Full Set Flashcards
How to notify court of challenge to evidence admission.
ev admitted - objection/motion to strike
ev excluded - offer of proof on the record (explanation of the relevance & admissibility of the ev made on the record)
Exceptions for notifying the court of challenge to evidence decision.
Plain error rule - errors that affect substantial rights are grounds for reversal even if no objection/offer of proof was made
IL v Fed objection to ev
IL - even if court makes an ev ruling before trial, party must RENEW objection or offer proof at trial to preserve issue on appeal, in Fed ct once you’ve done it once it doesn’t have to be done again
Rule 105
limited admissibility - ev may be admissible for one purpose but not for another, court must limit ev to its proper scope & instruct jury accordingly
Rule 106
Rule of Completeness - if one party introduces part of a document or recording the other party may introduce relevant portions of the document or recording (or even another) to provide context - this is true even if it would otherwise be inadmissible
*also known as the open door doctrine
Judicial Notice Doctrine
court’s acceptance of fact as true w/o requiring formal proof, not going to be reasonably disputed
MUST - if party requests & provides necessary info
MAY - at its own discretion, just not against crim D
may be taken anytime including on appeal
adjudicative facts
judicial notice only applies to adjudicative facts - otherwise have to be proven & decided by jury
- generally known w/in territorial jurisdiction of court
- accurately and readily be determined by sources whose accuracy cannot reasonably be questioned
Legislative facts
court sometimes acts like leg, facts the court takes into consideration when determining what legal rule to apply or how to interpret the law
Judicial notice of the law
not judicial notice - but when the court explains to jury what the law is
effect of judicial notice IMPORTANT
in a civil case, if the court does take judicial notice, the court will instruct the jury that it is BOUND to accept the fact as conclusive. however in a criminal case the jury members must be instructed that they MAY accept any judicially noticed fact as conclusive
order of evidence
- P’s case-in-cheif
- D’s case
- P can rubut
order of presentation of witness follows the same
courts & judges may call witnesses
cross after other side direct & limited to scope of direct
Exceptions for leading questions
- cross
- elicit preliminary background info not in dispute
- child or ifirmity
- hostile witness
*IL only allowed to “witnesses id-ed w/ an adverse party” (not nec all hostile witnesses)
compound questions
not permitted
facts not in evidence
not permitted
argumentative questions
not permitted
calls for conclusion
not permitted
asked and answered
not permitted
When can witnesses be excluded?
upon request of either party to prevent them from hearing the testimony of others
OR when court decides on its own
parties, party whose presences is essential to the presentation of the case, or a witness whose presence is permitted by law CANNOT be excluded
burden of production
party must come forward with evidence sufficient to support a finding (to get to a jury) on a particular issue, or risk summary j on that issue
burden of persuasion
party must persuade the trier of fact that it has met each element of the case
Civil - preponderance of the evidence
Criminal - beyond a reasonable doubt
what do presumptions do?
shift the burden of production
rebuttable presumption
proving something indirectly
upon proof of prelim facts, jury told to accept presumed fact, shifts burden of production to opposing party, if counterproof introduced - presumption eliminated
conclusive or irrebuttable presumptions
rules of law or legal consequences of proving a certain thing (e.g., a child under the age of 4 cannot form criminal intent)
Rule 402
all relevant ev is admissible, unless excluded by specific rule (must be relevant to be admissible)
relevant evidence threshold
tendency to make any fact of consequence more or less probably than it would be without the evidence
relevance components
- material
2. probative
direct evidence
identical to the factual proposition it is offered to prove
circumstantial evidence
circumstances from which we can draw conclusions
rule 403
exclusion of relevant evidence - court - if probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of tim, or needless presentation of cumulative evidence
relevance conditioned on fact
occasionally, ev relevance is conditioned on some preliminary fact
courts let the jury decide which way it will go
character evidence definition
propensity evidence/propensity argument - low threshold
any doc or testimony offered to prove that a person acted in a particular way on particular occasion, based on character
character evidence in civil
generally inadmissible, only admissible when ESSENTIAL element of the case
types of character evidence
- reputation evidence - witness has a reputation for acting in a certain way
- opinion testimony - witness feels that the party has a particular character trait
- prior bad acts - testimony that proves that a party acted badly in a prior situation
- opinion testimony - witness feels that the party has a particular character trait
*generally admissible
character evidence in criminal (defendant)
only reputation and opinion permitted
D’s character - he can introduce evidence (only opinion & rep) of his own good behavior as inconsistent w/ the crime, but this opens the door for the prosecution (who can only use opinion & rep)
character evidence in criminal (victim)
D can bring this - show propensity for violence, but then prosecution can do the same for victim and D
IL - prosecution may NOT cross character witnesses testifying about other witness w/ specific instances of conduct of the D or victim
prior bad acts evidence
not admissible to show propensity, but may be otherwise relevant, e.g.: MIMIC
Motive, Intent, absence of Mistake, Identify, Common plan or scheme
habit evidence
permissible to argue particular regular habit as way of arguing that she acted in conformity therewith on particular occasion
hint: “always,” “every day,” NOT “usually”
witness competence requirements
- personal knowledge (of matter)
- oath
- understands the truthfulness obligation
restrictions on competence (judges)
- judge can’t testify in a trial the preside (if personal knowledge, then recuse)
restrictions on competence (jurors)
- NOT as to any matter or statement occurring during the course of deliberations, or to the effect of anything upon that juror’s mind that influenced their vote
- MAY:
extraneous prejudicial info brought to jurors attention
whether outside influence
whether clerical error in entering verdict
dead man statutes
no fed
IL - person sues or defends as personal rep of dead. no person may testify as to conversations with dead unless testifying on behalf of rep, dep admitted or certain employment based claims
when prior crime can be used to impeach
RULE 609
felonies: serious crimes w/in past 10y + punishable >1y; probative value v prejudicial effect
- witness - substantially outweighed by its prej
- crim D - only used if prosecutor can show the probative value outweighs prej
crimes of dishonesty: criminal or civil, w/in 10y of conviction
- no juvenile adjudications
- no details, just fact of conviction
impeachment by prior inconsistent statements
X or through extrinsic ev
IL - witness MUST be first afforded opportunity to explain or deny statement (same as in Fed)
opposing party gets chance to examine
impeachment by bias
interest by a witness in the outcome of the case
Not in Fed rules, but SCOTUS CL
On X or extrinsic ev
impeachment by sensory competence
most common
deficiency in capacities to percieve, recall or relate info
impeachment by hearsay declarany
b/c declarant is basically a witness
rehabilitating a witness after impeachment
- chance to explain or clarify
- if accused of prior inconsistent statements (intro that witness made same statement before bribe or threat)
- if truthfulness - then character evidence
present recollection refreshed
it’s cool - show docs or things, adverse party can see/inspect & may introduce into ev
past recollection recorded
hearsay exception - if you want to read a document your witness wrote in the past, special elements must be shown under the hearsay exception
types of opinion testimony
- lay witness
2. expert witness
lay witness opinion testimony
in general not supposed to give opinion, just facts
BUT if
- rationally based on perception of witness
- helpful to a clear undersatnding of witness’ testimony &
- not based on scientific, technical or specialized knowledge
expert witness opinion testimony elements
court determines that
- some scientific, technical, or specialized knowledge
- will be helpful to trier of fact
expert testimony tests
Frye
Accepted
Daubert
Frye expert witness test
used in IL
accepted expert witness test
only admissible if the theory, principle or process is generally accepted in the scientific community
Daubert expert witness test
used in Fed court
- be qualified
- opinion based on sufficient facts or data
- apply principles and methods reliably to the facts of the case
not more lenient than accepted test
on what must expert witness’s testimony be based
- personal observation
- facts made known at trial
- facts not known personally but supplied to her outside the courtroom so long as they are reasonably relied on by experts in the field
could otherwise violate rules of evidence
expert witnesses & ultimate issues
can only testify on ultimate issues
but CANNOT testify as to whether a criminal D had the requisite mental state of any element of a crime or defense
authenticating tangible evidence definition & threshold question
non-testimonial - documents & real ev
is there evidence sufficient to support a finding taht the thing is what its proponent claims it is? (not a preponderance of the evidence standard)
authenticating real evidence (tangible)
RULE 901
- personal knowledge (familiarity with the object)
- distinctive markings
- chain of custody
authenticating documentary evidence (tangible)
- stipulation & discovery
- personal knowledge, unique identifiers, or distinctive characteristics
- handwriting verification
- authentication of ancient documents
- reply letter doctrine
- self-authenticating documents
authenticating documentary evidence - handwriting verification
- comparison by expert or trier of fact OR
2. lay witness w/ personal knowledge of claimed author’s handwriting
authenticating documentary evidence - authentication of ancient documents
- 20y or more
- condition doesn’t create suspicion as to authenticity
- found in a place where it would have been if authentic
authenticating documentary evidence - reply letter doctrine
so long as it’s unlikely that it was written by someone other than the recipient of the first letter
authenticating documentary evidence - self-authenticating documents
public docs, official publications, newspapers, trade inscriptions, notarized docs, commercial paper, business records
authenticating oral statements
voice ID - anyone who heard the voice at any time
tele conversations - caller can recognize, ev that speaker knew those facts, ev that caller dialed the number of speaker’s and speaker ID-ed himself, caller phoned a business and spoke with a person who answered about business regularly conducted over the phone
best evidence rule
original doc or copy (so long as genuine question as to authenticity & would be unfair to admit the duplicate) to prove contents of doc when writing is at issue, i.e.,
- doc is used as proof of event happening
- doc has a legal effect
- witness is testifying based on facts learned from the doc
exceptions to best evidence rule
when other evidence regarding its content is admissible
- unavailability (lost/destroyed, can’t get by available judicial process, when party against whom it would be introduced has a copy, doc relates to a collateral matter)
- public records (b/c can never get original)
- voluminous writings (summary will do, with full in record)
- admission by a party
exceptions to parole evidence rule
- clarify ambiguity
- prove some trade, custom, or course of dealing
- show fraud, duress, mistake, or some illegal purpose
- show that consideration has or has
not been paid
privileges genearl
not in federal rules, just CL principles
MUST be confidential communication
waiving privileges
- failing to timely assert
- voluntarily disclose to someone not protected by privilege
- explicitly or contractually waives
spousal privileges
spousal immunity - can’t be compelled in criminal trial if married at time of trial
confidential marital communications - can be invoked after divorce & used in civil and criminal cases
attorney client privilege requirements and exception
- confidential communication between
- client and lawyer for purposes of
- obtaining legal advice/services
doesn’t apply to future crime or fraud or disputes between attorney and client
work product doctrine
prepared by attny in anticipation of lit
only w/ substantial need can it be compelled
MENTAL impressions and strategies of CORE work-product always protected
other privileges
physician-patient privilege psychotherapist-patient privilege 5th am priest-clergy accountant-client journalist or reporter w/ sources goven't privileges (informants ID, etc.) state secret privilege other IL (rape and violence victims to counselors, union agents, voting, presence of interpreter
when evidence is more prejudicial than prob (policy exclusions) - can’t be used to show L
- liability insurance
- subsequent remedial measure
- offers to pay medical expenses
- settlement offers or negotiations
- plea negotiations
- past sexual conduct of victims (except if other sperm or prior relationship)
- ev of prior sexual assault is allowed
hearsay definition
- out of court statement intended
- to assert/offer to prove
- the truth of the matter stated
non hearsay uses of out of court statemetns
when it looks like hearsay but is not being used to prove the matter asserted
- verbal act or legally operative fact (if statement is offered to prove that a statement was made, and therefore an act completed it is admissible)
- effect on listener
- state of mind
double hearsay
both levels have to fit an exception
4 Hearsay exceptions
- prior statements of testifying witnesses
- party admissions
- declarant unavailable
prior statements of testifying witnesses (Hearsay exception) - 3 kinds
- prior inconsistent statements
- prior consistent statements
- prior statement of ID
party admissions (Hearsay exception)
anything from a prior civil case
prosecution can use anything D said in criminal hearing and guilty pleas in civil or criminal
adoptive admissions - someone else said it, but they then admitted it, silence can sometimes work
vicarious admissions (through agents)
co-conspirators
preliminary questions to determine co-conspirators (can’t bootstrap tho!)
declarant unavailable (Hearsay exception) - defintion
- declarant exempt
- declarant refuses to testify
- declarant lacks memory
- dead or ill
- absent and can’t be made present
prior inconsistent statements excuse for hearsay loopholes
to impeach & proof of what is asserted
- not made under oath - only for impeachment
- made under oath - admissible
IL - only in criminal cases, but can be used to impeach if made under oath, acknowledged under oath, signed by declarant
prior consistent statements excuse for hearsay loopholes
to rebut an express or implied charge of recent fabrication
to rehabilitate
doesn’t have to be under oath
statement must have been made before the alleged proper motive arose
in IL ONLY to impeach
prior ID statements excuse for hearsay loopholes
if declarant is now testifying at trial (like a line up)
not in IL
declarant unavailable (Hearsay exception) - exemptions
- former testimony
- dying declarations
- statements against interest
- statements of personal or family history
- declarant unavailable due to party’s wrongdoing
declarant unavailable (Hearsay exception) - exemption, former testimony
okay if there is effectively a way for opposing party to have X (facts w/similar opportunity and motive)
declarant unavailable (Hearsay exception) - exemption, dying declarations
is dying or believes death is imminent and pertains to the cause of death
declarant unavailable (Hearsay exception) - exemption, statements against interest
difference between party admission
- don’t apply to parties
- only if declarant is unavailable
- no against interest requirement
declarant unavailable (Hearsay exception) - exemption, statements of personal or family history
obvious
declarant unavailable (Hearsay exception) - exemption, declarant unavailable due to party’s wrongdoing
the door is open
no threshold showing that declarant is unavailable hearsay exception - exemptions
- present sense impression (not in IL)
- excited utterance (IL) - under the stress & relates to event
- statements of mind, hearsay statement must be in present tense
- statements made for purposes of medical diagnosis or treatment, if made to med professional
- past recollection recorded (witness once had knowledge about matter, record prepared by witness, accurately reflects witness’s knowledge, witness states that she has insufficient recollection)
- business records (part of regular practice in making record and by person with knowledge)
- public records (description/activities of agency, observations of those under duty to report, conclusions of legal investigations – last two can’t be used if law enforcement)
- learned treatises (if reliable authority & expert relied on it)
- judgment of previous conviction
- prior statements in child sex abuse cases
- residual (catch all if not unreliable and would serve justice)
- bunches of other stuff
this is not the same as present recollection refreshed
hearsay evidence restrictions
6th a - right to confront witnesses
14th a - if it would affect due process
