Evidence Flashcards
Judicial notice
JN appropriate when fact is 1) w/in common knowledge (no reference needed) OR
2) easily verifiable in established sources
Crim - jury MAY accept fact as conclusive
Civ - jury MUST accept as conclusive
Mandatory - (JN w/o request)
federal public law (e.g., the US Constitution, federal treaties), state public law (e.g., public state statutes), and official regs.
Permissive -
courts MAY, upon being supplied with sufficient information, take JN of municipal ordinances, private acts or resolutions of Congress & of local state legislature, or the laws of foreign countries.
Federal Rule 201(g) provides that a judicially noticed fact is conclusive in a
civil case
but NOT in a criminal case.
The burden of producing evidence is
Shifting burden of introducing sufficient evidence to to create a fact question of the issue and avoid judgment as a matter of law against the party bearing the burden.
The burden of persuasion comes into play
NON-shifting burden to persuade the jury to decide in your favor;
after the evidence has been introduced. If, after all the proof is in, the issue is equally balanced in the minds of the jury, then the party with the burden of persuasion must lose.
Burden of Proof =
burden of producing evidence and persuasion, both
parol evidence is admissible to establish or disprove a contract attacked on grounds of:
(i) Fraud, duress, or undue influence inducing consent;
(ii) Lack of consideration;
(iii) Illegality of subject matter;
(iv) Material alteration;
(v) Nondelivery, if the agreement required delivery for the instrument to be effective; or
(vi) Execution or delivery upon a condition precedent, as long as the parol condition does not contradict the writing.
Original evidence
refers to real evidence that has some connection with the transaction that is in question at the trial. An alleged murder weapon is an example of original evidence.
Circumstantial evidence
is evidence proved as a basis for an inference that other facts are true. For example, in a paternity case, the trier of fact may be shown the child for the purpose of showing that she is of the same race as the alleged father.
Dead Man Acts generally provide
that a party or person interested in the event, or her predecessor in interest, is incompetent to testify to a personal transaction or communication with a deceased, when such testimony is offered against the representative or successors in interest of the deceased. A person who stands to gain or lose by the operation of the judgment is a person “interested in the event” and is incompetent to testify; thus, a person with a pecuniary interest in the outcome of the case is incompetent to testify. This is so regardless of whether she is a party to the litigation.
Statement Against Interest exception to HS Elements
To qualify as an exception to the hearsay rule, a statement against interest must meet the following requirements:
(i) The statement must have been against pecuniary, proprietary, or penal interest when made. (CA - and social)
(ii) Declarant must have had personal knowledge of the facts.
(iii) Declarant must have been aware that the statement is against her interest and she must have had no motive to misrepresent when she made the statement.
(iv) Declarant must be unavailable as a witness.
The statement against interest exception does not require that the declarant be a party.
CA - also includes statements against SOCIAL interest (hatred, ridicule, disgrace in cmmty) and
does NOT require corroboration of D’s statement
HS exceptions that Require Unavailability
San Fran Fire Fantastic Dept
(5) :
(i) statements against interest,
(ii) former testimony,
(iii) forfeiture by wrongdoing; statements offered against party who procured dec’s unavailability.
(iv) Family history
(v) dying declarations,
Marital Communication Privilege
the privilege for confidential marital communications in Civil and Criminal cases
o 1. applies to (pillow talk) Confidential Communications betw H/W DURING marriage only! (Not before)
o 2. Survives Divorce, but not death
o 3. Applies in ALL cases, civil or crim
o 4. Both Spouses hold, so 1 can prevent other from testifying
rationale is to encourage open communication
Spousal Immunity
FED ct -
in a CRIMINAL case—
(i) the privilege not to testify against a spouse
-applies to ALL communications, conversations, impressions, observations, etc
o Regardless of confidentiality
o BOTH during and before marriage
o Does NOT survive divorce
-Witness Spouse holds privilege, spouse can testify w/o your permission
CA - civil or criminal
Logical Relevance
Relevant
any Tendency to make the existence of any fact of consequence to the claim, more or less probable
CA - must be DISPUTED fact
403 Prejudice
relevant evidence may be excluded if the court decides its probative value is substantially outweighed by the danger of unfair prejudice
past felony conviction of Defendant in Crim IN if
Impeach character 4 truthfulness bc did crime:
In IF
probative value outweighs prejudicial effect (reverse 403 w/o subtlly), or if conviction required element of dishonesty (no 403)
Reverse 403 for convictions over 10 yrs old:
INadmissible unless probative value substlly outweighs unfair prejudice
CA - Must involve MORAL TURPITUDE (includes extreme recklessness)
past conviction of NON D, mere witness
In unless 403 (PV substantially outweighed by unfair prejudice)
Grand Jury Testimony admissible?
no Opp to Cross, so former GJ testimony not admiss in place of actual witness
Clergy Penitent Privilege
person has privilege to refuse to disclose, and to prevent others from disclosing, confidential communication by that person to a member of the clergy, in his capacity as spiritual advisor
applies in both crim and civil cases
Hearsay Defn
An 1) out of court
2) statement
3) offered in evidence to prove the truth of the matter asserted
4) by a PERSON (not animal or machine)
Statement = verbal or written expression of a person; OR conduct by person intended to communicate (assertive conduct)
exceptions NOT FOR TRUTH - KNIB-L (knowledge/said, notice/effect on listener, intent, belief, !! Legally Operative Conduct) effect on listener, or state of mind
best evidence rule
When witness gathers his information from a document, or in proving the terms of a writing where the terms are material, the original writing must be produced.
Writing = Any tangible collection of Data (docs, videos, photos, xrays, recordings, etc)
ORIGINAL = computer printout, certified copies
DUPLICATES Ok too= (includes copy made by machine or by same impression that made original) admissible. But, NO HANDWRITTEN copies.
- Duplicate NOT ok when genuine question as to Original’s authenticity
- Voluminous Docs may be summarized if origs available
- Lost Doc - If ORIG lost of destroyed, testimony w/o doc is OK, unless B/F by proponent…
CA - Called “SECONDARY Evidence Rule”
Duplicates and other evidence of contents, including handwritten notes are admissible.
leading question
suggests to the witness the fact that the examiner expects and wants to have confirmed.
Co Conspirator admission must be
- Made in furtherance of the conspiracy
2. by a participant
dying declaration
Fed - Homicide Case or civil only; CUBA Statement admissible IF: C – concerned CAUSE/circs of imminent death U – UNAVAILABLE Declarant (not nec dead) B – BELIEF death imminent A – ANY civil case or CRIM homicide
CA - same except statement
- admissible in ANY CRIM OR CIVIL CASE
- Declarant must be DEAD
- Statement must concern what KILLED him
HS exceptions Requiring UNAVAILABILITY:
- Former Testimony (w/ opp to X)
- Dying Declaration
- Statement Against Interest
- Forfeiture of objection by wrongdoing (killed witness)
- Statement of Personal or Family History
Issue: Confrontation Clause!
Bar to Plea Evidence
withdrawn guilty please, pleas of nolo contendere, offers to plead guilty, and evidence of statements made in negotiating such pleas are inadmissible against the defendant who made the plea or was a participant in the plea discussion;
Once the plea is accepted it is admissible.
Former Testimony requirement
allows prior statement of declarant to be admitted into evidence if made:
- under oath at prior depo or proceeding AND
- Sufficient Similarity in PARTIES & ISSUES - such that Party or his Predecessor in interest had adequate opportunity & motive to cross witness prior
- Unavailable
CA - same, but NO requirement that Party’s Predecessor in interest was a Party earlier. Sufficient that party had INTEREST similar to that of Party against whom former testimony is now offered. (motive and Opp)
business record
writing or record made as memo or record of any act, transaction, occurrence or event is admissible as proof it it was made in:
- course of regularly conducted business activity
- customary to make type of entry (duty to make)
- matters w/in personal knowledge of entrant or overseer
- made at or near the time of the transaction
Exclusions to HS (NOT HS)
Can be offered for truth
- Admission of Party Opponent
- Admission against interest (agent or conspirator)
- Statement of ID
- Prior Consistent Statement
- Prior Inconsistent Statement (under OATH)
- Offered to show STATE OF MIND (effect on listener, notice, Knowledge)
Unavailable
1) is exempted on the ground of privilege; or
(2) refuses to testify despite court order; or
(3) testifies to a lack of memory of the subject matter
(4) died or is ill
(5) absent and the proponent is unable to procure the witness’ attendance by process or other reasonable means.
