Evidence Flashcards
RELEVANCE (logical)
That which has any tendency to make a fact of consequence in determining the action more or less probable than it would be without the evidence
RELEVANCE (legal: Rule 403) - Balancing test / Exclusion
Excluded if
- probative value substantially outweighed by risk of
> unfair prejudice ~or~
> confusion, misleading, undue delay, wasting time, or needlessly cumulative
Attorney-Client Privilege
- Confidential
- Communications
- between client and attorney for the
- purpose of seeking legal advice are protected
Attorney-Client Privilege: Exceptions
- Aiding the commission of a crime or fraud
- Relevant to dispute between attorney and client
- FORMER Co-clients now adverse to each other
SPOUSAL PRIVILEGE: Spousal Immunity
No MARRIED person may be compelled to testify against their spouse in
ANY CRIMINAL proceeding
(covers events BEOFRE the marriage)
PRIVILEGE:
Confidential Marital Communications
Confidential communication made between spouses WHILE MARRIED is privileged
(both spouses hold; civil and criminal; survives termination of marriage)
COMPROMISE OFFERS AND NEGOTIATIONS (Rule 408)
Not admissible to prove
validity or amount of a disputed claim
~OR~
for impeachment by prior inconsistent statement
(Hey, you said something else in negotiations - can’t do)
SUBSEQUENT REMEDIAL MEASURES (Rule 407)
Not admissible to prove
- Negligence, culpable conduct,
- defective product or design,
- need for warning
LIABILITY INSURANCE (Rule 411)
Not admissible to prove negligence, culpable conduct, defective product or design, OR need for warning
OFFER TO PAY MEDICAL EXPENSES (Rule 409)
Not admissible to prove liability for the injury
Present Recollection Refreshed
May refresh with document (or anything!) to help them remember.
- Not into evidence
- other party may see it
Objections
Compound questions, fact not in evidence, argumentative, calling for conclusions, repetitive
Relevant Evidence
Makes a fact more or less likely than it would be without the evidence
- all relevant evidence is admissible
Character Evidence - Propensity
Prohibited evidence that the person acted in conformity with their character
Character Evidence - can be proven by
Reputation and Opinion
Character Evidence - Criminal Trials ; def character
Prosecution = can’t introduce evidence of Bad Character
Def = Can introduce Good character of himself / reputation + opinion only
~but (Opened the Door!) ~ then Prosecution can use SPECIFIC ACTS of bad character on CROSS
Character Evidence - Criminal Trials ; victim character
Def can introduce for Self defense / reputation + opinion only
- but-
Prosecution can rebut w/ good character of Vic and bad character of Def // reputation + opinion only
Character Evidence - Other Purposes ..sneaky ways
MIMIC
> Motive
> Intent
> Mistake (crime was not likely a mistake bc it happened 3 times before. Absence of Mistake)
> Identity- MO / signature crimes (wet bandits)
> Common Plan - scheme (series of similar crimes)
Habit Evidence
Allowed to prove acted in conformity w/ habit
Must be - routine, regular, automatic
(can be a business too - opening and stamping mail)
Judicial Notice
When there is no reasonable dispute about a fact
Trenton is the capital of NJ / Pro Sports game time + place
Impeachment - 5 ways
B-I-C-C-C
- Bias
- Inconsistent Statements
- Capacity
- Character
- Contradiction
How can you Impeach by Character
Reputation or Opinion
When can you use Specific Acts to Impeach Character?
On Cross
- Must accept the answer - no mini trial w/ evidence that they lied
- No extrinsic evidence
Impeachment - Character w/ Criminal Convictions
– Against the Witness:
1. Crimes involving Dishonesty / false statements
Ex: perjury, fraud, embezzlement
2. Felonies - Punishable by death or over a year prison Unless - the risk of Prejudice SUBSTANTIALLY outweighs the Probative value
– Against the Crim Defendant:
1. Crimes involving Dishonesty / false statements
Ex: perjury, fraud, embezzlement
2. Felonies - Punishable by death or over a year prison Only If - the Probative Value Outweighs the risk of Prejudice
Impeachment - Prior Inconsistent Statements
Any + Can use Extrinsic Evidence - allow witness to explain it. (Show Police Rept - then W- “I was shaken by the accident”)
Rehabilitate - Impeached witness
- Prior Consistent Statement
- Clarify + Explain
- Reputation / Opinion of Character for Truthfulness
Lay Witnesses vs. Expert
Lay = Facts + Opinions
Expert = Facts + Opinions + Opinion on Ultimate Issue
(May say that the vehicle was defectively designed)
BUT — NO Mental State Opinions of Criminal
Witness - Who may testify / Competent to Testify ?
Anyone , any age, w/ personal knowledge, swear to tell truth and appreciate obligation to be truthful
Authentication of Evidence - Is it what we claim it is?
- Personal Knowledge
- Distinctive Markings / Serial Numbers / etc.
- Chain of Custody
- Stipulate to it
- Self Authenticating Docs - gov’t docs
Best Evidence Rule
Can’t Describe the Document - when you can just show us
- Saw video of robbery but wasn’t there - must produce the video BUT if there and video - may testify to what they actually saw
Exceptions ;
Unavailable - lost , destroyed / Public Record = copy OK / Too voluminous = summary / Admission by party
Parole Evidence Rule -
Extrinsic Evidence for a Contract that Changes a Term
- Complete Integration = Excluded
Partial Integration = Allowed if Adds to Terms NOT if Contradicts
» Can be admitted to = Clarify, show custom, fraud, duress, mistake, illegal
Attorney - Client Privilege (elements)
- Confidential
- Communication
- Legal Advice
Attorney - Client Privilege : 3 Exceptions
- To Future Crime or Fraud
- Disputes between - Lawyer v. Client
- Disputes between FORMER CO-Clients
Attorney - Client Privilege = Corp.
Employee w/in the Scope of Employment
Attorney - Client Privilege: Work Product
Can’t get Mental Impressions
Anything in prep for litigation unless Substantial need + Undue Hardship to get
Spousal Privilege
Confidential Communications
- Communication during marriage
- Held by both + Can prevent the other from testifying
- Survives after marriage
Spousal Immunity
- Criminal - right to refuse to testify
- currently married
- covers anything before or during marriage
- Only Married couples
> Exceptions - 1 sues other // crimes where 1 = actor vs other victim
Proof of Insurance only for
Ownership NOT negligence or fault
Subsequent Remedial Measures for
Ownership or Feasibility of a modification
NOT negligence or fault
Settlement Negotiations statements for
Can to Show BIAS - NOT Validity or Value of a Claim or Prior inconsistent statement
Past Sexual Conduct of Victim only for 3 things
- Source of physical evidence - semen
- Consent
- Too unfair / unconstitutional restriction on defendant
Past Sexual Conduct of Defendant
Can use - propensity to act from prior Bad Acts
Hearsay - def
An Out of Court statement offered for the truth of the matter asserted
Other Uses that are Not Hearsay
- Prove the statement was said (def made a statement)
- Effect on the Listener (the ins co had notice)
- State of Mind (speech in French - he’s fluent )
Not Hearsay - TESTIFYING Available Witness (3)
- Prior Inconsistent Statements under Oath
- Prior Consistent Statements
- Prior ID Statements (line up)
Not Hearsay - Party Opponent Statement (3)
- Party Admission - introduced against party (anything they said )
- Adoptive Admission - by statement (Did you rob the bank? Yes) ~or~
Silence (reasonable Person would have denied said something and denied) - Vicarious Admission - other people authorized to speak on their behalf = lawyer, employee in the scope, co-conspirator, (must be evidence of employment or conspiracy)
Unavailable Declarant - (5)
- Exempted by a Privilege - spousal / attorney client
- Refuses
- Lacks Memory
- Dead or too Ill
- Can’t be subpoenaed or found
- NOT where the party made them unavailable ..DUH!
Unavailable Declarant - Hearsay Exceptions (5)
- Former Testimony - IF - Other party had opportunity and similar motive to examine at previous trial
- Dying Declaration - believe dying, death impenitent, statement relates to the cause of death,
- Statement Against Interest - Reasonable person wouldn’t have made the statement (exonerating must have other evidence - suspicious ..my dead friend did it )
- Family History - he’s dad
- Made Unavailable by the party - anything in
Hearsay Exceptions - People (5)
- Present Sense Impression
- Excited Utterance
- State of Mind - emotional, physical, mental ~ Can be used to show action in conformance with the intent to do something (I’m going to grandma’s ..intent to go + went)
- Medical Diagnosis / Treatment statements
- Past Recollection Recorded - can’t remember , wrote when fresh, personal knowledge ~ can be read, not given to jury, Opp party can introduce
Hearsay Exceptions - Records (5)
- Business Records
- Public Records
- Learned Treatises - scientific stuff by experts, etc
- Other legit records, marriage, vital stats, ancient docs
Confrontation Clause -
Out of Court “TESTIMONIAL” Statement
- NOT ALLOWED
- Unless Either =
Made available for Cross ~or~ Prior Opportunity to Cross
Impeachment of Witness - collateral Issue
Cannot use extrinsic evidence
- including another person testifying about that person being untruthful-
Confrontation Clause
To Admit an out-of-court testimonial statement of a declarant against a criminal Def:
1) declarant must be UNAVAILABLE
~ and ~
2) D must have had opportunity to cross-examine declarant
testimonial stmt: requires objective analysis of the circumstances, rather than the subjective purpose of the participants
Writing to refresh witness - Inspection by other party
Before Testimony vs Testifying
Used Before = May allow
Used While = Must allow
Defendant claims he did something Accidentally
- Witness testifies to rebut that several times he did something close (Character) …yes or no ?
Yes - Shows he did it INTENTIONALLY –
-Absence of Mistake
MIMIC = Motive, Intent, Mistake (absence), Identity (MO) , Common Plan
Past Recollection Recorded -
- CAN be Played if Tape or Read if Document
- Only admit by other party
- Personal Knowledge, Made Fresh, Forgets, Accurate,
Impeach by asking WITESS about His Own Untruthful Act
- Allowed b/c INTRINSIC ~ from his own mouth
- Asking someone else about the same act would be EXTRINSIC ..not allowed ~ only allowed extrinsic by reputation or opinion
Impeachment by Bias - Witness or the out of court Declarant
- Always allowed to Show Bias -
“Didn’t the Declarant beat up the Defendant the other day?”
> shows that friend / declarant might not like the Defendant and would lie about him
Specific Acts for Character - when essential Element of a Crime or ..Defense (Self Defense)
By Specific Instances of Conduct.- the character or trait may also be proved by relevant specific instances of the person’s conduct.
Testimony Evidence of Character - Defamation
When a person’s character is in issue, character evidence is admissible in all forms
Document Evidence - Summary
May use a summary to prove the content as long as they are made available
