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183 Cards in this Set
- Front
- Back
Relevance
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Evidence is relevant it if has ANY TENDENCY to make the existence of any fact that is OF CONSEQUENCE to the determination of the action MORE or LESS probable than it would be w/out the evidence
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What does it mean to be "Of Consequence" for purposes of relevance?
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The evidence relates in some way to the substantive law
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Does the court have discretion to exclude relevant evidence?
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Yes.
Court has discretion to exclude if the PROBATIVE VALUE is SUBSTANTIALLY outweighed by UNFAIR PREJUDICE, CONFUSION or WASTE OF TIME. **emotionally disturbing evidence or evidence admissible for one purpose but inadmissible for another |
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What types of relevant evidence are excludes for policy reasons?
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1) Liability insurance
2) Subsequent remedial measures or repairs 3) Settlements, offers to settle and pleas 4) Payment or offers to pay medical expenses |
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When is Liability insurance excluded as evidence?
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1) inadmissible to prove culpable conduct like negligence or D's ability to pay a judgment
*but can be admissible to prove anything else - (e.g. president of insurance corp., Scope of employment; ownership or control; to impeach or as part of an admission) |
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What is the rule behind subsequent remedial measures or repairs
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Evidence of safety measures or repairs after an accident are INADMISSIBLE to prove culpable conduct or, in a products liability action, defective design.
**can be inadmissible to prove anything else - ownership or control, rebut a claim that the precaution was not feasible, or prove that the opposing party has destroyed evidence |
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Can SRMR be admitted to rebut defense of no feasible precaution?
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yes. If D alleges there was nothing he could have done to avoid an accident, then SRMR admitted by P as REBUTTAL
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Settlements, offers to settle and pleas - what is the rule in civil cases?
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evidence of settlements, offers to settle, and related statements are INADMISSIBLE to prove liability or fault.
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Settlements, offers to settle and please - what is the rule in criminal cases?
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pleas, offers to plea and related statements are inadmissible to prove guilt. includes pleas of nolo contendere.
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Exception to settlement rule
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Where there is no claim yet asserted; settlement offers before a claim admissible.
**can also apply to situations where there is any THREAT of suit - at least an implicit threat of a lawsuit. |
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Exception to settlements, offers to settle and pleas -
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where there is no dispute as to liability or damages
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Rule for Payment or offers to pay medical expenses
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Evidence of payments or offers to pay medical expenses is inadmissible when offered to prove liability for the injuries in question. But related statements are still admissible.
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**remember - distinguish between the rule regarding settlement offers and rule regarding payment of medical expenses.
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none
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Similar occurrences
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Usually evidence is irrelevant if it is not about the specific people and events in use - HOWEVER, where there is SIMILARITIES between that evidence and the people and events at issue, evidence of other people allowed.
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Can similar occurrences be admissible to prove causation?
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Yes - *McDonalds example; same restaurant, same time, same item...
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Prior accidents as similar occurrences??
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No - prior accidents or claims usually irrelevant
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Exceptions to allowing prior accidents as evidence
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1) exception for pattern of fraudulent claims (e.g. P sued after each accident)
2) Exception for preexisting condition |
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Can prior accidents prove intent?
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yes - similar acts relevant to prove intent (gender discrimination hiring)
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Similar occurrence - defense of impossibility
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allowed, relevant to rebut a defense of impossibility (eye ball in coke, rebut)
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Similar occurrences - to establish value
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Comparable sales relevant to establish value - where value is an issue
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Similar Occurrences - Habit
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Habit evidence is admissible - Habit of a person to act in a certain way is relevant and admissible to show that person acted in accordance w/ the habit on the occasion in question.
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Distinguish between habit and character evidence
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Character evidence is often inadmissible. Character evidence says something general about a person and conveys a moral judgment
Habit - describes SPECIFIC CONDUCT and makes no moral judgment |
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Define Habit evidence, to be admissible:
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1) a specific conduct
2) no moral judgment 3) Frequently repeated conduct (lots of frequency) |
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Routine practice evidence
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Routine business practice is relevant to show that conduct of the entity was in conformity w/ that practice on the occasion in question.
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What is the industrial custom evidence admissible to prove?
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Relevant to prove standard of care in negligence case
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What is the purpose for which character evidence is offered?
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1) Offered to prove character b/c character is an issue in the case.
2) Offered to prove character as circumstantial evidence of a person's conduct on the occasion in question. 3) offered to impeach or support the credibility of a W. |
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What method or technique is used to prove character?
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1) Specific acts of conduct
2) Opinion 3) Reputation |
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What are the four questions to ask in a character evidence issue?
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1) What is the purpose for which the character evidence is offered?
2) What method or technique is used to prove character? 3) Is it a civil or criminal case? 4) Does the evidence prove a pertinent character trait? |
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Rule, in character evidence in CIVIL cases
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Character evidence is INADMISSIBLE to prove conduct except where civil claim is based on sexual assault or child molestation. In such a case, D's prior acts of sexual assault or child molestation are ADMISSIBLE to prove conduct in this case.
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Character evidence admissible where character in issue - types?
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1) defamation of character
2) negligent entrustment 3) child custody disputes |
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What method is allowed when character is at issue?
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ALL - specific conduct, opinion, reputation
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Rule, Character evidence in CRIMINAL cases
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*courtroom analogy
Determine whether the character is D or the victim - usually only the D can open the doors - and usually opened separately |
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Criminal - Character evidence of D's character to prove conduct
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Prosecution cannot be first to offer such evidence. The door is closed at the start of trial when the prosecution begins its case in chief.
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What are the exceptions to when character evidence can be brought by prosecution?
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1) In cases of sexual assault or child molestation, prosecution can be first to offer evidence that D committed other acts of sexual assault or child molestation
2) where court has admitted evidence of victim's character offered by D, prosecution can be first to offer evidence that D has same character trait |
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When D opens door to D's character - what happens?
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Prosecution can now admit evidence to rebut
**remember - evidence must always concern a pertinent character trait |
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What is rule during direct evidence - where door is open for character evidence?
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Reputation and Opinion evidence are admissible on direct by any party, BUT NOT specific instances evidence.
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What about on Cross Exam?
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Cross examination by any party, reputation, opinion, and specific instances are all admissible.
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Admissibility of evidence of VICTIM's character
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*same generally
Prosecution cannot be first to offer character evidence to prove conduct: the trial begins w/ the door to the victim's character closed. |
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What are the two ways D can open the door to victim's character?
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1) if D offers evidence of victim's character, prosecution may rebut
2) in a HOMICIDE case, if D offers evidence victim attacked first, prosecution may offer evidence of victim's character for peacefulness. *on direct exam - rep and opinion, but no specific instances - Cross - all are permitted. |
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When can BOTH doors (D and Victim) open together?
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when court admits defense evidence of victim's violent character, prosecution offers evidence of D's violent character.
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Rape Shield statute - explain
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In criminal and civil cases involving rape or other sexual assault, limiting defense evidence of alleged victim's character when offered to prove consent.
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Rape Shield - specific to Criminal rules...
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Reputation and opinion evidence are inadmissible.
Specific instances of alleged victim's conduct admissible only to prove: 1) third party is source of semen or injury, OR 2) prior acts of consensual intercourse between D and alleged victim. |
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Rape Shield - specific to Civil rules...
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Reputation, opinion and specific instances evidence is admissible if probative value SUBSTANTIALLY outweighs unfair prejudice and in the case of reputation evidence, P put her reputation in issue.
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MIMIC - what is it?
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specific instances of D's bad conduct may be admitted to prove ANYTHING other than character that is relevant - MIMIC
Motive, Intent, Mistake [absence of mistake], Identity, Common Plan or Scheme **discretion to exclude MIMIC evidence for unfair prejudice |
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Identity - specific instances
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Allowed for ID purposes, but there must be SIMILARITY and UNIQUENESS required to prove identity.
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Testimonial Evidence
Four requirements for Competency: |
1) Personal Knowledge
2) Present Recollection 3) Communication 4) Sincerity |
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Personal knowledge rules
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1) must be something W perceived to the fact testified to - if not, PK is the objection.
2) if quoting someone or explicitly refer to someone's out of court statement - hearsay objection 3) Perceptions may be limited |
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Present recollection
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W must testify from present recollection, not from some record regarding matters the W once knew but has now forgotten
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Communication
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W must be able to relate perception either directly or through interpreter
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Sincerity
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W must take oath or make affirmation to tell truth
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Objections to form of testimony and questions
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*need timely and specific objection
1) Calls for narrative 2) Unresponsive 3) Usually no leading on direct - telling the W which answer you want 4) Leading OK on cross - but cross must stay within scope of direct. 5) Leading OK on direct if adverse W, hostile W, W needing help 6) Assumes facts not in evidence 7) Argumentative 8) Compound |
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When can a W use documents during testimony?
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1) Refreshing recollection - anything can be used to refresh, but allows opponent to inspect and offer into evidence anything used to refresh.
**if W still can't remember **** - offer it into evidence, exception to hearsay rule. |
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Recorded recollection exception to hearsay - elements:
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1) W once had personal knowledge of the facts
2) the document was made by the W or under the W's direction or was adopted by the W (W agreed to contents) 3) Document was written or adopted at a time the facts were fresh in the W's memory 4) the document was accurate when made. 5) The W now has insufficient recollection to testify as to the matters contained in the document |
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Opinion Testimony
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Normally inadmissible - lay and expert opinion may be admitted - rules
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Lay Opinion - needs:
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1) if rationally based on the W's perceptions and helpful to the trier of fact - HELPFUL - the law opinion gives jury MORE information than would testimony limited to describing W's perceptions.
(W's perception, rationally based; helpful to the jury) - perception must be sufficient. **legal conclusions are NOT helpful |
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Expert Opinion - requires:
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1) helpful to jury
2) W must be qualified 3) W must believe in opinion to reasonable degree of certainty, 4) opinion must be supported by a proper factual basis, and 5) opinion must be based on reliable principles that were reliably applied |
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What is helpful?
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expert uses specialized knowledge to reach conclusion the avg juror could not figure out herself
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Qualifications?
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Not just a degree - experience works
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Degree of Certainty
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Reasonable degree of certainty "i Believe, in a reasonable degree of certainty"
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Opinion must be based on ONE of the following:
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1) admitted evidence
2) personal knowledge 3) inadmissible evidence reasonably relied upon |
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What is the standard - where opinion must be based on reliable principles that were reliably applied?
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1) Peer reviewed and published
2) tested and subjected to retesting, 3) low error rate 4) reasonable level of acceptance |
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Evidence of W credibility
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watch out for hidden hearsay issues when a prior statement of a W if offered to attack or support credibility
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Evidence to support credibility
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Inadmissible unless credibility is attacked first
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Non-hearsay - prior consistent statement
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Prior consistent statement is admissible for all purposes if made before bribe or inconsistent statement - otherwise, it is inadmissible for any purpose
**turns on timing |
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Impeachment - what's the approach?
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1) is source of impeachment extrinsic evidence or testimony at this proceeding of W being impeached?
2) If extrinsic, is it admissible given impeachment technique? 3) any other foundation requirements? |
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Extrinsic Evidence
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any evidence other than testimony given at this proceeding by the W being impeached; e.g. testimony of other w/s, writing, prior statements of the W who is now testifying
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Impeach by Contradiction
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Extrinsic evidence inadmissible to impeach on collateral matter
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Collateral matter
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a fact not material to the issues in the case, that says nothing about the W's credibility other than to contradict the W.
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Impeachment by Prior Inconsistent Statement (PIS)
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impeachment by prior inconsistent statement, so relevant - just to impeach NOT to prove anything else
by cross or extrinsic evidence, that the W has, on another made statements inconsistent w/ his present testimony - need proper foundation for extrinsic evidence laid - and must be relevant |
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PIS of witness who testifies at trial
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NOT hearsay if given under oath at trial or depo.; otherwise it is hearsay and inadmissible if offered to prove truth
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Is PIS admissible to impeach on collateral matter?
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NO, cannot impeach on collateral matter
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Foundation requirement for extrinsic evidence for PIS
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extrinsic evidence admissible only if W given opportunity to explain or deny
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Impeachment w/ evidence of Bias, interest, motive
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admissible, where W would have an interest in the case
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Foundation requirement for impeachment of bias/interest/motive
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extrinsic evidence admissible only if W given opportunity to explain or deny
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Habit
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describes a person's regular response to a specific set of circumstances.
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Can attorney on cross examination impeach W?
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yes. discretion of the court; done in:
1) good faith 2) reasonable belief that bad act committed - pertaining to truthfulness, need not have been committed of a crime |
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Impeachment of W -
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A W other than the accused may be impeached by:
1) any felony conviction (unless the judge determines that its probative value is substantially outweighed by Rule 403 considerations), OR 2) conviction of any other crime requiring proof of admission of an act of dishonesty or false statement |
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Impeachmetn w/ conviction for Crime Involving False Statement
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All conviction (felonies and misdemanors) crimes of false statement - admissible
*no balance of 403 for convictiones more than 10 years old *character/conduct not allowed *impeachment purposes - credibility as a W |
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Impeachment w/ conviction for a crime not involving false statement
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Felonies that do not involve false statement (e.g., murder, robbery, rape) may be admissible to impeach but court may exclude for unfair prejudice. Misedemeanors that do not involve false statement are inadmissible to impeach
*may be proved w/ extrinsice evidence *if more than 10 years since the date of conviction or relase from prison, inadmissible unless probative value outweighs unfair prejudice |
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10 year rule - impeachment by convictions
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admissible ONLY if the party offering it, shows probative value outweighs unfair prejudice.
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Impeachment w/ non-conviction misconduct evidence bearing on truthfulness
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acts of misconduct that did not result in a conviction are admissible to impeach in both civil and criminal cases if the acts involved lying. extrinsic evidence to prove the acts is inadmissible. Impeacher only may cross W about her misconduct
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Impeachment w/ reputation and opinion regarding truthfulness
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1) Extrinsic evidence admissible
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Hearsay
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1) usually inadmissible
2) out of court statement offered to prove the truth of the matter asserted in that statement *declarant (available or not) - cannot be crossed - statement used to prove those facts = hearsay |
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Hearsay - "Statement"
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verbal or written expression of a person or conduct by a person intended to communicate (assertive conduct)
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Statements - involving machines
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not hearsay generally, but where a person is involved w/ the machine (punching in data) then the machine's output is hearsay as a statement
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Hearsay - out of court
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out of the court room, at current trial. prior proceeding testimonies are still hearsay.
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Offered to prove the truth of the matter asserted - what is the step approach
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1) Find the statement
2) ask what is it offered to prove - ask, is the question asking you? if not, ask yourself which party is offering the statement, and then ask how would this statement be relevant to that party's case. 3) given what it's offered to prove, will jury be misled if the out of court speaker was lying or mistaken, yes - hearsay; no - not hearsay |
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Independent legal significance - hearsay?
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No. sometimes consider the substantive law. if the statement would provide legal significance, not hearsay.
*making statement is part of the element of the claim |
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Effect on listener, hearsay?
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No. (e.g. what the statement would inflict/effect on the listener)
*signs/warnings - effect on reader, not hearsay |
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Speaker's knowledge of facts stated, hearsay>?
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no.
e.g. gang member, robbery - the evidence of facts stated |
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Circumstantial evidence of state of mind, hearsay?
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No.
e.g. dracula, insanity argument - circumstantial evidence - not proving he IS insane, but could be |
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Out of court declarant is in court court W - hearsay?
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yes - offered to prove the truth of the matter asserted.
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Admissions of Party Opponent
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Exemption, not hearsay.
Statement by party, or by someone whose statement is attributable to a party, offered by a party opponent. |
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Party admissions - distinguish from statements against interest exception
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Not hearsay - statement by party opponent - that at the time, the statement was against his interest DOESN'T Matter - "admission" can be to any statement good or bad - just that it's a statement by a party, and offered by the other side, that's it.
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Are party admissions subject to personal knowledge or opinion?
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No not subject to personal knowledge requirement or opinion rule.
e.g. plane crash - "damn we ****** up again" not hearsay. |
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Vicarious party admissions
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statement by:
1) authorized spokesperson of party or 2) employee of party concerning matter w/in scope of employment and made during employment relationship *authorization expressed or implied |
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Adoptive admission
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nonparty makes statement and party indicates belief in its truth; and co-conspirator statement (made during course and in furtherance of conspiracy) - ALL are not hearsay.
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Exemptions from usual hearsay definition
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exemptions apply to an out of court stateemnt from a declarant who now testifies at trial:
1) prior inconsistent statement given under oath at trial or deposition 2) prior consistent statement offered to rebut charge or recent fabrication or improper influence or motive; 3) statement of ID of a person made after perceiving the person |
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Former testimony exception
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Testimony given by a person in earlier proceeding or depo is admissible IF:
1) the party against whom the testimony is now offered had, during earlier proceeding, and opportunity to examine, **see page 31 **declarant must be unavailable |
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Declarant is unavailable
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1) court exempts declarant from testifying due to privilege
2) dead/sick 3) proponent of statement cannot procure dec's attendance by process or other reasonable means, 4) dec refuses to testify despite court order, or 5) declarant's memory fails |
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Former testimony exception - specific instances
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1) opp. to examine
2) declarant unavailable 3) similar motive to examine 4) Deposition testimony - allowed 5) predecessor in interest |
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Predecessor in interest
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there was a representative, who HAD a similar motive - there was a CLOSE privity relationship between the former and latter party
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Declaration against interest exception
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hearsay statement is admissible if, at time it was made, it was against the financial interest of dec or would have subjected dec to criminal liability. If the statement is offered to exculpate accused, there must be corroborating evidence to admit the statement. *unavail. dec.
*different from party admission - dec. against interest made by anyone |
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Dying declaration exception
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Hearsay statement by one believing he is about to die & describing cause or circumstances leading to impending death is admissible in civil action and in HOMICIDE prosecution. Declarant need not die but must be unavailable.
*focus - cause or circumstances leading to death |
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Excited utterance exception
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Hearsay statement relating to startling event or condition is admissible when made while declarant was still under stress of excitement caused by event or condition. No need to show dec unavailable.
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Present sense impression exception
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admissible, if describing or explaining an event or condition made while dec was perceiving the event or condition or immediately thereafter. No need to show dec unavailable.
*same time - timing is contemporaneous as the events perceived |
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Exception for declaration of then existing physical or mental condition (state of mind)
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hearsay statement of declarant's then existing physical of mental condition or state of mind is admissible to show the condition or state of mind. But a statement describing a memory or belief is NOT admissible to prove the fact remembered or believed.
**no need to show dec. unavailable |
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Exception for statement of past or present mental or physical condition made for medical diagnosis or treatment
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hearsay statement by one person concerning the past or present mental or physicla condition, or its cause, of that person or any other person, is admissible if made for and pertinent to medical diagnosis or treatment. No need to show dec unavailable.
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Business records exception
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admissible if:
1) a record of events, conditions, opinions or diagnoses; 2) kept in course of regularly conducted business activity 3) made at or near time of matters described 4) by person w/ knowledge of the facts in that record, 5) it was regular practice of business to make such record *can exclude if untrustworthy - no need to show dec unavailable *can cover all levels of hearsay |
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Public records exception
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admissible IF within:
1) record describes activities of the office 2) record describes matters observed purusant to duty imposed by law; or 3) record contains factual findings resulting from investigation made purusaunt to authority granted by law, unless untrustworthy. *criminal case - prosecution cannot use 1 or 2. *no need to show dec. unavail |
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Judgment of previous conviction
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statement describing felony conviction (copy of the judgment of conviction) admissible in both civil and criminal cases to prove any fact essential to the judgemnet, but when offered by prosecution for purposes other than impeachment, judgments against person other than the accused are inadmissible.
*no need to show dec. unavail. |
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Confrontation Clause
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*see page 37
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Authentication
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every item of non-testimonial evidence - must be authenticated - proving it is what the proponent of that evidence claims it to be - "sufficient to sustain finding"
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Methods of authentication
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1) Admission
2) Eyewitness testimony 3) Expert opinion 4) Lay opinion 5) Circumstantial evidence - unlimited, "ancient documents rule" 6) Genuine exemplar |
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Ancient documents rule
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authenticity est if:
1) document is 20 years old or more 2) does not on its face present any irregularities, and 3) was found in a place of natural custody |
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Self Authenticating writings
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for certain writings, authentication is unnecessary.
e.g. 1) public documents certified 2) acknoledged doc 3) official publications, newspapers, periodicals, |
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Trade inscriptions
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tag or label that purports to have been attached in course of business and indicates ownership, control or origin.
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Authenticating PHOTOS
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watch for personal knowledge. does fact testified to = fact perceived?
*e.g. photo to W of intersection |
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Authenticating non-unique items
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items that are facially indistinguishable from other like items (bag of white powder) - to authenticate, proponent must lay CHAIN OF CUSTODY demonstrating that this is the specific item porpoentn claims it to be.
*small breaks in the chain - is ok - still sufficient to sustain a finding. NOT big breaks. |
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Best Evidence Rule
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Applies only where evidence offered to prove the CONTENTS of a WRITING. Writings = not only documents but also videos, photos, x-rays, audio recordings, computer disks, or any tangible collection of data. The rule requires original, but w/ many exceptions.
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When is evidence being offered to prove contents of a writing?
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1) case turns on contents of legal instrument.
*where contents of K (legal instrument) is available 2) Knowledge obtained from writing - BER applies (e.g. W testifying that D got knowledge from a written instrument) |
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Voluminous documents exception
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can be summarized if originals available for inspection.
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Assuming BER is applied - what type of evidence is admissible to prove the contents of a "writing"?
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1) Originals - e.g. computer printouts and public docs, certified copies
2) Duplicates usually also admissible |
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Exception to admissibility of duplicates or other written evidence that is not the original
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this evidence is NOT admissible where there is genuine question as to the authenticity of original
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Contents can be proven by testimony, IF
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original lot or destroyed, unless bad faith by proponent of testimony.
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Privileges
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1) a/c
2) spousal 3) psychotherapist/patient 4) social worker-client **in civil actions under diversity jxn, STATE privileges apply in federal court |
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A/C Privileges
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communication between a/c or their reps intended by client to be CONFIDENTIAL and made to FACILITATE LEGAL SERVICES is privileged in all civil and criminal proceedings unless waived by the cl.
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Exceptions to Privilege (a/c)
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not apply:
1) pro. services sought to further what cl knew or should hav eknown to be a crime or fraud, or 2) communication relates to alleged breach of duty between lawyer and cl, or 3) two or more parties consult an attorney on a matter of common interest and the communication is offered by one of these parties against another. |
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Psychotheraptist-Patient - Social worker privilege
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Same basic rules
confidential and made to facilitate rendition of professional psychological services |
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Doctor - patient
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NO doctor-patient privilege under the FRE but must (including CA) have adopted the privilege -apply STATE privilege laws
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Patient must show (privilege)
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privilege to prevent disclosure of info confidentially conveyed to a physician where the patient conveyed the info for the purpose of obtaining diagnosis or treatment and the info was pertinent to diagnosis or treatment.
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Exceptions to Dr-Patient privilege
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where:
1) the patient puts his physical condition in issue, as in a personal injury suit, 2) where physician's services sought to aid in crime or fraud or to escape capture after a crime or tort 3) in case alleging breach of duty arising out of physician-patient relationship, as in a malpractice action. *CA does not recognize the privilege in criminal cases |
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Spousal Privileges
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1) Spousal testimonial privilege permits W to refuse to testify against his/her spouse as to anything. *applies only in criminal cases.
2) Spousal confidential communication privilege protects confidential spousal communications during marriage. **applies in both criminal and civil cases. **need valid legal marriage, not applicable to crimes against the spouse/kids |
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Judicial Notice
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Process of establishing facts w/out presenting evidence. Two issues:
1) facts appropriate for judicial notice, 2) procedure for taking judicial notice |
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Facts appropriate for Judicial Notice
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courts can take judicial notice of facts not subjected to reasonable dispute b/c they are either:
1) generally known within the jxn or 2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. |
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Procedure for taking Judicial Notice
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party must request judicial notice to compel judicial notice and, if not requested, court has discretion to take judicial notice. Civil case - jury instructed to accept fact as conclusive; Criminal case - jury instructs, may accept but not required to accept the judicial notice fact
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Evidence - essay form:
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1) Form
2) Purpose 3) Presentation 4) Hearsay 5) Privileges |
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Analysis - Party Opponent
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nonhearsay - an admission is a statement made or act done that amounts to a prior acknowledgement by one of the parties of one of the relevant facts. **vicarious admission (admission was authorized - done w/in scope of the duty, while principal-agent relationship existed)
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Statement against interest
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*dec unavailable
A statement of an unavailable declarant is admissible if it is against the declarant's pecuniary, proprietary or penal interest when made. **objective |
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Excited utterance - analysis
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An excited utterance is a statement made during or soon after a startling event while under the stress of excitement.
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Present Sense Impression
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A declarant's statement made concurrently while the declarant was perceiving an event is admissible. *describing perception of what was going on.
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Present sense impression (CA)
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no hearsay exception for present sense impression - CA does allow for contemporaneous statements that the declarant makes to EXPLAIN, qualify or make understandable something that the declarant himself is doing at the very time he makes the statement.
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Analysis - Character Evidence
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Character evidence is generally not admissible in civil cases to prove negligence or fault. Character not at issue.
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Analysis - Prior convictions
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allowed, on c/e to impeach a W, by prior convictions - no foundation req'd - before a W can be impeached, must be given the opportunity to explain or deny the conduct
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Dying Declaration - Analysis
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applies in a homicide or civil action; made by unavailable declarant, who believes death is imminent concerning the cause or circumstances of impending death - admissible - CA - allowed in any kind of case (civil or criminal) where it is relevant to know what killed the declarant.
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Past bodily condition
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Statements of a declarant's past bodily condition are generally excluded. However, under the FRE, a statement or description of a past symptom, sensation or condition is admissible if made for the diagnosis or treatment of the declarant or is pertinent to such diagnosis or treatment.
*CA - bodily condition is admissible only if the declarant is unavailable - only used as evidence of the declarant's past bodily condition when that is itself the issue. |
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Analysis - Effect on hearer/listener
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to show the statement's effect on the hearer/reader.
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Former Testimony exception - to the hearsay rule
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the testimony of a now unavailable W given at another hearing or in a depo taken in accordance w/ the law is admissible in a subsequent trial as long as there is a sufficient similarity of parties and issues to that the opportunity to develop testimony or c/e at the prior hearing or depo was meaningful.
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Patient - Doctor privilege - can it be used when physical condition at issue?
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no - when the issue is about the physical condition of the patient (personal injuries suit for injuries) there is no privilege available.
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State of mind - exception to hearsay - analysis
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It is hearsay, but falls under the exception for declarations of STATE OF MIND, including declarations of intent offered to show subsequent acts of the declarant (intent to do something is the future is admitted as circumstantial evidence that the intent was carrier out) that he acted in conformity therewith.
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Are felony judgments admissible to prove any essential fact
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yes - but must be a felony conviction - punishable by an excess of one year
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Admissions rule
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a statement made, or an act done, that amounts to a prior acknowledgement by one of the parties of one of the relevant facts. e.g. attempts to bribe Ws, may be held to manifest awareness of liability or guilt.
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prior inconsistent statement made under oath
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or deposition is admissible nonhearsay, and may be used as substantive evidence as well as for impeachment.
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Can the court stop c/e
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yes, court has discretion to the extent or scope of c/e - judge may exercise reasonable control over the examination of Ws to aid the effective ascertainment of truth, to avoid wasting time, and to protect Ws from harassment or undue embarrassment.
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what is the scope of c/e
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1) matters brought out on direct examination and inferences naturally drawn therefrom; and
2) matters affecting the credibility of the W |
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Lay opinion testimony - W - elements
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1) rationally based on the perception of the W
2) helpful to a clear understanding of the W's testimony or to the determination of a fact in issue; and 3) not based on scientific, technical, or other specialized knowledge |
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Past recollection recorded - factors to foundation requirements
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A writing may be introduced under the exception to the hearsay if:
1) the W at one time had personal knowledge of the facts reciting in the writing; 2) the writing was made by the W or under his direction, or was adopted by the W; 3) the writing was timely made when the matter was fresh in the mind of the W; 4) the writing is accurate; and 5) the W is presently unable to remember the facts sufficiently to testify fully |
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Analysis - Admission by party opponent
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A statement amounting to a prior acknowledgment by a party of a relevant fact is admissible as nonhearsay under the FRE or as a hearsay exception under CA law.
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Hearsay, exception - effect on hearer/listener/reader
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A statement that is inadmissible hearsay to prove the truth of the matter asserted may nevertheless be admitted to show the statement's effect on the hearer or reader.
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Character evidence - of D
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under both the FRE and CEC, specific acts of misconduct are generally inadmissible unless independently relevant to some issue other than character. P8 does not allow a prosecutor to initaite the use of character evidence to prove the D's conduct on the occasion in question.
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Business records/police reports
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Generally, police reports are not admissible against criminal D under the business records exception. Some jxn admit police reports if they contain onlyu routine information rather than observations or opinions of officers. In CA, a police report may be admissible against a criminal D under the business records exception as long as the sources of information for entires in the record indicate the record's trustworthiness.
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W's character attack
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no allowed in FRE, unless it is at issue prior to; if not, the evidence is not allowed. CA - allows either side to bolster creditibility before it has been attacked.
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Present sense impression
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W's statement made concurrently while the W was perceiving the events reported - CA has no hearsay exception for present sense impression.
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RELEVANCY - analysis
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evidence is logically relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be w/out the evidence. - CEC requires the fact of consequence to be in dispute to be relevant.
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Present sense of mind - hearsay exception
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a statement of a declarant's then-existing state of mind, emotion, sensation, or physical condition is admissible.
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When is character evidence admissible as substantive evidence, rather than to impeach?
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1) prove character when it is the ultimate issue in the case; or
2) serve as cricumstantial evidence of how a person probably acted. |
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Self-Authenticating Documents - list
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*documents that "prove themselves"
1) certified copies of public records, 2) official publications, 3) newspapers and periodicals, 4) trade inscriptions, 5) acknowledged documents 6) commercial paper and related documents, and 7) certified business records |
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Ws must possess what four basic testimonial attributes?
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1) capacity to observe
2) to recollect, 3) to communicate 4) appreciate the obligation to speak truthfully, otherwise the W is an ******* |
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W must have what????
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must have PERSONAL KNOWLEDGE
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How is proper foundation laid out for prior inconsistent statements?
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W had opportunity to explain or deny. Exception: the inconsistent statements by hearsay declarants may be used to impeach despite the lack of a foundation; or where justice interest requires;
PIS - usually hearsay, admissible only to impeach, but if it was given under oath at a prior proceeding, it is admissible nonhearsay and may be admitted as substantive evidence of the facts stated. |
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Bias or interest
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evidence that a W is biased or has an interest in the outcome of a suit tends to show that the W has a motive to lie
*Need foundation for extrinsic evidence - needs to be asked about the facts on cross-exam first. |
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Conviction of a crime
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Any crime involving dishonesty - felony/misdemeanor - all in;
Felonies NOT involving dishonesty - discretion by court to exclude IF 1) the W being impeached is a criminal D, and prosecution has not show that the conviction's probative value outweighs its prejudicial effect; or In the case of all other Ws, the court determines that the conviction's probative value is substantially outweighed by its prejudicial effect. |
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Can remote crimes being introduced as prior conviction/felonies to impeach?
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NOT - if more than 10 years old since the date of conviction or the date of release from confinement (whichever is later).
*no foundation required fro extrinsic evidence - just by cross exam. or introducing a record of the judgment |
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Specific Instances of Misconduct - Bad Acts
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W may be interrogated upon c/e w/ respect to an act of misconduct only if the act is probative of truthfulness - requires:
1) inquiry in good faith by cross examiner 2) NO ex. evidence, only on c/e; cannot inquiry about past arrests, *arrests alone are not bad acts |
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Opinion or Reputation Evidence for Truthfulness
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A W may be impeached by showing that he has a poor reputation for truthfulness.
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Sensory Deficiencies
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W may be impeached by showing, either on c/e or by ex. evidence, that his faculties of perception and recollection were so impaired as to make it doubful that he could have perceived those facts.
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Attorney - Client Privilege - needs:
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1) A/C relationship
2) statements made in confidence 3) presence of representatives of att or client does not destroy confidentiality 4) Cl holds privilege 5) Privilege applies indefinitely |
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Physician - Patient privilege
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1) professional relationship exists
2) info. is acquired while attending the patient in the course of treatment; and 3) the info is necessary for treatment. (non-medical info is not privileged) |
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When is the physician-patient privilege NOT applicable
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1) patient puts his physical condition in issue
2) physician's assistance was sought to aid wrongdoing 3) dispute between the physician-patient 4) patient agreed to waive privilege 5) federal case applying the federal law of privilege |
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Spousal Immunity
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privilege when invoked, a married person whose spouse is a D in a criminal case may not be called as a W by the prosecution NOR be compelled to testify against the spouse in any criminal proceeding, regardless of whether the spouse is the D. lasts only during the marriage. belongs to W-spouse - may choose testify if he/she wants.
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Privilege of Confidential Marital Communications
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in any civil/criminal case, confidential comm between a h-w during a valid marriage are privileged. Need the existence of a marital relationship when the communication is made. Communication made IN RELIANCE UPON THE INTIMACY of the marital relationship.
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Judicial Notice
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ederal Rule of Evidence 201, evidence of certain facts is not required, because the judge must take "judicial notice" of such facts. To require the court to take judicial notice, the fact must be one which is not subject to reasonable dispute, either because it is: 1) generally known within the territorial jurisdiction of the court; or 2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned, and a party must request judicial notice of the fact and provide the court with the necessary information to substantiate the fact.
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Judicial Notice - differences in criminal/ Civil
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In a civil action or proceeding, the court shall instruct the jury to accept as conclusive any fact judicially noticed, but in a criminal case, the court shall instruct the jury that it may, but is not required to, accept as conclusive any fact judicially noticed.
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