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Evidence > Gash's Definitions > Flashcards

Gash's Definitions Flashcards

1
Q

Relevance

A

“Evidence is relevant if it has ‘any tendency’ to make the existence of any consequential fact ‘more or less probable’”

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2
Q

Hearsay

A
  • Declarant
  • Statement
  • Out of court
  • Offered for truth of the matter asserted
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3
Q

Non-hearsay uses

A 
Impeachment
Verbal Acts
Effect on listener/reader
Verbal Objects
State of Mind
Evidence of memory or belief
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4
Q

Prior Inconsistent Statements

A
  1. Declarant testifies at trial/hearing
  2. Declarant now is subject to cross examination
  3. Testimony is inconsistent with statement
  4. statement was made under oath/penalty of perjury
  5. statement was made at trial, hearing, deposition, or other proceeding
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5
Q

Prior Consistent Statements

A
  1. Declarant testifies at trial/hearing
  2. Declarant subject to cross examination regarding the statement
  3. Statement is consistent with the declarant’s testimony
  4. Offered to rebut an express or implied charge of recent fabrication or improper influence or motive
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6
Q

Prior Statements of Identification

A
  • Declarant testifies
  • Declarant subject to cross
  • Declarant made an ID after perceiving person
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7
Q

Statements by Party Opponent

A

o Statement made by party

o Statement offered against party

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8
Q

Adoptive Admissions

A
  • Statement about which party manifests an adoption or belief
  • Offered against the party
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9
Q

Admissions by Speaking Agents

A
  • Statement made by a person authorized to speak on the party’s behalf
  • Offered against party
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10
Q

Admission by Employee/Agents

A
  • Statement by a party’s agent/employee
  • Concerning a matter within the scope of employment
  • made within existence of agency or employment (does not mean during business hours or on duty. Means while still employed)
  • offered against the party
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11
Q

Coconspirator Exception

A
  • Existence of a conspiracy
  • Declarant is a member of the conspiracy
  • Defendant is a member of the conspiracy
  • Statement made during conspiracy (pendency)
  • Statement has to be in furtherance of the conspiracy (furtherance)
  • Offered against a party
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12
Q

Present Sense Impression

A

o Statement describing or explaining event or condition

o Made while declarant perceiving event or condition OR immediately thereafter

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13
Q

Excited Utterance

A

o Statement relating to startling event or condition

o Made while declarant under stress of excitement of event or condition

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14
Q

State of Mind

A
  • Then-existing Physical Condition; OR
  • Then-existing mental condition; OR
  • Subsequent Conduct; OR
  • Fact about a will
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15
Q

Declarant Unavailable

A
  1. Declarant claims a privilege
  2. Declarant refuses to testify
  3. Declarant testifies to not remembering the subject matter
  4. Declarant dead or infirm
  5. Declarant is unavoidably absent
    o Statement is available if proponents actions are keeping witness from testifying
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16
Q

Statements for Medical Treatment

A

• Statement made for purposes of medical diagnosis/treatment
AND
o Statement describes medical history; or
o Statement describes past or present symptoms or sensations; or
o statement describes the inception or general character or cause; AND
• Statement reasonably pertinent to diagnosis or treatment

17
Q

Past Recollection Recorded

A
  • Memorandum or record; AND
  • Concerning matter about which witness once had knowledge; AND
  • Now knowledge is insufficient to testify fully & accurately; AND
  • Statement made or adopted by witness; AND
  • Made while fresh in witness’s memory; AND
  • Accurately reflects once-fresh knowledge
18
Q

Business Records

A
  • A record of business in any form
  • Record contains acts, events, conditions, opinions, diagnoses
  • Record made at or near time by, or from information transmitted by, person with knowledge
  • Made in the ordinary course of business
  • Kept in the ordinary course of business
  • Foundation laid by custodian or other qualified person
19
Q

Public Records

A

• Records of a public office setting forth
o Activities of the office, or
o Matters observed and reported pursuant duty, excluding reports by law enforcement personnel in criminal cases, or
o Factual findings from investigations pursuant to legal authority, except against criminal defendants
-Unless untrustworthy

20
Q

Former Testimony Exception

A

o Declarant Unavailable (as a Witness)
o Testimony given at a trial, hearing, or deposition in same or different case
o Offered against party who had similar motive and opportunity to examine declarant in prior proceeding
• If in a civil case, predecessor in interest had similar motive and opportunity
***Leaves out Grand Jury testimony. Does not qualify as opportunity to cross-examine because it is only prosecution, grand jury, and the witness

21
Q

Dying Declarations

A

o Declarant unavailable
o In homicide case or civil action
o Declarant makes statement while believing death imminent
o Statement concerns cause or circumstances surrounding death

22
Q

Impeachment (attack on witness’s credibility)

A 
o  Bias
o  Sensory/Mental Capacity
o  Untruthful disposition
o  Prior Inconsistent statement
o  Contradiction
23
Q

Contradiction (Type of Impeachment)

A

Types of Contradiction
• Contradiction and substantive point
• Contradiction and impeaching point
• Contradiction on collateral matter (not admissible)

24
Q

Lay Opinion Testimony

A

o Rationally based on perception witness
o Helpful to clear understanding of W’s testimony or the determination of a fact in issue
o Not based on scientific, technical, or other specialized knowledge
*Firsthand knowledge required

25
Q

Expert Testimony

A
  • Specialized knowledge, skill, experience, training or education
  • Helps the trier of fact understand evidence or determine fact in issue
  • Based on sufficient facts or data
  • testimony is product of reliable principles and methods
  • expert reliably applied principles and methods to facts of case
26
Q

Daubert Factors

A
  • Testability/falsifiability
  • subjected to peer review/publication
  • known potential error rate
  • existence and maintenance of standards controlling technique’s operation
  • general acceptance in scientific community

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