W & M Rule Statements Flashcards
Admissibility of Evidence
In order to be admissible all evidence must be relevant and the probative value must not be outweighed by the danger of unfair prejudice.
Relevance
Evidence is relevant if it is:
(1) Probative; and
(2) Material
Relevance - Probative
if the evidence has any tendency to make a fact more or less probable than it would be without the evidence (i.e., probative)
Relevance - Material
The fact is of the consequence in determining the action
Authentication
The proponent of evidence must lay the foundation prior to introducing the evidence.
Authentication of Tangible Evidence
To authenticate an item, the proponent must produce sufficient evidence to support a finding that the thing is what its proponent claims it is. This is a lesser standard than a preponderance of the evidence.
Authentication - Documentary Evidence
Commonly authenticated by stipulation, testimony of an eyewitness, or handwriting verification.
Best Evidence Rule
aka original document rule.
Requirement that the original document or reliable duplicate be produced to prove the contents of a writing, recording, or photograph, including electronic documents, x-rays, and videos.
When does the best evidence rule apply?
Only applies when the contents of the document are at issue or a witness is relying on the contents of the document when testifying.
Attorney-Client Privilege - Evidentiary
If a communication is covered by attorney-client privilege, an attorney has an ethical obligation to assert the privilege and prevent the disclosure.
What does the attorney-client privilege cover?
The attorney-client privilege covers:
(1) A communication
(2) Made between privileged persons,
(3) In confidence,
(4) For the purpose of obtaining or providing legal assistance
When is the attorney-client privilege waived?
-Privilege is waived where the communication takes place under circumstances such that persons outside the privilege can overhear what is said.
***This goes against the “in confidence” element
A Private Investigator may be kept confidential when…
The PI is hired by the client’s lawyer – the PI is considered part of the legal team and potentially protected from disclosure.
Work-Product Doctrine
Ordinary work product is not subject to discovery unless the party seeking disclosure demonstrates:
(1) a substantial need for the information; AND
(2) they cannot obtain the information by any other means without undue hardship.
What does the work-product doctrine apply to?
(1) Documents
(2) Prepared by a lawyer or lawyer’s team
(3) In anticipation of litigation
When might a party be able to obtain evidence that would otherwise be protected under the work-product dcotrine?
If equivalent evidence cannot be obtained by other means the undue hardship exception will apply and the party with the evidence will not be able to withhold production of the photograph.
AKA Undue hardship exception**
What information is always protected from disclosure under the work-product doctrine?
The mental impressions, conclusions, and trial tactics of a lawyer are almost always protected from discovery, regardless of another person’s need for the information or inability to otherwise obtain it.
Physician-Patient Privilege protects….
Protects statements made my a patient to a physician, so long as the communications were made for the purpose of obtaining medical treatment.
Who holds the privilege in the physician-patient relationship?
The patient.
The physician-patient privilege does not exist when:
(1) The information was acquired for reasons other than treatment,
(2) The patient’s physical condition is at issue,
(3) The communication was made as part of the commission of a crime or tort;
(4) A dispute exists between physician and the patient,
(5) The patient contractually agreed to waive privilege, OR
6) A case is brought in federal court and state law does not apply.
In VA, the physician-patient privilege is only available in what type of cases?
Civil proceedings.
When is the privilege not available in VA?
Even in a civil proceeding, the privilege is not available unless the physical or mental condition of the patient is at issue.
Spousal Privilege is compromised of what distinct privileges
(1) Spousal Immunity; and
(2)Confidential Marital Communications
Spousal Immunity - general rule
the spouse of a criminal D may not be called as a witness by prosecution nor may a married person be compelled to testify against his spouse in any criminal proceeding, including a grand jury proceeding, regardless of who the defendant is.
Under spousal immunity, in a criminal case, when might a spouse be compelled to testify?
Spouse may be compelled to testify on behalf of the other spouse
Under spousal immunity, in a criminal case, when will a spouse be compelled to testify against the other spouse?
(1) An offense committed by one spouse against the person or property of the other spouse or against the minor child;
(2) The forgery by one spouse of the other spouse’s signature
(3)Sexual assault, incest, or abuse of a child
May a spouse choose to testify against a defendant spouse?
Yes - a spouse may voluntarily choose to testify against a defendant spouse
May a defendant spouse prohibit their spouse from taking the stand?
No - defendant spouse cannot prohibit their spouse from taking the stand.
**Testifying spouses may not testify about privileged communications unless an exception applies.
Confidential Marital Communications - general Rule
A person may refuse to disclose, and may prevent anyone else from disclosing, any confidential communication between himself and his spouse during their marriage, regardless of whether he is married to that spouse at the time he objects to disclosure.
For this privilege to apply, it must be concerning _________ between spouses during __________.
communications; a time when they were married.
For this privilege to apply, it must be concerning communications between spouses during a time when they were married
What are privileged communciations?
Any marital communications that were had in the spouse’s reasonable expectation of privacy
What is considered marital communications?
Words spoken and/or nonverbal conduct if it is intended as an assertion.
If a spouse sees their other spouse commit a crime, can they choose to testify as to what they saw?
Yes - the action was not in response to make it a communication protected under this privilege.
Who holds the confidential marital communications privielege?
Both spouses
Can one spouse prevent the testifying spouse from speaking of privileged communications?
Yes
In civil cases, the confidential marital communications may not be asserted in:
(1) any proceeding in which the spouses are adverse parties, or
(2) in which either spouse is charged with a tort against the person, or
(3) property of the other or against the minor child of either spouse.
In criminal cases, the confidential marital communications may not be asserted except in a prosecution for:
(i) an offense committed by one spouse against the person or property of the other spouse or against the minor child of either,
(ii) the forgery by one spouse of the other spouse’s signature,
(iii) sexual assault, incest, or abuse of children.
Hearsay Definition
Hearsay is a statement, verbal or non-verbal communication, that is made out of court by the declarant and is being offered to prove the truth of the matter asserted.
When is a hearsay statement considered a nonverbal conduct?
it is intended as an assertion.
Laying the foundation for hearsay statement
When hearsay is offered, the Court must first authenticate or identify the declarant.
Excited Utterance - Exception to Hearsay
a spontaneous or impulsive statement prompted by a startling event and made by a declarant with first hand knowledge at the time and under circumstances negating deliberation (i.e., while the declarant is still startled)
Does excited utterance apply to a statement made hours after the event?
No - must be when the declarant is still startled.
Exception to Hearsay - Not Offered for Trust of the Matter Asserted
A hearsay statement may be admitted as evidence when it is not being offered for the truth of the matter asserted.
Admission by Party-Opponent
Considered an exception in VA.
Statement made by a party to the current litigation is not hearsay if ordered by an opposing party.
Generally, Character Evidence may not be admissible to prove the D’s _______ to _________.
propensity; commit a crime.
Character Evidence may not be admissible to prove the D’s propensity to commit a crime.
Methods of proving character
Proof of character, whether good or bad, offered by any party generally must be in the form of reputation testimony.
In cases in which a character trait is an essential element of the charge, claim or defense, proof may also be made of specific instances of conduct of such person.
Is opinion testimony a method of proving character in VA?
NO
In cases in which a character trait is an essential element of the charge, claim, or defense, evidence of ____________ _____________ _________ is admissible.
specific bad acts
Specific Bad Acts is not admissible to prove….
a person’s character in order to show that the person acted in accordance with that character on a particular occasion.
Evidence of a person’s conduct may be admissible for another purpose such as:
motive, intent, opportunity, preparation, plan knowledge, identity, absence of mistake, or lack of accident.
(MIMIC EVDIENCE)
What type of proceedings is the exception to the rule on specific acts as evidence applied?
criminal and civil
Notice requirement for prosecution intent to use specific bad act evidence
VA rules of evidence do not require the prosecution to provide a criminal defendant with reasonable notice of the intent to use specific bad act evidence.
Motive
VA distinction - to establish modus operandi when there is a disputed issue of identity, evidence of other crime “need not bear such an exact resemblance to the crime on trial as to constitute a signature. Rather it is sufficient if the other crimes bear a singular strong resemblance to the pattern of the offense charged.”
Impeachment
A witness may be impeached by calling into question her credibility.
When is a witness’s testimony challenged?
based on her character for untruthfulness, bias, ability to perceive or testify accurately, or prior statement that contradicts the W’s testimony at trial
Prior Convictions are not admissible to show what?
not admissible purely to show a D’s propensity to commit a criminal offense.
When is evidence of a prior conviction admisisble?
Evidence of a prior conviction is admissible if such evidence is relevant.
Admissibility of a prior murder conviction
Evidence of prior murder in a murder case is relevant if the probative value substantially outweighs the danger of unfair prejudice.
An acceptable purpose for admitting an old conviction would be
to show identity or modus operandi
Admissibility of other crimes in a murder proceeding
In a murder proceeding, evidence of traffic offenses are irrelevant. D must object to relevancy.
If other convictions for irrelevant crimes come up at trial, the D should object to:
(1) relevancy
(2) unfairly prejudicial to imply D has a propensity to commit crimes in general.
Witness’s Character for Untruthfulness - Impeachment
Witness’s credibility may be attacked by _______ regarding their __________ ____ ________.
testimony regarding their character for untruthfulness.
Evidence for impeachment based on witness’s character for untruthfulness
Reputation evidence only.
A witness’s character for truthfulness is only admissible
after their character for truthfulness has been attacked
Is bias considered an attack for witness’s character for truthfulness to be amissible?
NO
Impeaching a witness based on a prior inconsistent statement
VA adheres to the rule that counsel must generally call a statement to the attention of the witness prior to effecting the impeachment.
In Virginia, what must the party do to impeach its own witness with a prior inconsistent statement?
Must prove the witness to be adverse.
What does adverse witness mean?
witness testimony must have been injurious or damaging to the party calling the witness
Depositions - when may an eyewitness’s deposition be used as testimony at trial?
In VA, an eyewitness’s deposition may be used as testimony at trial
When a party plans on using an eyewitness’s deposition at trial, they must…
Must properly notify opposing counsel in advance of discovery cut off of intent to use deposition in lieu of testimony.
Rationale behind allowing deposition at trial?
Both parties lawyers are present so they are able to object.
Requests for Admission - responses
if a party against whom a request for admission does not respond within 21 days after service of the request with a denial, the matter is taken as admitted and it’s a conclusively established admission unless the court permits withdrawal or amendment of the admission
