Evidence 2

Front 1

Unfair prejudice:

Back 1

1) emotionally distrubing
2) item is logically relevant to prove 2 different things, but is admissible for one purpose only

Front 2

Exclusion for policy reasons:

Back 2

1) liability insurance
2) subsequent remedial measures
3) settlements, offers to settle, and pleas
4) payment or offer to pay medical expenses

Front 3

Liability insurance:

Back 3

inadmissible to prove culpable conduct OR D's ability to pay

BUT, admissible to prove bias or scope of employment

Front 4

Subsequent remedial measures:

Back 4

inadmissible to prove culpable conduct OR, in product liability actions, defective product design

BUT, admissible to prove ownership, control, defense of no feasable precautions

Front 5

Settlements, offers to settle, and pleas:

Back 5

Civil case: inadmissible to prove liability or fault

Exceptions:
1) no claim asserted
2) no disputed amount of damages

Criminal case: pleas later withdrawn inadmissible to prove guilt

NOTE: related statements are NOT admissible

Front 6

Similar occurrences:

Back 6

generally, inadmissible.

BUT, admissible to prove:
1) causation
2) pattern of fraudulent claims
3) preexisting condition
4) intent
5) rebutt defense of impossibility
6) comparable sales - to prove value
7) habit

Front 7

Habit - definition:

Back 7

person's regular response to a frequently repeated specific situation

Front 8

Routine practice evidence:

Back 8

relevant to show that a business acted in accordance with the practice on particular occasion.

Front 9

Habit - definition:

Back 9

person's regular response to a specific situation

Front 10

Character evidence - civil cases:

Back 10

1) evidence of character trait of a party is inadmissible to show that party probably acted in conformity therewith in current action
2) if the litigant has some other purpose and it is relevant, the rule will not keep it out – 2 purposes on MBE:
a. negligent entrustment
b. defamation
3) if a party testifies, they automatically place their character trait of truthfulness at issue

Front 11

Character evidence - criminal cases - rules:

Back 11

1) the prosecution cannot introduce any evidence of D’s bad character if the purpose of the evidence is to show that D probably acted in conformity with that character and committed crime charged
2) D is allowed to present evidence of relevant character traits to establish that he acted in conformity with those traits and did not commit the crime – reputation and opinion ONLY, but NOT specific acts
3) If D presents evidence of good character, prosecutor is allowed to introduce evidence of D’s bad character – reputation & opinion & “have you heard?”
4) While evidence of prior crimes is never admissible to prove character, they are allowed to prove MIMIC – BUT, it could be excluded under FRE 403
5) If D testifies, he automatically places his character of truthfulness at issue - "opens door"

Front 12

Methods to prove character:

Back 12

1) specific acts of conduct
2) opinion
3) reputation

Front 13

Methods to prove character - "door open" - on direct:

Back 13

1) opinion
2) reputation

BUT NO specific instances of conduct

Front 14

Methods to prove character - "door open" - on cross:

Back 14

ALL:
1) specific acts of conduct
2) opinion
3) reputation

NOTE: BUT, NOT extrinsic evidence

Front 15

Evidence of victim's character:

Back 15

1) D offers evidence of victim's character - prosecution can offer evidence of D's same character trait
2) FRE ONLY: in homicide case, if D claims self-defense, prosecution may offer evidence of V's character for peacefulness

Front 16

Rape Shield statute:

Back 16

evidence of victim's character inadmissible

Exceptions:
1) to prove consent
2) specific instances allowed to prove:
a. 3rd party is source of semen
b. prior consentual sexual acts b/w D and victim

Front 17

Rape Shield statute:

Back 17

evidence of victim's character inadmissible

Exceptions:
1) to prove consent
2) 3rd party is source of semen
3) prior consensual sexual acts b/w D and victim

Front 18

Evidence of prior acts (specific instances of conduct) is admissible to prove:

Back 18

MIMIC:
1) motive
2) intent
3) mistake (absense of)
4) identity
5) common plan or scheme

Front 19

Witnesses - competency:

Back 19

1) personal knowledge - perception may be limited
2) present recollection
3) communication
4) sincerity

Front 20

Witness - hypnotized:

Back 20

Both FRE and NV

NV ONLY requirements:
1) hypnotist qualified
2) police recorded pre-hypnosis recollection
3) hypnotic session recorded
4) procedures were not suggestive

Front 21

Refreshing recollection:

Back 21

1) anything can be used
2) opponent may inspect and offer into evidence material used to refresh

Front 22

Recorded recollection - exception to hearsay rule:

Back 22

1) witness once had personal knowledge
2) document was made by witness or someone under witness' direction and was adopted by witness
3) document made when events were fresh in W's memory
4) document was accurate when made
5) witness has now insufficient recollection

Front 23

Opinion testimony:

Back 23

generally inadmissible

Front 24

Opinion testimony - exceptions - Lay opinion:

Back 24

admissible if rationally related to W's perception AND helpful to trier of fact

Allowed - speed of car, sanity, intoxication, emotions, smell

NOT allowed - legal conclusions

Front 25

Expert opinion - 5 requirements:

Back 25

1) helpful to jury
2) witness must be qualified
3) W must believe in opinion to reasonable degree of certainty
4) opinion must be supported by proper factual basis
5) opinion must be based on reliable principles that were reliably applied

Front 26

Expert opinion - basis:

Back 26

1) admitted evidence
2) personal knowledge
3) inadmissible evidence reasonably relied upon

NOTE: hypotheticals allowed

Front 27

Evidence of witness' credibility:

Back 27

1) inadmissible unless credibility is attacked first
2) prior consistent statatement - admissible for all purposes if made before alleged motive arose

Front 28

Extrinsic evidence:

Back 28

any evidence other than testimony given at this proceeding by the witness impeached (cannot be obtained in cross)

Front 29

Impeachment by contradiction:

Back 29

extrinsic evidence inadmissible to impeach on collateral matter

Front 30

Collateral matter:

Back 30

fact not material to the issues in the case that say nothing about W's credibility other than to contradict the W

Front 31

Impeachment - prior inconsistent statement:

Back 31

not hearsay if given under oath at trial or deposition

NV ONLY - not hearsay regardless whether given under oath

Front 32

Extrinsic evidence - foundation requirement:

Back 32

admissible only if W given opportunity to explain or deny

Front 33

Impeachment:

Back 33

allowed by evidence of:
1) bias
2) interest
3) motive

Front 34

Impeachment - prior convictions - crime involving false statement:

Back 34

admissible - NO balancing of unfair prejudice

BUT, convictions older than 10 years are inadmissible even if involving act of dishonesty or false statement

Front 35

Impeachment - prior convictions - crime NOT involving false statement:

Back 35

1) felonies may be admissible - court has discretion to exclude if "unfair prejudice"
2) misdemeanors - not admissible

Front 36

Impeachment - prior convictions:

Back 36

may be proven by extrinsic evidence:
1) copy of judgment
2) certified copy of conviction

Front 37

Impeachment - non conviction misconduct bearing on truthfulness:

Back 37

admissible in both civil and criminal cases if acts involved lying

Front 38

Judicial notice operates as a substitute for proof as to facts that are

Back 38

1. Matters of common knowledge
OR
2. Capable of certain verification through easily accessible, well-established sources

Front 39

Impeachment - reputation and opinion regarding truthfulness:

Back 39

admissible + extrinsic evidence admissible

NV - reputation NOT admissible

Front 40

Effect of judicial notice in a criminal case

Back 40

Relieves the prosecutor from his burden of producing evidence on that fact

Front 41

Hearsay - statement:

Back 41

1) by person
2) not animal
3) not machine - BUT computer printout is statement (data inserted by person)

Front 42

Effect of judicial notice in a civil case

Back 42

The fact judicially noticed is conclusivley proven

Front 43

Hearsay - "offered to prove the truth of the matter asserted" - 3-step approach:

Back 43

1) find the statement
2) what is it offered to prove? - consider who offered the statement
3) given what is offered to prove, will jury be misled if out of court speaker was lying or mistaken? - If YES - hearsay

Front 44

Where similar accident/injuries were caused by the same event/condition, evidence of those prior events is admissible to prove

Back 44

1. That a defect/dangerous condition existed
2. Defendant had knowledge of the condition
AND
3. The defect/condition was the cause of the present injury

Front 45

NOT hearsay:

Back 45

1) words of independent legal significance
2) offered to show effect on listener
3) offered to show speaker's knowledge of fact
4) circumstancial evidence of state of mind

Front 46

The requirement that prior occurrences be similar to the litigated act may be relaxed to

Back 46

A claim of defense of impossibility

Front 47

Character in Civil cases

Back 47

Not admissibile (by anyone!)as circumstantial evidence to infer conduct

Front 48

Hearsay - out of court speaker testifies:

Back 48

HEARSAY - could not be cross-examined at the time she uttered statement

Front 49

Character is admissible in a civil case only when

Back 49

The character os a person is itself a material issue (this is rare) - example: defamation case

Front 50

Exemptions to the hearsay rule:

Back 50

NOT hearsay:
1) admission of party opponent
2) prior inconsistent statements
3) prior consistent statements
4) statements of identification

Front 51

Character in Criminal cases

Back 51

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

Front 52

How does the prosecution rebut D's character evidence

Back 52

- Cross the witness and ask, "have you heard/do you know?"
- Call a qualified witness to testify to Reputation or Opinion

Front 53

Exemptions - statements of identification:

Back 53

1) must be made while perceiving the person
2) witness must testify at trial

Front 54

Victim's character in a self-defense case (homicide/assault)

Back 54

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

Front 55

Exemptions - witness must testify:

Back 55

1) prior inconsistent statements
2) prior consistent statements
3) statements of identification

Front 56

Specific acts of prior misconduct by the accused

Back 56

Not admissible for propensity BUT may be admitted when relevant to prove a material fact other than character (MIMIC)

Front 57

If using a specific act to show MIMIC always consider this rule

Back 57

Balancing test: probative value is substantially outweighed by unfair prejudice

Front 58

Declarant unavailable:

Back 58

1) dead or ill
2) exempt due to privilege
3) refuses to testify
4) cannot remember
5) cannot be procured by process or other reasonable means

Front 59

Prior similar acts allowed to show propensity: special rule for cases involving

Back 59

- Sexual Assault
- Children

Front 60

Writings: rule of authentication

Back 60

A writing is not admissible until it has been authenticated - requires foundation that the item is genuine

Front 61

Sources allowable for authenticating a handwriting proof (3)

Back 61

- Lay witness- prior knowledge
- Expert witness
- Jury comparison

Front 62

Self-authenticating documents (6)

Back 62

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

Front 63

Authenticating a photograph

Back 63

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

Front 64

Best Evidence Rule: in seeking to prove the content of a writing (broad) must either (2)

Back 64

1. Produce the original
OR
2. Account for the absence of the original - if reasonable okay to proceeded with secondary evidence

Front 65

Modifications to the best evidence rule: public records; voluminous documents; duplicates

Back 65

- Public records: certified copies
- Voluminous docs: summaries (if originals would be admissible and made available to opposing party)
- Duplicates: an electrnoic copy

Front 66

Proper use of a writing by a witness testifying (2)

Back 66

1. Recollection refreshed
2. Past recollection recorded

Front 67

Refreshing recollection

Back 67

Can use ANYTHING to job the memory of the witness

Front 68

Recorded recollection

Back 68

Witnesses own writing may be admitted into evidence in place of his testimony

Front 69

Foundation for recorded recollection requires a showing of (5)

Back 69

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

Front 70

Two forms of Opinion testimony

Back 70

- Lay opinion
- Expert opinion

Front 71

Lay opinion is admissible if (2)

Back 71

1. Rationally based on the perception of the witness
AND
2. Helpful to the trier of fact

Front 72

Four basic requirements for expert testimony

Back 72

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

Front 73

What qualifications does an "expert" witness need

Back 73

Simply enough experience will suffice; need not be formal/academic

Front 74

Facts supporting an expert's opinion must be either (3)

Back 74

- 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

Front 75

Learned treatise limitations

Back 75

- Hearsay (w/ an exception)
- For impeachment to show not all experts agree
- Text itself is not received as evidence

Front 76

To fit within the hearsay exception for learned treatise must establish it as authoritative and reliable (4 ways)

Back 76

1. Reliance by your expert on direct
2. Admission on cross of your opposing expert
3. Testimony of any expert
4. Judicial notice

Front 77

Under federal rules, a treastise may used to support

Back 77

Your own expert's opinion

Front 78

Credibility and impeachment attacked two ways

Back 78

- On cross-examination
OR
- Through extrinsic evidence

Front 79

Collateral Matters Doctrine

Back 79

No extrinsic evidence is allowed to contradict a witness as to a collateral matter (i.e. relevant only to show a contradiction)

Front 80

Limited to bolstering your own witness only when

Back 80

There has first been an appropriate impeachment

Front 81

A prior out-of-court statement of identification made by a witness testifing at trial is

Back 81

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

Front 82

Basic five impeachment techniques

Back 82

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

Front 83

Generally prior inconsistent statements are admissibile for

Back 83

Only for impeachment; NOT for its truth

Front 84

Exception to general rule of admissibility for prior inconsistent statments

Back 84

If (1) given under oath and (2) at a trial, hearing or other proceeding --> its admissible for its truth

Front 85

Two means of proving a prior inconsistent statement

Back 85

1. On cross-examination
OR
2. Through extrinsic evidence

Front 86

Prerequisite to using extrinsic evidence to impeach on prior inconsistent statement

Back 86

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)

Front 87

Prior inconsistent statement of a party as an admission

Back 87

Yes

Front 88

Bias, Interest, Motive may be shown by extrinsic evidence after

Back 88

A foundation is laid by inquiry on cross of the target witness

Front 89

Prio Convictions are usable to impeach if

Back 89

The conviction is for the proper kind of crime

Front 90

Convictions usable to impeach (2)

Back 90

1. Any crime involving dishonesty or false statement
OR
2. A felony (at the discretion of the court - consider remoteness past 10 years)

Front 91

Extrinsic evidence of conviction is

Back 91

Admissible and no foundation necessary

Front 92

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)

Back 92

- Good faith required
- Act inquired about must involved deceit or lying
- No extrinsic evidence permitted (only on cross)

Front 93

Rehabilitation after Impeachment - two options

Back 93

- 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

Front 94

Four exceptions to the standard Attorney-Client privilege

Back 94

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

Front 95

Physician/Psychiatrist - Patient Privilege

Back 95

Confidential information acquired in a professional relationship by the treating doctor for the purpose of obtaining treatment

Front 96

Judicial notice - timing:

Back 96

may occur at ANY time, even on appeal

Front 97

Husband-Wife spousal privileges (2)

Back 97

1. Spousal Immunity privilege
2. Confidential marital communications privilege

Front 98

Character evidence of defendant - criminal case:

Back 98

may be offered by defendant in the form of witness' opinion or reputation about D's pertinent trait

Front 99

Define: Spousal Immunity privilege

Back 99

One spouse cannot be forced to give adverse testimony against the other in a criminal case

Front 100

Preliminary matters to be determined by the COURT:

Back 100

Questions of law:
1) hearsay exceptions
2) privileges
3) expert testimony
4) mental competence
5) question of existence or nonexistence of preliminary facts

NOTE: It is within the judge’s discretion whether the jury should be excused during the preliminary fact determination.

BUT, if it is a major issue of trial, judge may exclude jury.

Front 101

Elements necessary to establish spousal immunity privilege (4)

Back 101

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

Front 102

Preliminary matters to be decided by the JURY:

Back 102

1) agency
2) authenticity of document
3) credibility of witness
4) personal knowledge
5) question of conditional relevance

Front 103

Define: Confidential Marial Communications privilege

Back 103

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

Front 104

How to decide whether character evidence or impeachment?

Back 104

Character - attacking the D's character

Impeachment - impeaching witness

Front 105

Elements necessary to establish confidential marital communications privilege (4)

Back 105

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

Front 106

Writings - ways to authenticate handwriting:

Back 106

1) eyewitness - saw D sign
2) expert compares writings
3) lay witness who has seen D handwrite or sign
4) circumstantial evidence - writing made reference to an earlier writing

Front 107

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)

Back 107

1. Presumptions and burdens of proof
2. Competency of witness
3. Privileges

Front 108

Admission of party opponent - definition:

Back 108

a statement made or an act done that amounts to a prior acknowledgment by one of the parties to an action of one of the relevant facts

Front 109

Specific non-hearsay situations (3)

Back 109

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

Front 110

Dead Man Act:

Back 110

Applies ONLY in civil cases

bars testimony with a deceased when such testimno is offered against a representative or successor in interest of the deceased

Front 111

Verbal acts/legally operative facts means

Back 111

The words constitute the act
- "I accept" for a (K)
- Cancellation
- Conspiracy
- Waiver

Front 112

Privilege against self-incrimination:

Back 112

appies to BOTH civil & criminal cases

Front 113

Statements offered to show effect on listener important in showing

Back 113

- Notice
- Knowledge
- Motive

Front 114

A witnesses' own prior statements can be hearsay, but the rules exclude certain statements (3)

Back 114

- Prior Inconsistent Statemnet (under oath, prior proceeding)
- Prior Consistent Statement (to rebut impeachment)
- Prior statement of identification made by a witness

Front 115

Judgment of felony conviction - admissibility:

Back 115

admissible in BOTH civil & criminal cases to prove fact essential to the judgment, regardless whether the judgment was a result of trial or plea

Front 116

Major hearsay exceptions (6)

Back 116

1. Party admission
2. Former testimnoy
3. Statement against interest
4. Dying declaration
5. Business records
6. Spontaneous statements

Front 117

Circumstantial evidence:

Back 117

facts about an object are proved as basis for inference that other facts are true

Front 118

Common spontaneous statements that will be excepted from hearsay

Back 118

- 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

Front 119

Party admission - admissibility:

Back 119

a statement that amounts to prior acknowledgment by one of the parties is not hearsay

Front 120

Part Admission exception

Back 120

- 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

Front 121

Legal relevance:

Back 121

1) exclusion for policy reasons, OR
2) risk for unfair prejudice (evidence admitted for one reason, for jury may consider it for another)

Front 122

Vicarious party admission admissible when

Back 122

A statement is made by the party's agent, within the scope of agency and during existence of the relationship

Front 123

Exceptions to hearsay rule - learned treatises:

Back 123

can be read into evidence if:
1) relied upon by expert or called to his attention at cross, AND
2) established as reliable by witness, another expert, or judicial notice

Front 124

Defined: Statement against interest exception

Back 124

Declaration of a person, now unavailable as a witness, against that persons' interests at the time the statement was made

Front 125

Limitation to exception for statements against interest

Back 125

Statements against penal interest (i.e. criminal liability) - must be corroborated

Front 126

Distinguish statements against interest from admission of party

Back 126

Statements Against Interest
- Must be against interest at the time statement was made
- May be made by any person
- Require personal knowledge
- Requires unavailibility

Front 127

Dying declaration key points

Back 127

- 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

Front 128

Preliminary questions of fact concerning qualification of witness, existence of privilege, admissibility of evidence shall be determined by

Back 128

The court

Front 129

Business records exception - 2 requirements

Back 129

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

Front 130

Crawford held that out-of-court statements that fit the hearsay exception may still not be admitted where (5)

Back 130

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

Front 131

Exceptions to the standard Attorney-Client privilege

Back 131

1. Legal advice to aid in future crime/fraud
2. Disputes between the attorney and client
3. Joint client exception