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29 Cards in this Set

  • Front
  • Back
LIMITED ADMISSIBILITY
Evidence that is admissible as to one party or for one purpose but not admissible as to another party or another purpose
OPENING THE DOOR
Evidence that is otherwise inadmissible becomes admissible b/c the adverse party has "opened the door" by offering some bit of evidence
PERSONAL KNOWLEDGE
A party seeking to offer evidence must lay a foundation to show that the witness was in a position to have personal knowledge perceived through his own senses

Exceptions:
1. Expert witnesses
2. Statements w/in hearsay exception
3. S/ments of DOB and identity of relative
REFRESHING RECOLLECTION
When a witness' memory fails it can be refreshed through the use of an aid that helps the witness recall an event, place, thing or person. Admissibility goes to the memory (not the aid)
PAST RECOLLECTION RECORDED
Past memory is admissible if it was recorded at a time when witness' memory was fresh, and the document in which his memory was recorded is admissible under the rules for admitting writings.
GENERAL OBJECTION
Where an objection is made without providing the basis or grounds for the objection
SPECIFIC OBJECTION
Where an objection is made and counsel makes a specific ground for the objection
PLAIN ERROR RULE
Error in admitting or not admitting evidence that did affected a party's substantial rights
OFFER OF PROOF/PROFFER
When evidence is excluded, the party trying to admit the evidence must make an offer of proof so that the Appellate Court can see what the excluded evidence was to determine if there was error
HARMLESS ERROR RULE
Error in admitting or not admitting evidence that did not affect a party's substantial rights
LAY OPINION
GR: Lay witnesses are not permitted to offer evidence in the form of an opinion, BUT lay person may testify to facts s/he knows from 1st hand knowledge which provides understanding to the trier of fact.

NB: Cannot provide scientific, technical or specialized info
JUDICIAL NOTICE
Where courts take facts into account in reaching decisions w/o requiring that those matters be presented by formal proof

Legislative Facts - used by appellate courts in reaching policy decisions, modifying case law or interpreting statutes

Adjudicative Facts - facts or inferences in a particular case

1. Notorious Facts - known w/in the territorial jurisdiction
2. Veritable Facts - capable of accurate and ready determination by sources whose accuracy cannot be reasonably questioned
REBUTTAL
Offered by the Plaintiff/Prosecution and occuras after the Def has put on its case. Rebuttal is proper and its evidence is admissible when it explains, contradicts or replies to any NEW matter introduced by the defense
EXCLUSION OF WITNESSES
At the request of a party, a judge must exclude witnesses from the c/room so that they cannot hear the other witnesses at a trial. But, judge may exclude on his own.

Persons no excluded: person who is a party, person essential
IMPEACHMENT
Is an attack upon the credibility of a witness and can be done by any party. Only a witness who has testified
REHABILITATION
Once the credibility of a witness has been attacked it can be rehabilitated by specific means which are directly related to the attack (e.g. proof of good character or prior consistent statements). Can be done by any party.
IMPEACHMENT BY PRIOR INCONSISTENT STATEMENT
A prior inconsistent statement can be used to impeach the credibility of a witness; renders the inconsistent statement on the stand less worthy of belief and so not hearsay. Prior statement MUST contradict the testimony on the stand, but complete contradiction is not required.

In Md, extrinsic evidence of a prior inconsistent s/ment is NOT admissible unless: witness given opp to explain/deny; witness failed to admit making the s/ment; s/ment concerns a non-collateral matter
IMPEACHMENT BY BIAS, MOTIVE & INTEREST
The FRE permit the impeachment of a witness by showing his bias (kinship, business, employment, economic and sexual relationships; or friendship with one of the parties). Extrinsic evidence to prove bias is permitted
IMPEACHMENT BY PRIOR CONVICTION
Admissible to impeach credibility b/c there is a logical inference that a witness who has been convicted of some crimes is less likely to be truthful than one who has never been convicted. Convictions less than 10 years if involving dishonesty or false statements. Other convictions less than 10 years are admissible only if the crime is a felony. Weigh probative value
IMPEACHMENT BY CHARACTER FOR TRUTHFULNESS
Involves evidence of a person’s general character or a specific character trait and is generally NOT admissible. Except: it can be admissible in the form of
1. Reputation,
2. Opinion
3. Specific instances of conduct when relevant to an element or character is at issue in the COA.
IMPEACHMENT BY CHARACTER FOR TRUTHFULNESS

REPUTATION
Reputation. – Opinion evidence is admissible about the witness’s reputation for truth and veracity; witness MUST lay a foundation by showing familiarity with the reputation of the person. On cross, witness may be asked if he has heard of specific instances of conduct which might lead him to a diff opinion
IMPEACHMENT BY CHARACTER FOR TRUTHFULNESS

OPINION
Opinion – character witness can give his own opinion of the character of a witness with respect to truth and veracity, once he has show a basis for that opinion
IMPEACHMENT BY CHARACTER FOR TRUTHFULNESS

SPECIFIC INSTANCES/PRIOR BAD ACTS
Specific instances of conduct or prior bad acts - Permits impeachment by a showing that the witness engaged in a specific instance of conduct that reflects poorly on a person’s character for truthfulness. MUST reflect truthfulness by clear and convincing evidence BUT ONLY ON CROSS and NO EXTRINSIC EVIDENCE
SEXUAL PROPENSITY EXCEPTION
GR: Character evidence not permitted, but MD will permit sexual propensity evidence if the prosecution is for a sex crime, the acts are similar to the prior acts, same accused and victim
WORK PRODUCT DOCTRINE
Permits the lawyer to prevent disclosure of the attorney’s thoughts, theories and the like, and extends to persons used by the lawyer in providing the legal services.
EXPERT WITNESSES
Expert testimony about a subject is proper if the subject requires some specialized knowledge to understand and the expert’s opinion would assist the trier of fact. To be qualified as an expert: specialized knowledge, education, training or experience and must have sufficient basis upon which to base his opinion
NON-HEARSAY (I.E. NOT OFFERED FOR TRUTH)
If you can C-ELVIS, you are NOT offering for truth and therefore NOT hearsay.

C – Declarant had the CAPACITY to observe
E – EFFECT on hearer to explain some action on the hearer or what hearer knew
L – LEGALLY OPERATIVE EFFECT such as defamation, words that give notice, words of deceit, words which form a K or which constitute a K
V – VERBAL ACTS or words that clarify ambiguous conduct
I – IMPEACH
S – STATE OF MIND statements offered as circumstantial evidence of the declarant’s state of mind are not hearsay
HEARSAY
The Hearsay Rule excludes out of court statement (oral, written, conduct) offered for the truth of the matter asserted, with limited exceptions:
1. Statement by Party Opponent
2. Statement for Medical Diagnosis
3. State of Mind Exception
4. Statement of Present Mental/Physical Condition
5. Present Sense Impression
6. Excited Utterances
7. Past Recollection Recorded
8. Business Records
9. Public Records
10. Judgments of Prior Felony Convictions
11. Learned Treatises
12. Family & Ancestral Relationships

Unavailability Required:
1. Dying Declarations
2. Statements against Interest
3. Forfeiture by Wrongdoing
4. Former testimony; Depositions
5. Statement of Personal/Family History
PRIVILEGES
1. Attorney/Client - N/A in Md
2. Doctor/Patient
3. Physician/Substance Abuse Patient – limited to alcohol and drug abusers seeking treatment
4. Priest/Penitent – must be an established church, comm. Made in confidence and penitent seeking spiritual advice (IN MD)
5. Accountant/Client – no disclosure UNLESS permitted by client; privilege does not apply to grand jury
6. Newsperson – Not compelled to disclose the source of any news or info; the info is not privileged, but the source of the info is
7. Executive
8. Patient/Mental Health (Psychiatrist/Psychologist/Social Worker) – communications relating to diagnosis and treatment of patient’s mental health not permitted, but is if necessary to place person in mental institution