FINAL Flashcards
Evidence
Testimony, writings, material objects or other things presented to the senses that care offered to prove the existence or nonexistence of a fact
Types of Evidence
Oral Testimony Real Evidence Documents Demonstrative Evidence Photograph and Video Evidence Circumstantial Evidence
Oral Testimony
Given by witnesses speaking from the witness stand. The witness takes an oath to testify truthfully and then responds to questions posed by attorneys representing both parts
Real Evidence
physical evid that a party claims played a direct role in the controversy (ex: murder weapon)
Must be authenticated
Jurors are fascinated by real evid and so it is often used with great effect
Documents
Any type of writing or recording of info- could consist of everything from bills, contracts, notes from witnesses…
Technology dependent
Must be authenticated (witnesses can’t just talk about the documents, fed. rules req the actual doc to be submitted as evid except if its been destroyed)
Demonstrative Evidence
Sometimes is physical evid but is it not an object that played a direct role in the controversy
Demonstrates concepts or facts to jury
Ex: maps, charts, graphs, pwr pnt, exhibit
Open to abuse because not directly involved
Photograph or video evidence
The role of these is growing with cell phones
Do not constitute their own category of evid
Must be submitted as real or demonstrative evid.
Circumstantial Evidence
Any evid that req the jury to make inferences connecting the evid with a disputed fact
Whereas direct evid offers a fact, circumstantial evid offers facts that could illuminate the disputed fact
Why is it a mistake to give litigants complete freedom- Why do we need the federal rules of evidence?
Wealthy litigants could prolong trials indefinitely
The rules allow for the intro of weak evid. and assume that opposing counsel will expose flaws
Lay jurors could place undue weight on certain types of evid
Evidentiary rules were developed as part of what?
Common law
2 sources of legal history
Notes from advisory committee
Committee reports and other legislative history from congress
Rule 401
Test for relevant evid. Relevant if:
a) it has any tendency to make a fact more or less probable than it would be without the evid.
b) the fact is of consequence in determining the action
Rule 402
general admissibility of relevant evid. Relevant evid is admissible unless any of the following provide otherwise: US Const Fed Statutes These rules Other rules prescribed by the SC
Rule 403
Exclusion of evid for prejudice, confusion or waste of time or other reasons
The court may exclude relevant evid if its probative value is substantially outweighted by a danger of one or more of the following:
Confusing the issues, misleading the jury
Undue delay, wasting time or needlessly presenting cumulative evid
Unfair prejudice
What rule is final obstacle for evidence?
403
Which litigant conducts direct examination of a witness
the attorney that called the witness
Hostile Witness
Adverse witness to the attorney calling them
5 tactics for impeaching a witness
- Attack witnesses’ character for truthfullness
- Claim unfair prejudice, confusion, or delay
- Complete the story (additional info eliminates or reduces negative effects of the testimony)
- Demonstrate Inconsistencies
- Show Bias
Which litigant conducts re-cross examination of a witness?
The attorney of the opposing party, if necessary
Rule 413 permits what?
evidence of past involvement in sexual assaults to be introduced
Rule 414 permits what?
for evidence of past involvement in child molestation to be introduced
What are the advisory committee’s 3 objections to rule 413 and 414?
- current rule already allows admittance in certain circumstances
- people would be convicted on past behavior
- no convictions required
What is hearsay?
Secondhand information
Evidence based on information received from another
How does the 6th amendment impact the admissibility of hearsay?
Promises the right to confront witnesses- aka the right to cross examine
Who is gatekeeper of expert testimony
trial judge
What makes witnesses former testimony admissible? (3 things)
- Testimony was given at trial (under oath)
- Opposing party (or predecessor in interest) had opportunity to confront the witness testimony
- Opposing party, or predecessor in interest, had opportunity and similar motive to develop testimony
2 aspects of business records that makes them admissible hearsay
- Recorded by a person who has personal knowledge of the facts
- Regular practice of keeping records
In what context does attorney client privilege apply?
In any context
With anyone reasonably believed to be able to practice law
2 things proposed rule 502 demands to protect inadvertent disclosure
1) reasonable steps were taken to prevent
2) reasonable steps taken to rectify
Rules 1001-1003 is based on what 3 policies?
(This whole section is based on producing the original document)
- Content of writing, recording, or photograph is more detailed and difficult to describe than most events or objects that witnesses relate in a court room
- They are easily produced
- Reduces opportunities for fraud and distorition
3 functions of authentification
- Necessary to establish relevance- evid becomes relevant only when a party provides info making it to the controversy
- Offers the jury the assurance that a piece of evid is genuine- strong chain of custody documentation aids the jury in trusting the evid
- Authentication places the evid in the proper context
4 types of presumptions
- Permissive Inferences
- Presumptions that shift the burden of production
- Presumptions that shift the burden of proof
- Conclusive Presumptions
Permissive inferences
Judge instructs the jury that it may infer one fact from another
Jury may disregard this suggestion; a permissive inference only presents an option
Can be helpful to the party benefitting from the evid.
Presumptions that shift the burden of production
Hardest category of presumption to understand; shifts burden of producing evidence to the other party
Shifting the burden of proof
Created when a party introduces sufficient evid of facts needed to invoke the presumption
Req. the opposing party to respond to the presumed fact by producing evid to the contrary
They req. the opposing party to carry the burden of proof
Conclusive presumptions
Also called irrebuttable presumptions; req. the fact finder to draw a particular inference
Conclusively est. a fact relevant to the litigation
