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30 Cards in this Set

  • Front
  • Back
Admissions by opponent
1) own statement; 2) adoptive; 3) spokesperson; 4) agent; 5) co-conspirator
Own statement
1) offered vs. a party, and
2) own statement (words or acts) in some capacity
3) Can't be self-serving
Prior Inconsistent Statement
Admissible if
1) given under oath at trial/hearing;
2) subject to cross-exam;
3) statement is inconsistent w/testimony.
Prior Consistent Statement
1) other side must accuse witness of fabrication/improper motive.
2) Prior consistent statement
3) under oath at trial/hearing.
4) subject to cross-exam.
5) offered to boost credibility.
Statement of ID
1) statement is ID of person after perceiving the person.
2) Declarant testifies at trial/hearing.
3) subject to cross-exam concerning the statement.
a) gets a privilege
b) refuses to testify
c) bad memory
d) incapable (death/mental illness)
e) absent and can't get them to attend.
EXCEPTION: Available if party wrongfully prevents witness from testifying.
Former testimony
1) unavailable
2) testified at earlier trial/hearing.
3) other side (against whom testimony being made) had the OPPORTUNITY to develop testimony thru direct/cross/re-direct
Statement against interest
Civil: 1) contrary to declarant's interest
2) tended to subject them to civil/criminal liability
3) reas person would not have made the statement unless believed it was true.

1) statement tending to expose declarant to criminal liability
2) Offered to free accused from blame
3) if corroborating circum clearly indicate trustworthiness of content.
Dying Declarations
1) homicide/civil action
2) statement made by declarant who BELIEVES his death is imminent
3) BUT must concern cause/circum of what declarant believes is impending death.
Present Sense Impressions
1) statement describing/explaining event/condition.
2) made while declarant perceiving event/condition or immediately after.
Excited Utterances
1) Statement relating to a startling event/condition
2) Spontaneous: made while under stress of excitement
3) Caused by event/condition
Then-Existing Mental, Emotional, Physical Condition
Statement concerns declarant's then-existing:
1) state of mind,
2) emotion,
3) sensation, or
4) physical condition
5) NOT memory/belief UNLESS relates to a will
Statement regarding Medical Diagnosis or Treatment
1) For purpose of medical diagnosis/treatment
2) describing: a) med history, b) symptoms, c) origin of cause/source of symptoms/pain/sensation
3) reas pertinent for doctor to rely on in diagnosis/treatment
Past Recollections Recorded
1) Memo/Record concerning a matter that Witness had:
a) 1st hand knowledge
b) while fresh in memory
c) now has impaired memory
d) now testifies that record was accurate when made.

2) If admitted, read into ev (not recieved as exhibit), UNLESS offered by adverse party.
Writing Used to Refresh Memory
1) uses writing to refresh memory before/during testifying
2) fair
3) other side may inspect writing, cross-exam witness on it, and possibly object to content
Business Records
Regularly kept records of (non)profit business:
1) regular/routine entries
2) record-keeper has personal knowledge of matter recorded
3) timeliness
Public Records
Record of public office/agency setting forth:
1) activities of the office
2) matters observed under duty, EXCEPT cops
3) or investigative reports, UNLESS lack trustworthiness
Ancient Document
1) prove at least 20 yrs old
2) can't be suspicious in appearance
3) prove produced at place of custody natural for such a writing
Commercial publication
1) impartial/reliable
2) generally relied/used by public/business people
Learned Treatise
A. Extent
1) Direct: expert can rely on it
2) Cross: brought to expert attention

B. Statement
1) Contained in treatise
2) subject matter of history,medicine, science, or art
3) Established as reliable by witness testimony, expert testimony, or judicial notice
*read into record, not exhibit
Previous Conviction
1) final judgment entered at trial/guilt plea
2) felony punishable by death/imprisonment > 1 yr
3) to prove fact essential to sustain a judgment
4) NOT judgment against person other than occused for purpose besides impeachment.
Catch-all exception
5 REQ's:
1) circumstantial guarantess of trustworthiness
2) to prove material fact
3) No other ev available of equivalent value
4) interests of justice
5) Notice to other side
Subsequent Remedial Measures
1) injury/harm allegedly caused by event.
2) Measures taken that, if taken previously, would've made inj/harm less likely.
B. Rule: inadmissible for neg/culpable conduct, etc. BUT admissible for impeachment, ownerhsip control, or feasibility.
C. EXCEPTION: remedial actions are admissible if done by 3rd party.
Payment of Medical Expenses
Ev of (offering to) furnish(ing) medical expenses by an inj is NOT admissible to prove liability. HOWEVER, statements/conduct ev IS admissible.
Confrontation Clause
A. General: guarantees a criminal def. right to confront opposing witnesses.
B. Rule: No OCS against D in criminal trial, unless witness available for cross-exam.
C. 3 Criminal Rights:
1) be present at trial
2) learn ev against him
3) cross-exam witnesses who give live testimony
D. Testimonial: not admissible; includes formal statements to govt officers.
Non-Testimonial: generally admissible; statements to acquaintances.
E. Tests:
1) Ohio v. Roberts: Where witness unavailable, HS admitted if reliable (ex: satisfied by cross-exam during deposition).
2) Crawford v. Washington (overrules part of Ohio): If OCS is testimonial in nautre, it's blocked from ct no matter how reliable, UNLESS declarant was available for cross-exam either at time declaration was made or at trial.
Liability Insurance
Ev of liability insurance is not admissible on issue of neg/wrongdoing, BUT o.k. to show proof of ownership, control, or bias/prejudice.
Compromise Negotiations
Offer to negotiate/accept compromise is not admissible to prove liability/invalidity of claim. Neither are statements/conduct made during the negotiations.
-EXCEPT: otherwise discoverable ev or ev for other purpose (bias, delay, obstruction).
A. Definition: one's regular response to a repeated situation.
B. Rule: Ev of habit or organization's routine practice is generally admissible to prove conduct on a particular occasion was in conformity w/habit/routine practice.
C. 3 Factors:
1) specificity
2) regularity
3) degree of reflection/automoatic
(all 3 the "more" = more likely habit).
D. Majority of jxn. Minority only allow if no available eyewitnesses.
Witness Impeachment
A. Who? any party can impeach a witness.
B. 7 Ways to Impeach a Witness:
1) Prior criminal convictions
2) Prior bad acts: only if probative of truthfulness + good faith reason to believe they did bad act.
3) Character for truthfulness
4) Prior inconsistent statements
5) Bias: motive to lie
6) Sensory/Mental defect
7) Contradictions
Prior Conviction Impeachment/Appellate Review
A. Why?
1) no chara. propensity to tell truth
2) ex-cons should be further punished; denied privilege of being a witness.
3) ex-cons treated as incompetent.
B. Type of Witness
1) Non-accused witness: presume admiss, unless harm outweighs value
2) Accused witness: presume inadmiss, unless value outweighs harm
C. Type of Crime:
1) Felony: (non-accused witness) admissible if a crime punishable by death or imprisonment > 1 yr. AND value outweighs harm to Def.
2) Falsity crimes: unconditionally admissible, regardless of punishment.
1) conviction or release was > 10 yrs ago. (UNLESS value outweighs harm and notice given)
2) Ev of pardon/annullment/rehab/innocence.
3) juvenile adjudication (UNLEESS nec to crimin case)

E. Appellate Review: Ev of pendency of an appeal does not render ev of conviction inadmissible, BUT ev of pendency is also admissible.