-of-court statement is introduced for ANY purpose other than to prove the truth of the matter asserted, there's no need to cross the declarant, so it's not hearsay
eg introduced to show effect on listener, like knowledge (D didn't KNOW TV was stolen because he heard friend say it wasn't)
138
even if it's hearsay, a declarant's statement can be introduced to impeach the declarant, even if declarant's unavailable
eg D says he heard X say that light was red
another witness can say he heard X say the light was yellow -- introduce as IMPEACHMENT
139
are courts reluctant to find adoption by silence in post-arrest situations?
yes, because you might realize anything u say can be used against u, dont wanna talk
140
does statement 2 hours after the event = excited utterance?
no, need continuous state of excitement
141
**physician in ER car asks "what happened?", husband says "wife got ran over" - statement for diagnosis/treatment?
no. statement about the cause of the injury must be reasonably pertinent
**does NOT include statements assigning fault or identifying the perpetrator
142
what's an adoptive admission?
statements made by others but that the opposing party adopts as its own (eg responds to interrogatory by referring to Medical Journal - admissible, kinda like opposing party statement)
143
**a W's prior inconsistent statement may be introduced as impeachment evidence. when can it ALSO be introduced as substantive?
(1) declarant's prior statement was made under oath
| (2) declarant's now subject to cross
144
re: crash: "it was my own fault; there's no one to blame but me" - statement against interest?
yes, exposure to civil liability
145
re: crash: "it was my own fault; there's no one to blame but me" - state of mind?
no! it's not being offered to show his state of mind; it's being offered to PROVE that he was at fault, not to show that he was sad etc (who cares!)
146
business records exception
must be related to the nature of the BUSINESS itself (so dept store, must be re: the dept store BUSINESS, not accident reports)
if something indicates lack of trustworthiness of the report -- like an employee writing a self-serving accident report prepped w/ eye towards litigation -- then can't be admitted
147
is 30 minute delay close enough for present-sense impression?
no, must be during or IMMEDIATELY after
148
**then-existing mental state includes what?
motive, intent, plan
M ental state
M otive, intent, plan (what're you THINKING of doing)
offered to prove future conduct (he left the state)
149
**best evidence rule applies to what type of stuff?
writing, recording, photograph, x-ray
150
can an expert offer an opinion based on a hypothetical question?
yes, as long as relevant/based on facts/data from the case
no notice requirement
151
is there an "official document" exception to hearsay in favor of affidavits?
no. affidavits can be hearsay and NOT admissible
152
if a party moves to exclude prospective witnesses before they testify, so that they cant hear other witness' testimony, MUST the court exclude them?
yes!
153
if P requests the production of a writing used before trial to refresh a witness' memory, must the court do so?
no, court has discretion
154
shifting the burden to D to prove ANY element of the offense is or is not constitutional under due process?
not constitutional -- P must prove every element
155
judicial notice in civil vs criminal case
civil: MUST accept (lower stakes lol)
criminal: may, but not required to, accept
156
when can witness testify as to D's reputation for truthfulness?
to rehabilitate (if P attacked truthfulness directly) or if truthfulness is at heart of claim
157
is ordering D to walk in room, requiring blood sample, voice sample, or handwriting exemplars testimonial?
no. wow
testimonial = VERBALIZING THAT'S THAT INCRIMINATE YOU (though voice sample is okay - that's just your voice)
158
On cross of an expert, can P attorney challenge the qualifications of the expert by asking "did u fail chemistry twice?"
yes
159
only POLICE COERCION will cause a confession to be involuntary (think of the shows)
so it's NOT enough to simply say u had a mental illness that prevents it from being free will
160
evidence that two days before the alleged killer of a young girl (strangled/taped) a witness says he saw him do the same thing to little girl IS admissible because
shows motive/intent/plan, which helps establish him as the killer
161
is an impeachment question on cross ("isn't it true that you've stolen money from your neighbor?") subject to 403?
yes :O
162
what can juror TESTIFY about after trial to support motion for new trial?
extraneous prejudicial info/improper outside influences, mistake on verdict form, whether a juror relied on racial stereotypes
