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41 Cards in this Set
- Front
- Back
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Character in Civil Case
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1. Not admissible as circumstantial evidence
2. Admissible if character of person is itself a material issue - specific acts / opinion / rep 3. Character for truthfulness admissible to impeach W |
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Character / Acts of Misconduct by D in Criminal Case
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1. Prosecution cannot initiate evidence of bad character by ANY means if purpose is to show propensity (OK if MIMIC)
2. D can offer evidence of good character for a PERTINENT trait by REPUTATION/OPINION to show disposition to infer innocence. 3. Prosecution can then rebut - Inquiry on cross-examination about specific acts; no extrinsic evidence - Opinion / Reputation witnesses; not specific acts |
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Victim Character in Self-Defense Case
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1. Homicide or Assault cases
2. D can show character of V as circumstantial evidence that V was first aggressor - OPINION / REPUTATION - Only specific acts if known to D and that is why D acted in self-defense 3. Prosecutor can rebut - Good reputation / opinion of V - Bad reputation / opinion of D - NO SPECIFIC ACTS |
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MIMIC
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Motive
Intent Mistake (Absence of) Identity Common Scheme or Plan Specific acts admissible Must be sufficient evidence to support jury finding that D committed prior act |
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Expert Witness Opinion - Requirements
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1. Subject matter appropriate for expert testimony - helpful; sound methodology; relevant
2. Witness must be qualified as expert (doesn't have to be formal education) 3. Reasonable certainty / probability as to opinion 4. Proper factual basis |
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How can you get proper factual basis for expert opinion?
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1. Personal observation
2. Facts made known to expert at trial (hypothetical question) - all facts must be in evidence 3. Facts not known personally - supplied outside ct and of type reasonably relied upon by experts in field |
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Learned Treatise
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1. Trad Rule - only in as impeachment of opposing expert
2. FRE - can get in for substantive and impeachment - Expert on stand and read into evidence 3. Must establish as authoritative - Opponents expert actually relied on it - Opponent's expert admits it is authoritative on cross - Rebuttal - your own expert testifies it is authoritative - Judicial notice - so well known |
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Impeaching Adversary Witness by Prior Inconsistent Statement
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1. Only comes in as impeachment
2. Exception - stmt given under oath as as part of formal proceeding (depo) can come in for truth 3. Bring in via cross or extrinsic evidence 4. If extrinsic evidence - W must have opportunity at some point to explain or deny (does not have to be before extrinsic) (unless party admission) |
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Impeaching Adversary Witness by showing interest/bias/motive
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1. Must lay foundation on cross examination first - ask W about itnerest
2. Then can bring in extrinsic evidence 3. Types of evidence - liability ins; settlements; W is awaiting trial |
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Impeaching adversary witness by prior conviction of crime
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1. Crime involving dishonesty / false stmt comes in to impeach
2. Crime not involving dishonesty - at cts discretion 3. No remote convictions - more than 10 yrs 4. Extrinsic evidence ok - no foundation required |
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Impeaching adversary witness by specific acts of deceit or lying
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1. Only on CROSS at judge's discretion; NO EXTRINSIC
2. Cannot ask about arrests - only whether he embezzled, not whether arrested 3. Must ask in good faith |
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Impeaching adversary witness by bad rep / bad opinion for TRUTH / VERACITY
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1. Extrinsic evidence OK - W from community
2. NO SPECIFIC ACTS |
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Rehabilitation After Impeachment
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1. Good reputation for truth / veracity - only use if character for truth impeached (not prior inconsistent stmt or bias)
2. Prior consistent Stmt - to rebut express or implied charge of recent fabrication or improper motive - Stmt must be made before motive arose - Admissible for TRUTH |
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Past Recollection Recorded
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1. Witness cannot remember
2. Can read into evidence doc written in her own writing 3. Foundation - W had personal knowledge - Writing was made by W - Writing was made when matter was fresh - Writing is reliable (W can just say it is accurate) - Necessity - W can't remember |
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Collateral Matters Doctrine
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1. Collateral Matter - matter's only relevance is to contradict
2. Can ask on cross but bound by the answer you get from W - no extrinsic evidence |
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Can you accredit your witness' testimony?
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NO - not until their credibility has been attacked
1. Cannot have second witness say that first has great rep for honesty 2. Cannot bring in a prior consistent statement (violates hearsay) |
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When can a prior consistent statement of a witness come in?
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Prior Statement of Identification
1. Excluded from hearsay rule 2. Can have W or someone who witnesses the identification testify 3. If W is unavailable, CANNOT have second witness testify - violates hearsay and confrontation |
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Attorney-Client Priv
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1. Confidential communication
2. B/t attorney and client 3. Made during professional legal consultation (intent by client to est legal relationship; predominantly legal advice sought) 4. No waiver (by client or rep of deceased client) |
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Exceptions to A-C priv
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1. Future crime or fraud - applies to all privs
2. At issue exception - client puts communication at issue - applies to all privs 3. Disputes b/t parties to prof relationship 4. Joint client - two/more parties communicate w/atty about matter of common interest - no priv b/t them |
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Physician / Patient Priv
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1. FRE does have - just state law
2. Prof relationship exists 3. Info acquired while attending pt in course of tx AND 4. Info NECESSARY for tx |
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Spousal Immunity Priv
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1. Criminal Case
2. One spouse cannot be forced to testify against other in criminal case 3. Valid marriage at time of trial 4. Protects any and all testimony 5. CL - D spouse held priv; NOW - testifying spouse holds priv |
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Marital Communications Priv
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Civil OR Criminal Case
1. Married at time of communications 2. Protects only confidential communications - spouse must take stand but assert priv if asked about communication 3. Either spouse holds priv |
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In fed diversity case, when will ct apply state evidence law?
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1. Burdens of proof and presumptions
2. Competency of Witnesses (dead man statute) 3. Privileges |
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In fed question case - what supplies priv law?
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Fed common law - ct will have to decide if fed common law recognizes priv
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Hearsay
Verbal Acts / Legally Operative Facts |
1. NOT HEARSAY
2. Words have significance b/c they were spoken 3. Offer, acceptance, defamation, conspiracy, bribery, cancellation, misrepresentation, waiver, permission |
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Hearsay
Statement offered to show its effect on the person who heard it |
1. NOT HEARSAY
2. Show notice; good faith of; knowledge; reason for action/inaction |
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Hearsay
Statement offered as circumstantial evidence of declarant's state of mind |
1. NOT HEARSAY
2. Usually offered to show insanity or knowledge |
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When are prior statements of witness not hearsay?
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1. Prior inconsistent stmt given under oath
2. Prior consistent stmt offered to rebut charge of fabrication / motive 3. Prior stmt of idenification by W 4. Party admission |
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Hearsay
Party Admission |
1. Stmt made by part opponent
2. Does not have to be against interest or based on personal knowledge 3. Vicarious Admission 4. Adoptive Admission |
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Vicarious Admission
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1. Stmt by party's agent
2. Re: matter w/in scope of employment 3. Made during existence of relationship 4. Ct makes prelim determination of status |
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Adoptive Admission
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1. Expressly/impliedly adopting stmt of another
2. By silence if: - Party heard and understood stmt - Physically/mentally capable of denying - Reasonable person would have denied |
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Exceptions to Hearsay
Declarant Must be Unavailable |
1. Former testimony
2. Stmt against interest 3. Dying Declaration Unavailable - dead; mentally incompetent; on stand but cannot remember or refuses to answer |
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Exceptions to Hearsay
Former Testimony |
1. Declarant Unavialable
2. Testimony given in earlier proceeding 3. Meaningful opportunity to cross examine - same issue, same motive, some identity of party |
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Hearsay Exception
Statement Against Interest |
1.Against interest when stmt was made
2. Made by any person (not just party) 3. Declarant must have personal knowledge 4. Interst - pecuniary; proprietary; penal 5. Stmt to exculpate accused in criminal case not admissible unless corroborated |
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Hearsay Exception
Dying Declaration |
1. Dec must be aware/conscious of impending death
2. Dec does not have to die but must be unavialable 3. Must be homicide case or ANY civil case 4. Concern the cause or circumstances of impending death |
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Hearsay Exception - Spontaneous Stmts - no unavailability required
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1. Declaration of existing state of mind (when state of mind at issue) - I believe
2. Declaration of Existing intent to do something in near future 3. Excited utterance 4. Present Sense Impression 5. Declaration of Present Phyiscal Condition 6. Declaration of Past Physical Condition |
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Excited Utterance
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1. Startling event
2. Statement made while still under stress of event 3. Statement relates to startlign event |
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Present Sense Impression
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1. Stmt describing / explaining event
2. Made while declarant was perceiving the event or immediately thereafter |
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Stmt of PRESENT physical condition
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Admissible by anyone who hears it
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Stmt of PAST phsyical condition
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1. Stmt for purposes of diagnosis or treatment
2. Describing medical hist / past symptoms OR 3. General character of cause 4. Made to medical personel OK if diagnosis is just for testimony |
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Business Records Exception to Hearsay
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1. Record must be kept in ordinary course of business
2. Person making stmt must be in business - have duty to report truthfully |
