Evidence (MBE/MEE) Flashcards
1
Q
Preliminary Questions of Admissibility
A
- Courts apply preponderance of evidence standard to decide preliminary questions of admissibiltiy (e.g., whether witness is qualified to testify, privilege exists, etc.)
- However, when relevance of evidence is conditioned upon existence of preliminary fact, court need only find there is sufficient evidence to support (not necessarily establish) existence of preliminary fact (e.g., whether agent had actual or apparent authority)
2
Q
Hearsay
A
- Out-of-court statement offered to prove the truth of the matter asserted
- Not hearsay if offered to prove something other than truth of matter asserted (legally operative facts, effect on listener, state of mind, identification, impeachment and rehabilitation)
3
Q
Double Hearsay
A
Hearsay within hearsay may be admissible if each part of combined statement conforms to hearsay exception
4
Q
Non-Hearsay: Types
A
- Declarant Witness’ Prior Statements: (i) Prior Inconsistent Statements, (ii) Prior Consistent statements, (iii) Prior Statement of Identification
- Opposing Party’s Statement
5
Q
Prior Statements: Declarant Availability
A
- Declarant must testify at present trial to be admissible
- Cannot apply if witness is dead or otherwise unavailable to testify
6
Q
Non-Hearsay: Prior Inconsistent Statements
A
- Requirements: (1) Witness is cross-examinable; (2) Testimony was made under oath by witness at a trial, hearing or deposition; (3) must be offered to demonstrate witness’ prior statements are inconsistent with current testimony
- Admissibility: Impeachment of declarant’s credibility and as substantive evidence
7
Q
Non-Hearsay: Prior Consistent Statements
A
- Requirements: (1) Witness is cross-examinable; (2) Testimony is consistent with his previous testimony, (3) Must be offered to rebut a charge of recent fabrication or improper motive/influence, or to rehabilitate the witness if attacked on some other grounds
- Statement must be made before declarant had reason to fabricate
- Admissibility: Rehabilitation and also as substantive evidence
- Note: No oath requirement
8
Q
Non-Hearsay: Prior Statement of Identification
A
- Requirements: Declarant witness must (1) be subject to cross examination, (2) previously have observed D (ex. sketches, IDing during a lineup, etc.) , and (3) be testifying in court.
- Admissibility: Admissible as substantive evidence
Note: Technically, testimony doesn’t have to be by declarant. Instead, police officer could testify, so long as declarant is available at trial and could be called for cross-examination.
9
Q
Opposing Party’s Statement
A
Statement is offered against an opposing party present at trial and:
(a) Individual Admission: Made by party in individual/representative capacity;
(b) Adoptive Admission: Party manifested that it adopted/believed it to be true (e.g., documents that party incorporates as an answer to an interrogatory) ;
(c) Authorized Statement: Made by person whom party authorized to make statement on subject;
(d) Vicarious Statement: Made by party’s agent/employee on matter within scope of relationship; and
(e) Conspirator Statement: Made by party’s co-conspirator during and in furtherance of conspiracy (must be some independent evidence to support finding of conspiracy aside from statement)
Admissibility: Admissible as substantive evidence
10
Q
Opposing Party’s Statement: Silence as an Admission
A
Silence in response to a statement is considered an adoptive admission if:
* Person understood statement,
* Person had ability opportunity/ability to deny statement, and
* Reasonable person would have denied statement.
11
Q
Declarant Unavailable as Witness
A
- Unavailable means dead, absent beyond subpoena power, lacks memory, refuses to testify, is exempted from testifying based on privilege.
- Does not apply when party wrongfully renders declarant unavailable for the purpose of preventing testimony
Note: Being a hostile witness does not mean you are unavailable
12
Q
Hearsay Exceptions: Declarant Unavailable as Witness
A
If a declarant has been shown to be unavailable, the following hearsay exceptions are available:
* Former Testimony
* Dying Declaration
* Statement Against Interest
* Statement of Personal/Family History
* Statement Against Party That Caused Declarant’s Unavailability
13
Q
Hearsay Exception: Former Testimony
A
- Requirements: (1) Declarant is unavailable, (2) testimony was given under oath as witness at trial, hearing, or deposition, and (3) is now offered against a party who already had an opportunity and similar motive to develop testimony (i.e. a prior chance to cross)
- Admissibility: Admissible as substantive evidence
14
Q
Hearsay Exception: Dying Declaration
A
Admissible as substantive evidence in a homicide prosecution or civil case if:
* (1) Declarant is unavailable;
* (2) Declarant believed her death was imminent (need not actually die); and
* (3) Declarant made statement about cause or circumstance of impending death.
15
Q
Hearsay Exception: Statement Against Interest
A
Admissible as substantive evidence if:
* (1) Declarant is unavailable;
* (2) Statement is against declarant’s pecuniary, proprietary, civil or penal interest at time made; and
* (3) Reasonable person would not have made statement unless it was true
Note: If statement would subject a declarant to criminal liability, statement must be supported by corroborating circumstances clearly indicating the trustworthiness of the statement.
16
Q
Hearsay Exception: Statement of Personal/Family History
A
Admissible as substantive evidence if:
* (1) Declarant is unavailable; and
* (2) Statement concerns the unavailable declarant’s own birth, adoption, marriage, familial relationship, etc.
17
Q
Hearsay Exception: Statement Against Party That Caused Declarant’s Unavailability
A
Admissible as substantive evidence if:
* (1) Declarant is unavailable; and
* (2) Party engaged in wrongdoing for purpose of making declarant unavailable to testify, rending declarant unavailable
Note: Party cannot claim declarant is unavailable and door is open to use anything declarant said against party.
18
Q
Hearsay Exceptions: Declarant’s Availability Immaterial
A
Whether or not a declarant is available as a witness, the following hearsay exceptions are available:
* Present Sense Impression
* Excited Utterance
* Present State of Mind
* Statement Made for Medical Diagnosis/Treatment
* Recorded Recollection
* Business Records
* Public Records
* Learned Treatises
* Judgment of Previous Conviction
19
Q
Hearsay Exceptions: Present Sense Impression
A
A statement that describes or explains an event or condition, made while or immediately after the declarant perceives the event or condition.
20
Q
Hearsay Exceptions: Excited Utterance
A
A statement relating to a startling event or condition, made while declarant was under the stress of excitement that it caused.
21
Q
Hearsay Exceptions: Present State of Mind
A
- Statement of declarant’s then-existing state of mind (present intent, motive, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health)
- A statement of intent can be used to prove action in comformity with that intent.
22
Q
Hearsay Exceptions: Statement for Medical Diagnosis/Treatment
A
A statement that:
* (A) is made for medical diagnosis or treatment; and
* (B) describes medical history, past or present symptoms or sensations, their inception, or their general cause; and
* (C) is not one of fault.
Note: Need not necessarily be made by patient nor be made to physicians
23
Q
Hearsay Exceptions: Recorded Recollection
A
When a witness has inadequate memory to testify about a matter for which a record exists, the witness may read the record to the jury if the record:
* (A) is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately;
* (B) was made or adopted by the witness when the matter was fresh in the witness’s memory; and
* (C) accurately reflects the witness’s knowledge.
Note: If admitted, record may be read into evidence but may be received as an exhibit only if offered by an adverse party.
Note: Witness doesn’t actually have to write the record. Ex. Witness could read a license plate to another person who writes it down.
24
Q
Hearsay Exceptions: Business Records
A
Record must be:
* Kept in course of regularly conducted business activity,
* Making of record was regular practice, and
* Record was made at or near the time by someone with knowledge and a duty to report it
Note: While medical records are often admitted under the business records exception, records prepared in anticipation of litigation are not.
Note: Business record need not actually relate to the exact occurrence at issue; can be admissible as relevant evidence of company’s routine practice
25
Hearsay Exceptions: Public Records
Three categories of statements which may be admissible if set forth in a public record:
* **Statement** of public office/agency that sets out activities of office,
* **Observation** of person under duty to report (but not police in a criminal case), or
* **Factual findings** of a legal investigation: Also includes opinoins, evaluations, and conclusions contained in investitgative report that are based on these factual findings
26
Public Records Hearsay Exception: Police Reports
* Police reports are admissible public records in civil cases and against the government in criminal cases
* Not admissible as public records when used against criminal defendant
27
Hearsay Exceptions: Learned Treatises
May be used to impeach expert witnesses and as substantive evidence, but only as substantive evidence if:
* (i) publication is established as a reliable authority by a party's expert or judicial notice and
* (ii) statements are called to attention of, or relied on, by an expert witness during examination.
28
Hearsay Exceptions: Judgment of Previous Conviction
Admissible if:
* **Final judgment** was entered after trial or guilty plea,
* Conviction was for a **felony** (i.e., crime punishable by death or imprisonment for over one year), and
* Evidence is being offered to prove any fact **essential** to sustain judgment
Note: No corrolary hearsay exception for judgments of acquittal
29
Hearsay Exceptions: Residual Exception
Catchall exception for statement not otherwise covered by the FRE; statement must be:
* (i) Supported by sufficient guarantees of trustworthiness, and
* (ii) More probative than any other evidence that the proponent can obtain through reasonable efforts
30
Sixth Amendment: Confrontation Clause
* Confontation Clause provides that **testimonial statements** are inadmissible when a declarant is **unavailable** and a criminal D had **no prior opportunity to cross-examine**.
* Right to confront typically means face-to-face confrontation, but can be denied if important public interest at stake or if D forfeits by **disruptive behavior**
* Court can also exclude D from courtroom to protect minor witness from trauma but court must make individualized findings based on evidence
31
Confrontation Clause: Forfeiture by Misconduct
If D acted with a specific intent to keep declarant from testifying and rendered the decalarant unavailable to testify, D has forfeited right to confrontation and statement is admissible against him
32
Confrontation Clause: Testimonial Statements
* **Testimonial Statements**: Statements made with the primary purpose of ascertaining past criminal conduct (objective analysis)
* **Emergency Exception**: Statements are nontestimonial when made for primary purpose of getting police assistance to get help/meet an ongoing emergency.
33
Fourteenth Amendment: Due Process Clause
May prevent application of hearsay rule when rule unduly restricts D’s ability to mount defense
34
Privileges: Confidential Communications
A confidential communication is necessary for a privilege to apply.
If **overheard**, privilege is **destroyed** unless:
* (i) No knowledge of 3P's presence, or
* (ii) 3P is necessary to assist in communication
Privilege is **waived** if privilege holder:
* (i) fails to timely assert it,
* (ii) voluntarily discloses communication,
* (iii) contractually waives it in advance
35
Spousal Testimonial Privilege
* Married spouse cannot be compelled to testify against spouse in any criminal proceeding, regardless of who D is
* **Majority view**: Witness-spouse holds privilege
* **Scope**: Testimony about events before/during marriage
* **Expiration**: Expires upon divorce or annulment
* **Exception**: One spouse is charged with a crime against the other spouse or the children of the spouse
**Note**: This is a **federal common law privilege**. It would only maybe not apply in a diversity case depending on state law.
36
Spousal Marital Communication Privilege
* Spousal communications during marriage are privileged
* **Majority view**: Both spouses hold privilege in civil and criminal cases; either spouse may assert or prevent other spouse from testifying
* **Scope**: Any communication between spouses
* **Expiration**: Begins with marriage and continues indefinitely
**Note**: This is a **federal common law privilege**.
37
Attorney-Client Privilege
* Confidential communication between client (who holds privilege) and attorney for the **purpose of obtaining or providing legal advice** or representation (attorney doesn’t need to give advice or agree to representation)
* **Expiration**: Privilege exists until waived by client; can survive termination of A-C relationship and client's death
38
Attorney-Client Privilege: Corporate Clients
Some courts have held the A-C privilege only applies to "**control group**" of corporation (e.g., CEO, BOD).
Federal courts extend the privilege to communications by a non-control-group employee:
* (i) about matters within employee’s corporate duties
* (ii) made for purpose of securing legal advice for corporation client
39
Attorney-Client Privilege: Exceptions
* Made to enable/aid commission of what client knew or should have known was **crime/fraud**
* Relevant to **dispute between attorney and client** or former client
* Relevant to dispute between parties who claim through the same deceased client
* Between former co-clients who are now adverse to each other (i.e. party seeks cross-claim against other party seeking indemnity for damages assessed against it)
40
Attorney-Client Privilege: Work-Product Doctrine
Documents prepared or compiled in **anticipation of litigation** protected unless party seeking disclosure:
* (i) demonstrates **substantial need**, and
* (ii) cannot obtain the information by any other means without **undue hardship**
41
Inadvertent Disclosure
Applies to communications covered by A-C privilege and information provided under work-product doctrine. Disclosure of inadvertant communications or information does not waive A-C privilege or work-product privilege if:
* Disclsoure was made in a federal proceeding or to a federal agency;
* Disclosure was **inadvertent**;
* Privilege holder took **reasonable steps to prevent** disclosure; and
* Privilege holder promptly took **reasonable steps to rectify** the error
42
Physician-Patient Privilege
Statement by a patient to a doctor privileged so long as made for purpose of obtaining medical treatment. Does not exist if:
* **Patient's physical condition is at issue**;
* Statement is part of crime
* Dispute exists between physician and patient
* Patient contractually waives privilege; or
* **Federal question case** (not recognized by federal courts)
43
Psychotherapist-Patient Privilege
Applies to confidential communications between a patient and a psychiatrist, psychologist, or licensed social worker for purpose of treatment. Privilege does not exist if:
* **Patient's mental condition is at issue**;
* Statement was result of state ordered exam; or
* Case is commitment proceeding against patient
44
Privilege against Self-Incrimination
Fifth Amendment protection allows witness to refuse to give testimony that may tend to incriminate him. Privilege does not apply to:
* Non-current statements,
* Physical characteristics or mannerisms, or
* **Corporations and other organizations**
45
Miscellaneous Privileges
* **Clergy-Penitent**
* **Accountant-Client**
* **Professional Journalist**: No federal privilege regarding source
* **Government Privilege**: Government privileged against disclosing **informant's identity** in a criminal case and communication of official information by or to public officials
46
Categorical Exclusions: Subsequent Remedial Measures
When measures are taken by D that would have made an earlier injury or harm less likely to occur, evidence of subsequent remedial measures is:
**Not admissible to prove**:
* Negligence;
* Culpable conduct;
* Defective product/design; or
* Need for a warning or instruction.
**Admissable to prove**:
* Impeachment
* Ownership/control
* Feasibility of precautionary measures
47
Categorial Exclusions: Compromise Offers and Negotiations
Evidence of compromise or statement/conduct during compromise discussions is:
**Not admissible to**:
* Prove or disprove the validity or amount of a disputed claim, or t
* Impeach any prior inconsistent statement or contradiction.
**Admissible to prove**:
* Witness bias or prejudice of witness,
* Negate claim of undue delay, or
* Prove obstruction of criminal investigation/prosecution
**Note**: Stricter than other rules because not allowed for impeachment by prior inconsistent statement or contradiction
48
Categorical Exclusions: Payment, Offers, Promise to Pay Medical Expenses
* **Not admissible to**: Prove liability for the injury
* **Admissible**: Statements that accompany the payment, offer, or promise to pay
49
Categorical Exclusions: Plea Negotiation and Deals
Generally **inadmissible**, **except** it can be admitted in:
* (1) In a proceeding where another statement made during same plea/discussion has been introduced if, in fairness, statements ought to be considered together; or
* (2) In a criminal proceeding for perjury or false statement if D made statement under oath, on record, with counsel present.
Note: D may waive this privilege if waiver is made knowingly and voluntarily
50
Categorical Exclusion: Liability Insurance
* **Not admissible to**: Prove whether person acted negligently or wrongfully
* **Admissible to**: Prove agency, motive, ownership/control, or witness's bias/prejudice
51
Challenge to Evidence Ruling: Objection
* Object if evidence is admitted
* To preserve a claim of error, must timely object or move to strike (at first opportunity), and state the specific ground for the objection or motion to strike.
**Note**: Once court makes a **definitive ruling** on admissibility of evidence, party need not renew objection to admission of evidence, even if ruling was made before trial began
52
Challenge to Evidence Ruling: Offer of Proof
If evidence is excluded
53
Challenge to Evidence Ruling: Plain Error
* An error that is obvious to a reviewing court
* Grounds for reversal, even without a challenge, if it affects a **substantial right**
**Note**: If objection to jury instruction is made after court instructs jury, court can consider objection only if instruction constituted plain error.
54
Challenge to Evidence Ruling: Completeness Rule
If a party introduces part of a written statement, an adverse party may compel introduction of an omitted portion that are necessary to put the admitted portion into perspective.
55
Judicial Notice
Judicial notice is the court's acceptance of a fact as true without requiring formal proof. **Adjudicative facts** (facts of the case typically decided by the jury) are subject to judicial notice if the fact is not subject to reasonable dispute because:
* Generally known within the community, or
* Can be accurately and readily determined from reliable sources
**Note**: Court **must** (i.e., non-discretionarily) take judicial notice if requested by party and court supplied with necessary information
56
Judicial Notice: Instructing the Jury
* **Civil Case**: Jury must be instructed to accept noticed fact as conclusive
* **Criminal Case**: Jury must be instructed it may or may not accept any judicially noticed fact as conclusive
57
Leading Questions: Direct vs. Cross-Examination
* **Direct**: Only allowed if (i) a hostile witness, (ii) needed to develop witness's testimony (e.g., to **establish a preliminary matter that is not in dispute**), or (iii) witness struggles with communication
* **Cross-examination**: Generally, no restrictions, but there may be if cross-examination is in form only, rather than fact, such as when party is cross-examiend by his own lawyer after having been called as witness by opposing party
58
Form of questions: Improper Questions
* **Compound**: Requires answers to multiple questions
* **Assumes facts not in evidence**: Assumes as true certain facts that haven't been established yet
* **Argumentative**: Intended to present an argument, rather than elicit a factual response
* **Calls for conclusion/opinion**: Requires witness to draw conclusion or state opinion he is not qualified to make
* **Repetitive**: Already asked and answered
* **Lack of foundation**: Failure to estabish necessary predicate, such as authentication of tangible evidence
59
Exclusion of Witnesses
Court must exclude witnesses from courtroom so they do not hear other witness' testimony, except for:
* Natural person parties to the case,
* Individuals designated as a representative of non-natural person parties,
* Persons essential to a party's presentation of the case, and
* Persons whose presence is permitted by statute
60
Presumptions
* Conclusion that trier of fact is required to draw upon party's proof of underlying set of facts
* Presumptions are not prohibited in criminal cases, but a presumption cannot serve to shift the burden of proof of an element of the crime to the defendant
61
Presumptions: Destruction of Evidence
Generally raises a rebuttable presumption that the evidence was **unfavorable to the destroying party** if the other party establishes:
* (i) Destruction was **intentional**,
* (ii) Evidence is **relevant**, and
* (iii) Alleged victim acted with **due diligence** as to the destroyed evidence
62
Relevance: General Rule
Generally, all relevant evidence is admissible unless it falls under an exception. Evidence is relevant if it (i) has a tendency to make a fact more or less probable than it would be without the evidence (i.e., **probative**) and (ii) the evidence is of consequence in determining the action (i.e., **material**).
**Note**: Evidence a person intended to flee is relevant.
63
Exclusion of Relevant Evidence
Relevant evidence can be excluded if the **probative value** is **substantially outweighed** by th danger of **unfair prejudice**
* Unfair Prejudice: Confusing issues, misleading jury, undue delay, wasting time, needless presentation of cumulative evidence (not unfair surprise)
64
Relevance Dependent on Existence of Fact
* Proof must be sufficient to support a finding that the fact does exist by a preponderance of the evidence
* May be admitted on condition that proof is later introduced
65
Character Evidence: General Rule
Evidence about a person's character to prove that a person acted in accordance with that character on a particular occassion is generally inadmissible.
66
Routine Practice of Organization
The routine practice of an organization (ex. hospital) is admissible into evidence to prove that on a particular occasion the organization acted in accordance with that practice.
* Any witness familiar with organization can testify regarding existence of routine practice
67
Character Evidence: Civil Cases
* **Inadmissible**: To prove a person acted in accordance with that character on a particular occasion
* **Admissible**: When character is an element of a claim or defense (e.g., defmation, negligent hiring or negligent entrustment, child custody)
68
Character Evidence: D's Character in Criminal Cases
**By prosecution**: Not permitted to introduce evidence of D's bad character to prove D has propensity to commit crimes and so is likely to have committed crime in question
**By defense**: D permitted to introduce **evidence of good character** as being inconsistent with type of crime charged in the form of reputation/opinion testimony (must be **pertinent** to crime charged)
* Once D offers evidence of his good character, D has "**opened the door**" to P being able to rebut D's claims by attacking D's character, but is limited to the same type of evidence that the D offers
69
Character Evidence: Victim's Character in Criminal Cases
* **By defense**: D may introduce reputation/opinion evidence of **victim's character** when relevant to defense asserted
* **By prosecution**: P can offer rebuttal evidence of **victim's good character** when D opens the door
70
Character Evidence: Impeachment
Character evidence of witness's untruthfullness is admissible/relevant to impeach a witness
71
Character Evidence: Specific Acts
Not admissible to show D's criminal propensity to prove he committed the crime in question
72
Character Evidence: Exception to Specific Acts Prohibition
Can introduce evidence of a specific act, crime, or wrong to show:
* Motive,
* Opportunity,
* Intent,
* Preparation,
* Plan,
* Knowledge,
* Identity, or
* Absence of mistake
73
Character Evidence: Specific Acts and Cross-Examination
A character witness can be asked about relevant specific acts committed by the person about whom the witness is testifying
* Note: Questions must be asked by P in good faith, not based on a hunch, even if accurate
74
Habit Evidence
Evidence of a person's habit (i.e., behavior that is involuntary, uncontrollable, a reflex, semiautomatic) admissible to prove the person acted in accordance with the habit on a particular occasion
75
Witness: Competence
A person with **personal knowledge** who gives an **oath/affirmation** to testify is competent
* Witness's mental abilities affect credibility, not competence
* No minimum age for competency
76
Witnesses: Judges
Cannot testify as a witness over the trial the judge is sitting
77
Witnesses During Trial: Jurors
Juror may not testify as a witness at in a trial in front of the jury in which they are sitting
78
Witnesses After Trial: Jurors
* **May Not Testify**: (i) statements made during deliberations, (ii) incident that occured during deliberations, or (iii) effect of anything on juror's mind
* **May Testify**: (i) extraneous prejudicial information brought to jury's attention, (ii) improper outside influence, or (iii) mistakes on verdict form
79
Dead Man's Statutes
* Limits the ability of witnesses to testify about transactions with people who are deceased
* Not applicable in criminal cases
80
Impeachment: Types
1. Character for untruthfulness,
2. Bias,
3. Sensory or mental capacity,
4. Prior Inconsistent Statement, or
5. Contradiction
81
Impeachment: Bias
* Impeachment to show bias/motivation is always relevant because it goes towards credibility
* **Extrinsic Evidence**: Permitted
82
Impeachment: Sensory or Mental Capacity
* Can be impeached for deficiency in capacities to perceive, recall, or relate information
* **Extrinsic Evidence**: Permitted
83
Impeachment: Prior Inconsistent Statements
* Can be used to impeach if inconsistent with witness's testimony
* **Extrinsic Evidence**: Only permitted if (i) witness has chance to explain/deny statement and (ii) opposing party can examine witness about it (not required for hearsay declarants or opposing party statements)
84
Impeachment: Character for Truthfulness
* Character
* Specific instances
* Prior convictions
85
Character for Truthfulness: Evidence of Character
Opinion/reputation testimony is admissible to attack witness's character for truthfulness
86
Character for Truthfulness: Specific Acts
* Can ask about specific acts on cross-examination if (i) probative of witness's truthfulness or (ii) truthfulness of another witness
* If **witness denies** specific acts, e**xtrinsic evidence not admissible** to prove specific act
87
Character for Truthfulness: Misdemeanor Criminal Conviction
* Crimes involving dishonesty/false statement can be used to impeach any witness
* Must be a conviction for an offense like “perjury, subordination of perjury, false statement, criminal fraud, embezzlement, or false pretense”
88
Character for Truthfulness: Felony Criminal Conviction
* **If witness is criminal D**: Must be admitted if probative value of evidence outweighs prejudicial effect to that D ("reverse 403")
* **Other witnesses**: Must be admitted if probative value is substantially outweighed by prejudicial effect
89
Character for Truthfulness: Conviction/Release 10+ Years Ago
Admissible if:
* Probative value substantially outweighs prejudicial effect and
* Reasonable written notice of intent to use evidence
**Note**: When calculating age of a conviction, relevant inquiry is whether more than 10 years have passed since witness's conviction or release from confinement—whichever is later.
90
Character for Truthfulness: Juvenile Adjudication
* If witness is D: Not admissible
* If other witness: Admissible if an adult conviction for that offense would be admissible and admitting it is necessary to determine guilt or innocence
91
Impeachment of Hearsay Declarant
Credibility of declarant can be attacked by any evidence admissible if declarant had testified as witness
92
Rehabilitation of witness
* Explain/clarify on redirect
* Offer **opinion/reputation evidence** of witness's character for truthfulness (if character was attacked)
* Offer **prior consistent statemen**t to rebut express/implied charge that witness lied due to improper motive/influence
93
Impeachment: Collateral Issues
Generally, **cannot impeach** credibility of witness by introducing extrinsic evidence of collateral matters
94
Present Recollection Refreshed
* Witness may examine item to refresh witness’s present recollection
* Testimony must be based on refreshed recollection, not item
* Adverse party may inspect item and enter relevant portions as evidence
95
Lay Witness Opinion Testimony
Admissible if:
* (i) Rationally based on **witness's perception**,
* (ii) **Helpful** to clear understanding of witness's testimony or determination of fact in issue; and
* (iii) Not based on scientific, technical, or specialized knowledge
96
Expert Witness Opinion Testimony
Testimony must be both **reliable and relevant**:
* **Reliable**: Subject matter must be scientific, technical, or some other specialized knowledge
* **Relevant**: Testimony helps trier of fact understand evidence or determine a fact at issue
Note: Expert **may not** state an opinion about whether criminal D had the **requisite mental state**
97
Qualified Expert: Requirements
* Qualified as an expert by **knowledge, skill, experience, training, or education**;
* Testimony based on **sufficient facts/data**
* Testimony product of **reliable principles and methods**
* Testimony reflects **reliable applicatio**n of principel/methods to facts of case, and
* Reasonable degree of certainty
**Note**: Even when a witness has been qualified as an expert, this does not preclude opposing party from inquiring into matters that might affect weight given to testimony (e.g., failing relevant classes in graduate school)
98
Qualified Expert: Opinion Based on Inadmissible Facts
* Opinion based on inadmissible facts admissible if **experts in the particular field would reasonably rely** on those kinds of facts/data in forming an opinion on the subject
* Underlying facts may be disclosed to jury if probative value substantially outweighs prejudicial effect
99
Authentication: General Rule
All tangible evidence must be authenticated with sufficient evidence to support a finding that the thing is what its proponent claims it is
100
Authentication: Physical Objects
Generally authenticated throguh:
* Personal knowledge,
* Distinctive characteristics, or
* Chain of custody
Note: X-rays and EKGs require testimony that process used was accurate, machine works, and operator qualified.
101
Authentication: Documentary Evidence
Usually authenticated by:
* **Stipulation**,
* **Eyewitness testimony**, or
* **Handwriting verification**: Comparison or nonexpert with personal knowledge
102
Self-Authenticating Documents
* Public documents bearing government seal,
* Certified copy of public record,
* Official publications issued by public authority,
* Trade inscriptions,
* Notarized documents, and
* Commercial paper
103
Authentication: Ancient Documents
Must show that document:
* (i) is in a condition that creates no suspicion about its authenticity;
* (ii) was in a place where, if authentic, it would likely be; and
* (iii) is at least 20 years old when offered.
104
Authentication: Telephone Oral Statements
Party to telephone conversation may authenticate statements made during that conversation if:
* (i) caller recognized speaker’s voice;
* (ii) speaker knew facts that only a particular person would know;
* (iii) caller dialed number believed to be speaker’s, and speaker identified himself upon answering;
* (iv) or caller dialed a business and spoke about business regularly conducted over the phone
Note: Voice can be identified by any person who has heard the voice at any time, even at trial.
105
Best Evidence Rule: General Rule
An original document or reliable duplicate must be produced to prove contents of a writing when the **contents are at issue** or a **witness is relying on the contents** when testifying.
**Note**: Best Evidence Rule does not apply when witness is testifying as to his/her personal knowledge.
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Best Evidence Rule: Duplicates
Duplicate reliable unless:
* there is a **genuine question** as to the authenticity of the original,
* or the circumstances make it **unfair** to admit the duplicate
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Best Evidence Rule: Unavailability
May introduce other evidence of contents if:
* Originals are lost or destroyed in good faith,
* Party against whom original would be offered failed to produce it, or
* Document not closely related to controlling issue
**Note**: Best Evidence Rule applies here, these are just exceptions.
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Best Evidence Rule: Contents of Public Record
Generally proved by a certified copy
**Note**: This includes proof of a judgment
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Best Evidence Rule: Jury's Role when Secondary Evidence is Admitted
**Judge**: Determines whether a party has fulfilled the factual conditions for admitting secondary evidence
**Jury**: Determines any issue about whether:
* an asserted document ever existed
* another document produced at a hearing or trial is the original or
* other evidence of content accurately reflects the content.
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Parol Evidence Rule
* Prevents introduction of prior extrinsic evidence that contradicts terms of written K
* Applies when a writing is **integrated**: parties intended writing to be their final agreement
* **Intent of the parties**: Determines if there is total, partial, or no integration
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Parol Evidence Rule: Total vs. Partial Integration
**Total Integration**: Complete expression of all terms of parties' agreement
* Parties cannot introduce extrinsic evidence of prior/contemporaneous understandings or negotiations
**Partial Integration**: If writing sets forth only some terms
* Parties permitted to introduce supplementary extrinsic evidence of other terms that are **consistent** with writing (not contradictory)
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Parol Evidence Rule: Exceptions
* Raising a defense to formation or enforcement
* Providing condition precedent to existence of K
* Interpreting/clarifying ambiguity in K
* Subsequent agreement
* Collateral deal
* **UCC**: Supplementing even apparently unambiguous terms by **evidence of trade usage or course of dealing** (priority, highest to lowest: express terms, course of performance, course of dealing, trade usage)
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Character Evidence: Victim's Sexual Conduct
* **Rape shield**: evidence of sexual behavior/predisposition generally not admissible in any proceeding involving sexual misconduct
* **Specific acts**: Admissible to prove D not source of physical evidence in criminal case
* **Sexual behavior/predisposition of victim**: Admissible in civil case if probative value substantially outweighs unfair prejudice
* **Reputation**: Admissible only if placed in controversy by victim
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Character Evidence: Defendant's Sexual Conduct
Evidence of sexual assault in criminal/civil case admissible to
prove any relevant matter (not limited to convictions)
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Curative Admission
* When inadmissible evidence (e.g., nonrelevant evidence) is improperly admitted against a party, court may permit that party to introduce additional inadmissible evidence (e.g., hearsay) for rebuttal
* Meant to remedy prejudicial effect caused by previously admitted evidence.
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Hearsay Exception: Absence of Public Records
Admissible under hearsay exception if:
* Introduced through testimony or self-authenticating evidence, and
* In criminal cases, P gives written notice of intent to offer certification 14 days before trial and D does not object in writing within 7 days of receiving notice
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Notice in a Criminal Trial
* Prosecution must provide reasonable notice of general nature of evidence that prosecution intends to offer at trial
* Defense is NOT required to give the prosecution the same notice.
