Evidence

Front 1

Past Recollection Recorded

Back 1

1) Witness must have firsthand knowledge
2) Statement made while matter is fresh in witness' memory
3) Witness must lack present recollection
4) Witness must be able to verify the accuracy of the statement

Front 2

Best Evidence Rule

Back 2

Applies whenever "contents are in issue":

1) Where testimony is reliant on the writing, not on personal knowledge, or

2) Where the writing has independent significance. (Legally operative documents)

Front 3

Spousal Privilege

Back 3

Protects ALL communications during and before marriage.

Upon divorce, entire privilege is lost

Criminal cases only

Holder:
At CL: party spouse
in Federal Courts: witness spouse
Trammel v. California: Majority

Front 4

Marital Privilege

Back 4

Protects confidential communications (verbal or written) during marriage.

Divorce has no effect.

Applies both to civil and criminal cases.

Both spouses are holders.

Front 5

Prior Consistent Statement
FRE 801(d)(1)(B)

Back 5

Offered substantively on redirect to rebut a charge of recent fabrication or improper influence.

Declarant must testify at trial (under oath), AND

Be subject to cross-examination, AND

W's prior statement must be made BEFORE the charged fabrication arose (majority position).

Front 6

Scientific Expert Testimony

Back 6

Abuse of discretion standard if erroneously admitted or excluded.

Front 7

Bad Act Impeachment
FRE 608(b)

Back 7

A question on cross-examination inquiring into prior unconvicted acts bearing on untruthfulness.

Front 8

Attorney Representative

Back 8

One hired by the attorney to assist in rendition of legal services (i.e. consultant, accountant, non-testifying expert, stenographer)

Statements made from client to representative (and vice versa) are protected by the attorney-client privilege.

Front 9

FRE 701

Back 9

Lay opinion must be:

1. Rationally based
2. Helpful to the determination of a fact in issue

Inadmissible where the jury is equally capable of drawing an opinion or inference.

Front 10

Competency
FRE 603

Back 10

Before testifying, every witness shall be required to declare to testify truthfully by oath or affirmation.

Front 11

Prior Inconsistent Statements

Back 11

FRE 613: admissible only to impeach

Admissible Substantively when:
1. If "sworn" (statements made at a trial, deposition, or other proceeding) under FRE 801(d)(1)
2. As an admission under FRE 801(d)(2), or
3. If a hearsay exception applies.

Front 12

FRE 414

Back 12

The prosecution may offer evidence of prior specific acts of child molestation by D.

Front 13

FRE 404 (a)(1)
"Opening the Door"

Back 13

Defendant may open the door with reputation or opinion evidence (not specific acts) of his good character to prove his innocence and the prosecution may so rebut.

Focus on trait being offered, does it go to proving innocence?

Front 14

Former Testimony
FRE 804(b)

Back 14

1. Testimony given as a witness at another hearing of the same or different proceeding, or in a deposition
2. Unavailable declarant
3. Opportunity to examine and similar motive to develop the testimony

Can apply where different P's are suing the same D.

Front 15

Leading Questions

Back 15

A party, called as an adverse witnesses, is generally not allowed to be asked a leading question by his own attorney on cross-examination.

Front 16

Judicial Notice (JN)

Back 16

FRE 201(d)--when mandatory:
A court shall take JN if requested by a party and supplied with the necessary information.

FRE 201(g)--instructing the jury:
A civil jury must accept a JN fact as conclusive. (A criminal jury may.)

Front 17

Completeness Doctrine
FRE 106

Back 17

Where one party introduces part of a writing, the adverse party may introduce any other (part of the) writing, which, in fairness, ought to be considered.

Front 18

Offers to Pay Medical Bills
FRE 409

Back 18

An offer to pay medical bills is inadmissible to prove liability for an injury

However, admissions made in connection with such offer may be severed and admitted

Front 19

Common Knowledge Exception

Back 19

Expert testimony is not required where the type of injury is within the common knowledge of a lay person.

Front 20

Rights of Opposing Counsel

Back 20

Refreshing Recollection:

Inspect the document
Cross-examine with it
Introduce relevant portions ONLY to impeach

Past Recollection Recorded:

Inspect the document
Cross-examine with it
Introduce relevant portions as substantive evidence

Front 21

Use of Convictions to Impeach
FRE 609

Back 21

1) Felony convictions--discretionary

2) Convictions of crimes involving dishonesty or false statements
a) either felonies or misdemeanors
b) admissible as a matter of right, unless the conviction is more than 10 years old

Front 22

Presumptions

Back 22

Shifts the burden of production to the opposing party

Must be accepted as true, unless rebutted

A jury instruction creating a presumption as to an element of the crime charged is unconstitutional and violated due process

Front 23

Confrontation Clause

Back 23

This test requires that the witness's statement have been subject to cross-examination. In accordance with the intent of the Sixth Amendment Confrontation Clause, prior "testimonial" evidence is inadmissible unless: 1) the declarant is unavailable; and 2) the defendant had a prior opportunity to cross-examine the declarant.

Front 24

Best Evidence Rule

Back 24

Requires that if the contents of a writing are sought to be proved, the original writing must be produced.

"Writing" includes photographs, videos, and digital videos.

If the original has been lost or destroyed through no fault of the party offer the evidence, secondary evidence, such as copies of the writing or oral evidence may be introduced to prove the contents of the writing. Oral evidence may be used to prove the contents of a writing only if it can be shown that neither the original writing nor any duplicates of the writing are available.

Front 25

Hearsay

Back 25

Is an out of court statement offered to prove the truth of the matter asserted.

Hearsay is inadmissible unless a hearsay exception exists.

Front 26

Business Records Exception

Back 26

A memorandum or report, prepared in the ordinary course of business by a person with knowledge, or by a person to whom knowledge was transmitted, is admissible if it is the custom to make such memoranda or reports.

Front 27

Hearsay for Impeachment

Back 27

A statement used in a way other than proving the truth of the matter asserted (a non-substantive use) is not considered hearsay and may be admitted.

It can be used to impeach the credibility of a declarant if the declarant testifies as a witness in the trial.

Judge gives appropriate limiting instruction to the jury.

Front 28

Statements made for the purpose of obtaining Medical Diagnosis or Treatment

Back 28

Statements describe the cause of symptoms and are reasonably important to patient's diagnosis and treatment.

Statements that identify someone who caused the injury are not admissible.

Front 29

"Rule of Completeness"

Back 29

If one party introduces a writing or recorded statement, or part thereof, the adverse party may require the introduction at that time of any other party or any other writing or record statement that ought, in fairness, but considered contemporaneously with it.