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77 Cards in this Set
- Front
- Back
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What makes evidence relevant?
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If it tends to make a material fact more probable or less probable than would be the case without the evidence.
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What makes relevant evidence inadmissible?
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If it fits within an exclusionary rule
OR the court makes a discretionary determination that the probative value of the evidence is substantially outweighed by pragmatic considerations |
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What is the general rule for admitting evidence of similar occurrences?
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If the evidence concerns some time, event or person other than that involved in the case at hand, the evidence is inadmissible
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When is a plaintiff's prior accident history admissible?
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If it is being used to establish the cause of injuries (like a defendant claiming the plaintiff's leg injury was caused by a prior accident and not his)
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Why is a plaintiff's prior accident history generally inadmissible?
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Because all it has a tendency to show is that the plaintiff is accident prone
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Why is a defendant's prior accident history generally inadmissible?
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Because it tends to suggest nothing more than a general character for carelessness
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When is a defendant's prior accident history admissible?
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When the accident occurred under substantially similar circumstances... to show:
1. A dangerous condition exists 2. Causation of the accident 3. Prior notice to D of the dangerous condition |
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When is a party's prior behavior admissible?
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To show intent... for instance, a company's refusal to hire women for the past 10 years may show DISCRIMINATORY INTENT against women
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What are the two defining characteristics of habit?
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Frequency of conduct
Particularity of conduct good for people AND businesses |
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When is evidence of having liability insurance admissible?
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To prove ownership or for impeachment
NEVER TO PROVE FAULT or ABSENCE OF FAULT |
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When should limiting instructions be given to a jury?
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When the evidence is being introduced for one purpose but not another (like the existence of liability insurance being used to show ownership and not fault)
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When is evidence of post-accident repairs admissible?
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To show ownership
To show control/feasibility of safer conditions This is when the defendant places one of these issues in controversy |
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Can settlements or offers to settle be entered into evidence?
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NO- unless the settlement is being used to show bias
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When does the exclusionary rule kick in for settlements?
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When there is something in dispute... so if you admit to fault and offer to settle before there is a dispute... ADMISSIBLE AS A PARTY ADMISSION
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What pleas can and cannot be entered into evidence?
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Offers to Plead Guilty- NO
Withdrawn Guilty Plea- NO Plea of Nolo Contendere- NO Guilty Plea- YES |
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When can the prosecution discuss the defendant's character?
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Case in Chief- NO
After Defendant introduces evidence of a relevant character trait- YES (in rebuttal) |
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What type of testimony can a witness give regarding a defendant's character?
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Reputation and Opinion evidence
NEVER SPECIFIC ACTS |
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What is a witness's testimony regarding the defendant's character restricted to?
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Relevant character traits... if the defendant is on trial for murder, his reputation for bravery and honesty is irrelevant
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What type of evidence can the prosecution use in rebuttal once the defendant puts his character at issue?
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Specific Acts- when cross-examining the witness
Opinion/Reputation evidence- when calling a rebuttal witness |
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What is the Maryland limitation to cross-examining with specific acts?
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Limited ONLY to convictions
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If the prosecution cross-examines a witness using specific acts and the witness denies the fact, what can the prosecution do?
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NOTHING- no extrinsic evidence is permitted to prove the specific act
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When can the defendant attack the victim's character?
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If the defense is SELF DEFENSE- the victim's violent character may be admitted to show that he was the first aggressor
Reputation/Opinion |
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How does Maryland differ from the Federal Rules regarding Prosecutorial rebuttal for self defense cases?
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Federal- if D attacks the victim's character, the prosecution may offer evidence of the victim's good character AND of the defendant's bad character
Maryland- ONLY evidence of the victim's good character is allowed |
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Is it ever permissible to talk about a victims specific past acts of violence?
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YES- if it is being used to show that the defendant was aware of the past act and that knowledge made him fearful of the victim (state of mind)
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What is the rape shield law?
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A victim's past sexual reputation or behavior is NEVER ADMISSIBLE
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When can a victim's past sexual behavior be admitted into evidence?
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To challenge the source of semen
To assert a defense of consent |
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When can character evidence generally be offered at a civil trial?
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NEVER- character evidence is generally not admissible to prove conduct in conformity during civil cases
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When can character evidence be offered in a civil trial?
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To establish an essential element of a claim or defense...
Negligent Hiring/Entrustment- you can offer opinion/reputation/specific acts of an employee's careless driving to prove negligent hiring Defamation/Slander- if D is sued for saying that P is dishonest, opinion/reputation/specific acts may be admitted to show that P is dishonest Custody Disputes- this tends to show a parent's fitness |
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What can other crimes and bad acts be admitted to show?
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MIMIC
Motive, Intent, Mistake of Accident, Identity, Common Plan or Scheme |
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How do you prove MIMIC crimes and bad acts?
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Conviction or other evidence
Other evidence: Federal- sufficient evidence from which a reasonable juror could conclude that the defendant committed the other crime Other evidence: Maryland- clear and convincing evidence |
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How does Maryland differ from the FRE regarding the defendant's sexual misconduct?
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FRE- evidence of prior sexual assault or child molestation may be shown through specific acts in the case-in-chief and may be used for any purpose (even propensity)
Maryland- only if it is used for MIMIC purposes or if the prior crime was directed toward the same victim as in the pending case |
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When does the best evidence rule apply?
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ONLY when seeking to prove the contents of a WRITING (or sound recording, X-rays, or films)
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What situations require production of the actual writing, film, x-ray or recording (BEST EVIDENCE)?
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1. When the writing is a LEGAL OPERATIVE DOCUMENT (like a patent, deed, mortgage, contract, etc...)
2. When the witness is testifying to facts that she learned solely from reading about them in the writing or seeing them on the video |
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Is a photocopy sufficient to satisfy the best evidence rule?
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YES- unless it is fuzzy or something
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Is testimony ever admissible in lieu of the original document?
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YES
if there is an excuse for non production that the court is persuaded by (preponderance of the evidence) OR If the court determines that the document is just not that important (collateral document rule) |
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What makes a witness competent to testify?
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1. Personal knowledge
2. Oath or affirmation- demonstrates a willingness to tell the truth |
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Is anyone disqualified from testifying in Maryland?
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YES- if you have been convicted of perjury, you cannot testify... unless you are the criminal defendant
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What does a typical Dead Man's Act do in a civil action?
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A witness cannot testify in support of her own interest against the estate of a decedent concerning communications or transactions between that witness and the decedent
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Do the FRE contain a dead man's statute?
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NO
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What is Maryland's Dead Man Rule?
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No one can testify as to communications or transactions with the decedent in an action by or against the decedent's estate
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When is a leading question allowed during direct examination?
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1. preliminary introductory matters
2. youthful/forgetful witnesses 3. hostile witnesses 4. adverse party or a person under the control of an adverse party |
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when can you admit past recollections recorded?
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1. when showing the witness the doc fails to jog his memory
2. the witness has personal knowledge at former time 3. the writing was either made by or adopted by the witness 4. the witness made or adopted the document when the event was fresh in his memory 5. the witness can vouch for the accuracy of the writing when it was made |
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How can expert witnesses form their opinion?
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1. personal knowledge
2. other evidence in the trial record 3. facts outside the record if of a type reasonably relied upon by experts in the particular field in forming opinion |
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What is the test of relevance for expert testimony in Maryland?
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Frye- for all types of scientific evidence, including medical opinions by physicians, the sole determining factor for reliability is general acceptance.
Scientific evidence must be based on principles or methods that are generally accepted in the relevant scientific community. Non-scientific expertise is governed by a less rigorous standard of adequate methodology |
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What is the proper way for an expert to say that the defendant was crazy and didn't know what he was doing?
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Something like... "the defendant has schizophrenia. a person with such disease cannot distinguish between fact and fantasy."
DO NOT SAY... "Defendant is schizophrenic and therefore could not tell truth from fantasy" |
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Can a witness testify as to identifying the defendant in a lineup?
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YES- this is prior identification and comes in as substantive evidence... NON-HEARSAY
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When can a prior inconsistent statement be offered for impeachment purposes AND as substantive evidence?
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When given orally under oath and as part of a formal hearing, proceeding, trial, or deposition
rationale- the person is in court and can explain the inconsistency |
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FRE- Does the witness need to be confronted with the inconsistent statement?
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NO- but the witness must be given an opportunity to return at some point to explain herself
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MD- Does the witness need to be confronted with the inconsistent statement?
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YES- the witness must be confronted on the stand so as to either deny it or explain it.
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Can extrinsic evidence be used to prove the prior inconsistent statement if the witness denies it?
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YES
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Does a showing of bias require confrontation of the witness and can extrinsic evidence be used to show bias?
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NO CONFRONTATION NEEDED
Extrinsic evidence is allowed... ...if you try to impeach a witness with a specific prior act and they deny it, you can put up extrinsic evidence to prove it because you are using it to prove bias |
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Does a showing of sensory deficiency require confrontation of the witness?
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ONLY IN MARYLAND
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What types of prior convictions are admissible to impeach a witness in Maryland?
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1. Infamous Crimes- murder, rape, arson, robbery, burglary, grand larceny, crimes involving false statements
2. Crimes relevant to witness credibility- theft and distribution/sale of drugs 3. 15 years from date of conviction ALWAYS BALANCE THE POTENTIAL PREJUDICE |
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When can you introduce extrinsic evidence as to a contradiction between reality and the witness' testimony?
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When it goes to an important part of the case
Example: you said D ran the red light. Isn't it true that the light was not working on that day? |
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What does the attorney/client privilege apply to?
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Confidential communications between attorney and client made during professional, legal consultation unless waived by the client or an exception applies
ALSO WORKS FOR REPRESENTATIVES (like doctors examining clients for purposes of litigation) |
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Does the attorney/client privilege apply to tangible physical evidence?
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NO- if the attorney is served with a subpoena for a piece of physical evidence, it must be turned over
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What does the average physician/patient privilege cover?
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confidential communication acquired by a physician from the patient for purpose of diagnosis or treatment of a medical condition.
Also applies to psychotherapists |
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Does MD recognize the physician/patient privilege?
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NO- but it does recognize a psychotherapist/patient privilege
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Which spousal privileges are recognized in Criminal Cases?
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Spousal Immunity
Confidential Communications Between Spouses |
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Which spousal privileges are recognized in Civil Cases?
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Confidential Communications Between Spouses
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What is the spousal immunity privilege?
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The witness spouse may choose not to testify about ANYTHING against the defendant spouse.
But the witness spouse may testify if she wants to |
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What is the confidential communications between spouses privilege?
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The defendant spouse may bar the witness spouse from testifying as to any confidential communications made during marriage.
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Does divorce end spousal privileges?
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Spousal Immunity- divorce severs this privilege and the witness spouse may be forced to testify
Confidential Communications- divorce does nothing to this privilege |
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What are examples of verbal acts not being hearsay?
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contract offers or cancellations, making a gift or bribe, perjury, fraud, defamation, words accompanying ambiguous acts
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To make a vicarious party admission, do you need to be on the job?
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NO- you only need to still be employed by the employer at the time the statement was made and the statement concerns a matter within the scope of agency/employment.
AND... even a WRITING can qualify as an admission! |
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What are the hearsay exceptions for unavailable witnesses?
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1. If the defendant caused the witness to be unavailable, any hearsay may be used (MD limitation)
2. Former Testimony- if the person gave their testimony at a former proceeding or in a deposition where the defendant had a chance to cross-examine (NO GRAND JURIES) 3. Statements against interest: look for pecuniary, proprietary, or penal |
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What is the exculpation rule?
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If a statement against interest is being offered that exculpates the defendant, corroborating circumstances must show the trustworthiness of the statement
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What types of cases are dying declarations allowed in?
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Federal- Homicide or civil cases
MD- Homicide, attempted homicide, assault with intent to kill and civil cases |
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What are the elements of the business exception to the hearsay rule?
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1. Records of any type of business
2. Made in the regular course of business 3. The business regularly keeps such records 4. Made at or about the time of the event recorded 5. Consists of information observed by employees of the business or a statement that falls within an independent hearsay exception Police reports are cool- and the statement can include stuff like "my partner told me the guy was speeding" because the partner is a fellow employee |
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Does the witness need to be the author of the report in order for the business records exception to apply?
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NO- the witness only needs to be a person with knowledge of the business enough to answer the 5 elements
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Can a police report be used against a defendant in a criminal case?
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NO- not if it was prepared for prosecutorial purposes... it cannot come in as either a public record or a business record
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What are the elements of the public records exception to the hearsay rule?
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records of a public office or agency that set forth:
1. the activities of the office or agency (payroll records); or 2. matters observed pursuant to a duty imposed by law (weather bureau records of temperature); or 3. findings of fact oropinion resulting from an investigation authorized by law (FAA report on the cause of a plane crash) |
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What is the effect of the court taking judicial notice of a piece of evidence?
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CIVIL- conclusively established
CRIMINAL- prosecutor's burden of producing evidence on that fact is satisfied... the jury can still disregard it if it wants to |
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What preliminary issues does the court have to make before testimony is presented in front of a jury?
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Judge must determine the qualifications of a witness called as an expert before permitting the witness to offer an opinion or conclusion on a matter appropriate for expert testimony
Preliminary fact questions involving the standards of trustworthiness of exceptions to the hearsay rule must be determined by the court (like if a business record was made in the regular course of business or whether a statement offered as a dying declaration was made under a sense of impending death) |
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Does the exclusionary rule apply to grand juries?
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NO
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When can silence act as an admission?
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If the court determines that a reasonable person would have denied an allegation under the circumstances
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Can a dying declaration exception be used in a trial for attempted murder?
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NO- only for homicides!
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