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Evidence > Hearsay pt 3 > Flashcards

Hearsay pt 3 Flashcards

1
Q

803: Except to Hearsay regardless if declarant is available

Reputation concerning character

A

a reputation among a persons associates or in the community concerning the persons character

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2
Q

803: Except to Hearsay regardless if declarant is available

Reputation consists of

A

the combined out-of-court statements of many people, concerning a person

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3
Q

803: Except to Hearsay regardless if declarant is available

Reputation evidence is hearsay if offered to prove

A

that the person actually has the reputed charateristic

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4
Q

803: Except to Hearsay regardless if declarant is available

The reputation must concern

A

character, not other matters

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5
Q

803: Except to Hearsay regardless if declarant is available

Evidence of a final judgemet of conviction if:

A
  1. the judgement was entered after a trial or guilty plea, but not a nolo contendre plea,
  2. the judgement was for a crime punishable by death or by imprisonment for more than a year,
  3. the evidence is admitted to prove that any fact essential to the judgement AND
  4. when offered by the prosecuter in a crim case for a purpose other than impeachment, the judgement was against the defendant;
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6
Q

803: Except to Hearsay regardless if declarant is available

Evidence of final judgement of a previous conviction: only applie when of a crime punishable by..

A

death or imprisonment in excess of a year (felony)

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7
Q

803: Except to Hearsay regardless if declarant is available

Judgement of a conviction:
judgement based on what are not admissible

A

nolo contondre

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8
Q

803: Except to Hearsay regardless if declarant is available

Judgement of a conviction: what is a nolo concondre plea (not admissible)

A

purpose is to permit the defendant to accept punishmnet for charged crime without dealing with adverse collatoral consequences at a later time

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9
Q

803: Except to Hearsay regardless if declarant is available

Judgement of a conviction:
Does not allow the goverment to offer evidence of the conviction of who?

A

A person other then the defendat, UNLESS offered to impeach the persons creditability

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10
Q

Hearsay and the constitution

The confrontation clause comes into play if:

A

A hearsay exception makes a statement admissible against a defendant in a criminal trial and the declarant is unavailable

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11
Q

Hearsay and the constitution

If the hearsay statement is “testimonial”

A

it is inadmissible unless the defendant had a prior oppertunity to cross examine the declarant

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12
Q

Hearsay and the constitution

what it means for a statement to be testimonial

A

the statement is made during a preliminary hearing, grad jury hearing, formal trial, police investigation (somethimes)

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13
Q

Hearsay and the constitution (confrentation clause)

If the statement is testimonial then, EITHER:

A

the declarant must testify at trial
OR
the declarant must be unavailable
AND
the defendant must had an earlier oppertunity to cross examine the declarant

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14
Q

Hearsay and the constitution

Police interrogations and investigations are nontestimonial when

A

circumstances objectively indicate the primary purpose of the interrogation was to enable police assistance to meet an ongoing emergency

Trying to fix it, see what happend, not who did it

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15
Q

Hearsay and the constitution

Police interrogations and investigations are testimonial when

A

circumstances objectively indicate there is no ongoing emergency and the primary purpose of the interogation was to establish or* prove past events potentially relevent to later criminal prosecution *

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16
Q

Hearsay and the constitution

Police interrogations and investigations: look at and understand (davis)

A
  • look at formality
  • can transition from one to the other
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17
Q

Hearsay and the constitution

To be testimonial, the statement must have been made to someone…

A

with the role of the investigation
(focus on the objective of the interrogation)

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18
Q

Hearsay and the constitution

Dying declarations are

A

exempted from confrentation clause and forfiture clause

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19
Q

Rule 607 who may impeach a witness

A

Any party including the party that called the witness may attack the witnesses creditability

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20
Q

Hearsay and the constitution

If in a crim case, even if the evidence is kept out under hearsay rule, if sufficient inita of trustworthiness…

A

have to let in OR ELSE affects the right to jury trial

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21
Q

Former testimony

Testimony from yesterday in same trial=

A

current trial and not hearsay

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22
Q

Former testimony

Depositions

A

are always hearsay even if they are for the current trial

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23
Q

Former testimony

Testimony given at…

A

earlier testmony trial or hearing

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24
Q

Former testimony

Conditions for operation in a criminal case

A

if offering against you then need to be a party today

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25
Q

Former testimony

Conditions for operation in a civil case

A

did you have ability to be cross examined before?
predecessors in interest

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26
Q

Former testimony

Conditions for operation

A
  • testimony given at earlier testimony trial or hearing
  • criminal case: if offering against you then need to be party today
  • civil case: did you have ability to be cross examined before, predecessors in interest
  • motive
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27
Q

Statement under the belief of imminent death

Cases it applies to

A

homicide
civil case

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28
Q

Statement under the belief of imminent death

Homicide

A

someone is dead and need to get in

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29
Q

Statement under the belief of imminent death

civil case

A

dont need death

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30
Q

Statement under the belief of imminent death

imminent

A

death is here and at the door

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31
Q

Statement under the belief of imminent death

statement has to be about

A

the casue of death or cirumstances of death

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32
Q

Character and other act evidence

When we speak of a persons character, we mean a persons

A

deposition or tendancy to act in a certain way

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33
Q

Character and other act evidence

It is evidence concerning a persons…

A

propensity to act in a certain manner that makes a general statement about that person and conveys a moral or ethical judgement

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34
Q

examples of specific acts that are used to show a persons characher

A

previous violent behavior, reckless actions, lies

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35
Q

Character and other act evidence

Evidence of character may also come from a witness who:

A
  • based on personal observation of someones behavior
  • has formed an opinion about that persons reputation
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36
Q

Character and other act evidence

Evidence may take form of testimony about a persons good reputation such as

A

being a peaceful, careful, or truthful person

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37
Q

Character and other act evidence

different rules apply depending on the type of case in which

A
  1. the case is offered
  2. the kind of evidence offered
  3. the purpose for which it is offered
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38
Q

Character and other act evidence

While the rules generally, prohibit the use of evidence of specific acts to show that a person has a particular character and thereby is more likely to have acted in conformity with that character on a particular occasion… evidence of a persons

A

habit or an organization routine practice may be introduced to show action in conforminty

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39
Q

Character and other act evidence

evidence of a persons beliefs (socialist or athiest) OR innate abilitys (left handed or fast runner) is

A

not prescribed by the general propensity evidence

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40
Q

Character and other act evidence

When considering the admissiblity evidence under these rules,
Ask whether it is admissible for

A
  1. this specific purpose
  2. under these circumstances
  3. in this type of case
  4. in the form in which it is offered
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41
Q

Charater evidence- the general prohibition

A

404 announces a broad prohibition on the use of evidence of a persons charater to prove that on a particular occasion the person acted in conformity with that charater (propensity evidence)

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42
Q

Character and other act evidence

Propensity evidence

A

the use of evidence of a persons charater to prove that on a particular occasion the person acted in conformity with that charater

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43
Q

Character and other act evidence

Evidence of specific acts are not barred by 404 when acts are

A

relevent to prove something besides a persons character

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44
Q

404: Charater evidence, crimes, wrongs, or other acts

Charater evidence:
Evidence of a persons charater or character trait is not admissible to prove

A

that on a particular occasion the person acted in accordance with the character or trait

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45
Q

404: Charater evidence, crimes, wrongs, or other acts

Crimes, wrongs, or other acts
evidence of a crime or other act is not admissible to prove

A

a persons character in order to show that on a particular occasion the person acted in accordance with the character

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46
Q

404: Charater evidence, crimes, wrongs, or other acts

Rule generally prohibits the admission of evidence of the prior murder for 3 reasons:

A
  1. our system hold to a deeply held principle that people must be tried not for the kind of persons they were or are, but for what they have done on a charged occasion
  2. characters evidence has a low probative value
  3. character evidence carries a substanial risk of unfair prejudice
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47
Q

404: Charater evidence, crimes, wrongs, or other acts

bar applies to evidence regarding the charater of any person

A

not just the parties in the litigation, whether good or bad character, or in criminal or civil cases

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48
Q

404: Charater evidence, crimes, wrongs, or other acts

does not apply to

A

organizations, institutons, corporations, animals, or things
Only people!

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49
Q

404: Charater evidence, crimes, wrongs, or other acts

Allows evidence of character in several situations

A
  1. to prove character when character itself is an essential element of a charge, claim or defense (when character is at issue)
  2. when criminal defendant chooses to introduce pertinent character evidence regarding wither himself or the alledged victims
  3. in sexual assualt and child molestation cases and
  4. to prove the character for truthfulness of a witness
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50
Q

404: Charater evidence, crimes, wrongs, or other acts

Character evidence allowed when character is “in issue”

A

when the law requires a party to prove character in order to establish an element of a charge, claim, or defense

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51
Q

404: Charater evidence, crimes, wrongs, or other acts

Evidence of a Criminal Defendants or alledged vicitims character

A

The rule generally prohibits the prosecution in a criminal trial from offering character evidence of the defendant, but the rules allow criminal defendants to open the door to some character evidence

52
Q

404: Charater evidence, crimes, wrongs, or other acts

The criminal defendant may open the door to some character evidence in 3 ways

A
  1. may offer evidence of a pertinent character trait of his own
  2. may offer evidence of a pertinent character traint of alledged victim
  3. may make evidence of the victims peaceful character by offering, in a homicide case, evidence that the victim was the first aggressor
53
Q

404: Charater evidence, crimes, wrongs, or other acts

A defendant may offer evidence of the defendants pertient trait, and if that evidence is admitted

A

the prosecuter may offer evidence to rebut it

54
Q

404: Charater evidence, crimes, wrongs, or other acts

a defendant may offer evidence of an alledged crime victims pertinent trait, if admitted

A

the proceuter may,
1. offer evidence to rebut it; and
2. offer evidence of the defendants same trait, and
3. in a homicide case, may offer evidence of the victims trait of peacefulness to rebut evidence that the victime was the first aggressor

55
Q

413 and 414 allows the prosecution to use the character evidence and offer evidence of a criminal defendants other sexual assaults of cm for what purpose

A

any relevent purpose including arguing that the defendant has a propensity to commit the same crime and therefore is likely to have commited this charaged crime

56
Q

SA and CM

412 (SA) restricts the admissibility of character evidence regarding

A

a victim of sexual assault

57
Q

Similar crimes in SA and CM

Disclosure

A

if the prosecutor intends to offer this evidence the pros. must disclose it to the defendant
- including witness’s statements or a summary of expected testimony
- must do so at least 15 days before trial or at a later time that the court allows for good cause

58
Q

Similar CM

a child age

A

under 14

59
Q

Similar SA or CM act

criminal conviction of the similiar act

A

need not have resulted in a criminal conviction to be admissible

60
Q

Evidence of SA or CM can be

A
  • from a witness with personal knowledge
    or
  • authenticated documents
61
Q

Similar SA or CM act

Acts that occured after the charged act

A

may be admitted

62
Q

Similar SA or CM act

Common facts that the court uses to weigh the probative value against 403 dangers include:

A
  1. The simiarity of the other act to the charged offense (similarity raises probative value)
  2. the amount of time between the other act and the charged offense, and any interviening conduct of similar nature
  3. the level of certainty that the other act occured
  4. whether the unfair prejudice may be minimized
63
Q

Similar SA or CM act

Character evidence of an alledged victim of SA
known as “rape shield’ statutes

A

prevents the admission of most evidence of the alledged victims other sexual behavior or predisposition to engage in sexual behavior

64
Q

Similar SA or CM act

In criminal cases, the court may admit the following evidence of the victims sexual behavior

A
  1. Evidence of specific instances of a victims sexual behavior if offered to prove that someone other then the defendat was the source of semen, injury, or other physical evidence
  2. evidence of specific instances of a victims sexual behavior toward the defendant if offered by the prosecutor or if offered by the defendant to prove consent, and
  3. evidence whose exclusion would violate the defendants constitutional rights
65
Q

Similar SA or CM act

In a civil case, the court may admit evidence offered to prove a victims sexual behavior or sexual predisposition if

A

its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party

66
Q

Similar SA or CM act

In a civil case, the court may admit evidence of a victims reputation only if

A

the victim placed it in controversy

67
Q

Similar SA or CM act

“sexual behavior”

A

an activities that involve actual physical conduct and that imply sexual intercourse or sexual conduct

68
Q

Similar SA or CM act

Evidence of a victims sexual predisposition is inadmissible

A

evidence that may have a sexual connotation for the factfinder
ex. the victims dress, speech, or lifestyle

69
Q

405 methods of proving character

A
  1. reputation or opinion
  2. specific instances of conduct
70
Q

405 methods of proving character

offer to prove

A

motive
opportunity
intent
knowledge
lack of accident
others, list not exhausitve

71
Q

405 methods of proving character

Doctrine of chances

A

acts that make you go “what are the chances”

72
Q

405 methods of proving character

complete the story argument

A

gve context of the case

73
Q

405 methods of proving character

Procedure for determining admissiblity

A
  1. proper purpose
  2. relevent to purpose
  3. relevent to the point,, probative v. danger
  4. issue limiting instruction
74
Q

405 methods of proving character

Habit evidence, routine practice

A

specific routine, respomse to stimuli or situation

75
Q

SA

adds what to the balencing test when deciding what character evidence to use

A

harm to the victim

76
Q

405 methods of proving character

Reputation or opinion may be proved by

A
  • testimony about the persons reputation
  • or by testimony in form of an opinion
  • on cross examination of the character witness, the court may allow an inquiry into relevent specific instances of the persons conduct
77
Q

405 methods of proving character

When a persons character or character trait is an essential element of a charge, claim, or defense, the character or trait may also be proved by

A

relevent specific instances of the persons conduct

78
Q

405 methods of proving character

Opinion testimony consists of the testimony of someone who

A

knows the persons character well enough to assert an opinion about them

79
Q

405 methods of proving character

With repuatation and opinion testimony, the witness may not on direct examination explain the basis for their testimony by referring to

A

specific instances of the persons conduct

80
Q

405 methods of proving character

To minimize the harm that cross examination questions of specific instances of bad conduct brings, the rules and courts have imposed a series of safegards

A
  1. The questioner must have a good faith basis that the conduct actually occured
  2. If a witness denies knowledge of the conduct (a party may not prove the specific act with additional (extrinsic) evidence
81
Q

405 methods of proving character

evidence of crimes or other acts is relevent when

A

for some other reason then to show that on a particular occasion the person acted in accordance with the character

82
Q

405 methods of proving character

Can offer evidence of crimes or other acts to show the defendant had *oppertunity or ability *to commit the crime

A

show that they could have done it

83
Q

405 methods of proving character

Can offer evidence of crimes or other acts to show a plan or preparing for the crime

A

evidence that defendant was specifically planning or preparing for the crime

84
Q

405 methods of proving character

Can offer evidence of crimes or other acts to show the defendant had knowledge to commit the crime

A

evidence that makes it more likelt the defendant knew how to commit the crime

85
Q

405 methods of proving character

When other act evidence is offered ro show knowledge, cts typically req

A

that the act in question requires some kind of specialized knowledge

86
Q

405 methods of proving character

lack of accident aka theory of chances

A

the reaction “that cannot be a coincidence! what are the odds”

87
Q

405 methods of proving character

The proponent of rule 404 other act evidence must be prepared to meet a relevent objection by

A

demonstrating that evidence is relevent on a non-character theory to an ultimate fact in the case
to convince a judge and a reasonable jury that the other act could have occured

88
Q

405 methods of proving character

submitting other act evidence under the Theory of Modus operandi

A

the charged act and the other act must be distinct and virtually identical for the evidence to be admissible

89
Q

405 methods of proving character

4 step inquiry the court must engage in when determining the admissibility of other act evidence

A
  1. The evidence must be offered for a proper purpose
  2. the evidence must be relevent to prove the rule 404 fact in question (easy to satisfy, need not be in dispute)
  3. the probative value of the evidence must not be substantially outweighed by the danger of unfair prejudice or other dangers under 403
  4. Persuant to rule 105, the ct must issue a limiting instruction if a party requests it to do so, and may issue limiting instructions on their own
90
Q

Rule 406 Habit, Routine Practice

Evidence of a

A

persons habit or an organizations routine practice

91
Q

Rule 406 Habit, Routine Practice

ct may admit evidence of regardless of whether

A

it is corroborated ot ehther there was an eyewitness

92
Q

Rule 406 Habit, Routine Practice

To determine if a pattern of behavior is a habit, courts look to

A
  1. the specificity of the behavior
  2. the regualarity of the behavior
  3. the situation that triggers the ehavior
93
Q

Evidence of similar events

evidence can be offered to show that

A

a particular event occured is evidence that similar events have occured under similar circumstances

94
Q

Rule 407 Subsequent remedial measures

A

When measures are taken that would have made an earlier injury or harm less likely to occur

95
Q

407 subsequent remedial measures

evidence of the subsequent measures is not admissible to prove

A
  • negligence
  • culpable conduct
  • a defect in a product or its design
  • a need for a warning or instruction
96
Q

407 subsequent remedial measures

may be admitted for

A

another purpose then the ones not admissible for,
such as impeachment, proving ownership, control, or the feasibility of precautionary measures

97
Q

407 subsequent remedial measures

feasibility

A

is it feasible to make a product safer

98
Q

408 compromise offers and negotiations
used to promote

A

settlement, need a disputed claim

99
Q

409: offer to pay medical and similar expenses

A

paying medical bills are not admissible to prove liability

100
Q

410: pleas, plea discussions, and related documents
if it is a plea that sticks, then

A

not covered

101
Q

411 liability insurance:

A

just because you get insurance does not mean that you believe you are a reckless person ot that the person acted negligently
But may admit for another purpose

102
Q

411 liability insurance

use to prove ownership

A

if someone denies they own a car/building insurance can prove to show ownership

103
Q

411 liability insurance

used to show witness bias

A

ex. a defendant insurance adjuster may lowball the amount of damages
or
juror may work for the insurance company

104
Q

411 liability insurance
type of insurance

A

not malpractice
can be auto insurance

105
Q

common objections: ambiguous

A

keeps the question open

106
Q

common objections: argumentive

A

your not the smartest are you

107
Q

common objections: compound

A

2 q’s for 1 answer

108
Q

common objections: assumes fact not in evidence

A

brings up fact not shown in evidence yet

109
Q

common objections: cumulative

A

same question in different ways

110
Q

common objections: asked and answered

A

already asked

111
Q

common objections: calls for narrative

A

ask them to tell you a story

112
Q

common objections: leading

A

asking a question leading to answer

113
Q

407 subsequent remedial measures

applies only when evidence is offered to prove

A

negligence or culpable conduct

114
Q

407 subsequent remedial measures

subsequent remedial measures

A

measures that if taken before the accident, would have made the accident less likely to occur.

115
Q

407 subsequent remedial measures

timing

A

remedial measures must have been taken after the event that gave rise to the action

116
Q

407 subsequent remedial measures

is admissible to prove feasibility of precautionary measures

A
  1. the possibility to take precautionary meausres
    or
  2. that the cost and benefit make the taking precautionary measures as not feasible
117
Q

407 subsequent remedial measures

how used to impeach

A

by contradicting them, show they are wrong about a fact to which they testified

118
Q

compromise and payment of medical or similar expenses

evidence not admissible to

A
  1. prove or disprove the validity or amount of a disputed claim
  2. to impeach a prior inconsistant statement or contradict.
119
Q

compromise and payment of medical or similar expenses

evidence that is not admissible

A
  1. furnishing, promising or offering,, accepting, ect a valuable consideration in compromising or attemption to compromise the claim, and
  2. conduct or a statemetn made during compromise negotiaton about claim ( except in a crim case and when negotiations related to a claim by a public office in the exercise of its regulatory, investigative, or enforcement authority.)
120
Q

compromise and payment of medical or similar expenses

the ct may admit the evidence for anther purpose such as

A

proving witness bias or prejudice or negating a contention of undue delay

121
Q

409 offers to pay medical and similar expenses

A

evidence of furnishing, promising to pay, or offering to pay medical, hospital, or similar expenses resulting from an injury is not admissible to prove liability for the injury

122
Q

409 offers to pay medical and similar expenses

applies only when

A

evidence is offered to prove or disprove the validity or amount of a disputed claim

123
Q

409: offer to pay medical and similar expenses

statements of a negotiation

A

are excluded

124
Q

409: offer to pay medical and similar expenses

statements made in connection with an offer to pay medical expenses

A

are not excluded

125
Q

410: pleas, plea discussions, and related documents

in a civil or crim case, evidence of the following is not admissible agaisnt the defendant, who made the plea or participated in plea discussions

A
  1. a guilty plea that was later withdrawn,
  2. a nolo contendre plea
  3. a statement made during a proceeding on those pleas under crim pro rule 11 or state procedures
  4. a statement made during plea discussions with an attourney for the proseuting authority; if the discussions did not result in a guilty plea or they resulted in a later withdrawn guilty plea
126
Q
A

Evidence (8 decks)

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