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73 Cards in this Set

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What is "relevant" evidence?
Evidence is relevant if it tends to make the existence of any fact of consequence to the outcome of the action more probable than it would be without the evidence.
When is evidence that relates to certain similar occurrences relevant?
Generally, the evidence must relate to the time, event, or person involved in the present litigation. Otherwise, the evidence is not relevant. However, previous similar occurrences may be relevant if they are probative of a material issue and that probativeness outweighs the risk of confusion or unfair prejudice. Prior occurrence evidence is relevant to prove : causation, prior false claims or same bodily injury, similar accidents or injuries caused by same event or condition, intent, to rebut claims of impossibility, etc., industry custom as evidence of standard of care.
When is "habit" evidence admissible?
Habit describes a person's regular response to a specific set of circumstances. Evidence of a person's habit is relevant to prove that the conduct of the person on a particulr occasion was in conformity with the habit. Look for words like "instinctively" or automatically". These show habit.
When may a judge exclude relevant evidence?
A judge has broad discretion to exclude relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, undue delay, or waste of time.
When can evidence be excluded for public policy reasons?
Evidence excluded for public policy reasons includes liability insurance to show negligence or ability to pay, subsequent remedial measures to prove negligence, settlement offers and negotiations to prove liability for a claim that is disputed as to liability or amount, withdrawn guilty pleas and offers to plead guilty. Evidence that a party paid or offered to pay medical expenses is not admissible to prove liability for the injury, but admissions of fact accompanying offers to pay medical expenses are admissible – opposit rule regarding compromise negotiations - accompanying facts not admissible).
When is character evidence admissible in a civil case.
Generally, evidence of a character is not admissible in a civil case, unless it is directly in issue in the claim (defamation, child custody, or negligent hiring/entrustment).
When is character evidence admissible in a criminal case?
Generally, the prosecution cannot initiate evidence of bad character of the defendant merely to show that she is more likely to have committed the crime. However, the accused may introduce evidence of opinion or reputation for the trait in question to show her innocence of the alleged crime.The prosecution then may cross-examine the character witness, using specific instances of the D's misconduct. (Prosecution limited to inquiry of the witness, no extrinsic evidence.)
When may a D introduce reputation or opinion evidence of a bd character trait of the alleged crime victim?
Except in rape cases, the D may introduce reputation or opinion evidence of a bad character trait of the alleged crime victim when it is relevant to show the D's innocence. ONce the D has introduced evidence of a bad character trait of the victim, the prosecution my counter with reputation or opinion evidence of 1) the victim's good character or 2) d's bad character for the same trait.
When may a D introduce evidence of character/past behaviour in a rape case?
In a civil or criminal proceeding involving alleged sexual misconduct, evidence offered to prove the sexual behavior or disposition of the victim is generally inadmissible, except to prove someone else is the source of the physical evidence or injury, or to prove consent. ** Ohio specific rule different (?)
When is evidence of a specific act (crime or misconduct) admissible ?
Evidence of a person's other crimes or misconduct is inadmissible if offered solely to establish a criminal disposition or bad character. However, such evidence is admissible if indepedently relevant to some issue other than the D's character or disposition to commit the crime or act charged. Such issues include motive, intent, absence of mistake or accident, identity, or common plan or scheme.

To be admissible: there must bbe sufficient evidence to support a jury finding that the D committed the prior act and its probative vvalue must not be substantially outweighed by the danger of unfair prejudice.
When may prior acts of Sexual assault or child molestation come in (federal rules/ check ohio specific rules)
Evidence of a D's prior acts of sexual assault or child molestation is admissible in a case where the D is accused of committing an act of sexual assault or child molestation. The party intending to offer this evidence must disclose it to the D 15 days before trial.
What is "judicial notice?"

What facts are appropriate for judicial notice?
Judicial notice is the recognition of a fact as true w/out formal presentation of evidence.

2. indisputable facts that are matters of common knowledge in the community or cpable of verification by resort to easily accessible sources of unquestionable facts. "Legislative facts" (those relating to legal reasoning and lawmaking) need not be of common knowledge nor capabble of indisputable verification to be judicially noticed.
What is the procedure for judicial notice?
If a court does not take judicial notice of a fact on its own acord, a party must formally request that notice be taken of the particular fact. Judicial notice may be taken for the first time of appeal. The federal rules provide that judicially noticedfact is conclusive in a civil case but not in a criminal case.
Reread the section on page 15 of the Evidence section in Conviser "Real evidence". Lecturer notes that it is not extremely likely to be tested.
Page 15
How is Document evidence authenticated?
Under evidence law, a document must be authenticated by proof sufficient to support a jury finding that the document is what it is claimed to be. (Remember, a document can be authenticated by admission, eyewitness testimony, handwriting analysis, by evidence that it is an “ancient document,” or by any proof that establishes genuineness. Remember, certain documents are self-authenticating, such as certified public records, newspapers, commercial paper, and official publications.)
What is an ancient document? What is the significance of an ancient document?
A document is an ancient document that may be authenticated by evidence that it:
1) Is at least 20 years old
2) Is in such condition as to be free from suspicion as to authenticity; and
3) it was found in a place where such writing would likely be kept.
What is the reply letter doctine?
A writing may b3e authenticated by evidence that it was written in response to a communication sent to the claimed author.
How are photographs autheticated?
Generally, Photographs are admissible only if identified by a witness as a portrayal of certain facts relevant to the issue and verified by the witness as a correct representaiton of those facts. Ordinarily, it is not necessary to call the photographer to authenticate the photograph;p a witness familiar with the scene is sufficient.
How is an X-ray picture, Electrocardiogram, etc, authenticated?
Unlike photographs, an Xray cannot be authenticated by testimony of a witness that it is a correct representation of the facts. It must be shown that the process used is accurate, the machine was in working order, and the operator was qualified to operate it. Finally, a custodial chain must be established to assure that the X-ray has not been tampered with.
How may a voice be authenticated?
A voice may be authenticated by the opinion of anyone who has heard the voice at any time, including after litigation has begun for the sole purpose of testifying
How may telephone conversations be authenticated?
Statements made during a phone conversation may be authenticated by one of the parties to the call who testifies that : he recognized the other party's voice; the speaker had knowledge of certain facts that only a particular person would have; he called a particular person's number and a voice answered as that person or that person's residence; or he called a business and talked with the person answering the phone about matters relevant to the business.
What documents are self-authenticated?
Extrinsic evidence of authenticity is not required for :1. certified copies of public records 2. official publications 3. newspapers and periodicals 4. trade inscriptions 5. acknowledged documents and 6. certified business records. 7. Commercial paper
What is the Best Evidence Rule?
To prove the terms of a writing (including a recording, photography or Xray), the original writing must be produced if the terms of the writing are material. Secondary evidence of the writing (eg oral testimony) is admissible only if the original is excusedly unavailable (not due to serious misconduct of the proponent. The BER applies when the writing is a legally operative or dispositive instrument, or the knowledge of a witness concerning a fact results from having read it in the document. The original writing itself or any duplicate that is intended by the person executing it to have the same effect as an original (exact copies--photo copies or carbon copies)
To what does the Best Evidence Rule not apply?
1. Fact to be proved exists independently of writing
2. writing is collateral to litigated issue
3. Summaries of voluminous records.
4. Public record.
When is a "duplicate" Admissible under the best evidence rule?
The Federal Rules govern writings, recordings, and photographs, and they are broadly defined. An original is the writing itself or any duplicate that is intended by the person executing it to have the same effect as an original. A duplicate is an exact copy of an original, such as a carbon copy. Duplicates are admissible in federal courts unless the authenticity of the original is challenged or unfairness would result.
When is secondary evidence of a writings contents admissible?
If the proponent cannot produce the original writing in court, he may offer secondary evidence of its contents (handwritten copies, notes, oral testimony) if a satisfactory explanation is given for the nonproduction of the original. Satisfactory explanations include:
1. Loss or destruction of original
2. The original is in possession of a 3rd party outside the jxd and is unobtainable
3. The original is in the possession of an adversary who, after due notice, fails to produce the original.
Who decides whether a writing ever existed or whether a document is accurately presented?
Ordinarily, it is for the court ot make determination of fact regarding admissibility of duplicates, other copies, and oral testimony as to the content of an original. However, the FRE resrve the following questions of preliminary facts for the jury:
1. Whether the original ever existed.
2. Whether a writing, recording, or photgraph produced at trial is an original, and
3. Whether the evidence offered correctly reflects the contents of the original
When is a witness competent?
Generally, witnesses are presumed competent unless the contrary is established. Witnesses must possess the capacity to observe, to recollect, to communicate, and to appreciate the obligation to speak truthfully. Under the FRE, The witness must have personal knowledge of the matter about which he is to testify and the witness must make an oath or affirmation that he will testify truthfully.
What is a "Dead man Act" and when is it applicable?
1. A dead man act provides that a party or person interested in the event is incompetent to testify to a personal transaction or communication w/ a deceased, when such testimony is offered against the representative or successors in interest of the deceased. A person is "interested" if he stands to gain or lose by the judgmnet or the judgment may be used for or against him in a subsequent action. (useful for MBE only. Ohio has special hearsay exception for dead man testimony).
When are leading questions permitted?
Leading questions are generally improper on direct examination. However, they are permitted:
1. On cross examination
2. To elicit preliminary or introductory matters
3. WHen the witness needs aid to respond because of loss of memory, immaturity, or physical or mental weakness; or
4. When the witness is hostile.
What types of questions and answers are improper in examination of a witness?
QUestions that are misleading, compound, argumentative, conclusionary, cumulative, unduly harassing or embarrassing, call for a narrative answer or speculation, or assume facts not in evidence are improper and are not permitted. Answers that lack foundation (the witness has insufficient personal knowledge) and answers that are nonresponsive (not answering question asked) may be stricken.
What is the rule for 'present recollection revived'?
A witness may use any writing or thing for the purpose of refreshing her present recolletion. She usually may not read from the writing while she actually testifies because the writing is not authenticated and not in evidence.
What is the rule for past recollection recorded?
Where a witness states that she has insufficient recollection of an event to enable her to testify fully and accurately, even after she has consulted a writing given to her on the stand, the writing itself may be read into evidence if a proper foundation is laid, including:
1. The witness had personal knowledge of the facts in the writing
2. The writing was made by the witness, under her direction, or was adopted by witness
3. The writing was timely made when the matter was fresh in the witness's mind
4. The writing is accurate.
5. The witness has insufficient recollection to testify fully and accurately.
What may an adverse party do when a witness has used a writing to refresh her memory on the stand?
When a witness has used a writing to refresh her memory on the stand, an adverse party is entitled to have the writing produced at trial, to cross-examine the witness thereon, and to introduce portions relating to the witness's testimony into evidence.
When are lay witness's opinions admissible?
Generally, opinions of lay witnesses are generally not admissible. Opinion testimony by a lay witness is admissible when it is:1. rationally based on the witness's perception 2. helpful to a clear understanding of his testimony or helpful to the determination of a fact in issue, and (iii) not based on scientific, technical or other specialized knowledge.
In what situations is the testimony of a lay witness generally admissible?
Opinions of lay witnesses are admissible wrt:
1. The general appearance or condition of a person
2. The state of emotion of a person
3. Matters involving sense recognition
4. Voice or handwriting identification- may be made by lay witness with personal knowledge of the handwriting of the supposed writer.
5. The speed of a moving object
6. The value of his own services
7. The rational or irrational nature of another's conduct and
8. Intoxication of another.
What are the requirements of an expert opinion?
An expert may state an opinion or conclusion, provided:
1. The subject matter is one where scientific, technical, or other specialized knowledge would assist the trier of fact (relevant and reliable info)
2. The witness is qualified as an expert, possessing special knowledge, skill, experience, training or education.
3.The expert possesses reasonable probability regarding his opinion, and
4. The opinion is supported by a proper factual basis.
May an expert render an opinion as to the ultimate issues in the case?
Under the federal rules, an expert may render an opinion as to the ultimate issue in the case, except as to the mental state of the D in a criminal case where mental state is an element of the crime or defense.
What is the learned treatise rule?
An expert may be cross examined concerning statements contained in any publication established as reliable authoirty either y the testimony of this expert or another expert or by judicial notice. Under the Federal rules, such texts can be used not only to impeach experts, but also as substantive evidence where:
1. An expert is on the stand when an excerpt is read from the treatise And
2. the relevant portions are read into evidence (not received as an exhibit)
What are the restriction to the scope of cross examination?
Cross-examination is generally limited to: (1) the scope of direct examination, inlcuding all reasonable inferences drawn from it, and 2)testing the credibility of witness
What is the rule regarding collateral matters and cross examination?
Generally, the cross examiner is bound by the answers of the witness to questions concerning collateral matters. Thus, the response may not be refuted by extrinsic evidence. However, certain recognized matters of impeachment, such as bias, interest, or conviction may be proved by extrinsic evidence.
what is the rule regarding bolstering the testimony of a witness?
Generally, a party may not bolster or accredit the testimony of her witness until the witness has been impeached.
Who may impeach?
Under the federal rules, any party may impeach a witness, including the party calling him.

** ohio rules different -- only if testimony is a surprise affirmatively harmful to the party calling him.
When may prior inconsistent statements be used to impeach a witness?
A party may show, by cross examination or extrinsic evidence, that the witness has, on another occasion, made statements inconsistent with his present testiony. extrinsic evidence requires proper foundation and relevance.
What is the evidentiary effect of a prior inconsistent statement?
Generally, prior inconsistent statements are hearsay and may only be admitted for impeachment purposes. However, if the statement was made under oath at a prior proceeding, it is admissible nonhearsay and may be admitted as substantive evidence of the facts stated.
What are the ways a witness may be impeached?
Prior inconsistent statements,
bias or interest, conviction of a crime (felony or dishonest crime), specific bad acts, Opinion or reputation for truthfulness, sensory deficiencies. (see chart on page 25 of CONVISER).
How may a witness who has been impeached be rehabilitated?
A witness who has been impeached may be rehabilitated by:
a. explanation on redirect
b. proof of good reputation for the truth (only when witness veracity is attacked)
c. Prior consistent statement - only when a witness has been attacked as having recently acquired motive to lie)
Who may move to strike unresponsive answers?
Only the examining counsel, not the opposing counsel.
When must objections be made?
Objections at trial should be made fter the question, but before the answer, if the question calls for inadmissible matter. Otherwise, a motion to strike must be made as soon as an answer emerges as inadmissible.
What is the evidentiary effect of a prior inconsistent statement?
Generally, prior inconsistent statements are hearsay and may only be admitted for impeachment purposes. However, if the statement was made under oath at a prior proceeding, it is admissible nonhearsay and may be admitted as substantive evidence of the facts stated.
What are the ways a witness may be impeached?
Prior inconsistent statements,
bias or interest, conviction of a crime (felony or dishonest crime), specific Bad Acts, Opinion or reputation for truthfulness, sensory deficiencies. (see chart on page 25 of CONVISER).
How may a witness who has been impeached be rehabilitated?
A witness who has been impeached may be rehabilitated by:
a. explanation on redirect
b. proof of good reputation for the truth (only when witness veracity is attacked)
c. Prior consistent statement - only when a witness has been attacked as having recently acquired motive to lie)
Who may move to strike unresponsive answers?
Only the examining counsel, not the opposing counsel.
When must objections be made?
Objections at trial should be made fter the question, but before the answer, if the question calls for inadmissible matter. Otherwise, a motion to strike must be made as soon as an answer emerges as inadmissible.
what is the attny-client privilege?
To be protected under the Attny client privilege, the client must be seeking the professional services of the attorney at the time of the communication. The communication must be confidential, but representative of the attorney or client may be present w/out detroying the privilege. Communications made in the known presence and hearing of a stranger are not privileged. Only the client may waive.
When does the attorney client privilege not apply?
1. if the attorney's services were sought to aid in the planning or commission of something the client should have known was a crime or fraud
2. Regarding a communication relevant to an issue between parties claiming through the same deceased client, and
3. For a communication relevant to an issue of breach of duty in a dispute between the attorney and client.
When does a physician patient privilege apply?
Communications between a physician and patient are priveleged where:
1. A professional relationship exists
2. The information is acquired while attending the patient in the course of treatment
3. The information is necessary for treatment.
What are the 2 spousal privileges?
1. Spousal immunity - a spouse may not be compelled to testify against spouse in a criminal case. (lasts during marriage)
2. IN any case, confidential communications between a husband and wife during a valid marriage are privileged.

** Neither applies in a child or spousal abuse case.
Who may a judge not exclude from a courtroom?
Upon a party's request, the trial judge will order witnesses excluded from the courtroom. The judge may also do this on his own motion. The judge, however, may not exclude 1. party or designated officer/ employee of a party 2. a person whose presence is essential to the presnetation of a party's case OR 3. a person statutorily authorized to be present.
What is hearsay?
Hearsay is an out of court statement offered in evidence to prove the truth of the matter asserted.
What is the rule for "hearsay w/in hearsay"?
An out of court statement that incorporates other hearsay (hearsay on hearsay) is admissible only if each part falls within an exception of the rule. (All statements must be admissible to be admitted).
What out of court statements are by definition not hearsay?
1. Verbal acts or legally operative facts (K words, def.
2. Statements offered to show effect on the hearer/reader (prove notice in a negligence case)
3. Statements offered as circumstantial evidence of declarant's state of mind (evidence of instanity or knowledge).
What statements are nonhearsay under the federal rules, despite falling under the common-law definition of hearsay?
1. prior statements by witness
a. inconsistent/under oath
b. consistent/offered in rebuttal of charge lying due to new motive to lie
c. statement of identification
2. Admissions by party opponent
When is a declarant "unavailable"?
Declarant unavailable if:
1. exempt from testifying because of privilege
2. Refuses to testify concerning the statement despite a court order
3. testifies to lack of memory of the subject matter of the statement
4. Is unable to testify due to death or illness.
5. is absent (beyond the reach of the court's subpoena) and the proponent is unable to procure his attendance by reasonable means.
When is a dying declaration admissible?
In a homicide prosecution or a civil action, a statement made by a now unavailable declarant is admissible if:
1. The declarant believed his death was imminent (death not required)
2. The statement concerned the cause or circumstances of what he believed to be his impending death.
When is an out of court statement against interest admissible?
The statement of a person, now unavailable as a witness, against that person's pecuniary, proprietary, or penal interest when made, is admissible as a hearsay exception, if that party had personal knowledge of the facts and the party was aware the statement was against her interest when she made it.
When is an out of court statement offered against a party procuring declarant's unavailability admissible?
The statement of a person (now unavailable) is admissible when offered against a party who has engaged or acquiesced in wrongdoing that intentionally procured the declarants unavailability.
When may reproductions be entered as "real evidence" in a case?

What role does 'explanatory real evidence' have in a case?
WHen properly authenticated, relevant photographs, movies, diagrams, maps, sketches, or other reporductions are admissible if their value is not outweighed by the danger of unfair prejudice.

On the other hand, items used entirely for explanatory purposes are permitted at trial, but are usually not admitted into evidence and are not given to the jury during its deliberations.
How may a writign be authenticated by "admission"?
A writing may be authenticated by evidence that the party against whom the writing is offered has either admitted its authenticity or acted upon the writing as authentic.
Under the Best Evidence Rule, what are specific examples of an original document being "excusedly unavailable?"
A valid excuse justifying the admissibility of secondary evidence includes: 1. Loss or destruction of the original. 2. Original outside Jxd and unobtainable 3. Original in possession of adversary who, after notice, fails to produce.
What is the Parol Evidence Rule?
If an agreement is reduced to writing, that writing is the agreemetn and hence constitutes the only evidence of it. All prior or contemporaneous negotiations or agreements are merged into the written agreement. Parol (extrinsic) evidence is not admissible to add to, detract from,or alter the agreement as written.
When does the Parol Evidence Rule not apply?
1. Completion of incomplete or ambiguous K -- parol evidence not contradicting an incomplete K is admissible.
2. Reformation of K
3. Challenge to Validity of K.
What is the residual "catch all" exception to the hearsay rule?
A statement not otherwise falling into a hearsay exception category may be admissible if: the statement has circumstantial guarantees of trustworthiness equivalent to those of statements admitted under the hearsay exceptions. The statement must be offered on a material fact, and must be more probative as to that fact than any other evidence which the proponent can reasonably produce so that the "interests of justice" will e served by its admission.FInally, the proponent must give notice in advance of trial to the adverse party as to the nature of the statement, including name and address of the declarant.