Evidence Flashcards
Relevance
All relevant evidence is admissible unless excluded by a specific rule.
Relevant = makes fact in issue more likely than it would be without evidence.
Need both:
1) material (related to some issue in the case); and
2) probative (tendency to prove or disprove
Rule 403 - Exclusion of Relevant Evidnece
Even if evidence is relevant, court has discretion to exclude IF:
Risk substantially outweigh probative value.
Risks = confusion, unfair prejudice, misleading jury, waste of time.
Rule is in favor of admissibility.
Best evidence (original doc) rule
Orig doc (or dup) be produced in order to prove the contents of a:
Writing
Recording
Photograph
Included: Electronic docs, x-rays and videos
Not included: Real physical evidence (e.g., 3D model)
Prior Inconsistent Statement
- Can be done with any type of statement
* Can be proved by EXTRINSIC evidence, but only if witness is given opportunity to explain/deny evidence
Plea negotiations inadmissible - waivable?
Yes, can be waived by ∆
Prior Inconsistent Testimony - substantive, impeachment, or either?
Either - if testimony under oath, considered nonhearsay
Item used to refresh witness recollection - what can adverse party do?
Adverse party can:
- Have doc produced
- Can inspect doc
- Can cross-examine witness about it
- Can introduce any relevant portion into evidence (usually only for purpose of impeaching credibility)
Prelim questions regarding competency of evidence (e.g., does it qualify as dying declaration) - who decides, with/without jury, what evidence to access?
Judge decides
Outside of jury if confession, ∆ requests, or justice requires
Any evidence except privileged evidence
Rebuttable presumption - shifts burden of persuasion and/or production?
Production. Contrary evidence introduced overcomes –> up to jury now.
If no contrary evidence, judge instructs jury to accept presumption.
Recent felony of ∆ (w/in 10 years) - civil vs. crim
Civil - Rule 403 (allow unless risk of prejudice substantially outweighs probative)
Crim - Reverse 403 (do not allow unless probative value outweighs prejudicial effect)
How to authenticate tangible evidence
Sufficient evidence to support a finding that the thing is what its proponent claims it is
Photo - may be authenticated by witness with personal knowledge that object accurately depicts what proponent claims it to be
Statement by co-conspirator - when allowed
Only if made “during and in furtherance” of the conspiracy
X-ray, electrocadiogram authentication?
representations of things that cannot otherwise be seen
Need more - accurate process, machine worked properly, qualified operator, chain of custody
Prior Testimony - Not hearsay always, sometimes, never?
Not hearsay if opposing party had 1) opportunity and 2) similar motive to develop testimony by direct, redirect, or cross-ex.
Must be same party or predecessor in interest
Judicial notice - when allowed, who can request
Can do it any time during proceeding, upon request or by own initiative