Evidence Flashcards
Evidence: Relevance, Similar Occurrences Plaintiff’s Accident History
Generally inadmissible EXCEPTION: May be admissible if the event that caused the Plaintiff’s injuries is an issue
Evidence: Opinion Testimony If the material relied upon by the expert is from outside the record, can the expert disclose the actual contents of the out-of-court material when testifying?
Generally, out-of-court material relied upon by the expert may only be stated in general terms, UNLESS: 1. It is necessary to aid the jury in determining the probative value of the expert’s opinion, AND 2. The court gives a limiting instruction to the jury not to use the out-of-court material for its truth.
Evidence: Impeachment Methods
7 Methods 1. Prior Inconsistent Statements 2. Bias, Interest, or Motive to Misrepresent 3. Sensory Deficiencies 4. Bad Reputation or opinion about witness’s character for truthfulness 5. Criminal Convictions 6. Bad Acts that reflect adversely on witness’s character for truthfulness 7. Contradiction Can impeach a witness by confronting them (ask the witness and hope they admit) OR by proving the fact w/ extrinsic evidence
Evidence: Hearsay Exceptions What are acceptable grounds for the unavailability of a witness?
“PAILS”:
P rivilege
A bsence from Juristiction (either cannot find despite due diligence or beyond subpoena power)
I llness or Death
L ack of Memory
S tubborn Refusal to Testify
**These grounds apply to ALL exceptions where unavailability is a requirement**
Evidence: Hearsay Exceptions What is a dying declaration?
A statement made under a belief of impending and certain death by a now-unavailable declarant concerning the cause or surrounding circumstances of the declarant’s death.
Evidence: Physician-Patient Privilege Elements: Exception:
- Confidential communication or information acquired by physician from patient 2. For purposes of diagnosis or treatment of medical condition EXCEPTION: If patient expressly or impliedly puts physical or mental condition in issue
Evidence: Physician-Patient Privilege MD distinction
No general physician-patient privilege, but rather psychotherapist-patient Exists unless: (1) if patient puts mental conditions in issue (2) In malpractice action against psychotherapist (3) In proceeding by state to commit patient to mental health facility (4) In case of child abuse or neglect
Evidence: Hearsay Exceptions What is the MD “Tender Years” Statute?
A hearsay exception that applies to: 1. Statement made by child under 13 who is the victim of alleged sexual offense, abuse, or neglect; 2. Statement was made to an MD, psychologist, nurse, SW, school official, licensed counselor/therapist; AND 3. Statement has particularized guarantees of trustworthiness. NOTE: If statement is introduced in a criminal case or in a juvenile proceeding, the child victim must also testify, and be subject to cross. IN CINA cases, child does NOT have to testify, but statement must be corroborated by other evidence of offender’s abuse/neglect.
Evidence: Relevance, Policy Based Exclusions
Describe the Admissibility of Settlement Negotiations in Disputed Civil Claims
If there is a disputed Civil Claim then following are INADMISSIBLE for the purpose of showing liability or to impeach prior inconsistent statements of a witness:
- Settlement
- Offer to Settle
- Statement of fact made during settlement discussion
EXCEPTIONS: 1) May impeach on grounds of bias 2) Statements of fact made during settlement discussion in civil litigation with a GOVERNMENT REGULATORY AGENCY are admissible in a later criminal case —-Settlements and offers to settle to not apply —-MARYLAND: Has not adopted (2)
Evidence: Impeachment by Criminal Conviction
Method of impeachment used to show that a person who has been convicted of a crime is more likely to lie under oath than a person w/ an unblemished record Fed- Conviction of any crime (felony or misdemeanor) where prosecution was required to prove false stmt as an element of the crime (Ct. has no discretion to exclude) or any felony (ct. may exclude if probative value is outweighed by unfair prejudice). Must be w/in 10 yrs of trial UNLESS probative value is substantial. - can ask W to admit OR intro record of conviction
Evidence: Sensory Deficiencies
Impeachment by anything that could affect W’s perception or memory (like eyesight, hearing, consumption of alcohol) to suggest mistake Fed- No confrontation of W required MD- have to confront before introducing extrinsic evidence
Evidence: Non-Hearsay Prior Statements of Trial Witness MD
Comes in as Substantive Evidence if: 1. Prior statement of identification of person 2. “Prompt complaint” by complaining witness in sex assault case 3. Prior inconsistent statement if prior statement was: —Oral under oath, and made during a formal trial, hearing, proceeding, or deposition; or —Contained in a writing signed by the witness; or —Recorded by stenographic or electronic means at the time the statement was made 4. Prior consistent statement used to rebut charge of recent fabrication or improper motive or influence
Evidence: Physician-Patient Privilege Federal Distinction
Only recognizes psychotherapy-client privilege
Evidence: Writings in Aid of Oral Testimony What foundation needs to be laid by the proponent in order to use the hearsay exception for past recollection recorded (using a witness’s past recollection as a substitute for their verbal testimony)?
- Showing writing fails to jog memory 2. Witness had personal knowledge at former time 3. Writing was either made by the witness or adopted by the witness 4. Making or adoption occurred when event was fresh in witness’s memory 5. Witness can vouch for accuracy of writing when made or adopted
Evidence: Impeachment by Bad Acts
Impeachment by showing bad acts (w/o conviction) that reflect adversely on witness’s character for truthfulness - confrontation is required - must have good faith basis for inquiry and permission to make inquiry is at ct.’s discretion - no extrinsic evidence permitted, have to ask W and hope they admit
Evidence: Writings in Aid of Oral Testimony What rights does the adversary have with regard to a prepared document used to jog the memory of the opposing party’s witness?
The adversary has the right to: 1. Inspect the memory refresher 2. Use it on cross-examination 3. Introduce it into evidence (proponent does NOT have this right)
Evidence: Introduction of D’s other crimes for non-character purposes
- Not admissible during prosecution’s case in chief to show D more likely to have committed crime currently charged
- May be admissible to show something specific about the crime currently charged
- 5 most common non-character purposes= MIMIC:
- M otive
- I ntent
- M istake or accident (absence thereof)
- I dentity
- C ommon scheme or plan
Evidence: Impeachment by Bad Reputation or Opinion about W’s character for truthfulness
Can impeach any witness by this method- call a character witness to testify that target witness has a bad rep for truthfulness or that character witness has low opinion of target witness. No confrontation is required and extrinsic evidence is the only thing to use for this method - suggests that target witness isn’t telling truth on witness stand - no specific acts allowed, even if they show the basis for opinion or reputation
Evidence: Non-Hearsay Prior Statements of Trial Witness
GENERALLY INADMISSIBLE, unless witness is currently subject to cross-examination and: 1. Witness’s prior statement of identification of a person; or 2. Witness’s prior inconsistent statement IF oral, under oath and made during formal trial, hearing, proceeding, or deposition; or 3. Witness’s prior consistent statement IF being used now to rebut charge of recent fabrication or improper motive or influence COMES IN AS SUBSTANTIVE EVIDENCE
Evidence: Opinion Testimony May treatises, periodicals, pamphlets, etc. by used in aid of an expert’s testimony?
Yes. On DIRECT examination of party’s own expert, these materials may be read into evidence as substantive evidence if established as a reliable authority. On CROSS of an opponent’s expert, these materials may be read into evidence as substantive evidence to impeach and contradict the opponent’s expert. **NOTE: MAY NOT be introduced as exhibits**
Evidence: Privileges
4 Types of Privileges Attorney- Client Physician- Patient Spousal - Spousal Immunity - Confidential Comms
Evidence: Relevance, Similar Occurrences Comparable Sales on Issue of Value
Selling price of other property of similar type, etc. to show value of own property
Evidence: Witnesses Do the Federal Rules of Evidence include a Dead Man’s Act?
No. NOTE: This means that on the MBE, interested witnesses ARE NOT deemed incompetant if they are interested parties/witnesses. IN MD: Only an interested PARTY may not testify; an interested WITNESS may.
Evidence: Opinion Testimony Does Maryland use the “TRAP” test to determine whether the reliability of the principles and methodology used by expert witnesses in reaching their opinions?
No. In MD, the sole factor for determining the reliability of scientifc evidence is general acceptance of the principles/methods by the scientific community. All non-scientific evidence is governed by the more flexible standard of “adequate” methodology.
Evidence: Hearsay Exceptions What does the Forfeiture Hearsay Exception allow for?
This hearsay exception allows any type of hearsay statement to be admissible against a D whose wrongdoing made the witness unavailable, if the court court finds that by preponderance of the evidence, the D’s conduct was designed to prevent the witness from testifying. NOTE: Witness must be UNAVAILABLE. Sixth Amendment protections are forfeited in addition to hearsay objections!
Evidence: Hearsay Exceptions When is the former testimony of a now-unavailable witness allowed to be admitted?
The former testimony of a now-unavailable witness is admissible against a party who previously had the opportunity and motive to cross-examine or develop the testimony of the witness, and where the issue in both proceedings was essentially the same COMMON CIRCUMSTANCES: Under oath is previous trial, at a deposition. Grand jusry doesn’t count unless evidence being introduced in AGAINST the prosecution.
Evidence: Non-Hearsay Verbal Acts (legally operative words)
A situation where the substantive law attaches rights and obligations to certain words simply because they were spoken
Evidence: Victim’s Character- Self Defense Case
In addition to direct evidence that the alleged victim of an assault was the first aggressor, Criminal D may introduce evidence of a victim’s violent character to prove victim’s conduct in conformity. - character witness may testify to victim’s reputation for violence and may give opinion about victim’s character Prosecution can rebut w/ evidence of victim’s good character and under FRE may prove D’s character for violence. MD: Prosecution’s rebuttal is limited to evidence of victim’s good character
Evidence: Hearsay Exceptions What is the Present State of Mind hearsay exception?
Contemporaneous statement concerning the declarant’s present state of mind, feelings, or emotions. NOTE: Unavailability NOT required.
Evidence: Self-authenticating Documents
6 kinds presumed authentic 1. Official pubs 2. certified copies of public or private records on file in public office 3. newspapers or periodicals 4. trade inscriptions and labels 5. acknowledged document 6. commercial paper
Evidence: Hearsay Exceptions What is hearsay within hearsay?
A hearsay statement included within a hearsay statement. Inadmissible unless EACH statement falls within a hearsay exception.
Evidence: Best Evidence Rule What is the definition of the Best Evidence Rule?
A party who seeks to prove the contents of a writing must either produce the original writing, or provide an acceptable excuse for its absence. NOTE: The definition of a writing ALSO includes sound recordings, X-rays, and films.
Evidence: Credibility and Impeachment When is the bolstering of one’s own witness permissible?
After the witness’s credibility is attacked.
Evidence: Hearsay Exceptions What are the elements of the Business Records hearsay exception?
- Records of any type of business
- Made in the regular course of business
- The business regularly keeps such records
- Made at or about the time of the event recorded
- Contents consist of info observed by employees of the business OR a statement that falls within an independent hearsay exception
Evidence: Relevance, Policy Based Exclusions Plea Bargaining
Generally inadmissible BUT, a plea of GUILTY is ADMISSIBLE in subsequent litigation based on the same facts under the rule of party admissions
Evidence: Non-Hearsay Party Admissions (Statement of an opposing party)
Any statement made by either party is admissible if it is against the party (offered by other side) COMES IN AS SUBSTANTIVE EVIDENCE
Evidence: Relevance, Policy Based Exclusions Liability Insurance
Inadmissible to prove that a person has liability insurance EXCEPTION: (a) Proof of OWNERSHIP/CONTROL OF INSTRUMENTALITY OR LOCATION if issue is DISPUTED by D (b) Impeaching of a witness on the grounds of bias
Evidence: Impeachment by Criminal Conviction in MD
Can impeach by showing conviction for “Infamous Crime” (common law felonies and crimes involving deceit or false stmt) OR crime relevant to W’s credibility (theft, distribution/sale of narcotics all ok) Must balance impeachment value against prejudicial effect, cannot use a conviction if an appeal is pending & conviction must be w/in 15 years of date of conviction
Evidence: Other sexual misconduct to show propensity in sex-crime cases
FRE: in sex assault or child molestation, prior specific sex misconduct of the D is admissible as part of case in chief of prosecution or plaintiff to show propensity MD: only admissible if MIMIC rule is satisfied or if prior sex crime was directed to same vic
Evidence: Ultimate Issue May opinion testimony (lay or expert) be used to embrace an “ultimate issue” in the case?
Yes, opinion testimony is not objectionable just because it embraces an “ultimate issue,” but it must still be helpful to the jury (EX: Legal jargon is NOT helpful to the jury)
