Use LEFT and RIGHT arrow keys to navigate between flashcards;
Use UP and DOWN arrow keys to flip the card;
H to show hint;
A reads text to speech;
131 Cards in this Set
- Front
- Back
Relevance (three steps) |
1. Does it tend to prove a material fact? |
|
General Rule of Relevance: must relate to |
Time, event or person involved in the present litigation |
|
Relevant Similar Occurrences (list) |
Causation |
|
Evidence Generally (4 steps) |
1. Is the evidence relevant? |
|
Sales of Similar Property (Relevant Similar Occurrences) |
Admissible if not too remote |
|
Prior False Claims or Same Bodily Injury (Relevant Similar Occurrences) |
Relevant to prove |
|
Similar Accidents or Injuries Caused by Same Event or Condition (Relevant Similar Occurrences) |
Admissible to prove |
|
Absence of Similar Accidents (Relevant Similar Occurrences) |
Only admissable to show: |
|
Habit (Relevant Similar Occurrences) |
Admissible |
|
Unfair Surprise |
Not a valid ground on which to exclude relevant evidence |
|
Exclusion of Relevant Evidence for Public Policy Reasons (List) |
Liability Insurance |
|
Liability Insurance |
Not Admissible to show negligence or ability to pay |
|
Subsequent Remedial Measure |
Not Admissible to prove: |
|
Settlement Offers |
Not Admissible to prove liability for, or invalidity of, a claim that is disputed as to validity or amount |
|
Offers to Pay Medical Expenses |
Inadmissible |
|
Character Evidence may be offered as substantive evidence to |
1) Prove character when it is the ultimate issue in the case |
|
Means of Proving Character |
1) Evidence of SPECIFIC ACTS |
|
Character Evidence in Civil Cases |
Generally not admissible |
|
Character Evidence of Accused in Criminal Case |
Prosecutor cannot initiate |
|
How a Defendant Proves Character |
Witness may testify as to: |
|
Taking the stand puts the Defendant's x (as opposed to y) in issue |
X = credibility (impeachment) |
|
How Prosecution Rebuts Defendant's Character Evidence |
1) Cross-examination as to basis including defendant's PRIOR ACTS (no extrinsic evidence) |
|
Victim's Character in Criminal Case |
Admissible when relvant to show defendant's innocence (except rape) |
|
Rape Victim's Past Behavior |
Generally Inadmissable |
|
Specific Acts of Misconduct |
Relevant to some issue other than character or disposition (MIMIC) |
|
Judical Notice (Appropriate Facts) |
Indisputable Facts |
|
Judical Notice Conclusive? |
In civil cases |
|
Judicial Notice of Law |
State and federal law (Mandatory) |
|
Real Evidence (Conditions of Admissibility) |
1. Authentification (foundation testimony; unbroken custodial chain) |
|
Types of Real Proof |
1. Reproductions and Explanatory Real Evidence |
|
Authentication of Documentary Evidence (def and list) |
Proof sufficient to support a jury finding of genuineness |
|
Evidence of Authenticity of Writings (list) |
Admissions |
|
Handwriting Verifcations |
1. Lay witness with personal knowledge (cannot acquire for trial) |
|
Ancient Documents |
1) at least 20 yrs. old |
|
Photographs (authentification) |
Must be ID'ed by witness with personal knowledge of scene (photographer not necessary) |
|
X-Rays, etc. (authentification) |
1. Process is accurate |
|
Voice Identification |
Anyone who has heard the voice |
|
Telephone Conversation (authentification) |
1. Recognized voice |
|
Best Evidence Rule (definition) |
Original Document Rule |
|
Best Evidence Rule (applicable to) |
1) Writing is a legally operative or dispositive instrument |
|
Best Evidence Rule (does not apply to) |
1) Fact to be proved existed independent of writing |
|
Admissibility of Duplicates |
Admissible unless the authenticity of the original is challenged or unfairness would result |
|
Best Evidence Rule: Admissibility of Secondary Evidence of Contents |
1) Satisfactory Foundation |
|
Best Evidence Rule (functions of Court and Jury) |
Judge: admissibility |
|
Parol Evidence |
Admissible: |
|
Federal Rules of Competency |
1) Personal Knowledge |
|
Modern Common Law Disqualifcations (Competency) |
Infancy: capacity and intelligence determined by judge |
|
Dead Man Acts |
State laws |
|
Leading Questions (permissible) |
1) On cross |
|
Improper Questions and Answers |
Questions: |
|
Present Recollection Revived |
May glance at |
|
Past Recollection Recorded |
Writing itself may be read into evidence |
|
Recollection Revived or Recorded (Inspection and Use on Cross) |
Adverse party can: |
|
Lay Witness Opinion Testimony (when) |
1) rationally based on witness's perception |
|
Situations Where Opinions of Lay Witnesses Are Admissible |
1) General appearance or condition of a person |
|
Situations Where Lay Witness Opinions Are Not Admissible |
1) whether one acted as an agent |
|
Expert Opinion Testimony |
Expert may state an opinion or conclusion, provided: |
|
Expert Opinion (proper factual basis) |
May be based on |
|
Learned Treatise |
1) Establised as authoritative |
|
Cross Examination (scope) |
Limited to: |
|
Collateral Matters (cross examination) |
Cross-examiner is bound by the answers given by the witness as to collateral matters. No extrinsic evidence is allowed to contradict a witness as to a collateral matter |
|
Accrediting or Bolstering (credibility) |
May not unless rehabilitating |
|
Who may Impeach? |
Anyone |
|
Impeachment Devices |
Prior Inconsistent Statements |
|
Prior Inconsistent Statement (Impeachment) |
Must lay foundation for extrinsic evidence: witness given opportunity to explain before or after (unless hearsay declarant) |
|
Conviction of Crime (impeachment) |
1) Any crime involving dishonesty |
|
Felony Not Involving Dishonesty (Impeachment) |
Court has discretion to exclude if: |
|
Bad Acts (impeachment) |
1) Only if act is probative of truthfulness |
|
Impeachment on Collateral Matter |
No extrinsic evidence or prior inconsistent statement |
|
Impeachment of a Hearsay Declarant |
1. Need not be given opportunity to explain |
|
Methods of Rehabilitation (impeachment) |
1. Explanation on Redirect |
|
Objections |
1. Failure to object is a waiver |
|
Testimonial Privileges in the FRE |
None, state law |
|
General waiver of privilege |
1) Failure to claim |
|
Eavesdroppers (testimonial privileges) |
Unless speaking party negligent, even eavesdroppers would be prohibited from testifying |
|
Testimonial Privileges (list) |
1. Attorney/Client |
|
Attorney/Client Privilege (generally) |
1. Seeking professional services at time |
|
Attorney/Client (does not apply) |
1) Acts for both parties |
|
Physican-Patient Privilege |
1. Professional relationship exists |
|
Physician/Patient Privilege (does not apply) |
1) The patient has put his physical condition in issue |
|
Spousal Immunity |
In criminal case where spouse is defendant, may not be called |
|
Privilege for Confidential Marital Communications |
1. Marital relationship must exist when communication is made |
|
Husband/Wife Privilege (does not apply) |
Actions between spouses or in cases where involving crimes against the testifying spouse or either spouse's children |
|
Exclusion and Sequestration of Witnesses |
Judge may not exclude |
|
Hearsay (steps) |
1. Is the evidence a statement? Yes |
|
Out of court statements that are not hearsay |
1) Verbal acts or legally operative facts |
|
In deciding whether evidence is hearsay ask yourself whether |
We are relying on declrant's credibility. If not, evidence is not hearsay |
|
Nonhuman Declarations |
Not hearsay |
|
Prior Statements by Witness (not hearsay) |
1. Prior statement is inconsistent with the declarant's in-court testimony and was given under oath at a prior proceeding (not affidavit) |
|
Admissions by Party-Opponent |
Not Hearsay (Admissible) |
|
Judicial and Extrajudicial Admissions (Not Hearsay) |
Formal judicial admissions (in pleadings, stipulations, etc.) are conclusive |
|
Adoptive Admissions (Not Hearsay) |
A party can make an admission by expressly or impliedly adopting or acquiescing in the statement of another |
|
Silence (Adoptive Admission - Not Hearsay) |
If a reasonable person would have responded and a party remains silent in the face of accusatory statements, his silence may be considered an implied admission if: |
|
Vicarious Admissions (List) |
Co-Parties |
|
Co-Parties (Vicarious Admissions) |
Not receivable |
|
Principal/Agent (Vicarious Admissions) |
Within scope while relationship exists (ADMISSIBLE) |
|
Partners (Vicarious Admissions) |
Admissible as to the scope of the partnership business |
|
Co-Conspirators (Vicarious Admissions) |
Admissible where |
|
Privies in Title and Joint Tenants (Vicarious Admissions) |
State Courts only |
|
Hearsay Exceptions- Declarant Unavailable (list) |
1. Former Testimony |
|
"Unavailability" (Definition for Hearsay Exceptions) |
1. Exempt from testifying because of privilege |
|
Former Testimony (Hearsay Exception) |
Testimony of now UNAVAILABLE witness is admissible if: |
|
Statements Against Interest (Hearsay Exception) |
Unavailable |
|
Dying Declarations (Hearsay Exception) |
1. Declarant believed death was imminent |
|
Statements of Personal or Family History (Hearsay Exception) |
Concerning birth, death, marriages, divorces etc. admissible provided: |
|
Statement Offered Against Party Procuring Declarant's Unavailability (Hearsay Exception) |
Admissible against party who engaged or acquiesced in wrongdoing that intentionally procued the declarant's unanavailability |
|
Hearsay Exceptions- Declarant's Availability Immaterial (List) |
1. Present State of Mind |
|
State of Mind (Hearsay Exception) |
Statement of then existing state of mind, emotion, sensation or physical condition |
|
Excited Utterance (Hearsay Exception) |
Statement made while under stress or excitement of startling event (no time to reflect) |
|
Present Sense Impression (Hearsay Exception) |
Statement made concurrently with perception of event described |
|
Medical Diagnosis or Treatment (Hearsay Exception) |
Statement made to medical personnel for the purpose of diagnosis or treatment |
|
Recorded Recollection (Hearsay Exception) |
Writing by witness who cannot now remember the facts, made while the facts were fresh in her mind (must be read to jury) |
|
Business Records or Absence Thereof (Hearsay Exception) |
Writings: |
|
Public Records and Reports or Absense Thereof; Records of Vital Statistics (Hearsay Exception) |
Records and reports of public agencies regarding their activities and records of birth, deaths, marriages, etc. |
|
Judgments (Hearsay Exception) |
A copy of a judgment of a prior felony conviction is admissible to prove any fact essential to the judgment (no acquittals or civil judgments). |
|
Ancient Documents (Hearsay Exception) |
Documents 20 years old or more |
|
Documents Affecting Property Interests (Hearsay Exception) |
Deeds, wills, title, etc. |
|
Learned Treatise(Hearsay Exception) |
Statements from authoritative works admitted if called to attention of expert witness and established as reliable authority |
|
Reputation (Hearsay Exception) |
Concerning |
|
Family Records (Hearsay Exception) |
Statements of fact found in family Bibles, jewelry engravings, tombstones, etc. |
|
Market Reports (Hearsay Exception) |
Market reports and public compilations generally relied on by the public or persons of a particular occupation |
|
Declaration of Physical Condition (Hearsay Exception) |
Spontaneous declaration of present body condition admissible even if not made to physician |
|
Residual "Catch-All" Exception of Federal Rules (Hearsay Exception) |
The hearsay statement possesses circumstantial guarantees of trustworthiness |
|
Sixth Amendment and Hearsay (Rule) |
1. Rule – even though an out-of-court statement qualifies as an exception to the rule against hearsay, the accused’s Sixth Amendment right to confrontation may render the statement inadmissible when it is offered against the accused in a criminal case. |
|
Sixth Amendment and Hearsay (factors) |
From Crawford |
|
Sixth Amendment and Hearsay (definition of "testimonial") |
A hearsay statement is testimonial if declarant makes a statement that he or she anticipates will be used in the prosecution or investigation of the crime |
|
Burden of Producing Evidence |
Burden of producing or going forward with evidence sufficient to make out a prima facie case. |
|
Burden of Persuasion |
Civil: preponderance |
|
Specific Presumptions (list) |
Legitimacy |
|
Preliminary Determinations of Admissibility |
Judge: Competency, hearsay exceptions, privileges, expert testimony, mental competency, presence of jury |
|
Witness statements in Police Report |
Must fall under a hearsay exception separate from Public Records (or Business Records - civil) exception that allows the rest of the report in |