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43 Cards in this Set

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What are the keys to habit evidence?
1. Specificity
2. Automatic response.
Can a routine business practice be a habit?
Yes.
What are the exceptions to the rule that nothing about settlements is admissible?
1. There must be a claim.
2. There must be a dispute.
When is character evidence admissible in civil cases?
When it's at issue (defamation).
What are the four things to ask re. character evidence?
1. What is the purpose of the offer? (character directly at issue?)
2. What method is to be used?
3. What type of case?
4. What trait? (Is it RELEVANT TRAIT?)
Is character evidence admissible in civil cases to infer conduct?
No. But remember MIMIC.
What are the basic rules in criminal cases?
1. Prosecution can't use character evidence to show disposition in case in chief.
2. Accused may offer evidence of good character FOR THE PERTINENT TRAIT in the form of reputation and opinion.
3. After defendant offers evidence of good character, prosecution may respond by inquiry of the witness re. any SPECIFIC ACTS which would tarnish the accused's reputation.
4. Or, prosecution may then call prosecution witnesses re. bad opinions of bad reputation.
What are the rules re. self defense?
In HOMICIDE OR ASSAULT CASES, as part of SELF-DEFENSE PLEA, accused may bring in reputation or opinion evidence re. the victim's violent traits.

If he does so, prosecutor can then show good reputation/opinion of victim or bad reputation/opinion of accused.
In sex assault cases, what can accused bring in about victim?
Juset specific instances to show 1. third party was source of semen, injury; or 2. prior instances with accused, to show consent.
When may SPECIFIC INSTANCES of prior misconduct by the accused be offered for non-character purposes?
MIMIC

M: Motive
I: Identity
M: (Absence of) Mistake
I: Intent
C: Common plan or scheme
What's the special rule re. cases involving sexual assault and child molestation?
In civil or criminal cases charging defendant with sexual assault or child molestation, defendant's prior acts of sexual assaults or child molestation (doesn't have to be prior convictions or even arrest) may be shown by prosecution or plaintiff.
What is the general assumption re. admission of writings?
Don't let it in. It's a forgery.
What are the ways of directly authenticating writing?
1. Admission.
2. Eyewitness testimony.
3. Handwriting proof.
What are the ways of circumstantially authenticating writings?
1. Ancient document rule (20 or more years; old; regular on its face; found in a place of natural custody)
2. Solicited Reply doctrine
How much evidence is necessary to lay a proper foundation?
Very low; enough to get to a jury.
What documents are self-authenticating?
CLAN COP

C: Certified copies of public or business records
L: Labels
A: Affidavits
N: Newspapers etc.
C: Commercial documents
OP: Official Publications
What is the standard for photographs?
Fair and accurate representation.
When does the Best Evidence Rule apply?
1. Legally operative documents and
2. When witness's sole knowledge comes from a document.
What are the elements of the dead man statute?
1. Witness must have interest in outcome.
2. Must testify for his or her interest.
3. Against decedent
4. re. communications and transactions with decedent
5. strictly CIVIL CASES
6. No waiver.
When are leading questions okay?
1. Cross examination
2. Preliminary matters
3. Difficulty eliciting testimony (old, dumb, forgetful)
4. Adverse, hostile witnesses
What is the foundation for a recorded recollection?
When a witness still can't remember after being refreshed, writing may be read into evidence if proper foundation is laid for its admissibility. The foundation includes:
1. Witness at one time had personal knowledge of the facts in the writing;
2. Writing was made by the witness or under her direction;
3. Writing was timely made when it was fresh in her mind;
4. Writing is accurate;
5. Witness has insufficient recollection to testify accurately and fully.
What are the standards for admissibility of lay opinions?
1. It's rationally based on the perception of the witness.
2. It's helpful to the trier of fact.
Requirements for expert testimony:
1. Appropriate subject matter for expert testimony (reliable and relevant);
2. Expert must be qualified as expert, with special knowledge, skill, training, etc.
3. Expert must possess reasonable probability re. his opinion
4. Opinion must be supported by proper factual bases.
How can a learned text be established as authoritative?
1. Opponent's expert relies on the text.
2. Eliciting admission on cross-examination.
3. Call your own expert.
4. Judicial notice.
May a treatise be used to support your own expert's opinion?
Yes. Even if there is no opposing expert first called.
What is the scope of cross-examination?
Cannot exceed the scope of direct.
What is the collateral matters doctrine?
Cross-examiner may not bring in extrinsic evidence when impeaching a witness on cross.
What is the rule re. accrediting your own witness?
No bolstering your own witness unless there has been an appropriate impeachment.
Are prior consistent statements re. identification admissible?
Yup. That's an exception to hearsay.
For what can prior inconsistent statements be used?
JUST to impeach, unless the prior inconsistent statement was given under oath AND at a judicial proceeding -- THEN it can be admissible for truth.
Can you produce extrinsic evidence to prove prior inconsistent statements?
Yes.
When can prior convictions be used to impeach? (AS OPPOSED TO BEING USED TO SHOW CHARACTER)
1. Any crime involving dishonesty. NO DISCRETION TO EXCLUDE.
2. Felony not involving dishonesty, within the discretion of the court.
3. For both, can't be more than 10 years usually.
What extrinsic evidence is admissible to show convictions?
Just the certificate of conviction.
What about prior acts of deceit (not convictions), used to impeach?
Can be inquired about, if in good faith and if they involve deceit or lying.

NO EXTRINSIC EVIDENCE PERMITTED.
What about bad reputation for truth and veracity?
It is allowed to impeach a witness. Reputation and (in federal courts) opinion evidence may be used.
Can you bring in evidence on good reputation for truth, if your witness's honesty is attacked?
Yes. Can bring in reputation and opinion.
What is the key to remember re. physician-patient privilege?
Must be FOR THE PURPOSE OF OBTAINING TREATMENT (not, e.g., for litigation).
What's another key re. physician-patient privilege?
Must be relevant to the treatment.
When is the physician-patient privilege waived?
When the patient sues or defends by putting physical or mental condition in issue.
Does spousal immunity apply to civil cases?
NO. But confidential marital communications does.
What is a verbal act/legally operative fact?
Where the words spoken or written have relevant legal significance in the case by virtue of being spoken or written (words of offer, acceptance, defamation, conspiracy, etc.).
Can a witness's own prior statements be witness?
Yes.
What can keep a claim from mootness?
Money damages claim.