Evidence Flashcards
Impeachment methods - Criminal conviction distinctions
criminal convictions
- D must have be adjudicated guilty
- No time limit on felonies related to dishonesty
- no extra protection for Ds on non-dishonesty crimes
- old convictions - no 10 year limit; instead, so remote that it has no beraing on present character
- doesn’t matter if eventually pardoned
- no juvie
- can’t specifically name crime when asking, and if W says no, can’t press it
Impeachment methods
- W’s character for truthfulness
- can only be attacked thru reputation ev (not opinion)
- cannot use specific instances, even on cross
- Crim convictions
- prior inconsistent statements - admissible only if W has chance to deny-explain
- bias/interest (includes religious beliefs)
- sensory competence
- rehab of witness
- impeached W may call rehab Ws to testify re: truthfulness (no opinions)
- When W examined re: written statements, must be shown writing
- contradictory evidence f
- collateral issues - genreally not allowed
- Recollection refreshed (present and past recorded)
Best Evidence Rule
Duplicate is inadmissible if:
- Negotiable instrument, security or other writing re: right to payment
- not itself a security agreement/lease
- usually goes with endorsement/assignment (stock certs?)
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Privileges (9)
- jouranlist
- fiduciary L/C
- psychoterapist/patient
- sex assault counsel/V
- domestic violence advocate/V
- hsuband/wife
- clerky-related
- accoutant/client
- trade secrets
Judge/ preliminary questions of comp of evidence
cannot summarize evidence/common to jury on:
- weight of evidence
- W credibility
- guilt of accused
can’t consider hearsay re: conspiracy
Challenges to evidence ruling - Harmless error rule
Fl uses to determine if improperly admitted in crim cases.
Verdict reversed unless state proves BRD that no reasonable possiblity error affect verdict in order to vaoid new
Judicial notice - Rules for court
court must take JD of:
- decisional, constitutional, public state law, and resolution of FL leg and Congress
- FL court rules applied statewide, its won rules, SCOTUS rules
may take notice of:
- another jx’s decisions, laws, rules, records, generally known or determined facts
not required to care about earlier court’s take on a particular matter
Judicial notice - Rules for jury
Permits court to instruct jury re: judicially noticed matter - civ and crim
Must instruct jury re: judicially noticed fact that’s element of a crime
Burdens of evidence
Production - produce legally sufficient evidence for each element of claim (RP standard)
Persusasion - civil: POE (sometimes C&C), crim: BRD
Presumptions
Presumption rebuttable unless conclusive under law from whic hit arises
civil cases - every rebuttable presumption either:
- Bursting bubble - requires tried o fact to assume its existence unless contrarycredible evidence introduced OR
- burden of proof on party opearting agianst to show nonexteience of presumption
Destruction of evidence - if destroyed by party it goes against, presumpio that 1) was unfavorable, 2) was intentional, 3) was relevant
Character evidence - V’s character
- Reputation evidence only
- State can’t rebut with D’s character trait when D offers V’s character trait
- State can offer rebuttal evidence of V’s good character if D did bad character
Specific acts
Civil - allowed when essnetial element of claim/defense
crim - inadmissiable to show D’s criminal propensity, prior specific acts can be used when character essential element of crime - D can offer prior acts inconsistent with crime
Specific acts - MIMic
similar fact evidence admissible under Willimas when relevant to prove MIMIC
must have identifiable poitns of similarty estabslihing “sufficiently unique pattern of crim activity”
State must give 10 days notice to D if using above
Reverse Williams rule (was a different guy) - allowed with same similarity standard, no prior notice
Witnesses
judge - can’t testify
juror - limited circumstances
child - no age req, can he/she tell difference between truth and lie and understand need to tell truth? BUT
court can set conditions for under 18 re: child abuse neglgect, sex abuse V, W to sex offense against anohter minor. Then need advocate to rep in court
Impeachment - W’s character for truthfulness
can’t bolster (beforehand)
reputation evidence only, no specific acts (not even on cross)
past convictions
- can’t ask W about specific crime, just whether he’s been convicted of impeachable offense
- must have been adjuciated guilty
- no time limit - look at remoteness (so long ago it has no bearing)
- don’t exclude pardons
- do exclude juvenile convictions
Ways to impeach
- Truthfulness
- criminal convictions
- prior inconsistent statements
- bias/interest
- sensory competence
- impeaching hearsay declarant
- rehab of W
- religious belief/opinion
- contradictory evidence
Rehab of W
- explain/clairfy/redirect
- offer reputation evidence re: truthful (if applicable)
- prior consistent statement (look out for hearsay)
- call rehab W to testify to truthfulness - they can be cross examined about specific acts by W
- if examining certain written statemetns, must be shown to W so he can explain/deny
Qualified experts
- knoweldge, skill, training, expertise
- sufficient facts/data
- reliable principles/methods (which W applied)
- reasonable certainty
can state opinion about whether D had req mental state of any element of crime/defense
cannot state opinion re: crimnal capacity/whether mental state with legal definition exists
Qualified experts - cross examining
Opposing party can examine W about underlying fcats/data for opinon - will be inadmissible if establsihes lack of sufficient basis
can use formal writing on subject to corss examine if iether W or court recgonizes it as authorizataive, but can’t bolster
Authentication
- physical objects - personal knoweldge, disttinctive charactetrs, chain of custody
- photographs - nwritten description, name of owner, location where stolen, name of investigating cop, date of phoot, name of photographer. All under oath
- documetnary evidence (ancient docs, public records, reply letter)
- self authenticating - business record ok if w/ affidavit by custodian and no hearsay
- certified transcript by court reporter is PF evidence of correct testimony
Best evidence rule
duplicate inadmissible if doc is
- negotiable instrument, security or writing re: right to payment of $
- is not a security agreement or lease
- is typically transferred in course of business w/ endorsement/assignment
privileges - general exception
All privileges except A/C and clergy can be overcome if related to abuse of children, disabled, elderly
Hearsay
offered to prove truth of matter asserted
Declarant must be person
statement can be oral, written, assertive nonverbal
Non-hearsay - Prior statements
prior statements - D must be present at trial
- PIS made under penalty of perjury admissible to impeach and substantively
- PCS admissible to rebut charge that D recently fabrciated statement/acted w/ impropert motive
- Prior ID of a person by D ok even if D doesn’t remember it
Opposing party statement
- Made by party to current lit
- admissible without personal knoweldge
- can be an opinion
- doesn’t need to have been against party’s interest when made
- can’t use withdrawn guilty pleas
- can use adoptive admission
- vicarious statments - gov agent’s statement can be offered agianst gov
- conspriracy must be established by other evidence before admissible
Hearsay exceptions - Availability immaterial
- spontaneous statements, with trustworthiness exception
- excited utterance
- statement of mental, emotional, physical condition (state of mind) - trustworthiness caveat
- statemetn made for med treatment
- recorded recollection
- business records
- public records
- judgment of previous conviction
- other - OOC statement by certain child Vs or by elderly about abuse, neglect, exploitation, violent act - okay if on camera and D actually testifies
Former testimony:
- not hearsay if adverse party had opportnity and smiliar motive to develop testimony AND
- can also be used in subsequent civil proceeding if was offered any proceeding against anothe party with similiar interest
Exceptions to hearsay - Uavailable declarant
- Former testimony
- statement agianst interest
- statement of personal/family history
- statement by decease/ill declarant similar to one previously admitted - see outline
- opposing party statement - party to current lit, admissible without personal knwoeldge, need not have been against party’s interest at time made
- D unavailable due to other party making him unavailable
Former testimony
Can be offered against party
- in any proceeding if they had opporutnity and smiilar motive to develope tsetimony
- subsequent civil proceeding if it was offered in a proceeding against naother party with similar interest
Recroded recollection
Must be made by D, not adopted
if can’t remember making record, must tesitfy that 1) had habit of recording this way, OR 2) believes statement correct b/c W would have been truthiful in providing statement
Judge cannot:
summarize evidence or comment on:
- weight of evdience
- crediblity of Ws
- guilt of accuse
Dying declaration
- D must reasonably believe death is imminent
- statement must relate to cause/circumstances
- NOT required to be V in case being prosectued (blind woman robbed)
