Evidence - Imported Flashcards

Question

Crimes of Dishonesty

Answer 1

_ Forgery _ Embezzlement _ Bank robbery _ Smuggling _ Filing false tax return _ Using false identification

Answer 2

Not ok for character evidence Ok for prior inconsistent statements Sometimes ok for contradiction

Answer 3

Extrinsic Evidence of prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogated the witness thereon, or the interests of justice otherwise require.

Answer 4

you can only show prior consistent statements of a witness to rehabilitate them after a charge of recent fabrication. Can't bring in bolstering witnesses, unless W1's has been impeached somehow

Answer 5

3) Are statements made out of court before a witness testifies that conflicts with something the witness says at trial - Only prior statements made under oath are admissible to prove the truth of the statement. If the statement was not made under oath, it can only be used to impeach

Answer 6

4) statement that was made out of court before the witness' testimony that reinforces or supports the testimony. - Consistent statements are admissible only to rebut specific types of attacks on the witness' in court testimony. - Prior consistent statements does not have to have been made under oath to be used substantively - Evidence that someone made a prior consistent statement may only be introduced if the proponent shows (1)that the witness' testimony has been acted as recently fabricated or influenced by a motive to lie and (2) the statement was made before the alleged fabrication or motive to lie arose.

Answer 7

a) b) Extrinsic Evidence of prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogated the witness thereon, or the interests of justice otherwise require.

Answer 8

1) If a party is biased, either against or in favor of a party at a trial, proof of that bias is permitted on the theory that the witness may have shaded his or her testimony in line with it. 1) Family ties 2) Financial ties 3) Membership in organizations 4) Payment by a party to testify 5) Deals with the prosecution

Answer 9

Evidence of sexual activity or reputation is not admissible against a rape victim. Has exceptions

Answer 10

1. evidence of specific instances of sexual behavior by the alleged victim offered to prove that a person other than the accused was the source of semen, injury or other physical evidence; 2. evidence of specific instances of sexual behavior by the alleged victim with respect to the person accused of the sexual misconduct offered by the accused to prove consent or by the prosecution; and 3. evidence the exclusion of which would violate the constitutional rights of the defendant.

Answer 11

Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted."

Answer 12

a) Spoken words b) Written words c) Implied Assertions - a statement that was made with the intent of saying something, other than what the words themselves say. If the evidence is coming in to prove what the person intended to say, then its hearsay. d) Assertive Conduct - Actions made with the intent to make a statement about something, in the mind of the actor, the actor is trying to say something. This is an assertion. e) NOT animals, or machines

Answer 13

1. party's own words 2. Adoptive admissions 3. authorized representatives 4. agent/employee 5. Conspiracy

Answer 14

Anything a party has ever communicated in speech, writing or other way are not considered hearsay.

Answer 15

Hearsay Exclusion - When the party himself doesn't particularly say anything, someone else says something, and the party agrees with it, and adopts it as his own. A party's reaction to a statement or action by another person when it is reasonable to treat the party's reaction as an admission of something state or implied by the other person - Silence can also be treated as an admission - Someone who has heard it and understood it, but doesn't respond. If they donÕt respond in a manner in which a normal person would respond, you can bring the silence in as an adoptive statement.

Answer 16

Hearsay Exclusion - Statements of someone authorized to speak on behalf of someone who becomes a party to a lawsuit. For example, a lawyer. - A statement is an admission, useable AGAINST the party, if it is made by the party's agent or employee authorized to speak on their behalf concerning something within the scope of the agency or employment during the time of agency or employment.

Answer 17

- A statement is an admission, useable against the party, if it is made by the party's agent or employee concerning something within the scope of the agency or employment during the time of agency or employment. - The statement itself cannot be proof of the agency, there must be some other evidence to prove that fact.

Answer 18

Coconspirator's statements are considered admission when offered against another coconspirator so long as the statements were made during and in furtherance of their conspiracy. ---- Co-conspirators are partners who work together to further the conspiracy Not confessions (as used against the other party) Not Narriatives of past events Not finger pointing A court must have some proof, other than the co-conspirators statement, in order to prove the conspiracy (can't use just the statement to prove that there was a conspiracy

Answer 19

1) A witness's out of court statement identifying a person is admissible as substantive evidence of the identification. - The identifier has to testify. If the person is not available to testify, you can't let it in.

Answer 20

a) Present sense impressions b) Excited utterances c) Statements of current mential, emotional or physical conditions d) For treatment or diagnosis e) Past recolection recorded f) Records g) Public records h) Absence of both

Answer 21

Statement DESCRIBING or explaining an event or condition made WHILE the declarant was perceiving the event of condition, or immediately thereafter

Answer 22

A statement RELATING to a startling event or condition made while the declarant was under the STRESS of excitement caused by the event or condition

Answer 23

1) A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition such as - Intent - Plan - Motive - Design - Mental feeling - Pain - Bodily health But not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification or terms of the declarant's will. Can't use past belief - I think this happened, therefore it must have happened. Must be I think this is going to happen.

Answer 24

2) a) Statements of past medical history as well as current symptoms made for the purposes of medical diagnosis/treatment are admissible. b) The privilege extends to descriptions of what caused the patient's problem so long as the description is reasonably pertinent to diagnosis or treatment c) Statement does not have to be made to a doctor, it can be anyone related to the delivery of healthcare can provide the information

Answer 25

1) A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, show to have been made or adopted by the witness when the matter was fresh in the witness' memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party

Answer 26

i) It was made as part of the usual activities of the organization ii) That a person with knowledge of what the record says made the record or reported the information to a person who created the record iii) The record was made near the time of occurrence of what it describes. b) Even if the record meets these requirements, it can be excluded if the circumstances of its preparation indicate a lack of trustworthiness or if the source of the information seems unreliable. c) For the record to be admitted for substantive treatment, each statement it contains must fit all of the requirements of the rule.

Answer 27

Evidence that a matter is not included in the memoranda, reports, records or data compilations, in any form, kept in accordance with the provisions from above, to prove the nonoccurrence or nonexistence of the matter if the matter was of a kind of which a memorandum, report, record or data compilation was regularly made and preserved, unless the sources of information or other circumstances indicate a lack of trustworthiness.

Answer 28

1. Activites of the Agency 2. Matters observed pursuant to the duty imposed by law 3. factual findings from investigations

Answer 29

Ex. personnel and employment records. can be introduced by any party, civil or criminal

Answer 30

can be introduced by any party, civil or criminal

Answer 31

Can be introduced in civil only

Answer 32

Can be introduced by any party civil, and only by the criminal defendant in criminal trials (can't be used against him)

Answer 33

1) To prove the absence of a record, report, statement or data compilation, in any form, or the nonoccurnce or nonexistance of a matter of which a record, report, statement or data compilation, in any form, was regularly made and preserved by a public office or agency, evidnece in the form of a certification in accordance with rule 902 or testimony that diligent search failed to disclose the rcord, report, statement, or data compilation, or entry.

Answer 34

Statements in a document in existence twenty years or more the authenticity of which is established.

Answer 35

1. former testimony 2. dying declaration 3. statement against interest 4. pedigree (family history) 5. forfeiture by wrongdoing

Answer 36

- Is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant's statement - Persists in refusing to testify concerning the subject matter of the declarant's statement despite a court order to do so - Testifies to a lack of memory of the subject matter of the declarant's statement - Is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity - Is absent from hearing and the proponents of a statement has been unable to procure the declarant's attendance by process of other reasonable means

Answer 37

a) In civil and criminal cases, testimony at an earlier proceeding or deposition (NOT affidavits) is admissible to prove the truth of what its statements assert if the party against whom the testimony is offered had an opportunity to cross examine the declarant b) Also admissible if the party's motive to cross examine at the earlier proceeding was similar to the motive the party would have if the witness testified at the current trial c) For Civil Trials - the requirement of motive and opportuinty to cross examine is met if in the earlier proceeding, a predecessor in interest to the party was present. (interests of the party opposed to the testimony in the prior case were similar to the interests of the party against whom the testimony is sought to be used in the current case. d) In criminal trials if the D was not a party to the earlier action, cant use the transcript because no predecessor in interest

Answer 38

a) Dying declarations can ONLY be used for one topic: the declarant's belief about the cause of his or her impending death b) Speaker can have a reasonable expectation of death and still survive, and be able to use the declaration. If that is the case, the proponent must prove that the speaker is unavailable.

Answer 39

A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless believing it was true. A statement tending to expose the declarant to criminal liability and offered to EXCULPATE the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

Answer 40

a) Party forfeits the right to exclude a hearsay statement if the party was involved in an act that wrongfully kept the declarant from being a witness.

Answer 41

1) A statement not specifically covered by Rule 803 or 804 but having equivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule, if the court determines that (A) the statement is offered as evidence of a material fact (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. Must give notice

Answer 42

1) If the witness is not testifying as an expert, the witness' testimony in the form of opinion or inferences is limited to those opinions or inferences which are: a) rationally based on the perception of the witness, and b) Helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and c) Not based on scientific, technical or other specialized knowledge within the scope of 702

Answer 43

1) If scientific, technical or their specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by, knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise, if a) The testimony is based on sufficient facts or data b) The testimony is the product of reliable principles and methods c) The witness has applied the principles and methods reliably to the facts of the case

Answer 44

Determines Validity of expert evidence a) Can it be tested, and has it? b) Has it been subject to peer review or been published? c) What are the potential error rates? d) Are there professional control standards? e) Is there any degree of general acceptance in the relevant community? f) Whether it was developed for purposes other than the current litigation? Under Kumbo the Daubert method applies to any expert giving technical or specialized knowledge, not just scientific experts or testimony. Basically all experts have to follow these standards

Answer 45

1) Can state opinions based on facts that the expert believes to be true because of what the expert has seen or heard a) at the current trial OR b) based on facts believed to be true because of observations outside of the trial. (first hand knowledge) OR c) As a hypothetical question asked by the counsel to the expert i) Hypos have to have the same or similar fact pattern 2) Does not have to be separately admissible into evidence if it is any data that experts in the field normally use. Even inadmissible evidence may be introduced if it is evidence of a type reasonably relied upon by experts in a particular field.

Answer 46

1) Opinions of the ultimate issue in the case is permitted except where the mental state of a criminal defendant is concerned 2) Applies to both Lay and Expert Witnesses

Answer 47

The proponent of evidence is required to provide a basis for the fact finder to believe that the matter that is put forth, (document or item) is what it is purported to be. If the object is real evidence then it usually means that the object is THE object that was involved in the event. If it is just demonstrative evidence must show that the object illustrative what it is claimed to illustrate. Whether a reasonable jury could believe its authenticity

Answer 48

1. testimony of witness on handwriting 2. non-expert opinion on handwriting 3. comparision by trier or expert witness 4. distinctive characterisctics 5. voice identification 6. telephone conversations 7. public records and reports 8. Ancient documents 9. Process or system

Answer 49

Testimony that a matter is what it is claimed to be.

Answer 50

a) If a party claims that a document was written by a particular person, the authentication rule requires that evidence be introduce adequate to support a finding that the document really was written by that individual. Laypersons familiar with that persons handwriting can testify to its authenticity or you can have a handwriting expert testify. familiarity not acquired for purposes of the litigation.

Answer 51

ppearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.

Answer 52

dentification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker.

Answer 53

a) A witness may authenticate a voice by testifying about the familiarity with it if the witness has a reasonable basis for recognizing and identifying the speaker. b) For phone calls other methods of authentication are also outlines in the rule when there is testimony that a call was made to a number assigned by the telephone company to a person or busines

Answer 54

Evidence that a writing authorized by law to be recorded or filed and in fact recorded or filed in a public office, or a purported public record, report, statement, or data compilation, in any form, is from the public office where items of this nature are kept.

Answer 55

a) Ancient documents (older than 20 years) that are found in a place where they would likely be if they were authentic and in a condition that does not create suspicion about their authenticity. b) Hearsay exception that covers statements made in documents.

Answer 56

When evidence has been produced by a computer system or scientific device, testimony describing the process or system can serve to authenticate the evidence.

Answer 57

a) Can someone authenticate it by saying yes, that's the way it was. They dont have to be the person who took the picture or who made the video. Doesn't have to be at the time - but if not at the time, can't be used for the proof of the showing in the picture.

Answer 58

Documents that do not need to be authenticated 1. Domestic public documents under seal 2. domestic public documents not under seal 3. foreigh public documents 4. certified copies of public records 5. official publications 6. newspapers and periodicals 7. trade inscriptions 8. acknowledged documents 9. commerical paper and related documents 10. presumptions under acts of congress 11. certified domestic records of regularaly conducted activity 12. certified foreign records of regularly conducted activity

Answer 59

reason other than the serious fault of the proponent

Answer 60

1) If the object's contents are the subject of testimony or sought to be proved for the truth of its terms and contents, the party offering the testimony must provide the original of the writing, document or recording The federal rules are less strict than common law, so occasionally a copy will work. 2) What is an original? Anything which is an absolute duplicate or counterpart can be an original. It just cant be someone typing out what the document said, or just dictating what the document said. You can't put the piece of paper if someone just reads from it either. 3) The document has to stand for itself. 4) Now, any copies produced by an reliable modern method can be admissible

Answer 61

1. lost or destroyed 2. Privilege 3. posession by third party 4. original in opponents posession 5. collateral matters 6. Summaries (1006) 7. Adversarial Admission

Answer 62

1) if the original has been lost or destroyed, then someone can testify as to what the original said. a) Can not be lost or destroyed in bad faith. If there is a claim of destruction in bad faith, the burden is on the party seeking to introduce the destroyed evidence

Answer 63

If the original is unavailable by judicial process, because its privileged.

Answer 64

When the original is in the hands of the opposing party and they donÕt show up with it and refuse to turn it over, then you can just use testimony.

Answer 65

something routine where it isn't worth it to search for a document. For example, you want to show that a person was employed by a particular company, you donÕt have to hve the document for every trivial passing issue. The court wont waste its time with it.

Answer 66

allows the summaries of documents or calculations to be admitted into evidence if the originals are available.

Answer 67

if the adversary of the document admits the terms of the documents, then its usable to prove the writing.

Answer 68

1) nformation conveyed in a privileged communication cannot be brought into a trial and cannot be a subject for discovery even though the statement may be relevant to a disputed issue. 2) Only the actual statements made in a confidential relationship are kept secret by privilege not the information behind the statement

Answer 69

1) A patient has a privliege to refuse to disclose and to prevent any other person from disclosing confidential communications, made for the purposes of diagnosis and treatment of his mental or emotional condiction, including drug addiction, among himself, his psychotherapist, or persons who are participating in the diagnosis or treatment under the direction of the psychotherapist including members of the patient's family 2) The privliege may be claimed by the patient, his guardian, or byt the personal representative of a deceased pateitn. The therapist may only claim the privilge on behalf of the patient. Does not apply where the client says they are going to hurt themselves or others

Answer 70

a) Proceedings for hospitalization b) Examination by order of judge c) Condtion is an element of the claim or defense - there is no privilege under this rule as to communications relevant to tan issue of the mental or emotional communications relevant to an issue of the mental or emotional condiition of the patient in any proceeding in which he relies upon the condition as an element of his claim or defense, or after the patients death in any proceeding in which any party relies upon the condition as n element of his claim or defense. D

Answer 71

1) Client has a right not to disclose (and the right to prevent the lawyer from disclosing) any confidential communication between the two of them relating to the professional relationship. 1) Must be intended to be confidential 2) Must be within the scope of confidentiality and 3) Must look to the objective manifestation 2) Covered a) Communications intended to be confidential from client to lawyer or lawyer to client. b) Communications made with a legal assistant present c) Work product - documents, thoughts other made in preparation of litigation

Answer 72

3) NOT Covered a) NOT the fact that the relationship exists b) NOT the identity of the client c) NOT observations made by the lawyer that other third parties could have made d) NOT physical evidence given to the lawyer by the client e) NOT where lawyers advice is used in furtherance of a crime

Answer 73

4) Exceptions a) Crime Fraud Exception - The privilege doesn't apply when the confidence relates to the commission of a future crime. b) Death of Client - the privilege survives the death of client, but if the suit is a will contest or other property dispute the privilege does not apply c) Attorney Client Dispute - does not apply when suits between client/attorney 5) Morales - supreme ct would probably hold that the privilege gives way under circumstances in which a person implicates another and then dies.

Answer 74

A testifying spouse has the privilege of refusing to testify against his or her spouse only in criminal case. Essentially occurs when the testifying spouse is being asked to be an eyewitness. 1) Applies only if the parties are still married, DOES cover statements made before the marriage took place 2) Available only in CRIMINAL cases 3) Can't testify as to acts iii. Belongs to: The testifying spouse in federal court. If the D is on trial, and the spouse is on the stand, the D can't prevent the spouse from testifying against him.

Answer 75

1) Spousal or Child abuse cases 2) Matters occurring before the marriage 3) Civil actions 4) Once a divorce goes though.

Answer 76

A statement made in confidence by one married person to another, during the course of the marriage, is privilged. protects against the disclosure of confidential communications made by one spouse to another during the course of the marriage.

Answer 77

1) No person shall be compelled to be a witness against himself 2) Effect: 1) The privilege is individual, can only use their own incrimination. 2) Does not apply to businesses. 3) Only covers testimonial activity a) so fingerprints, blood and urine samples are not covered under this. b) When turning over documents would verify that a person had the documents and they are related to the scope of what was asked, its testimonial

Evidence - Imported Flashcards

(103 cards)