Evidence FINALS FINALS FINALS Flashcards
Testifying Declarant?
- Subject to Cross examination now
- Prior inconsistent statements [from previous trial setting]
- Prior consistent statements
- Eyewitness ID
Party opponent?
- Made by party
- Made by party agent
- Manifested 2 be true
- Co-conspirator in furtherance of conspiracy
Expert true test?
Whether expert has peculiar knowledge
Not common to this world
Helpful to court and jury
In determining question at issue
Daubert?
- Tested?
- Errors?
- Peer reviewed?
- Accepted?
Relevant & Reliable
Majority test
Judge is gatekeeper and uses this test
702 test?
- Qualified?
- Scientific Qs helpful to court & jury
- Reliable principles & methods
- Based on sufficient facts & data
- Analysis
Authentication of evidence, such as an exhibit, as a ____ ____ that can be satisfied by what?
Condition precedent
Satisfied by “evidence sufficient” to show it is what proponent claims it to be.
Examples of evidence sufficient to authenticate evidence?
Testimony [pictorial]
Process descriptions [silent witness]
meta data
pubic records
[Authentication]
“Evidence sufficient” is produced to authenticate that in the eyes of the jury establishes evidence as authentic, per what standard?
Preponderance of the Evidence
Best evidence rule number?
1002
1002 requires the original unless what rule applies?
1004) Original not lost in bad faith, adverse party has it and wont turn over after notice, or not central to the issue.
What rule is duplicate?
1003
Further, duplicates are generally admissible to same extent as original unless…
- Genuine Q as to authenticity
- Unfair
1003) A duplicate is produced in the same ______ as the original which accurately recreates the original.
Impression
1002 then 1003 aim to bar what?
Human recollections
Impression =
Accurately recreates the original
1004
- Not bad faith loss
- Adv party has it
- Not central
For what purpose would proponent seek to get in underlying hearsay that expert has used? If this works, what have you circumvented?
To aid the jury in evaluating expert testimony. SR 403.
If it comes in, per Justice Alito, this circumvents the CC.
Justice _____ said that underlying expert hearsay, if admitted, is not barred but instead circumvents the CC.
Justice Alito
____ governs privilege unless Constitution, FEDs, or FRES provide otherwise.
501: General Privilege — but in civil cases, state law governs.
H-W Privilege: _______ adopts narrow interpretation, the Witness spouse alone has the privilege to refuse or choose to testify.
Trammel
Psycho-patient privilege: Adopted in ______: applies also to social workers are protected under 501.
Jaffee
Clergymen: ______ found that if not a “formal confession” then 501 did not apply.
Morales
Reporter privilege: 5 Justices have said… [grand juries]
Almost complete immunity in grand juries.
Reporter privilege [grand jury] 2 justices said…
Reporter 1st amendment rights must be weighed against adverse parties needs for disclosure.
Reporter privilege case?
Branzburg. 5 justices said almost complete immunity in grand jury cases.
Reporters P: Most states have _____ laws that give journalists some form of privilege against production.
Shield laws = State protection for reporters
Clawback rule?
26 B5B
26 B5B
Clawback
Clawback notification?
- Promptly return
- Sequester
- Destroy
- Notify court
T/F) 26B5B still protects you “if you have been lax” about your privilege.
False
T/F) Privilege is absolute, it cannot be “overcome” by a showing of need like WPD.
True, but it can be waived/lost.
