Virginia Evidence Flashcards
Accountant-Client Privilege
not observed in VA
Character evidence in the form of reputation testimony is permitted for what purposes?
This type of evidence in the form of reputation testimony is permitted for substantive and impeachment purposes
Character evidence in the form of opinion testimony is not permitted for what purposes?
This type of evidence in the form of opinion testimony is not permitted for substantive and impeachment purposes
What influences on a witness create bias or interest relevant to the credibility of his testimony?
The 1) influence by relationship to a party; 2) interest in testifying; or 3) interest in the outcome of the case all create what in a witness?
The relevance and probative nature speaking to the credibility of testimony may be admitted for what purposes?
When this is relevant and probative, it may only be admitted for impeachment purposes, not substantive
A pastor, as holder of the clergy-penitent evidentiary privilege, may do what?
This person, as holder of this evidentiary privilege, may (but not must) testify as to a Defendant’s admitted criminal acts
This is inadmissible hearsay and not admissible for its truth:
A prior inconsistent statement made by a witness under penalty of perjury is this in Virginia
Prosecution can offer evidence of a defendant’s bad character when:
This can be offered as evidence if the defense “opens the door” by introducing evidence of the victim’s bad character
For impeachment of a criminal defendant, Virginia only allows evidence of what regarding felony convictions or misdemeanors involving moral turpitude?
For this, Virginia generally only allows the fact and number of convictions, not nature and name of crimes, to be admitted
A non-constitutional erroneous evidentiary ruling is what?
This is a harmless error when all the parties have had a fair trial
When are Virginia rules of evidence mandatory?
These are mandatory during 1) trial, 2) preliminary hearings, and 3) sentencing proceedings before jury
An objection must be stated with:
This must be stated with “reasonable certainty”/provide a reason for this:
Non-Constitutional erroneous evidentiary rulings are:
These are harmless if parties have had 1) fair trial on merits and 2) substantial justice has been reached
VA Courts must take this:
These must take judicial notice of laws of other jurisdictions, whether or not specially plead
When taking judicial notice of laws of other jurisdictions, courts must and may:
When doing this, courts must in criminal/may in civil: consult any appropriate source; may consider other evidence offered on subject
Exclusion of Witnesses
May upon own motion/must upon a party’s: require exclusions & separation of non-named party witnesses (indiv/officer if entity)
Exclusion of Witness: Victim
This person who has been called as witness may remain in the courtroom unless presence would impact trial fairness
Effect of Presumption: Federal Law
In any civil action/proceeding to which federal law supplies rule of decision, this is determined by federal law
Proof of Character
This may only be done through reputation testimony, not opinion
Proof of Character (Essential Element)
Where this is an essential element of charge/claim/defense, specific instances of conduct are admissible
Prior bad acts: Generally
This is not generally admissible to show D’s criminal propensity to prove commission of crime
A court may do what as to the probative value of a prior conviction?
The length of time Defendant was incarcerated on a prior conviction or how remote conviction was is considered this for admissibility
This is not required for admitting MIMIC evidence in Virginia
Notice of the intent to use a specific bad act is not necessary for this:
MIMIC evidence (admissible)
Motive, Intent, absence of Mistake, Identity, or Common plan
Specific bad acts: Evidence of repeated physical/psychological abuse
These may be admitted as relevant evidence for PI/death/attempt cases (domestic assault e.g.)
Juror Testimony: Racism
This person may testify about another’s statements exhibiting overt racial/national origin bias tending to show racial/national origin stereotype/animus
Witness Impeachment: Truthfulness
This may only be done by reputation testimony for truthfulness, not opinion testimony
Witness Impeachment: Specific Instances of Conduct
This may not be used at all for attacking credibility of witness
Witness Impeachment: Crimes of Criminal Defendant
When impeaching, only fact of & number of felony convictions/MisD involving moral turpitude may be admitted (not name/nature of crime)
Witness Impeachment: Time Limit on considering convictions
In Virginia, there is no rule setting this for convictions for impeachment
Witness Impeachment: Juvenile Adjudications
These may not be used to impeach a witness, but may be used to show bias
Prior Inconsistent Statements (Generally)
Inconsistent witness testimony; counsel must generally call statement to attention of witness prior to impeachment
Prior Inconsistent Statements: Written (cross)
If this is in writing, witness may be cross examined about it w/out writing being shown to witness
Prior Inconsistent Statements: Written (contradict)
To contradict witness this writing, foundation must be laid for writing, must be shown to witness if denied writing, or permit explanation if witness deems genuine
Prior Inconsistent Statements: Recovery for PI/WD
No ex parte affidavit/non-depo statement in writing/extrajudicial recording can be used to contradict witness in these actions; but can for insurance policy action
Prior Inconsistent Statements: Adverse Witness
These may be used to impeach own adverse witness; subject to discretion of court
Qualified Expert Witness: These federal requirements are this in Virginia:
Virginia follows a more flexible standard as only the first of following is required: 1) qualified by knowledge/skill/experience/training/ed, 2) testify on facts/data, 3) testimony is product of reliable principles/methods, 4) testimony reflects reliable application, 5) and a reasonable degree of certainty
Qualified Expert Witness: Reliability Standard
In Virginia, this for an expert’s opinion is more flexible
Qualified Expert Witness: Ultimate Opinion
This may be offered by expert witness in civil cases but not criminal
Expert Witness: Evidence of Mental Condition
This may be admissible if it shows a lack of intent and is otherwise admissible
Expert Witness: Disclosure of Facts supporting opinion
In civil cases, prior disclosure of these are not required when giving opinion; in criminal, they must be disclosed or opinion presented as hypothetical
Expert Witness: Bases of opinion
In civil cases, these may rely on inadmissible facts relied upon others in their field; for criminal, must be based on evidence/personal/observed knowledge
Tangible Evidence: Polygraph
This type of tangible evidence is never admissible
Tangible Evidence: Minor’s School Records
When these are material & admissible, properly authenticated copies of record are admissible, but subjective info must be redacted
Self-Authentication: Regularly Conducted Activity
A record of this may be authenticated by certification of record custodian; may be certified through witness testimony or combination of wt/certification
Self-Authentication: Insurance/Health Bills and Charges
For PI/WD/motor vehicle insurance actions, if these are furnished 21 days in advance, there is rebuttable presumption of authenticity
Self-Authentication: Presenting Evidence of injury/exam/costs in GDC for these actions:
In GDC for PI/insurance actions, these may be presented through report from health care provider or hospital records/bill for treatment
Self-Authentication: Costs
For contract/tort for motor vehicle damages in excess of $2,500, this may be proved through written itemized estimate by qualified person, consented to by opposing party or delivered 7 days prior to trial
Oral Statements: Recorded Telephone Call
To admit this, 1) all parties must be aware of recording or 2) recording contains admissions for criminal conduct that is basis for civil action, one party was aware, and action is not for divorce/annulment/separate maintenance
Best Evidence Rule: Generally
This only applies to writings, and counsel must object for the court to apply it; original documents must be admitted for evidence (THINK TEXT MESSAGES)
Best Evidence Rule: Original Document
Even when original exists, copies of records made or received in ordinary course of business are admissible to same extent as original
Parol Evidence Rule: Complete versus Partial Integration
If agreement is complete, this applies and no extrinsic evidence admissible; if it is partial, then evidence that adds is admissible/not that which contradicts
Spousal Immunity: Testimony of Spouse in Criminal Case
May be compelled to testify on behalf of spouse, but not against unless for: 1) offenses by one against other/other’s property/minor child, 2) forgery of other’s signature, or 3) sexual assault/abuse of children
Confidential Marriage Communications: Civil & Criminal
A person may prevent disclosures of these made during marriage, but cannot assert this privilege when parties are adverse/either spouse is charged with tort against person/property/minor child; Criminal, same as civil but exceptions of testimony apply
Attorney-Client Privilege: Work product source
The identity of a specific source of information is protected as this
Physician-Patient Privilege
This is held by patient only in civil proceedings, and not available when physical/mental condition of patient is at issue
Psychotherapist-patient privilege
For civil cases, no licensed counselor/social worker/psychologist can be required to testify regarding confidential communications in professional capacity; except fr child abuse/neglect, capacity at issue
Clergy-Penitent Privilege
This applies in civil/criminal cases; only belongs to clergy member
Accountant-Client Privilege
This is not recognized as a privilege in Virginnia
Professional Journalist Privilege
This is recognized in VA but yields to Defendant’s right to fair trial
Compromise Negotiation: Documents in Existence Prior
These may not be excluded from evidence merely because they were disclosed/discussed during negotiation
Plea Negotiation: Nolo Contendere
These are admissible in subsequent civil cases arising from same occurrence
Non-hearsay: Prior Inconsistent Statement
These made by witness are permitted for impeachment, but not for nonhearsay/exception
Non-hearsay: Consistent Statements
These made by witness are permitted for rehabilitation, but not for nonhearsay/exception
Non-hearsay: Statement of Identification of Witness
This is permitted so long as declarant testifies at trial/hearing and is subject to cross examination
Admission by Party-Opponent
This is considered as a hearsay exception and can be admitted
Unequivocal Admissions by Party-Opponent
These made during judicial proceeding may not only be admissible but also hold conclusive effect
Adoptive Admissions: Express
When this is made express, court need only determine foundation is sufficient for jury to infer declarant heard/understood/acquiesced to statement
Hearsay Exceptions - Declarant Unavailable
(1) Former Testimony, (2) Statements Against Interest, (3) Dying Declarations, (4) Statements of Personal or Family History, BUT NOT (5) Statements Offered Against Party Procuring Declarant’s Unavailability (not in VA)
Hearsay Exceptions - Declarant’s Availability Immaterial
1) Present Sense Impression, 2) Excited Utterance, 3) Statement of mental/emotional/physical condition, 4) Statement for medical diagnosis/treatment, 5) Recorded Recollection, 6) Business records, 7) Public records, 8) Learned treatises, 9) Judgement from prior conviction
Hearsay Exceptions - Business Records Not Found
Gov Officer may file affidavit that of this after diligent search; admissible to prove lack of existence. If affidavit objected to will not be admissible unless objection waived or admission later stipulated
Hearsay Exceptions - Learned Treatise (Civil)
If statement to be introduced through expert/direct examination, these must be provided 30 days in advance of trial and designated as literature; need not have been relied on for opinion, crash investigation report does not count
Hearsay Exceptions - Learned Treatise (Criminal)
If expert acknowledges on cross that this is standard authority in the field, opposing may impeach (solely as to credibility) by asking whether witness agrees with the statements
Hearsay Exceptions - Judgement of previous conviction on subsequent civil case
Evidence of this does not establish the truth of the underlying facts of later civil action
Hearsay Exceptions - Shoplifting Cases
This is permits admission of price tags regularly affixed to items offered to sale or (if no BER objection) testimony concerning amounts shown on tags
Hearsay Exceptions - Criminal Sexual Assault
This permits admission as corroborating evidence for the fact that the injured person made the complaint of the offense recently after commission of the offense
Leading questions are not permitted on direct unless:
Not permitted unless hostile witness, needed to develop witness’ testimony, or witness struggles w/ communication; no restriction on cross
Improper questions may include:
These may include compound, assumes facts not in evidence, argumentative, calls for conclusion/opinion, repetitive, or lack of foundation
A court must exclude witnesses from the courtroom so that they do not hear the testimony of other witnesses EXCEPT for:
This must happen, except for: natural person parties to case, individual designated as rep of non-natural person parties, persons essential to party’s presentation of case, and person’s whose presence is permitted by statute (victim)
Burden of production, generally:
Must produce legally sufficient evidence for each element of claim such that trier of fact could infer alleged fact had been proven
Burden of persuasion, generally:
For civil, this is generally a preponderance of the evidence (or clear and convincing); for criminal, beyond a reasonable doubt
Destruction of evidence raises rebuttable presumption that evidence would be unfavorable to destroying party if:
This raises a rebuttable presumption if other party establishes 1) destruction was intentional, 2) evidence is relevant, and 3) the alleged victim acted w/ due diligence as to destroyed evidence
All relevant evidence is admissible; evidence is relevant if
If probative (has tendency to make fact more/less probable than it would be) and material (is of consequence in determining action), then evidence is this:
Direct evidence is:
This identical to factual proposition offered to prove
Circumstantial evidence is:
This is indirect proof of factual proposition through inference of collateral facts
Exclusion of Relevant Evidence requires:
This requires the probative value to be substantially outweighed by danger of unfair prejudice
When evidence’s relevance is dependent on existence of fact:
In this situation, proof must be sufficient to support finding that the fact does exist; may later be conditionally admitted
Curative admission of irrelevant evidence is admitted when necessary to rebut this:
To remove previously admitted inadmissible evidence, this may be admitted to remove unfair prejudice
Character evidence in civil cases is inadmissible for:
This is inadmissible to prove a person acted in accordance w/ character/trait on particular occasion
Character evidence in civil cases is admissible for:
This is admissible when character is essential element of claim/defense instead of means of proving person’s conduct (defamation, negligent hiring, negligent entrustment, child custody)
Character evidence of D’s character by prosecution in criminal case is:
Under this scenario, not permitted to introduce evidence of D’s bad character to prove propensity to commit crimes and thus likely have committed crime in question
Character evidence of D’s character by defense in criminal case is:
Under this scenario, D is permitted to introduce evidence of good character as inconsistent w/ crime charged if pertinent, must be reputation testimony
Character evidence by D of D’s good character/ victim’s bad character does this:
Once this is offered, “opens door” to prosecution to rebut claims by attacking D’s character
Character evidence of Victim’s character by defense in criminal case is:
In this scenario, D may only introduce reputation evidence of victim’s character when relevant to defense asserted
Character evidence of Victim’s character by prosecution in criminal case is:
In this scenario, pros can offer rebuttal evidence of victim’s good character once this door has been opened; can introduce trait for peacefulness in homicide to rebut that victim was first aggressor
Character evidence for impeachment is:
This of witness’ untruthfulness is admissible/relevant to impeach
Specific acts as character evidence for civil cases are:
When character evidence is an essential element of claim defense, can be proven with these or reputation testimony.
Specific acts as character evidence for criminal cases are:
These are not admissible to show criminal propensity; may only be introduced when character is essential element of crime/defense
Specific acts can be asked about when?
A character witness may be asked about relevant these committed by person whom witness is testifying
Habit evidence is:
This is a person’s particular routine reaction to specific set of circumstances
Habit evidence may be admitted when:
This may be admitted without corroboration and without eyewitness
Evidence of person’s habit or org’s routine is:
This is admissible to prove person acted in accordance w/ habit on particular occasion
Witness competence generally:
This is a person w/ personal knowledge, gives oath/affirmation to testify truthfully, and is competent (mental abilities affect credibility as opposed to competence); no minimum age
A non-expert witness must have what to testify?
This person must have personal knowledge of matter to testify
Judge as a witness:
This person is barred from being a witness and testifying in trial over which she presides
Dead man’s statute protects:
This protects decedent’s estate from parties w/ financial interest in estate; predecessors in interest/those directly affected financially may be disqualified
In Virginia, dead man’s statute requires:
This requires corroboration of evidence offered against the party incapable of testifying
Dead man’s statute protections may be waived by:
An interested person/protected party may waive this protection by failing to object to disqualified witness/introducing protected evidence
A witness’ character for truthfulness may be impeached by this BUT NOT this:
This may be impeached by reputation for truthfulness; BUT NOT specific instances of conduct for attacking credibility, or opinion testimony
A conviction NOT involving dishonesty/false statement is:
This is admissible to impeach witness only if crime punishable by death/imprisonment 1yr+; for defendant, only if probative outweighed by prejudicial effect (stricter, does not need to be substantial); for others, generally admissible unless probative substantially outweighed
Extrinsic evidence of prior inconsistent statement is admissible if:
This is admissible only if witness has chance to explain/deny statement and opp party can examine witness about it
Impeachment: Bias or interest
These can be used to impeach witness because relevant to credibility
Impeachment: Sensory Competence
This may be used to impeach witness for deficiency in capacity to perceive/recall/relate information
Impeachment of a hearsay declarant:
Credibility of this person may be attacked by any evidence admissible if they testify; can be cross examined
To rehabilitate a witness, counsel may:
To do this, counsel may explain/clarify on redirect, offer reputation evidence of witness’s character for truthfulness once attacked, or offer prior consistent statement to rebut charge witness lied due to improper motive/influence (ONLY for this, not hearsay/nonhearsay)
Impeachment: Religious opinions and beliefs
These cannot be used themselves to impeach, but are admissible to show bias/interest
Contradictory evidence (but not collateral issues) can be used to impeach if:
This can be used to impeach if contradicts witness’s testimony, including contradictory material extrinsic evidence
A witness may examine any item to do this:
This person may examine any item to refresh present recollection; testimony must be based on refreshed recollection
This memo/record may be admissible if:
If 1) for hearsay exception and 2) this was matter witness once had knowledge of but now has insufficient recollection to testify, it may be admitted; may be read into evidence/received as exhibit only if offered by adverse partt
A Lay witness’s opinion is admissible if:
This is admissible if 1) rationally based on witness’ perception, 2) helpful to clear understanding of witness’s testimony/determination of fact at issue, and 3) not based on specialized knowledge
A lawyer may not offer to pay a witness any consideration:
This cannot occur in excess of reasonable expenses incurred and reasonable value of time spent providing evidence (can offer expert non-contingent fee); or, contingent on content of witness testimony/outcome of litigation
A witness in attendance in federal court or deposition pursuant to federal rule/court order is entitled to:
A witness in this scenario is entitled to an appearance fee and travel allowance
Physical evidence is generally authenticated through:
This is generally authenticated through personal knowledge, distinctive characteristics, or chain of custody
Reproductions (photos, diagrams, maps) are authenticated by:
These can be authenticated by witness testimony w/ personal knowledge that object accurately depicts what proponent claims
X-rays, EKGS are authenticated by:
These can be authenticated when process used was accurate, the machine works, and the operator was qualifid
Documentary evidence is usually authenticated by:
This is usually authenticated by stipulation, eyewitness testimony, or handwriting verification
Ancient documents are authenticated if:
These are authenticated if at least 20yrs old, in condition unlikely to create suspicion, found in likely place if authentic
Public records are automatically authenticated if:
These are authenticated if recorded/filed in public office
Reply letter is authenticated if:
This is authenticated if written in response to a communication
To authenticate and verify handwriting, the court must:
This is authenticated upon expert comparison or review by non-expert with personal knowledge
Documents that don’t require extrinsic evidence are:
Gov’t authorized documents, certified public records, or newspapers are self-authenticating and do not require:
A voice identification can be made by:
This can be made by any person who has heard the voice at any time
A party to a telephone conversation may authenticate statements made during conversation if:
This may be authenticated if caller recognized speaker’s voice, speaker knew facts only particular person would know, caller dialed number believed to be speaker’s and speaker identified themselves upon answering, or caller dialed business and spoke about business regularly conducted ober phone
Evidence of prior or contemporaneous negotiations is subject to this rule:
The Parol Evidence Rule only applies to these, not negotiations after contract was executed
Confidential communication is necessary for what to apply?
This is necessary for privilege to apply
If a confidential communication is overheard, privilege is destroyed unless:
This is destroyed unless 1) no knowledge of 3rd party’s presence or 2) 3rd party is necessary to assist in communication
Confidential communication privilege can be waived if privilege holder:
This may be waived if person 1)fails to timely assert it, 2) voluntarily discloses communication, or 3) contractually waives in advance
Fifth Amendement protection allowing witness to refuse to give testimony that may tend to incriminate covers:
This covers only current statements, but does not apply to physical characteristics/mannerisms, nor does it apply to corporations or other organization
Subsequent remedial measures are not admissible for:
These are not admissible to prove negligence, culpable conduct, defective product/design or need for warning/instruction
Subsequent remedial measures are admissible for:
These are admissible for impeachment, ownership/control, or feasibility of precautionary measure
Compromise offers/negotiations are NOT admissible:
This is not admissible by either party to prove validity/amount of claim, or for impeachment by prior inconsistent statement, or contradiction
Compromise offers/negotiations are admissible:
This is admissible to prove bias/prejudice of witness, negate claim of undue delay, or prove obstruction of criminal investigation/prosecution; for subsequent criminal cases, admissible if made w/ governmental agency w/ authrotiy
Evidence of payment/offers/promise to pay medical expense are:
These are not admissible to prove liability for injury, but statements that accompany them are admissible
