Evidence

Front 1

Judge decides questions of

Back 1

law and preliminary questions of fact.

Front 2

Preliminary hearings about the admiss of evi must be held outside of the hearing of jury when

Back 2

there is a risk of prejudice to the party (admiss or confession) or when the accused is a W and so requests.

Front 3

The Jury determines

Back 3

the weight and credibility of evidence

Front 4

If mistake in admiss of evi, error can form basis for reversing outcome IF:

Back 4

(1) some substantial right of the party has been effected (not harmless error) and
(2) if the court was notified of the error at trial

Front 5

Objection

Back 5

If ruling ADMITS evi, attn should object or motion to strike stating specific grounds for obj.

Front 6

Offer of proof

Back 6

---an explanation of the relevance and admissibility of evidence made on the record (usually outside presence of jury)

Front 7

if the ruling EXCLUDES evi

Back 7

an offer of proof must be made on the record.

Front 8

Once the court makes a definitive ruling on the admiss of evi before trial, the party who objc.

Back 8

does not need to renew the objection when the issue arises at trial.

Front 9

Limited admissibility

Back 9

evidence may be admissible for one purpose, but not for another. Upon request, the court must restrict the evidence to its proper scope and instruct the jury accordingly.

Front 10

Rule of Completeness

Back 10

If one party introduces part of a writing or recorded statement, the other party may introduce relevant portions of the writing or recording.
-at that time - don't have to wait to present case
-other portions may be intro even if otherwise inadmiss. "open-door doctrine"

Front 11

What are the two ways to notify the trial court of an appeal and thus preserve the issue for appeal?

Back 11

Objection and offer of proof

Front 12

Under what circumstances must the grounds for an objection be stated to preserve the issue

Back 12

if the grounds are not apparent from context.

Front 13

what sorts of evidentiary errors might be the grounds for appeal even absent an obj or offer of proof?

Back 13

Plain errors - those that affect substantial rights

Front 14

What does the "Rule of Completeness" allow parties to do?

Back 14

enter an omitted or otherwise inadmissible portion of a statement to be entered into evi if relevant in explaining or clarifying an admitted portion of that statement.

Front 15

JUDICIAL NOTICE

Back 15

court's acceptance of a fact as true w/o requiring formal proof

Front 16

When MUST a court take judicial notice?

Back 16

If a party so requests and provides the court w/ the necessary info.

Front 17

The court MAY take judicial notice

Back 17

at it's own discretion at any state of the proceeding, whether requested or not.

Front 18

The judicial notice rule ONLY applies to

Back 18

Adjudicative facts

Front 19

ADJUDICATIVE FACTS

Back 19

generally known w/in the jurisdic of court
the kind of fact that can be accurately and readily determined by sources whose accuracy cannot reasonably be questioned

Front 20

Judicial notice

Back 20

doctrine that allows the court to relieve parties of proving facts to which are not subject to reasonable dispute

Front 21

LEGISLATIVE FACTS

Back 21

relates to legal reasoning and the lawmaking process.

Front 22

Traditional order of presentation of evidence.

Back 22

P case-in-chief, D case, Rebuttal

Front 23

The order of W and presentation of case are

Back 23

w/in the discretion of the court to effectively ascertain the truth, prevent waste of time, or protect W from harassment.

Front 24

Scope of cross-examination

Back 24

generally limited to the subject matter of the direct exam and credibility of the W

Front 25

Re-direct/re-cross

Back 25

reply to new matter raised
court has discretion to permit inquirty into other matters

Front 26

a LEADING ?

Back 26

suggests the answer w/in the ?

Front 27

leading ? are generally permissible

Back 27

when a party calls a hostile W, an adverse party or W associated w/an adverse party.

Front 28

leading ? permitted on direct

Back 28

used to elicit prelim background info that is not in dispute; W, such as child who has diff communicating due to age or phys/mental prob

Front 29

Presumption

Back 29

conclusion of fact the trier of fact is required to draw.

Front 30

Other than leading ? - what ?'s are improper

Back 30

compound ?; assume fact not in evi; argumentative, calls for conclusion, repetitive

Front 31

When must a ct. exclude W from courtroom?

Back 31

upon request of either party - so W doesn't hear testimony of others.

Front 32

Burden of production

Back 32

Must produce legally sufficient evi as to each element of a claim or def. IF met, prima facie case.

Front 33

Burden of persuasion

Back 33

legally sufficient evi must be presented to trier of fact.

Front 34

standard of proof in civil case

Back 34

preponderance of evi

Front 35

Rebuttable presumption

Back 35

not evi but a preliminary assumption of fact that disappears after intro of sufficient evi to sustain contrary finding. shifts the burden of production to the opposing party.

Front 36

conclusive presumption

Back 36

treated as a rule of substantive law - may not be challenged w. contrary evidence no matter how strong

Front 37

what law governs presumptions in federal diversity cases?

Back 37

state law who's substantive law applies under Erie.

Front 38

RELEVANT EVIDENCE

Back 38

has any tendency to make any fact of consequence more or less probable
MATERIAL & PROBATIVE

Front 39

Direct evi

Back 39

Identitical to the factual proposition it is offered to prove (eye W)

Front 40

Circumstantial evi

Back 40

tends to indirectly prove factual proposition through inference from collateral facts

Front 41

Relevance conditioned on fact

Back 41

court must admit it upon or subjc to intro of evi sufficient to support a finding by jury of fulfillment of condition

Front 42

Court can exclude RELEVANT evi (under R. 403)

Back 42

if it's probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading jury, or by considerations of undue delay, waste of time, or needles pres of cumulative evidence.

Front 43

CHARACTER EVI

Back 43

any document or testimony offered to prove that a person acted in a particular way on a particular occasion, based on that person's disposition or character

Front 44

For what purpose is char evi not admissible in civil case?

Back 44

conduct in conformity w/ char trait.

Front 45

IF CHARACTER evi admissible as an essential element in civil case - what forms can it take

Back 45

(1) Testimony regarding prior bad acts
(2) W own opinion of person
(3) Testimony as to reputation

Front 46

D bad character (crim case)

Back 46

inadmissible to prove that the D had a propensity to commit crimes and therefore is likely to have committed the crime in ?.

Front 47

D good char (crim case

Back 47

always permitted to intro evi of good char as being inconsistent w/ type of crime charged.
Can offer reputation or opinion evi - specific acts only if essential element of crime/def

Front 48

D opens the door

Back 48

D makes char and issue int he case if offers evi of good char. Pros is free to rebut D claim by attacking char.

Front 49

If D opens door, Prosecution limited to

Back 49

same type of evi D offered (reputation or opinion) but on cross ex may ? character W about specific instances of D conduct.

Front 50

When is evidence of a crime Victims character admissible to prove propensity>

Back 50

when relevant to defense asserted. (rep or opinion evi)

Front 51

IF D introduces evi of Victim character Prosecution May:

Back 51

offer rebuttal evi of V good char or D bad char for the same trait used against V.

Front 52

Prior bad acts.

Back 52

not admiss to show crim propensity. But are admissible as circumstanatial evi of MIMIC

only specific acts (not rep or opinon) offered as MIIMIC ev

Front 53

MIMIC

Back 53

(prior bad acts admiss as circ evi of)
Motive
Intent
absence of Mistake
Identity, or
Common plan or scheme

Front 54

HABIT

Back 54

A person's particular routine reaction (org reg response) to a specific set of circumstances.
Admissible to prove conduct in conformity w/ habit on partic occasion.

Front 55

W - competency

Back 55

Every person presumed competent.
W has personal knowledge and declares by oath or affirmation will testify truthfully and understands obligation

Front 56

limits on juror as W

Back 56

not in front of jury sits. After trial - upon an inquirey into validity of verdict or indictment, can;t testify to any matter/statement occuring during deliberations or of anything juror mind or emotions that influenced vote (said or thought)

Front 57

Juror's can testify after trial about

Back 57

extraneous info brought to attention (newspapers); outside influence (threat/bribe); clerical error in entering verdict.

Front 58

Dead Man Statute

Back 58

limit testimony about transactions w deceased person by party w financial interest in outcome

Front 59

IMPEACHMENT

Back 59

party may attack the credibility of any W.

Front 60

Impeach w. reputation or opinion evi

Back 60

only as to the W's character for truthfulness or untruthfulness.
Truthful only if character already attacked for untruthful.

Front 61

Impeach w. prior bad acts

Back 61

W may be asked on cross-ex - only if judge determines specific prior instances of misconduct are probative of untruthfulness and L had good faith basis for asking. (No extrinsic evi)

Front 62

Impeach with Conviction of crime

Back 62

(i) crimes of dishonesty/false statement <10 years old to cast doubt on W cred.
(ii) felony < 10 ct must weigh probative value of impeach against prejudicial - W - must substantially outweigh. crim D - prosecutor show probative value outweighs risk

Front 63

Can you impeach w/ crimes older than 10 years?

Back 63

not unless court determines in the interest of justice probative value substantially outweighs and adverse party sufficent advance written notice and fair opp to contest use

Front 64

What are crimes of dishonesty/false statement?

Back 64

only if est. the elements of the crime req either proof or admission of an act of dishonesty or false statement such as perjury, fraud, embezzlement, or false pretense.
not murder, assualt. rape

Front 65

(impeach) Prior Inconsistent Statement

Back 65

Show a W said something inconsistent in the past. Cross-ex or extrinsic.

Front 66

(impeach) Prior inconsistent statement - extrinsic evidence

Back 66

Only if the W is given the opp to explain/deny the evi and the opposing party is given the opp to examine the W about it.
Never to impeach W regarding collateral matters.

Front 67

Impeachment by Bias

Back 67

always material. can always impeach based on any interest by a W in the outcome of a case. (cross ex or extrinsic)

Front 68

Sensory competence (impeach)

Back 68

W may be impeached by showing a deficiency in his capacities to percieve, recall, or relate info. (cross ex or extrinisic)

Front 69

Impeach of hearsay declarant

Back 69

any evi that would be admiss if the D had testified as a W

Front 70

Rehabilitation of W

Back 70

(1) give W change to explain/clarify on redirect
(2) if char for truthfuless attacked - evi that W is truthful (opinion or rep)
(3) Bias (recent fab/improper motive) then prior inconsit statement can be introduced

Front 71

Present Recollection Refreshed

Back 71

Helps refresh W memory. Adverse party may see or inspect the item used to refresh the W memory, but w may not use item to testify, may not read from doc. adverse party may introduce into evi.

Front 72

Past Recollection Recorded

Back 72

Hearsay exception. A memorandum or record about a matter that a W once had knowledge of but now has insufficeint recollection to testify may be admiss under a hearsay exception. Record may be read to jury, not received as exhibit until offerd by adverse party,

Front 73

Lay W (non-expert)

Back 73

not supposed to testify as to opinion. Certain instances allowed. Rationally based on perception of w and helpful to a clear understanding of W testimony.

Front 74

Lay W opinion testimony may not be based on

Back 74

scientific, technical, or specialized knowledge.

Front 75

Requirement for expert to testify

Back 75

Ct determines subj matter of W testimony is RELIABLE (scientiic, tehcnical, know) and RELEVANT. (help trier or fact)

Front 76

Requirements of an expert W:

Back 76

QUALIFIED - skill expertise, train, edul Base opinon on facts/data; use facts data and principles reas, relied on in field, apply principle/methods reliably to facts of case.

Front 77

Opinion on ultimate issue

Back 77

Experts may opine on ultimate issues except whether crim D had the requisite mental state of any element of crime or defense.

Front 78

Interpreters

Back 78

governed by same rules as experts

Front 79

TANGIBLE EVI

Back 79

not testimonial in nature. but in the form of something physical.
Includes documentary and real evi (docs, things, murder weapons)

Front 80

AUTHENTICATION REQUIREMENT

Back 80

all TANGIBLE evidence must be authenticated

Front 81

AUTHENTICATION

Back 81

must be sufficient evidence to support a finding that the thing is what it's proponent claims it to be -- before it can be admitted into evi

Front 82

Ways to authenticate REAL EVI

Back 82

(1) testimony by someone w/ personal knowledge showing familiarity w/ obj
(2) distinctive markings or char
(3) chain of custody tech. (account for things from time obtatined-trial)

Front 83

How do you authenticate Documentary evi?

Back 83

Some sort of proof - jury can find that the doc is what proponent claims it to be. Ex: direct or indirect stipulations, testmiony of eyeW, handwriting verification

Front 84

handwriting verification to authenticate a writing

Back 84

Comparison - by expert or trier of fact
Lay W - non-expert -- w/ personal knowledge of the claimed author's handwriting. (must have already been fam)

Front 85

ANCIENT DOC considered authentic if:

Back 85

(i) at least 20 years old
(ii) in a condition unlikely to create suspicion as to authentl and
(iii) was found in a place where it would likely be if it were authentic

Front 86

Self-authenticating documents - don't require proof of authenticity

Back 86

1. public docs - gov seal or sig of written auth
2. certified copy of public records
3. official publications (newspaper)
4. trade inscriptions (label affixed in course of bus)
5. notorized or otherwise acknowledged doc
6. commercial paper
7. declared authentic by Cong.
8. Records of reg conducted activity certif by custodian of records

Front 87

ORAL STATEMENTS - authentication

Back 87

where speaking id is importnat.
Voice ID - any person who has heard the voice at any time. any means.
Phone - caller recognized voice, speaker knew facts only partic person would, caller dialed # and speaker ansswered introduced; caller dialed bus and spoke to person who answered about reg conducted bus

Front 88

BEST EVID RULE

Back 88

The original document must be used to prove the contents of a document when the contents of the writing are in issue.

Front 89

When are the contents of a document, video, recording at issue

Back 89

doc is proof of an event happening
doc has legal effect - K or will
W is testifying based on facts learned from writing

Front 90

Exceptions to best evi rule

Back 90

Duplicates
Original doc unavail
contents of public records
voluminous writing
admission by a party

Front 91

Duplicates

Back 91

counterpart produced by any technique that accurately reproduces the original.

Front 92

When are duplicates inadmissible?

Back 92

if there is a genuine question as to the authenticity of the original or if it would be unfair to admit the duplicate in place of the original.

Front 93

When is the original doc considered unavail?

Back 93

Original has been lost or destroyed (unless in bad faith by proponent)
can't be obtained by judicial process;
party against whom doc is introduced already has a copy and knew it was going to be an issue
doc relates to collateral matter

Front 94

Parol evi rule

Back 94

Operates to exclude evidence that would change the terms of a K or written agreement, at least if it represents a so called complete integration.
-- no extrinsic evidence admitted

Front 95

Parol evi rule -- If a partial integration ..

Back 95

no extrinsic evi that would alter the terms may be admitted, but evi that adds to it and completes it might be admitted.

Front 96

Exceptions to parol evi:

Back 96

to clarify an ambiguity;
to prove some trade, custom, course of dealingl
to show fraud, duress, mistake or some illegal purpose,
to show that consideration has not been paid

Front 97

What type of negotiations does the parol evi rule apply to?

Back 97

only prior or contemporaneous.
Evi of negot after K can be offered to show there was a subsequent modification of K.

Front 98

Spousal Privileges

Back 98

Spousal Immunity and Confidential marital communications

Front 99

Spousal Immunity

Back 99

spouse of a crim def may refuse to testify against his or her spouse
Applies to testimony about events that took place at any time, including before marriage. expires at divorce.

Front 100

Confidential marital communications

Back 100

Protects communication made DURING a marriage
held by both spouses - civil or crim

Front 101

Neither spousal priv applies when:

Back 101

one spouse is suing the other, one spouse is charged w a crime against the other or the children of either of them.

Front 102

Attorney-Client Priv

Back 102

must be a confidential (3rd party can destroy) communication btwn attorney and a client for purposes of obtaining legal advice

Front 103

Exceptions to attorney client priv

Back 103

does not apply to a future crime or fraud
or disputes btwn attn and client

Front 104

Work Product Doc

Back 104

Docs prepared by attorney in anticipation of litigation
Cts will not req a party to turn these over absent a showing of substantial need and that info cannot be obtained by any other means w/o undue hardship
Mental impression/strategies (core) always protected

Front 105

Physician patient Priv

Back 105

Statements made by a patient to a doctor for the purpose of obtaining med treatment

Front 106

Phys - patient privilege does not exist if:

Back 106

info acquired reasons other than treatment,
patient phys cond. is at issue, communication was made as a part of a crime/tort, a dsipute exists btwn phys and patient, patient contractually agreed, fed ct

Front 107

5th amend protection against self-incrim

Back 107

allows a W in any proceeding to refuse to give testimony that may incrim the W
Applies to ppl but not phys char.
Gov can compel if grants immunity from pros

Front 108

Liability Insurance

Back 108

NOT admiss to prove Neg or wrongdoing.
MAY be used to show ownership or control over partic piece of land or bias/prej of a W.

Front 109

Subsequent Remedial Measures

Back 109

repairs or changes after injury
NOT to prove neg, culp conduct, defective product/design, or inadequate warn
May be used to prove ownership or control over prop or existence of a safety feature.

Front 110

Offers to pay Med expesnes

Back 110

bars only actual payment of or offers to pay. Statements made accompanying pay or offer are admiss.

Front 111

Settlement offers or negot

Back 111

Not admiss to prove liab for, invalidity of, or the amount of a disputed claim.
not admiss as prior inconsistent statement.
admiss to show bias of W, to negate a claim of undue delay, or prove obstruction of a crim invest or prosecution.

Front 112

Plea Negotiations

Back 112

not admiss in any proceeding.
Withdrawn guilty pleas, nolo pleas, offers to plead guilty, statements made while negotiation
Parties may waive, D may open door for other statments that need to be considered in fairness along w

Front 113

Past Sexual Conduct of Victims
Crim Case

Back 113

Generally not admiss
Exceptions: to explain source of semen/injury; to show the V's past sexual conduct w D, to prove consent, or when Const rights require.

Front 114

Past Sexual Conduct of V
Civil Case

Back 114

Generally not admiss.
Except - V's past reputation not admiss unless opens door and puts it at issue.
Past sex conduct is admiss if its probative value subst. outwights the danger of harm to any victim or prejudice to any party.

Front 115

D's past sexual conduct

Back 115

admiss in crim or civil case in which the D is accused of committing an act of sexual assault or child molestation and evi is admiss to prove any matter to which it is relevant

Front 116

HEARSAY

Back 116

an out-of-court statement, intended as an assertion, offered to prove the truth of the matter asserted.
Hearsay is not admissible unless it falls under an exception to the hearsay rule.

Front 117

Non-hearsay (not being used to prove matter asserted)

Back 117

Verbal act or legally operative fact;
Effect on the listener;
State of mind

Front 118

Prior statements of testifying W
(3 types)

Back 118

treated as non-hearsay - all req. declarant testify subject to cross-ex
Prior inconsistent statements
Prior consistent statements
Prior statement of ID

Front 119

Prior inconsistent statements

Back 119

Must have been made under oath, at a trial hearing, or deposition.
1) To impeach (ok if not under oath etc)
2) proof of what is asserted - actual evi

Front 120

Prior consistent statements

Back 120

Offered to rebut an express or implied charge of recent fabrication or improper motive.
Use to rehabilitate W as actual proof.
Doesn't need to be under oath.

Front 121

Prior statement of ID

Back 121

previous out of court ID of a person (after perceiving them) is admissible as substantive evi if declarant is now present at trial.

Front 122

Prior admissions doctrine
Admission by party-opponent

Back 122

may be introduced against that party. (you said it, you explain it)
no against interest rule
vicarious, adoptive, co-conspir

Front 123

Silence in response to a statement is an adoptive admission if:

Back 123

party was present, heard, and understood the statement
party had the ability to deny it; and
a reasonable person similarly situation would have denied the statement if it were false

Front 124

when is a DECLARANT UNAVAILABLE?

Back 124

exempt on privilege
refuses to testify
lacks memory on subj. matter
dead/too ill
absent - can't be supoenaed
NOT if party wrongfuly renders unavail for purp of preventing testimony

Front 125

What exceptions require declarant be unavail to testify?

Back 125

1) former testimony
2) dying declaration
3) statement against interest
4) statement of personal/fam history
5) forfeiture by wrongdoing

Front 126

FORMER TESTIMONY

Back 126

given under oath at a prior hearing or depo is admiss in SUBSEQUENT trial if party against whom it is being offered had an opp and similiar motive to develop testimony

Front 127

DYING DECLARATION

Back 127

ADMISS IF:
individ believes dying
believes death is imminent and
statement pertains to the cause or circumstances of death,
admissible only in homicide prosecution and all civil cases.

Front 128

STATEMENTS AGAINST INTEREST

Back 128

at time made was against declarant's pecuniary, proprietary, civil, or penal interest, such that a reas person would not have made it unless it were true

Front 129

diff btwn statement against interest and party admission:

Back 129

statement against intrest don't apply only to parties, declarant must be unavail and party admiss have no "against interest" req.

Front 130

STATEMENTS OF PERSONAL OR FAM HISTORY

Back 130

statements concerning the unavail of declarant's own birth, adoption, marriage, familiar relationship, admiss under exception

Front 131

FORFEITURE BY WRONDOING

Back 131

if a party wrongfully renders a declarant unavail, door opens to anything declarant ever said against the party

Front 132

Present sense impression

Back 132

statement describing an event made while declarant is percieveing the event or immediately thereafter.
contemporaneous = not time to lie

Front 133

Excited Utterance

Back 133

Statements about startling event or condition while the declarant is under the stress of excitement cause by the event
must shock or excite the declarant, must relate to event, declarant need not be participant.

Front 134

Statements of Mind (mental emotional or phys condition)

Back 134

statement of declarant's then-existing state of mind, emotion, or physical condition may be used to prove the existence of the condition.
Can prove intent.

Front 135

Statements made for the purposes of med diagnosis or treatment

Back 135

describe declarant's medical history or past/present symptoms or pain is admiss if it is made to the physician or other med personal for the purpose of med diagnosis or treatment
cause or source admiss if reas pertinent to diag. or trea

Front 136

Past Recollection recorded

Back 136

if W has inadequate memory to testify about a matter for which a record exists, may be read to the jury if:
concerns a matter W once had knowledge about
prepared by W when matter was fresh in her mind
accurately reflects the W knowledge and
W states insuffiient recollection to testify fully even after consulting writing
can't be entered as exhibit - only read by W - unless oppsing party offers

Front 137

Business record

Back 137

any record or writing of any act or event made during the course of reg conducted bus is admiss
can b med record if relate to diag. or treat, not ok i lack of trustworthiness, can use to show absence of entry etc

Front 138

Authentication of bus record

Back 138

custodian (or qualified W) must est. that the record was made
1) at or near the time of the event it records
2) by a person w. know of the event and under a duty to report it; and
3) as part of reg practice of making that kind of record

Front 139

Public records

Back 139

certain statements contained in the records and reports of public officials or agencies.
activities of agency
observations of those w/ duty to report
factual findings of legal ivest
against Crim D - only activities - no obs or conc
inadmiss if circs indicate untrust

Front 140

Learned Treatise

Back 140

scientif historical or medical - if:
treatist is est. as a RELIABLE authority by either testimony of a W, by other expert testmiony, or y judicial notice, and
expert W relied on doc during direct or brought to attn on cross

Front 141

Judgement of previous conviction

Back 141

admissible to prove any fact essential to sustaining that judgement.

Front 142

other exceptions to hearsay

Back 142

records of vital stats
religious orgs record
marriage and baptism certif - fam records
reocreds/statement affecting interest in property
ancient doc statements
market reports, commercial pub
reputation evi
judgements as proof of matters

Front 143

Residual exception to hearsay

Back 143

catch all - not covered if:
1) it carries guarantee of trustworthiness
2) offered as evi of a material fact and is more probative than any other evi on point
3) opposing side has been put on notice before trial

Front 144

Confrontation Clause

Back 144

6th amend - provides accused shall have the right to be faced w/ the W against him. Out of court statements violate the right if Testimonial

Front 145

what is testimonial?

Back 145

statements made w. primary purpose of ascertaining past crim conduct

Front 146

Due process

Back 146

if evi rules unduly prevent a crim D ability to mount defense, DPC restricts.