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51 Cards in this Set

  • Front
  • Back
Evidence of a person’ other misconducts is inadmissible to prove:
bad character/imply criminal disposition.
When person’s other misconducts are admissible:
M – Motive – other crimes show there was a motive to this crime.
I – Intent – prior actions prove there was intent – when this is a relevant element.
M – Mistake – that he knew/wasn’t mistaken
I – Identity – is identified by similar prior crimes
C – Common Plan – the crime is part of a scheme.
Evidence of a person’ other misconducts is admissible:
1. to prove MIMIC
2. in cases of Sexual Assault / Child Molestation (the other acts should be of SA/CM
Three potential objections to admission of a document?
Improper authentication – unless self authenticated document.
Hearsay – when offered to the truth of its content.
Best Evidence Rule – if a copy / oral is offered.
First condition to admit a document?
Authenticated, unless it is a self authenticated one.
Methods of document authentication? (8)
1. Admission of the opponent party
2. By the person who signed it
3. By a person who saw it been signed
4. Handwriting proof
5. Ancient document
6. Solicited Reply Doctrine
7. A Photograph
8. Voice
Conditions for Ancient Document? (3)
1. 20 years of old
2. Regular on its face – no deletions
3. found it a place of natural custody
How you authenticate handwriting? (3)
1. Expert – by comparison
2. Lay – must be familiar with the HW.
3. Jury – by simple comparison.
Quantum of proof to authenticate a document?
Sufficient evidence to justify a jury finding of genuineness.
Self authenticated documents? (6)
1. certified copies of public/business records
2. Official publications
3. Newspapers/periodicals
4. Trade inscriptions or labels
5. Acknowledged documents
6. Signatures on Certain Commercial Documents (UCC)
How you authenticate a photograph? (2)
1. Attended camera:
a. The photographer
b. Comparison by Someone who is familiar with the scene
2. Unattended camera:
a. The camera was properly operating
b. The photograph was developed from the film obtained from the camera
When does the Best evidence Rule apply? (2)
When we seek to prove that a document (including films, photos, X-ray, recordings) contains something (not the truth of the content) by admitting not the original, but rather:
1. a reproduction
2. an oral testimony about a content of a document/learned from the document.
to show what is written on the original. – not to prove the truth of its content, but rather that what is claimed is indeed written on the original, unless we provide a reasonable explanation why the original is not provided.
When doesn’t the Best evidence Rule apply? (4)
1. The evidence is a duplication (Carbons, photographic copy, Xeroxes, faxes) – unless there is a genuine question or it is not fair.
2. The document is collateral- of a minor importance.
3. Certified copies of Records
4. Voluminous documents – (summary/chart/calculations is provided instead) so long as originals are made accessible to opposing party.
How you authenticate a voice on the phone? (4)
1. the witness says that he recognized the voice
2. The witness called his number, and a voice answered as that person/his residence
3. The speaker knew unique facts
4. The witness called a business and talked about matters relevant to the business
How you authenticate a recorded voice?
The witness recognizes the voice.
Best Evidence Rule?
When we
Dead man act applies only in?
Civil cases
The origin of the Dead man act?
Common law – not Federal law
What are the methods of impeachment? (6)
1. Record of judgment/cross examination about prior convictions of:
a. dishonest crimes
b. felonies – under judge’s discretion.
2. Extrinsic evidence/cross examination about prior inconsistent statements.
3. Extrinsic evidence/cross examination about bias or interest.
4. Extrinsic evidence about bad reputation
5. Cross examination about prior specific bad acts
6. Extrinsic evidence/cross examination about sensory deficiency.
Which methods of impeachment require foundation (opportunity to explain/deny)? (2)
1. Extrinsic evidence about prior inconsistent statement
2. Extrinsic evidence about bias or interest
Physician/patient privilege in Federal Court?
This is a state privilege. Thus applies in Federal court only if it applies the substantial State Court.
Spousal Privilege? (5)
1. Comes to protect the marriage
2. Valid only during marriage
3. The privilege belongs to the witness
4. Covers statements made before/during marriage
5. applies only in criminal proceedings
Marital Communication Privilege? (5)
1. comes to encourage safe communications
2. Valid even after divorce
3. belongs to both spouses
4. covers only statements made during marriage
5. applies in both criminal and civil courts
Marital Communication / Spousal Privileges don’t apply in: (3)
1. actions between the spouses
2. when the victim was the spouse witness
3. When the victim was one’s children
If a State substantive law applies in Federal court, then State law will also apply regarding: (3)
1. presumptions and burden of proof
2. Competency of witnesses
3. Privileges
Hearsay is: (3)
1. Out of court statement
2. Offered for the purpose of proving that its content is true
3. Not admissible unless through exceptions
Applications of Hearsay: (2)
1. Declarant who made a verbal statement and a witness who heard that statement offers his testimony to prove that the statement was true.
2. Declarant who wrote his statement, and the writing is offered as an evidence to prove that its content is true
Non-hearsay (a hearsay that was excluded from the definition of “hearsay” under the common law by the Federal Rules): (3)
1. Witness’ prior statements:
a. Inconsistent - given under oath at a prior proceedings
b. Consistent – (offered to rebut) made before the motive to lie arose
c. Identification (such as of a photo)
2. Party’s prior admission that is offered against him:
d. Formal judicial (pleadings, stipulations)– conclusive
e. Informal judicial (testimony) – can be explained
f. Adoptive admission – silence – did not deny when a reasonable person would have.
Example to Witness’ own prior statement which is a hearsay:
Witness says at the stand: “I told him I was innocent.” In this case, “I was innocent” is a statement made out of court. Thus, if it is offered for its truth - that he indeed was innocent – it would be hearsay.
Vicarious Admission: (3)
1. made by the party’s agent/employee
2. within the scope of the agency/employment
3. while being an agent/employed
Witness’ prior statements:
1. Inconsistent - given under oath at a prior proceedings
2. Consistent – (offered to rebut) made before the motive to lie arose
3. Identification (such as of a photo)
Party’s prior admission that is offered against him:
1. Formal judicial (pleadings, stipulations)– conclusive
2. Informal judicial (testimony) – can be explained
3. Adoptive admission – silence – did not deny when a reasonable person would have.
Exceptions to the Hearsay rule: (5)
1. Former testimony
2. Statement against interest
3. Dying declaration
4. Spontaneous statements
5. Business records
Former testimony: (3)
Remember: to discourage defendants to kill a witness.
1. witness is now unavailable
2. The testimony was given in an early proceeding where the party against which it is offered now was also a party there, thus:
3. The opponent party had Motive to cross
Unavailability to witness means: (5)
1. Physical unavailability
2. Loss of memory
3. Refusal to answer
4. Any other reason for which he doesn’t testify.
5. Use a privilege not to testify
Exceptions to Hearsay that contingent on unavailability: (5)
1. Former testimony
2. Prior statement against interest
3. Dying declaration
4. Family history
5. Against the party who caused witness to by unavailable
Statement against interest: (2)
A person would never admit something he didn’t do – thus it must be true.
1. Declarant is not available
2. Was aware that his declaration was against him
* Limitation: if the evidence is brought by Defendant to show that Declarant is the one with the guilt – it is not admissible unless strengthened by corroborating circumstances.
Dying declaration: (4)
1. Witness is unavailable
2. Believed he was going to imminently die when made the statement
3. Declaration must concern the cause/circumstances of the death
4. No need to die
Dying declaration is admissible in: (2)
1. Homicide
2. Civil case
Spontaneous Statements: (6)
These kinds of Prior statements are reliable no less than those given in court. Thus, no need to be unavailable.
1. Express present state of mind
2. Express intent to do something
3. Express present sense impression – what he sees
4. Express present physical condition
5. Express past physical condition – made to medical personnel – medical history…
6. In response to exciting utterance (מאורע)
Exceptions to Hearsay (5)
1. Former testimony
2. Statement against interest
3. Dying declaration
4. Spontaneous statements
5. Business records
Elements of spontaneous statement in response to an exciting utterance: (3)
1. The nature of the event
2. The time lapse and what is going on during the time lapse
3. The language used
Preliminary facts upon which admissibility depends are: (2)
1. determined by the judge
2. the judge is not bound by the rules of evidence. Thus, he can decide even when his decisions are based on inadmissible evidences.
Impeaching the Hearsay declarant?
The opponent can offer extrinsic evidences to impeach the hearsay, such as using Declarant’s inconsistent statement. Because the declarant is not available – there is no need to establish a foundation…
Business records (including police): (5)
1. Made at or near the time of occurrence
2. From a person with personal knowledge who transmits the information out of his duty to do so
3. Recording such events is a business routine
4. The content is germane (relevant) to the business
5. There is no indication of lack of trustworthiness
Public records:
1. Made near the time of the event
2. Made within the scope of the duty
3. Activities of the officer
4. Observations of the officer (not against the defendant in criminal cases)
5. Factual conclusions result from the officer’s investigation (not against the defendant in criminal cases)
6. No others’ statements (such as witnesses) because then it will be a double hearsay = witness + officer
you can impeach someone only after he:
Said something. If he refused to say anything - he cannot be impeached
the authenticity of a document is a preliminary fact to be decided by:
the jury.
The judge's decides only that the evidence supports the authenticity is enogh for the jury to decide upon.
In civil case, prior misconduct is admissible:
Character evidence is admissible in Civil cases only where the character is in issue.
In Criminal case, prior misconduct is admissible:
1. to impeach
2. to prove substancial facts in MIMIC cases
3. to prove substantial facts in Sex crimes and Child Molestation
Can the prosecution cross axamine a Defendant's witness about Defendant's prior misconducts?
Yes. To impeach the witness. When the purpose of the question is to show that the witness don't know much about the Defendant.