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Terms in this set (56)
Where do the Rules of Evidence not apply? (x3)
1) preliminary question of fact governing admissibility
2) grand jury proceedings
3) other misc. proceedings, including sentencing, extradition, bail, and probation
What is the threshold for admissible evidence? What is Competent evidence? What is relevant evidence?
Relevant evidence is ADMISSIBLE if it is COMPETENT.
COMPETENT EVIDENCE does not violate any exclusionary rule.
RELEVANT evidence has tendency to make existence of any fact of consequence to determination of the action more or less probable than it would be without the evidence.
When may a court exercise discretion in excluding evidence? (x6)
When the probative value of the evidence is SUBSTANTIALLY OUTWEIGHED by the danger of:
1) unfair prejudice
2) confusion of the issues
3) misleading the jury
4) undue delay
5) waste of time
6) unduly cumulative
In general, if evidence involves some other TIME, EVENT, or PERSON OTHER THAN THAT INVOLVED IN CASE at hand, evidence is...
Evidence (x5) involving some other TIME, EVENT, or PERSON may be admitted to show...
1) plaintiff's accident history if CAUSE of damages in issue
2) Similar accidents involving defendant involving same INSTRUMENTALITY or CONDITION, and occuring under SUBSTANTIALLY SIMILAR CIRCUMSTANCES, for showing a) existence of dangerous condition, b) causation, or c) notice to defendant
3) Prior conduct to show inference of intent
4) Comparable sales on ISSUE OF VALUE
Evidence that may excluded for public policy reasons (x5) and their exceptions
1) liability insurance (ownership or control, as impeachment, or as part of admission of liability)
2) subsequent remedial measures (ownership or control, rebut a claim that precautions were impossible, prove destruction of evidence)
3) Settlement offers or negotiations (if not to prove or disprove validity or amount of DISPUTED CLAIM or to impeach by prior inconsistent statement or contradiction) MOST LIBERAL
4) withdrawn guilty pleas or offers to plead guilty (NO EXCEPTION)
5) offers to pay or payment of medical expenses (if not to prove culpable conduct. Also, admission of fact accompanying offer is admissible)
What is a proper method of proving character? (x3)
1) evidence of specific acts
2) Opinion testimony
3) Reputation testimony
When is character evidence admissible?
In a civil case, never, unless character is in issue (e.g. defamation)
In a criminal case, ONLY the accused can initiate (OPEN THE DOOR)
If a defendant takes the stand, is his character put in issue merely by that act?
No. But he places his credibility in issue.
How may the defendant prove HIS character? (Criminal Case)
1) Witness for D may testify as to D's good REPUTATION and give personal OPINION regarding the TRAIT IN QUESTION
How may the prosecution rebut defendant's character? (x2)
1) on CROSS, regarding basis of testimony OR "have you heard of [specific instance] of D's conduct?" NO EXTRINSIC EVIDENCE.
2) On DIRECT, calling own witness to testify to D's BAD reputation or opinion on D's character.
How may the defendant prove VICTIM's character? When does it generally apply?
Introduce REPUTATION or OPINION evidence of RELEVANT BAD CHARACTER TRAIT.
Generally applies in self-defense cases.
How may the prosecution rebut defendant's VICTIM evidence? (x2)
REPUTATION or OPINION evidence of:
1) victim's GOOD character for the SAME TRAIT; or
2) DEFENDANT's BAD CHARACTER for the SAME TRAIT.
In HOMICIDE CASE, where defendant pleads SELF DEFENSE, what allows the prosecution to prove that the victim had good character for peacefulness?
Evidence of any kind that victim was first aggressor. This OPENS THE DOOR for prosecution.
When may evidence of specific crimes or misconduct be introduced?
When proving MIMIC.
What does MIMIC stand for?
To be continued
What is the best evidence rule? When does it apply?
To prove the terms of a writing, the original writing must be produced if the terms of the writing are material. Secondary evidence of the writing is admissible only if the original is unavailable.
It applies only when either 1) the writing is a legally operative or dispositive instrument; or 2) the knowledge of a witness concerning a fact results from having read it in the document.
Generally, is lay person opinion testimony admissible?
What is the exception to the rule that lay person opinion testimony is not admissible? (x3)
lay person testimony is admissible if:
1) it is rationally based on the witness's perception
2) helpful to a clear understanding of her testimony or helpful to the determination of a fact in issue; AND
3) not based on scientific, technical, or other specialized knowledge.
What are the situations where lay witness testimony is admissible? (x8)
1) general appearance or condition of person
2) state of emotion of person
3) matters involving sense recognition
4) voice or handwriting identification
5) speed of moving object
6) value of her own services
7) rational or irrational nature of another's conduct; and
8) intoxication of another
What are the requirements for expert testimony? (x4)
1) evidence must be RELEVANT and RELIABLE
2) Witness must be QUALIFIED as expert
3) Expert must possess REASONABLE PROBABILITY regarding her opinion
4) Opinion must be supported by PROPER FACTUAL BASIS.
What are the methods of impeachment? (x7)
1) prior inconsistent statements
2) bias or interest
3) conviction of crime (felony or crime involving dishonesty)
4) specific instances of misconduct (bad acts)
5) opinion or reputation for truthfulness
6) Sensory deficiencies
7) Contradictory facts
IMPEACHMENT: How may prior inconsistent statements be proved and what are the foundational requirements?
PROVED: Cross and extrinsic evidence.
FOUNDATION: W must be given opportunity to explain or deny inconsistent statement (doesn't apply to hearsay declarants and party opponents).
IMPEACHMENT: How may bias or interest be proved and what are the foundational requirements?
PROVED: cross and extrinsic evidence.
FOUNDATION: W must asked on cross about facts before extrinsic evidence allowed. If facts admitted on cross, court's discretion as to whether extrinsic evidence allowed.
IMPEACHMENT: How may convictions of a crime be proved?
Must be CONVICTION, not simply arrest or indictment. Can be either ANY crime involving dishonesty or false statement or a FELONY.
Generally can't be more than 10 years old.
Can't have been pardoned if based on innocence or person pardoned has not been convicted of subsequent felony.
IMPEACHMENT: how may specific instances of misconduct (bad acts) be proved?
Cross ONLY. And only if PROBATIVE OF TRUTHFULNESS.
NO EXTRINSIC EVIDENCE ALLOWED
IMPEACHMENT: how may opinion or reputation for truthfulness be proved?
Calling other witnesses.
IMPEACHMENT: how may sensory deficiencies be proved?
On cross and with extrinsic evidence.
IMPEACHMENT: how may contradictory facts be proved?
On cross and with extrinsic evidence IF NOT COLLATERAL MATTER.
How may witnesses who have been impeached be rehabilitated? (x3)
1) Explanation on redirect
2) good reputation for truthfulness
3) Prior consistent statement
When does the attorney-client privilege apply in a client/doctor scenario?
During exam between client and doctor made at attorney's request, as long as doctor not called as expert witness.
Is there a physician-patient privilege in federal common law?
Is there a psychotherapist/social worker-client privilege in federal common law?
YES! SCOTUS has recognized this.
When does Spousal Immunity apply? What does it cover? Who holds the privilege?
In 1) a CRIMINAL case, 2) SPOUSE cannot be compelled to testify in criminal case against other spouse, regardless of whether he/she is a defendant; and 3) must be a valid marriage to apply (lasts only as long as the marriage).
Witness-spouse holds the privilege.
When does the privilege for confidential marital communications apply? What does it cover? Who holds the privilege?
1) in any case, 2) confidential communications between spouses 3) DURING VALID MARRIAGE are privileged.
EITHER SPOUSE can refuse to disclose the communication or prevent ANY OTHER PERSON FROM DOING SO.
Marriage must exist when communications made. SURVIVES DIVORCE
What is not hearsay?
1) verbal acts or legally operative facts
2) statements offered to show effect on listener or reader
3) statements offered as circumstantial evidence of declarant's state of mind.
Statements that are NONHEARSAY (x2)
1) prior statements by TESTIFYING witness
2) Admissions by party opponent
How do we get a prior statement from a witness (NONHEARSAY) in? When can it be used as substantive evidence? (x3)
TESTIFYING witness, and:
1)prior statement is inconsistent with declarant's in-court testimony and was GIVEN UNDER PENALTY OF PERJURY.
-Can be used as substantive evidence if UNDER
OATH. If not, only as impeachment.
2) prior statement is CONSISTENT with in-court testimony and is OFFERED TO REBUT charge that witness is LYING or EXAGGERATING b/c of some motive (and statement made BEFORE motive arose) or offered to REHABILITATE a witness whose credibility has been impeached on SOME OTHER ROUND (not just attack on witness's character for truthfulness)
3) prior statement is one of IDENTIFICATION of person as someone witness perceived earlier, even if witness cannot remember the identification.
How can we get admissions by a party opponent in?
When OFFERED AGAINST THE PARTY WHO MADE IT: they are made by the party itself, judicial/extrajudicial admissions, adoptive admissions, or vicarious admission.
What constitutes an adoptive admission? Can silence be an adoptive admission?
Expressly or impliedly adopting or acquiescing in statement of another.
Silence, if a reasonable person would have responded (heard and understood statement, capable of denying statement, reasonable person would have denied accusation).
What is a vicarious admission? What is not a vicarious admission?
1) authorized spokesperson
2) principal-agent (within scope of agency/employment)
2) privies in title and joint tenants-only in STATE COURT can this be an admission
What are the hearsay exceptions when a declarant is UNAVAILABLE?
1) former testimony
2) statements against interest
3) dying declaration
4) statements of personal or family history
5) statements offered against party procuring declarant's unavailability
How do you get former testimony in (EXCEPTION TO HEARSAY)?
1) statement made under oath 2) at same or at other proceeding 3) at which party (or in civil case PREDECESSOR IN INTEREST) against whom it is offered had motive and opportunity (same party in former action, same subject matter) to develop testimony.
Is grand jury testimony admissible as former testimony?
How do you get statements against interest in? What special proof is required in criminal cases?
If it is a statement against declarant's PECUNIARY, PROPRIETARY, or PENAL INTEREST when made.
In criminal cases, there must be corroborating circumstances indicating trustworthiness of statements against penal interest.
How do you get a dying declaration in?
in HOMICIDE (not attempted homicide) case or in ANY CIVIL ACTION, statement is admissible if:
1) declarant BELIEVED DEATH WAS IMMINENT
2) Statement concerned cause or circumstances of what he believed to be his impending death.
What are the hearsay exceptions that DO NOT require unavailability? (know only first 7)
1) excited utterance
2) present sense impression
3) present state of mind
4) declarations of physical condition
5) Business records
6) Recorded recollection
7) public records
8) ancient documents
9) documents affecting property interests
10) learned treatises
12) family records
13) market reports
How do you get an excited utterance in?
Exclamation point! Also relating to startling event, made while under stress of excitement from event.
How do you get a present sense impression in?
Describes or explains event or condition, made while or immediately after declarant perceives it.
How do you get present state of mind in?
must be existing state of mind (motive, intent, plan, emotional, sensory, physical condition)
How do you get declaration of physical condition in?
1) statements of declarant's present physical condition, or 2) statements made for purpose of obtaining medical diagnosis or treatment.
How do you get a business record in? What business record generally can't get in?
1) made in the regular course of business
2) regular practice of business to make record at the time of the event
3) made by person whose duty it was to make record and who had personal knowledge of event
Records constituting police reports cannot be admitted against criminal defendant.
How do you get a public record in?
1) record setting forth activities of office or agency
2) recordings of matters observed pursuant to duty imposed by law (not police observations in criminal matters)
3) in civil actions and against government in criminal cases, records of factual findings resulting from investigation authorized by law.
4) showing absence of a public record.
When does the Confrontation Clause bar evidence?
1) statement is offered AGAINST ACCUSED in CRIMINAL TRIAL
2) Declarant is UNAVAILABLE
3) statement was TESTIMONIAL in nature
4) accused had NO OPPORTUNITY to cross examine declarant's testimonial statement prior to trial.
What is a testimonial statement? CONFRONTATION CLAUSE
Statement made in the course of police interrogation (look at primary purpose). May include affidavits or written reports of forensic analysis.
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