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131 Cards in this Set

  • Front
  • Back
Unfair prejudice:
1) emotionally distrubing
2) item is logically relevant to prove 2 different things, but is admissible for one purpose only
Exclusion for policy reasons:
1) liability insurance
2) subsequent remedial measures
3) settlements, offers to settle, and pleas
4) payment or offer to pay medical expenses
Liability insurance:
inadmissible to prove culpable conduct OR D's ability to pay

BUT, admissible to prove bias or scope of employment
Subsequent remedial measures:
inadmissible to prove culpable conduct OR, in product liability actions, defective product design

BUT, admissible to prove ownership, control, defense of no feasable precautions
Settlements, offers to settle, and pleas:
Civil case: inadmissible to prove liability or fault

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Criminal case: pleas later withdrawn inadmissible to prove guilt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
Similar occurrences:
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
Habit - definition:
person's regular response to a frequently repeated specific situation
Routine practice evidence:
relevant to show that a business acted in accordance with the practice on particular occasion.
Habit - definition:
person's regular response to a specific situation
Character evidence - civil cases:
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
Character evidence - criminal cases - rules:
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"
Methods to prove character:
1) specific acts of conduct
2) opinion
3) reputation
Methods to prove character - "door open" - on direct:
1) opinion
2) reputation

BUT NO specific instances of conduct
Methods to prove character - "door open" - on cross:
1) specific acts of conduct
2) opinion
3) reputation

NOTE: BUT, NOT extrinsic evidence
Evidence of victim's character:
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
Rape Shield statute:
evidence of victim's character inadmissible

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
Rape Shield statute:
evidence of victim's character inadmissible

1) to prove consent
2) 3rd party is source of semen
3) prior consensual sexual acts b/w D and victim
Evidence of prior acts (specific instances of conduct) is admissible to prove:
1) motive
2) intent
3) mistake (absense of)
4) identity
5) common plan or scheme
Witnesses - competency:
1) personal knowledge - perception may be limited
2) present recollection
3) communication
4) sincerity
Witness - hypnotized:
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
Refreshing recollection:
1) anything can be used
2) opponent may inspect and offer into evidence material used to refresh
Recorded recollection - exception to hearsay rule:
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
Opinion testimony:
generally inadmissible
Opinion testimony - exceptions - Lay opinion:
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
Expert opinion - 5 requirements:
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
Expert opinion - basis:
1) admitted evidence
2) personal knowledge
3) inadmissible evidence reasonably relied upon

NOTE: hypotheticals allowed
Evidence of witness' credibility:
1) inadmissible unless credibility is attacked first
2) prior consistent statatement - admissible for all purposes if made before alleged motive arose
Extrinsic evidence:
any evidence other than testimony given at this proceeding by the witness impeached (cannot be obtained in cross)
Impeachment by contradiction:
extrinsic evidence inadmissible to impeach on collateral matter
Collateral matter:
fact not material to the issues in the case that say nothing about W's credibility other than to contradict the W
Impeachment - prior inconsistent statement:
not hearsay if given under oath at trial or deposition

NV ONLY - not hearsay regardless whether given under oath
Extrinsic evidence - foundation requirement:
admissible only if W given opportunity to explain or deny
allowed by evidence of:
1) bias
2) interest
3) motive
Impeachment - prior convictions - crime involving false statement:
admissible - NO balancing of unfair prejudice

BUT, convictions older than 10 years are inadmissible even if involving act of dishonesty or false statement
Impeachment - prior convictions - crime NOT involving false statement:
1) felonies may be admissible - court has discretion to exclude if "unfair prejudice"
2) misdemeanors - not admissible
Impeachment - prior convictions:
may be proven by extrinsic evidence:
1) copy of judgment
2) certified copy of conviction
Impeachment - non conviction misconduct bearing on truthfulness:
admissible in both civil and criminal cases if acts involved lying
Judicial notice operates as a substitute for proof as to facts that are
1. Matters of common knowledge
2. Capable of certain verification through easily accessible, well-established sources
Impeachment - reputation and opinion regarding truthfulness:
admissible + extrinsic evidence admissible

NV - reputation NOT admissible
Effect of judicial notice in a criminal case
Relieves the prosecutor from his burden of producing evidence on that fact
Hearsay - statement:
1) by person
2) not animal
3) not machine - BUT computer printout is statement (data inserted by person)
Effect of judicial notice in a civil case
The fact judicially noticed is conclusivley proven
Hearsay - "offered to prove the truth of the matter asserted" - 3-step approach:
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
Where similar accident/injuries were caused by the same event/condition, evidence of those prior events is admissible to prove
1. That a defect/dangerous condition existed
2. Defendant had knowledge of the condition
3. The defect/condition was the cause of the present injury
NOT hearsay:
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
The requirement that prior occurrences be similar to the litigated act may be relaxed to
A claim of defense of impossibility
Character in Civil cases
Not admissibile (by anyone!)as circumstantial evidence to infer conduct
Hearsay - out of court speaker testifies:
HEARSAY - could not be cross-examined at the time she uttered statement
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
Exemptions to the hearsay rule:
NOT hearsay:
1) admission of party opponent
2) prior inconsistent statements
3) prior consistent statements
4) statements of identification
Character in 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
Exemptions - statements of identification:
1) must be made while perceiving the person
2) witness must testify at trial
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
Exemptions - witness must testify:
1) prior inconsistent statements
2) prior consistent statements
3) statements of identification
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
Balancing test: probative value is substantially outweighed by unfair prejudice
Declarant unavailable:
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
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
Sources allowable for authenticating a handwriting proof (3)
- Lay witness- prior knowledge
- Expert witness
- Jury comparison
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
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
Proper use of a writing by a witness testifying (2)
1. Recollection refreshed
2. Past recollection recorded
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
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
- 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
- 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
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
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
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
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
- 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
Judicial notice - timing:
may occur at ANY time, even on appeal
Husband-Wife spousal privileges (2)
1. Spousal Immunity privilege
2. Confidential marital communications privilege
Character evidence of defendant - criminal case:
may be offered by defendant in the form of witness' opinion or reputation about D's pertinent trait
Define: Spousal Immunity privilege
One spouse cannot be forced to give adverse testimony against the other in a criminal case
Preliminary matters to be determined by the COURT:
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.
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
Preliminary matters to be decided by the JURY:
1) agency
2) authenticity of document
3) credibility of witness
4) personal knowledge
5) question of conditional relevance
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
How to decide whether character evidence or impeachment?
Character - attacking the D's character

Impeachment - impeaching witness
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
Writings - ways to authenticate handwriting:
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
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
Admission of party opponent - definition:
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
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
Dead Man Act:
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
Verbal acts/legally operative facts means
The words constitute the act
- "I accept" for a (K)
- Cancellation
- Conspiracy
- Waiver
Privilege against self-incrimination:
appies to BOTH civil & criminal cases
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
Judgment of felony conviction - admissibility:
admissible in BOTH civil & criminal cases to prove fact essential to the judgment, regardless whether the judgment was a result of trial or plea
Major hearsay exceptions (6)
1. Party admission
2. Former testimnoy
3. Statement against interest
4. Dying declaration
5. Business records
6. Spontaneous statements
Circumstantial evidence:
facts about an object are proved as basis for inference that other facts are true
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
Party admission - admissibility:
a statement that amounts to prior acknowledgment by one of the parties is not hearsay
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
Legal relevance:
1) exclusion for policy reasons, OR
2) risk for unfair prejudice (evidence admitted for one reason, for jury may consider it for another)
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
Exceptions to hearsay rule - learned treatises:
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
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
5. Prosecution demonstrates defendant forfeited his confrontation clause objection by wrongdoing that prevented him from testifying at trial
Exceptions to the standard Attorney-Client privilege
1. Legal advice to aid in future crime/fraud
2. Disputes between the attorney and client
3. Joint client exception