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Flashcards in BARBRI evidence Deck (76)
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1

statements by an opposing party

- statement need not have been made against interest when made
- D need not have personal knowledge of facts
- D need not be unavailable
- D must be a party

2

hearsay exception - unavailability required
- statements against interest

- statement must have been against interest when made
- D must have personal knowledge of facts
- D must be unavailable
- D need not be a party

3

hearsay exception - unavailability required
- former testimony

- statement made under oath
- at same or at other proceeding
- at which the party against whom it is offered had motive and opportunity to develop testimony

4

hearsay exception - unavailability required
- dying declaration

- statement made while D believed death was imminent
- concerning the cause or circumstances of the impending death

5

hearsay exception - unavailability required
- statement of personal or family history

- statement of personal or family history (ex: birth, death, marriage)
- made by family member or one intimately associated with the family

6

hearsay exception - unavailability required
- statement offered against party procuring D's unavailabilty

- statement of unavailable D
- offered against party who procured D's unavailability

7

unavailability

- exempt from testifying because of privilege
- refuses to testify concerning the statement despite a court order
- testifies that he does not remember the subject matter
- unable to testify due to death or physical or mental illness
- absent (beyond the reach of a subpoena) and the proponent is unable to procure his attendance by reasonable means

8

spousal immunity

- 1 spouse cannot be compelled to testify against the other spouse in any criminal proceeding
- only the witness-spouse may invoke spousal immunity
- privilege can be claimed only during marriage but covers info learned before and during marriage

9

confidential marital communication

- communications made in reliance upon the intimacy of the marital relationship are privileged
- applies in both civil and criminal
- both spouses have privilege not to disclose, and to prevent the other from disclosing
- survives the marriage, but covers only statements made during the marriage

10

admissible opinion of lay witnesses
- general appearance or condition of a person

- "he was about 80 years old"
- "she seemed ill"

11

admissible opinion of lay witnesses
- state of emotion

- "she was angry"
- "he was distraught"

12

admissible opinion of lay witnesses
- matters involving sense recognition

- "the suitcase was heavy"
- "he smelled of garlic"

13

admissible opinion of lay witnesses
- voice or handwriting ID (foundation required)

- "it sounded like Mark"
- "that's Fran's handwriting"

14

admissible opinion of lay witnesses
- speed of moving object

"the truck was going very fast"

15

admissible opinion of lay witnesses
- value of own services

"my time is worth $50/hour"

16

admissible opinion of lay witnesses
- rational or irrational nature of another's conduct

"he was acting crazy"

17

admissible opinion of lay witnesses
- intoxication

"she was slurring her words and smelled of gin - she was drunk"

18

present recollection refreshed

- any writing may be used to refresh a W's memory
- W cannot read from the writing while testifying
- no hearsay problem because the writing is not offered into evidence

19

past recollection recorded

- only a writing that meets several foundational requirements (ex: timely made by W, W cannot remember the events after reading the writing) may be used
- writing itself is read into evidence
- this is hearsay but it falls within a specific exception to the hearsay rule

20

past recollection recorded

- W at one time had personal knowledge of the facts in the writing
- writing was made by the W or under her direction or it was adopted by the W
- writing was timely made when the matter was fresh in the W's mind
- writing is accurate AND
- W has insufficient recollection to testify fully and accurately

21

valid excuses justifying the admissibility of secondary evidence

- loss or destruction of original
- original is in the possession of a 3rd party outside the jurisdiction and is unobtainable
- original is in the possession of an adversary who after due notice fails to produce the original

22

ancient documents may be authenticated by evidence that it...

- is at least 20 years old
- is in such condition as to be free from suspicion as to authenticity AND
- was found in a place where such a writing would likely be kept

23

liability insurance is inadmissible to prove...

- negligence
- ability to pay

24

liability insurance is admissible to prove...

- ownership or control
- impeachment
- part of an admission of liability

25

subsequent remedial measures are inadmissible to prove...

- negligence
- culpable conduct
- defect in product or its design
- need for warning or instruction

26

subsequent remedial measures are admissible to prove...

- ownership or control
- rebut a claim that precautions were impossible
- to prove destruction of evidence

27

settlement offers or negotiations are inadmissible to prove...

to prove or disprove the validity or amount of a disputed claim

28

settlement offers or negotiations are admissible to prove...

for all other purposes

29

withdrawn guilty pleas and offers to plead guilty are inadmissible to prove...

for nearly all purposes

30

withdrawn guilty pleas and offers to plead guilty are admissible to prove...

not admissible