Types of evidence Flashcards
2 main sources of evidence
- witness: A person who provides evidence in the form of in court testimony or our of court statement
2: real evidence: A writing or other tangible item
Judicial Notice allows the courts to…
assume the evidence of facts when those facts are well known and indisposable
Rule 601: Competency to testify in general
Who is competent to be a witness?
EVERYONE, unless a rule provides otherwise
3 requirements for a witness
☆
- Competency
- Personal Knowledge
- Oath of affirmative
Just because someone is qualified to testify does not mean that
what they say is believable
When state law determines the requirements of a witness
- always in civil court
- sometimes in federal court
“Dead Man Act”
makes incompetent, a party proposing to testify about a conversation or other transaction with a person now deceased when that testimony is offered against the estate of the deceased
Rule 601 requires the application of state competency law when 3 conditions are satisfied:
☆
1: The issue arises in a civil action or proceeding;
2. It concerns an element of a claim or defense;
AND
3. The claim or defense is one as to which state law supplies the applicable substantive rule
In a civil action brought in federal court’s diversity jurisdiction, what competency law is used?
The competency law of the state in which that federal court is is applicable
Rule 605: Judges Competency as a witness
Judges may not testify at trial as a witness
Rule 606: Jurors Competency as a witness
If a jury is called to testify, then
the court must give a party an opportunity to object outside the jury’s presence
Rule 606: Jurors Competency as a witness
Prohibited Testimony or Others Evidence
During an inquiry into the validity of a verdict or incitement (3 things that a jury may not testify)
May not testify about jury deliberations, jury voting, any jurors mental processes concerning the verdict or indictment
Rule 606: Jurors Competency as a witness
Prohibited Testimony or Others Evidence (3 EXCEPTIONS)
During an inquiry into the validity of a verdict or incitement
- Extraneous prejudicial info was improperly brought to the jury’s attention
- An outside influence was improperly brought to bear on any juror;
OR - A mistake was made in entering the verdict on the verdict form
Rule 602 Need for Personal Knowledge
A witness may testify to a matter only if…
the evidence is introduced sufficient to support a finding that the witness has personal knowledge may consist of the witnesses own testimony
Rule 602 Need for Personal Knowledge
does not apply to
a witness expert testimony under rule 703
The formula for if a witness’s personal knowledge can be testified
FP= FT
Facts perceived = facts allowed to testify
When are the witnesses facts to be testified, inadmissible?
When they are not facts that they personally perceived
To testify personal knowledge a witness needs to be able to do what 3 things
☆
1) comprehend
2) remember
AND
3) communicate
Personal Knowledge
The witness has to have evidence that is…
“sufficient to support a finding” of personal knowledge
“sufficient to support a finding” of personal knowledge
a reasonable juror could conclude that the witness perceived, comprehends, remembers, and can communicate the facts
Rule 603 Oath or Affirmation to testify truthfully
Before testifying, must give oath or affirmation
NCGS Rule 601 General Rule of Competency + disqualification of witnesses
who is competent
everyone unless a rule says otherwise
NCGS Rule 601 General Rule of Competency + disqualification of witnesses
a witness is disqualified when the court determines
1) cannot express self directly or with interpretation
OR
2) Incapable of the duty of witness to tell the truth
NCGS Rule 601 General Rule of Competency + disqualification of witnesses
Interested party
Interested party’s are disqualified
3 types of Evidence
1) witness
2) Item
3) Judicial notice
What does the court do during judicial notice
The court takes note of a general fact
Demonstrative evidence
merely illuminates testimony
demonstrative evidence can only be used if
the testimony it illustrates is admissible and it actually refers to that testimony
Rule 601: Competancy of a witness can differ between…
States
Rule 601: Competancy of a witness always applies to
Federal Cases
Rule 601: Competancy of a witness
Civil cases are governed by
State laws
Rule 601: Competancy of a witness
Can a atheist testify?
Yes, everyone is competent to testify
Another rule: cannot bring up that they are athesist
605: Judge competancy as a witness
- Judge cannot be a witness
- Need not to objecy to preserve the issue (Plain error)
Rule 606: Jurors competancy as a witness
2 times when a juror cannot be a witness
- At the trial
- during an inquiry into the validity of a verdict or indictment
Rule 606: Jurors competancy as a witness
during an inquiry into the validity of a verdict or indictment. What is the specific prohibited testimony or other evidence from a witness?
How the decision was made
Rule 606: Jurors competancy as a witness
3 Exceptions to the rule stating that a juror cannot be a witness during an inquiry into the validity of a verdict or Inditement
1) Extranous prejudicial info was improperly brough to the jurys attention
2) An outside influence was improperly brought to bear on any juror
3) A mistake made when entering verdict on the verdict form
Rule 602: Need for personal Knowldge
Evidence introduced needs to be
sufficent to support a finding
(super low standard)
Rule 602: Need for personal Knowldge
does not apply to
expery testimony
just do not let testimony get too scientific
4 things needed to establish personal knowledge
1) Witness must percieve the facts
2) witness understands what it precieved
3) witness remembers/comprehends what they precieve
4) Witness must be able to communicate
Rule 602: Need for personal Knowldge
What it means to precieve the facts
see it, hear it, touch it, taste it, smell it
Once that evience is found to be sufficent to support a finding, the evidence goes to
wait
Rule 106 Summaries
When a proponet may use a summary, chart, or calculation as evidence
to prove the content of volumous writings, or photographs that cannot be conviently examined in court
Rule 1006 Summaries
The proponent must make what available for examination or copying, or both, by other parties at a reasonable time and place.
and the court may do what
originials or duplicates
and the court may order the proponet to produce them in court
When determining if a writing is admissible
3 frequent issues to consider:
☆
- Authentication
- The best Evidence Rule
- Hearsay
What would happen if plaintiff notified defendant that they needed evidence and they failed to bring the evidence
Rule 1004(3) would allow plaintiff to offer secondary evidence to prove the contents of the writing
Including testimony from memory on what it said
Rule 1007 Testimony as statement of a party to prove content
May prove content of a writing, recording, or photograph by:
the testimony, the deposition, or written statement of the party who the evidence is against.
Need not account for the original
Rule 1008: Functions of the Court and Jury best evidence rule
In a jury trial the jury determines any issue about what 3 things?
- An asserted writing, recording, or photograph ever existed
- Another one produced at the trial or hearing is the original, OR
- other evidence of content accurately reflects the content
A photograph can be what 2 types of evidence?
Real and demonstrative
Real evidence
played some role in the case
Demonstrative evidence
To diagram or demonstrate something
What to ask if the contested evidence is a writing, recording or photgraph
is the evidence offered to prove the content of the writing, recording or photograph?
If evidence is offered to prove the content of writing, recording or photographs, the party must take one of what 6 paths
- Produce the origingal (1001, 1002)
- Produce duplicate (unless a question is raised about the authenticity of the original or a duplicate would be unfair, 1003)
- Prove an exception of 1004, and offer other evidence
- Prove contents by written statement, testimony, or desposition of opponet 1007
- Provide a summary if contents are volumonous, while making originals or duplicates available for copying 1006
- prove a public recotd according to 1005
To get the contents in a GPS you look at what rule
best evidence rule
Best evidence rule
Testimony on record
Doesn’t mean it is under Best Evidence RUle, because it personal knowledge
Rule 1004
If original is lost or destoryed
testimony concerning the contents od the writing is admissible
