Evidence

Front 1

Hearsay

Back 1

A statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted

Front 2

Former Testimony Exception to the Hearsay Rule

Back 2

The testimony of a now unavailable witness given at another hearing or in a deposition taken in accordance with the law is admissible in a subsequent trial as long as there is a sufficient similarity of parties and issues so that the opportunity to develop testimony or cross-examine at the prior hearing or deposition was meaningful.

Front 3

Statement Against Interest Exception to the Hearsay Rule

Back 3

Statements of a person, now unavailable as a witness, against that person's pecuniary, proprietary, or penal interests when made are admissible.

Front 4

Privilege against Compelled Self-Incrimination

Back 4

A witness cannot be compelled to testify against himself. Can be claimed at any proceeding, whether civil or criminal, at which the witness's appearance and testimony are compelled.

Front 5

Judicial Notice - Criminal

Back 5

When a court takes judicial notice of a fact under the federal rules in a criminal case, the jury may, but is not required to, accept the fact noticed; thus, its effect is only to relieve the prosecutor of her burden of producing evidence on that fact.

Front 6

Refreshing Recollection - Documents

Back 6

If you use a document to refresh the mind of a witness, you must make that document available to the opposing party

Front 7

[Character Evidence - Crim] Reputation Evidence

Front 8

[Character Evidence] Opinion Evidence

Front 9

[Character EvidenceEvidence of Specific

Front 10

When/how can character evidence be introduced in criminal cases?

Back 10

1. Prosecutor cannot introduce evidence of D's bad character if purpose is to show that he probably acted in conformity with bad character and committed same crime. the same way - "propensity"2. D is allowed to present evidence of relevant good character traits to try to establish that he acted in conformity with his good character and did not commit the crime. Limited to reputation or opinion evidence.

3. If D presents evidence of good character to show that she didn't commit the crime, she has opened the door on issue of her character. Prosecutor then allowed to introduce evidence of bad character (limited to reputation or opinion).

4. While evidence of prior crimes/prior bad acts are never admissible to show that D probably acted unlawfully again, they may be admissible to prove another point (i.e. MIMIC - motive, intent, identity, absence of mistake, common scheme) (admissible if court determines that the probative value of the evidence is substantially outweighed by its prejudicial effect)

5. If D testifies, he automatically places his character trait of truthfulness in issue. Prosecution then can produce character that D, who has become a witness, isn't truthful.

Front 11

When/how can character evidence be introduced in civil cases?

Back 11

1. You can't introduce any evidence of the character trait of a party to show that that party probably acted in conformity with that character trait during the event that gave rise to this litigation.

2. If the litigation has some other purpose for the introduction of the evidence of character and its relevant, the rule prohibiting character evidence will not keep it out. (can be used in negligent entrustment or defamation case)

3. If a party testifies, they automatically place their character trait of truthfulness in issue in this case. Then the other side can present character evidence that the party who has become a witness is not a truthful person.

Front 12

Evidence of prior similar occurences

Back 12

Evidence of prior similar occurrences is not admissible to show that party acted same way again

Front 13

Evidence of habit

Back 13

Evidence of habit is admissible to show that the party acted the same way again in incident that gave rise to litigation

Front 14

Define Habit

Back 14

Habit describes one's regular response to a specific set of circumstances.

Front 15

Can you introduce evidence of subsequent repair?

Back 15

Subsequent repairs or precautionary measures following an injury are not admissible to prove that D was negligent. Rule is to encourage people to make such repairs. The evidence may be admissible, however, if it is relevant to some other issue in the case, such as ownership or control; or that it was possible to have safer condition (if they say "it was not possible to have safer condition")

Front 16

Impeachment evidence BIG SIX

Back 16

1. prior inconsistent statements -either cross-examination or extrinsic evidence to establish the prior inconsistent statement. doesn't come in as substantive truth, only to impeach (unless made under oath in a legal proceeding, in which case can come in also as substantive truth). witness being impeached must be given opportunity to comment on prior inconsistent statement (either before or after the extrinsic evidence introduced) also its inadmissible if inconsistency is on minor irrelevant point.

2. bias or motive to misrepresent - always admissible

3. prior conviction

4. specific acts or conduct which bear on truthfulness

5. reputation for untruthfulness

6. contradiction - evidence that contradicts testimony given by the witness. on cross-examination, counsel can get witness to testify against himself. extrinsic evidence only admissible if it contradicts on a major point in testimony

Front 17

Prior conviction: any criminal conviction (felony or misdemeanor) involving dishonesty

Back 17

involving dishonesty can ALWAYS be used to impeach

Front 18

Prior conviction: any other felony

Back 18

can be used to impeach unless judge finds its too prejudicial in this case

Front 19

when can you not introduce evidence to impeach witness credibility?

Back 19

when a witness makes a statement not directly relevant to the issues in the case, the rule against impeachment on a collateral matter bars his opponent from proving the statement untrue by either extrinsic evidence or by a prior inconsistent statement

Front 20

when is rehabilitation testimony permitted?

Back 20

when witness's general character for truth or veracity has been attacked (i.e. by felony, reputation, opinion evidence), the party for whom the impeached witness has testified may call other witnesses to testify to the good reputation for truth of the impeached witness or to give their opinion as to the truthfulness of the impeached witness

Front 21

removed from definition of hearsay (exemptions)

Back 21

Admissions by the party

Prior inconsistent statement under oath

Prior identification by current witness

Front 22

name 9 hearsay exceptions

Back 22

1. present sense impression 2. excited utterance 3. statement concerning mental/physical condition 4. statements made for purposes of medical diagnosis/treatment 5. recorded recollection 6. business records exception 7. former testimony* 8. dying declaration* 9. statements against interest* (*declarant must be unavailable)

Front 23

3 types of admission by a party (they aren't hearsay - exempt)

Back 23

1. basic admission 2. admission by employee 3. admission by silence

Front 24

define admission (they aren't hearsay - exempt)

Back 24

relevant statement by party to action (or employee made within scope of employment) made any previous time and offered into evidence by opposing party

Front 25

how is admission by silence established

Back 25

for silence to constitute an adoptive admission of the other person's statement, the circumstances must establish that the party would naturally have responded to it were it untrue

Front 26

when can statements be used to impeach and as substantive evidence?

Back 26

1. when prior inconsistent statement given under oath

or

2. prior inconsistent statement falls under hearsay exception on its own (i.e. excited utterance

Front 27

in criminal, when can you use dying declaration exception?

Back 27

only in homicide cases - victim must be dead

Front 28

present state of mind

Back 28

Declarations of an existing state of mind are admissible not only when the declarant's state of mind is directly in issue and material to the controversy, but also when the declarant's state of mind is not directly in issue, but the declarations of intent are offered to show subsequent acts of declaration

Front 29

authentication requirement

Back 29

as a prerequisite to the admission of real proof, evidence sufficient to support a finding that the item is what proponent claims (can be authenticated by recognition testimony)

Front 30

what can experts base information on?

Back 30

any source (including inadmissible), provided that experts in her field reasonably rely on that type of information

Front 31

what are the 2 spousal privileges?

Back 31

1. in federal court in criminal case, spouse cannot be forced to testify against spouse (can voluntarily testify; it doesn't matter when she learned that info-even before marriage) 2. in federal court in civil or criminal, spouse can refuse to disclose or keep a spouse from disclosing with respect to confidential communications made between spouses during marriage

Front 32

can a party impeach its own witness?

Back 32

Yes. under the Federal Rules, either party may impeach a witness.

Front 33

when are leading questions allowed?

Back 33

leading questions are permitted when a witness is hostile

Front 34

Define relevance

Back 34

Relevance - Evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence