Evidence Mini Review Flashcards
prior bad acts
no extrinsic evidence
impeachment only
no arrests
when is extrinsic evidence of a prior inconsistent statement allowed?
Extrinsic evidence of a prior inconsistent statement is only admissible when:
The witness is afforded an opportunity to explain or deny the statement
Opposing counsel is afforded an opportunity to examine the witness about it (FRE 613)
when is extrinsic evidence generally allowed
Only if:
Evidence is on a non-collateral matter, and
Witness is given a chance to explain the inconsistency (FRE 613(b)) and it is in line with Rule 403 balancing; or
Extrinsic evidence is for a criminal conviction and admissible under FRE 609; or
Evidence of a witness’s prior inconsistent statement, bias, or mental capacity (at the judge’s discretion - must be follow Rule 403 balancing)
all balancing tests used for crim convictions
crimen falsi - auto admits unless over 10 yrs
D not witness - 403
D witness - only if prob outweighs prej
over 10 yrs - one;y if prob SUBSTANTIALLY outweighs prep
Juvie convictions
-basically no if witness is D
-can use for bias
is impeachment a collateral matter
yes
Can extrinsic evidence be used to cross-examine a witness about a collateral matter?
Generally, no unless it is:
Evidence of a criminal conviction that complies with the FRE 609 standards
Evidence of a witness’s prior inconsistent statement, bias, or mental capacity (at the judge’s discretion - must be follow Rule 403 balancing)
religious beliefs for impeachment
no but for bias
403
can exclude if probative is substantially outweighed by danger of:
confusion, waste of time, unfair prej, misleading
who can offer testimony to a witness’s reputation
Anyone who is aware of the witness’s reputation in the relevant community
for opinion - need firsthand knowledge
When can evidence of V’s character be admitted in crim cases
By the defendant:
Reputation or opinion evidence on V’s trait if pertinent to a defense asserted (e.g. showing V was violent to support first-aggressor claim)
By the prosecution:
To directly rebut D’s claim of V’s bad character
Homicide cases: can rebut claim D’s claim that V was the first aggressor by showing V had character for peacefulness (D is not required to “open the door”)
Reputation, opinion, and specific acts allowed on cross
are prior bad sex acts by D admissible in crim and civil
yes
when is SRM evidence admissible
ownership
control
feasibility of precautionary measures
only if disputed
when is evidence of prior settlement admissible
-bias or prejudice of witness
-negating contention of undue delay
-proving effort to obstruct crim investigation
when is evidence of offer to settle barred
-demonstrate validity or amount of a DISPUTED CLAIM
-impeachment by prior inconsistent statement or contradiction
in civil case, when is evidence of V’s sex behavior admissible?
In a civil case, the court may admit evidence offered to prove V’s sexual behavior or sexual predisposition if its probative value substantially outweighs the danger of harm to any V and of unfair prejudice to any party. The court may admit evidence of V’s reputation only if V has placed it in controversy.
how can a physical object be authenticated
-personal knowledge
-distinctive char
-chain of custody
How are reproductions (e.g. diagrams) authenticated?
testimony of a witness w personal knowledge (need not be creator)
ancient docs authentication
-20+ years old
-unsuspicious
-found in normal place for such doc
when does best evidence apply
-terms of writing being proven (contents of will or photo)
-witness relies on contents of original during testimony
reqs for expert testimony
-witness is qualified to be expert
-science, tech, or other knowledge helpful to trier of fact to understand evidence or determine fact in issue
-testimony based on sufficient facts or data
-based on reliable principles and methods
An expert’s opinion can be based on what type of information?
Facts or data that expert has been made aware of or personally observed;
Facts that were presented to the expert at trial (e.g. hypothetical question); or
Facts that experts in the field would rely on to form an opinion;
Daubert factors
Used to determine whether the expert’s methods are scientifically valid. The court weighs:
Whether the method has been tested;
If the method has been subject to peer review and publication;
The error rate of the technique;
The existence of standards controlling the technique’s application; and
General acceptance in the relevant scientific community
can an expert give legal conclusion
no but can give opinion on ultimate issue in case except for requisite mental state
marital comms privilege
-either can invoke
-both crim and civ
-made during marriage, survives marriage
when no apply
-one spouse destroys confidentiality by telling 3d party
-proceeding btw 2 spouses
-spouse charged w crime against child
-if used to facilitate crime
If there has been an inadvertent disclosure of privileged information, what steps must be taken to ensure the privilege is not waived?
Holder of the privilege must:
Have taken reasonable steps to prevent disclosure; and
Promptly took reasonable steps to rectify the error
spousal testimony privilege
Protects a witness-spouse from having to testify against a defendant-spouse in a criminal trial only. Applies to events before and during the marriage.
terminates upon divorce or annulment
things not offered for truth of matter asserted
-words w legal sig (tortious words, kx words)
-statements to prove state of mind
-effect on listener
-impeachment
types of opposing party statements that are nonhearsay
-judicial admissions
-personal admissions
-adoptive admissions
-representative/vicarious admissions (agents, authorized speaker, coconspirator)
Name the 3 types of prior statements that are considered nonhearsay. What is required to admit them?
Prior sworn inconsistent statements;
Prior consistent statements; and
Prior statements of identification
In order to be admissible, the declarant must:
Testify at the present trial; and
Be subject to cross-examination
when does dying declaration apply
-HOMICIDE OR CIVIL ONLY
-unavail
-death imminent
-statement re cir of death
statement against interest reqs
Declarant is unavailable;
Statement is against the declarant’s proprietary or pecuniary interest or would expose the declarant to civil or criminal liability; and
A reasonable person in the declarant’s position would not have made the statement unless she believed it to be true
And, if it is a criminal case or the statement exposes declarant to criminal liability:
Statement must be supported by corroborating circumstances that clearly indicate its trustworthiness
testimonial evidence
Prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and
Police interrogations (unless during an emergency)
similar occurrences evidence
-P’s accident history (ok for prior false claims or same bodily injury)
-similar accidents or injuries (if substantially similar conditions, OK for 1. existence of condition 2. causation 3. d had notice 4. intent)
-sales of similar prop or real prop around same time (to prove value; but not mere offers)
-habit (particular circumstances frequently)
-industry custom (rebuttable/inconclusive)
additional requirements for intro of evidence for non-propensity purposes (MIMIC)
-prior notice good time before trial
-say why using
general bar for authentication
sufficient to support a jury finding of its genuineness
summaries for voluminous records
When it would be inconvenient to examine a voluminous collection of records in court, the proponent may present their contents in the form of a chart or summary. However, the proponent must make the originals or duplicates available for inspection or copying, and the court may order the proponent to produce the records in court.
requirement for condition of object chain of custody
substantially the same condition
