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92 Cards in this Set
- Front
- Back
permissible evidence
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relevant evidence
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relevant evidence
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evidence is relevant if it has any tendency to make the existence of any fact of consequence more or less probable than it would be without the evidence
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FR exclusion of relevant evidence
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court may exclude if the probative value is substantially outweighed by unfair prejudice, confusion, or waste of time
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NV exclusion of relevant evidence
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court must exclude evidence if the probative value is is substantially outweighed by unfair prejudice or confusion
may for waste of time |
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admissibility of insurance
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inadmissible to prove culpable conduct
admissible to prove anything else - Ownership/control - To impeach credibility of witness by showing interest/bias |
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admissibility of subsequent remedial measures
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Inadmissible to prove culpable conduct, and defective product design (only in FR, NV admissible)
Admissible to prove anything else - Ownership/control - Impeachment: to rebut claim that precaution was not feasible |
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Evidence that a person has previously filed similar tort claims
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Inadmissible to show the invalidity of the present claim (PV outweighed by UP)
May be used to show: 1. pattern of fraudulent claims 2. preexisting condition |
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admissibility of settlement offers and pleas
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inadmissible to prove liability or fault
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For exclusion of settlement offer these factors must exist
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1. There must be a claim filed
2. Dispute as to liability or damages |
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offer to pay medical expenses
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inadmissible to prove liability, but additional statements are admissible
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Possible methods of proving character
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1. Reputation
2. Opinion 3. Specific Acts |
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collateral source rule
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compensation from a source other than the tortfeasor is not deducted from the damages the plaintiff can recover from the tortfeasor
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exceptions to proof of prior accidents or claims
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1. pattern of fraudulent claims
2. preexisting condition |
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admissibility of routine business practice
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admissible to show conduct was in conformity with that practice on the occasion in question (habit evidence for businesses)
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character evidence in civil cases
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- admissible when character is in issue
- inadmissible to prove conduct FR- can show prior acts of sexual assault or child molestation to prove conduct |
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prosecution can offer character evidence first to prove conduct in a criminal case when
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NV- never
FR 1. previous conduct in cases of sexual assault or child molestation 2. defendant has offered evidence of victim's character, prosecution can offer evidence that the defendant has the same character trait |
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defendant can prove character trait in criminal trial by
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1. reputation
2. opinion must be pertinent to the crime charged |
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proof of victim's character
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defense can offer evidence of victim's character
FR in homicide case, prosecution can offer evidence of victim's peacefulness when defendant claims victim attacked first |
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rape shield statute
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come back to this
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specific instances of defendant's bad character can be used to prove
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Motive
Intent Mistake, absence of Identity Common plan or scheme |
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competency to be a witness
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1. personal knowledge
2. present recollection 3. communication 4. sincerity |
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sincerity of a witness
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must take an oath or make an affirmation to tell the truth
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time of objection
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must be timely or the objection is waived
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objections to form of testimony and questions
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1. calls for narrative
2. unresponsive 3. leading 4. assumes facts not in evidence 5. argumentative 6. compound |
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present recollection refreshed
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anything can be used
opponent may inspect and offer into evidence anything used to refresh |
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elements of past recollection recorded
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1. plaintiff once had personal knowledge
2. document was made or adopted by the witness 3. made at a time it was fresh in the witnesses mind 4. document was accurate when made 5. witness now has insufficient recollection to testify |
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lay opinion requirements
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1. based on the witness' perception
2. rationally based (logical connection between perception and opinion) 3. helpful to the jury |
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expert opinion requirements
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1. helpful to the jury
2. witness must be qualified 3. witness must believe in the opinion to a reasonable degree of certainty |
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supporting credibility of witness
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only when the witness' credibility is first attacked
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prior consistent statements may be used for
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all purposes (including as substantive evidence) if made before the contradictory event
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extrinsic evidence for impeachment
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any evidence other than testimony given at this trial by the witness being impeached
inadmissible to impeach a witness on a 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 witness' credibility except to contradict the witness
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prior inconsistent statements NV rule
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PIS are not hearsay whether given under oath or not
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expert degree of certainty
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must have reasonable degree of certainty
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expert can base opinion on
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1. admitted evidence
2. personal knowledge 3. inadmissible evidence that is the type reasonably relied on by professions in that field |
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learned treatise hearsay exception
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can be admissible to prove anything stated therein if it is an accepted authority in the field
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prior consistent statement
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can be used for all substantive and impeachment if made before act in question
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extrinsic evidence on a collateral matter
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cannot use, must accept witnesses testimony answer
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prior inconsistent statement
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FR- must be given under oath, then can use for substantive and impeachment
NV- prior inconsistent statements are not hearsay- can be used for substantive and impeachment |
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impeachment by conviction of crime and exclusion of evidence
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1. can show conviction of crime involving false statement- cannot exclude for unfair prejudice
2. felony- may be excluded for unfair prejudice cannot be more than 10 years from the date of conviction or release unless probative value outweighs unfair prejudice |
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NV opinion and reputation for truthfulness
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opinion testimony is permitted
reputation testimony is not |
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Hearsay - definition:
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an out of court statement offered to prove the truth of the matter asserted
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Words of independent legal significance:
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1) contract
2) gift 3) effect of words on the person (warning) |
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Exemptions - admission of party opponent:
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1) does not have to be against interest
2) not subject to personal knowledge 3) vicarious admissions - authorized spokeperson or employee on mater w/n scope of employment during employment, adoptive admission, co-conspirator in furtherance of conspiracy. NOTE: admission can be by conduct (attempt to bribe) |
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Exceptions to the hearsay rule - declarant unavailable:
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1) former testimony
2) declaration against interest 3) dying declaration |
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Exceptions - former testimony:
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admissible if:
1) party against whom offered had a similar motive and an opportunity to examine 2) civil case - party against whom offered was not present at earlier proceeding, but is a predecessor in interest to a party who had a similar motive and an opportunity to examine NOTE: Grand Jury testimony is NOT former testimony (no opportunity for D to cross-examine) |
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Exceptions - declaration against interest:
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admissible if at the time made statement was against declarant's financial interest OR would have subjected declarant to criminal liability
NV- also if statement would make the person an object of hatred or social disapproval |
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Exceptions - declaration against interest - offered to exculpate (someone else admitted):
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there must be corroborating evidence to admit
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Exceptions - dying declaration:
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1) must be dying or believe death is imminent
2) describing cause and circumstances of death 3) admissible in civil cases and homicide ONLY NOTE: NV - admissible in all criminal and civil cases, no subject limitation- all are admissible |
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Payment or offer to pay medical expenses:
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inadmissible to prove liability
BUT, related statements ARE admissible |
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Exceptions to the hearsay rule - declarant's unavailability immaterial:
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1) present sense impression
2) excited utterance 3) then-existing physical or mental condition 4) statement made for medical diagnosis or treatment 5) business records 6) public records 7)judgment of prior conviction |
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Excited utterance:
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1) must relate to startling event
2) when made, declarant was under stress or excitement caused by condition 3) declarant did not have time to reflect |
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Present sense impression:
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1) must describe or explain an event
2) while declarant is perceiving it or immediately thereafter |
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present state of mind
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admissible to show state of mind or intent
BUT, not admissible to prove fact remembered or believed |
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Statement for medical diagnosis or treatment:
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1) can be of present OR past condition
2) can be of someone else's condition 3) only portion relevant to diagnosis or treatment allowed |
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Business records:
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1) record kept in course of regularly conducted business
2) made at or near time of event 3) by person w/ knowledge 4) it was regular practice of business to make record |
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Public records:
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1) record describes activities of office
2) record describes matters observed pursuant to duty imposed by law 3) record contains factual findings resulting from investigation authorized by law FR- criminal case cannot use 2 & 3 NV- criminal case cannot use 3 |
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Judgment of prior conviction:
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admissible in both civil and criminal cases
BUT, not admissible against person other than accused, unless for impeachment |
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Hearsay - "catch all" exception - NV:
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In Nevada, a statement is admissible if its nature and the special circumstances under which it was made offer assuramces of accuracy not likely to be enhanced by calling declarant, even if he is available.
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Confrontation Clause:
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The CC excludes an out of court statement if it is testimonial
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Confrontation Clause - "testimonial" statement:
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statements made to further a police investigation aimed at producing evidence for the prosecution
BUT not statements made in an emergency situation |
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Authentication:
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all real or documentary evidence must be authenticated as genuine and that it is what it purports to be
NOTE: low burden "sufficient to sustain finding" (lower than preponderance of the evidence) |
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Ancient document rule:
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authenticity established if:
1) document is 20 years or older 2) does not on its face show any irregularities (tempering) 3) was found in place of natural custody |
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Self-authenticating documents:
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1) certified copies of public docs
2) acknowledged docs (notary) 3) newspapers and periodicals 4) business records 5) trade inscriptions |
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Best evidence rule:
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applies ONLY when evidence offered to prove CONTENTS of writing if the terms are material(look for a writing of legal significance: deed, will, contract)
Requires original writing (copies acceptable, unless by hand) Exception: volumnious records can be summarized if originals are available for inspection |
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Best evidence rule - testimony regarding content:
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admissible where original lost or destroyed, unless bad faith by proponent
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Privileges:
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1) attorney-client
2) psychoterapist-patient 3) doctor-patient 4) spousal NOTE: federal courts do NOT recognize doctor-patient privilege. |
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Attorney-client privilege:
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a communication between attorney and client or their representatives intended by client to be confidential and made to facilitate legal services is privileged in ALL civil & criminal cases, unless waived by CLIENT
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Attorney-client privilege - corporations:
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applies to employees/agents if authorized by corporation to communicate w/ attorney
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Attorney-client privilege - doctor retained by attorney in PI action:
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privilege applies to ALL communications b/w doctor, client, and attorney
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Attorney-client privilege - communication intended to be confidential:
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Objective standard of intent
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Attorney-client privilege - death of client:
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privilege survives death of client
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Attorney-client privilege - Exceptions:
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1) legal services sought to further crime or fraud
2) communication relates to alleged breach of duty b/w A and C 3) two or more clients consult on common matter and communication is offered against one of them |
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Spousal testimonial privilege - application:
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ONLY of parties are married at trial
FRE - applies to criminal cases ONLY NV - ALL civil & criminal cases |
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Spousal testimonial privilege - definition:
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permits spouse to refuse to testify against other spouse
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Spousal testimonial privilege - who owns it?
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witness owns
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Spousal confidential communication privilege:
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protects CONFIDENTIAL communication made during marriage - applies in both civil & criminal cases
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Spousal confidential communication privilege - who owns it?
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BOTH spouses
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Judicial notice:
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process of establishing facts without presenting evidence
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Judicial notice - facts appropriate for:
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facts not subject to reasonable dispute because they are either:
1) generally known within the jurisdiction, OR 2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned |
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Judicial notice - procedure:
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may be requsted by a party or the court has discretion to take judicial notice
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Judicial notice - consequences - civil cases:
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court instructs jury it must accept noticed fact as conclusive
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Judicial notice - consequences - criminal cases:
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court instructs jury it may, but is not requred, to accept noticed fact as conclusive
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Physician-patient privilege - exceptions:
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1) patient has put his physical condition at issue (suit for personal injuries)
2) medical malpractice suit against doctor |
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Professional journalist privilege - NV only:
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protects journalist from being forced to reveal published or unpublished information and his sources.
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Relevance - Court discretion to exclude relevant evidence:
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if probative value is substantially outweighed by unfair prejudice, risk of confusion to the jury, and waste of time
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Habit evidence:
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admissible to show that a person acted in accordance with the habit on particular occasion.
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Character evidence - civil cases:
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1) evidence of character trait of a party is inadmissible unless it is an issue in the case
a. negligent entrustment b. defamation 2) if a party testifies, they automatically place their character trait of truthfulness at issue |
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Character evidence - criminal cases - rules:
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1) the prosecution cannot introduce any evidence of D’s bad character to show that D acted in conformity with that character
2) D is allowed to present evidence of relevant character traits to establish that he acted in conformity with those traits and did not commit the crime – reputation and opinion ONLY 3) If D presents evidence of good character, prosecutor is allowed to introduce evidence of D’s bad character 4) If D testifies, he automatically places his character of truthfulness at issue - "opens door" |
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Expert opinion - reliable principles that were reliably applied - Daubert (FRE ONLY):
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1) peer reviewed
2) tested & subject to testing 3) low error rate 4) reasonable level of acceptance |
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Expert opinion - reliable principles that were reliably applied - Fry (NV):
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general acceptance within scientific community
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Victim's character in sexual misconduct cases (rape) is limited as follows
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- No opinion/reputation
- Specific instances admissible only to prove 1. third party was the source of sexual crime 2. consent 3. prior consensual acts between the "victim" and the accused |