Evidence Flashcards
(26 cards)
silence as adoption
- the silent party was present and heard and understood the statement
- the silent party had the ability and opportunity to deny the statement and
- a reasonable person similarly situated would have denied the statement.
child-witness’s competency
he court should allow the testimony so long as the child has the capacity to:
- recall and narrate impressions of the occurrence at issue and
- understand the difference between the truth and a lie and the importance of telling the truth.
past recollection recorded
allows a record to be read into evidence if it:
- concerns a matter that a witness once knew but cannot recall at trial
- was made or adopted by the witness when the matter was fresh in his/her mind and
- accurately reflects the witness’s personal knowledge at the time it was made.
best evidence rule applies when
- the document is used to prove the happening of an event (e.g., video of bank robbery)
- the document has a legal effect (e.g., contract) or
- the witness is testifying based on facts learned from the document, as opposed to personal knowledge (i.e., knowledge based on firsthand observations or experience).
once the best evidence rule applies,
must produce the original or a reliable copy
lay witness testimony
the lay witness must have
(1) perceived the matter firsthand and
(2) have a present recollection of that observation.
judicial notice
may be taken for any adjudicative fact that is not subject to reasonable dispute bc (1) generally known or (2) can be accurately and readily det’d
can be taken at any stage of a proceeding, even on appeal, so long as it (1) is not unfair to the opposing party and (2) does not disrupt the fact finder’s auth
intrinsic evidence
the witness’s testimony. Can be used for impeachment, and is always admissible for hearsay purposes.
extrinsic evidence
everything other than the witness’s testimony.
Is admissible for impeachment only if the impeached witness had an opportunity to explain or deny—and the adverse party can examine the witness about—the statement.
prior inconsistent statement
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 had the opportunity to explain or deny, and the adverse party can examine the witness about, the statement.
hearing on admissibility of evi
must be conducted outside the jury’s presence if
(1) the matter involves the admissibility of a confession,
(2) a defendant in a criminal case is a witness and so requests, or
(3) justice so requires.
authenticating x-rays and electrocardiograms
requires proof that:
- the process for creating the evidence was accurate
- the machine that produced the evidence was working properly and
- the operator of the machine was qualified to operate it.
dead man’s statute
prevents a party in a civil case from testifying about a communication with a decedent whose estate is also a party when that communication would be adverse to the estate
former testimony
former testimony is admissible when
(1) decl unavailable
(2) testimony was given at a trial, hearing, or depo in the current case or in difference proceeding that involved similar parties and issued and
(3) the party against whom the testimony is offered had an opp and similar motive to dev that testimony on direct/cross
privilege against self-incrimination
The privilege against self-incrimination (1) protects a criminal defendant from being compelled to produce self-incriminating testimonial communications and (2) allows a witness, in both civil and criminal cases, to refuse to answer questions that the witness reasonably believes might incriminate him/her.
accomplice liability
arises when a person:
(1) intentionally aids or encourages another (ie, the principal) before or during a crime
(2) with the specific intent that the encouraged crime be completed.
Slight aid or encouragement will suffice, even when such assistance is not necessary to complete the crime
unavailable witness definition
A declarant is unavailable if
(1) he/she is absent from the trial or hearing and
(2) the proponent could not obtain the declarant’s attendance by subpoena or other reasonable mean
statements that affect an interest in property
Statements in documents that purport to affect a property interest are excepted from hearsay if
(1) the matter stated was relevant to the document’s purpose and
(2) later dealings with the property do not contradict the truth of the statement or the purport of the document.
doctrine of curative admissibility
The doctrine of curative admissibility allows otherwise inadmissible evidence to be admitted to rebut prejudicial evidence when
(1) the evidence was improperly admitted through no fault of the prejudiced party,
(2) that party objected to and moved to strike the evidence, and
(3) an instruction to disregard cannot remedy the prejudice.
when inadmissible evidence is improperly admitted against a party, the court may permit that party to introduce additional inadmissible evidence for the purpose of rebuttal. This is meant to remedy the prejudicial effect caused by the previously admitted evidence.
admissibility of prior sexual conduct in civil proceedings
Evidence of a victim’s other sexual behavior or sexual predisposition is generally inadmissible in a civil proceeding involving sexual misconduct. But such evidence may be admitted if the court determines that the probative value of the evidence substantially outweighs the danger of harm to the victim and unfair prejudice to any party.
public records exception
records or statements of a public office that set out:
(1) activities of the public office or agency
(2) matters observed pursuant to a legal duty to report, excluding observations of law-enforcement personnel in criminal cases or
(3) factual findings from a legally authorized investigation offered (1) in a civil case or (2) against the government in a criminal case.
nonhearsay
statement was
1) made or adopted by the party-opponent,
(2) made by a person the party-opponent authorized to make such a statement,
(3) made by the party-opponent’s agent or employee about a matter within the scope of that relationship and during the relationship, or
(4) made by the party-opponent’s coconspirator during and in furtherance of the conspiracy.
learned treatise exception
statement in learned treatise is admissible if”
(1)the statement is called to the attention of an expert witness on cross-examination or relied on by the expert on direct examination; and
(2) the publication is established as a reliable authority by the expert’s admission or testimony, by another expert’s testimony, or by judicial notice.
If admitted, the statement may be read into evidence but not received as an exhibit.
judge/jury determinations when best evidence rule is implicated
The court determines whether a party has fulfilled the factual conditions to admit other evidence to prove the content of a document.
But in a jury trial, the jury determines any issue of whether (1) an asserted document ever existed, (2) another document is the original, or (3) other evidence of content accurately reflects the content.
