Evidence Flashcards
(131 cards)
1
Q
What are the 3 sources of evidence law?
A
1) State common law and miscellaneous state statutes, 2) Comprehensive state evidence codes, and 3) the Federal Rules of Evidence
2
Q
What rules govern on the MBE
A
FEDERAL RULES not the common law
3
Q
What is relevant evidence?
A
Evidence that tends to prove (probativeness) any fact or consequence to the action (materiality).
4
Q
Relevance question approach
A
1) Determine whether the evidence is relevant; if so then 2) Determines whether the evidence should nonetheless be excluded bases on i) judicial discretion; or ii) public policy
5
Q
When is evidence relevant?
A
When it tende to make the existence of any fact of consequence to the outcome of the action more proabable than it would be without the evidence.
6
Q
General Rule of Relevance
A
Must relate to the time, event, or the person involved in the present litigation
7
Q
Certain Similar occurrences that are relevant
A
1) Causation 2) Prior False Claims or Same Bodily Injury 3) Similar Accidents or Injuries cause by same event or condition 4) Previous similar acts admissible to prove intent 5) Sales of Similar property 6) Habit 7) Industrial or Business Routine 8) Industry Custom as Evidence of Standard of Care 9) Rebutting Claimof Impossibility
8
Q
Prior False Claims of Same Bodily Injury
A
Relevant to prove that: 1) The present claim is likely to be false, or 2) the Plaintiff’s condition is attributable in whole or in party to the prior injury
9
Q
Similar Accidents or Injuries Caused by Same Event or Condition
A
Admissible to Prove: 1) Existence of a dangerous condition; 2) The the Defendant had knowledge of the dangerous condition; and 3) The dangerous condition was the cause of the present injury.
10
Q
Relevant eveidence excluded for public policy reasons
A
1) Liability insurance (to show negligence or ability to pay) 2)Subsequent remedial measures (to show neg culpable conduct, defect in product or design, need for warning or instruction) 3) Settlement Offers and Withdrawn Guilty Pleas 4) Offers to Pay Medical Expenses
11
Q
When can Character Evidence be offered as substantive, rather than impeachment?
A
1) Prove character when it is the ultimate issue in the case; or 2) serve as circumstantial evidence of how a person probably acted (most heavily tested).
12
Q
Means of proving character
A
1) Evidence of specific acts; 2) Opinion testimony of a witnedd who knows the person; and 3) Testimony as to the person’s general reputation in the community
13
Q
Is character evidence usually admissible in civil cases?
A
NO - unless character is directly in issue (defamation)
14
Q
Criminal case - Who can initiate character evidence?
A
Accused! Prosecution cannot initiate evidence of bad character of the Defendant merely to show that she is more likely to have committed the crime.
15
Q
How does Defendant Prove Character
A
A witness for the defendant may testify as to the defendant’s good reputation for the trait in question and may give his personal opinion on that trait
16
Q
How prosecution rebuts D’s character evidence?
A
ONLY ONCE THE D OPENS THE DOOR! 1) Cross-x the character witness (have you heard about the time john hit matt?) 2) Calling qualified witnesses Important to know: CANNOT INTRODUCE EXTRINSIC EVIDENCE OF MISCONDUCT during cross
17
Q
When Can D introduce repuation or opinion evidenc of a bad character trait of a victim?
A
When it is relevant to show the D’s innocence NOT IN RAPE CASES
18
Q
Is evidence of other crimes or misconduct by the defendant admissible to establish a crimainl disposition or bad character?
A
NO - unless the evidence of the other crimes or misconduct are relevant to some issue other than the D’s character or dispositon And MIMIC
19
Q
What are the issues for which evidence of prior acts of misconduct is admissible?
A
Motive, Intent, Mistake (absence of), Identity, Common plan or scheme MIMIC
20
Q
Requirments for the admissibility of the prior acts of misconduct
A
1) Must be sufficient evidence to support a jury finding that the D committed the prior act, and 2) its probative value must not be substantially outweighed by the danger of unfair prejudice
21
Q
Facts appropriate for judicial notice
A
Indisputable facts that are common knowledge in the community or capable of verification
22
Q
Procedural aspects of Judicial notice
A
If court doesn’t take judicial notice, a party must formally request that notice be taken of that fact. Judicial notice may be taken for the first time on appeal. Federal rules provide that judicially noticed fact is conclusive in a civil case but not in a criminal case.
23
Q
Must Courts take judicial notice of federal and state law and the official regulation of the forum state and the federal government?
A
Yes
24
Q
What legal Requirements in addition to being relevant must real evidence meet?
A
1) Authentication ((i) Testimony of a witness that recognizes the object as what the proponent claims it is (ii) Evidence that the object has been held ina substantially unbroken chain of possession)) 2) Condition of Object 3) Balancing test
25
Authentication of Documentary evidence
Must be authenticated by proof that shows that the writing is what the proponent claims it is. Proof must be sufficient to support a jury finding of genuineness
26
Authentication of Handwriting Verifications
May be done by; 1)The opinion of a nonexpert with personal knowledge of the alleged writer's handwriting; or 2) The opinion of an expert who has compared the writing sampled of the maker's handwriting. 3) By the trier of fact through comparison of samples
27
Authentication of Ancient Documents
1) At least 20 years old; 2) In such condition as to be free from suspicion as to authenticity; and 3) Was found in a place where such a writing would likely be kept
28
Authentication of Photographs
Generally - admissible only if ID'd by witnedd as a portrayal of certain facts relevant to the issue and verified by witness as correct rep of those facts
29
Unattended camera - authentication
May be admissible upon showing that the camera was properly operating at the relevant time and photo was developed from film obtained from that camera
30
Self-Authenticating Documents
1) Certified copies of public records; 2) Official publication; 3) Newspapers and periodicals; 4) Trade inscriptions; 5) Acnowledged documents; 6) Commercial paper and related docs; 7) Certified business records
31
Best Evidence Rule
To prove the terms of a writing the original writing must be produces if the terms of the writing are material. Secondary evidence of the writing is admissible only if the original is unavailable
32
Applicability of the Best Evidence Rule
1) The writing is a legally operative or dispositive instrument; of 2) The knowledge of a witness concerning a fact results from having read it in the document.
33
Nonapplicability of the Best Evidence Rule
1) Fact to be proved exists independtly of writing; 2) Writing is collateral (minor) to litigated issue; 3) Summaries of voluminous records; 4) Public Records
34
Definition of Writings, Original, and Duplicate
Original - Writing itself or any copy that is intended by the person executing it to have the same effect as an original. Duplicate - An exact copy of an original, made by mechanical means. Duplicates are admissible in federal courts unless the authenticity of the original is challeneged or 403.
35
Photocopies vs Copies made by hand
Photocopies are treated same as originals. Copies made by hand are considered secondary evidence.
36
Admissibility of Secondary Evidence of Contents
May offer if original cannot be produces along with a satisfactory explanation for the nonproduction of the original (can also use alternative modes; deposition; written admission; testimony)
37
Satisfactory Foundation for admissibility of secondary evidence
1) Loss or destruction of original; 2) Original is in possession of a 3rd party outside the jurisdiction and it unobtainable; 3) Original is in the possession of an adversary who, after due notice, fails to produce the original
38
Jury's role in admissibility of secondary evidence
1) Did the original ever exist? 2) Is the writing, recording, or photograph produces at trial an original; and 3) Whether the evidence offered correctly reflects the contents of the original.
39
When does the Parole Evidence Rule NOT apply?
1) Incomplete or Ambiguous K; 2) Reformation of K; 3) Challenge to Validity of K
40
When does the Parole Evidence Rule apply?
To show that the K is VOID or VOIDABLE
41
Federal Rules of Competency of Witnesses
1) Witness must have personal knowledge of the matter about which he is to testify; and 2) The witness must declare that he will testify truthfully
42
Competency of Infant and Insane
Infant - depends on the capacity and intelligence of the particular child as determined by the JUDGE Insane - Must understand the obligation to speak truthfully and has the capacity to testify accurately
43
Can Judge and Jurors testify as witnesses?
NO - as to the case they are sitting on
44
Dead Man Acts
A party or person interested in the event is incompetent to testify to a personal transaction fo comunication with a deceased, when such testimony is offered against the representative or successors in interest of the deceased.
45
When is a person "interested" in Dead Man Act?
If he stands to gain or lose by the judgment or the judgment may be used for or against him ina subsequent action. A predecessor in interest of the interested party is also disqualified.
46
When are leading questions permitted?
1) On cross-x 2) To elicit preliminary or introductory matter; 3) When the witnedd needs aid to respond because of loss of memory, immaturity, or physical or mental weakness; or 4) When the witness is hostile
47
Improper Questions to ask a witness
Misleading, Compound, argumentative, conclusionary, cumulative, unduly harassing or embarrsing, call for a narrative answer or speculation, or assume facts not in evidence
48
When may answers to improper questions be stricken?
Answers that lack foundation; and answers that are nonresponsive
49
Use of Memoranda by Witness
1) Present Recollection Revived - Refreshing Recollection; 2) Past Recollection Recorded - Recorded Recollection; 3) Inspection and Use on Cross-x
50
Present Recollection Revived - Refreshing Recollection
A witnedd may use any writing or thing for the purpose of refreshing her present recollection. Usually cannot read from the writing (not authenticated)
51
Past Recollection Recorded - Recorded Recollection
After refresh doesn’t work, writing may be read into evidence.
52
Recorded Recollection Foundation
1) Personal Knowledge; 2) Made by the witness or adopted by the witnedd; 3) Timely Made (fresh in witness' mind); 4) Accurate; and 5) Witness has insufficient recollection to testify fully and acurately
53
Opinion Testimony by Law Witnesses
Generally - inadmissible
54
Admissibility of Opinion testimony by Lay Witnesses
1) Rationally based on the witness's perception; 2) Helpful to a clear understanding of his testimony or helpful to the determination of a fact in issue; and 3) Not based on scientific, technical, or other specialized knowledge.
55
Situations Where Opinions of Lay Witnesses are Admissible
1) General appearance of condition of a person; 2) State of emotion of a person; 3) Matters involving sense recognition; 4) Voice or Handwriting ID; 5) Speed of a moving object; 6) Value of his own services; 7) Rational or irrational nature of another's conduct; and 8) Intoxication of another
56
Can lay witnesses provide their opinion as to whether one acted as an agent or whether an agreemnt was made?
NO
57
Admissibility of Opinion Testimony by Expert Witnesses
1) Subject matter is one where technical or specialized knowledge would assist the trier of fact (trier of fact makes this determination); 2) Witness is qualified as an expert; 3) Expert possesses reasonably probability regarding his opinion; and 4) Opinion is supported by proper factual basis.
58
What sources may an expert's opinion be based on?
1) Personal Observation; 2) Facts made known to the expert at trial; or 3) Fact now known personally but supplied to him outside the courtroom and of a type reasonably relied upon by experts in the particular field
59
Limitation on Expert providing opinion on ultimate issue?
Criminal case where D's menatl state constitutes an element of the crime or defense.
60
Use of Authoritative Texts and Treatises
Used for impeachment and substantive evidence.
61
Limitations on authoritative texts and treatises being entered as substantive evidence.
1) An expert must be on the stand when an excerpt is read from a treatise; and 2) The relevant portion is read into evidence but is not received as an exhibit
62
What is Cross Examination Limited to?
1) Scope of direct; and 2) Testing the credibility of the witness.
63
Can a party bolster or accredit the testimony of their witness?
NOT BEFORE IMPEACHMEN
64
Can a party impeach their own witness?
YES - No restriction
65
Impeachment Methods - Procedure
Cross-x and Extrinisic Evidence
66
Impeachment Methods - Substance
1) Prior Inconsisten Statements; 2) Bias or Interest; 3) Conviction of a crime; 4) Specific Instances of Misconduct - Bad Acts; 5)Opinion or Reputation Evidence for Truthfulness; 6) Sensory Deficiencies; 7) Constradictory Facts
67
Prior Inconsistent Statements - proper foundation for extrinsic
None under the Federal Rules
68
Evidentriary Effect of Prior Inconsisten Statements
Usually, prior inconsistent statements are hearsay, admissible only for impeachment purposes. If, however, the statement was made under oath at a prior proceeding, it is admissible nonhearsay and may be admitted as substantive evidence of the facts stated.
69
Bias or Interest - Foundation for Extrinsic Evidence
Must first be asked about the facts that show bias or interest on Cross-x
70
Conviction of a crime - impeachment
No foundation is necessary to introduce evidence of a CONVICTION Any crime involving dishonesty - may be impeached for any crime involving dishonesty. Court has no discretion to bar impeachment by these crimes
71
Impeachment by conviction of a crime - felony not involving dishonesty
Court has discretion to exclude this evidence if: 1) The witness is a criminal defendant, and the prosecution has not shown the conviction's probative value outweighs its prejudicial effect; or 2) All other witnesses, the court determins that the conviction's probative value is substantially outweighed by its prejudicial effect
72
Limit on conviction evidence for impeachment purposes
10 years have elapsed since conviction, juvenile convications, conviction obtained in violation of D's constitutional rights, pardon (if pardon is based on innocence, or the person pardones has not been convicted of a subsequent felony
73
Specific Instances of Misconduct - Bad Acts Foundation Requirement
If cross-examiner inquires in good faith witness may be interrogated upon cross-x with respect to an act of misconduct only if the act is probative or truthfulness. Extrinsic Evidence is NOT PERMITTED
74
Sensory Deficiencies - Impeachment
Either on cross-x or extrinsic evidence that faculties of perception and recollection were so impaired as to make it doubtful that he could have perceived those facts.
75
Contradictory Facts - Extrinsic evidence permitted where:
1) The witness's testimony on a particular fact is a material issue in the case; 2) the testimony on a particular fact is significant on the issue of credibility; or 3) The witness volunteers testimony about a subject as to which the opposing party would otherwise be precluded from offering evidence
76
Impeachment of Hearsay Declarant
Credibility of someone who does not testify but whose out-of-court statement is introduced at trial may be attacked by evidence that would be admissible if the declarant has testified as a witness. Declarant need not be given the opportunity to explain or dent statement. Declarant may be called as a witness to cross-x about the statement
77
Rehabilitation of impeached witness
1) Explanation on Redirect; 2) Good reputation for truthfulness; 3) Prior Consistent Statement (only if impeachment was based on lying or exaggerating)
78
Obejctions
After the question but before the answer; as soon as answer is determined inadmissible, MOVE TO STRIKE
79
Failure to object
Deemed a waiver of any ground for objection.
80
General Objections on Appeal
Sustained on appeal will be upheld if there was any ground for the objection; overruled on appeal upheld unless evidenc was not admissible under ANY circumstances
81
Opening the Door
Once a subject is introduced, party who offers it cannot complain if adversary offers evidence on same subject
82
Introducing part of the transaction
Adverse party may require proponent of the evidence to introduce any other part that out in fairness to be considered
83
Motion to strike - unresponsive answers
Examining counsel yes, opposing counsel no
84
Federal Rules of Testimonial Privileges
Attorney-client, spousal communications, and psychotherapist/social worker-client privlege. In diversity cases state law of privilege applies
85
Persons who may assert privilege
Privilege is personal to the holder. Sometimes person with whom the confidence was shared may assert eh privilege on the holder's behalf
86
Confidentiality - Privilege
Communication must be shown or presumed to have been made in confidence
87
Privilege is waived by:
1) Failure to claimt he privilege; 2) Voluntary disclosure of the privileged matter by the privilege holder; or 3) a contractual provision waiving in advance the right to claim a privilege
88
Attorney-Client Privilege
1) Attorney-Client Relationship; 2) Confidential Communication (reps of attorney or client is OK); 3) Client holds the privilege (attorney cannot waive); 4) Privilege applies indefinitely (even after client dies)
89
When does the Attorney-Client Privilege NOT APPLY?
1) If attorney's services were sought to aid in the planning or commission of soemthing the client should have known was a crime or fraud; 2) Parties claiming throught he same deceased client; and 3) Communication relevant to an issue of breacj of duty in a dispute between the attorney and the client
90
Limitations on Waiver of Attorney-Client Privilege
If party voluntarily waives by disclosing - waiver only applies to those documents; unless it touches the same subject matter and the material should be considered together to avoid unfairness.
91
Physician-Patient Privilege
Belongs to the patient if confidential and: 1) A professional relationship exists; 2) Information is acquired while attending the patient in the course of treatment; and 3) the information is necessary for treatment (nonmedical information is not privileged)
92
When Physician-Patient Privilege does not apply or impliedly waived if:
1) Patient puts his physical condition in issue; 2) Physician's assistance was sought to aid wrongdoing; 3) Communication is relevant to an issue of breach of duty in a dispute between the physician and patient; 4) Patient agreed by K (insurance policy) to waive the privilege; or 5) Federal case applying the federal law of privilege
93
Husband-Wife Privilege
Spousal immunity and Privilege for Confidential Marital Communications
94
Spousal Immunity
Marrier person whose spouse is a D in a criminal case may not be called as a witness by the prosecution. Cant testify against spouse in ANY criminal proceeding, regardless of whether the spouse is the D. Privilege lasts only during marriage - divorse severs. Privilege belongs to the witness-spouse
95
Privilege for Confidential Marital Communications
Marital relationship must exist when the communication is made. Divorce does not terminate the privilege, but communications made after the marriage are not privileged. Statement must be made in reliance upon the intimacy of t he marital relationship (confidential)
96
When Neither Marital Privilege Applies
In actions between the spouses or in cases involving crimes against the testifying spouse or either spouse's children.
97
Statement Definition - Hearsay
1)An oral or writtes assertion, or 2) Nonverbal conduct intended as an assertion
98
"Offered to Prove the Truth of the Matter" - Definition - Hearsay
Does it matter whether the D is telling the truth?
99
Statements that are nonhearsay under the Federal Rules
1) Prior statements by witness; 2)Admissions by party-Opponent
100
Prior Statements by Witness - NONHEARSAY
1) inconsistent with the declarant's in-court testimony and was given udner oath at a prior proceedings; 2) Prior Statement is consisten with the declarant's in-court testimony and is offered to rebut a charge that the witness is lying or exaggerating because of some motive; or 3) Prior statement is ont of identification of a persom made after perceiving them
101
Admissions by Party-Opponent (statements by an opposing party)
1) Judicial and extrajudicial admissions; 2) Adoptive admissions; 3) Vicarious Admissions
102
Vicarious Admissions
1) Co-parties; 2) Authorized Spokesperson; 3) Principal-Agent; 4) Partners; 5) Co-conspirators
103
Hearsay Exceptions - Declarant unavailable
1) Unavailability; 2) Former Testimony; 3) Statements Against Interest; 4) Dying Declarations - Statements Under Belief of Impending Death; 5) Statements of Personal of Family History; 6) Statements Offered Against Party Procuring Declarant's Unavilability
104
Unavailability - Hearsay Exception
1) Exempt from testifying because of privilege; 2) Refuses to testify concerning the statement despit a court order; 3) Testifies to lack of memory of the subject matter of the statement; 4) Unable to testify due to death or physical or mental illness; or 5) Is absent and the proponent is unable to procure his attendance by reasonable means
105
Former Testimony - Hearsay Exception
1) Party against whom the testimony is offered or the party's predecessor in interest was a party in the former action; 2) The former action involved the same subject matter; 3) Testimony was given under oath; and 4) Party against whom the testimony is offered had an opportunity at the prior proceeding to develop the declarant's testimony
106
Grand Jury Testimony of an unavailable declarant
Not admissible against a D under the former testimony exception to the hearsay rule
107
Statements against interest - Hearsay Exception
Statement of a person, now unavailable as a witness, against the person's pecuniary, proprietary, or penal interest WHEN MADE. D must have had personal knowledge of the facts, and aware that it was against her interest when made.
108
Statements against interest - Criminal Liability
Need corroborating circumstance indicating the trustworthiness of the statements
109
Dying Declarations
Homicide prosecution or a civil action statement made by a now unavailable declarant is admissible if; 1) Declarant believed his death was imminent (need not actually die); 2) Statement concerned the cause or circumstance of what he belived to be his impending death
110
Statements of Personal of Family History
Declarant is a member of the family in question or intimately associated with it; and statements are based on the Declarant's personal knowledge of the facts or her knowledge of family reputation.
111
Statements Offered Against Party Procuring Declarant's Unavailability
Admissible when offered agaisnt a party who has engaged or acquiesced in wrongdoing that intentionally procured the declarant's unavailability
112
Hearsay Exceptions - Declarant's Availability Immaterial
1) Present state of mind; 2) Excited Utterances; 3) Present sense Impressions; 4)Declarations of Physical Condition; 5) Business records; 6) Past recollection recorded; 7) official records and other official writings; 8) Ancient Documents and Documents affecting property interests; 9) Learned Treatises; 10) Reputation; 11) Family Records; 12) Market Reports
113
Present State of Mind - Hearsay
Declarant's Availability Immaterial. State of mind, emotion, sensation, or physical condition is admissible.
114
Excited Utterances - Hearsay
Declarant's Availability Immaterial. Out-of-court statement relating to a startling event, made while under the stress of the excitement from the event (before declarant had time to reflect upon it)
115
Present Sense Impressions -Hearsay
Declarant's availability immaterial. Comments made concurrently with the sense impression of an event that is not necessaryily exciting may be admissible.
116
Declarations of Physical Condition - Hearsay
Declarant's availability immaterial. Present Bodily Condition - Admissible (spontaneous) Past Bodily Condition - Admissible if to assist diagnosis or treatment
117
Business Records - hearsay
Declarant's availability immaterial. Entry made in regular course of business; Personal knowledge; Entry made near time of event; Authentication
118
Past Recollection Recorded - hearsay
Writing not admissible, it must be read to the Jury
119
Public records and reports - hearsay
Inadmissible against a defendant in a criminal case
120
Statement of absence of public record
admissible to prove that the matter was not recorded, or inferentially that the matter did not occur
121
Judgments
Admissible to the fact that the judgment was entered
122
Prior Criminal Convictions - Hearsay
A judgment of a felony conviction is admissible in criminal and civil actions as an exception to the hearsay rule to prove any gace essential to t he judgment.
123
Prior Criminal Acquittal
Excluded
124
Judgment in former civil case
Civil Judgment is clearly inadmissible in a subsequent criminal proceeding and generally inadmissible in subsequent civil proceedings.
125
Ancient Documents and Documents Affecting Property Interests
ADMISSIBLE. Documents 20 years old
126
Learned Treatises
1) Called to the attention of, or relied upon by, an expert witness; and; 2) Established as reliable authority by the testimony of that witness, other expert testimony, or judicial notice
127
Reputation - Hearsay
Admissions of the following: 1) Character; 2) Personal of family history; 3) Land Boundaries; and 4) a community's general history
128
Residual "catch-all" exception of federal rules
1) Hearsay statement possess circumstantil guarantees of trustworthiness; 2) Statement be strictly necessary; and 3) Notice be given to the adversary as to the nature of the statement
129
Constitutional Issues - Confrontation Clause, hearsay will not be admitted when:
1) The statement is offered against the accused in a criminal case; 2) Declarant is unavilable; 3) Statement was testimonial in nature; 4) Accused had no opportunity to cross-examine the declarant's testimonial statement prior to trial.
130
"Testimonial" Statement - Confrontation Clause
Statements made in the course of a police investigation (not 911 call or negotiation) When primary purpose of interrogation is to establish or prove past events potentially relevant to a later crimina investigation; Affidavits or writeen reports of forensic analysis.
131
Burden of producing evidence
Pleading Party initially, then once prima facie has been established evidence to rebut the initial evidence from other party
