Rules - Themis Flashcards
When are subsequent remedial measures inadmissible?
When measures are taken that would have made an earlier injury or harm less likely to occur (e.g., repairing an area where a customer slipped), evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defective product or design, or the need for a warning or instruction.
Note: Evidence of subsequent remedial measures may be admissible for other purposes, such as impeachment or—if disputed—ownership or control of the cause of the harm (e.g., a car) or the feasibility of precautionary measures.
What is the “rape shield” rule?
Evidence offered to prove the victim’s sexual behavior/predisposition is generally inadmissible in any proceeding involving sexual misconduct.
What are the four exceptions to attorney-client privilege?
Communications that are:
(i) Made to enable or aid the commission of what the client knew or should have known was a crime or fraud;
(ii) Relevant to a dispute between attorney and client (e.g., a malpractice allegation);
(iii) Relevant to a dispute between parties who claim through the same deceased client; and
(iv) Between former co-clients who are now adverse to each other.
At what time can a court take judicial notice?
Judicial notice can be taken at any time during a proceeding, including on appeal, whether upon request of a party or by the court’s own initiative.
Note: The court may not take judicial notice against a criminal defendant for the first time on appeal.
What are the three requirements to admit a record under the records of regularly conducted activity exception?
(i) The record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling;
(ii) The making of the record was a regular practice of that activity; and
(iii) The record was made at or near the time by someone with knowledge.
When is a juror permitted to be called as a witness in a trial in which she is presently a juror?
A juror may not testify as a witness at trial in front of the members of the jury.
Note: The fact-finder is charged with assessing a witness’s credibility. A juror cannot assess their own credibility as a fact or a character witness. However, a juror may be called before the court (outside the presence of the other jurors) to testify as to anything that might have occured with the trial process itself such as bribes, threats, or failure to follow the court’s instructions.
What is the difference between direct and circumstantial evidence?
Direct evidence is identical to the factual proposition that it is offered to prove. An example is witness testimony as to what the witness personally heard, saw, or experienced. Circumstantial evidence tends to indirectly prove a factual proposition through an inference from collateral facts.
Example: A witness seeing the defendant shoot the victim (direct evidence the defendant shot the victim), versus seeing the defendant holding a gun while exiting an alley where a person is laying on the ground bleeding from a gunshot wound (circumstantial evidence the defendant shot the victim).
What standard of proof applies to the authentication of tangible evidence?
The proponent of the evidence must produce sufficient evidence to support a finding that the thing is what its proponent claims it is.
Note: This is a lesser standard than a preponderance of the evidence.
How may a party to a telephone conversation authenticate statements made during that conversation as having been made by a particular individual?
By testifying that:
(i) The caller recognized the speaker’s voice;
(ii) The speaker knew facts that only a particular person would know;
(iii) The caller dialed a number believed to be the speaker’s, and the speaker identified himself upon answering; or
(iv) The caller dialed a business and spoke to the person who answered about business regularly conducted over the phone.
Note: Remember that a voice can be identified by any person who has heard the voice at any time, including one made familiar solely for the purposes of litigation.
When does a statement by an unavailable declarant qualify as a statement against interest?
If the statement:
(i) Was against the declarant’s interest at the time it was made; and
(ii) Would not have been made by a reasonable person unless he believed it to be true.
For what two purposes are compromise offers and negotiations inadmissible as a public policy exclusion?
Compromise offers and any conduct or statements made during compromise negotiation are inadmissible by either party:
(i) To prove or disprove the validity or amount of a disputed claim; or
(ii) For impeachment by a prior inconsistent statement or contradiction.
What are the present sense impression and excited utterance hearsay exceptions?
Present Sense Impression: A statement describing or explaining an event or condition that is made while or immediately after the declarant perceived it
Excited Utterance: A statement made about a startling event or condition while the declarant is under the stress of excitement that it caused
A present sense impression must be a description of the event, whereas an excited utterance need only relate to the exciting event.
When may work product be subject to discovery?
Work product is not subject to discovery unless the party seeking disclosure:
(i) Demonstrates a substantial need for the information; and
(ii) Cannot obtain the information by any other means without undue hardship.
Note: The mental impressions, conclusions, and trial tactics of an attorney are always protected from discovery.
What is the rule of completeness?
When a party introduces part of a writing or recorded statement, an adverse party may compel the introduction of an omitted portion of the writing or statement if, in fairness, it should be considered at the same time.
What are the two methods by which handwriting can be authenticated?
- An expert witness or the trier of fact may compare the writing in question with another writing that has been proven to be genuine; or
- A lay witness with personal knowledge of the claimed author’s handwriting may authenticate the handwriting, as long as the witness did not become familiar with the handwriting for the purposes of the current litigation.
What is the bursting bubble approach to burden shifting?
A rebuttable presumption no longer has a preclusive effect after the opposing party introduces sufficient evidence to sustain a contrary finding. If contrary evidence is introduced, the burden of persuasion remains on the party who had it originally.
List three examples of preliminary questions of admissibility that a judge, rather than a jury, would determine?
(i) competency of evidence, including the admissibility of evidence; (ii) whether a privilege exists; (iii) whether a person is qualified to be a witness.
Note: Judges also determine whether an exception would apply to allow hearsay into the record.
What is limited admissibility?
Limited admissibility means that evidence may be admissible for one purpose but not for another, or against one party but not against another. In these cases, if a party makes a timely request, the court must restrict the evidence to its proper scope and instruct the jury accordingly.
A common example is when a criminal defendant is testifying. The defendant has now put credibility in issue, and impeachment with a prior conviction might be admissible. The defendant’s attorney would make a request to have the court instruct the jury that the conviction should only be used for the limited purpose of assessing credibility, rather than determining guilt or innocence.
When is a judge permitted to be called as a witness in a trial over which she is presiding?
A judge is absolutely barred from testifying as a witness in the trial in which she is presiding.
Note: Allowing the judge to testify would corrupt the fact-finding process. The fact-finder is charged with assessing a witness’s credibility. If the judge is the fact-finder, assessing her own credibility is impossible. If a jury is the fact finder, the judge’s testimony (and other judicial rulings in the trial) may be given too much or too little weight.
What is the definition of hearsay?
An out of court statement offered for the truth of the matter asserted
When must a preliminary hearing on admissibility be conducted outside the presence of the jury?
When the hearing involves the admissibility of a confession, when the defendant in a criminal trial is a witness and so requests it, or when justice requires it.
Note: While many preliminary questions of admissibility are determined in front of the jury, it is the judge who makes the determination, and it is the jury, then, that assigns weight to the evidence.
What are the four requirements to admit a record under the recorded recollection hearsay exception?
(i) The record is on a matter that the witness once knew about;
(ii) The witness made/adopted the record when the matter was fresh in the witness’s memory;
(iii) The record accurately reflects the witness’s knowledge; and
(iv) The witness states that she cannot recall the event well enough to testify fully and accurately, even after consulting the record on the stand.
What four categories of witnesses may not be excluded from the courtroom to prevent them from hearing the testimony of other witnesses?
(i) A party who is a natural person;
(ii) An officer or employee of a party that is not a natural person, after the individual has been designated as the party’s representative by its attorney;
(iii) A person whose presence is essential to a party’s presentation of its case (e.g., the investigating police officer); and
(iv) A person whose presence is permitted by statute (e.g., victims).
When may a witness be impeached by evidence of a juvenile adjudication?
Evidence of a juvenile adjudication is NOT admissible against a defendant. Another witness may be impeached by evidence of a juvenile adjudication, but ONLY IF:
(i) it is offered in a criminal case,
(ii) an adult’s conviction for that offense would be admissible to attack the adult’s credibility; and
(iii) admitting the evidence is necessary to fairly determine guilt or innocence.
Note: Remember, regardless of how probative a juvenile adjudication might be, if it is being used against a criminal defendant, it is inadmissible.
