002 Evidence

Front 1

Limited admissibility

Back 1

evidence may be admitted for one purpose without being admissable for another purpose

Front 2

$$requirements for establishing relevance

Back 2

1. probative 2. material

Front 3

$$probative

Back 3

evidence is probative if it is makes any fact more or less probable than it would be without the evidence.

e.g. dangers of drug use on humans do not make any fact that is material to a charge of drug smuggling either more probable or less probable than it would be without this evidence.

Front 4

Material

Back 4

whether the proffered evidence bears on a fact of consequence in regard to the particular matter before the court.

Front 5

$ When can relevant evidence be excluded?

Back 5

the probative value of the evidence is SUBSTANTIALLY OUTWEIGHED by dangers or considerations

Front 6

$ 403 dangers

Back 6

1. unfair prejudice
2. confusion of issues
3. misleading the jury

-subject to appellate review

Front 7

$ 403 considerations

Back 7

1. undue delay
2. waste of time
3. needless presentation of cumulative evidence

-NOT subject to appellate review

Front 8

when can negative evidence come in?

Back 8

when the P seeking to introduce the evidence can show that:

the occurrence probably would have been observed if it had in fact taken place.

Front 9

Negative Evidence--fact that an event wasnt

Back 9

P seeking to bring it in if they can show that the occurrence probably would have been observed or recorded if it had in fact taken place.

Front 10

Cumulative testimony

Back 10

relevant, but probative value outweighed by its cumulative nature

Front 11

Safety history wrt products liability is admissibile when

Back 11

1. material circumstances of other customers' use were substantially similar and 2. manufacturer probably would have gotten complaints if similar accidents had happened.

Front 12

Liability Insurance

Back 12

admissible to prove ownership, agency, control or witness bias

inadmissible to prove negligence, wrongdoing or ability to pay

also LACK of insurance in inadmissible except to rebut a false claim that ∆ has insurance.

Front 13

Admissions collateral to disclosure of insurance

Back 13

fact that there is liability insurance is admissible if the admission is so intertwined with an insurance disclosure that they cant be meaningfully separated

Front 14

Subsequent remedial measures

Back 14

inadmissible to prove negligence, culpable conduct, product defect or defect in a product's design

***admissible to prove:
1. ownership or control over condition that caused the harm at issue

and

2. feasibility of precautionary when measures, (if disputed i.e. ∆ raises impossiblity defense***)

or to impeach a witness

Front 15

Offers to Settle

Back 15

not admissible to prove liability or invalidity of a claim as to the validity or the amount but are allowed to demonstrate bias on the part of co-∆'s who may have settled out of court.

-admission made in connection with offer to settle not admissible.

--TN inadmissible to prove liability or validity of a claim whose validity or amount is disputed OR IS REASONABLY EXPECTED TO BE DISPUTED

Front 16

Offer to pay medical bills, furnish medical services

Back 16

not admissible to prove negligence

-admission made in connection with offer to pay is admissible

Front 17

Prior false claims

Back 17

admissible if ∆ can make some showing that the prior similar claims were FALSE.

Inadmissible to prove that π is HIGHLY LITIGIOUS

Front 18

Identity of Conditions wrt similar occurrences

Back 18

that the conditions were sufficiently similar that what caused previous injury is likely to have also caused π's injury

Front 19

Valuing property of substantially similar items

Back 19

Only an actual selling price of substantially similar property(i.e comparable) is admissible to prove the value of an item. An unaccepted offer is not admissible to prove value.

BUT and unaccepted offer by a property owner to sell to a 3P may be used against him

Front 20

Character Evidence--generally

Back 20

evidence of how a person generally behaves, or behaved on some other occasion(s), offered to prove how that person acted on the occasion in question. Generally not admissible to prove how a person acted on the particular occasion in question.

Front 21

$$$$$Character in a Criminal Case

Back 21

1. Prosecutor cannot introduce any evidence of ∆’s bad character if purpose of evidence is to show conformity therewith
includes bad reputation, prior crimes, or prior bad deeds

2. ∆ is allowed to present evidence of relevant good character traits to try to establish he acted in conformity with his good character and did not commit the crime
⁃ limited to opinion and reputation?
3. if ∆ opens door, state allowed to introduce bad character
⁃ reputation or opinion also allowed to ask ∆’s character witness about specific acts but no extrinsic evidence i.e. evidence of prior crimes
4. Evidence of prior crimes bad acts may be admissible to prove MIMIC but not to prove conformity therewith.
⁃ if prior crime offered under mimic, apply 403 balancing test.
5. If defendant testifies, then he automatically places character at issue and state can introduce lack of truthfulness

Front 22

character in a civil case

Back 22

1. No evidence of character trait of party to show conformity therewith during even that gave rise to litigation

2 .If character is being used for any other legitimate purpose it will not be kept out⁃
e.g. usually negligent entrustment, defamation(∆ can use specific instances of good character)

3. If party testifies, then truthfulness is at issue as soon as he takes the stand.
(party usually testifies in a civil case).

Front 23

when is character "in issue"

Back 23

1. Defamation(evidence of P's character to prove/disprove the truth of what D said about P)

2. Negligent Entrustment( D's knowledge of entrustee's bad character)

3. Child Custody(character/fitness of parent)

4. Insanity Defense(where D claims lack of volitional control as a result of a mental defect)

5. Entrapment(prove/disprove D was predisposed to commit the crime)

6. Character of decedent in wrongful death (in computing damages)

7. Self-Defense (regarding victim;s knowledge of D's violent nature)

Front 24

Habit--TOC/Balancing test

Back 24

courts look to 1. adequacy of the sample (i.e number of instances cited)

AND 2. uniformity of the responses.

***-Evidence of HABIT is admissible to show conformity therewith.

Front 25

biz routine practice

Back 25

evidence of an org's routine practice is treated identically to a person's habit. can be used to show that person or org. acted in conformity with that habit on a particular occasion

Front 26

Exceptions use char. evid to prove conformity therewith

Back 26

1. criminal ∆ may introduce his own favorable character traits (if pertinent) BUT this opens the door for the prosecution to rebut with evidence of negative character traits

2. CRIM ∆ may introduce character traits of the alleged victim , once again can be rebutted by prosecution

3. HOMICIDE--π may introduce evidence of the PEACEFULNESS of VICTIM (and violent nature of ∆) to REBUT evidence that victim was of violent temperament and was probably the aggressor

4. may be introduce for impeachment purposes

Front 27

When can proof of specific acts be made?

Back 27

1. inquiry during cross of a witness giving reputation or opinion evidence to test the basis of that opinion or reputation testimony

2. when evidence is NOT being used to establish action in conformity therewith--i.e. motive, ooportunity, plan, preparation, or identity--when the character of a person is "in issue" an essential element of the charge, claim or defense.

Front 28

What kinds of evidence can crim ∆ introduce when he seeks to establish his own good character to suggest that it is unlikely he committed the crime.

Back 28

reputation and opinion but once ∆ opens the door, then π can ask about specific instances but is bound by the question.

Front 29

When can crim ∆ introduce evidence of alleged V's bad character?

Back 29

reputation and opinion evidence of the V's character where, if the V had acted in conformity with his character, the conduct would tend to prove the defendant's innocence.

Front 30

π's rebuttal When crim ∆ introduces evidence of alleged V's bad character?

Back 30

when ∆ offers evidence that ∆ is 1st aggressor, π may REBUT by introducing evidence of he V's peaceful character.

-only instance where prosecution may initiate introduction of circumstantial character evidence

Front 31

criminal sexual offense cases

Back 31

∆ cannot offer evidence that V engaged in other sexual behavior or has a sexual predisposition except in certain conditions

Front 32

civil sexual offense cases

Back 32

evidence an alleged V's past sexual conduct or sexual predisposition is admissible only if the probative value of such evidence substantially outweighs the danger of harm to the victim and unfair prejudice to a party.

Evidence of sexual reputation is only admissible if it has been place in controversy by the alleged victim.

Front 33

Rape Shield

Back 33

Evidence offered to prove a V's sexual predisposition is generally inadmissible in criminal cases. But an exception exists for "evidence of specific instances of sexual behavior by the alleged victim wrt person accused when it is used to prove CONSENT.


or prover source of semen, injury, other physical evidence cam from someone else.

when evidence is admissible, it can only take the form of specific instances

Front 34

Pederasses/Sexual Preds

Back 34

π may introduce evidence of similar crimes of child molestation. π must dislcose to ∆ at least 15 days before trial (or later if good cause is shown) the statements or witnesses or a summary of the substance of the testimony to be offered.

Front 35

Hearsay

Back 35

1)out of court 2) statement 3)offered in evidence for the truth of the matter asserted

Front 36

Statement

Back 36

can be 1. oral 2. written 3. assertive conduct

Front 37

$ out of court statements that are not hearsay

Back 37

1. Verbal Acts--acceptance, offer, gift, bailment

2. knowledge on part of of listener is relevant to the case i.e. i.e.statements offered to show their EFFECT on the HEARER or READER

$$ 3. PINS of W offered to impeach

BUT

PINS can be used both to impeach and as SUBSTANTIVE evidence if:

1 PINS is an excited utterance
2. given under oath at a trial or other proceeding

Front 38

Hearsay that comes in for TOTMA i.e. exclusions

Back 38

1. admissions by a party
2. PINS given under oath a legal proceeding
3. prior ID made by a witness CURRENTLY on witness stand.

Front 39

multiple Hearsay

Back 39

must be admissible for EACH LAYER

Front 40

HEARSAY Exceptions

Back 40

BAD SPLITS, PEPPI F.

B usiness records
A dmission by party opponent
D Dying declaration

S pontaneous statements
P ast recollection recorded
L earned treatise
I nterest, declaration against
T Testimony, former
S tate of mind or condition

P ublic records
E quivalency
P rior inconsistent statements
P rior consistent statement
I dentification

F orfeiture

Front 41

Hearsay exclusion v. Hearsay Exception

Back 41

Exclusion applies to evidence that meets all 3 hearsay requirements but, for policy reasons, is defined to be non-hearsay.

Exception meets 3 req. of hearsay but is nevertheless admitted under an exception under FRE 803 or 804

Basically exclusion is not hearsay but exception is hearsay

Front 42

hsy exclusions--categories

Back 42

1. prior statements by a witness
2. admissions (statements made by or imputed to a party-opponent offered against that party)

Front 43

Admissions--types

Back 43

1. Individual admissions(admitted in pleadings or by "conduct")
2. Adoptive Admissions(A said X then ∆ said "that's right; silence)
3. Authorized/Vicarious Admissions
4. Co-conspirator admissions

Front 44

Admissions--generally

Back 44

-personal knowledge not required
-any statement made by a party-opponent is an ADMISSION
-must be RELEVANT (403)
-admissible only against person who made the statement

Front 45

$ Adoptive Admissions

Back 45

-explicit i.e. adopting one's statement as their own


$ -Silence-->If at any previous time a party hears an accusation and fails to protest, and a judge determines that a reasonable person would have protested the accusation if untrue, then both the ACCUSATION and the SILENCE are considered an ADOPTIVE admission by that party and we can have evidence of both accusation and silence.

Front 46

Silence as an adoptive admission

Back 46

when 1. declarant heard the accusatory statement; 2. declarant was capable of denying the statement; and 3. a reasonable person would have denied the statement if it were not true

UNLESS accusation made by police bc violates 5th amendment right against self-incrimination
e.g. "You Murderer" at the scene of the crime

COD HERD
Capable Of Denying
HEard the statement
Reasonable to Deny

Front 47

Vicarious Admissions--##

Back 47

statement by a non-party (parties in privity, employee within scope of employment, agent, or co-conspirator during the course of and in furtherance of the conspiracy proved by a preponderance of the evidence

TN admission of A:

1. concerning a matter in scope of employment
2. made during existence of agency relationship
3. against A's interest when mae

Front 48

admissions by conduct

Back 48

conduct can be considered an admission if, from the conduct, one can reasonably infer that ∆ was conscious of his guilt

e.g. FLIGHT,
-assuming false name,
- resisting arrest
attempted bribe of an officer

Front 49

401/403 and non-assertive conduct

Back 49

evidence must be relevant and the probative value must not be substantially outweighed by the possibility of unfair prejudice

Front 50

Spontaneous Statements

Back 50

1. Excited Utterance
2. Present Sense Impressions

Front 51

when is evidence of prior conduct admissible

Back 51

KIPPOMIA

knowledge
intent
plan
preparation
opportunity
motive
identity
absence of mistake or accident

Front 52

$ Excited Utterance

Back 52

statement 1. made under stress of excitement caused by a startling event or condition that 2) RELATES to the startling event

-availability immaterial

-no time requirement, but canot have recovered his "faculties"

Front 53

$ Present Sense Impression

Back 53

statement that 1)describes or explains an event or condition made 2) while declarant was perceiving the condition or event or immediately thereafter.

-ten minutes too long b/c speaker may not have had TIME TO REFLECT

-availability immaterial

Front 54

$ Present State of Mind "I'm goin' to crooked creek!"

Back 54

statement of D's then-existing state of mind, emotion, sensation or physical condition

May be offered to prove:
1) declarant's state of mind itself where it is "IN ISSUE" and "MATERIAL" (intent, attitude, mental feeling, pain, etc.) or

2. Declarant's later conduct following through on that state of mind (as circumstantial evidence that the intent was carried out)

-inadmissible if statement of memory or belief to prove the fact remembered or believed.

except if it relates to execution, revocation, identification or terms of declarant's will

Front 55

$ Declaration of physical condition

Back 55

$ 1. declarations of PRESENT symptoms, pain, sensations, or physical condition even if made to a consulting doctor

2. statements re: past bodily condition AND the CAUSE or EXTERNAL SOURCE are admissible if made for [and "reasonably pertinent" to] PURPOSES OF DIAGNOSIS OR TREATMENT i.e. must be made to medical personnel.
--applies to the declarant's bodily condition thus physicians declaration of someone elses is hearsay.

IN TENNESSEE "DIAGNOSIS AND TREATMENT"

Front 56

$ ****Business Records

Back 56

***Hospital records ALWAYS potential business records on MBE

KRAP

biz records are excepted if it is regular practice of the business to 1)KEEP such records and the records were made:2) in the REGULAR course of business 3) AT or near the time of the even/condition recorded and person preparing them had 4)PERSONAL KNOWLEDGE
must be authenticated by 1)testimony or 2)certifying in writing that it is a biz. record

can be attacked for lack of trustworthiness espec. if it is written with an EYE TOWARD LITIGATION

--complaints by employees not biz records because ees not under business duty to file their claims.

******-absence of a record can be introduced to prove nonoccurrence if it normally would have been recorded had it occurred.****

-availability of the recorder is IMMATERIAL

Front 57

Public Records and Reports

Back 57

1. records setting forth the activities of the office or agency

2. matters observed pursuant to a duty imposed by law as to which matters there was a duty to report (except police/law enforcement personnel in a criminal case UNLESS the duties are ministerial)

3. In a civil case or case against the Gov't factual findings can be admitted if resulting from an investigation authorized by law
must be recorded by and within the scope of duty of a public employee at or near the time of the event UNLESS the circs indicate a lack of trustworthiness---NOT IN TENNESSEE

-cant try to sneak in police incident reports under biz record or cathall exception but maybe under past recollection recorded if witness takes the stand

-But police reports can be used BY accused just not against

medical examiner's autopsy report typically not "law enforcement personnel"

Front 58

Learned Treatises

Back 58

Statements from authoritative works admitted if called to the attention of an expert witness and the works are established as reliable authority.

TENNESSEE-->ONLY FOR IMPEACHMENT

Front 59

$ *****Past Recollection Recorded

Back 59

writing 1) made or adopted by a witness 2) who had 1st hand knowledge of the events, 3) but who cannot now remember the facts; 4) writing made while the facts were fresh in his mind.

-document may be read aloud and admitted into evidence.
-some courts hold that it may not be rec'd as an exhibit unless offered by the adverse party.

Front 60

Residual

Back 60

necessary statement 1) offered as evidence of a MATERIAL FACT, 2)MORE PROBATIVE ON THE POINT than any other reasonably procurable evidence 3)with UNEQUIVOCAL GUARANTEES OF TRUSTWORTHINESS of trustworthiness
-notice required including name and address of declarant.

Front 61

***Hearsay Exceptions: Unavailability Required

Back 61

DAFFT
**Dying Declarations
**AGAINST interest
Family and personal history
Forfeiture by wrongdoing
**Testimony, former

Front 62

***Unavailability def

Back 62

PRIMA

validly asserts PRIVILEGE
REFUSES despite a court order
ILL or dead
lack of MEMORY
ABSENT
-proponent cannot procure the unavailability

Front 63

***Dying Declaration

Back 63

-declarant must be unavailable but need not be dead. (ADMISSIBLE IN CIVIL CASE)

-if a criminal case AND IN TENNESSEE-- ∆ MUST BE CHARGED WITH HOMICIDE

made while declarant believed death was imminent and the statement was made concerning the cause or circumstances of what he believed to be his impending death.

-no one wants to meet their maker with lies on their lips

Front 64

$ ***Statement against Interest

Back 64

-declarant must be UNAVAILABLE*****

declarant KNEW statement against his pecuniary, proprietary, or penal(civil or criminal) interest when made.
-must be disserving
-must have personal knowledge
-rendered invalid the declarant's claim against another


If statement exposes ∆ to criminal liability and offered to exculpate the accused it is admissible only if supported by corroborating evidence (NOT IN TN)

Front 65

$ ***Former Testimony

Back 65

-must be unavailable
statement made under oath in the same or at some other at which the party against whom it is offered had motive and opportunity to develop testimony [by direct, cross, or redirect examination]

In civil cases, the party's predecessor in interest must have been a party in the former action.

Predecessor in interest includes one in a privity relationship with the party such s grantor-grantee, testator-exectutor, life-tenant-remainderman and joint tenants.

-no affidavits, coroner's inquests, or grand jury testimony

Front 66

$$$$$Forfeiture by Wrongdoing

Back 66

statement of an unavailable witness is admissible when offered against a party who has engaged or acquiesced in wrongdoing that intentionally procured the declarant's unavailability.

Front 67

Statement of Personal or Family History

Back 67

-declarant must be UNAVAILABLE
statement of personal or family history made by family or one intimately associated with the family
1. concerning Dec's own birth, adoption, marriage, divorce, legitimacy;relationship by blood, adoption, or marriag; or other similar fact

Front 68

Reputation

Back 68

admissible concerning a person's character, or personal or family history, land boundaries, or a community's general history.

Front 69

Judgment

Back 69

a judgment of a prior felony conviction is admissible in a civil case to prove any fact essential to the judgment. In criminal case, only against the accused.

Front 70

commands/questions

Back 70

not assertions and therefore not hearsay

Front 71

negligence cases/notice

Back 71

IN negligence cases, where knowledge of the danger is the issue, a 3P's warning may be admitted to show the listener's notice of the danger

Front 72

animals/machines

Back 72

not considered hearsay because they have no motivation to lie.

Front 73

prior ID

Back 73

a w's out of crt statement identifying a person made after declarant has perceived him and where declarant is 1. presently testifying and 2. available for cross is specifically excluded as nonhearsay

Front 74

perceived defined

Back 74

witness was aware of the person; doesnt actually have to see the person or even recognize his presence through another sense (smell or touch)

Front 75

guilty plea

Back 75

admissable as an admission because the plea is considered a statement by a party
BUT guilty pleas to minor offenses usually not admissable

conviction however is not an admission but conviction of a felony is admissible to impeach and is admissible in any ensuing civil suit "to prove any fact essential to sustain the judgment"

Front 76

nolo contendere plea

Back 76

not admissible as an admission bc does not concede guilt

Front 77

under what circumstances will declarant of an out-of-court statement be considered unavailable?

Back 77

PRISM

exempted by Privilege

Refusal to testify

Incapability--death, physical or mental illness, infirmity

Subpoena--unable to procure declarant by process or other reasonable means
Memory--(lack of wrt subject matter)

Front 78

$$$Competency--elements

Back 78

Ws generally presumed to be competent to give testimony until the contrary is established

1. W must have PERSONAL KNOWLEDGE of he matter on which he will testify

2. witness must declare he will testify truthfully

judge/jurors may not testify

Front 79

Competency--testimonial abilities

Back 79

1. capacity to observe
2. recollect
3. communicate
4. appreciate the obligation to speak truthfully.

Front 80

Competency--Dead Man's Statutes

Back 80

laws prohibiting testimony concerning a transaction between a witness with an interest in the outcome and a now-deceased person in cases pressed or defended by the decedent's executor

"interested" if P stands to gain or lose by the judgment o the judgment may be used for or against him ina subsequent action

predecessor in interest also dq'd

Front 81

Competency of Juror as a witness

Back 81

may not testify re:
1. any matter or statement occurring during the course of deliberations
2. mental process by which juror arrived at his or her decision
3. anything that influenced any juror's mental processes

Exceptions:

1. extraneous prejudicial information improperly brought to jury's attention
i.e. news article

2. outside influence improperly brought to bear on a juror(threat to juror's family)

3. mistake in entering the verdict into the verdict form
Atty MAY testify

Front 82

S Leading Q's-when permissible

Back 82

generally only on cross/hostile witness.

but can be used when necessary to develop the witness' testimony.
1. witness needs aid (child, loss of memory, physical/mental weakness)
2. preliminary or introductory manner
3. in examining an expert
4. if the question suggest the whole subject rather than the a specific answer
5. witness needs his memory "jogged"

Front 83

redirect-permissible scope

Back 83

only matters brought up on cross

Front 84

Methods of Rehabilitation

Back 84

1. explanation of responses on cross-examination

****2. If W has been impeached for:
1. Reputation for truth
2. Prior Crimes
3. Prior Acts

You can bring in good reputation evidence.
(i.e.testimony of other witnesses)

If W has been impeached for any other reason, then courts are silent.

3. Prior consistent statements when used to defeat a charge of BIAS or RECENT FABRICATION

--statement must have been made before the motive to change the story or fabricate

Front 85

Refreshed Recollection

Back 85

all materials but cannot be used unless the witness' present memory is EXHAUSTED

-***if you use a document to refresh recollection, you must make document available to opposing party who can introduce it if he wants to and you cannot object for any reason

Front 86

scope of cross

Back 86

limited to:

1. credibility of W

AND

2. matters brought up in direct and inferences therefrom

but crt has discretion to broaden the scope

Front 87

intrinsic v. extrinsic

Back 87

intrinsic--from the mouth of the witness
extrinsic-not from the mouth of the W

Front 88

when can I impeach my own witness

Back 88

1. W is an adverse party
2. W must be called by law i.e. attesting W in a will case
3. examining party is genuinely surprosed due to inconsistencies between witness's present testimony and her prior statements

Front 89

$ ways to impeach a W

Back 89

SCCIBB

Sensory Deficiencies
Conviction of a Crime
Character
Inconsistent prior statements
Bias or Interest
Bad Acts

Front 90

$ Imp-PINS--means of proof/foundation###

Back 90

MOP: cross, extrinsic if not limited by a collateral matter rule


Found: none for Intrins;

extrinsic--> P witness must given chance to explain or deny the PINS and opposing party must be given a chance to rehabilitate BEFORE or AFTER evidence of prior inconsistent statement is used.

UNLESS PINS is also an ADMISSION

**If PINS also qualifies as an exemption to the hearsay rule then it comes in as substantive evidence BUT IN TN ONLY TO IMPEACH

Front 91

$ Imp-Conviction of a crime-MOP/Found

Back 91

must be a felony (punishable by death or imprisonment in excess of 1 year) or ANY CRIME involving dishonesty or false statement-->403 balancing test

juvenile, 10 years or more from later of conviction or release, conviction that violated const. rights not allowed

MOP: cross; record of judgment
FOund: none

Front 92

$ Imp--Bad acts--MOP/Found

Back 92

bad acts=act not resulting in conviction

MOP-cross ONLY
FOund--none

no other extrinsic info can come in once witness answers

crossexaminer may inquire into prior unconvicted acts relating to truthfulness but must be done in good faith

***if bad act shows bias, then bias rules control i.e. extrinsic evidence allowed.

Front 93

$ Imp--Bias--MOP/Found

Back 93

W may be impeached by showing that he has some reason to favor one side of the other.

can be shown by:

1. personal relationship (relative)
2. animosity
3. financial interest in outcome of the case
4. intimidation (threats to W)
5. desire to curry favor with π (W has criminal charges pending)
6. W has been paid

MOP: cross/extrinsic
Foundation: must be asked on cross, then extrinsic evidence of he bias can come in

NEVER A COLLATERAL ISSUE

Front 94

testimonial infirmities

Back 94

1. sincerity(is he lying)
2. communicative ability (did he really mean tht D killed V)
3. perception (did he accurately observe what happened)
4. memory (does he really remember what happened)

Front 95

$ imp--opinion/rep--mop/found

Back 95

-limited t character trait of truthfulness
MOP--calling other Ws
found--none

Front 96

$ imp--sensory deficiencies--mop/found

Back 96

-lack of knowledge; faculties of perception or recollection were impaired
MOP: cross, extrinsic
Found: prior questioning as to sensory deficiency before introducing extrinsic evidence.

Front 97

$ bolstering a witness who hasnt been impeached

Back 97

usually not admissible but can be used in sexual assault case to prove timely complaint

Front 98

$ imp--contradiction

Back 98

allowed only where contradiction relates to a material issue.

no foundation necessary
MOP--cross, extrinsic

Front 99

withdrawn guilty plea

nolo contendere

Back 99

inadmissible to impeach

probably admissible

Front 100

collateral matter rule

Back 100

matter not material to the matter being litigated

-may be inquired into intrinsically to attack credibility on cross

BUT extrinsic evidence on same question regarding a collateral matter may not be introduced unless it is relevant to prove/disprove a substantive fact in dispute.

Front 101

crimen falsi--403

Back 101

not subject

Front 102

juvenile convictions exception

Back 102

of a W other than the accused can come in if:

1. conviction would be admissible to attack credibility of an adult

AND

2. court determines that its admission is necessary for a fair determination of the issue of guilt or innocence.

Front 103

exception to 10 year felony rule

Back 103

1. Crt decides in the interests of ustice the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.

AND

1. party seeking to introduce old conviction gives sufficient advance written noticeof intent to use such evidence

Front 104

pardons

Back 104

cant come in provided that:

1. pardon is based on INNOCENCE

OR

2. pardon or its equivalent based on finding of rehabilitation and W hasnt been convicted of a felony subsequently

Front 105

$ Opinion--When lay witnesses can offer opinion testimony

Back 105

where the opinion satisfies 3 conditions:
1. rationally based on W's perception
AND

2. helpful (i.e. probative) to a clear understanding of the W's testimony or determining a fact in issue

3. Not based on scientific, technical or other specialized knowledge i.e. not expert testimony

Front 106

Admissible lay witness opinion

Back 106

1. Speed and other measurements (ht, weight) but not "carefully, recklessly, properly" [legal conclusions which must be avoided]

2. Identity

3. Sensory Descriptions (sound, smell, taste)

4. Value of Property

5. Familiarity with handwriting

6. Sanity, but not that a person is "mentally incompetent"

7. Physical condition

8. Intoxication but not "alcoholic/schizo"

----
--INADMISSIBLE lay opinion: opinion on what another person did or thought

Front 107

$$Opinion--expert witnesses

Back 107

1. subject matter is one where scientific, technical other specialized knowledge would SUBSTANTIALLY assist the trier of fact (goes to relevancy)

2. witness is qualified (i.e. possesses skill, special knowledge, expertise, training, education)

3. expert possesses reasonable probability re his opinion supported by a proper factual basis

--$Experts can only testify about law when Foreign law is at issue


-when expert is on stand for the purpose of judge's determining whether he is qualified, facts that are relevant to the experts qualifications can come in for qualification purposes only but not to IMPEACH even if it would, in fact impeach the W because the Expert hasn't actually started to testify until he is qualified.

Front 108

Opinion--possible sources of info upon which an expert can rely

Back 108

1. personal observation
2. facts made known to expert at trial
3. facts not known personally but supplied to him outside of the courtroom and of a type reasonably relied upon by experts in the particular field

Front 109

Opinion--experts--factors as to whether scientific evidence is scientifically valid

Back 109

1. whether the theory or technique has been or may be RELIABLY TESTED

2. subjected to PEER REVIEW

3. SIZE of known or potential ERROR RATE in using the technique

4. whether the technique has been GENERALLY ACCEPTED (used to be the sole factor under Frye)

5.whether the technique grows naturally out of work that the testifying expert was CONDUCTING INDEPENDENTLY OF LITIGATION

or

was developed specifically for the present litigation

Front 110

Opinion--ultimate issues

Back 110

only an expert may render an opinion on an ultimate issue.

UNLESS in criminal case expert is giving opinion as to whether ∆ had the requisite mental state.

Front 111

Opinion experts-authoritative texts, treatises

Back 111

can be used only to impeach

--expert must be on stand when the treatise is read

--relevant portion read into evidence but not received as an exhibit

Front 112

Opinion experts--changing the hypothetical on cross

Back 112

if expert was directly examined based on a hypo, and the changes are based on additional facts already brought out or that the cross-examiner represents will be brought out

Front 113

authentication generally

Back 113

for all real and demonstrative evidence, a foundation must be laid to authenticate by a showing of evidence:

"sufficient to support a finding that the matter in question is what its proponent claims"

TENNESSEE--statements contained in authenticated documents in existence for 30 YEARS or more will be admitted into evidence that establish or affect an interest in property.

Front 114

Real v. Documentary

Back 114

Real: physical/documentary
Demonstrative: evidence prepared for purposes of explanation

Front 115

3 forms of authentication

Back 115

1. testimony based on personal
knowledge

2. Distinctive characteristics(pearl handled gun)

3. Chain of custody-object had a substantially unbroken chain of possession

Front 116

Authenticating Handwriting

Back 116

1. layperson with familiarity (no time limit) so long as not familiarity for purposes of litigation
2. comparison by an expert
3. comparison by trier of fact (judge or jury)

Front 117

Authenticating Voice/telephone conversations

Back 117

Residence:
-call made to number assigned by a phone co.
-self-identiication--jones speaking

Business:
-call made to number assigned
-conversation related to biz reasonably transacted

**ANY person familiar with an alleged speaker's voice may authenticate a recording of the voice by giving an opinion as to its identity.

Front 118

photographs/motion picture/videotape/sound recording

Back 118

may be authenticated by testimony that it is a fair and accurate representation of the actual scene or event

-not necessary that photographer testify

Front 119

scientific evidence

Back 119

i.e. ballistics, radar, blood

1. device must be in PROPER WORKING ORDER

2. device must be operated by a QUALIFIED INDIVIDUAL

3. technique must be GENERALLY ACCEPTED in the scientific field.

Front 120

BER--generally

Back 120

to prove the contents of a writing the original writing must be produced if the terms of the writing are material.

secondary evidence i.e. oral testimony is admissible only if original is unavailable.

Front 121

BER-when it applies

Back 121

1. writing is is a legally operative or dispositive instrument
OR

2. Knowledge of a witness concerning a fact results from havig read the document

Front 122

Privilege against self-incrimination

Back 122

W may refuse to answer any question if its answer might tend to incriminate him.

Testimony is incriminating if it ties a W to the commission of a crime or would furnish a lead to evidence tying a witness to crime.

Front 123

BER--n/a

Back 123

1. fact to be proved exists independently of the writing

2. writing is collateral to litigated issue

3. summaries of voluminous records

4. public records

Front 124

BER--when secondary testimony allowed

Back 124

If a proponent cannot produce the original writing in court, he may offer secondary evidence of its contents if a satisfactory explanation is given for the nonproduction of the original.

Satisfactory explanations:
1. loss or destruction of the original
2. original is in possession of 3P outside the jurisdiction and is unobtainable
3. original is in possession of an adversary who, after due notice, fails to produce the original

Front 125

BER--questions of preliminary fact for jury

Back 125

1. whether original ever existed
2. whether a writing, recording or photograph produced at trial is an original
3. whether evidence offered correctly reflects the contents of the original.

Front 126

Objections--timeliness--trial

Back 126

-made after Q, before answer if Q calls for inadmissible matter
-if not before answer, must make motion to strike if answer emerges as inadmissible

Front 127

Unresponsive Statement

Back 127

An unresponsive answer is subject to a motion to strike by examining counsel but not by opoosing counsel. Thus examining counsel can adopt an unresponsive answer if it not objectionable on any other ground.

Front 128

Objections--timeliness-depo

Back 128

-objections to form-->made when q is asked or it may be waived
-objections to substance of either question or answer--> may be postponed until depo transcript is offered into evidence

Front 129

Objections--rule 103--generally

Back 129

timely and specific objection must be made in order to preserve that issue for appeal unless plain/prejudicial error has occurred.

Front 130

Obj--specificity--general

Back 130

one not stating grounds--

sustained-->will be upheld on appeal if there was any ground for the objection.
Overruled-->will be upheld on appeal unless evidence was not admissible under any circumstances for any purpose

Front 131

Obj--specific

Back 131

states grounds for objection
--sustained-->upheld only if ground stated was correct or if the evidence excluded was not competent and could not be made so.

Front 132

Obj-opening the door

Back 132

one who introduces evidence on a particular subjec thereby asserts its relevance and cannot complain if adversary thereafter offers evidence on the same subject

Front 133

Plain Error

Back 133

error that is not only clear in retrospect but also causes a miscarriage of justice

elements:
-1)error 2)that is clear and obvious under current law, 3) affects substantial rights 4)adversely affects fairness, integrity, or public reputation of judicial proceedings if uncovered

Front 134

Harmless Error

Back 134

-factors:
-whether erroneously admitted evidence was primary evidence relied upon
-whether the aggreived P nonetheless was able to present the substance of his claim
existence and usefulness of curative instructions
-extent of jury argument based on tainted evidence
-was other proper evidence overwhleming

i.e. can party in error prove that result would have been the same BEYOND A REASONABLE DOUBT

Front 135

motions in limine

Back 135

p.309

Front 136

obj-introducing part of transaction

Back 136

where part of a conversation, act or writing is introduced into evidence, adverse party may require proponent of the evidence to introduce any other part that ought in fairness to be considered

Front 137

obj--motion to strike--unresponsive answers

Back 137

examining counsel may move to strike unresponsive answers, but opposing counsel may not

Front 138

See Judge and Jury Flashcards

Back 138

530-551

Front 139

offers of proof

Back 139

-relate to exclusion of evidence
an offer of proof may be made disclosing the nature, purpose and admissibilty of rejectd evidence, to persuade the trial court to hear the evidence and to preserve the evidence for review on appeal.

-It may be made by witness testimony, a lawyer's narration or tangible evidence marked and offered

Front 140

$ purpose of confrontation clause

Back 140

intended to guarantee a criminal defendant the right to be confronted with the witness against him.

guarantees the 1. right to be present at trial,2. the right to learn what evidence is being offered against her and 3. right to cross-examine witnesses

Front 141

$ when does allowing hearsay into evidence violate confrontation clause

Back 141

Confrontation clause precludes admission of hearsay statement that are deemed "testimonial" UNLESS ∆ has been afforded an opportunity to cross-examine a ∆ either:

1. at the time the out-of-court statement was made; or (2) at trial.

Front 142

$ definition of "Testimonial"

Back 142

1. ex parte in-court testimony or its functional equivalent9i.e. affidavits, custodial examinations, prior testiony that the ∆ had been unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorily)

2. extra-judicial statements . . . contained in formalized testimonial materials (affidavits, depos, prior testimony, confessions) AND

3. statments made under circs which would lead an objective W to reasonably believe that the statement would be available for use at a later trial

BASICALLY,

prior testimony at a preliminary hearing, before a grand jury, at a previously held trial, or statements made during police interrogations during an investigation to determine the occurrence of prior events after an emergency has passed potentially to be used for future prosecutorial or investigative purposes.

Front 143

$ consequence of a statement being "testimonial"

Back 143

-excluded unless accused had an opportunity to cross examine or declarant testifies at trial and is subject to cross examination

Front 144

$ consequence of a statement being "non-testimonial"

Back 144

admitted as long as it falls within a hearsay exception

exception--if ∆ engaged in conduct DESIGNED to make declarant unavailable

Front 145

Burden of persuasion

Back 145

the burden of a party to persuade the jury to decide an issue in its favor. If, after all the proof is in, the issue is equally balanced in the mind of the jury, then party with the burden of persuasion must lose.

Front 146

Burden of Going forward with the evidence

Back 146

burden of producing sufficient evidence to create a fact question of the issue involved.

When π makes out prima facie case the burden shifts to the ∆.

if defendant meets burden ie. by presumption , then burden shifts back to π, who must rebut the presumption

Front 147

Eerie doctrine

Back 147

in a diversity case, federal court must apply the substantive law of the state in which the court sits, but usually applies federal law to procedural matters.

Front 148

Judicial Notice--generally

Back 148

always relates to either:

1. whether the fact is an appropriate fact for judicial notice-->Judicial Notice is appropriatewhen fact is indisputable OR can be be verified through scientific principles

2. Assuming Judicial notice has been taken, what result--> depends on criminal or civil case

Front 149

Judicial Notice--Criminal Case

Back 149

jury may but are not required to accept the fact has been established

Front 150

Judicial Notice--civil case

Back 150

fact judicially noticed is CONCLUSIVELY established

Front 151

Preliminary Hearing

Back 151

All preliminary fact questions involving the standards of trustworthiness of alleged exceptions to the hearsay rule are to be determined by the court.

During the hearing at which judge makes preliminary fact determination, both parties must be given an opportunity to present evidence wrt fact to be determined.

Also, it is within the judge's discretion whether the jury should be excused during the preliminary fact determination.

Front 152

MBE tip--worst answer question

Back 152

look for correct or winning answer choices and put “+” beside pick; if not sure leave it blank; if wrong put a “-”

Front 153

Voluminous writings

Back 153

contents of voluminous writings that are otherwise admissible may be presented in the form of a chart as long as the original documents are available to the other party for examination and copying.

Front 154

Spousal Privilege

Back 154

1. Criminal Case Spouse cannot be forced to testify against ∆

2. ANY case, civil or cim, spouse can refuse to disclose OR KEEP SPOUSE from disclosing confidential communications made b/t spouse DURING marriage.

i.e. pillow talk.

if one spouse tells a 3P, then they waive privilege but the other spouse is still entitled to the privilege.

-does not terminate on death or divorce.

Front 155

$ physician-patient privilege

Back 155

physician is foreclosed from divulging in judicial proceedings information that he acquired while attending a patient in a prof capacity, which information was necessary to enable the physician to act in his professional capacity.

-information given pertaining to a non-medical matter is not protected by the privilege.

--NOT recognized in TN