Evidence Flashcards

Question

Similarity of occurences, admissible to prove

Answer 1

Causation, intent, rebut defense of impossibility, comparable sales price to establish value Habit evidence is admissible if: (1) describes a person's regular response, (2) to specific set of circumstances, (3) to prove person acted in conformity with the habit on a particular ocassion. Routine Business practice: evidence is admissible to show enttiy conduct in conformity with practice on occassion in question Industrial custom: evidence is admissible to prove standard of care

Answer 2

is usually irrelevant *Exception: P has a pattern of filing suits after faked accidents or P has a preexisting condition

Answer 3

witness testimony is reliable if witness can testify that he is: (1) competent and (2) has personal knowledge.

Answer 4

Every witness is presumed competent *CA Distinction: Witness must also understand legal duty to tell the truth

Answer 5

A witness must have observed the matter and presently recollect the observation **Present Recollection Refreshed: A witness may use any writing or thing for the purpose of refreshing her present recollection. The writing or thing is not authenticated or offered into evidence. **Past collection recorded: A witness may read a writing into evidence if: (i) the witness once had personal knowledge of the facts when written, (ii) now cannot remember, (iii) the document was made by the witness, under her direction, or adopted by her, (iv) the document was written at a time when the facts were fresh in the witness's memory, and (v) the document was accurate when made

Answer 6

(i) it is rationally based on (ii) the witness's perceptions, and (iii) it is helpful to the trier of fact Ex: permitted as to speed of cars, sanity, intoxication, emotions, value of witness's property

Answer 7

(i) it is helpful to a jury, (ii) witness must be qualified by the judge *Long term experience is OK does not need degree, (iii) witness must believe in opinion to a reasonable degree of certainty, (iv) opinion must be supported by a proper factual basis, and (v) opinion must be based on reliable principles that were reliably applied *For (v): FRE Daubert: (1) peer reviewed, (2) tested and is subject to re-testing, (3) low error rate, (4) a reasonable level of acceptance *CA Distinction: Kelly/Frye: Opinion must be based on principles generally accepted by experts in the field. FRE factors do not apply

Answer 8

Physical evidence must be authenticated by: (i) witness testimony by one with personal knowledge the evidence is what it is claimed to be, or (ii) the evidence has been held in a substantially unbroken chain of custody *Big breaks in chain of custody not OK, small rbeaks ok

Answer 9

authenticity is established if: (i) the doc is 20 years old *CA distinction: 30 years old, (ii) does not facially show any irregularities, and (iii) was found in a place where it was expected to be found

Answer 10

the following docs do not need to be authenticated by pleading, stipulation, admission, or testimony: * certified copies of public records * official publications * newspapers and periodicals * trade inscriptions (ie TMs) * Acknowledged documents * commercial paper * certified business records * family portraits, bibles, birth certificate (photo copy OK)

Answer 11

**CA Distinction: Secondary Evidence Rule To prove contents of a writing, the original must be produced if: (i) testimony is reliant on the writing, or (ii) it is a legally operated document, unless it is unavailable because the original was lost, or destroyed without bad faith of proponent * A writing includes docs, videos, x-rays, audio recordings, CDS or tangible collection of data *Photocopies or duplciates, which are an exact copy of the doc are admissible as the photocopies original unless there is some reason to question accuracy * Exception: a summary for voluminous records is OK; public records are OK if certified

Answer 12

In civil cases, character evidence is inadmissible, unless it goes to an ultimate issue, then reputation, opinion, and specific acts are admissible as substantive evidence. Examples: *defamation, negligent entrustment, fraud, child custody

Answer 13

In criminal cases, the prosecution may not initiate evidence of D's bad character merely to show he is more likely to commit the crime charged, unless D puts his character at issue. *Exception: Prosecution may initiate evidence of D's sexual misconduct in child molest/sexual assault cases, via reputation, opinion, or specific acts **CA distinction: Prosecution may initiate evidence of D's prior acts of domestic violence

Answer 14

allows D to introduce evidence of his good character by reputation or opinion evidence. *Prosecution can rebut with reputation, opinion, or specific act evidence of D's conduct when cross-examining witnesses, but no extrinsic evidence is allowed *Prosecution may introduce bad reputation or opinion evidence for D by calling their own witness, but no specific acts are allowed *CA Distinction: Prosecution may only rebut by using reputation or opinion evidence

Answer 15

D may introduce evidence of V's bad character by reputation or opinion testimony *Prosecution may use reputation, opinion, or specific acts to show Vs good character *CA Distinction: D may introduce evidence of Vs bad character by reputation, opinion or specific act evidence

Answer 16

In rape cases, V's past sexual behavior is admissible, unless, used to prove: (i) other source of semen (ii) past consensual sexual activity beween D and V

Answer 17

Prosecution may offer evidence of a trait of D if D already introduced evidence of that same trait in V *CA Distinction: Only D's trait for violence may be shown once D shows V is violent *Under FRE only, in homicide cases only, may the prosecution show V is peaceful after D has shown V to be violent

Answer 18

Character evidence is inadmissible to prove propensity for conduct in conformity therewith on a particular occasion. It can be offered by: (1) evidence of specific acts, (2) opinion testimony, (3) or testimony as to the person's general reputation EXCEPTION: MIAMI KOPPS *Motive *Intent *Absence of Mistake *Identity *Knowledge *Opportunity *Preparation *Common Plan or *Scheme

Answer 19

the casting of an adverse reflection on the veracity (ie truthfulness) of a witness. A W may be impeached on cross-examination OR by extrinsic evidence (put another W on the stand who will introduce facts discrediting the prior testimony). * foundation must be laid during cross-x before extrinsic evidence introduced * A party cannot bolster his own W with prior consistent statements or evidence of good character until that W has been impeached * No impeachment on collateral matters, waste of time

Answer 20

Can ask a third party about his OPINION as to W's honesty or about Ws reputation in the community

Answer 21

Probative of truthfulness on cross-examination *Questions must be asked in good faith *CANNOT ask about arrests and cannot use extrinsic evidence *CA Distinction: Specific bad acts involving moral turpitude are admissible only in criminal cases, BUT court can balance (extrinsic evidence permitted)

Answer 22

Proof of prior convictions can be used to impeach (must be conviction, not just arrest/indictment) Crimes must be either: * Crime of dishonesty/false statement (any crime) OR *Not subject to balancing: no judicial discretion to exclude the crime *CA Distinction: Subject to balancing: judicial discretion (exclude if probative value is substantially outweighed by prejudicial effect) *Any Felony: even not involving dishonesty, UNLESS it has been 10 years since the date of conviction or date of release from jail *subject to balancing *CA Distinction: ALL felonies and/or misdemeanors are admissible for crimes involving moral turpitude *NOTE: cannot use prior convictions if D was acquitted

Answer 23

W can be impeached (on cross or via extrinsic evidence) by showing that he has an impaired ability to perceive things (ie bad hearing, wears a hearing aid/glasses, etc.)

Answer 24

Used to show that W has a reason to lie (ie W is related to D, W made plea deal, or D gave money to W) *Can use extrinsic evidence to show bias IF: - W is asked about the facts suggesting bias first (lay foundation) - If that foundation is laid, even evidence that would otherwise be inadmissible can be used for impeachment (ie liability insurance, prior arrests, etc.)

Answer 25

A party may show (on cross or via extrinsic evidence) that W has, on another occasion, made statement that are inconsistent with present testimony * Extrinsic Evidence admissible ONLY IF: W is given chance to explain; AND The foundation is laid *Exception: Inconsistent statements by hearsay declarants can be used to impeach DESPITE a lack of foundation

Answer 26

An impeached W can explain or clarify facts brought out on cross via a re-direct *Evidence of bias can be rebutted with evidence of prior consistent statements made before the bias arose * evidence of bad character can be rebutted with evidence of good character

Answer 27

(1) a communication between an attorney and client or client-representatives *CA Distinction: Privilege applies to communications from employees/agent if she is the natural person to speak to the lawyer on behalf of the corporation in the matter, or employer/agent did something for which corp may be liable (2) intended by client to be confidential (3) made to facilitate legal services (4) is privileged in all criminal and civil cases (5) applies after representation, if lawyer is fired, or after client dies, and *CA Distinction: Privilege continues after death but not once estate of dead client is distributed and executor is discharged (6) client is the holder of the privilege, but atty must assert on their behalf **Exceptions: (i) Waiver by client (ii) legal services sought to further what client knew or should have known to be a crime or fraud *CA Distinction: privilege does not apply if disclosure would prevent crime that would result in death or GBH (iii) communication relates to alleged breach of duty between lawyer and client (iv) Two or more parties consult an attorney on a matter of common interest and the communication is offered by one of these parties against another

Answer 28

(1) a communication between psychotherapist and patient, or licensed social worker and client (2) intended to be kept confidential (3) made to facilitate the rendition of professional services (4) is privileged in all civil and criminal proceedings *CA Distinction: privilege is allowed in crim cases *CA Distinction: other privileges only in CA: counselor-victim of sexual assault/DV, penitential communications between penitent and clergy, immunity for news report who refuses to disclose services Exceptions i) where patient puts physical or mental condition at issue ii) where professional services sought to aid in crime or fraud iii) malpractice action iv) privilege does not apply if psychotherapist has reasonable cause to believe that the patient is a danger to himself or others and disclosure is necessary to end teh danger

Answer 29

No FRE Privilege; CA Distinction privilege exists (1) patient has a privilege (2) to prevent disclosure of information (3) confidentially conveyed to a physician (4) for the purposes of obtaining diagnosis or treatment, and (5) the information was pertinent to diagnosis or treatment (6) in a civil action only *Exceptions (i) where the patient puts physical condition at issue (ii) where physician's services sought to aid in crime or fraud or escape capture after a crime or tort (iii) malpractice action between doctor and patient CA Distinction: privilege does not apply in criminal cases OR to information that the doctor is required to report to public office (ie gunshot wounds and diseases)

Answer 30

(1) in a criminal case *CA distinction: applies to civil and criminal cases; spouse has privilege not to be called on stand (2) D's spouse (3) has the right to refuse to testify against D (4) during marriage (5) regarding any matter before and during marriage, including observarions and impressions

Answer 31

(1) in a civil or criminal case (2) confidential communications, both verbal and written (3) made in reliance upon the intimacy of marital relationship (4) between husband and wife **both spouses hold the privilege so can prevent the other spouse from disclosing (5) during the marriage are priviliged **privileges survive divorce

Answer 32

(1) Statement has independent legal significance: if statement is not offered to prove truth of matter asserted and is legally operative, not HS. (2) statement offered to show effect on listener: statement offered to show person was on notice of something and may have reacted a certain way is not HS. (3) Statement is circumstantial evidence of declarant's state of mind: to show the declarant's state of mind are not HS if it shows: (1) knowledge, (2) intent, (3) attitude, or (4) belief of declarant (4) Prior sworn inconsistent statement: if prior, sworn statement, is inconsistent with declarant's current in-court testimony, it is non-hearsay and admissible for impeachment and substantive evidence (5) Prior consistent statement: A prior consistent statement with witness' current testimony is non-hearsay and admissible for impeachment and substantive evidence, if it is offered to rebut a charge of bias or improper motive, so long as prior statement was made before alleged bias came up (6) Prior ID: non-hearsay if: (1) declarant is currently testifying, (2) subject to cross-examination, and (3) statement was one of ID of a person made after perceiving that person (7) Admission by party opponent **cluster with statement against interest: an admission by party opponent is an out of court statement or conduct made by a party offered as evidence against him. *Distinguish: unlike a statement against interest, an admission need not be against declarant's interest at time time it is made, thus, even a statement that seems neutral or self-serving at the time it is made made by introduced against party who made it; statement against interest may be made by anyone while admission by party opponent must be made by a party **CA Distinction: An admission by party opponent is a HS exception not exemption

Answer 33

HS is an out of court statement offered for the truth of the matter asserted. Such evidence is inadmissible, subject to certain exemptions or exceptions. If evidence is nto offered for its truth it is not hearsay and is admissible. *Statements: Statement: may take the form of assertive conduct but must be made by a human *out of court

Answer 34

An adoptive admission is made when someone remains silent in the face of an accusation if: (i) the party heard and understood the statement, (ii) the party was physically and mentally capable of denying the statement, and (iii) a reasonable person would have denied the accusation

Answer 35

Vicarious admissions are admissible non-hearsay statements if they are made by: (i) persons who are expressly or impliedly authorized to make the statement, (ii) agents/employees acting within the scope of employment, during the employment relationship, (iii) co-conspirators during, and in furtherance of, the conspiracy, or (iv) by joint partners in a venture *CA distinction: Employer is liable for employee's words only if he is also liable for employee's negligent conduct.

Answer 36

A declarant is unavailable if a privilege applies, he suffers memory loss, he refuses to testify, he is incapacitated, he cannot be found, or he is deceased. *CA Distinction: Does not include memory loss or refusal to testify

Answer 37

Testimony is admissible if made by an unavailable witness: (i) testimony was given at an earlier hearing or deposition (ii) party against whom the testimony is now offered was present earlier *Civil case: party's predecessor in interest may be present (iii) the party against whom the testimony is now offered had the opportunity to develop the testimony (ie cross examine), and (iv) party against whom the testimony is now offered had a similar motive to develop the testimony *Grand jury testimony is never allowed because no opportunity to cross-examine *CA Distinction: In a civil case, a party may introduce former testimony against a party who was not a party in earlier proceeding, so long as: (1) a party had an opportunity to cross-examine (2) the former testimony is offered against person who offered it on their behalf, or (3) the former testimony is offered against a successor in interest

Answer 38

a statement made by an unavailable witness that concerns the cause or circumstances of his own death or an imminent belief that his death is about to occur is admissible. Declarant need not actually die. *CA distinction: declarant must actually die, admissible in civil/criminal cases

Answer 39

a statement made by an unavailable witness, which at the time it was made, was so contrary to the declarant's pecuniary, proprietary, or penal interest, that a reasonable person would not have made the statement unless it was true. *CA Distinction: Includes statements against social interest if it subjects declarant to hatred, ridicule, or social disgrace in teh community

Answer 40

A statement made by an unavailable witness is admissible if declarant is a member of the family in question or intimately associated with it and is based on his personal knowledge regarding births, marriages, divorces, deaths or relationships

Answer 41

*cluster with PSI A statement relating to a startling event or condition, made while declarant is still under the stress of excitement, that is caused by the event or condition is admissible CA Distinction: Spontaneous statement

Answer 42

A statement describing or explaining an event or condition, made while declarant perceived the event or condition or immediately thereafter is admissible *CA Distinction: Must be a contemporaneous statement (ie statement made while declarant was engaged in that conduct) *CA Distinction OJ Exception:A statement describing infliction or threat of physical abuse, made at or near the time of injury/threat, that explains the infliction or threat, in a writing/recording made to a police officer or medical professional, is admissible

Answer 43

a statement of a declarant's present bodily condition or symptoms, made to a layperson, is admissible

Answer 44

A statement of a declarant's past or present bodily condition, when made to a physician, who is treating him, when related to the cause of the injury and not fault, is admissible * A statement of a declarant's past or present bodily condition, made to a physician, who was consulted to testify, about the patient's condition at trial, is admissible *CA Distinction: Past bodily conditions are only admissible if declarant is a minor. This section applies only to a statement made by a victim who is a minor at the time of the proceedings, provided the statement was made when the victim was under 12 describing any act, attempted act, or child abuse or neglect

Answer 45

a statement of declarant's presently existing state of mind, emotion or sensation is admissible when the declarant's state of mind is directly at issue

Answer 46

TIP: raise under reliability > personal knowledge also TIP: cluster with present recollection refreshed if double hearsay issue *A written record of an event, made shortly after event occurred, will be admissible if: (i) the witness once had personal knowledge of facts when written (ii) now cannot remember (iii) doc was made by the witness, under her direction, or adopted by her (iv) doc was written at a time when facts were fresh in W's memory and (v) doc was accurate when made

Answer 47

admissible if: (i) record was made in routine course of business *record cannot be in anticipation of litigation (ii) record was made by, or from information supplied, by a person with personal knowledge who is working in the business, and (iii) the entry was made at or near time of matter * Record may be admitted to show that particular entry is absent, if such an entry would normally have been made had a particular event occurred * CA Distinction: does not allow opinions or diagnoses

Answer 48

admissible if: (i) record describes activities and policies of public office (ii) record describes matters observed pursuant to duty imposed by law. or (iii) record contains factual findings resulting from investigation authorized by law, unless untrustworthy (iv) admissible in civil cases only, inadmissible in crim cases *CA distinction: legally authorized investigative reports are admissible in rim cases

Answer 49

Admissible if: (i) it is a public record or report (ie birth/death/marriage cert, police report, unless there is a double hearsay issue) *CA Distinction: police reports are admissible (ii) records of vital statistics, or (iii) it is a certified copy of a judgment *Felony convictions are admissible in criminal actions, but civil judgments are inadmissible in crim actions *CA Distinction: certified copies of judgments are admissible in civil actions

Answer 50

Admissible if: (i) an expert testifies treatise is authoritative *if expert refuses to admit publication is authoritative, another witness must establish its as an authority (ii) either on direct or cross CA distinction: only admissible to show matters of general notoriety or interest

Answer 51

Admissible if: (i) doc is 20 years old (CA: 30) (i) does not facially show any irregularities, and (iii) was found in a place where it was expected to be found

Answer 52

HS within HS. For the entire statement to come in, all levels of HS must be admissible *TIP: start with the source of the statement, and work your way to the last person who made the statement

Answer 53

the federal court has discretion t admit HS evidence if : (1) statement is trustworthy (2) it is strictly necessary to the case, and (3) there is adequate notice to the other party/

Answer 54

Even if HS statement is admissible, the CC may exclude statement if: (i) declarant does not testify at trial (ii) declarant is now unavailable (iii) statement is testimonial **Testimonial statements are made to further police investigations or aimed at producing evidence or prosecution *Statements made to police to deal with an on-going emergency are non-testimonial (iv) D had no opportunity to cross-examine declarant

Answer 55

judicial notice is the recognition of a fact as true without formal presentation of evidence *Courts may take judicial notice of indisputable facts that are either: (1) matters of common knowledge in the community or (2) capable of accurate and ready verification by resorting to accessible sources of unquestionable accuracy *Courts must take judicial notice if it is: (1) requested by a party, and (2) supplied with necessary information *If a court takes judicial notice in a crim case, the jury must be instructed the fact is not conclusive and the jury may, at its discretion, accept the judicially noticed fact *if a court takes judicial notice in a civil case, the jury must accept judicially noticed facts as conclusive *CA Distinction: Facts that are judicially noticed are conclusive in BOTH civil AND crim cases (however, may be subject to 6th AM challenges)

Evidence Flashcards

(79 cards)