Evidence Flashcards
(49 cards)
Can a criminal defendant introduce evidence that his character is inconsistent with the crime charge? How?
A criminal defendant may introduce evidence that his character is inconsistent with the crime charged, but only through reputation or opinion testimony—not specific instances of conduct.
Are questions about specific acts committed by a defendant permitted?
Questions about specific acts committed by the defendant are permitted because knowledge (or lack thereof) of the defendant’s past behavior goes to the witness’s credibility. But such questions must be asked by the prosecution in good faith. This means that questions based on a hunch will not suffice—even when the hunch proves accurate.
When is mimic evidence available? When can it be excluded?
Evidence of a criminal defendant’s prior crimes or bad acts may be admissible for relevant, noncharacter purposes (i.e., MIMIC evidence). However, this and other relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. 
When can a witness with a prior conviction be impeached?
Any witness can be impeached with evidence of a prior conviction for a crime involving dishonesty (e.g., embezzlement) if the conviction occurred within the previous 10 years.
When is a child’s competence?
A child’s competence to testify depends on the child’s intelligence, ability to differentiate between truth and falsehood, and understanding of the importance of telling the truth. And as a non-expert witness, the child must have personal knowledge of a matter to testify about it.
Can a lay person authenticate a persons handwriting?
A lay witness with personal knowledge of a claimed author’s handwriting may testify as to whether a document is in that person’s handwriting. However, the lay witness must not have become familiar with the handwriting for the purpose of the current litigation.
What is the best evidence rule?
The best evidence rule requires that the original document or a reliable duplicate be produced to prove the contents of a writing. But this rule applies only when a witness is relying on the document when testifying or the contents of the document are at issue.
When is evidence of remedial measure in admissible?
Evidence of a remedial measure is inadmissible if it was undertaken by the defendant after the plaintiff was injured. A remedial measure undertaken before the plaintiff was injured is not subject to exclusion.
The rule against hearsay bars the admission of an out-of-court statement made by a person—not a machine or animal—that is offered to prove the truth of the matter asserted therein.
A prior inconsistent statement is admissible nonhearsay if (1) it was given under penalty of perjury at a trial, hearing, deposition, or other proceeding and (2) the declarant testifies and is subject to cross-examination. It can also be introduced extrinsically for impeachment purposes if the witness has the opportunity to explain or deny, and the adverse party can examine the witness about the statement.
A witness can be impeached with evidence of self-interest or bias that may motivate the witness to testify falsely—e.g., benefits received in exchange for testimony.
A prior inconsistent statement is ALWAYS admissible for impeachment purposes, even if it’s hearsay. If she is under oath, then indication of reliability.
Under the hearsay exception for absent public records, testimony by a public official that a diligent search failed to disclose a public record is admissible to prove that the record does not exist—if the public office regularly kept records for a matter of that kind.
The rule of completeness applies when a party introduces all or part of a writing or recorded statement. It then allows an adverse party to compel the introduction of any other part—or any other writing or recorded statement—that in fairness should be considered at the same time.
The marital-communications privilege protects confidential communications made between spouses during the marriage. Under the majority view, either spouse may assert the privilege—even after termination of the marriage—and (1) refuse to testify about the communication or (2) prevent the other spouse from testifying.
Hearsay is an out-of-court statement offered for the truth of the matter asserted therein. Under the rule against hearsay, such statements are inadmissible absent an exclusion or exception. However, a statement that is offered for some other purpose does not implicate the hearsay rule and is therefore admissible without an applicable hearsay exclusion or exception.
Here, the plaintiff is offering the girlfriend’s statement to show how he was able to recall the date on which the accusations were published—not to prove that the friend in fact went to the movies on that day. Since the statement is not being offered for its truth, it is not barred by the hearsay rule. Therefore, the court should not strike the plaintiff’s testimony about the girlfriend’s statement from the record.
Character evidence is generally inadmissible when it is used to prove that a person acted in conformity with his/her character during the litigated event. But such evidence is admissible substantively in rare instances when character (or a character trait) is an essential element of a civil claim, criminal charge, or asserted defense—e.g., in a defamation action. In such cases, character evidence can be introduced by any party through either:
reputation or opinion testimony on that essential character trait or
specific instances of conduct (e.g., prior instances of adultery) demonstrating that trait.
Evidence of a person’s habit is admissible to prove that the person acted in accordance with that habit on a particular occasion.
Evidence of subsequent remedial measures is inadmissible to prove negligence or other culpable conduct. But a court may allow evidence of such measures for other limited purposes such as (1) resolving a dispute about the feasibility of precautionary measures, (2) impeaching a witness, or (3) proving ownership or control.
A lay witness may testify to any relevant matter of which he/she has personal knowledge. This means that the witness must have perceived the matter firsthand and have a present recollection of that observation.
A party can attack any witness’s character for truthfulness with reputation or opinion testimony OR with specific instances of conduct (SICs) that are probative of that character (Choice A). Only two types of SICs are admissible for this purpose: (1) convictions for a felony or crime of dishonesty and (2) other bad acts. However, a mere arrest does not qualify as a bad act that can be used to attack a witness’s character for truthfulness. That is because an arrest for misconduct is not itself misconduct.
Here, the witness was arrested for writing bad checks—an act that is probative of a person’s character for untruthfulness (Choice D). But the witness was never convicted due to a lack of evidence that he had committed the crime. And since the arrest alone cannot be introduced to attack the witness’s character for truthfulness, the prosecutor should not be allowed to ask the question.
The “then-existing state of mind” exception applies to statements about the declarant’s motive, intent, or plan. But this exception does not apply to mere statements of memory or belief—e.g., the nephew’s recounting of taking the woman’s car—unless they relate to the declarant’s will.
The statement against interest exception applies to hearsay statements that (1) are contrary to an unavailable declarant’s proprietary or pecuniary interest, (2) tend to invalidate the declarant’s claim against someone else, or (3) expose the declarant to civil or criminal liability. That is because a reasonable person in the nephew’s position would only make the statement if it were true since it exposed him to liability for conversion and the crime of larceny.
The “dying declaration” exception applies to statements that (1) were made while an unavailable declarant believed his/her death was imminent and (2) concerned the circumstances of that impending death. But here, there is no indication that the nephew believed his death was imminent, and his statement did not pertain to the circumstances of his death.
