Flashcards in Evidence Deck (63):
Evidence is relvant if it.....
has any tendency to make a material fact more probable or less probable than would be the case without the evidence
Generally, other accidents involving D are inadmissible becuase they suggest nothing more than general carelessness, what is the exception to this?
Other accidents may be admissible if they occurred under substantially similar circumstances, but can only be admitted to prove either 1) existence of danger, 2) causation or 3) prior notice to D
What is the VA distinction to the exclusionary rule regarding settlement of disputed civil claims?
In VA, STATEMENTS OF FACT made DURING SETTLEMENT in CIVIL LITIGATION ADMISSIBLE
In Fed, admissible in a later criminal case, if settlement dispute was with government regulatory agency
Both JDXs allow settlement evidence to impeach for bias
What is the nolo contendre plea distinction in VA?
VA allows criminal D's nolo contrendre plea to be admitted against him in civil litigation
What does the Rape Sheild Law Do? What are the exceptions?
opinion or repurtation testimony about the victim's sexual propensity and evidence of specific sexual behaivor of the vicim is ordinarily inadmissible.
Cirminal Case Exceptions: 1) used to prove that someone other than D was the source of the semen
2) victim's sexual activity with D, if consent is asserted
Civil Case Exception: if the probative value substantially outweighs the danger of harm to the victim
What are the three situations in which character evidence is a esstial element of the claim or defense and therefore admissible
1) Tort: Negligent hiring or entrustment
3) Child custody dispute
How can the prosecution use specific bad acts of the Defendant in his case-in-chiefl?
Never, if the only purpsoe is to suggest that because of D's bad character he is more liekly to have committed the crime
But, may be admissible to show
Mistake or accident (or lack thereof)
Common Scheme or Plan
When can documents authenticity be inferred under the ancient document rule?
1_ Doc is at least 20 years old (30 years old in VA)
2 Facially free of deficiencies
3 found in its place of natural custody
What are the best evidence rule, "escapes"?
1) Voluminous records can be presented through summary or chart, provided the originial records would be admissible and they are available for inspection.
2) Certified copies of public records
3) Collateral documents (docs the judge determines to not important to the case)
What is the Dead Man Statute?
applicable in some states:
1) in a cilv action
2) an interested witness
3) is incompetent to testify
4) against the estate of a decedent
5) concerning communications or transactions between the interested witness and the decedent
VA, abolished dead man's rule. such testimony is allowed, if corroborated by some other evidence
Lay Opinion is admissible if:
it's rationally based on witnesses knowledge, AND helpful to deciding a fact
Expert Witness testimony is admissible if:
Qualified: (Education and/or experience)
Proper Subject Matter: (scientific, technical or other specilized knowledge that will be HElpful to jury in deciding a fact (opinion is not helpful if its propositions are obvious)
What are the elements to satisfy the buisness records hearsay exception?
1) records of a business of any type
2) made in the regular ourse of business
3) the business routinely keeps such records
4) made contemporaneous (at or about the time of the event recorded)
5) consists of statements observed by the employees
What is the present sense impression hearsay exception and the VA distinction?
Description of an event made while the event is occuring or immediatly thereafter. In VA has to be contemporaneous cannot be made immediately after
What are the grounds for unavailability for hearsay exceptions?
2) absence from JDX (cannot be found w/ due diligence
3) illness or death
4) lack of memory
5) stubborn refusal to testify
What is the 6th amendment confrontation clause rule?
prosecution cannot use a hearsay statement against a criminal defendant (even if it falls within a hearsay exception) if the statement is TESTIMONIAL the declarant is unavailable and the defendant had no opportunity for cross examination
What are the attorney client privilege excpetions?
1) future crime or fraud
2) legal advice at issue
3) attorney client dispute
What is the VA distinction to the Physician Patient Privilege?
Applicable only in civil trials in VA (available in both criminal and civil in Fed)
What is the dying declaration VA distinction?
Not available in civil cases, only available in homicide cases. (available for homicide cases and civil cases in Fed)
Which of the following relationships between a declarant and a party might be sufficient for a vicarious admission?
B Joint tenants
Under the “past recollection recorded” exception to the hearsay rule, certain writings made by a declarant at or near the time of the event in question may be admissible. When does the exception apply?
The exception applies where the witness’s memory of the event cannot be revived by looking at the writing.
When a defendant has introduced evidence of a bad character trait of the alleged victim, the prosecution may counter with what type of evidence?
Reputation evidence about the D's good or bad character for the same trait OR opinion evidence about the D's bad character for the same trait.
IN VA, OPINION TESTIMONY INADMISSIBLE
The Federal Rules of Evidence permit a party to cross-examine a witness regarding the witness’s prior act of misconduct only where the act:
Probative for truthfulness
What may a judge NOT consider when deciding whether or not to admit evidence?
judge cannot consider whether evidence will make it more likely that P will win
When a judge judiciably notices a fact does the man its conclusively established?
In civil cases YES
In criminal cases NO, but burden of producing evidence has been satisfied
Can a proper foundation for secondary evidence as to it its contents by showing that the original has been lost and cannot be found despite diligent search?
Does presence of a legal secretary defeat the attorney client privilege?
No as long as there remains an expectation of confidentiality
Can an expert witness testimony be an opinion based on underlying facts learned at the trial?
Yes. Expert witness may give a response to a hypothetical question as long as the facts assumed in that question can be found by the trier of fact based upon admissible evidence.
An offer to pay medical bills considered settlement negotiations?
An offer to pay medical expenses is not always an offer to settle case. Therefore, Any statement made in conjunction with such offer would be admissible as admission by party opponent.
When does the rule of completeness apply?
When a party introduces a statement or part of a statement, the adverse party may request the rest of the statement at that time, if in all fairness it ought to be considered at that time. FRE 106
When are prior sketch identifications inadmissible hearsay?
When the witness is unavailable to testify and therefore unavailable for cross examination
Is it permissible to impeach your own witness with a prior inconsistent deposition?
Yes, to impeach and as substantive evidence, if the statement given during the trial is inconsistent with the trial testimony.
If a witness's memory is incomplete, the examiner may seek to refresh her memory by allowing her to refer to a writing or anything else--provided she......
then testifies from present recollection and does not rely on the writing.
How do you authenticate a photograph?
a photograph must be identified by a witness as a portrayal of certain facts relevant to the issue, and verified by the witness as a correct representation of those facts.
Can a contract allegedly written and signed by a D be autheticated for handwriting by a P (who is familiar with his handwriting)?
yes, this is proper authentication. All that is necessary is proof sufficient to support a jury finding of genuineness. - this is a preliminary fact to be decided by the jury
Is proof of subsequent remedial measures allowed as evidence?
Inadmissible to prove negligence or culpable conduct. Lookout for test anwsers that say "not admissible for public policy" same thing
is character evdience admissible in civil trials?
What is the weird exception to the dying declration hearsay exception?
The statement is admissible if the statement was made while 1) the victim feared impending death 2) declarant is now unavailable (doesn't matter how victim died or became unavailble, does not have to connect to the original statment) 3) watch out for the statement representing a MERE SUSPICION, if being offered to prove the truth of the matter asserted, the statement has to be reasonably based
When is a witness statement made as unresponsive to any question asked subject to a motion to strike?
subject to strike by examining counsel, but not by opposing counsel. (can be objectionable on other grounds though)
Are prior convictions admissible?
misdemeanor conviction is hearsay not admissible under any exception. Felony conviction admissible under exception hearsay rule in certain cases
A party cannot bolster the testimony of a witness until the witness has been ____________
Can the business records exception apply if the business records have written annotations on them?
Yes, if annotations were customary and made in the regular course of business
A witness may be impeached in civil cases through specific acts when?
When the plaintiff's attorney on cross, asks in good faith. Can do so if the act is probative of truthfulness (doesn't matter if witness was convicted)
During a hearing to decide whether or not evidence should be admissible, how should the issue be decided?
By a judge, after hearing evidence from both sides attorneys and MAY be conducted in the presence of a jury
What types of convictions are admissible over a hearsay exception?
felony convictions against the defendant are admissible in both civil and criminal trials to prove any fact essential to the judgment.
Are there time limits on cross-examination?
judge may exercise reasonable control over examination of witnesses to aid the effective ascertainment of truth, to avoid wasting time, and to protect witnesses from harrasment.
What is the 1st thing you should figure out on each MBE Evidence qurestion?
what the evidence is being offered to prove. If it's not being offered for the truth of the matter asserted, it's not hearsay.
Who holds the spousal privilege in civil cases?
both spouses have a privilege to refuse to disclose and to prevent the other spouse from disclosing, for confidential communications made during their marriage.
Anything can be used to refresh memory; BUT if it's a document,
Opposing counsel gets to review it.
A plea of guilty that is later withdrawn ____be used against the D who made the plea
MAY NOT; excluded under rule 410 (not excluded by hearsay rule)
either party may impeach a witness and leading questions are premitted when a witness is_____
Guilty pleas in criminal cases are considered _________________for purposes of 801(d)2
statements against party opponents
If a witness who is impeaching a D's statement dies on trial before XX, his testimony is________
admissible, even thought the P didn't ahve an opportunity to XX
Prior inconsistent statements, where the declarant is unavailable are
admissible over a hearsay exception
Does the spousal privilege apply in actions between spouses?
Does the attorney client privilege apply when a suit is between two parties being represented by the same attorney?
No it doesn't
Federal agency investigation reports fall under what excpetion to hearsay?
Public Records (public agents writing a report under their official capacity)
Expert testimony may be based on facts not in evidence that were supplied to the expert out of court AND which facts_____________
are of a type REASONABLY RELIED UPON BY EXPERTS IN THE PARTICULAR FIELD in forming opinions on the subject
Generally, evidence of a previous judgment is inadmissible hearsay, except:
criminal felony convictions in subsequent civil or criminal trials. CIVIL JUDGMENTS NEVER ADMISSIBLE
When does the physician patient privilege not apply?
in federal cases where state law does not supply the rule of the privilege (federal question cases)
For purposes of the hearsay rule _________and ___________are not admissible against the defendant in a CRIMINAL CASE.
PUBLIC RECORDS AND REPORTS (investigative reports by police or FBI)
IN VA, in civil action, evidence as to damages to motor vehicle may be presented by itemized estimate or appraisal sworn by a person who also makes an oath that he is a_____________; for ____________; and the______________. If the damages exceed_______then such estimate may not be admitted unless by ________of the adverse party or his counsel or unless a true copy is mailed to the adverse party at lease______ before trial.
1) Motor vehicle repairmen
2) how long that has been his occupation
3) name of his employer
6) 7 days