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93 Cards in this Set

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Judicial notice operates as a substitute for proof as to facts that are (2)
1. Matters of common knowledge
OR
2. Capable of certain verification through easily accesible, well-established sources
Effect of judicial notice in a criminal case
Relieves the prosecutor from his burden of producing evidence on that fact
Effect of judicial notice in a civil case
The fact judicially noticed is conclusivley proven
Relevant evidence should relate to the same (3)
1. Event
2. Person
3. Time
Previous similar happenings and transactions of the parties and others similarly situtated may be relevant in these circumstances (8)
1. Causation
2. Similar accidents/injuries caused by the same event or condition
3. Prior false claims or same bodily injury
4. Previous similar acts admissible to prove intent
5. Redutting claim of impossibility
6. Sales of similar property
7. Habit
8. Business routine
Evidence that a person has previously filed similar tort claims/has been involved in prior accidents is generally
Inadmissible to show the invalidity of the present claim (PV outweighed by UP)
Evidence that a person has previously filed similar FALSE tort claims/has been involved in prior accidents may be admissible to show
MIMIC: Common plan or scheme to defraud
Where similar accident/injuries were casued by the same event/condition, evidence of those prior events is admissible to prove (3)
1. That a defect/dangerous condition existed
2. Defendant had knowledge of the condition
AND
3. The defect/condition was the casue of the present injury
The requirement that prior occurrences be similar to the litigated act may be relaxed when used to rebut
A claim of defense of impossibility
Evidence of sales or similar property that are not too remator in time is admissible to prove
Value
Policy based relevance covers (3)
1. Liability insurance
2. Subsequent remedial measures
3. Settlements
General rule regarding liability insurance
Not admissibile to show fault or ability to pay
The exception to the general rule regarding liability insurance makes such evidence admissible for what purposes (2)
- Ownership/control
- To impeach credibility of witness by showing interest/bias
General rule regarding subsequent remedial measures
Not admissible to show:
- negligence
- culpable conduct
- defective product
- need for warning
Exception to the general rule regarding subsequent remedial measures admits evidence for purpose of showing
- Ownership/control
- Impeachment: to rebut claim that precaution was not feasible
General rule regarding admissibility of settlements
Admission of fact, liability, or damage made in course of offer to compromise a claim are not admissible
For settlement rule of exlcusion to operate these factors must exist (2)
1. There must be a claim filed
2. Dispute as to liability or damages
Payment or an offer to pay medical expenses
Not admissible
Key considerations in evaluating character evidence (4)
- Purpose of the character evidence
- Method of proving it
- Type of case: civil/criminal
- What trait of character is involved
Purpose of offer of character evidence - three reasons
- Character directly in issue (i.e. material element)
- As circumstantial evidence to prove conduct
- To impeach the credibility of a witness
Possible methods of proving character (3)
1. Reputation
2. Opinion
3. Specific Acts
The trait of character must be the specific trait in issue - examples:
Larceny - Honesty
Assault - Peaceful
Perjury - Truthfulness
Character in Civil cases
Not admissibile (by anyone!)as circumstantial evidence to infer conduct
Character is admissible in a civil case only when
The character os a person is itself a material issue (this is rare) - example: defamation case
Character is Criminal cases
Prosecution can never initiate; Defendant can put his character in issue by presenting evidence FOR THE TRAIT INVOVLED in the case; only through Reputation or Opinion
How does the prosecution rebut D's character evidence
- Cross the witness and ask, "have you heard/do you know?"
- Call a qualified witness to testify to Reputation or Opinion
Victim's character in a self-defense case (homicide/assault)
The accused may introduce character evidence of the "victim" as circumstantial evidence to infer that on the occassion in question the alleged victim was the first aggressor
Victim's character in sexual misconduct cases (rape) is limited as follows
- No opinion/reputation
- Specific instances admissible only to prove third party was the source of sexual crime or to show prior consensual acts between the "victim" and the accused
Specific acts of prior misconduct by the accused
Not admissible for propensity BUT may be admitted when relevant to prove a material fact other than character (MIMIC)
If using a specific act to show MIMIC always consider this rule
403 - Balancing test: PV vs. UP
MIMIC rule is good for what types of cases
Criminal AND Civil
Prior similar acts allowed to show propensity: special rule for cases involving
- Sexual Assault
- Children
Writings: rule of authentication
A writing is not admissible until it has been authenticated - requires foundation that the item is genuine
Methods of authentication: direct evidence in the form of (3)
1. Admission
2. Eyewitness testimony
3. Handwriting proof
Sources allowable for authenticating a handwriting proof (3)
- Lay witness
- Expert witness
- Jury comparison
Impermissible techniques by lay witness to authenticate handwriting (2)
- Cannot become familiar just for purpose of litigation
- Cannot compare to authentic signature
Self-authenticating documents (6)
1. Certified copies of public/business records
2. Official publications
3. Newspapers/periodicals
4. Trade inscriptions or lables
5. Acknowledged documents
6. Signatures on certain commercial documents
Authenticating a photograph
Need a witness familiar with the relevant scene (i.e. present at the relevant time)to attest that the photo is a fair and accurate representation
Best Evidence Rule: in seeking to prove the content of a writing (broad) must either (2)
1. Produce the original
OR
2. Account for the absence of the original - if reasonable okay to proceeded with secondary evidence
Modifications to the best evidence rule: public records; voluminous documents; duplicates
- Public records: certified copies
- Voluminous docs: summaries (if originals would be admissible and made available to opposing party)
- Duplicates: an electrnoic copy
Witnesses use of writings to aid in testimony - general rule
Cannot read testimony previously prepared documents
Proper use of a writing by a witness testifying (2)
1. Refreshing recollection
2. Recorded recollection
Refreshing recollection
Can use ANYTHING to job the memory of the witness
Recorded recollection
Witnesses own writing may be admitted into evidence in place of his testimony
Foundation for recorded recollection requires a showing of (5)
1. Witness has personal knowledge
2. Writing was made by (or directed by) the witness
3. Was madee timely
4. It is accurate/reliable
5. Necessity: witness has insufficient recollection to testify full and accurately
Two forms of Opinion testimony
- Lay opinion
- Expert opinion
Lay opinion is admissible if (2)
1. Rationally based on the perception of the witness
AND
2. Helpful to the trier of fact
Four basic requirements for expert testimony
1. Subject matter must be appropriate
2. Witness must be qualified as an expert
3. Expert must possess reasonable certainty/probablity
4. Must support with a proper factual basis
What qualifications does an "expert" witness need
Simply enough experience will suffice; need not be formal/academic
Facts supporting an expert's opinion must be either (3)
- Facts w/i the personal knowledge of the expert
- Facts which are presented in court by the evidence
OR
- Facts are of the type that experts in that field reasonably rely upon in making out of court opinions
Learned treatise limitations
- Hearsay (w/ an exception)
- For impeachment to show not all experts agree
- Text itself is not received as evidence
To fit within the hearsay exception for learned treatise must establish it as authoritative and reliable (4 ways)
1. Reliance by your expert on direct
2. Admission on cross of your opposing expert
3. Testimony of any expert
4. Judicial notice
Under federal rules, a treastise may used to support
Your own expert's opinion
Credibility and impeachment attacked two ways
- On cross-examination
OR
- Through extrinsic evidence
Collateral Matters Doctrine
No extrinsic evidence is allowed to contradict a witness as to a collateral matter (i.e. relevant only to show a contradiction)
Limited to bolstering your own witness only when
There has first been an appropriate impeachment
A prior out-of-court statement of identification made by a witness testifing at trial is
Excluded from the definition of hearsay and therefore admissible (for its truth!); additionally anyone present at this prior statement of identification can testify to support it
Basic five impeachment techniques
1. Prior inconsistent statement
2. Showing bias, interest, motive
CHARACTER ATTACKS
3. Prior criminal conviction
4. Specific acts of deceit/lying
5. Bad reputation for truth/veracity
Generally prior inconsistent statements are admissibile for
Only for impeachment; NOT for its truth
Exception to general rule of admissibility for prior inconsistent statments
If (1) given under oath and (2) at a trial, hearing or other proceeding --> its admissible for its truth
Two means of proving a prior inconsistent statement
1. On cross-examination
OR
2. Through extrinsic evidence
Prerequisite to using extrinsic evidence to impeach on prior inconsistent statement
Lay foundation by giving witness an opportunity to explain or deny the making of the inconsistent statement (means witness needs to be present at the trial)
Prior inconsistent statement of a party as an admission
Yes
Bias, Interest, Motive may be shown by extrinsic evidence after
A foundation is laid by inquiry on cross of the target witness
Prio Convictions are usable to impeach if
The conviction is for the proper kind of crime
Convictions usable to impeach (2)
1. Any crime involving dishonesty or false statement
OR
2. A felony (at the discretion of the court - consider remoteness past 10 years)
Extrinsic evidence of conviction is
Admissible and no foundation necessary
Cross-examining on Specific Acts of deceit or lying (i.e. "Isn't it true you filed a false income tax return in 199?") (3)
- Good faith required
- Act inquired about must involved deceit or lying
- No extrinsic evidence permitted (only on cross)
Rehabilitation after Impeachment - two options
- Good reputation (opinion) for truth may be shown if impeachment involved a character attack
OR
- Prior Inconsistent Statement to rebut charge of fabrication or improer motive
Four exceptions to the standard Attorney-Client privilege
1. Future crime/fraud
2. At issue exception ("I followed advice of lawyer")
3. Disputes between the parties (allows lawyer to defend himself)
4. Join client exception
Physician/Psychiatrist - Patient Privilege
Confidential information acquired in a professional relationship by the treating doctor for the purpose of obtaining treatment
Husband-Wife spousal privileges (2)
1. Spousal Immunity privilege
2. Confidential marital communications privilege
Define: Spousal Immunity privilege
One spouse cannot be forced to give adverse testimony against the other in a criminal case
Elements necessary to establish spousal immunity privilege (4)
1. Valid marriage at time of trial
2. Protects against any/all testimony
3. Holder of privilege is witness spouse not party spouse (can choose to talk)
4. Applies only in criminal case
Define: Confidential Marial Communications privilege
Shall not be required, or without the consent of the other, shall not be allowed to disclose a confidential communication made by one to the other during the marriage
Elements necessary to establish confidential marital communications privilege (4)
1. Married at time of protected communication (not neccesarily at trial)
2. Protects only confidences
3. Hold is either spouse
4. Applies to all cases civil/criminal
Applicability of state law in federal court - three situation in which state evidence law will apply in federal court IF state substantive law applies (think diversity j/d)
1. Presumptions and burdens of proof
2. Competency of witness
3. Privileges
Specific non-hearsay situations (3)
1. Verbal acts or legally operative facts
2. Offered to show effect on listener
3. Offered as circumstantial evidence of declarant's state of mind
Verbal acts/legally operative facts means
The words constitute the act
- "I accept" for a (K)
- Cancellation
- Conspiracy
- Waiver
Statements offered to show effect on listener important in showing
- Notice
- Knowledge
- Motive
A witnesses' own prior statements can be hearsay, but the rules exclude certain statements (3)
- Prior Inconsistent Statemnet (under oath, prior proceeding)
- Prior Consistent Statement (to rebut impeachment)
- Prior statement of identification made by a witness
Major hearsay exceptions (6)
1. Party admission
2. Former testimnoy
3. Statement against interest
4. Dying declaration
5. Business records
6. Spontaneous statements
Common spontaneous statements that will be excepted from hearsay
- Present state of mind
- Statement of existing intent to prove intended act
- Excited utterance
- Present sense impression
- Declaration of present physcial condition
- Declaration of past physical condition
Part Admission exception
- need not be against interest at time of making it
- need not be based on personal knowledge
- can be a legal conclusion
- is non-hearsay
Vicarious party admission admissible when
A statement is made by the party's agent, within the scope of agency and during existence of the relationship
Former testimony exception - 2 requirements
1. Meaningful opportunity to cross
AND
2. Declarant is "unavailable"
Defined: Statement against interest exception
Declaration of a person, now unavailable as a witness, against that persons' interests at the time the statement was made
Limitation to exception for statements against interest
Statements against penal interest (i.e. criminal liability) - must be corroborated
Distinguish statements against interest from admission of party
Statements Against Interest
- Must be against interest at the time statement was made
- May be made by any person
- Require personal knowledge
- Requires unavailibility
Dying declaration key points
- Criminal Homicide case or a civil case
- Statement made under a sense of impending death
- Must concern cause or circumstances of death (personal knowledge)
- Declarant is unavailable
Preliminary questions of fact concerning qualification of witness, existence of privilege, admissibility of evidence shall be determined by
The court
Business records exception - 2 requirements
1. Made at/near time
2. Kept in the regular course of business (entry needs to be german to the business)
- Allows the record to substitute for the in-court testimony of the employees
Crawford held that out-of-court statements that fit the hearsay exception may still not be admitted where (5)
1. Offered in a criminal case
2. Declarant unavailable
3. Statement was testimonial
4. No opportunity to cross the declarant's testimonial statement
UNLESS
5. Prosecution demonstrates defendant forfeited his confrontation clause objection by wrongdoing that prevented him from testifying at trial