Flash Cards for Bar Courses - Evidence
Habit
A person’s regular response to a specific set of circumstances
Needs specific details
Liability Insurance
Cannot be used to show whewther pty acted negligently. CAN SHOW:
- to prove ownership/control
-to impeach
- admission of liability
Subsequent Remedial Measures
Not admissible to prove negligence, culpable conduct, a defect, or a need for a warning. CAN be used for:
-ownership/control
-rebut a claim that a precaution was not feasible
-prove opposing pty destroyed evidence
Civil Settlements and Settlement Negotiations
Settlment or a settlement offer is not admissible to (1) prove or disprove the validity or amt of a disputed claim; (2) or impeach a witness by a prior inconsistent statemetn or contradicition. CAN SHOW
-bias
THERE MUST BE A DISPUTED CLAIM AS TO EITHER THE LIABILITY OR AMOUNT
Plea Discussions
NOT admissible:
-offers
-withdrawn pleas
-actual pleas of nolo contendre (no content)
-statements of fact made duriing any of the plea discussions
Generally admissible: actual guilty plea in related litigation as a statemetn of an opposing pty
Offers to pay medicval expenses
Inadmissibnle to prove liability
-hospital exp
-similar expenses
; HOWEVER, is to prove admissions of fact
Character Evidence (Crim)
D can intro evidence of their own good char; BUT then prosecution to rebut
-MUST BE Proven by opinion or reputation. No specific acts
If D offer’s a character witness; the prosecution can cross-examine and ask direct q’s and can use specific instances evidence
1) Prosecution cannot introduce rep or opinion if the purpose is to show that D probably acted in conformity w/ that character
2) D is allowed to present of a relevant good char trait to est that D acted in conformity w/ that character and did not commit the crim. LIMITED TO REP AND OPINION evidence ONLY
3) If D does present character evidence of good char, then Prosecutor can rebut w/ D’s bad character. LIMITED TO REP and OPINION evidence ONLY.
4) Evidence of prior crimes are never admissible to show that D acted unlawfully again and committed the crime charged; HOWEVER, unless they are used to point in the case: OK MIMIC
5) If D testifies, he automatically places his character for truthfulness or untruthfulness in issue. Prosecution can then attempt to impeach.
Character Evidence (Civil)
1) Generally not admissible but
is admissible if character is at issue
-Defamation
-negligent hiring or entrustment
-child custody cases
-fraud
When character is at issue, can use all 3 forms of character
2) if the litigant has some other purpose for the intro of the character evidence, then the rule will not keep it out. It must be relevant
3) If a party testifies, he places automatically places their character for truthfulness and untruthfulness in issue.
Independently relevant evidence: Using not for character but for other purpose…
-OKMIMIC
-Opportunity
-Knowledge
-Motive
-Intent
-Abscense of MISTAKE
-Identitity
-Common plan or scheme
Subject to 403
NOTICE req. for crim cases- must provide reasonable notice of this type of evidnece that will be offered at trial
D’s similar misconduct in sex-crime cases
Acts of sexual assualt or child molestation is admissibnle in a crim or civil case where D is accuses of committing sexual assualt or child molestation.
party must offer evidence to D 15 days b4 trial
Methods of Authentication
Opponent’s Admission
Eyewitness Testimony
Handwriting Verifications (by person w/ know./expert/or fact-finder
Ancient Documents
Voice Identification
Can be identified by the opinion of anyone who has hear the voice at anytime (including after litigation)
Telephone Conversations
(1) the testifyor recognized the other party’s voice
(2) the speaker had knowledge of certian facts only that person would have known
(3) called a person’s number and voice answered as gtherta person or person’s residence
(4) OR called a busiensss and talked with the person answering the phone abt matters relevant to the business
Best Evidence Rule
The prove the content of a writing, recording, or photograph, the oriiginal writing must be produced if the terms of the writing are material.
Applies where the writing is a legally operative or dispostive instrument OR where the knowledge of a witness concerning a fact results from having read it in writing
Does NOT apply where the witness has personal Know. of the fact to be proved
Incapacity to be a witness
Children (depends on capacity and intelligence)
Insanity (may testify if they have the capacity to testify accurately)
Judge and Jurors (Juror may testify to extraneous prejudicial info; outside influence; mistake on verdict form; OR clear statement that they relied on racial sterotypes to convict the crim D)
Refreshing Recollection (present recollection recorded)
Witness uses any writing or object to refresh their present recollection
Past Recollection Recorded (Recorded Recollection)
where a witness states that they have insufficient recollection of an event to enable them to testify. Even after they have consulted the memo or other record given to them, the record itself may eb read into evidence if a proper foundation is laid
- Witness has insufficient recollection
- Witness had personal Know. of the facts in record when the record was made
-record was made by the witness or under the wintess’s direction or adopted by the witness
-record was made when the matter was fresh in the witness;s mind
-wintess vouches for the accurancy of the record
Layperson Opinion Testimony
-Rationally based on witness’s perceptiopn
-helpful to determine the fact in issue; and
-NOT based on scientifci, technical, or other specialized know.
Expert Witness Opnion Testimony
Subject matter must be scientific, techinical, or other specialized know.; opinion based on sufficient facts or date; opinoion is product of rel;ioable principles and methods; and expert’s opinion is a reliable application of the principles and methods to the facts of the case
-Witness must be expert
-Proper factural basis (personal observation; made known to the expert at trial; reasonably relied upon by other experts)
-Reasonable probability
-Reliability (TRAP - Testing of principle methodolgy; Rate of error; Acceptance by experts in the dame field; Peer review and publication)
Methods of Impeachement
1) Prior Inconsistent statements
2) bias
3) Prior Convictions
4) Prior Bad Acts
5) sensory defenses
contradiction
6) Opinion or Reputation evidence of untruthfulness
Prior inconsistent Statements (impeachment)
Can be proved by cross or extrinsic evidnence: MUST lay the foundation and MUST BE RELEVANT
-witness is given opp to explain or deny the statement
-adverse pty is given an opp to examine the witness about the statement
NO FOUNDATION REQ. when: the prior inconsistent statement is an opposing pty’s statement
Bias or Interest
Witness is biased or has an interest in the outcome of a case
-can use cross exam or extrinsic
Foundation for extrinsic: must 1st be asked abt the facts that show bias or interest on cross-exam
Sensory Deficienies
Witness may be impeached by showing, either on cross or extrinsic evidnece that their faculties or perceptoipon and recollectoomn were so impaired as to male it doubtful that they could habe percieved those facts. Can also be impeached for no knowledge.
NO FOUNDATION REQ.
Contradiction
Try to make the wintess admit that they lied or were mistaken abot some fact they testified to during direct examination.
Extrinisc evidence is permitted unless the contradictory fact is collateral
Opinion or Reputation Evidence or Untruthfulness
Accomplished by calling a character witness to testify abt the target witness’s bad rep. or
NO SPECIFIC INSTANCES OF CONDUCT
Prior Conviction
Any Crime of Dishonesty of False Statement
-ct has no discretion to bar
Felony not involving dishonesty or false statement
-if the witness is the crim D = probative value outweighs the prejudicial effect
-all other witnesses = standard rule 403 balancing
Remote convictions not available - if more than 10 years
Juvinile convictions NOT ADMISSIBLE
NO FOUNDATION FOR EXTRINSIC EVIDNECE
Bad Acts Involving Untruthfulness
An act of deceit or lying
NO EXTRINSIC EVIDENCE
May ONLY use on CROSS is permitted and cannot refer to any consequences
Rehabilitation
witness who has been impeached may be rehabed by:
-Explaniation or Redirect
-Good Character for truthfulness (ONLY opintion and reputation, NO specific acts)
-Prior consistent statements
Judicial Notice
Ct can take judicial notice of any fact of consequence that is generally known in the community or that is within a reliable, trustworthy, and verifiable source.
Civil Case: Conclusive on jury
Crim Case: Prosecutor’s burden to provide evidence on that point is satisfied.
In both types of cases, ct must allow a rebuttal when one party seeks to have the ct take judicial notice of a fact, when the fact is essential to the case.
When relevant evidence is EXCLUDED
1) Probative value is substantially outweighed by the prejudicial effect
2) Repeated Evidence
3) Waste of time
4) Confusion or mislead jury
Best Evidence Rule
When you are trying to est the contents of a writing , the original must be produced or show the OG is unavailable.
Handwriting authentication
1) by a person w/ familiarity b4 trial
2) by an expert
3) by the trier of fact
voice authenication
1) someone w/ familiarity b4 or for purposes of trial
2) by an expert
3) by trier of fact
hearsay
an out of ct statement offered for the truth of the matter asserted
1) isolate the statement
2) determine who the declarant is
Hearsay Exceptions
1) present sense impresstion
2) excited utterance
3) statement concerning metal or physical condition
4) statement made for for purpose of seeking medical treatment
5) recorded recollection
6) Business records exception
7) Former testimony *
8) dying declarations*
9) statements against interest*
- need unavailability of witness at the time of trial
Hearsay Exclusions
1) admissions and prior statements of a testifying witness
-Prior inconsistent statemetns
-prior consistent statemetns
-prior statements of identifications
2) Adoptive statements
Dying Declaration
Belied that death is imminent
statement concerning the cause or circumstances causing death
Speaker or declaration must be unavailable;
ONLY IN CIVIL CASE or HOMICIDE CASES
Excited utterance
statement relating to a startling event made while declarant was still under the stress of the excitement
Present Sense Impression
A statement describing an event made while the speaker observing the event or immediately thereafter
Statements made for medical diagnosis or treatment
Statement abt the nature of injury or condition is admissible only if it relates to medical diagnosis or treatment (discussion of fault is excluded) and usually made to a medical treatment
Can be made for medical diagnosis treatment for antoher person
Business Records exception
the declaratnt must have personal Know of the facts stated or recieved the info from someone with personal knowledge in teh ordinary course of business
Hearsay within hearsay
All statemetns have to be admissible under hearsay rules
Usually comes in on business records exceptions
Statement of state of mind (hearsay exception)
Circumstantial evidence to show the declarants then existing state of mind or condition
attny client privledge
Client has privledge to not disclose communications with attorney
NOT confidential if 3rd person is present UNLESS the 3rd person is NECESSARY OR THE ATTNY’s agent
