Evidence

Front 1

when can a witness' bad character for veracity be used?

Back 1

to impeach, not substantive evidence. rep or opinion by extrinsic (documents or other witnesses) or intrinsic evidence. NOT SPECIFIC ACTS.

Front 2

convictions of what kind of crimes are admissible?

Back 2

crimes of dishonesty, false statement (lie or betrayal of trust), but not crimes of violence, drug crimes, theft or misdemanors
IF within ten years
felonies are allowed regarding veracity IF prob>prej

Front 3

convictions of what kind of crimes are inadmissible?

Back 3

crimes of violence, drug crimes, theft, misdeamanors, felonies re: veracity if prob>prej

Front 4

when do you consider probative and prejudical values?

Back 4

when protecting D. can bring anything in to impeach WITNESS.

Front 5

when will WITNESS' bad character evidence be admissible?

Back 5

re: veracity, can be used to impeach, by cross examination or documents/other witnesses by reputation or opinion
*not specific acts, not as substantive evidence!

Front 6

when must you give W opportunity to explain?

Back 6

prior inconsistent statement, anytime during proceeding.
note: do NOT ave to give opp to explain conviction.

Front 7

when and for what purpose are convictions admissible?

Back 7

1) propensity to commit sexual assault (subst),
2) MIMIC (not offered for propensity, directly relevant)
3) impeaching WITNESS' character for veracity (crimes of deceit, serious felonies (balancing test))
4)impeach characters knowledge (cross-X questions only, to impeach NOT propensity)

Front 8

when are WITNESS' prior bad acts(without convictions) admissible?

Back 8

when reflects adversely on WITNESS' veracity, if 1) good faith that it occured, 2) intrinsic STUCK WITH ANSWER
note: extrinsic may be used for another purpose (bias, MIMIC)

Front 9

when are arrests admissible to impeach?

Back 9

INADMISSIBLE for W's character for veracity
ADMISSIBLE for W's knowledge of D (by intrinsic)
ADMISSIBLE for bias biased against law enforcementor W incentive to curry favor - look for pending charges)

Front 10

can a WITNESS be impeached for a contradictory statement?

Back 10

WITNESS cannot be impeached by MISTAKE or LIE on direct examination.
If significant to case, can be proven by extrinsic evidence.
If collateral, instrsic only; STUCK WITH ANSWER

Front 11

when is the prosecution stuck with Witness' answer?

Back 11

1) prior bad acts (reflect badly on W's veracity)
2) witness' contradictory statmenet, if collateral (if significant, can use extrinsic)

Front 12

When can you rehabiliate your witness?

Back 12

only after credibility has been attacked through impeachment. (cannot bolster beforehand, except for prior statement of identification)

Front 13

When can you rehabilitate witness before witness' character is attacked("bolster")?

Back 13

For a prior stmt of identification, even if not previously attacked (Hearsay Exception), but must be trial witness subject to cross-examination.

Front 14

How to do rehabilitate a witness?

Back 14

1) good character for truthfulness (if veracity attacked) by reputation or opinion;
2) prior consistent stmt if consistent with W's trial testimony, opposing party suggested through impeacgment W has motive to lie (bias), AND made befoe motive arose.
if three prongs met, can be used as SUBSTANTIVE EVIDENCE.

Front 15

when does a witness need personal knowledge?

Back 15

authenticating a document (then BER doesnt apply), demonstrative evidence of a photograph, laying a foundation for real evidence (along w chain of custody), showing competency to testify, past recollection recorded, lay witness opinion testimony, statement against interest (pecuniary, against decl's interest when made), recorded recollection and business records exception.
note: JURY decides whether W has personal knowledge.

Front 16

when doesn't a witness need personal knowledge?

Back 16

party admissions, when testifying about facts she learned from reading.

Front 17

when can prior inconsistent statements can be used as substantive evidence?

Back 17

if under oath and part of form proceeding, trial, deposition or grand jury.
affadavit is not enough.
always admissible to impeach.
must give opportunity to explain/deny.

Front 18

Limitations on impeachment for bias?

Back 18

can use for impeach or substanative to show rltp witness can lie, extrinisic and intrinsic - but CONFRONT first.

Front 19

When do you have to confront witness first? when do you have to give an oportunity to explain or deny?

Back 19

confront for BIAS (not for sensory, nor present sense impression for criminal cases)
opp to explain or deny prior inconsistent stmt not convictions.

Front 20

when can an expert NOT address the ultimate issue of case?

Back 20

in criminal cases (FRE), that D did/did not have required mental state.

Front 21

what can you read as evidence but not admit as evidence?

Back 21

present recollection refreshed and past recolection recorded, and learned treatise in aid (subsnative, HS exception), but not exhibit.
Note for PRR(s), opposing party can inspect and admit into evidence.

Front 22

In federal diversity claims, what law is applied?

Back 22

FRE for evidence, but
State law for BOPs, dead man statutes, privileges.

Front 23

What privileges are recognized in FRE? in NY?

Back 23

FRE: att/cl, husband wife, priest penitent, psychothreapist patient
NY: dr patient, social worker client, reporter source

Front 24

what are the two spousal privileges?

Back 24

communications - to encourage candor, lasts after marriage, waived by both
immunity for criminal cases, prosecution cannot compel spouse to testify, if currently married, waived by W-spouse
EXCEPT in furtherance of fraud or crime, or destructive of family unit (abuse)

Front 25

what are the four non-hearsay purposes?

Back 25

impeach, verbal acts, show effect non hearer/reader, speaker's state of mind.
1) impeachment (purpose not to prove truth of statement),
2) verbal acts (legally operative words, K terms, gift or bribe, act of prejury or crimianl misrepresentation or defamation),
3) show effect on person who heard/read statement (notice, motive, form reasonable belief),
4) circumstantial evidence of speaker's state of mind (unintentionally reveals state, insanity, lies that show consciousness of guilt, questions demonstrate lack of knowledge)

Front 26

when are prior statements of trial WITNESS admissible? (careful: must be out of court)

Back 26

inadmissible - even witnes may say it differently in court - except:
1) prior stmt of ID,
2) prior stmt made under oath and during formal proceeding,
3) prior statement used to rebut motive to lie, if made before motive to lie arose.

Front 27

when is a vicarious admission admissible?

Back 27

1) by agent/EE of party admissible against party if within scope of employment and made during employment.
2) by co-conpirator if stmt made during and in furtherance of conspiracy *not talking to known cop*

Front 28

which hearsay exceptions require unavailability?

Back 28

former testimony, dying declaration, statement against interest (need personal K), statement of personal/family history

Front 29

What makes someone "unavailable" to testify?

Back 29

privilege, refusal to testify, ill or dead, memory loss, absense of jurisidiction

Front 30

prior statement v. former testimony

Back 30

prior statement - decl must be at court, and doesn't need opp/motive to testify;
former testimony - made in proceeding/depo and offered against party who had opp/motive to cross-x (similiar proceeding, same motive to cross-x)

Front 31

which kinds of cases may dying declaration be used?

Back 31

cause of circumstances of death for civil or criminal homicide

Front 32

which cases can statement against interest be used as HR exception?

Back 32

civil or criminal, but in criminal, when offered to exculpate, must be supported by corroborating evidence
***corroborate and be unavailable!! 5A counts.

Front 33

statement against interest v. party admission

Back 33

SAI = can be made by anyone, and used against anyone, declarant must be unavailable, and must have personal knowledge, and statement against interest when made.
admission = said by party, used agianst him, personal K not required

Front 34

what is the burden of proof for different cases?

Back 34

civil - prepondernce
criminal - BRD
up to jury, each element

Front 35

what does the jury decide? judge?

Back 35

jury = conditional relevance: whether W has personal K, whether exhibit is authentic, whether d is in fact person who committed prior bad act as MIMIC
judge = whether testimony is HS, communication privileged, expert qualified, burden is preponderence (any evidence)

Front 36

presumptions v. inferences

Back 36

judge may instruct jury as to inferences, not presumptions

Front 37

when is character evidence admisisble in criminal cases?

Back 37

1) when D introduces GOOD evidence (prosecution can rebut for SAME trait if relevant): rep/op
2) V's chaarcter in self D to prove first aggressor (R/O) or reasonable belief in need for self-defense (ANY FORM),
3) V's character in sexual misconduct, to show consent (iff with D), source of semen.

Front 38

when is character evidence admissible in civil cases?

Back 38

only if an essential element of claim or defense (ANY FORM): for negligent hiring or entrustment, defamation
note: careful, wrongful death is civil, negligent car facts may be negligent hiring,

Front 39

when is character evidence always admissible?

Back 39

1) habit
2) for non-character purposes, something specific about charged crime: MIMIC: motive/ intent/ mistake of accident (or absence of mistake)/ identity common scheme or plan
3) for propensity for sexual assault (assault or molestation)

Front 40

how can MIMIC be proved?

Back 40

character evidence (crimes or bad acts), conviction, evidence that tend sto prove prior (bad) act occured.
note: once MIMIc established, P can open door himself!
bop = reas jury can conclude by propendernce of act (court discretion, upon notice, P must give notice)

Front 41

when can similiar occurrences be admissible?

Back 41

habit,
p's accident history if fraudulent scheme or plan, or causation (damage to leg)
same event or condition (same instrument/condition, substl similiar circumstances) if to show existence of condition, causation or notice. (same test for experiments and tests)
intent in issue (like mimic) but only for civil cases
comparable sales on issue of value (price),
industrial custom as std of care (others in trade would've acted)

Front 42

what is dead man's statute?

Back 42

civil action, interested party may not testify against decendent about communications with dead party (FRE has no DMS)