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75 Cards in this Set

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4 question approach to char. evid.
1. For what purpose?
a. To prove char. b/c char. is at issue
b. To prove char. as circumstantial evid. of person's conduct in question
c. To impeach/support witness's credibility
2. What method or technique is used to prove char.?
a. Specific acts of conduct
b. Opinion
c. Reputation
3. Civil or crim case?
4. Does evid. prove a pertinent char. trait?
Payment or offers to pay med expenses
Offers to pay NOT admissible

BUT, unlike settlement offers, related stmts ARE admissible
Settlement offer rule exceptions
Where no claim is asserted yet

Where no dispute as to liability/damages
Subsequent repairs or remedial measures

Definition, exceptions
Evidence of safety measures or repairs after accident NOT admissible to prove:
1. culpable conduct
2. defective product design in products liability

BUT admissible to prove other things

MAJOR EXCEPTION: defense of no feasible precaution
4 policy reasons for excluding relevant evidence
1. Liability insurance
2. Subsequent remedial measures or repairs
3. Settlements, offers to settle, pleas
4. Payment or offer to pay med expenses
Similar occurence

Habit evidence
Distinguish from char evid

MUST be frequently repeated conduct
Similar occurrences

8 types + likelihood of relevance
1 general---depends
2 prior accidents or claims---NO, BUT 2 exceptions
a. pattern of fraudulent claims
b. preexisting conditions
3 to prove intent---yes
4 to rebut evidence of impossibility---yes
5 comparable sales to establish value---yes
6 habit---yes, BUT distinguish from char.
7 routine practice---yes
8 industrial custom to prove negligence standard of care---yes
Similar occurrences

Prior accidents or claims

Rules and exceptions
Usually NOT relevant

EXCEPTIONS to prove:

1 pattern of P bringing fraudulent claims
2 preexisting conditions
Similar occurrences

general rule
Where there are certain similarities btw evid. and the people and events at issue
Exceptions to rule that prosecution canNOT open door to offer char. evid. in crim. case of D's conduct
1 sexual assault OR child molestation

2 where ct had admitted evid. of victim's char. offered by D, prosecution can prove that D has same char. trait
Char. evid. in civil cases

When admissible? 3 situations
NOT admissible to prove conduct EXCEPT sexual assault OR child molestation

Admissible when char. is in issue
Examples of when char. is at issue for use of char. evid. in civil cases
Defamation
Negligent entrustment
Child custody
What methods/techniques are okay to prove char. when char. is at issue?
ALL THREE

Specific instances of conduct
Opinion
Reputation
Def. of char.
1 Says something general about a person
AND
2 conveys a moral judgment
Habit vs. char.
Char. says something general about a person AND conveys a moral judg.

Habit describes specific conduct and does NOT make a moral judg.
Char. evid. in crim cases

2 exceptions to the "D must first open door" doctrine
1 cases of sexual assault, child molestation, prosecution can offer first, even on case-in-chief direct

2 where ct has admitted evid of victim's char offered by D, prosecution can be first to offer evid that D has same char trait
Other than exceptions, once D opens the door, which kinds of evid are allowed on direct?

Reputation? Opinion? Specific instances of conduct?
Reputation AND opinion

NOT spec instances of conduct
Other than exceptions, once D opens the door, which kinds of evid are allowed on cross?

Reputation? Opinion? Specific instances of conduct?
ALL 3
Two ways D can open door for admissibility of evid of victim's char
1 IF D offers evid of victim's char, prosecution can rebut

2 In homicide case, IF D offers evid that victim attacked first, prosecution may offer evid of victim's char for peacefulness
Char. evidence

Rape shield

Admissibility of reputation, opinion, specific instances of conduct, w/respect to rape victim's char

Civil vs crim
Crim

-Reputation and opinion, fine
-Specific instances of conduct ONLY IF
---EITHER 3rd party is source of semen or injury
---OR prior acts of consensual intercourse btw D and alleged victim

Civil

-All 3 admissible IF probative value outweighs unfair prejudice
-For reputation, ONLY IF P (not victim) put her reputation at issue
Char. evidence

Specific instances of D's bad conduct may be admitted to prove anything other than character: MIMIC
Motive
Intent
Mistake, absence of
Identity
Common plan or scheme
Char. evidence

Identity elements, two
Similarity AND uniqueness
Testimonial evid

Competency: four requirements
Personal knowledge
Present recollection
Communication
Sincerity (oath, affirmation)
Testimonial evid

Personal knowledge vs. hearsay
For PK, ask, does fact perceived = fact testified to?? Yes--->PK.

For hearsay, ask, does the witness quote someone or explicitly refer to someone's out of court stmt? Yes--->hearsay
Testimonial evid

When is leading okay on direct?
1 Adverse witness
2 Hostile witness
3 Witness needing help
Testimonial evid

Refreshing recollection, when is it hearsay?
When witness reads directly from doc to jury
Testimonial evid

Recorded recollection exception, 5 elements, when party can enter doc into record and avoid hearsay
1 Witness had PK of facts
2 Doc was made by witness OR under witness's direction OR adopted by witness (initialing a doc)
3 Doc was written at time when facts were fresh in witness's memory
4 Accurate doc when created
5 Insufficient recollection by witness, so needs doc
Testimonial evid

Lay opinion testimony, 2 elements
1 IF rationally based on witness's perception

2 AND helpful to trier of fact; i.e., would give jury MORE info than if testimony were limited to mere perceptions

NO legal conclusions
Testimonial evid

Expert opinion, 5 requirements
1 Opinion helpful to jury
2 Witness qualified
3 Witness must believe in opinion to reasonable certainty
4 Opinion must be supported by proper factual basis
5 Opinion must be reliable on principles that were reliably applied
Testimonial evid: expert opinion

Expert opinion must be based on the following three things to be supported by a proper factual basis
1 PK
2 Admitted evid
3 Inadmissible evid reasonably relied upon
Testimonial evid: expert opinion

Expert opinion, to be based on reliable principles reliably applied, must meet Daubert/Kumho: four elements
1 Peer reviewed and published
2 Tested and subject to retesting
3 low error rate
4 reasonable level of acceptance
Testimonial evid: expert opinion

Learned treatise exception
Admissible to prove anything stated therein SO LONG AS accepted authority in the field
Testimonial evid: witness credibility

When can party support witness cred?
Evid to support cred admissible ONLY AFTER cred is attacked first
Testimonial evid: witness credibility

Prior consistent stmt, when admissible
Prior consistent stmts admissible for all purposes IF

EITHER made before bribe
OR made before inconsistent stmt
Testimonial evid: witness credibility

Impeachment, three step approach
1 is source of impeachment extrinsice evid OR testimony at this proceeding by witness being impeached?

2 IF extrinsic, is it admissible given impeachment technique?

3 any other foundation requirements??
Testimonial evid: witness credibility

Impeachment, collateral matter
Extrinsic evid NOT admissible to impeach on collateral matter
Testimonial evid: witness credibility

Impeachment by prior inconsistent stmt; when is prior inconsistent stmt not hearsay?
IF given under oath at trial/deposition

Otw, hearsay and inadmissible IF OFFERED TO PROVE TRUTH
Testimonial evid: witness credibility

Impeachment by prior inconsistent stmt, foundation requirement
Extrinsic evid admissible ONLY IF witness given opportunity to explain or deny at some point during trial

Excusing witness take away opportunity, unless subject to later recall
Testimonial evid: witness credibility

Seven ways to impeach cred
1 Contradiction (collateral matter)
2 Prior inconsistent stmt
3 Evid of bias, motive, intent
4 Conviction for crime involving false stmts
5 Conviction for crime NOT involving false stmts
6 Non-conviction misconduct evid bearing on truthfulness
7 Reputation and opinion regarding truthfulness
Testimonial evid: witness credibility

Impeachment w/evid of bias, motive, intent; foundation requirement
ONLY if witness given opportunity to explain or deny
Testimonial evid: witness credibility

Conviction for crime involving false stmt

Weighing unfair prejudice against probative value
NO weighing UNLESS conviction older then 10 yrs
Testimonial evid: witness credibility

Conviction for crime NOT involving false stmt

Felonies vs misdemeanors
Felonies, admissible to impeach BUT ct weighs unfair prejudice against probative value

Misdemeanors NOT admissible if no false stmts
Testimonial evid: witness credibility

Non-conviction misconduct evid bearing on truthfulness
-Admissible in civil and crim case IF acts involved lying
-NO extrinsic evid; ONLY on cross
Testimonial evid: witness credibility

Impeachment w/reputation and opinion re: truthfulness; extrinsic evid admissible?
Yes.
Hearsay
3 step approach to evaluate whether it is offered to prove the truth of the matter asserted
1 Find the stmt
2 Ask what it is offered to prove; if tough, consider who offered the evid and what it would be relevant to prove in that party's case
3 Given what it's offered to prove, would jury be misled by this evid if the out of ct speaker was lying or mistaken?
Hearsay

Independent legal significance
If out of ct stmt has independent legal significance (such as "I accept the offer" in a K case), then NOT hearsay
Hearsay

Examples of when something is NOT hearsay
1 Independent legal significance
2 Stmt offered to show effect on listener
3 Stmt offered to show speaker's knowledge of facts stated
4 Stmt is circumstantial evid of state of mind
Hearsay: Exemptions

4 exemptions
1 Admission of party opponent
2 Prior inconsistent stmt given under oath at trial or deposition
3 Prior consistent stmt offered to rebut charge of recent fabrication or improper influence or motive
4 Stmt of identification of a person made after perceiving the person
Hearsay: Exemptions

Vicarious party admissions; definition
Stmt by

1 authorized spokesperson of party (authorization express OR implied)

OR

2 employee of party concerning matter within scope of employment AND made during relationship
Hearsay: Exceptions

Former testimony; testimony given by a person in earlier proceeding or deposition is admissible IF either of 2 things

Unavailability?
1 Party AGAINST whom the testimony is now offered had, during the earlier proceeding, an opportunity to examine that person AND the motive to conduct that exam was similar to the motive the party has now

OR

2 for CIVIL case, party against whom the testimony is now offered was not present in the earlier proceeding BUT has a close privity-type relationship w/someone who was a party to that earlier proceeding AND who had an opportunity AND a similar motive to examine witness in that earlier proceeding

Declarant MUST be UNavailable
Hearsay: Exceptions
Def of declarant unavailability; 5 options
IF:

1 ct exempts declarant from testifying due to privilege
2 Declarant is sick/dead
3 proponent of stmt cannot procure declarant's attendance by process or other reasonable means
4 declarant refuses to testify despite ct order

OR

5 Declarant's memory fails
Hearsay: Exceptions

Declaration against interest; def

Unavailability?
Hearsay stmt admissible IF, AT TIME IT WAS MADE, stmt was against:

1 financial interest of declarant
OR
2 would have subjected declarant to crim liability

IF stmt is offered to exculpate accused, MUST have corroborating evid

Declarant MUST be UNavailable
Hearsay: Exceptions

Dying declaration; civil vs crim

Unavailability?
Hearsay stmt by one believing he is about to die AND describing cause or circumstances leading to impending death

Admissible in ANY civil case

Admissible in crim ONLY for homicide prosecution

Declarant MUST be UNavailable (though not necessarily dead)
Hearsay: Exceptions

Excited utterance

Unavailability?
Stmt relating to startling event or condition admissible when made while declarant was still under stress of excitement caused by event or condition

Declarant CAN be available
Hearsay: Exceptions

Present sense impression

Unavailability?
IF stmt describes event or condition made while declarant was perceiving the event or condition OR immediately thereafter

NO emotional state required (unlike excited utterance)

TIMING MATTERS

Declarant CAN be available
Hearsay: Exceptions

Then existing physical or mental condition

Unavailability?
Admissible to show condition or state of mind

BUT stmt describing a memory or belief is NOT admissible to prove the fact remembered or believed

Declarant CAN be available

**Jury can infer action in accordance with the intention
Hearsay: Exceptions

Stmt of past OR present mental or physical condition, or its cause, made for med diagnosis or treatment

Unavailability?
Admissible IF made for AND pertinent to med diagnosis or treatment

Declarant NEED NOT BE THE PATIENT; can be anybody

Declarant CAN be available
Hearsay: Exceptions

Business records

Unavailability?
Admissible IF:

1 record of events
2 kept in course of regularly conducted business activity
3 made at or near the time of matters described
4 by person w/knowledge of facts in that record
5 it was regular practice of business to make such record

Declarant CAN be available
Hearsay: Exceptions

Public records exception; three scenarios, + crim. twist

Unavailability?
Admissible if within ONE of the following:

1 record describes activities of the office
2 record describes matters observed pursuant to duty imposed by law
OR
3 record contains factual findings resulting from investigation made pursuant to authority granted by law, UNLESS untrustworthy

BUT BUT BUT prosecution canNOTNOTNOTNOTNOT use 2 or 3 in crim case

Declarant CAN be available
Hearsay: Exceptions

Judgment of previous conviction

Unavailability?
Hearsay stmt describing a felony conviction admissible in BOTH civil AND crim to prove any fact essential to judgment

BUT when offered by prosecution for purposes ""other than impeachment"", judgment against persons other than accused are NOT admissible

Declarant CAN be available
Hearsay: Confrontation clause

4 elements
CC excludes an out of court stmt IF

1 declarant does not testify at trial
2 is NOW UNavailable
3 stmt is testimonial
AND
4 D had no chance to cross-examine declarant about stmt when it was made
Hearsay: Confrontation clause

Testimonial vs non-testimonial
Stmts about ongoing emergencies are NOT testimonial
Hearsay: Writings and other physical evid; i.e. nontestimonial evid

Authentication burden of proof
Low: sufficient to sustain a finding

Some conflicting evid is okay
Hearsay: Writings and other physical evid; i.e. nontestimonial evid

Possibilities to authenticate signed writing via signature
1 admission
2 eyewitness testimony
3 expert
4 lay opinion
5 circumstantial evid
6 genuine examplar
Hearsay: Writings and other physical evid; i.e. nontestimonial evid

Ancient doc rule; 3 elements
Authenticity established IF doc:

1 is 20 years old or more
2 does not on its face present any irregularities
AND
3 was found in place of natural custody
Hearsay: Writings and other physical evid; i.e. nontestimonial evid

Self-authenticating writings; examples
certified public docs
official publications
newspapers
periodicals
business records
trade inscriptions
Hearsay: Writings and other physical evid; i.e. nontestimonial evid

Self-authenticated writings

Trade inscription def.
Tag or label that purports to have been attached in course of business and indicates ownership control or origin

e.g. Pepsi trademark
Hearsay: Writings and other physical evid; i.e. nontestimonial evid

Authentication of non-unique items; requirement
Proponent must lay chain of custody showing that this it the specific item proponent claims it to be
Hearsay: Writings and other physical evid; i.e. nontestimonial evid

Best evid rule and exceptions
Applies where evid offered to prove the contents of the writing, and rule requires ORIGINAL, BUT EXCEPTIONS:

Voluminous docs: can be summarized IF original available for inspection
Hearsay: Writings and other physical evid; i.e. nontestimonial evid

Best evid rule; what kind of evid is admissible to prove the contents of a writing? 4 types
1 originals
2 duplicates: copy of original produced by the SAME IMPRESSION used to create the original (e.g. carbon copy) OR by a machine
3 testimony regarding contents of writing ONLY where original lost or destroyed AND no bad faith by proponent of testimony
Hearsay: Writings and other physical evid; i.e. nontestimonial evid

Best evid rule

Exception to duplicate rule
NOT admissible where there is a genuine question as to authenticity of original
Privileges

4 types
1 Atty-client
2 spousal
3 psychotherapist-patient
4 social worker-client
Privileges

Atty-client; def.
Communication btw atty and client or their reps intended by client to be confidential AND made to facilate legal services
Privileges

Atty-client; corporation rule
Communication btw corporation employee and corporation's atty privileged WHEN corporation authorized the employee/agent to communicate to atty
Privileges

Atty-client privilege exceptions, three
1 prof services sought to further what client knew or should have known to be a crime or fraud
2 communication relates to alleged breach of duty btw atty and client
OR
3 two or more parties consult an atty on a matter of common interest and the communication is offered by one party against the other