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89 Cards in this Set

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Character Evidence

what are the 4 prelimiary questions to ask regarding character evidence?
1. the purpose of offer of CE
2. method of proving CE
3. Type of case: civil or criminal
4. what trait of character is involved
Character Evidence:

Purposes of an offer of character evidence
1. character directly in issue
2. as circumstantial evidence of person's conduct at time of litigated event
3. to impeach or support credibility of a W
Character Evidence

What method or technique to prove Character?
1. specific acts of conduct
2. opinion (a W)
3. reputation
Character Evidence

What trait of character must be proved?
can't just prove general, must be specific (ex. larceny: honesty or dishonesty)
Character evidence

When is CE admissible not admissible in a Civil case?
not when offered as circumstantial evidence to infer conduct at the time of the litigated event

ex: P sues D for personal injury alleging negligence arising out of car accident. P offers a W to testify that D has a reputation ih the community for recklesness > not admissible
Character Evidence

When is CE admissible in a civil case?
when the character of a person is itself a material issue in the case.

ex: defamation

unusual to be asked about on exam
Character Evidence

If character evidence is admissible in a civil case, what methods may be used to prove it?
1. Specific acts
2. opinion
3. reputation
Character Evidence: In Criminal Cases

Basic Rule 1: When is CE not admissible?
not admissible at the initiative of the prosecution if the sole purpose is to show Criminal Disposition in order to infer Guilt from disposition
Character Evidence: Criminal Cases

Basic Rule 2: CE is not admitted unless and until....
the accused is permitted to offer evidence of good character for the pertinent trait in the form of reputation and opinion to show disposition in order to infer innocence.

only then may the prosecution respond by showing the bad character of the accused
Character Evidence: Criminal cases

Hypo 1. May the prosecution show a D's criminal background to prove a violent disposition if the D does not try to show his good conduct, but takes the stand and denies his involvement in the crime?
Character Evidence: Criminal Cases

what methods can a D use to prove his good character?
call a W to testify on his behalf in the form of opinion or reputation, but not testimony.

also has to be a character trait that is in issue in the case
Character Evidence: Criminal Cases

Basic Rule 3: How may the prosecution respond after the accused offers evidence of good character?
The prosecution may respond by inquiry on cross examination of the accused's good character witness about any Specific Acts which would tarnish the accused's reputation or which would affect the opinion of the W
Character Evidence: criminal cases

Exam tip: asking character witness about past arrests
It is proper to ask the character witness if she is aware of the D's past arrests, but it is not proper to impeach a witness with her own past arrests
Character Evidence: Criminal Cases

Basic rule 4: after the accused offers evidence of good character, how else can the prosecution respond besides cross examining the D's character witnesses?
the prosecution may also respond by calling prosecution witnesses to testify to bad opinions or bad reputation in regard to the character of the accused
Character Evidence: criminal cases

the the accuses take the initiative in homicide or assault cases, as part of a self defense plea, to show the character of the victim as circumstantial evidence? if so, for what purpose?
Yes, to infer that on the occasion in question, the victim was the initial aggressor
Character Evidence: Criminal Cases

How can the prosecution respond when the accused attacks the victim's character?
by showing good reputation or opinion concerning the victim or by showing the bad reputation or a bad opinion concerning the acused himself
Character evidence: criminal cases

May a character witness for the D testify that weeks before the victim was shot, the W told the D about the victim's violent disposition?
Yes, this goes toward the D's state of mind during the fight with the victim
Character Evidence: Criminal Cases

Rape Shield Laws: in a case involving sexual mis conduct, how is defense evidence of the victim's sexual history to prove consent limited?
1. no opinion or reputation
2. specific instances of sexual behavior of the alleged victim are admissible only to prove: (i)that third part was the source of semen, injury, or other physical evidence; (ii)to show prior acts of consensual intercourse between alleged victim and the accused or (iii) if exlusion constitutional rights of the accused.
Character evidence: criminal cases

when are prior crimes or prior acts of uncharged conduct admissible at the initiative of the prosecution?
when the misconduct is relevant to prove a material fact other than character or disposition such as..

Motive, intent, preparation, plan, knowledge, identity, or absence of mistake or accident
Character Evidence: criminal cases

When may evidence relevant to show motive, intent, identity and common scheme be excluded by the judge?
if the trial judge believes that probative value is substantially outweighed by the danger of unfair prejudice

what is the general rule of authentication?
a writing is not admissible until it has been authenticated. A foundation must be laid showing that the writing is what it purports to be.

writings are not self-authenticating. A testimonial foundation is required
Writings: Methods of Authentication

Direct evidence in the form of...
1. Admission
2. eyewitness testimony (I saw him sign it)
3. Handwriting proof
i. law witness (any person familar with the signature)
ii. expert witness
iii. jury comparison

Ancient document rule: a document may be authenticated by evidence that it....
1. is at least 20 years old;
2. is in such a condition as to be free from suspicion or authenticity; and
3. was found in a place where such a writing would likely be kept

What is the Solicited Reply Doctrine?
proof that disputed document came in response to a prior communication

if you mail and offer and receive an acceptance, unlikely that someone else intercepted the mailed offer and mailed back an acceptance

How much evidence is necessary to lay a proper foundation?
Sufficient evidence to justify a jury finding of genuiness.

What are the self authenticating documents?
1. certified copies of public or business records
2. official pulications
3. newspapers and periodicals
4. trade inscriptions or labels
5. Aknowledged documents (where D signs name not once, but twice
6. signatures on certain commercial documents as provided by the U.C.C
How do you athenticate a photo?
requires a W to state the photo is a fair and accurate representation of people and places in it
How do you authenticate a photograph when there is no person available to authenticate the scene?
the photo may be admitted upon a showing that the camera was properly operating at the relevant time and that the photo was developed from film obtained from that camera
Best Evidence Rule

what does the BER require?
That a party seeking to prove the content of a writing (includes films, phototos, x-rays, and recordings) either (1) produce the original document or (2)account for the absence of the original

What does the BER apply to?
1. Legally operative documents: documents that by their existence create or destroy a legal relationship that is in dispute (deed, divorce, decree, will, written K(

2. W's sole knowledge comes from a document: W wants to recite orally what he read

BER does not apply to...
1. facts independent of the writing

2. Collateral documents: writings of minor importance

Modifications to the BER
1. Public records: certified copies admissible in place of originals (usually can't get the originals)

2. voluminous documents: if to voluminous to be produced in court, summaries, charts or calculations are admissible as long as originals would be admissible if offered and originals are made accessible to the opposing party

Modifications to BER: Duplicates
a duplicate is a copy produced by any technique which avoids errors and accurately reproduces the original

a duplicate is admissible to the same extent as the original. no need to explain absence of original unless (1) a genuine Q is raised about authenticity or (2) in the cicumstances, it would be unfair to admit the duplicate in lieu of the original
Witness & Testimonial Evidence

In order to be competent, a witness must have....
1. Perception
2. memory
3. communication
4. sincerity (Oath or affirmation)

What are Dead Man Acts?
statutes that say an interested survivor cannot testify for his interest against the decedent or decedent's representatives about communications or transactions with the decedent in a civil case unless there is a waiver

Elements of Dead Man Statute
1. W must not be interested
2. W must not be testifying for their interest
3. W must be testifying against decedent or reps
4. subject matter: can't testify to facts that, were the decedent alive, he would contradict
5. strictly civil, never criminal
6. can be a waiver: if the deceden't testimony goes before the jury

Objectionable questions of a witness
1. Narrative: (Tell us everything that happened on that day)
2. leading questions

When are Leading Questions permitted?
1. cross examination
2. direct examination on preliminary matters
3. on direct, when W is handicapped (child, elderly, dumb)
4. when examining a hostile W

When is a question misleading or Compound or Argumentative?
when it assumed a fact which is still in dispute. (Have you stopped beating your spouse?)
Witnesses: Use of writing in aid of testimony

what is the basic rule?
A W cannot read testimony from previously prepared document but may use a writing in aid of oral testimony using the rules of (1) refreshing recollection and (2)recorded collection

What is Refreshing Recollection?
When W memory fails, anything can be used to job the memory of the W (including tabloid newspapers)

Refreshing Recollection: may defense counsel see it? Use it in cross examination and introduce the article into evidence?

What is Recorded Recollection?
If W is unable to remember all or part of the details of a transaction about which she once had personal knowledge, her own writing shown to be reliable may be admitted in place of her testimony

What does a foundation for recorded recollection require?
1. at one time W had personal knowledge
2. S was made by W or adopted by her
3. W made S when fresh in memory
4. writing is accurate
5. Necessity-unable to remember all or part

is there a hearsay problem with Refreshing Recollection?
No, because the writing is not offered into evidence

Is there a hearsay problem with Recollection Recorded?
Yes, but falls withing a specific exception to the hearsay rule
Witnesses: Opinion Testimony

Lay Opinions are admissible if...
1. rationally based on the perception of the W
2. helful to the trier of fact
Witnesses: Expert Testimony

what are the 4 basic requirements for expert testimony?
1. subject matter must be appropriate
2. qualified
3. possess reasonable certainty or probability
4. opinion supported by proper factual basis
Witnesses-Expert Testimony

What does "appropriate subject matter" mean?
the opinion must "assist" the trier of fact. the methodology must be "reliable" and the opinion must be "relevant" (fit the facts of the case).

means the proponent must convince the trial judge by a preponderance of the evidence that these conditions have been met.
Witnesses: Expert Testimony

What does it mean to say that the expert must possess reasonabel certainty or probability regarding the opinion?
Must be more then guess work
Witnesses: Expert Testimony

What does the "opinion must be supported by a proper factual basis" mean?
1. personal knowledge of expert (examined P)
2. Facts supplied to expert in court (usually through a hypothetical)
3. facts are of a type which experts in that field would reasonably rely upon in making out of court decisions
Witnesses-Expert Witnesses

Can a learned treatise be used to impeach contrary expert by a defense expert?
Yes, but cannot just be read out loud to jury beause that would be hearsay
Witnesses-Expert Witnesses

How can a learned treatise be established as authority?
1. If expert relied on the text and treatise you want to use
2. elicit an admission that your text is authoritative
3. may have your own EW testify that your text is authoritative
4. Judicial notice-if text well known in J
Witnesses-Expert witnesses

Under modern codes, may a treatise be used to support your own expert's opinion?
Witnesses-Expert Witnesses

If you establish a treatise as reliable, may it be offered for its truth?
Witnesses-Expert witnesses

Limitations on treatises
Expert must testify (at trial or deposition) unless judge takes judicial notice

Treatise is admitted by being read to the jury. the text itself is not received as evidence

What happens if a W refuses to answer any credibility questions?
defense must be stricken

can the cross examination of a W exceed the scope of direct?
No, one may cross examine on any issues that were raised impliedly or expressly on direct examination

what does the collateral matters doctrine say?
that impeachment by contradiction of the W is limited. the cross-examiner is bound by the answers given by the W as to collateral matters. No extrinsic evidence is allowed to contradict a W as to a collateral matter
Witnesses: Impeachment

What is a collateral matter?
a matter that is relevant only to contradict the W, not to show the merits of the case
Witnesses: Accrediting your witness

Can you bolster your own W before there has been an impeachment?
No, your witness has to have been attacked first

when are prior consistent statements admissible?
If the statement is one of admission.

a prior out of court statement of identification that was made by a witnesses who testifies at trial is excluded from the definition of hearsay and may be admitted

Does the one who made the out of court identification have to be present in the court even if that person isn't testifying as to the identification (a cop does instead for example)
Yes, this is a pure hearsay problem

If a prior out of court statement as to identification is admitted, does it come in for its truth?
Yes, a prior out of court statement of identification made by a W is not hearsay and therefore is admissible for its truth

what are the 2 Questions relevant to each impeachment technique of your own W
1? can you use extrinsic evidence to drive home the impeachment or are you limited to asking about it on cross?

2. If you can use EE, do you have to lay a foundation first and give W a chance to explain before putting the extrinsic evidence up?
Witnesses-Impeaching Adversary W-Bias,Interest, Motive

Can you ever bring up a past arrest of a W?
can't generally ask about arrest as way to impeach, but if the witness is testifying for the prosecutor who's prosecuting the witness's case also, b/c witness might be looking for favor by testifying, can ask it in cross-ex and bring in extrinsic evidence.
Witnesses-Impeaching Adversary W-Prior Convictions

Can extrinsic evidence of a prior conviction be admissible?
Yes, Extrinsic evidence (certification of court where convicted) can come in and don't first have to ask the witness or lay foundation but trial lawyer would ask witness/lay foundation instead of just putting it in evidence b/c of drama value.
Witnesses-Impeaching Adversary W-Prior Convictions

Is a felony not involving dishonesty or false statement admissible to impeach?
Yes, a crime punishable by more then one year is admissible to impeach in the discretion of the court

misdemeanors are not admissible to impeach if they do not involve deceit or false statement
Witnesses-Impeaching Adversary W-Prior Convictions

is there any rule regaring the time elapsed for a past conviction?
Yes, the convictions can't be too remote. If more then ten years have elapsed from later date of conviction or date of release from confinement, the conviction is generally inadmissible-even if it is a crime of dishonesty or false statement
Witnesses-Impeaching Adversary W-Prior convictions of Crime

Can you use past convictions to impeach?
Yes, any crime (felony or Mr) if it involves dishonesty or false statement (fraud, larceny by trick, embezzlement) perjury, but not robbery or ordinary larceny b/c no deceit or false S.

No discretion to exclude it by judge b/c 403 does not apply
Witnesses-Impeaching Adversary W: Prior acts

if the attorney is going to ask about specific acts of deceit or lying, is anything of him required or can he just fire away?
Good faith. Must have a reasonable basis for believing act was done by witness and act must involve deceit or lying before asking.

Can't say "Did you sell drugs to kids" b/c no deceit involved

When can good reputation be shown?
If impeachment involved a character attack (prior conviction, deceit or lying, bad reputation/opinion for truth)

not techniques 1 or 2
Witnesses-Impeaching Adversary W

Does the inconsistent statement of a party qualify as an admission?
Witnesses-Impeaching Adversary W

is there any difference if the prior inconsistent statement of the W was given under oath before the grand jury that indicted def?
No, don't confuse this with the fact that the grand jury testimony of an UNAVAILABLE W is not usually admissible against the accused under the former testimony exception

Here, the declarant is AVAILABLE and is able to cross examine at the time of trial
Witnesses-Impeaching Advsersary W-Bad reputation for truth and veracity

how can you impeach?
Have another witness come in, but can't have this witness say other target witness lied 5 times, just can testify as to opinion or reputation to lie.

in other words, no specific acts
Witnesses-Impeaching Adversary W-Prior Convictions

Can extrinsic evidence be used as evidence of deceit or lying?
No, limited to cross examination
Witnesses-Impeaching Adversary W: Bias, Interest, Motive

May bias, interest, or motive be shown by extrinsic evidence?
Yes, after a foundation is laid by inquiry on cross-examination of the target W
Witnesses-Impeaching Adversary W: Prior Convictions

Can specific acts of deceit or lying may be asked about in cross-examination?
Yes, just ask the W, "did you do it?"
Witnesses-Impeaching adversary witness

If W denies making a statement, can you use extrinsic evidence to impeach him?
yes, you can either present written evidence or put a W on the stand who heard him
Witnesses-Impeaching adversary W: Bias, Motive, Interest

do you have the ability to admit evidence usually excluded?
Yes, liability insurance of the W is employed by the liability insurance company in the case

settlements are usually not admissible, but if W settled with the person he is testifying for, can bring this up to impeach

What are the 5 basic techniques for impeaching an advsersary W?
1. Prior inconsistent statement
2. showing of interest, bias, motive to be present
3. prior convictions
4. specific acts of deceit or lying which may be inquired into on cross
bad reputation for truth and veracity
Witnesses: Impeaching adversary witness

What foundation is necessary before using extrinsic evidence?
The witness should be afforded an opportunity to explain or deny the making of the statement, but there is no time requirement so his opportunity doesn't have to be before extrinsic evidence comes in
Witnesses: Impeaching adversary W

what are the rules as to Prior Inconsistent Statement?
1. generally admissible only to impeach-not for its truth-not affirmative or substantive evidence

2. but if the prior inconsistent statement was given under OATH and at a trial, hearing, or other proceeding or a deposition, such a statement is admissible for its truth
Witnesses:Impeaching advsesary witness

are prior inconsistent statements admissible for its truth as well?
generally admissible only to impeach, but if the prior inconsistent statement was given under oath and at a trial, hearing, or other proceeding or in a deposition, the statement is admissible for its truth

Can a prior consistent statement be used to to rebut a charge of a prior inconsistent statement?
No, but a prior consistent statement, said before the creation of motive, can be used to rebut a claim of recent fabrication or improper influence or motive

If impeachment says "Your witness is lying today b/c of some motive", you can rehab by showing statement, consistent with the in-court statement, that was made before alleged motive to lie materialized.

is a prior consistent statement that is pre-motive subject to the hearsay rules?
no, expressly excluded from hearsay

What happens if the
explanation for absence
of the original document
is reasonable?
Then a foundation has been laid
for it and either a copy or oral testimony may be admitted to
prove the content of the original
Character Evidence:

in civil cases involving sexual
mis conduct, when is evidence
of the sexual disposition or
behavior of the alleged victim admissible?
only if the probative value substantially outweighs the danger of harm to the victim and unfair prejudice to any party.

in addition, the defense must
be given notice and an in camera hearing must be held
Character Evidence: Criminal Cases

Hypo 2: May the prosecution
use CE as impeachment evidence
if the D does not try to show
his good character, but only
takes the stand to deny his involvement in the crime?
Yes...see cards on Impeachment