Evidence

Front 1

Big tips for Evidence essay

Back 1

1. talk about relevance for each piece of evidence offered, eve if obvious
2. state as many objections as possible
3. state as many theories of admissibilities as possible

Front 2

big tip for evidence multistate

Back 2

always start by identifying why evidence is / is not relevant

Front 3

Logical relevance defined

Back 3

if it has any tendancy to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evid.

Front 4

Relevance: to determine "of consequence"...

Back 4

consider substantive underlying law

Front 5

Relevance: to determine "more probable than not"...

Back 5

it's just common sense

Front 6

Legal relevance defined

Back 6

assuming that evidence is logically relevant, court still has discretion to esclude if PV substantially outweighed by (i) unfair prejudice, (ii) confusion, or (iii) waste of time
(i.e. "suprise evidence")

Front 7

Inadmissible forms of evidence, despite relevance
(4)

Back 7

Note: below evidence admissible for all reasons not stated
1. liability insurance to prove culpable conduct / ability to pay
2. subsequent remedial measures or repairs to prove culpable conduct
3. settlements, offers to settle and pleas
4. Payment or offers to pay medical expenses

Front 8

examples of acceptable reasons for admission of subsequent remedial measures or repairs
(2)

Back 8

1. to prove feasibility of precautions
2. subsequent remedial measures in products liability

Front 9

Requirements for "inadmissibility of settlements, offers to settle and pleas" rule to apply
(3)

Back 9

1. must first be a claim
2. must be a dispute to settle - D cannot admit to amount owed
3. cannot be a humanitarian gesture (i.e. where D asks for something in return --> offer)

Front 10

Can you admit surrounding statements for payments or offers to pay medical expenses?

Back 10

Yes (i.e. "i'll pay your hospital bill (not-admissible)... I shouldn't have dropped that banana peel (admissible)

Front 11

Similar occurrences: rule and reqs

Back 11

Rule: similar occurrences admissible sometimes to prove causation

Reqs: same time, same place, same conditions makes it more probable that causation is as P claims

Front 12

Are prior accidents or claims admissible evidence?

Back 12

Usually no.

Exceptions
1. pattern of fradulent claims
2. where shows a pre-existing condition (relevant to damages, causation)

Front 13

Are previous similar acts admissible to prove intent?

Back 13

Y - increases probability that there was intent

Front 14

Is evidence admissible to rebut a defense of impossibility?

Back 14

Yes

Front 15

Is habit evidence admissible? When?

Back 15

Yes. Habit of a person to act in a certain way is admissible to show the person acted in accordance with the habit on the occassion in question

Front 16

Tests for Habit v. Character evidence

Back 16

Habit: specific conduct in a specific situation and it's repeated; no moral judgment; suggests always

Character evidence: says something general and makes a moral or ethical judgment (i.e. someone is "careful")

Front 17

Equivelence of Habit evidence for a business? When is it used?

Back 17

Routine Practice evidence

To show that conduct of entity was in conformity with that practice on the occassion in question.

Front 18

Is industrial custom evidence admissible? For what?

Back 18

Yes.

To prove standard of care.

Front 19

Character Evidence approach - Memorize!

Back 19

1. What is the purpose for which the character evidence is offered?
a. to prove character b/c character is an issue in the case
b. to prove character as circum. evid. of a person's conduct on occassion in question
c. to impeach or support W's credibility
2. What method or technique is used to prove character?
a. specific acts of conduct
b. opinion
c. reputation
3. Is it a civil or criminal case?
4. Does the evidence prove a pertinent character trait?

Front 20

When is character evidence admissible in civil cases?

Back 20

ONLY WHEN
1. claim is based on sexual assualt or child molestation - to prove conduct
2. character is an issue in the claim (which involves dishonesty)
a. defamation
b. child custody
c. negligent entrustment

Front 21

what is negligent entrustment?

Back 21

entursting possession to someone who is known to be careless / reckless

Front 22

Character admissibility in criminal cases, concerning D's character

Back 22

Prosecution CANNOT BE THE FIRST to offer character evid. except in
(1) cases of sexual assualt or child molestation, or
(2)where court has admitted evidence of V's character offered by accused, P can admit evid. of same character trait

Front 23

Can Defense be the first to offer character evidence of self?

Back 23

Yes

Front 24

For criminal case, restrictions on P's evidence offered to rebut D's character evid.

Back 24

Must be PERTINENT to D's char. evid. (i.e. for assualt case, char. for violence is pertinent)

Front 25

In criminal case, what character evidence is admissible on direct? On cross?

Back 25

Direct: reputation and opinion
Cross: SPECIFIC INSTANCES, reputation, and opinion

Front 26

Admission rules regarding character evidence of VICTIM

Back 26

Almost same as for Defense: P cannot be first to offer character to prove conduct; D can go first, then P can rebut, No specific instances on direct, but okay on cross AND
once D offers character evid. of V, P can offer evidence that D has same character trait

Front 27

Restrictions to D's evidence alleged victim's character when offereed to support defense of consent

Back 27

REPUTATION and OPINION evidence inadmissible.

SPECIFIC INSTANCES of alleged V's conduct admissible only to prove
1. 3rd party is source of semen or injury OR
2. prior acts of consensual intercourse b/w D and alleged V
For these specific instances evidence, (1) D must give notice of intent to offer evidence and (2) in camera hearing held.

Front 28

When is specific instances of D's bad conduct admissible?

Back 28

To prove anything other than character that is relevant.
M.I.M.I.C. = Motive, Intent, Mistake (absence of mistake), Identity, Common plan or scheme

Front 29

Common plan or scheme defined

Back 29

prior act that is same plan / scheme to commit crime (i.e. using an ice-cream truck as get-away car)

Front 30

What is identity under specific instances of conduct?

How is it measured?

Back 30

Identity = signature crime (method of committing a crime)

Measured by similarity and uniqueness to event in question

Front 31

Does judge retain discretion to exclude evidence for unfair prejudice where evidence addresses character evidence? How?

Back 31

Yes; balance PV for proper purpose against unfair prejudice created by impermissible purpose

Front 32

What determines a witness's ability to testify (one word)

Back 32

competency

Front 33

Requirements for witness competency (4)

Back 33

1. Personal knowledge (perception of facts w/own senses)
2. Present recollection - W must testify from present recolletion, not from some record regarding matters W once knew but has now forgotten
3. Communication - W must be able to relate perception
4. Sincerity - W must take oath or affirmation to tell truth

Front 34

Prosecution witness testifies "defendant shot victim." W is blind and bases testimony on what someone said. What is the Proper objection?

Back 34

lack of personal knowledge (not hearsay - would be "Sheriff told me that D shot the victim.")

Front 35

How to distinguish b/w PERSONAL KNOWLEDGE and HEARSAY

Back 35

look at form of testimony of W. If quoting or attributing testimony to what someone else said --> hearsay
-If saying something happened --> personal knowledge

Front 36

Reqs for objections to testimony

Back 36

Must be
1. timely AND
2. specific

Front 37

When are leading questions permissible?

Back 37

1. on cross
2. on direct if adverse witness

Front 38

Forms of objections

Back 38

1. calls for narrative
2. unresponsive
3. leading question
4. assumes facts not in evidence
5. argumentative
6. compound

Front 39

Three-step approach to Hearsay problems

Back 39

1. find the statement
2. ask what it is offered to prove; if not explicit, just determine why statement is relevant (don't stop at the first one)
3. given what it's offered to prove, will jury be mislead if speaker lying or mistaken; if Y --> HEARSAY

Front 40

Definition of Hearsay

Back 40

Out-of-court statement offered for the purpose of establishing the truth of the matter asserted in that statement

Front 41

Exceptions to Hearsay

Back 41

1. Independent legal significance
a. defamation
b. adverse possession (statement by of openly claiming adversely possessing)
c. wonership of personal property (chattels)
2. Effect on the listener (knowledge or notice (of a danger) on part of listener)
3. shows knowledge
4. shows CIRCUMSTANTIAL evidence of state of mind ("I am dracula"; not "I feel like killing")

Front 42

What is an admission? Does it require personal knowledge or opinion?

Back 42

a statement by a party, or someone whose statement is attributable to a party, offered by a party opponent
Does not require personal knowledge or opinion
NOTE: includes guilty pleas

Front 43

Exemptions to hearsay (a.k.a. nonhearsay) (5)

Back 43

1. admission of party opponent
2. prior inconsistent statemtn given under oath
3. prior consistent statement offered to rebut charge of recent fabrication or improper motive
4. statement of ID of a person made after perceiving the person
5. transcript of testimony given under oath at trial or grand jury proceeding

Front 44

What is a vicarious party admission? 2 specific types?

Back 44

1. statement by employee of party (a) concenring matter w/in scope of employment and (b) made during employment relationship.
2. Adoptive admission (nonparty makes statement and party indicates belief in its truth
3. co-conspirator statemtn (during course and furtherance of conspiracy)

Front 45

When is a former testimony given by someone now unavailable admissible?

Back 45

1. testimony given in earlier proceeding AND
a. party against whom tstimony is now offered had, during earlier proceeding, OPPORTUNITY to examine them and the MOTIVE to conduct exam was similar to motive now; OR
b. in civil case, party against whom testimony is now offered is a successor in interest to a party in earlier proceeding who had opportunity and similar motive to examine.

Front 46

When is a person "unavailable?"

Back 46

1. court exempts declarant from testifying due to privilege
2. decl. refuses to testify despite court order
3. decl.'s memory fails
4. decl. is dead or sick
5. proponent of statement cannot procure decl.'s attendance by process or other reasonable means

Front 47

When is a mere statement by an unavailable decl. admissible?

Back 47

If, at time statement was made, statement was against financial interest of decl. or would have subjected decl. to criminal liability.
But note: if statement offered to exculpate acused, there must be corroborating evidence to admit the statement.

Front 48

Distinction b/w declarent against interest and party admission

Back 48

decl. against interest: needn't be by the party

party admission: must be by the party

Front 49

When is a dying declaration admissible?

Back 49

When
1. person believes he is about to die and
2. the decl. describes the circumstances of his death
Note: for homicide prosecution, permitted only if declaraent unavailable

Front 50

What are the state of mind hearsay exceptions?

Back 50

1. excited utterance
2. Present sense impression
3. Decl. of then existing physical or mental condition
4. statement of past or present mental or physical condition if made for med. diagnosis or treatment

Front 51

What is an excited utterance?

Back 51

An Excited utterance is...

a statement relating to startling event or condition by decl. under stress of excitement caused by event or condition.
Note: timing does not matter

Front 52

What is a present sense impression?

Back 52

A present sense impression is...
a statement describing or explaining an event or condition made while decl. was perceiving the event or condition or immeidately thereafter

Front 53

What is the danger of decl. of an existing physical or mental condition?

Back 53

used to describe memory, or belief -> not admissible to prove the fact remembered or believed (avoid "I remember," "I believed")

Front 54

What must business records be to be admissible?

Back 54

Business records are...
1. made at or near time of event described
2. by a person with knowledge AND
3. it was regular practice of business to make such records
Note: can cover mult. hearsay levels

Front 55

Is it hearsay for a W to read a document to himself in order to refresh recollection? How about if a lawyer hands the W something else to refresh recollection?

Back 55

No, it is "Refreshing Recollection"

Lawyer can use anything to refresh W's recollection

Front 56

Does the opponent's counsel get to see something that is used to refresh recollection?

Back 56

Yes, whatever is used to refresh recollection must be produced to the other side and can be admitted into evidence

Front 57

What can a Lawyer do if the item used to refresh recollection does not refresh W's recollection? What is this called?

Back 57

admit thing into evidence.

This is called the "recorded recollection hearsay exception."

Front 58

Requirements for "recorded recollection hearsay exception"

Back 58

a. W ONCE HAD PERSONAL KNOWLEDGE of the facts
b. document was (1) MADE by witness or (2) under W's direction or (3) ADOPTED by W
c. document was written or adopted at the time when the facts were FRESH IN W'S MEMORY
d. Document was ACCURATE when made
e. W now has INSUFFICIENT RECOLLECTION to testify as to the matters contained in the document

Front 59

Requirements for LAY OPINION (3)

Back 59

Lay opinion Must be:
1. RATIONALLY BASED on W's perceptions (logical relationahip b/w perception and opinion)
2. HELPFUL to the trier of fact AND
3. not based on scientific or other specialized knowledge

Front 60

Examples of when lay opinion permitted

Back 60

1. speed of auto
2. sanity
3. intoxication
4. emotions
5. value of W's property

Front 61

What is "helpful" for lay / expert opinions?

Back 61

tells the jury more than they could figure out on its own

Front 62

Requirements for Expert Opinion

Back 62

Expert opinion must be
1. Helpful
2. Qualifications (practical exp., educ.)
3. Degree of Certainty
4. Basis for opinion: Admitted evidence or Personal Knowledge (inadmissible evidence reasonably relied upon in the field)
5. Opinion must be baesd on reliable principles reliably applied to the facts

Front 63

How is basis for expert opinion tested on MBE?

Back 63

hypo must correctly characterize admitted evidence

Front 64

For Expert Opinion, test for reliable principles reliably applied to the facts

Back 64

When test has been
1. published in scientific journals
2. has a low error rate
3. is subject to retesting, and
4. has a reasonable level of acceptance
OR test meets common sense

Front 65

Are learned treatises hearsay?

Back 65

Yes, but they are a hearsay exception. Can read aloud, but cannot admit into evidence

Front 66

What are the two sources that can be used to impeach a W?

Back 66

1. mouth of W herself on cross-examination
2. Extrinsic evidence: the rest of the world

Front 67

What to do if other side's W testifies on direct and then refuses to answer questions for cross or doesn't show for cross? Why?

Back 67

Can move to strike W's testimony or even mistrial.

Because party has an ABSOLUTE right to cross-examine W who have testified against that party

Front 68

How can cross-examiner ask W questions outside of scope of direct examination? Is there a limitation?

Back 68

Ask judge to take W on direct; but if does, cannot ask leading questions.

Front 69

What type of prior inconsistent statements are admissible?

Back 69

Prior inconsistent statements are admissible if made BEFORE the bribe or inconsistent statement.

Front 70

Three step approach to admissibility of impeachment evidence

Back 70

1. is source extrinisc evidence or cross of W being impeached?
2. If extrinsic, is it admissible given impeachment technique?
3. Any other foundation requirements?

Front 71

Is extrinsic evidence admissible to impeach?

Back 71

If evidence concerns a collateral matter, no.

Front 72

what is extrinsic evidence?

Back 72

evidence coming from anywhere other than the W on the stand

Front 73

what is a collateral matter?

Back 73

a fact not material to the issues of the case and says nothing about credibility oterh than to contradict the W.

Front 74

What is a contradiction?

Back 74

W asserts fact to be true; other side presents evidence showing W's assertion wrong.

Front 75

Requirements for admissibility of prior inconsistent statements to impeach (3)

Back 75

1. must be given under oath (includes depositions)
2. cannot impeach on collateral matter.
3. Foundational requirment: W must be given opportunity to explain / deny _at_that_proceeding_

Front 76

Requirements for admissibilty of bias, interest, or motive evidence to impeach (1)

Back 76

must have opportunity to explain / deny

Front 77

Requirements for admissibilty, for impeachment purposes, of prior convictions for crimes INVOLVING FALSE STATEMENTS

Back 77

For convictions / prison terms w/in last 10 years: no requirements - all admissible
For convictions / prison terms older than 10 years, balancing test

Front 78

Requirements for admissibilty, for impeachment purposes, of prior convictions for crimes of NOT INVOLVING FALSE STATEMENTS

Back 78

For misdemeanor: none - not admissible
For felony convictions: just balancing
For old felony convictions: PV must outweigh prejudice

Front 79

Is extrinsic evidence admissible to prove conviction for crime that is an admissible prior conviction?

Back 79

Yes

Front 80

When is misconduct admissible for impeachment purposes? Does it include arrests? Is intrinsic evidence admissible?

Back 80

- admissible when misconduct has bearing on truthfulness, absent a conviction
- does not include arrests?
- extrinsic evidence is inadmisible

Front 81

Potential forms of impeachment

Back 81

1. contradiction
2. prior inconsistent statements
3. bias, interest, motive
4. prior convictions
5. misconduct bearing on truthfulness
6. reputation and opinion regarding truthfulness

Front 82

Can you impeach by reputation and opinion regarding truthfulness? If so, can you use extrinsic evidence?

Back 82

Yes. Yes.

Front 83

Methods of authenticating signatures (7)

Back 83

1. admission
2. eyewitness testimony (seeing X sign)
3. expert opinion (comparing disputed w/genuine example and declares both by same person)
4. lay opinion (seen D's sign name elsewhere)
5. circum. evid.: (i.e. P testifies of delivery of letter)
6. genuine exemplar (jury compares genuine against disputed)

Front 84

B of P for authentication of evidence

Back 84

sufficient to support a finding (below proponderance of evidence)

Front 85

Self-authenticated documents

Back 85

1. copies of public docs (deeds)
2. acknowledged docs (includes notary)
3. official publications (gov.'t pamphlets)
4. bus. records
5. trade inscriptions
6. newspapers
7. periodicals
8. trade inscription

Front 86

Requirements for authentication of trade inscription. And what is it?

Back 86

None. self-authenticating.

tag or label which purports to have been attached in course of bus. and inciates ownership, control, or origin

Front 87

Who can authenticate photos?

Back 87

any W so long as W has personal knowledge; but where question of timing of photo, only photographer has personal knowledge

Front 88

How to authenticate non-unique items? When are they non-unique?

Back 88

lay chain of custody demonstrating that the item is the item the proponent claims it to be.
Non-unique when facially indistinguishable fromother like items

Front 89

Do small breaks in the chain of custody matter for authentication?

Back 89

No.

Front 90

Best evidence rule: when it applies and it's effect

Back 90

Applies only where evidence offered to prove the contents of a writing.
Where best evidence rule applies, the original is required.

Front 91

What is writing under the best evidence rule?

Back 91

any collection of data in tangible form.

Front 92

When is evidence offered to prove contents of a writing? (2)

Back 92

1. case turns on contents of legal instrument (i.e. wills, deeds, K's)
2. Knowledge obtained from writing (i.e. letter, x-ray)

Front 93

What are exceptions to the best evidence rule?

Back 93

Original not required when:
1. collateral documents exception: doc is of minor importance in the case and its contents are not in dispute
2. voluminious documents exception: doc so voluminous that cannot conveniently be brought into court room and admitted, SO LONG AS originals are available.

Front 94

Are duplicates admissible as well when best evidence rule applies? And what is a duplicate?

Back 94

Duplicate admissible under best evidence rule unless there si a genuine question as to the authenticity of the original.

Duplicate = copy of an original produced (1) by machine or (2) by the same impressino that created the original

Front 95

Is testimony admissible where original lost or destroyed?

Back 95

Yes, unless bad faith by proponent of testimony. Depends on who destroyed original and who is proposing evidence.

Front 96

What is the attorney-client privilege?

Back 96

1. a communication
2. between attorney and client or their representatives
3. intended by client to be confidential
4. for the purpose of acquiring legal service AND
5. not waived by client

Front 97

Are employees of a corporation protected by attorney-client privilege?

Back 97

Yes, where employee si authorized by the corp. to make the communication with the lawyer.

Front 98

Exceptions to Attorney-Client Privilege (3)

Back 98

Attorney-client privilege does not apply where:
1. Waiver
2. where professional services sought to further crime or fraud OR
3. 2 or mor eparties consult an attorney on a matter of common interest and the communication is offered by one of the parties against the other

Front 99

When does Doctor-Patient privilege (includes psychotherapist) apply?

Back 99

1. information confidentially conveyed to a physician or psychotherapist
2. for the purposes of obtaining diagnosis or treatment (not for examination for insurance co.)
Note: includes nurses; so can't be in public place; does not include information not pertinent to med. treatment

Front 100

Exceptions to doctor-patient privilege (3)

Back 100

1. criminal cases
2. malpractice suits b/w the doctor and patient
3. cases where patient puts his physical condition in issue

Front 101

If client has the option of excercising attny-client or doctor-patient privilege, use which one?

Back 101

Attny-Client b/c so much broader

Front 102

When does the SPOUSAL TESTIMONIAL privilege apply? What does it cover?

Back 102

Applies ONLY in criminal cases.

Permits W to refuse to testify against his /her spouse as to anything

Front 103

When does the SPOUSAL CONFIDENTIAL COMMUNICATION privilege apply? What does it cover?

Back 103

Applies in any case.

Protects confidential spoual communications made DURING marriage.

Front 104

What is judicial notice? What 2 issues does it raise?

Back 104

When court establishes facts without presenting evidence.

Issues:
1. facts appropriate for J.N.
2. Procedure for taking J.N.

Front 105

What facts are appropriate for judicial notice?

Back 105

Either:
1. generally known within territorial jurisdiction OR
2. capable of accurate and ready determination by resort to sources whose acuracy cannot reasonably be questioned

Front 106

1. What is the procedure for taking judicial notice?

2. What are the instructions?

3. When can it occur?

Back 106

1. Party must request to compel J.N. OR Court has discretion to take J.N.
2a. If requested for civil case, court instructs jury it must accept noticed facts as conclusive.
2b. If requested for criminal case, court instructs jury it may, but is not required to accept J.N. fact.
3. It can occur at any time, even appeal.

Front 107

Can you attack an expert witness based on his lack of knowledge based on evidence suggesting his beliefs contradict principles believed in the field?

Back 107

Yes.

Front 108

Test to tell if statement is an excited utterance

Back 108

Does declarent "scream" or "yell" the statement? Y --> excited utterance

Front 109

Can a judge call W's upon her own initiative and interrogate any W's who testify?

Back 109

Yes

Front 110

When to use motion to strike instead of an objection

Back 110

Motion to strike: where there was no basis or opportunity for an earlier objection; use where question not objectionable.

Objection: must be made after question asked, but before witness answers