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35 Cards in this Set
- Front
- Back
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Test For Relevance |
>any evidence that tends to make a material fact of consequence more or less probable than it would be without the evidence
>all relevant evidence is admissible |
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Excluding Relevant Evidence |
>relevant evidence may be excluded if its probative value is substantially outweighed by the danger of: * unfair prejudice *confusing the evidence *misleading the jury *undue delay *wasting time *or needlsy presenting culmulative evidence |
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Character Trait Evidence |
> Generally, evidence of a person's character trait is not admissible to show that the person acted in conformity with that trait on a particular occassion |
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Character Trait Evidence Exception- Criminal Case |
> Defendant in a criminal case may offer evidence of the defendant’s pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it
>Defendant in criminal case may offer evidence of a victim's pertinent trait, and if the evidence is admitted , the prosecutor may offer evidence to rebut it or evidence of the defendant's pertinent trait.
>in homicide case, the prosecutor may offer evidence of the alleged victim’s trait of peacefulness to rebut evidence that the victim was the first aggressor. |
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Prior Bad Acts |
> Cannot be admitted to show propensity
> Exception : proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. |
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Character Trait of Victim of Sex Offense |
> Generally Not Admissible: *evidence offered to show that the victim engaged in sexual intercourse
*evidence offered to prove victim's sexual predispositon |
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Character Trait of Victim of Sex Offense - Exception |
>In Criminal Case, defendant may offer evidence of a victim's sexual behavior: *to show that someone else is the source of semen, injury, or other physical injury * to show consent *evidence whose exclusion would violate the defendant’s constitutional rights.
>In a civil case, the court may admit evidence offered to prove a victim’s sexual behavior or sexual predisposition if its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. |
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Methods of Proving Character |
> when character evidence is admissible, it may be proved by reputation or opinion
>On cross-examination of a character witness, the court may allow an inquiry into relevant specific instances of the person’s conduct.
>When a person’s character or character trait is an essential element of a charge, claim, or defense, the character or trait may also be proved by relevant specific instances of the person’s conduct. |
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A Witness’s Character for Truthfulness or Untruthfulness |
>may be proved by reputation or opinion
>But the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of the witness or another she is testifying about
>extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness. (OKAY FOR BIAS must lay foundation ) |
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Impeachment by Felony Conviciton |
> must offer evidence of a felony conviction in a criminal or civil case, subject to Rule 403 if the witness is not the defendant
> must offer evidence of a previous felony commited by defendant if the probative value of the evidence outweighs its prejudicial effect to that defendant.
>can prove conviciton - by testimony or extrinsic evidence of the record of conviciton
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Impeachmement by Conviction Showing Dishonesty |
>must offer evidence of any crime regardless of penalty, if the court can readily determine that establishing the elements of the crime required proving — or the witness’s admitting — a dishonest act or false statement. |
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Limit on Using the Evidence about conviciton After 10 Years After Release or Conviciton |
>its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect; and
>notice of intent to use such evidence |
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Admissibilty of Juvenile Adjudications |
Evidence of a juvenile adjudication is admissible under this rule only if:
> it is offered in a criminal case; > the adjudication was of a witness other than the defendant; > an adult’s conviction for that offense would be admissible to attack the adult’s credibility; and > admitting the evidence is necessary to fairly determine guilt or innocence. |
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Hearsay |
>an out of court statement made for truth of the matter asserted.
>the statement may be written, verbal, nonverbal assertive conduct |
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Non Hearsay-Prior Statements |
>a declarant testifies and is available for cross examination *prior inconsistent statement under oath(when using extrinsic evidence only admissible when the witness given opportunity to explain or deny it EXCEPT OPPOSING PARTY STATEMENT AND HEARSAY DECLARANT) *prior consistent statement to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive * identify someone previously precieved |
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Non Hearsay- Opposing Party's Statment |
>was made by the party in an individual or representative capacity;
> is one the party manifested that it adopted or believed to be true;
>was made by a person whom the party authorized to make a statement on the subject;
> was made by the party’s agent or employee on a matter within the scope of that relationship and while it existed; or
> was made by the party’s coconspirator during and in furtherance of the conspiracy. |
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Non Hearsay-Statments not made for the truth of the matter asserted |
> to show effect on listener > circumstantial evidence of declarant's state of mind |
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Present Sense Impression |
>A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it |
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Excited Utterance |
>statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused. |
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Declarant then Existening state of mind |
>A statement of the declarant’s then-existing state of mind or emotional, sensory, or physical condition (not the cause) to show declarant acted in conformity
> but not including a statement of memory unless it relates to the validity or terms of the declarant’s will. |
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Medical Diagnosis |
>is made for — and is reasonably pertinent to — medical diagnosis or treatment; and
>describes medical history; past or present symptoms or sensations; their inception or cause
>ambulence driver/ medical personnel/family memeber |
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Past Recollection Recorded |
> is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately;
> was made or adopted by the witness when the matter was fresh in the witness’s memory; and
> accurately reflects the witness’s knowledge. If admitted, the record may be read into evidence but may be received as an exhibit only if offered by an adverse party |
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Business Record |
> the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit; > making the record was a regular practice of that activity;
>the record was made at or near the time by someone had knowledge of the activity
>all these conditions are shown by the testimony of the custodian or another qualified witness
>may admit evidence that no such records exists to show that an event did not occur or that records were kept for a matter of that kind
>admission needs notice
> cannot show fault or cause |
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Public Records |
> activities of an agency >an observation made by a person under a duty to report the observation (no law enforcement officer in a criminal case) > factual findings of a legal investigation when offered in a civil case or in criminal case against the government. |
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Hearsay Exception Unavailable Witness |
> privilege > dead/physical illness >refuse to testify >has no memoryof testimony subject matter >is absent and cannot be subpoenaed |
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Former Testimony |
>witness testified at prior proceeding and the opponent of the testimony had opportunity to cross examine the witness and similar motive to develop testimony |
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Dying Declaration |
> used in homocide and civil cases, >declarant thought death was imminent >statement related to the circumstances of declarant's death
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Statement Against Interest |
>a reasonable person in the declarant’s position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant’s proprietary or pecuniary interest
>or had so great a tendency to invalidate the declarant’s claim against someone else or to expose the declarant to civil or criminal liability
>in criminal case- there should be corroborating circumstances that clearly indicate its trustworthiness. |
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Statement of Personal or Family History |
>the declarant’s own (or another closely related person) birth, adoption, legitimacy, ancestry, marriage, divorce, relationship by blood, adoption, or marriage, or similar facts of personal or family history, even though the declarant had no way of acquiring personal knowledge about that fact |
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What Must an attorney do to perserve an objection? |
>make an objection or an offer of proof (relevance and admissible )
>exception: plain error rule- where the error is so obvious and effects a substantial right of the party |
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Judicial Notice |
>accept a fact as true without formal proof >ajudicative facts >Fact must be accurate and readily determinable |
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Spousal Immunity |
>held by the witnessing spouse
>The spouse of a crimnal defendant may not be compelled to testify against the other spouse
>The spouse cannot be compelled to testify in any criminal proceeding against spouse
>covers communications before and during marrige. Coverage does not extend beyond the end of marriage.
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Confidential Marital Communications |
> The spouse cannot be compelled to testify about a communication made during marriage in any criminal or civil proceeding
> covers communications made during the marriage and protection extends beyond the end of marriage
>held by both spouse |
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Attorney Client Privilege |
> confidential communication > for the purposes of legal advice or services
>no privilege when Communications enable or aid what client knew or should have known |
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Public Policy Exculsion |
> Offer to Pay Medical Expenses- statement with payment is admissible
>Compromise Negotiations- statements made during compromise over the validity or amount in dispute to prove bias, prejudice, negate claim of undue delay , or prove obstruction of a criminal investigation are admissible
> conduct or statements made during compromise with govt agents can be used in subsequent criminal case
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