Evidence Flashcards

Question

authentication of oral statements

Answer 1

Voice ID : by anyone who has heard voice at any time Telephone convo : Any party to call who testifies : they recognized other parties voice, speaker had knowledge of certain fact that only particular person would have , they called particular person number and boice answered as person/residence , called business and talked

Answer 2

Domestic public docs bearing seal Official pub Certified copies of public/private record on file at public office Newspapers Trade inscriptions nd labels Notarized doc Commercial paper Business records

Answer 3

Prove content of writing recoding or photo Secondary evidence of writing (oral testimony) is admissible only if the proponent provides a satisfactory excuse for the original’s absence Applies when - Writing legally operative or dispositive instrument (Writing creates rights and obligations) - Where knowledge of witness results from having read it in writing Doesn’t Apply - Where witness has personal knowledge of the fact to be proved even if fact happens to also be recorded in a writing

Answer 4

Loss or destruction ( unless in bad faith) Cannot be obtained by any available judicial process In possession of an adversary who after notice fails to produce

Answer 5

Writing is collateral to litigated issue ( minor importance ) Testimony or written admission of opponent

Answer 6

actual physical evidence adressed directly to the trier of fact may be direct. cicumstantial, original, or demonstrative Condition of object : must be shown to be in substantially the same condition at trial Demonstrations : must be performed under conditions that are substantially similar to those attending the original event

Answer 7

1. must be evidence sufficient to support finding that witness has personal knowledge of matter about which they are to testiffy AND 2. witness must give an oath or affirmation to testigy truthfully children= depend on capacity and intelligence Insanity : show understand obligation to speak truthfully and have capacity to testify accurately

Answer 8

- Extraneous prejudicial info brought to attention - Outside influence brought to bear on any juror - Mistake on verdict forom - Juror made clear statement they relied on racial sterotypes or animus to convict a criminal D -Ct myst find racial animus was a significant motivating factor in the juror’s vote to convict

Answer 9

in civil case, an interested person 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 person is interested if they stand to gain or lose by judgment

Answer 10

allowed only on cross examination, generally not permitted on direct Allowed on direct if: - Elicit preliminary or introductory matter - Witness needs help responding because of loss of memory immaturity or physical or mental weakness - Witness hostile

Answer 11

GR: can't read testimony from a prepared memo - Writing used to refresh WHILE ON STAND the adverse party can have writing produced at trial , cross examine witness about writing, and introduce portions of the writing relating to the witness’s testimony into evidence - If refreshed BEFORE ON STAND only above options if ct decides justice requires - Failure to produce or deliver writing = judge must strike witness’s testimony and if justice requires declare a mistrial

Answer 12

- Witness has insufficient recollection to testify fully and accurately -Witness had personal knowledge of facts when record made - Record was made by the witness or under their direction , or adopted by witness - Record was made when matter was fresh - Record accurately reflects the witness’s knowledge ADVERSE PARTY CAN HAVE MEMO INTRODUCED INTO EVIDENCE

Answer 13

GR: inadmissible Requirements: - Rationally based on witness’s perception - Helpful to a clear understanding of testimony or determination of fact finder - Not based on scientific technical or other specialized knowledge Admissible if: General appearance/ condition of person State of emotion of a person Matters involving sense recognition Voice or handwriting identification Speed of moving object Value of witness’s own services or prop Rational or irrational nature of another’s conduct Person’s intoxication

Answer 14

To be admissible Subject matter must be one where specialized knowledge would assist the trier of fact Opinion must be based on sufficient facts or data Opinion must be product of reliable principles and methods Expert must have reliably applied the principles and methods to the facts expert must possess reasonable probability regarding their opinion. mere guess or speculation not sufficient opinion on ultimate issue Generally permitted, except testimony concerning D’s mental state in criminal case

Answer 15

Facts based on expert’s own observation Facts made known to expert at trial Facts supplied to expert outside courtroom that are of a type reasonably relied upon by other experts in the field

Answer 16

Testing of principle or methodology Rate of error Acceptance by other experts in same discipline Peer review and publication

Answer 17

scholarly treatise, periodical, or pamphlet Can be used to impeach expert and Admissible as substantive evidence Statements from learned treatise can be offered for their truth under hearsay exception if - Treatise est as reliable authority -Treatise called to expert’s attention on cross or relied upon by expert on direct and - Excerpt read into evidence

Answer 18

Generally Upon request, judge MUST exclude witnesses from courtroom can't exclude Party or party’s designated representative Person whose presence is essential Person statutorily authorized to be present

Answer 19

the process of discrediting a witness Forms: cross examination , extrinsic evidence (calling other witnesses or introducing doc thst prove the impeaching facts)

Answer 20

fact specific to the current case - prior inconsistent statements - bias - sensory deficiencies - contradiction general bad character for truthfulness - opinion or reputation evidence of untruthfulness - prior convictions - bad acts

Answer 21

- witness opportunity to explain or deny - adverse party opportunity to examine witness about statement

Answer 22

testifying witness's prior inconsistent statement made UNDER OATH at a prior proceeding, it is admissible nonnhearsay rationale: was under oath, and now subject to cross

Answer 23

has an interest in the outcome of a case tends to show that the witness has a motive to lie Foundation of extrincsic: must first be asked about the fact that show bias or interest on cross examination

Answer 24

Admissible on cross examination or by extrinsic evidence that their perception and recollection were so impaired

Answer 25

Arrest or indictment or pending review/ appeal doesn’t apply Types: - Any crime involving dishonesty or false statement : ct has no discretion to exclude - Felony not involving dishonesty or false statement: Remote conviction not admissible - More than 10 years have passed since date of conviction or release from confinement whichever is late - Ct may admit older conviction if its probative value substantially outweighs its prejudicial effect AND the proponent gives the adverse party reasonable written notice of their intent to use it Pardon - Conviction cant be used to impeach if pardon was based on rehabilitation and the witness has not been convicted of a subsequent felony or -The pardon was based on innocence

Answer 26

Extrinsic evidence prohibited : only brought out on cross examination Cross examiner cannot refer to any consequences the witnes may have suffered as a result of their bad act

Answer 27

- impeached to same extent as in court witness - Need not be given opportunity to explain or deny prior inconsistent statement

Answer 28

- Explanation on redirect - Good character for truthfulness ( reputation or opinion testimony) - Prior consistent statement -When witness attacked with charge of lying or exaggerating because of some motive, and statement predates motive -When witness impeached on other non-character ground ( inconsistency/ faulty memory) prior consistent statemnet that is admissible to rehabilitate a witness’s credibility also is admissible as substantive evidence if truth of its contents

Answer 29

An out of court statement offered for the truth of the matter asserted statement= oral or written assertion, nonverbal conduct intended as assertion out of court = statement not made by the declarant at the current trial or hearing

Answer 30

Verbal acts/legally operative facts (contract/ defamatory words) Effect on listener or reader ( prove notice in a negligence case) Circumstantial evidence of declarant’s state of mind ( party trying to prove someone’s insanity or knowledge)

Answer 31

GR: witness own prior out of court statement is hearsay and is inadmissible unless an exception applies Exceptions: One of identification Is inconsist and made under oath Is consistent statement

Answer 32

Gr:any statement by a party is admissible against that party= PARTY OPPONENT ADMISSION Whether in the party’s interest or against it Formal statements ( pleadings , stipulations) are conclusive Informal judicial admissions (such as during testimony or from a diff case) can be explained

Answer 33

party’s express or implied adoption of another’s statement can be used against them. Remaining silent in face of accusation can be used against them if ..... Party heard and understood it Party was capable of denying it Reasonable person would have denied it

Answer 34

authorized spokesperson employee/agent= w/i scope of employment, made during existence of relationship partner = relating to matters w/i scope of partnership co-conspirator= statement made in furtherance of conspiracy to commit crime at time when declarant participating in the consipracy are admissible against co-conspirators Privies in title and joint tenants ( state ct only)

Answer 35

Death or illness Privilege Refusal to testify despite ct order Inability to remember subject matter Absent and attendance cannot be procured

Answer 36

the testimony of a non-unavailable witness is admissible if Testimony was given under oath Party against whom testimony now being offered had opportunity and similar motive to develop testimony by direct, cross, or redirect

Answer 37

Statement against unavailable declarant’s pecuniary (money), proprietary(prop), or penal (criminal) interest when made , such that a reasonable person in the declarant’s position would have made it only if they believed it to be true Must have personal knowledge of facts Must been aware against their interest Against penal interest must be corroborate

Answer 38

Unavailable declarant Homicide prosecution or any civil case Declarant believed death iminent Statement concerned cause or circumstances

Answer 39

admissible if: - Declarant is member of or intimately associated with family - Statements are based on declarant’s personal knowledge of facts or family’s reputation

Answer 40

Unavailable declarant’s statement admissible against party who intentionally caused declarant to be unavailable Meets exception only if the party’s motivation was to prevent the declarant from testifying

Answer 41

Out of ct statement relating to a startling event, made while under the stress of the excitement from the event , is admissible

Answer 42

Describes or explains event or condition Statement must be made while or immediately after perceiving the event oor condition

Answer 43

Includes statements of then existing motive, intent, plan, and emotional, sensory, and physical condition Does not include statements of memory or belief State of mind incllues statement about the declarant’s intent to do something in the future Includes statement about their current physical condition

Answer 44

Statements describing medical history, past or present symptoms, or their inception or general cause Must be made for and reasonably pertinent to medical diagnosis or treatment

Answer 45

Record of act, event, condition, opinion, or diagnosis admissible if - Business: business, org occupation or calling - Entry made in regular course of business - business regularly keep such records - Entry made at or near time of event - Consists of matters within personal knowledge of entrant (or someone else who had duty to transmit information to entrant) Nonexsistence can be used to show it was the regular practice of the business to record all such matters

Answer 46

- activities of office or agency ( payroll) - matter observed pursuant to duty but not including police reports - records of factual finding against govt in criminal cases and both govt and D in civil actions

Answer 47

GR: admitted under public records exception even officer’s opinions and factual conclusions Not admissible against defendant in criminal case

Answer 48

Hearsay inadmissible if - Offered against criminal D - Declarant unavailable - Accused had no opportunity to cross- examine declarant about statement - Statement is testimonial

Answer 49

aid in ongoing emergency Factors : nature if the disput, whether perpetrator is still at large, scope of the treat to victim/public, type of weapon involved

Answer 50

to provide information for later prosecution Ex: affidavits, certificates, or other written reports that summarize findings of forensic analysis and have effect of accusing target are testimonial

Answer 51

attorney-client spousal immunity confidential marital communication psychotherapist/ socila worker - client clergy-pentinent governmental Physician -patient, accountant-client, professional journalist not a part

Answer 52

Applies to confidential communication , b/n atty and client, made during professional legal consultation, unless the privilege is waived or an exception is applicable Communications made in known presence and hearing od a stranger ar not privileged , representatives of atty or client may be present w/o destroying the privilege Disclosure made before atty accept or declines case are covered by the privilege Communication b/n client and doctor during an examination made at atty’s request protected under this privilege When joint clients have common interest, their communication with attty are not privileged if they sue each other

Answer 53

- Atty’s services sought to aid in crime or fraud Client put legal services at issue in the case For communication relevant to an issue of breach of duty in a dispute b/n atty and client No privilege regarding communication relevant to an issue b/n parties claiming through the same deceased client

Answer 54

Applies in criminal cases only Prevents D’s spouse from testifying against D in criminal case Must be a valid marriage Privilege last only during marriage -Must be married at time of trial -Witness-spouse holds privilege -Can’t be compelled to testify, spouse do so voluntarily Exceptions: Joint crime fraud Legal actions b/n spouses Spouse charged with crime against other spouse or either spouse’s children

Answer 55

Applies in any civil or criminal case Either spouse can claim privilege Spouse must have been married at time of communication -Privilege remains if they divorce Communication must have been confidential in nature -Threats or abuse not privilege or if made in presence of third party not privileged Exceptions: Joint crime fraud Legal actions b/n spouses Spouse charged with crime against other spouse or either spouse’s children

Answer 56

Official info not otherwise open to public may be privileged Gov’t holds privilege that protects the identity of an informer Privileged is waived if informer voluntarily waives

Answer 57

Burden of producing or going fwd with evidence -Usually who has burden of pleading -Making out a prima facile case Burden of persuasion -Civil cases: usually by preponderance of the evidence ( sometimes clear and convincing evidence) -Criminal cases- beyond a reasonable doubt

Answer 58

The ct recognizing a fact as true w/o formal presentation of evidence Mandatory if party formally requests it and provides necessary information Conclusive in civil case, nut not in criminal cases Facts appropriate for judicial notice are those not subject to reasonable dispute -Generally known within trial ct’s jurisdiction, or -Can be accurately and readily determined from sources that cannot reasonably be questioned Cts MUST take judicial notice of federal and state law and the official reg or the forum state and the federal gov’t Cts MAY take judicial notice of municipal oridinances and private acts or resolutions of congress or of the local state leg

Answer 59

When some or all of writing or recorded statement is admitted, adverse party may require proponent to introduce any other part, or any related writing or recorded statement, that ought in fairness be considered at the same time

Evidence Flashcards

(83 cards)