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194 Cards in this Set

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What is relevant evidence?
(401)
logically probative value towards some fact of legal consequence to the case
Who has the burden of proof of showing relevancy?
the proponent of the evidence
What is the standard of review for judicial discretion of relevancy?
abuse of discretion, or that reasonable people could find contrary to the Court's findings
What is the presumption about admissibility of relevant evidence?
all relevant evidence is admissible unless provided otherwise by law
How is evidence excluded under 403?
if the probative value is SUBSTANTIALLY OUTWEIGHED by unfair prejudice, confusion of issues, misleading the jury, or considerations of waste of time, undue delay, or cumulative evidence
Who has the burden of proof of showing the evidence should be excluded under 403?
the opponent of the evidence
What are the 3 exceptions of admitting evidence of character to prove conduct?
1) accused offers evidence of good character; the prosecution may rebut with character evidence
2) accused offers evidence of victim's bad character; prosecution rebuts with evidence of victim's good character and accused's bad character
3) evidence of witness truthfulness or untruthfulness
Under 404(b), when is evidence of other crimes, wrongs or acts admissible?
to prove something other than character, but the evidence must be relevant and must not substantially outweigh its probative value
What are examples that other crimes, wrongs, or acts may be admitted to prove?
identity, proof of state of mind, motive
A kills X, a gay man. A later kills Y and Z, also gay men. All men are killed in same manner, but at different times and in different places. At the trial for X, may the other two crimes be admitted to show A's intent, though the crimes occurred subsequently?
Yes, as long as the crimes were substantially similar, they may be admitted under 404(b) to show intent.
When are specific instances of conduct admissible under 405?
Where the trait is an essential element of the charge or defense
What are limitations on using specific instances of conduct during cross-examination of a witness?
- the incidents must be relevant to the character trait at issue
- the prosecution must have a good faith belief that the incidents occurred and that the community has general knowledge of the accused's reputation or events
relevance

good faith belief
What methods may be used to prove character under 405?
- reputation or opinion
- specific instances of conduct where character or trait of character is an essential element of the charge, claim or defense
What evidence is admissible for rebuttal where the accused offers only evidence of reputation or opinion?
Rebuttal is limited to reputation or opinion testimony
What does the rape shield do?
makes all evidence of prior sexual acts or reputation or opinion testimony about sexual disposition inadmissible in all cases of alleged sexual misconduct
sexual disposition

what cases?
What are exceptions to the rape shield in a criminal case?
- specific instances of conduct that someone other than accused is source of injury
- specific instances by accused to prove consent
- exclusion would violate constitutional rights
What are exceptions to the rape shield in a civil case?
- otherwise admissible and probative value substantially outweighs danger of harm to victim or unfair prejudice to any party
What is habit (to prove conformity of conduct)?
one's regular response to repeated specific situation; regular practice of meeting particular situation with specific conduct; semi-automatic behavior
regular
How can habit be proved for admission to show conformity of conduct?
through opinion or specific instances of conduct by showing a pattern of behavior
Are subsequent remedial measures admissible?
No, for public policy concerns of making conditions safe for society
What are subsequent remedial measures?
measures taken after an event, that if taken previously, would have made the event less likely to occur
What evidence is inadmissible under 408?
evidence of statements compromise to prove liability, or validity of claim, or amount of damages
Compromise
What is a statement for hearsay under 801?
an oral or written assertion, OR nonverbal conduct, if intended to be assertion
What is hearsay?
an out-of-court statement from a secondary source repeated and offered to prove the truth of the matter asserted in that statement
A is walking in a grocery store aisle. B is standing on end of the aisle. X yells out, "Watch out for the ketchup!" A continues walking, slips on the ketchup, and sues for negligence. May B testify about X yelling to A and the statements X yelled?
B may testify that he heard X yell a warning. If B testified about what X actually yelled, "Watch out for the ketchup!", it would be hearsay.
What presumption is made about hearsay under 802?
Hearsay is presumptively unreliable, with exceptions
What are the 3 requirements for evidence?
1) materiality
2) relevancy
3) competence
Distinguish Hearsay EXEMPTIONS and Hearsay EXCEPTIONS
an EXEMPTION is not hearsay and found in 801

an EXCEPTION is hearsay, but permitted in trial for specific reasons
What is the purpose of the Hearsay rule?
to ensure the reliability of the witness because hearsay is presumptively unreliable
What is a verbal act?
statement the making of which has substantive legal significance
What are examples of verbal acts?
- offer, acceptance, or terms of contract
- certificate of insurance
- conveyance
What are examples of statements to show effect on one who heard or read the statement?
- words that establish notice
- words offered to show motive
What is an implied assertion?
an assertion that is admissible if offered to prove a matter implied
X sells grain and has a silo of 10,000 bushels of grain. A buys 5,000 bushels, B buys 3,000 bushels, and C buys 2,000 bushels. C refuses to pay on claims that it is not the right grain. May X testify that he gave the right grain by saying that A and B paid without complaint?
Yes, A and B conduct is implied admissions offered as circumstantial evidence that it is the right grain.
What are the EXEMPTIONS to the Hearsay Rule?
1) Prior Statements by Witness
2) Admissions by Party Opponent
What are the three exempted prior statements by witnesses under Hearsay Rule?
- inconsistent statement
- consistent statement
- identification of accused on previous occasion
What is required to admit inconsistent statements by witnesses?
- statement must be given under oath in judicial proceeding,
- under a standard of reasonable person would assume is inconsistent, and
- the witness must be subject to cross-examination

(if not qualified, statement may not be used substantively, but only to impeach)
oath

reasonably inconsistent

cross-examination
What is required to introduce Consistent Statements?
- offered to rebut express or implied charge against recent fabrication or improper motive, AND
- the witness must be subject to cross-examination
rebuttal...

subject to...
What are the 5 types of Admissions by Party Opponent?
1) party's own statement as individual or representative
2) adoptive admissions
3) authorized admissions and agent/servant admissions
4) agent or servant admissions
5) statement by co-conspirator
What is an express adoptive admission?
adoptive behavior or statements that indicate a belief in truth of the statement
What is an implied adoptive admission?
conduct that indicates a belief in truth, including acquiescence or silence based on surrounding circumstances
Distinguish the 2 types of EXCEPTIONS under the Hearsay Rule.
Availability of Declarant Immaterial are not excluded though declarant IS available to testify.
Declarant Unavailable are not excluded, although the declarant is not available to testify for specific reasons.
What is Present Sense Impression?
a statement describing or explaining event or condition made by declarant while or immediately after perceiving event or condition
Mr. Morgan wears a blue shirt to class with X. X says, "Mr. Morgan is wearing a blue shirt." Is this statement admissible two years later in court?
Yes under the present sense impression exception to hearsay, because it was made while observing the shirt on Mr. Morgan.
What is an excited utterance?
a statement relating to a startling event or condition made while declarant was under stress of excitement caused by the event or condition
C is working alone at worksite. Dozer slides and rolls over. Later, W sees C stagger up driveway in a daze. C tells W that he hit his head on roll bar of dozer. C dies two weeks later from brain injury. May C's statements be used in trial?
Yes, under the excited utterance exception, because C had first-hand knowledge of event of dozer sliding at the worksite.
What factors are used by the Court for determining whether a declarant was excited or distraught?
- surrounding circumstances, including appearance, behavior, and condition
- age, lapse of time, and characteristics of the event
What is a Then existing Mental, Emotional, or Physical Condition?
a declarant's then existing state of mind, emotion, sensation, physical condition, but not including memory or belief to prove a fact remembered or believed
What are statements of present state of mind or emotion used to prove?
- state of mind or emotion of declarant where such state of mind or emotion is element of crime or cause of action
- subsequent conduct of declarant
What is the Hillmon doctrine?
evidence is admissible if bears on state of mind of declarant to be used inferentially to prove other matters, specifically joint conduct
A wills all assets to Law School. The will is executed an hour before class. A enters class, sings "I am Henry VIII I am" and dies. May the students testify to A's mental capacity?
***
B tells C he will meet A in the parking lot. Are B's statements admissible?
Yes, these statements of intent lead to inference that B met A in the parking lot. If B said, "A told me he would meet me," this would be hearsay.
A and B meet for lunch. A says to B, "H will kill me." The next day, A is found dead outside her house. May B testify to A's statement made at lunch?
No. A's belief that H will kill her cannot be used to show that H killed A. The conduct of declarant, A, is not at issue.
What are statements made for purpose of medical diagnosis or treatment?
statements made for the purpose of diagnosis or treatment and describing medical history, past or present symptoms, pain or sensations, or inception or general character of cause or external sources as reasonably pertinent to diagnosis or treatment
What is the assumption behind admitting statements for purposes of medical diagnosis or treatment?
the statements are generally reliable because patients do not lie to doctors, and doctors only consider information that is reliable
D is a doctor. P visits D at his office. P states he is having severe headaches. P states he was in a head-on collision and the other driver was on the wrong side of the road. Are P's statements admissible under the medical diagnosis exception?
All the statements are admissible but the final statement about the other driver. This final statement relates to fault and is not ordinarily or reasonably pertinent to a diagnosis.
What is the exception for recorded recollection?
a memorandum or record concerning a matter the witness had knowledge of, but now has insufficient recollection to testify fully and accurately, and the document is shown as made or adopted by the witness when the matter was fresh in memory and correctly reflects knowledge of the witness
knowledge but no memory...

made or adopted by witness when...

reflects...
Who is the witness under the Recorded Recollection exception?
the document of recorded recollection is the witness, but must be read into evidence if admitted, not received as an exhibit
Z and X work for hardware store. Z is unloading inventory while X writes down the inventory being unloaded. The store burns down and O seeks to recover for loss. May the inventory list be admitted under the Recorded Recollection exception?
Yes, if Z accurately shouted the inventory and X accurately recorded the information but could not remember the contents of the inventory.
Teacher C sexually assaults X and Y. The superintendent has X and Y record the assault, seals the records and places the records in a safe. Are the records admissible at C's trial if X and Y do not recall the events?
Yes, the documents are recorded recollections.
What is the hearsay exception of Records of Regularly Conducted Activity?
memorandum, report, record, data compilation of facts, events, conditions, opinions, or diagnoses made at or near the time from information transmitted by a person with knowledge if such information is kept in the course of regularly conducted business activity and creation of such document is regular practice of that business
time made?

who makes the record?

creation must be what?
Under the Records of Regularly Conducted Activity, do inaccuracies in the document, ambiguities, omissions, or preparation for litigation or similar motives affect admissibility?
No, such things affect the weight of the document, not the admissibility because they reflect a potential lack of reliability.
P says to D, "I was in an accident and the other guy was driving on the wrong side of the road." This statement is recorded for treatment of P. May a medical librarian testify about the medical records of P?
Yes, but the statement of fault was not pertinent to treatment of P, so is not admissible.
What is the Public Records and Reports exception to hearsay?
records, reports, statements, data compilations of public offices or agencies setting forth activities of office or agency OR matters observed pursuant to duty to report by law OR factual findings from investigation pursuant to authority by law
Why are there specific limitations to the Publice Records and Reports exception for criminal conduct records?
the adversarial nature of the job and preparation of the document reduces reliability
What is the Hearsay exception regarding Learned Treatises?
statements made in published treatises, periodicals, or pamphlets, established as reliable authority by testimony or admission of witness or other expert testimony or judicial notice
What are acceptable reasons for unavailability for hearsay exceptions?
- privilege
- refusal to testify
- lack of memory
- death, illness, or infirmity

absence must be against process or other reasonable means to achieve availability, as determined by good faith efforts
What is the exception for Former Testimony?
testimony given as witness at another hearing of same or different judicial proceeding, if party against offered or predecessor in interest had opportunity to develop testimony by direct or cross-examination
How are learned treatises offered into evidence if admitted under the hearsay exception?
the treatist must be read into evidence when the corresponding witness is on the stand
A is passenger and B is driver of bus. Bus collides with car of C. A is injured in the collision. A sues B for negligence. During trial, B uses W as witness. B wins lawsuit. X also sues B on theory of claim identical to A but for different injuries. May B use collateral estoppel on X?
No, because X would lose right to due process and is a predecessor in interest under the Hearsay Exception for Former Testimony.
What is the presumption of statements made under the belief of impending death?
the statement is considered trustworthy because of the impending death
A and B are in a store. C holds up the store. B yells, "No!" and is shot and killed. A is shot in the head. A says to P, "I think I'm dying" and then describes the killer. A does not die, but has no memory of the incident. Can P testify to what A said?
Yes, because the statement is a dying declaration, though A did not die, and concerns the cause of A's death
What is a statement against interest?
a statement at the time so far contrary to declarant's pecuniary/proprietary interest or subject declarant to civil/criminal liability or render claim invalid that reasonable person would not make the statement unless believed true. (The statements exposing to criminal liability and offered to exculpate accused are not admissible unless corroborating circumstances indicate trustworthy.)
If a statement against interest includes non-self-inculpatory statements, are those statements admissible?
No, only self-inculpatory statements are admissible. The statements must be parsed to admit all reliable evidence.
Distinguish the interpretations of INCULPATORY and EXCULPATORY statements.
INCULPATORY statements have a narrow interpretation. EXCULPATORY statements have a liberal interpretation.
Distinguish Statement Against Interest and Admissions By Party-Opponent.
Statement Against Interest
-Not have to be a party; requires first-hand knowledge; declarant is unavailable; statement is against interest; motive

Admissions
- Not have to be party; no required first-hand knowledge; declarant may be available; not required to be against interest; no motive
What legal principle is Forfeiture by Wrongdoing based on?
this exception is based on estoppel, that the defendant cannot benefit from wrongdoing
What is Forfeiture by Wrongdoing?
statement offered against party engaged or acquiesced in wrongdoing that was intended to and procured unavailability of witness
What would make double hearsay admissible?
if an exception applies to each level of hearsay
What is the Residual Exception to hearsay?
- statement not covered by other exceptions but having similar trustworthiness

- statement offered as evidence of material fact
-statement more probative than other evidence
- general purpose of rules served by admission
Is testimonial hearsay admissible?
No, the defendant has a right to confront the witness and admitting such evidence is a violation of the 6th Amendment
What is a testimonial statement?
statement made when circumstances indicate there is no emergency and the primary purpose in providing the statements was to prove past events for the prosecution
What is a non-testimonial statement?
statement made in circumstances objectively indicating the primary purpose in providing statement was to meet ongoing emergency
What should occur if both testimonial and non-testimonial statements are present in evidence?
the testimonial statements should be redacted to admit reliable evidence
What constitutes an proper objection or motion to strike?
a timely objection or motion to strike appearing in record, and states specific grounds of objection if not apparent from the context
When should an objection be made?
as soon as ground is known or reasonably should be known

- when evidence offered
- precede witness answer
When are objections and motions to strike timely if made after witness answers?
objections are timely after a witness answers if

- witness gives objectionable answer
- witness answers too quickly to state objection
- witness volunteers objectionable statement
- defect in testimony does not appear until cross-examination
What does specificity in an objection require?
grounds, parts, parties, purposes
What happens to an objection that is overruled requiring connecting evidence and such evidence is not presented?
the objection is waived unless renews by a motion to strike at the end of the case
What is an offer of proof?
in a ruling to exclude evidence, the substance of the evidence is made known to court by presentation of evidence for the record or made apparent from context in which questions are asked
Why are offers of proof required?
- enable appellate court to decide if the exclusion was erroneous
- allow trial judge to reconsider ruling on actual evidence
What are Preliminary Questions?
issues of fact decided by judge

the judge is not bound by rules of evidence in deciding, except privilege
What are examples of Preliminary Questions?
- qualifications of witnesses
- existences of privilege
- admissibility of evidence
- relevance depending on condition of fact admitted upon or subject to introduction of evidnece sufficient to support finding
What is the burden of proof for Preliminary Questions?
- if the jury could reasonably conclude the act occurred AND
- the defendant was the actor
What is the rule on Limited Admissibility?
where evidence is admitted that is admissible for one purpose or party, but not admissible for another purpose or party, the court shall restrict the evidence to proper scope upon request and instruct jury
What is the completeness doctrine under the rule of Remainder of or Related Writings or Recorded Statements?
when a writing or recorded statement is introduced, the adverse party may require introduction at that time of any other part or writing or recorded statement considered contemporaneously for fairness
What are the two qualifications for evidence to be admitted under the Remainder of or Related Writings rule?
the other part or writing or statement must be relevant to the issues

- limited to part that qualify or explain the subject matter of the portion offered by the opponent
What is the rule about "opening the door"?
when one party introduces inadmissible evidence, the opposing party may introduce otherwise inadmissible evidence to rebut or explain prior evidence
What is the rule of competency concerning witnesses?
every person is competent to be a witness unless there is a lack of personal knowledge, inability to narrate, or a failure to tell the truth
What are the three presumptions about all witnesses?
- perceived the event
- ability to narrate testimony
- know duty to tell truth
How does Erie affect competency?
competency is a substantive question for Erie purposes
What does the Dead Man's Act say regarding competency of witnesses?
in any CIVIL PROCEEDING, where a party is dead, neither any surviving party nor any other person with interest adverse to right is competent as witness to any matter occurring before the death
What are exceptions to the Dead Man's Act?
- devolution
- family exemption
- spouse against will
- cross-examining on matter before death
- status (calling "as if on cross-examination")
- witness may rebut evidence
- failure to object
- discovery of surviving party before the death
How does lack of knowledge affect a witness' competency?
a witness may not testify unless there is sufficient evidence to support a findng that the witness has personal knowledge of matter
What is the burden of proof for determining if a witness has personal knowledge?
whether a reasonable juror find more likely than not that the witness has first-hand knowledge of the event
more likely than not
When is competency of witnesses determined?
competency is a preliminary question
What is a condition precedent to testimony?
an oath or affirmation to tell the truth
What are the purposes for determining competency of jurors?
protect the juror and promote finality of the decision
What is the exception to a juror impeaching his own verdict?
a juror may testify that "extraneous prejudicial information" or "outside influence" was improperly brought to attention
What are the 5 methods of impeachment?
- prior inconsistent statement
- contradiction
- bias or interest in party or outcome
- defect of capacity
- bad character for truthfulness
What method(s) of impeachment can only be proved by intrinsic evidence?
prior inconsistent statement
What method(s) of impeachment are never collateral matters?
- contradiction
- bias or interest in party or outcome
- defect of capacity
- bad character for truthfulness
What are the foundation requirements for a prior inconsistent statement?
- witness must have opportunity to deny or explain statement
- opposing counsel must have opportunity to question the witness
Is direct contradiction required?
No, only whether a jury could reasonably find the witness believing facts testified to would be unlikely to make the prior statement?
When will a prior statement be admitted for truth?
- prior statement of identification
- admission by party opponent
- any exception to hearsay
- inconsistent statements
How can statements be inconsistent for use as prior inconsistent statements?
- direct inconsistency
- prior silence or less detailed prior statement if expected to speak out or provide greater detail
- prior claim to lack of memory
- current claim of lack of memory
- omission of details previously related
How is a matter determined to be collateral?
collateral goes to relevancy;

assume the matter will be used for truth and determine if the statement concerns a face or issue of consequence
What is bias or interest?
the relationship between a party and witness which might lead witness to slant, unconsciously or not, testimony in favor or against a party
How is bias or interest determined?
relevance standards are used, although the court may place reasonable limits on inquiries
What are ways of showing character for truthfulness using prior convictions?
- a witness other than accused if convicted of felony and probative value outweighs prejudicial effect
- witness convicted of crime if elements required proof or admission of dishonesty or false statement
- conduct not reaching level of conviction
3 ways...
What are the factors of the balancing test for determining probative value of felony crime conviction?
- impeachment value of the crime
- time of conviction and witness subsequent history
- similarity of past and charged crime
- importance of defendant's testimony
- centrality of credibility issue to case
What is "removing the sting"?
when counsel elicits convictions on direct examination
How do annulments, pardons, certificates of rehabilitation or equivalent affect admissibility of convictions of crime?
these convictions cannot be used for impeachment of a witness by showing bad character for truthfulness
What is the rule about using reputation or opinion evidence of character for truthfulness?
credibility may be attacked or supported if:
1) evidence only refers to character for truthfulness, AND
2) evidence of truthful character is admissible only after the character has been attacked by opinion or reputation evidence
Are bias, contradiction, or prior inconsistent statements attacks on character?
No, impeachment using these methods cannot be the reason for reputation or opinion evidence of character
C is colorblind and called to testify. He is asked about the color of a stoplight at the time of the accident in question. Would the testimony of C face any challenges?
The opponent would be able to impeach C based on a sensory defect of capacity.
When is extrinsic evidence admissible to show contradiction?
when a witness gives testimony as to a material fact
A testifies that she saw D run a stoplight and cause the accident. On cross-examination, A is asked if she knows B. A is asked if she ever said to B, "The light was green." A answers "No." to the question. May B testify to what A said?
Yes, B may testify, but the statement to him is hearsay if used to prove truth of the matter asserted.
A testifies that she saw D run a stoplight and cause the accident. On cross-examination, A is asked if she knows B. A is asked if she told B that she was "purchasing a jacket." May B testify to what A said?
No, this information is a collateral matter.
Who may impeach a witness?
any party may attack a witness' credibility

(this eliminates the common law voucher rule)
What is "bolstering"?
where a proponent attempts to offer inadmissible evidence solely for purpose of enhancing witness credibility where an attack has not happened
What are the three reasons courts exercise control over mode and order of witnesses and presenting evidence?
1) make interrogation effective for truth
2) avoid wasting time
3) protect witnesses from harassment or embarrassment
What is the exception for children under the Confrontation Clause?
public policy considerations for children allow testifying by video or other means if there is an adequate showing of necessity from fear, emotional trauma, etc.
What is the scope of cross-examination?
under the AMERICAN rule, cross-examination is limited to matters on direct examination and questions affecting credibility of witnesses, with discretion for additional matters as if on direct examination
When is a leading question permissible?
- only when necessary on direct examination
- cross-examination
- when witness is hostile, adverse, or identified with adverse party
When is use of a leading question usually "necessary" during direct examination?
- children
- handicapped
- difficulty in understanding the language
Distinguish past collection recorded from writing to refresh memory.
refreshing recollection is a procedure to trigger memory and the object is not admissible as evidence
How does using a writing to refresh memory affect privileged documents?
using the writing to refresh a memory waives the privilege
What is the obligation of judges in an interrogation by the court?
the judge is obligated to be impartial
What is the rule regarding exclusion of witnesses?
at the request of a party, the court can order exclusion of witnesses unless the party is
1) natural person,
2) designated as representative of natural party,
3) shown by party to be essential to presentation of case, or
4) person authorized by statute
What is the rule on opinion testimony by lay witnesses?
lay witness opinion testimony is
1) limited to opinions or inferences rationally based, 2) helpful to clear understanding of witness testimony or determination of a fact in issue, and
3) not based on specialized knowledge
What opinions might be helpful from lay witnesses?
- character
- excited utterances
- dying declaration
- impeach credibility with truthfulness
What is the rule on the testimony by expert witnesses?
- must have scientific, technological, or specialized knowledge
- if qualified by knowledge, skill, experience, training, or education, may testify if:
1) based on sufficient facts,
2) product of reliable principles and methods,
3) applied principles and methods reliably to case
What are the 4 elements that must be satisfied for expert testimony to be admitted?
- witness qualifies as expert
- subject matter is appropriate for expert testimony
- testimony will assist trier of fact
- opinion is sufficiently reliable
Q ualifies
A ppropriate
A ssist
R eliable
How is sufficient knowledge, skill, experience, training, and education determined?
- totality of circumstances
- existence of specialized body of knowledge of the subject?
What is the significance of the Daubert factors in expert testimony?
judge acts a gatekeeper for reliability of expert testimony
What are Daubert factors?
- theory or technique can be tested
- subject to peer review
- potential rate of error
- adequately account for alternative explanations
What can cause lack of reliability or helpfulness in testimony?
- lack of relevance
- based on speculation or incomplete data
- too conjectural
- conclusory
Are experts required to have first-hand knowledge?
no, hypothetical questions may be asked
X is injured from D's negligence. O is an expert on orthopedics and testifies that X is injured from the negligence. Another expert, E, is brought in to testify about X injuries. May E testify about X's condition?
Yes, X's attorney can ask hypothetical questions about the injuries.
Does expert testimony create exceptions to the hearsay rule?
No, may be introduced to support or validate an expert opinion, but not to be used for truth
Are opinions on the ultimate issue permitted by witnesses?
Yes, the opinion is admissible if otherwise admissible
H challenges capacity of T in will contest. T is Dr. X's patient. Dr. X saw T the day the will was executed and spoke with T. May Dr. X testify to T's testamentary capacity?
No, because "testamentary capacity" is a legal term of art.

Dr. X may testify if the rule is broken down into its elements, as in "Did T know his property?", etc.
What is the requirement of authentication and identification?
it is a condition precedent to admissibility that is satisfied by evidence sufficient to support a finding that the matter is what proponent claims
Do changes in condition or failure to identify affect admissibility?
No, change in condition or failure to identify go to weight
Do disputes about evidence affect admissibility?
No, disputes about evidence go to jury
A worked with B for 10 years. As part of job, A had seen B's writing and signature on regular basis. A is asked, "Is this B's signature?" Is an objection sustained that A is not an expert?
No, the objection is overruled because the opinion of A based on familiarity not acquired for litigation.
What is the chain of custody and how does it affect evidence admissibility?
the chain of custody must be established where evidence changes hands between multiple parties

breaks in the chain go to the weight of the evidence
A is killed with a knife. P removes the knife and marks it. 15 different people access the knife and no chain is established. P identifies the knife and says, "Yes, this is the knife, here is the mark." Is this sufficient?
Yes, if the judge finds there is reasonable probability that there is no material change in evidence
How can writings be authenticated?
- distinctive characteristics
- comparison by trier or expert witness
- self-authentication
What is pictorial testimony authentication of photograhic evidence?
authenticated by testimony that it is a fair and accurate representations of actual scene or event
What is silent witness authentication of photographic evidence?
a photograph speaks for itself and is substantive of what it portrays, independent of a witness
What is demonstrative evidence?
evidence that has no probative value in itself, but serves as visual aid to jury about witness testimony
What is required for demonstrative evidence to be used?
- must be relevant
- must be explanatory object
What is self-authentication of a document?
the document speaks for itself and does not require extrinsic evidence for authentication

based on presumption that the source presenting the document is reliable
Does the self-authentication rule make a document per se admissible?
No, the document may be hearsay or otherwise inadmissible
A says, "W look at this document..." B objects that the document is not authenticated. Is the objection sustained?
Depends. If the document is self-authenticating, then no further authentication is necessary.
Is subscribing witness testimony necessary?
No, unless required by the jurisdiction.
What is the best evidence rule?
the original is required to prove the content of the writing, recording, or photographs
When does the Best Evidence Rule apply?
- the writing itself is the thing to be proved
- party seeks to prove a matter by using a writing as evidence
S heads home and says to C, "I want a copy of X account." C is distracted and makes mistakes in copying the account. Is the copy admissible or will this cause an issue?
The best evidence rule applies to prevent the mistakes from being an issue. The original should be produced.
X testifies at trial 1. The transcript is available and A wishes to introduce the transcript for trial 2. Does the Best Evidence Rule apply?
No, if X is testifying to first-hand knowledge.

Yes, if the stenographer testifies to the contents of the transcript.
What is the next best evidence rule?
where the original is not available from loss or destruction, not obtainable through judicial process, or in possession of opponent, other evidence is admissible
What is the rule on admissibility of summaries?
contents of voluminous writings, recordings, or photographs which cannot be conveniently examined in court may be presented in summary
What issues must court look to before admitting a summary?
- relevance of evidence
- accuracy of depiction
What is the function of the trier of fact under the best evidence rule?
- determine whether asserted writing existed
- whether another document produced at trial is original
- whether other evidence of contents correctly reflects contents of original
What is the testimonial spousal privilege?
the current spouse of a criminal defendant may not be compelled to testify against the accused spouse
What is the communications spousal privilege?
the current or former spouse may protect confidential communications made to the spouse in confidence
What types of cases does the spousal privileges apply?
TESTIMONIAL spousal privilege only applies in criminal cases; COMMUNICATIONS spousal privilege applies in civil and criminal cases

*both privileges only apply to testimony that is adverse to the defendant spouse
What is the purpose for the lawyer/client privilege?
to ensure full disclosure by the client for best legal advice and representation of the client
The lawyer/client privilege applies to communications between what parties?
only communications between the client and the lawyer, or representatives of the client or the lawyer
A and B are both charged with a crime. They elect to have a common defense. A hires X as her attorney, B hires Y as his attorney. Are statements from A to Y or statements from B to X privileged communications?
Yes, because of the common interest privilege where a client or client's lawyer and the lawyer representing another client communicate in a matter of common interest
Does the privilege for lawyer/clients extend to third persons who gain evidence through eavesdropping?
No, because the client has the ability to ensure confidentiality
What must the purpose of communications be for the lawyer/client privilege apply?
only communications for the purpose of obtaining or during professional legal services
What is the rule for lawyer/client privilege regarding employees of corporate entities?
the communication is privileged if the employee gives information for legal advice, with the understanding the communication is confidential, and the subject matter is within the scope of employment
What information does not fall under the lawyer/client privilege?
- physical evidence in the possession of the attorney regarding the crime/claim
- identity of client
- fee arrangements
- general purpose of the work
- services sought to further criminal or fraudulent conduct
A is a lawyer and B is a client. B states to A, "I am evading the IRS." A says that B has duty to pay. B gives A cash, and A sends letter to the IRS to pay for B. B remains anonymous through the situation. Must A testify about B's name or the money during a trial for tax evasion?
Yes, the identity of the client and the general purpose of the work are not covered by privilege.

These things lead to an inference that B said, "I did not pay my taxes..."
What is the purpose behind the Psychotherapist/Patient privilege?
a public policy concern for effectiveness for appropriate treatment of patient and eliminating risk of embarrassment
What theory of presumptions does the Federal Rules of Evidence of adopt?
the "bursting bubble" theory

a finding of fact is mandated, but if evidence is presented to rebut the finding, the presumption "bursts" and becomes an inference
What happens to the burdens of evidence under the "bursting bubble" theory of presumptions?
the burden of PERSUASION does not shift, but the burden of GOING FORWARD shifts to the party opposing the presumption
Does Erie apply to questions of the burden of proof and presumptions?
Yes, except for procedural presumptions
What facts are covered by judicial notice in the Federal Rules of Evidence?
only adjudicative facts - facts that have significance to the claim, charge, or case
What is required for judicial notice of a fact?
the fact cannot be subject to reasonable dispute, AND must be generally known in the court's jurisdiction OR capable of being verified
What are legislative facts?
general facts that are not peculiar to a case, but which the court may refer in framing or interpreting a rule of law