Evidence

Front 1

Logical Relevance

Back 1

Evidence that has any tendency to make a material fact more probable or less probable than it would be w/o the evidence.

Front 2

Discretionary Evidence

Back 2

Even relevant evidence may be excluded if its probabtive value is substantially outweighed by the danger of:

1. unfair prejudice
2. confusion of issues
3. misleading jury
4. undue delay
5. waste of time
6. cumulative evidece

Note: unfair surprise is not a ground for exclusion of relevant evidence.

Front 3

Habit Evidence

Back 3

Requires:

1. specific detailed conduct

2. recurrence

Look for: always, instinctively, invariably, automatically

Front 4

Liability Insurance

Back 4

Not admissible to show person acted negligently or wrongfully or to show ability to pay.

Admissible to show:
1. ownership or control (when disputed)
2. impeach credibility of W by showing interest, bias, motive

Front 5

Subsequent Remedial Measures

Back 5

Not admissible to show negligence, culpable conduct, defect, or need for warning.

Admissible to show:
1) ownership/control
2) impeachment - feasibility of precautionary measures

Front 6

Settlements

Back 6

Not admissible to prove fault, liability or amount of damage.

1. There must be a claim
2. the claim must be disputed as to LIABILITY or AMOUNT

Front 7

Offer to Pay Medical Expenses

Back 7

Not admissible

However, admission of fact that accompanies nakes offer to pay medical expenses may be admitted.

Front 8

Character Evidence

(Criminal Cases)

Back 8

IS admissible under the MIMIC rule

Inadmissible if offered by Π to show that Δ has a propensity to commit crimes

IS admissible if offered by Δ to show his own good character, or the bad character of victim
(W's testimony limited to opinion or reputation)

Is rebutted by calling a rebuttal W whose testimony is limited to opinion or reputation

Front 9

Character Evidence

(Civil Cases)

Back 9

IS admissible under the MIMIC rule

Is inadmissible if offered by EITHER party to show that either party in conformity w/that character trait

IS admissible if character itself is AT ISSUE (defamation*, negligent hiring/entrustment) --> may be shown by specific acts, opinion, reputation

Front 10

Specific Instances of Prior Misconduct

(Criminal Defendant)

Back 10

Not admissible to show criminal disposition (except n Sexual Assault/Child Molestation - civil as well)

May be admissible to show:
1) Motive
2) Intent
3) Modus Operandi
4) Identity
5) Common Plan or Scheme

Front 11

Victim Character - Sexual Misconduct Cases

Back 11

1) no opinion or reputation

2) specific instances allowed only to show
*3rd party source
*prior consensual intercourse
* exclusion violates constitutional rights

Front 12

General Rule of Authentication

Back 12

A writing is not admissile until authentication (foundation is laid)

Presumed a forgery

Front 13

Ancient Document Rule

Back 13

1) 20+ years

2) regular on its face

3) found in place of natural custody

Front 14

How much evidence is required to lay a proper foundation?

Back 14

Enough to justify a jury finding of genuineness.

Front 15

Self-Authenticating Documents

Back 15

1) Certified Copies of Public or Business Records

2) Official Publications

3) Newspapers and Periodicals

4) Trade Inscriptions/Labels

5) Acknowledged Documents

6) Signatures on certain commercial documents

Front 16

Authentication of Photographs

Back 16

Generally requires only that a W view it and testify that it is a reasonable and accurate representation.

If no W, proponent must show:
1) camera was operating properly
2) time camera was operating
3) how camera/film were handled leading up to court

Front 17

Best Evidence Rule

Back 17

Party seeking to prove the content of a writing must either:
1) produce the original document; or
2) give a reasonable explanation for the absence of the original.

Applies to: legally operative documents, when W's sole knowledge comes from document

Does not apply to: facts independent of writing, collateral documents

Modifications: Public Records, Voluminous documents, Duplicates

Front 18

Dead Man Act

Back 18

1) interested W
2) W must testify for his interest
3) W must testify against decedent or his reps
4) communications or txs w/D
5) strictly CIVIL

Front 19

Collateral Matters Doctrine

Back 19

X-examiner is bound by W's answers re: impeachment of collateral matters.

No extrinsic evidence allowed.

Front 20

5 Basic Impeachment Techniques

Back 20

1) Prior Inconsistent Statement

2) Interest, Bias, Motive

3) Prior Conviction of Crime

4) Specific Acts of Deceit or Lying

5) Bad Reputation/Opinion for Truth & Veracity

Front 21

Unavailability Hearsay Exceptions

Back 21

1. Declarations against interest

2. Dying declaration

3. Former testimony

Front 22

Reliability Hearsay Exceptions

(W need not be unavailable)

Back 22

1. Excited utterances

2. Present sense impressions

3. Bodily condition

4. Present state of mind

Front 23

Documentary exceptions

Back 23

1. Past recollection recorded

2. Business records

3. Official records

Front 24

Catch-All Hearsay Exception

Back 24

1. Guarantees of trustworthiness

2. strictly necessary

3. notice given to adversary

Hint 24

Notice Trust Necessary

Front 25

Nonhearsay

(Admissible Out-of-court statements)

Back 25

1. Nonassertive conduct

2. Statement not offered for truth

3. Prior Inconsistent Statement Made Under Oath

4. Prior Consistent Statement (to rebut lying/exaggerating)

5. Prior Statement of Identification

6. Admission of party-opponent

Front 26

Sixth Amendment Right of Confrontation

(Crawford Factors)

Back 26

6th amd's right to confrontation may render a statement inadmissible, even if it fits an exception.

1. statement is offered against accused in a CRIMINAL case
2. declarant is UNAVAILABLE
3. statement was TESTIMONIAL
4. accused had no opportunity to X-EXAMINE declarant's statement when it was made

Unless it is shown that defendant's wrongdoing prevented declarant from testifying @ trial.

Hint 26

X-CUT

Front 27

Past Recollection Recorded

Back 27

If a witness has insufficient memory of an event to enable him to testify fully and accurately, even after consulting a writing given to him on the stand, the writing itself may be introduced into evidence if a proper foundation is laid for its admissibility:
i) the witness at one time had personal knowledge of the facts recited in the writing; ii) the writing was made by or under the direction of the witness or has been adopted by him;
iii) the writing was timely made when the matter was fresh in the mind of the witness; iv) the writing is accurate; and
v) the witness has insufficient recollection to testify fully and accurately.

Front 28

Parol Evidence Rule

Back 28

if an agreement is reduced to a writing, all prior or contemporaneous negotiations or agreements are merged into the written agreement.

parol evidence is admissible to establish or disprove a contract attacked on grounds of fraud, duress, or undue influence inducing consent

Front 29

Prior Testimony

Back 29

is admissible as an exception to the hearsay rule if the testimony was given under oath;

and the party against whom the evidence is now offered either offered the testimony or had the testimony offered against her at the former trial, and had an opportunity and similar motive to develop the testimony either on direct or cross-examination

Front 30

Admissibility of Convictions

Back 30

A misdemanor conviction is hearsay not admissible under any exception.

A felony conviction, on the other hand, is admissible in criminal and civil actions to prove any fact essential to the judgment.

In a criminal case, however, the government may use the judgment for this purpose only against the accused; it may be used only for impeachment purposes against others.