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129 Cards in this Set

  • Front
  • Back
When would the defense go first?
if the team has conceded all issues on which plaintiff/prosecution has burden of persuasion of and of production of evidence AND defense asserted a counterclaim (civil) or affirmative defense on burden of defense
Who goes first/second?
1) Plaintiff case in chief
2) defendant case in defense of plaintiff's claim and case in chief (civil)
3) Plaintiff's case in rebuttal
4) Defendant's case in rebuttal
Order of trial
1)Pre-trial motions
2)Calling of the case
3) possibly more pre-trial motions
4)voir-dire of prospective jurors
5) impanel/swearing in jury
6) opening statement (prosecution first followed by defense)
7) Plaintiff side (evidence inclusion)
8) Defendant' motion for judgment/motion of acquittal)
9)defendant's case in defense (evidence inclusion)
10)plaintiff's rebuttal (limited to affirmative defense raise though could be opened further by judge's discretion)
11) rejoinder (defend) and then surebuttal (pros)
12) closing argument: Plaintiff then defense with plaintiff rebut)
Order of examination
Direct, cross, redirect, recross
Scope of cross-examination: limited
cross examiner entitled in 2 areas
1) substantive evidence(prove what happened which direct examiner revealed)
2) impeachment of witness
Rule of completeness
providing another alternative as to writings or recordings only
Request the court to have the opponent then put in other parts of the writing, or other writing, that ought in fairness to be considered with it
Rule 106
Judge ability to ask question
Judge's questioning is permissible if aimed at clarifying the evidence or managing the trial.
614(b)
What is the most basic rule of evidence?
admissible evidence MUST be relevant EITHER as
1)substantive evidence - relevant to an issue in the case as to who did what
2) impeachment-relevant to the credibility of the witness
Relevant evidence definition
1) relevance: relationship between the evidence offered and fact sought to be established
2) materiality: relationship between the fact sought to be established and issue in the case
3 column format
Evidence offered, Fact, Substantive issue in case (or credibility of evidence)
Rule 401 (FRE)
Relevant evidence admissability
all relevant evidence is admissible
Rule 402 (FRE)
Exclusion of relevant evidence
if probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, mislead jury, undue delay
FRE 403
Barrier needed to meet relevance
very little needed
Direct evidence
fact is provided only by eyewitness to that fact
circumstantial evidence
all other evidence from which one or more inferences must be made in order to the provide the fact at issue in the case
preliminary questions: question of admissability
standard: preponderance of the evidence
Determiner: Trial judge
Whether preliminary facts have been proved to the judge's satisfaction
FRE 104(a)
preliminary question: relevancy conditioned on fact
when preliminary fact must be true in order for offered evidence to be relevant. Trial judge must admit the evidence even if the judge does not believe the evidence offered to prove the preliminary fact. BUT evidence is sufficient to support a reasonable jury's finding that preliminary fact is true
FRE 104(b)
Relevant fact vs relevancy conditioned on fact
determination of whether more evidence is needed to prove the preliminary/foundational fact
first hand knowledge requirement
all non-expert witnesses are required to testify only to that of which they have personal, first-hand knowledge.
FRE 602
FRE 104(B) : evidence sufficient to support a finding that the witness has personal knowledge of the matter
Lay opinion rule
admissible if based on 1) rational perception of the witness AND 2) helpful to a clear understanding of witness's testimony or determination of a fact issue
FRE 701
Exclusion of opinion
if opinion is superfluous and not need where the jury is a position to decide by itself

can testify to the mens rea by using circumstantial evidence (actus reus)

NOTE Md exception: Guilty but not criminal responsibly by insanity vs. federal (not guilty due to insanity) Hinkley amendment
Evaluation whether lay opinion is admissible
1)witness in a better position than the jury/judge to form the opinion
2)witness speculation ( would the witness need to be an expert in order to reach the conclusion)
3)would the testimony be more helpful and make more concrete
collective facts doctrine
case law has approved opinion testimony to certain opinions that could theoretically be broken down to underlying facts
Reason:
1)witness may not remember the underlying factual details
2) more useful for painting a picture to the jury
3) may be the most cogent/efficient way to provide evidence
Maryland Speed cases
lay witness may testify to whether a vehicle was moving fast
Lax standard: includes all licensed maryland drivers
Narrative question
asks the witness to tell a story
FRE 611(a)
Asked and answered rule
when counsel for one party has already asked the same witness the same question and received a responsive answer to it, but the same counsel then asks it again
FRE 611(a)
leading question
suggests to the witness the answer that counsel desire
FRE 611(C)
NOTE: leading questions are allowed on cross
NOTE 2:leading witness is disallowed on direct or redirect
Exceptions where to permit leading questions on direct
1)refresh the witness's memory if shown to be exhausted
2) bring the witness to the appropriate subject matter
3) background info regarding the witness
4) preliminary matter such as laying the foundation for particular evidence
5) other matter not really in dispute
6) as necessary when witness is young or inarticulate
7)may lead an adverse party on direct (with permission)
Compound question
asking more than 1 question in one question causing confusion of what to answer
FRE 611 (a)
Badgering the witness
harassment, subject to the objection "asked and answered"
venturing into irrelevant matters
FRE 611(a)
Motion to strike on ground that answer was non-responsive
only counsel who asked may move to strike
Objection at deposition
objection to the form of the question must be made at time of deposition or waived at time of introduced at trial
NOTE: objection on other grounds such as relevance or hearsay are NOT waived if not made at deposition
Prerequisites for finding reversible error
1) trial judge committed error
2) Counsel preserved the error (absent small window for plain error)
3) error was so substantial as to be reversible rather than harmless
Plain error
error was so outrageous that even though the trial counsel did NOT object, the judge SHOULD have objected and the error deprive the appellate client of due process
FRE 103(d)
How to review an error claimed in the exclusion of evidence
1) put the substance of the excluded evidence on the record, generally by making an offer of proof/proffer
FRE 103 (a)(2)
2) if on the face, the evidence is objectionable, explain why it should be admitted
a) admit for a limited purpose
b) explain why the statement is not hearsay or should fall under an exception part
c) explain why the statement is relevant
making an offer of proof
Two ways
1) say on the record outside of the jury's hearing, what the witness would have said. Witness must be named and what would be have said must be recorded
2)have the witness answer the question at the bench with the court reporter or otherwise out of the jury's hearing
FRE 103(c)
when offer of proof is not required
when the substance of the evidence was apparent from the content within which questions were asked
NOTE: if question to which objection was sustained was leading OR witness's testimony was stricten --> recorded on transcipt
when to make a proffer
At trial, outside of jury UNLESS the trial judge made a pre-trial decision
When error was committed in admission...
counsel must make a timely objection or motion to strike
NOTE: federal court- must state the reason
NOTE 2: if only part is objectionable, specific objection to that specified part must be noted
limited jury instruction
when evidence is admitted for only a limited purpose, asked for limited jury instruction that such evidence should be used for limited part
FRE 105
general objection and federal court
general objection is not preservable
absent limited jury instruction
judge/jury may consider evidence for any purpose
for pretrial motions in Maryland, what must be covered
alleged illegal confessions, fruit of illegal searches, improper suggestive pretrial identification \
MD Rule 4-252
MD objections stated vs. unstated
Generally, objection doe not need to be specified.
Only when objections involve constitutional right, must be stated
Objection to jury instructions
Must be stated with specific objection to specific parts of the instruction and must be completed prior to jury retiring to deliberate
Continuing objection
may make a motion for continuous objection for a line of questioning
MD-2-517(b) and 4-323(b)
NOTE: if in doubt, renew the objection and make sure the objection does not lapse
After a motion in pretrial (in limine) (maryland)
objection must be renewed at trial if the motion at pre-trial to exclude evidence was denied
motion to strike at close of opponent's case
if prior objection because of lack of foundation and opponent closed without connecting, must renew the motion at the end to strike
Opening the door principle
introduction of inadmissible material by one party will allow opponent with court's discretion to introduce evidence to rebut any false impression arising from the entrance of such evidence
standard of review
finding of fact by judge = clear error
whether evidence is hearsay = de novo
hearsay evidence rule
hearsay evidence is inadmissible
FRE: 802
hearsay
Out of court statement offered for TOMA and is excluded
statement
oral or written assertion or nonverbal conduct intended to be an assertion
declarant
person who makes the statement
hearsay exception (3)
circumstantial
effect on the hearer
legally operative fact
hearsay dangers
Perception
Memory
Sincerity
Narrative
perception
was the statement perceived in the way it was intended to be perceived

2) was the witness present when the statement was made -- 1st hand knowledge requirement
memory
accurate recall of the event
sincerity
speaker truthfulness without motivation to lie
narrative
manner in which speech was presented
non-human declarant
something not human making a statement= verbal marker
truth=
belief + accuracy
belief=
sincerity + narration
accuracy=
perception + memory
legally operative fact
utterance creates the claim
clarifying an action
statement has magic (word(s) that are essential to prove the element of the claim)
substantive law
substantive
element of the claim is in the OCS
Statement offered to prove their effect on the hearer
statement putting the hearer or reader on notice
Type of effect on the hearer
1) offered as circumstantial evidence of the declarant's consciousness, ability to talk, speak a particular language
NOTE: Neither sincerity nor accuracy at issue

2) relevance requirement is met if the declarant was sincere
NOTE: regardless of accuracy
Metrobus example
stop 1: if it doesn't matter whether declarant believed what s/he said or not, OCS admit

stop 2: will help to prove fact it's offered to prove as long as Declarant believed what s/he said, EVEN IF declarant was factually wrong

3)declarant's belief alone is not enough.
Need BOTH
1) sincere
2) factually correct

==> hearsay
forms of statement
1) verbal assertion in either oral (conversation) or written (note/document)

2) non verbal assertive conduct: intended as a substitute for particular, identifiable words: out of court declarant's response of nodding affirmatively to a question asked
2 ways verbal utterances = hearsay
1) offered to prove the truth of the matter directly asserted by the declarant
2) offered to prove the truth of an assertion implied by the declarant
built on
a) utterance not made unless s/he believed a particular fact to be true
AND
b) Out-of-court utterance is offered t prove the TRUTH OF THAT FACT the declarant apparently believed
Implied assertion (MD)
is ambiguous --> not hearsay
is assertive --> hearsay and must fall in a hearsay exception to be admitted
does not care about the intent
cannot use context to clarify
implied assertion (federal)
majority: clearly assertive (element of intent in order for it to be implied-- insert words to place expression and still the same meaning) --> hearsay

can use context to clear
implied assertion common law
ambiguous (non-affirmative) is hearsay
bright line federal
not a direct assertion (not a clear assertion) --> not an OCS
direct assertion -->only hearsay if it goes to TOMA.
ex. dog is red
explicit with no ambiguity whatsoever
confrontation clause arises when..
there is hearsay
3 ways to comply with confrontation clause
1) declarant is on the stand testifying and comply with hearsay. ability to cross examine --> cross examination is complete
2) accuse forfeiture due to misconduct, preliminary hearing allow judge to make decision that declarant does not have to testify due to defendant's misconduct

3) testimonial v. non-testimonial: declarant does not have to testify if it is non-testimonial

if testimonial, must testify to cross-examine

or declarant is unavailable and defendant had an opportunity to cross-examine (previous trial, pre-trial hearing)
testimonial test
1) objectively believe statement will be used in a trial/proceeding
2) firmly rooted in hearsay exemption/guarentee of trustworthiness
3) aspect of formality with agent

ongoing emergency -- not testimonial--> go to hearsay rules
federal rules vs. maryland rules of hearsay difference
FRE = non-hearsay
MD= hearsay exception
hearsay exception: prior statement by witness
1) declarant testified prior with cross-examination
a) inconsistent with testimony given under oath
b) consistent with declarant's testimony and offered to rebut an express/implied charge against declarant with fabrication, improper influence or motive--> made before any possibility/reason to lie
c)identification of a person made after perceiving the person --> subject to testimony and cross-examination, then admissible
hearsay exception: admission by a party opponent
statement is offered against a party and is
1) party's own statement (either individual or representative setting)
or
2) statement which the party has believed in the truth of the claim
or
3) statement authorized by the party to make a statement concerning the party
4) within scope of employment
5) statement by co-conspirator in furtherance of the conspiracy
NOTE: does not prove by itself the conspiracy
in civil trials, criminal pleas
can be admitted but are not binding
Tacit admission
adoption of another's statement by silence
three conditions to prove tacit admission
1)party-opponent (including that party's agent) heard the other's statement
2) circumstances allowd for the party-opponent to reply
3) under the circumstances, an ordinary person in such a situation would correct the speaker
double hearsay example
C is going to testify that C heard from B that A said he was the pope
Process
A was the pope: party opponent confession
spontaneous statements (regardless of availability of witness) exceptions to hearsay
include excited utterance, present sense impressions, statement of present mental, physical, mental condition
present sense impression
1) OCS + TOMA
2) describing + explaining a condition made
3) while Declarant was perceiving the event/condition or immediately afterward

does not matter if declarant is available
memory, perception, sincerity= no problem
excited utterance
1) statement
2) unexpected event/condition
3) while declarant under stress of event

hard to lie
unidentified declarant's excited utterance should be viewed as?
heightened scrutiny of the purported excited uttrerence
present physical condition
1) statement of the declarant
2)then existing
3) sensation/physical condition
4) offered to prove declarant's then existing condition
Obtain medical treatment
1) statement made
2) for the purpose of medical diagnosis/treatment and describing medical history or past/present symptoms
3) reasonably pertinent to treatment
FRE vs. MD on obtaining medical treatment
FRE: consideration leading to treatment or diagnosis (allow for shopping of doctor)
MD: consideration leading specifically to treatment
present memory refreshment
1) present memory
2) refreshed
3) witness is testifying from LIVE memory
4) no OCS is being offered into evidence
5) refresh memory does NOT fall within a hearsay exception
Writing used to refresh memory
FRE (Before testifying),
1) if justice so requires
2) adverse party may examine the writing produce and cross-examine
3) adverse party allowed to introduce evidence
4) judge has right to exclude info not relevant
direct assertion of a Declarant's then existing mental/emotional condition
1) statement
2) declarant's then existing state of mind, emotion (intent, plan, motive, design, mental feeling)
3) does NOT include a statement of memory/belief to prove the fact remembered/believed
4) exception #3 is execution, revocation, identification, or terms of declarant's will
Example of direct assertion of declarant's mental state (non-will)
U.S. v. D for murder of X
I hate X
I hate X (OCS)--> Declarant hated X at time of OCS --> Declarant continued to hate X when X was subsequently murdered --> motive
Example of direct assertion of declarant's mental state (will)
Will contest by X of Declarant's will
"I hate X"
I hate X --> Declarant hated X at the time of OCS --> Declarant hated X at EARLIER TIME, when Declarant excluded X from the will
Is this admissible:
"I hate Phil, because he beat me up and stole my money."
No: inadmissible to prove that Phil beat up Declarant or stole from Declarant.
Why: backward looking at past event
Is this admissible:
"I'm going to skip school today."
Yes:
At time of OCS, Declarant intended to skip school that day --> admissible, if relevant to prove Declarant subsequently acted in accord with stated intent --> did skip school that day
business records: regular conducted activity
o Any memorandum etc made by a business AND
o Transmitted by a person with knowledge AND
o Made in the course of regular business as shown by a qualified witness
o UNLESS there is a lack of trustworthiness

does not matter if declarant is available or not
circumstantial guarantee of trustworthiness
from the business’ meticulous and regular practice of keeping the records. If the records are good enough for the business to rely on, then a court can rely as well
background to business records
• Written document of any form (including electronic media) that contains occurrence or opinion
• Made at the same or near same time as the act
• By a person with knowledge
• Kept in the course of regular business (which is produced in the normal course of business
opinion contained in business record
1) declarant appears to be qualified to make
2) and legally qualified (custodian, employment responsibilities, agent)

Defeat: opponent shows a need to cross-examine the declarant
in civil: cast significant doubt upon the RELIABILITY of the opinion
Public records
• Record
• From a public office or agency that includes
a. Regular Activities of the agency
b. Reports made when there is a duty to report
c. Factual findings made when authority to make the finding is granted by law
• Unless there is a lack trustworthiness
Absence of entry in records kept in accordance with the provision of records of regularly conducted activity
the bookkeeping and billing records are kept in the regular course of business, therefore the absence of record of payment from the law student falls under 803(7)
Record of vital statistics
records kept:
births, fetal deaths, deaths, or marriages

public records keeper, marriage licenses are required by law for a marriage to exist, therefore the public office would have to contain a record of their marriage pursuant to law
Records of religious organizations
Data: births, marriages, divorces, deaths, legitimacy, ancestry, relationship by blood/marriage

If you were married in a religious ceremony, the minister would have kept a record of the performance of the ceremony
marriage, baptismal, similar certificates
If you were married in a religious ceremony, the minister would have kept a record of the performance of the ceremony
Family records
If you have a family tree, engraved wedding rings, or the family Bible contains a list of married couples then that can be used as long as they were CREATED BEFORE an issue came up
Record of a documents affecting an interest in property
1) record of a document
2) establish/affect an interest in property
3) proof of the content of the original recorded document and its execution
Statement in document affecting an interest in property
If the title to land is in the name of both parties then it shows that the couple most likely bought the property together as a couple
statement in ancient documents
1) statement
2) in a document
3) existence 20 year or more
4) established authenticity
Market reports/commercial publications
1) data
2) published
3) generally used
4) relied upon
learned treatises
applied when: expert witnesses upon cross-exam or relied upon in direct examination
1) statements
2)published
3) established as reliable authority by testimony or admission of witness or other expert testimony or by judicial notice
4) if admitted, statement may be read into evidence but may not be received as exhibits
Reputation concerning personal or family history
public recognition
If the couple holds themselves out to their family/friends or public as a couple, then it can be construed that they are acting as a couple
Reputation concerning the boundaries or general history
public recognition to boundaries of/customs affecting lands in the community
Reputation as to character
public recognition of character among associates or community
judgment of previous conviction
if the dispute over the existence of a marriage has been challenged before in a court, then those judgments can be used to show or disprove a marriage.

exception: nolo contendere (civil)
judgment as to personal, family, general history, or boundaries
prior judgment if the same would be provable by evidence of reputation
unavailability of witness definition (5 ways)
to testify at trial
1) privilege
2) D refuses to testify despite court order
3) D testifies to lack of memory
4) D is deceased, cannot attend due to physical/mental illness
5) Can't find the person or other reasonable means shall not yield the D
Exceptions to unavailability of D
Huck Finn Paints Perches During Dinner
Forfeiture, Previous testimony, Personal/Family history, Dying declaration, Declaration against interest
Prior testimony exception
o Testimony of a witness
o At another
• Hearing
• Deposition
o For the same or different proceeding
o If the opposing party had an opportunity to cross at some point
Dying Declaration
1. A statement by the declarant
2. Of the declarant’s cause or circumstances of death
3. When the declarant believed death was imminent
4. And in a civil or homicide trial
Maryland and Dying Declaration
• MD 5-804(b)(2) is broader because it allows attempted homicide or assault with attempt to murder are included in addition to the “homicide” as required by FRE
Declaration against interest
o Statement
o Contrary to declarant’s interests
o Reasonable person wouldn’t have made the statement unless they believed it was true
o Corroborating circumstantial evidence indicates trustworthiness
Reason for corroborating evidence and Declaration of against interest
The reasonable person standard aids in reliability and also the corroborating circumstantial evidence helps to account for lack of reliability in the statement by itself
Statement of personal/family history
1) statement
2) declarant's own birth, adoption, marriage, divorce, legitimacy, relationship by blood, adoption, marriage, ancestry, other similar material
3) even though D had no means of acquiring personal knowledge of the matter stated

OR
4) death of another person if D was related to the other by blood, adoption, marriage, or was so intimately associated with the other's family as to likely to have accurate information concerning the matter declared
Forfeiture by wrongdoing
• Common law principle that if a party to a case keeps a witness from testifying because of a wrongdoing or acquiescing in a wrongdoing, then the opposing party can admit the former witness’ statements even though they are hearsay through other means
o Party should not benefit from their own misdeeds
o If the witness’s statements are going to be admitted anyways, might discourage the party from witness tampering in the first place
• Does not require the intention to prevent a witness from testifying, only the intention to do something with a result of the witness not being able to testify
Maryland statute and forfeiture
1) restricted in criminal cases:
2) involving drug distribution, crimes of violence, child abuse, sexual abuse of child 13 or younger
3) forfeiture strictly applied to admissibility of evidence during preliminary hearing
4) burden of clear and convincing evidence
Md rule and forfeiture
civil cases
1) type of statement potentially admissible are narrowed to only those types that are also potentially substantively admissible prior inconsistant statement
2) notice to offer evidence under this exception (also in criminal)
3) have engaged in, directed, or conspired to commit