MBE Evidence - Impeachment/Privileges/Misc. Flashcards
Standard of Proof for Admission of D’s Crimes/Bad Acts:
(1) must show prior misconduct by sufficient evidence to support a jury finding that D committed prior act; (MD - clear and convincing evidence)
(2) probative value for exception not substantially outweighed by danger of unfair prejudice
Prior Sexual Assault/Child Molestation
- Admissible in civil or criminal case where D is accused of sex assault/child molestation.
- Must disclose this evidence 15 days before trial.
- MD: D’s prior sex crimes only if they are independently relevant (MIMIC) OR it is the same victim.
Judicial Notice of Fact
- recognition of a fact as true without formal presentation of evidence; must not be subject to reasonable dispute. (1) Notorious Facts - common knowledge; (2) Manifest Facts (dates); (3) Scientific Principles
- conclusive in civil cases, but not criminal case (shown through jury instructions)
- MD: judicial notice is conclusive in criminal trials, unless fact is adverse to the accused
Real Evidence
- Addressed directly to trier of fact for inspection (visual or otherwise)
- Must be authenticated
Authentication of Real Evidence
object must be proved to be what proponent claims it is
(1) Recognition Testimony: if significant features identifiable upon inspection. May be used to establish similarity to actual object
(2) Chain of Custody: if evidence can be easily tampered with or is not easily recognized. Must be substantially unbroken chain. Proponent must show some adherence to system of ID and custody
(3) Condition: if condition is significant it must be in substantially the same condition at trial
- Potentially limiting policies: (1) physical inconvenience (2) indecency (3) undue prejudice
Authentication of Documentary Evidence
-Standard of Proof: sufficient to support a jury finding of genuineness
Methods of Authentication: (1) Personal Knowledge of witness; (2) Proof of Handwriting; (3) Ancient Document Rule; 4) Solicited Reply Doctrine; (5) Any other circumstantial evidence
- Also may be self authenticating.
Authentication by Proof of Handwriting
- Lay Person: based on familiarity as result of experience in normal course of affairs
- Comparison of Writings: Expert or Jury Comparison
- MD: authenticating comparison may only be by expert witness of the judge
Authentication - Ancient Document Rule
authenticity inferred if doc is
(a) at least 20 yrs old
(b) facially free of suspicion AND
(c) found in a place of natural custody
Authentication - Solicited Reply Doctrine
authenticated by evidence that it was written in response to a communication sent to the claimed author.
Self Authenticating Documents
(shift burden of proof)
(1) Official publications; (2) Certified copies of private or public records on file in public office; (3) Newspapers of periodicals; (4) Trade inscriptions and labels; (5) Acknowledged documents (notarized); (6) Commercial Paper; (7) MD - report by chemist or other analyst who tests blood for drugs
Authenticating Photographs
Witness may testify that it is fair and accurate representation. photographer need not authenticate
Authenticating X-Rays
must show (1) process is accurate, (2) machine was in working order and (3) operator was qualified.
Voice Authentication
by anyone who has heard the voice at any time (person may become familiar after litigation has begun).
Authentication of Telephone Conversations
one of parties may authenticate who testifies that…
(1) he recognizes other party’s voice;
(2) the speaker has knowledge of certain facts only that person would have;
(3) the phone answerer stated his name as intro; OR
(4) he called business and talked to someone about business related matters.
Authentication of Medical Records (MD)
- health care provider under subpoena can produce patient’s medical records.
- The custodian of the records can certify that they are complete and the certification is prima facie evidence of authenticity
Best Evidence Rule
-The original document must be produced where terms are material.
-Application: (1) Where writing is a legally operative instrument; (2) Where knowledge of a witness concerning a fact results from having read it in the document.
Inapplicable where: (1) facts to be proved exist independently of document; (2) writing is collateral; (3) it is summary of voluminous records; OR (4) it is public record and copy is certified
Best Evidence Originals and Duplicates
-“Original”: writing or recording itself or any copy intended by the person executing it to have same effect as original.
“Duplicate”: an exact copy of the original. Admissible the same as originals unless (1) challenged (2) where it would be unfair.
Secondary Evidence Admissible Under Best Evidence Rule
- where original cannot be procured and there is valid excuse such as: (1) Loss or destruction of original (without bad faith); (2) Original outside jurisdiction and unobtainable; (3) Original in possession of adversary who, after notice, fails to produce.
- Jury decides questions related to authenticity of particular documents
Competency of Witnesses
- must have personal knowledge and appreciate oath or affirmation
- MD - person previously convicted of perjury is DQed from testifying, unless criminal D.
- There is a presumption of competency of witnesses (even insane ones)
Dead Man’s Acts
- In CIVIL action, interested witness is incompetent to testify in support of her own interest against estate of decedent concerning communications between interested witness and decedent.
- Estate representatives may waive protection of statute by: (1) calling interested person to testify about transaction; (2) where testimony of deceased given at former trial or deposition is read into evidence; (3) where there is failure to make timely and proper objection; (4) testifying about the transaction or communication with interested party
- MD: Only applies to interested PARTIES.
Leading Questions
generally objectionable
- Exceptions: (1) on cross examination
(2) on direct examination for: (a) preliminary and introductory matters (b) youthful or forgetful witnesses; (c) hostile witnesses; (d) witnesses who are adverse or identified with adverse party
Writings in Aid of Oral Testimony
- Refreshing Recollection: W may not read from prepared memo; must testify on basis of current recollection
- -BUT, if W’s memory fails he may be anything to jog memory. (Cannot read unless authenticated & in evidence under hearsay exception)
- Adversary then has right to introduce it into evidence.
Past Recollection Recorded (Hearsay Exception)
- foundation required for reading past recollection into evidence:
(1) showing writing to witness fails to jog memory
(2) witness had personal knowledge at former time
(3) writing was made or adopted by witness
(4) when event was fresh in memory
(5) witness can vouch for accuracy of writing when made or adopted.
Lay Witness Opinion Testimony
Generally inadmissible, UNLESS (1) based on perception of witness, (2) helpful to clear understanding of testimony, and (3) not based on scientific or technical knowledge.
- -Allowable Situations: general appearance of person, state of emotion, matters involving sense recognition, voice or handwriting ID, speed, value of own services, sanity, intoxication.
- -Not Allowed: to give opinion about agency/authorization, whether there was contract or agreement when express contract exists.
Experts
- May be qualified by education or experience.
- Proper Subject Matter: scientific, technical, or other specialized knowledge that is helpful to jury.
- Must be based on reasonable certainty.
- Opinion may embrace ultimate issue, unless it is criminal D’s mens rea.
Bases for Expert Opinion
(1) personal observation
(2) evidence in trial record: in form of hypothetical question
(3) facts not in evidence that are of type reasonably relied upon by experts in the field
must not disclose facts if not admissible into evidence.
Reliability of Expert’s Subject Matter
4 Factors determine reliability -
(1) testing of principle or methodology
(2) rate of error
(3) acceptance in the field - not general acceptance (MD - only factor is general acceptance for scientific testimony. Other types - adequate methodology)
(4) peer review and publication
Authoritative Texts
- established as reliable by direct testimony of any expert, judicial notice.
- Expert may be crossed on info in any authoritative text.
- May be read into evidence by an expert or to impeach expert
Cross Examination
Party has a RIGHT to cross examine any W who testifies at trial
Scope: (1) must have been within scope of direct examination, OR (2) matters that test witnesses credibility
Bolstering Own Witness’ Credibility
- not allowed until credibility has been attacked
- Exception: W’s prior ID of D may be brought in under hearsay exclusion
Methods of Impeachment
(1) Cross Examination: eliciting facts that discredit W’s own testimony
(2) Extrinsic Evidence: put other witnesses on stand to introduce facts discrediting testimony
* impeachment of hearsay witness who does not appear at trial is allowed.
Types of Impeachment Evidence
B BA RT PIS SD C CF
(1) Prior Inconsistent Statements
(2) Bias or Interest
(3) Conviction of Crime
(4) Bad Acts
(5) Opinion or Reputation for Truthfulness
(6) Sensory Deficiencies
(7) Contradictory Facts
Prior Inconsistent Statements
- Used to impeach. May be proved by extrinsic evidence
- statement must be relevant to issue in case (not collateral)
- Confrontation: W must be given opportunity to explain or deny statement
- MD - confrontation on stand is required before conclusion of W’s examination.
- May only be used to impeach unless under oath (then substantively allowable)
Bias or Interest
shows motive to lie; may be proved by extrinsic evidence
- MS - must be asked about facts that show bias or interest on cross examination
- MD - does not require bias to be brought up while on stand
Conviction of Crime
- Used to impeach. may elicit an admission on cross or by record of conviction
- Requires actual conviction (not arrest or indictment)
(1) Of any crime where false statement is element: trial court may not disallow
(2) Of felony, where probative value outweighs unfair prejudice - Must be within past 10 years, unless court determines probative value substantially outweighs prejudicial effect.
- Juvenile convictions - not admissible
- Pending appeal - does not affect admissibility
- MD: impeachment crime must be (1) infamous crime (2) crime relevant to W credibility
- -Balancing of prejudice applies to ALL convictions
- -Must be within 15 years.
- -Cannot use if appeal is pending
Bad Acts
- Impeachment by showing any immoral, or criminal act that may affect W’s character (deceit or lying)
- Must be in cross-examination and made with good faith
- No extrinsic evidence allowed, therefore if W denies, it is over.
Opinion or Reputation for Truthfulness
Must be brought by extrinsic evidence (e.g. character witnesses)
Sensory Deficiencies
Impeachment by showing W had no knowledge or faculties were so impaired that he cannot have properly perceived.
- May use extrinsic evidence (not true in MD - must bring up on cross)
- Capacity: Perceptive disabilities, lack of memory, mental disorders
- Lack of Knowledge against expert Ws or reputation/opinion Ws
Contradictory Facts
- Used to impeach. Cross examiner may try to gain admission of W that she made mistake or lied about a fact testified to during direct examination.
- Extrinsic evidence not allowed if issue is collateral
Rehabilitation of Witness’ Credibility
- May be done by redirect or extrinsic evidence after impeachment
(1) Show witness’ good character for truthfulness by bringing other witnesses or explanation on redirect
(2) Show prior consistent statement to rebut charge of recent fabrication. Statement must have been made before motive to fabricate arose. Admissible substantively because it is a hearsay exclusion.
Objections
- Failure to object is generally deemed a waiver of any ground to object
- General objections - sustained on appeal if valid for any reason
- Specific objections - sustained on appeal if for correct reason
- Where one part of transaction is introduced the entire transaction may come in over objections.
Privileges (Jurisdiction in Federal Court)
- Federal Question: look to federal common law for privileges
- Diversity Jurisdiction: privilege law of state applies
Attorney-Client Privilege
applies to…
(1) confidential communications (client intent governs)
(2) between attorney and client
(3) made during professional, legal consultation
(4) unless privilege is waived by the client
(5) or an exception is applicable
Waiver of Attorney Client Privilege
May only be waived by client.
- voluntarily, which applies to all evidence of same subject matter where fairness requires
- but not inadvertently if client took reasonable steps to prevent disclosure and correct the error
Physician-Patient Privilege
-usually statutory
-Under federal CL and MD only applies for psychotherapy
-Exception: patient puts condition at issue in case.
MD: 4 exceptions: (1) patient puts condition at issue (2) malpractice action for psychotherapist (3) state proceeding to commit patient to mental health facility (4) case of child abuse or neglect
Husband-Wife Privileges
(1) Spousal Immunity: spouse cannot be compelled to testify against spouse during marriage
(2) Confidential Communication: spouse cannot disclose confidential communications made during marriage without consent by other spouse
