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103 Cards in this Set

  • Front
  • Back
General Admissibility
Material and relevant evience is admissile if competent.
exists when the proffered evidence relates to one of the substantive legal issues in the case.
Probative evidence contributes to proving or disproving a material issue.
Relevant Evidence - Rule 401
evidence tending to make the existence of any fact of consequence to the determination of the action more or less probable than it would be w/o the evidence
Direct Evidence
the very facts in dispute are communicated by those who have actual knowleddge by means of their senses.
Circumstantial Evidence
indirect; relies on inference. If issue is was there a man on the bridge, footprints would be circumstantial.
Testimonial Evidence
oral evidence given under oath
Documentary Evidence
writings, like a contract or confession
Real Evidence
anything conveying a firsthand sense impression to the trier of fact.
Relevance - Generally
the tendency of evidence to prove or disprove a material issue, to render it more probably true, or untrue, than it would have been w/o the particular evidence
Previous similar happenings
Generally not relevant - look at time proximity
Exceptions to previous similar happenings
previous similar happenings may be relevant if they are probative of the material issue involved, and if that probative value outweighs the risk of unfair prejudice
Relevant similar occurences
Causation, Prior False Claims or Same Bodily Injury, Similar accident caused by same event or condition, prove intent, rebut impossibility, sales of similar property, habit, business routine, industrial custom
describes one's regular response to a specific set of circumstances. more specific than character traits
Judicial Discretion
Trial judge has broad discretion to exclude relevant evidence if probative value is substantially outweighed by danger of unfair prejudice, confusion of issues, or misleading jury. also undue delay, waste of time, etc.
Liability Insurance
evidence that a person was or was not insured against liability not admissible to show she acted negligently or to show ability to pay judgment
Subsequent Remedial Measures
Evidence of repairs, etc made follwoing an ijury is inadmissible to prove negligence, culpable conduct, a defect in a product or a need for a warnign or instruction.
Settlement Offers
Evidence of compromises or offers to compromise inadmissible to prove liabilit yfor or invalidity of a claim that is disputed as to validity or amount. Includes conduct or statement during negotiation.
Withdrawn Guilty Pleas and Offers to Plea Guilty
inadmissible. includes statements made during negotiation of plea
Payment of Medical Expenses
evidence that a third party paid injured party's medical expenses is not admissible to prove liability of injury.
Purposes to offer character evidence
1. prove character when character itself is ultimate issue
2. serve as circumstantial evidence of how a person probably acted
3. Impeach credibility
Means of Proving Character
1. Evidence of specific acts
2. Opinion Testimony
3. Testimony to person's general reputation in community.
Civil Cases and Character
Character evidence to prove the conduct of a person is generally not admissible in civil cases. It is admissible if character is the direct issue
Defense in Criminal Case (character of defendant)
May introduce evidence of her good character to show her innocence of the alleged crime.
Means defendant uses to put her character in issue
witness testify's to good reputation for trait involved in case OR personal opinion concerning that trait of the defendant.
Prosecution in Criminal Case (character of defendant)
Cannot initiate bad character evidence of defendant
Prosecution rebuttle of Defendant's "good" character evidence
1. Cross-Examination: has to stick with witness' answer (cannot bring in extrinsic evidence.
2. Testimony of other witnesses
Victim in Criminal Case (character)
The defendant may introduce reputation or opinion evidence of a bad character trait of alleged victim when relevant to show defendant's innocence. Exception - rape victims.
Prosecution rebuttle of Victim's "bad" character evidence
1. Introduce victim's good character OR
2. Defendants bad character for the same trait.
Exceptions to inadmissiblity of Victim's past behavior in rape cases
Criminal Case - admissible to show a person other than accused was the source of semen, injury, or other physical evidence. Also admissible to prove consent.
2. Civil - admissible if probative value substantially outweighs danger of harm to victime
Specific Acts of Misconduct
when a person is charged with one crime, extrinsic evidence of her other crimes or misconduct is inadmissible if such evidence is offered solely to establish a criminal disposition. Admissible if relevant to some other issue besides character or disposition.
Examples of Relevant Specific Acts of Misconduct
1. Motive
2. Intent
3. Absense of Mistake
4. Identity
5. Common Plan or Scheme
Judicial Notice - Generally
the recognition of a fact as true without formal presentation of evidence
Requirements of Judicial Notice
a fact not subject to reasonable dispute in that it is either generally known within the territorial jurisdiction of the trial court or capable of accurate and eady determination by resort to sources whose accuracy cannot reasonably be questioned.
Types of Judicial Notice
1. Matters of Common Knowledge in Community
2. Facts Capable of Certain Verification
3. Scientific Principles
4. NOT judge's personal knowledge
Mandatory Judicial Notice
Federal public law, state public law, official regulations
Permissive Judicial Notice
municipal ordinances, private acts, local state legislateure, foreign countries (may or may not)
Types of Real Evidence
1. Direct
2. Circumstantial
3. Original (murder weapon)
4. Prepared (models, sketches; also called demonstrative)
Authentication of Real Evidence
Recognition Testimony - if object has significant features, witness testifies that the object is what the proponent says it is.
Chain of Custody - if object is likely to be confused, proponent must show unbroken chain of custody
Real Evidence
admissible if authenticated and value is not outweighed by danger of prejudice.
explanatory real evidence (skeleton, anatomy chart), permitted at trial but not admitted into evidence or given to jury.
Documentary Evidence
Must be relevant.
Possible barriers: authentication, best evidence & hearsay
Authentication Standard
requires only enough evidence to support a finding that the matter is what its proponent claims it is. "sufficient to support a jury finding of genuineness"
Evidence of Authentication
may be authenticaated by any evidence that serves to establish its authenticity. Rules list: admissions, testimony of eyewitness, handwriting verifications, ancient documents, reply letter doctrine, photographs, etc.
Handwriting Verification
Nonexpert opinion - lay winess with personal knowledge
Comparison - expert winess or trier of fact
Ancient document
at least 20 years old, free from suspicion, found in a place where it would be likely kept
witness who identifies it must be familiar with the scene or object. not necessary to call the photographer
Oral Statement Authentication
requires authentications as to the identity of the speaker. voice identification by anyone who has heard the voice at any time. telephone conversations
Self-Authenticating documents
public records, official publications, newpapes or periodicals, trade insriptions, notorized, business records
Best Evidence Rule - Generally
Original writing must be produced. Secondary evidence only allowed when original is unavailable for some reason other thatn the serious misconduct of the proponent
Applicability of Best Evidence Rule
Two Situations:
1. writing is a legally operative or dispositive instrument (deed, contract)
2. the knowledge of a witness concerning a fact results from having read it in the document.
Best Evidence not Applicable
1. Fact to be proved exists independently of writing
2. Writing is collateral to litigated issue
3. Summaries of voluminous records
4. Public Records
Original v. Duplicate
Original includes duplicates
Three questions of Best Evidence left to Jury rather than court
1. whether the original ever existed
2. whether it's an original
3. wehether it correctly reflects the contents of the original
Parol Evidence Rule
If an agreement is reduced to writing, that writing is the agreement and constitutes the only evidence of it. All prior or contemporaneous negotiations or agreements are merged into the written agreement.
Exceptions to Parol Evidence
completion of incomplete or ambiguous agreement, reformation of contract, validity of contract.
Competency of Witness
presumed competent. Look at capacity to observe, recollect, communicate and appreciate the obligation to speak truthfully
Federal Requirements of Testimonial Evidence
Personal Knowledge and Oath
Dead Man Acts
incompentent to testify toa personal transaction or communication with a deceased, when testimonty is offered against the representative or successors in interest of the deceased. Person must be interested in event, or his predecessor in interest.
Elements of Dead Man Acts
1. Civil cases ONLY
2. Interested party - stands to gain or lose by judgment
3. Doesn't apply to facts occurring after death
4. Can be waived
Leading Questions
1. during cross
2. direct in non crucial areas: preliminary matter, witness needs aid to respond, witness is hostile or an adverse party
Improper Questions
Misleading, Compount, Argumentative, Conclusionary, Assuming facts not in evidence, cumulative, harassing, calls for narrative, calls for speculation, lack of foundation, nonresponsive
Use of memo by witness
witness cannot read her testimony from a prepared memo
Exceptions - refreshing recollection, past recolelction recorded
Refreshing recollection
witness may use mome to refresh present recollection. writing isnot authenticated, and not in evidence. she cannot read from it
Past Recollection Recorded
If, after trying to refresh recollection, witness still does not remember, memo may be read into evidence if a proper foudnation is laid.
Opinion Testimony by Lay Witness
Generally inadmissible. Admissible when:
1. Rationally based on teh perception of the witness
2. Helpful to a clear understanding of her testimony to determine a fact in issue.
3. not based on scientific, technical, or other specialized knowledge.
Situations where Lay Witness Opinion Testimony is Admissible
1. General appearance or condition of person
2. State of emotion.
3. Matters involving sense recognition (heavy, bulky)
4. Voice or Handwriting
5. Speed of moving object.
6. value of own services
7. whether conduct was rational.
8. Intoxication
Opinion Testimony by Expert Witness
Subject matter is appropriate, witness is qualified, reasonable probability, supported by proper factual basis
Accrediting or Bolstering (Impeachment)
A party may not bolster the testimony until the witness has been impeached.
Who can impeach?
Any party can impeach any witness
Impeachment Methods
1. Cross-examination
2. Extrinsic Evidence
Prior Inconsistent Statements (Impeachment)
Must have foundation, must be relevant to some issue. witness must be given an opportunity to explain or deny
Prior Inconsistent Statements: admissiblity
Hearsay, admissible only to impeach. Exception - under oath at a prior trial, hearing, etc., is admissible as nonhearsay
Bias - Impeachment
A witness may always be impeached by extrinsic evidence of bias, provided a proper foundation is laid.
Conviction of a Crime - Impeachment
requires an ACTUAL conviction. Use any crime involving dishonesty or a false statement.
Conviction of a felony not involving dishonesty
May be used, but court has discretion to exclude if:
1. If the accused is the witness in a criminal case (must show proative outweighs prejudice)
2. Witness other than accused - must show probative SUBSTANTIALLY outweighs prejudice.
Other rules about conviction of a crime as impeachment
1. crime must not be too remote
2. No juvenile adjudication
3. Pending appeal doesn't affect admissiblity
Specific Misconduct (Impeachment)
witness may be interrogated upon cross with respect to anny immoral,vicious, or crimal act of his life that may affect his character and show him to be unworthy of belief. EXTRINSIC EVIDENCE NOT PERMITTED (if witness denies, that's it)
Opinion or Reputation as evidence of truth
A witness may be impeached by showing that she has a poor reputation for truthfulness (general reputation). Can state her personal opinion, based upon acquaintance.
Prior Consistent Statements
Generally not permitted. Exception - to rebut opposing counsel's implied charge that witness is lying or exaggerating.
Hearsay - generally
a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Reasoning - adverse party was denied the opportunity to cross-exam the declarant
oral or written assertion, or nonverbal conduct intended as an assertion
Offered to Prove the Truth of the Matter
1. Verbal Acts or Legally Operative Facts (just used to prove they said it, not that it was true: contract dispute - evidence of offer, or defamation suit - evidence that defendant lied.
2. Statements offered to show effect on hearer or reader
3. statement offered as circumstantial evidence of declarant's state of mind.
Examples of hearsay and non-hearsay
examples - outline page 49
Statements that are Nonhearsay
1. prior statements by witness
2. admissions by party-opponent
Prior Statements by Witness
Certain statements by a person who testifies at the trial or hearing and is subject to cross about the statements are not hearsay.
1. Prior Inconsistent statement not hearsay if made under oath
2. Prior consistent statements not hearsay if offered to rebut a charge of exaggeration or lying
3.Prior statement of identification is nonhearsay
Admissions in general
Statement need not have been against interest at the time it was made. May even have been an opinion.
If a party fails to respond to accusatory statements where a reasonable person would have spoken up, his silence may be considered an implied admission. Must have heard and understood and had ability to deny.
4 Hearsay Exceptions that Require Declarant to be Unavailable
1. Former Testimony
2. Statements Against Interest
3. Dying Declarations
4. Statements of Personal or Family History
Former Testimony
The testimony of a now unavailable witness given at another hearing or deposition is admissible as long as there is sufficient similarity of parties and issues so that the oportunity to develop testimony or cross at the prior hearing was meaningful.
Statements Against Interest
Statement of now unavailable person against that person's pecuniary, proprietary, or penal interest when made.
Requirements for Statement Against Interest
1. against interest
2. declarant had personal knowledge of the facts
3. declarant was aware the statement was against her interest.
4. no motive to misrepresent
5. witness unavailable
Dying Declarations
In a prosecution for homicide or a civil action, a declaration made by the now unavailable declarant while believing his death was imminent that concerns the cause or circumstances of what he believed to be his impending death is admissible. No requirement of actual death.
Statements of Personal or Family History
Statemetns concernign birth, marriage, divorce, death, relationship, etc., are admissible under an exception to the hearsay rule.
Present State of Mind
A statement of the declarant's then-existing state of mind, emotion, sensation or physical condition is admissible. Admissible when state of mind is directly in issue or when offered to show subsequent acts of declarant.
Excited Utterances
A declaration made during or soon after a startling event is admissible. Must be made under the stress of excitement produced by the startling event. Statement must concern the immediate facts of the event.
Present Sense Impression
A person perceives some event that is not particularly shocking or exciting, the person may nevertheless be moved to comment on what she perceived at the time of receipt of the sense impression or immediately thereafter
Declarations of Physical Condition
Can be made to anyone, not just physician. Statements concerning past bodily condition are inadmissible.
Business Records
Must be made in the regular course of business. Record must have been maintained in conjunction with a business activity. Police reports only in civil cases. Hospital records related to diagnosis or treatment
Official Records or Other Official Writings
The writing must have been made by, and within the scope of duty of, the public employee. The writing must have been made at or near the time of the act, condition or event. The sources of information must indicate trustworthiness
certified copy of judgment always admissible proof that such judgment has been entered. Civil judgment inadmissible in criminal proceeding. Civil judgment inadmissible in subsequent civil proceedings except for proof of matters of personal, faily or general history, etc.
Residual "Catch-all" exception
1. Trustworthiness - circumstantial guarantees of trustworthiness
2. Necessity - must be offered on material fact and more probative than any other evidence
3. Notice to Adversary
Preliminary facts decided by jury
1. Agency - was he an agent
2. Authenticity of document
3. Credibility
4. Personal knowledge.
Preliminary facts decided by judge
1. Competency of evidence
2. Requirements for privilege
3. Requirements for hearsay exceptions
4. Lack of mental capacity
5. Qualifications of expert