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108 Cards in this Set
- Front
- Back
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Residual Exception
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not includes by other exception, but having equal guarantee of trustworthiness is not to be excluded
-really important fact, more probative in value than what be acquired reasonably elsewhere MD Rule: Under exception circumstances, unanticipated condition |
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tender year statute
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due to circumstance, children may delay in reporting or for other reasons to not include in hearsay exception, adoption to make statement admissible
Age: 11 years or younger To: dr, psychologist, nurse, social worker, principal, teacher, counselor Guarentee: trustworthiness NOTE: If child does not testify, must be corroborative evidence to confirm testimony |
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privilege
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encourage certain kinds of communication/relationships which in turn promote justice, public health, and stability
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Origin of privilege
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nothing from FRE/MD rules
federal common law/Erie case state law |
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Type of privilege (2)
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1) confidential communication
2) attorney/client communication |
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confidential communications
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holder of the privilege is the confider, NOT the confideant
ex: attorney/client, husband/wife (confidential communications), psychiatrist/patient, priest/patient, accountant/client, physician/patient |
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second type of communication
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broader than confidential communication, examples:
attorney work product (holder is attorney) spousal immunity (holder: witness: spouse) journalist (holder: journalist) legislative/executive/informer |
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client holds privilege with regard to
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1) confidential
2) communications 3) between lawyer (or lawyer's agent) and client 4) made with a view to obtaining professional legal services |
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client does not hold privilege if..
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1)communication is in furtherance of an going/future crime/fraud
2) waived a) voluntary disclosure/authorized disclosure by client b) client's action of malpractice against lawyer 3) will contest or when both parties claim through a deceased client |
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types of communication between husband and wife during marriage
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1) confidential communication between spouses during their marriage
2) protects all info one spouse has about the others, but applies on when the other spouse isis on trial |
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marital confidential privilege
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1)civil/criminal
2) confiding spouse holds a privilege protecting 3) confidential 4) communications 5) between husband and wife 6) made DURING marriage 7)privilege continues even if the marriage subsequently ends 8) ONLY the confiding spouse can waive the privilege |
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spousal immunity privilege
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1) spouse (immunity holder) cannot be compelled to testify
2) against his/her spouse who is a criminal accused 3) privlege extends to all knowlege of the spouse-witness 4) last only as long as the marriage lasts 5) spouse-witness may testify voluntarily |
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priest-penitent privilege
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1) established denomination
2)may not be compelled to testy 3) on any matter relation to any confession/communication made in confidence 4) seeking spiritual advice or consolation |
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party's subsequent remedial measures
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generally excludes evidence of a party's subsequent remedial measures when offered as evidence of that party's negligence
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admissibility for a limited purpose
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limited
1) impeachment 2) a) prove ownership b)feasability of precautionary measures |
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Compromise/offers to compromise dispute claim exception
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exclude statements made during negotiation as to either validity or amount
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exception to Compromise/offers to compromise dispute claim exception
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proving a witness's bias/prejudice, negating a contention of undue delay or proving an effort to obstruct
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Compromise (efforts) and admissibility in civil or criminal cases
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1) compromises/offer to compromise civil cases are in admissible in related criminal cases
2) Allowed: made with a government agencyin the exercise of regulatory, investigative, or enforcement authority |
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plea bargain
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a plea of guilty later withdrawn, plea of nolo contendre, any statement made during pleading discussion is not allowed in
made in presence of a lawyer |
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Plea bargain exception
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accepted guilty pleas
factual statement made regarding such accepted guilty plea |
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payment/offer to pay medical/hospital
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1) evidence
2) furnishing/offering/promise 3) occasioned by injury 4) not admissible 5) to provide liability for the injury no extension to property damage |
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liability insurance
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1) evidence
2) insured or not insured 3) against liability 4) not admissible 5)whether the person acted negligently not applicable to: proof of agency/ownership/control/bias/ prejudice |
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possible rulings= inadmissible when expert testimony is offered (2)
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1) jury would not ned it all to objectively evaluate the facts
2) expert opinion has an insufficient reliable basis (junk science) |
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expert testimony admissible (2)
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1) need expert testimony because common sense/logic are insufficient to evaluate the facts. Necessary for the party to meet its burden of production
2) helpful to have expert testimony |
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relevant factors of experts (FRE)
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1.Whether the theory or technique used by the expert can be, and has been, tested;2.Whether the theory or technique has been subjected to peer review and publication;3.The known or potential rate of error of the method used; and4.The degree of the method's or conclusion's acceptance within the relevant scientific community
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who may qualify as an expert
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a jury receives, on the relevant topic, appreciable help from the person
formal education is not requires |
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procedure to certify expert
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proponent must elicit the witness's qualifications on direct then offer the person as an expert
NOTE: court can appoint its own experts |
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expert's opinion and hearsay
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1) first hand knowledge
2) data inadmissible in evidence that are reasonably relied upon by experts in the field |
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MD, expert's testimony and hearsay
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underlying basis in determined by the trustworthiness neccessary to illuminate testimony and unpriviledged
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disclosure of facts or data underlying expert opinion
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permits an expert to state his/her opinion without first testifying to the underlying facts/data unless required otherwise
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opinion on ultimate issue and expert
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whether the opinion will be helpful to the trier of fact, admissible
exception: criminal, state of mind Hinkley rule (MD rule different) |
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three prequisites for admissibility of scientific evidence
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2) process used to obtain the results that are being proved is sound in principle
2)person following this principle was qualified 3)test was performed correctly on proper equipment and in good working ofrder |
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Maryland and Frye-Reed
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follows the restrictive test established
admissible only when the unerlying principle or process has gained general acceptance in the particular field More strict compared to FRE |
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FRE and Daubert
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court has gate-keep to exclude junk science
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Two types of tangible evidence
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Real
Demonstrative |
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real evidence
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related to actual incident, substantive evidence, put in by laying the foundation with first hand knowledge
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demonstrative evidence
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plays no part in the incident at issue, helps the jury to understand a witness's testimony, illustrative purposes
with limiting jury instruction requirement: fair representation and helpful |
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authentication
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subcategory of relevance, necessary to support a finding that an item of evidence is what its proponent offers it is
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self-authentication
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saves the proponent from having to authenticate the item before it can be introduced into evidence
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examples of self-authentication
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1) foreign/domestic official documents
2) certified copies of public records 3) government publication 4) newspaper, magazine and other periodicals 5) labels, tags, etc on items in trade 6) notarized documents 7) commercial paper |
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methods of authentication (on non-self-authentication documents)
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1) testimony of witness with first-hand knowledge that a matter is what it is claimed to be (found the knife at the scene)
2) chain of custody 3) lay testimony as to handwriting 4) expert testimony 5) circumstantial evidence 6) voice recognition 7) when witness places a telephone call, proponent needs to authenticate who answered 8) records obtained from public office where it was notarized by law 9) documents great than 20, looking authentic, found in likely place 10) process reliable (x-ray, printout, surveillance |
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attesting witness (FRE/MD)
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if state law applies in federal court (Erie and state law) require testimony of an attesting witness to authenticate.
MD: requires attesting witness as to wills and codicils |
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best evidence rule
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of writings, recordings, or photographs offered as substantive evidence
either an original or a duplicate (including photocopy) may be offered in evidence |
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best evidence rules applies only if:
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a writing/recording/photograph exists/once existed AND
its content is CLOSELY related to the controlling issue in the case |
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If best evidence rules are applicable then...
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1) proponent must offer the "original or duplicate of the writing/recording/photograph
2) unless the original/duplicate is unavailable for some reason other than culpable fault of the proponent. 3) then proof may be made by other evidence (copies that are not duplicates as well as parol evidence) |
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what is an original document
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original = all copies intended to have the same effect (multiple-executed copes of a will or of closing document
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what is a duplicate
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both carbons and photocopies qualify
CL: made from the same impression as the original (carbon copy) |
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best evidence rules does NOT apply if...
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1) the witness is testifying to his/her first hand knowledge NOT gained from the writing --> parole evidence applies unless substantial law precludes such as fully integrated written contract, judgments, and written confessions occurring after oral confession
2) when the witness is testifying merely to the existence of the writing and not its contents |
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Excuse for no production of original/duplicate
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1) if original was in one's client's custody, must show that one's client lost it or inadvertent destruction
2) if in third party, either issue subpoena, or take all reasonable efforts if outside subpoena zone 3) if in opposing custody, must give notice (even notice in the pleading suffices) will = proof. burden to opposition to produce and demand production |
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proof of public records and best evidence
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even when best evidence may require original, proof of public records made by certified copy may suffice
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proof by summary and best evidence
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when admissible writings are too big to practically be proved one by one, witness may testify to a summary of them, but must be made available for inspection
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proof of admission of party opponent and best evidence rule
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if party opponent admits in testimony or in written admission what the contents of the writing are, do NOT need to produce the writing
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Chattel and Writing and Best evidence
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ex: tombstones, police badges, delivery van
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MD factors, Chattel, Writing, Best evidence
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1) length/complexity of the writing (danger of mistransmission due to not remembering)
2) important/central the item and its content are to the issue 3) whether there is a real dispute as to the contents 4) difficulty of production |
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impeachment
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attacking/questioning the credibility of the witness
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impeachment and directed questions at
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1) inconsistent testimony
2) proving that the fact are not as testified to by the witness 3) prove witness is prejudiced and motivated 4) prove lack of knowledge or weak perception 5) prior bad acts |
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impeachment and extrinsic evidence
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1) prior inconsistent statement
2) non-collateral matters admitted 3) collateral matter admitted at judge's discretion 4) lack of personal knowledge or weakness 5) witness character |
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rehabilitation
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following attack, rehab witness reputation by
1) deny/explain impeaching facts 2) look at prior consistent statements 3) refocus on truthfulness |
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impeachment steps
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1) evidence that a witness's past conviction pass 403 ( substantial probative value > prejudicial)
2) if one of the elements of past crime conviction demonstrate dishonesty (mens rea), then gets admitted always (legally dishonest) 3) older than 10 years of release date (FRE) exception: if the probative value substantially outweighs prejudice, waive the 10 year limit |
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character evidence may be offered as either.
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substantive or only as to credibility
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propensity rule
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generally excludes evidence of a person's other or a person's character or character trait when offered to show that the person acted in character on the occasion at issue in the case
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analysis of propensity process
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1) is the proposed use of evidence to prove propensity/circumstantial proof of character?
2) If yes, go to exceptions 3)criminal case: D introduce proof of D's character. Open the door for P individual's habit/routine of a business sexual offense/harassment victim's prior sex with defendant FRE only: sexual assault, D's other acts of sexual assault/child molestation 3) direct proof of character when it is at issue in a case 3) if not in exception, not allowed in |
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character evidence and impeachment
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use of proposed evidence for purposes such as motive, intent, knowledge, opportunity, absence of mistake, preparation, common scheme/ plan, identity
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habit: routine practice
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1) habit of person/routine practice of organization
2) relevant to prove 3) conduct of person/organization was in conformity with habit/routine practice |
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requirement for habit practice rule
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require both specificity and uniformity of action
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propensity exceptions: character of accused
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Criminal
1) evidence of a pertinent character trait 2) offered by an accused or by prosecution on rebut, or for character of alleged victim of the crime of the accused |
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propensity exception: character of the alleged victim
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Criminal case
1) evidence of a pertinent character trait 2) of the alleged victim 3) offered by the accused or in rebut by opposing side |
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method of proving character
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All type cases
1) made by testimony as to reputation 2) or by testimony in the form of an opinion 3) cross examination, inquiry into relevant specific instance of conduct |
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Proving character and specific instances of conduct
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1) cases where character/trait is an essential element of a charge
2) proof may also be made of specific instances of that person's conduct |
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sex offense case: relevance of alleged victim's past sexual behavior or alleged sexual predisposition
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Criminal
1) specific instances of sexual behavior of alleged victim offered to prove someone other than accused was the source of semen, injury, or other physical evidence 2) prior sex with same accused civil: 1) sexual behavior/disposition of any alleged victim is admissible if probative value substantially greater than danger of harm/prejudice Note: evidence of victim's reputation is admissible only if it has been placed in controversy by the alleged victim |
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procedure to determine admissibility of sex offense cases
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1) file a written notice 14 days in advance describing evidence
2) serve the motion on respective parties 3) conduct a hearing on camera to evaluate evidence and what would be admitted |
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burden of pleading
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a rule of procedure
if P fails to burden of pleading, D files a motion to dismiss If D fails to plead affirmative defense, waiver results. Unable to offer evidence to support defense in trial |
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burden of production
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burden of going forward
if not met, opposing sides files for directed verdict to meet this burden: must produce sufficient affirmative evidence at trial to withstand motion for summary judgment |
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burden of persuasion
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risk of non-persuasion
when all the evidence is in Does not shift back and forth most civil cases: preponderance of evidence civl case: fraud--> higher bar -> by clear and convincing evidence criminal: beyond a reasonable doubt |
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irrebuttable presumption
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conclusive presumption
statutory rape, child's consent is irrelevant |
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rebuttable presumption: reverse image of a burden of proof
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mirror image of the burden of persuasion or burden of production
presumption of innocence = gov't bearing the burden of persuasion as to guilt |
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rebuttable presumption: permissible inferences
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with a basic fact, permissive fact may be found by the jury with a rational connection
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effect when the presumed fact is rebutted
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if D rebut the presumed fact, presumption pops away and burden of production shifts back to the plaintiff to over more evidence
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liar, liar, pants on fire
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1) witness's prior conviction
2) prior bad acts 3) bias, interest/prejudice or improper motive 4) witness's prior inconsistent statements |
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impeachment of witness: anyone can make a mistake
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1) bad eyesight/hearing
2) use of drugs/alcohol at pertinent time 3) conditions under which the witness's observation were made 4) bias affecting perception/memory 5)suggestiveness : identification procedure 6) prior inconsistent statement when memory was fresher at time of incident 7) contradictory substantive evidence from other witness |
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juvenile record
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FRE: do not qualify as conviction
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Appeals/pardon
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pardon: cannot admit conviction
appeal: an ongoing appeal does not change the status of the evidence |
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FRE: impeachment by evidence of conviction of crime balancing test
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probative value of admitting this evidence outweigh its prejudicial effect on the accused
10 years from release/date of conviction > 1 year of imprisonment |
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MD: impeachment by evidence of conviction of crime balancing test
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probative value > danger of unfair prejudice to the accused
Time limit: 15 years since date of conviction infamous crime appeal: pending appeal, evidence is excluded |
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FRE: impeachment by character witness testifying as to another witness's character of truthfulness
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call character witness to testify as to either
1) bad reputation in shared community 2) bad opinion based on first hand knowledge NOTE: specific acts that leads to opinion can ONLY be brought up on cross |
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extrinsic proof of prior inconsistent statement
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only on non-collateral manner (materially related)
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rehabilitation of impeached witnesses
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1) on redirect, either deny or explain
2) proving prior statements are consistent 3) call for a favorable character witness |
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denial/explanation for rehab
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Md law: one cannot deny one's guilt of a crime with past conviction, but can provide extenuating circumstances
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competency of a person
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whether that person may give testimony in a case
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modern approach to competency is:
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generally allow the person to testify, but allow the person to be impeached by their interest, bias, prior conviction
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MD: class of convicted felon not able to testify
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perjury
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MD: juror nonimpeachment rule
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read strictly
person who wishes to impeach a jury's based on what happened in the court room, would need to find a third party source |
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FRE: juror impeachment chink
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permit a juror to testify as to
1) extraneous prejudicial info was improperly brought to the jury's attention 2) whether any outside influence was improperly brought to bear upon any juror 3) whether there was a mistake in entering the verdict on the verdict form |
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dead man statute
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generally preclude a party to a suit by/against the deceased estate from testifying to a transaction with/statement by a person now deceased
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MD dead man statute
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1) party
2) proceeding 3) by/against personal representative, relevant 4) judgment/decree may be rendered 5) for/against 6) may not testify 7)any transaction/statement made by the dead/or through an agent since dead 8) open door by defense team 9) or dead person has already given testimony |
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individual inquiries as to a witness's competence
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ability to perceive, remember, or communicate
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sequestration of witness
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the rule against witness
no witness could hear the others testify FRE/MD: both made mandatory by counsel's request |
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exception to sequestration
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parties may not be sequestered
Due process = civil confrontation clause= criminal corporation: officer/employee may state in court as representation expert needed to assist or expert whose testimony will be based on other witness's testimony |
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MD exception to sequestration
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victim/representative of deceased/disabled victim
child witness- parent may stay |
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jury notice
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set of life experiences/vocab/understanding/ common sense with which to come into courtroom
Jury may not properly supplement that info beyond what was gained from trial. see dictionary example |
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judicial notice
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legitimate way to obtain substantive evidence
provided by court or by request of a party |
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type of judicial notice
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1) legislative fact (law and relevant policy consideration) and
2) adjudicative facts (who did what in this case, when,where, why, how) |
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legislative facts include
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1) case law
2) enacted law 3) policies such as social, political, and economic policy consideration on which law is/could be/should be based on |
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federal court judicial notice
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federal/state statute, case law and the federal register
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Maryland state court judicial notice
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maryland, other states's, federal, and other countries, maryland municipal ordinances, administrative law, COMAR, or Maryland Register
other must be pleaded and proved by certified copy note: counsel must give notice of intent to use non-maryland law |
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everybody around here knows that
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facts not subject to reasonable dispute and generally known within the court's jurisdiction by person of average intelligence
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look it up
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facts not subject to reasonable dispute and capable of ready determination by resort to sources whose accuracy cannot reasonably be questioned
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evaluative facts
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non-evidence facts
cocaine is a derivative of the cocoa leaf |
