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138 Cards in this Set
- Front
- Back
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Define relevancy
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evidence is relevant if it has any tendency to make a material fact more or less probable
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When may evidence be excluded (in general) (2)
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- specific exclusionary rule
- probative value outweighed by pragmatic considerations |
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Accuracy issues to exclude evidence (3)
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- unfair prejudice
- confusion of the issues - misleading the jury |
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Efficiency issues related to excluding evidence (3)
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- undue delay
- unduly cumulative - waste of time |
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Similar Occurrences:
P's accident history |
inadmissible because it shows nothing more than P is accident prone
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Similar Occurrences:
Similar accidents cause by same event or condition - 3 ways to get the evidence in |
- show existence of dangerous condition
- show causation - show prior notice to D |
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Similar Occurrences:
Prior Intent |
person's prior conduct may provide inference on later occasion
(history of discrimination) |
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Similar Occurrences:
Comparable Sales on Issue of Value |
Selling price of other property of similar type in the same general location and close in time to period of issue is some evidence as to value of the property at issue
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Similar Occurrences:
Habit |
habit of a person is admissible as circumstantial evidence of how the person (or business) acted on the occasion at issue in the litigation
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2 defining characteristics of habit
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- frequency of conduct
- particularity |
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Similar Occurrences:
Industrial Custom as Std of Care |
evidence of how others in the same trade an injury behave may give insight into the actions of the D
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Policy Based Exclusions (4)
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- liability insurance
- subsequent remedial measures - settlements of disputed civil cases - offer to pay hospital or medical expenses |
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Liability Insurance (3)
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- not used to prove fault or absence of fault
- used to show ownership or control - may be used to impeach witness |
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Subsequent Remedial Measures (2)
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- inadmissible to prove negligence, defect, need for warning, etc
- may be used to show ownership or feasibility of safer condition |
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Settlements of Disputed Civil Claims (4)
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- evidence of a settlement of a disputed civil claim or offer to settle is inadmissible to prove liability or weakness of a party's case
- settlement may be admissible for purpose of impeachment on the ground of bias - statements of facts in settlement negotiations are inadmissible - however statement of facts in a civil claim from a govt agency may be used in criminal prosec (not in NC) |
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Does the exclusionary rule apply only if a CLAIM is disputed at the time the settlement discussion is made?
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Yes
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Inadmissible in Plea Bargaining in Criminal Cases (4)
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- offer to plead guilty
- withdrawn guilty plea - plea of nolo contendere - statements of fact made in discussions |
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Is a plea of guilty (not withdrawn) admissible in subsequent litigation?
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yes
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Offer to pay hospital or medical expenses (2)
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- admission to pay is inadmissible
- statement of facts are admissible |
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NC extension of offer to pay hospital or medical expenses
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same as fed rule except it expands the rule to also exclude evidence of payments and offers to pay "other expenses" such as lost wages or property damages
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Define Character Evidence
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character evidence refers to a person's general propensity or disposition (e.g., honesty)
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Potential purposes to ADMIT character evidence (3)
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- character is a material element of the case
- prove conduct in conformity with character at the time of the event - witness's bad character to impeach credibility |
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D's Character in Criminal Cases (2)
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- evidence of D's character to prove conduct in conformity is NOT admissible during the prosecution's case in chief
- D, during defense,. may introduce evidence of a relevant character trait, but opens door to rebuttal |
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Proper methods to introduce character evidence (2)
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- reputation
- opinion |
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Ways for prosecution to rebut a character witness (2)
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- cross exam with "did you know" or "have you heard"
- call its own witness |
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Victim's Character - Self Defense Case
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- violent character (shows aggressor)
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Rebuttal of Victim's Character - Self defense (2)
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- may pv D's character
- in NC it is limited to victim's GOOD character |
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Exceptions to Rape Shield Law (3)
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- show other than D was the source of semen or injury
- past sexual activity with D to show consent - where exclusion prevents D's right of due process (Love Triangle) |
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When is character evidence admissible in a civil action? (3)
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essential element of a claim or defense
- negligent entrustment / hiring - defamation - child custody |
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Use of D's crimes for non-character purpose
M-I-M-I-C |
- motive
- intent - mistake (lack of) - identity - common scheme or plan |
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Use of D's past sexual crimes (FRE)
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in a case alleging sexual assault or child molestation, prior specific sexual misconduct of the D is admissible in the prosecution's case in chief to show propensity
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Use of D's past sexual crime (NC)
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only used as to same victim
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Things to look out for when a writing is introduced (3)
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- authentication
- BER - hearsay |
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Methods of authentication, in general (4)
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- witness' personal knowledge
- pf of handwriting - ancient document rule - solicited reply doctrine |
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Proof of handwriting (4)
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- witness personal knowledge seeing person sign
- lay opinion - expert opinion - give samples to jury |
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Ancient Document Rule
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- at least 20 years old
- facially free of suspicion - found in a place of natural custody |
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Self-Authenticating Documents
C-O-N-T-A-C |
- certified copies of records
- official publications - newspapers - trade inscriptions - acknowledged document - commercial paper |
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Authentication of Photographs
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merely by someone with knowledge of what was photographed
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BER
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a party who seeks to pv the contents of a writing must either produce the original or provide an acceptable excuse - if court finds excuse acceptable the party may then use secondary evidence (oral testimony or a copy)
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When does BER Apply (2)
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- writing is a legally operative document
- witness is testifying to facts that she learned solely from reading about them in the writing |
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What qualifies as "original" writing (3)
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- negative film or print
- computer print out - writing itself |
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What is a "duplicate"
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a counterpart reproduced by an mechanical means that accurately reproduced the original
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Excuses for non-production of original (3)
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- lost or not found with due diligence
- destroyed without bad faith - cannot be obtained via legal process |
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Escapes to the BER? (3)
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- voluminous records
- certified copies of public records - collateral (non-impt) documents |
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Competency of witness (2)
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- personal knowledge
- oath or affirmation |
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Dead Man's Statute
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in a civil action, an interested witness is incompetent to testify in support of her own interest against the estate of the decedent concerning communications or transactions between the witness and the decedent
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NC Dead Man's Rule (2)
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- interested witness incompetent only if testimony concerns ORAL communications between witness and decedent
- exception -- witness may testify as to the identity of the operator of a motor vehicle |
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When are leading questions allowed on direct examination (4)
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- preliminary, introductory material
- youthful or forgetful witness - hostile witness - adverse party or someone under control of adverse party |
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Refreshing Recollection (GR)
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witness may not read from prepared memo; must testify on basis of current recollection; but if he cannot remember, the memo may be used to jog his memory
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Refreshing Recollection - Rights of Adverse Party (3)
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- inspect document
- use it on cross exam - introduce into evidence |
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Past Recollection Recorded (H/S exception)
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if witness' memory still cannot be jogged, he may READ the document into evidence
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Foundation for Past Recollection Recorded (5)
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- showing writing to witness fails to jog memory
- witness had personal knowledge at the former time - writing was made either by the witness or adopted by witness - making or adoption occurred while event was still fresh in the witness' memory - witness can vouch for accuracy of writing when made or adopted |
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Opinion testimony of lay witness (2)
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- rationally based on witness' perception (personal knowledge)
- helpful to jury in deciding a fact |
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Lay witness opinions (examples) (5)
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- drunk
- speed - sanity - emotions - handwriting |
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Expert witness requirements (2)
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- education
- and/or experience |
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NC rule for experts in medical malpractice cases
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expert must be a specialist in the same field as D and during the year prior to the incident at issue, expert must have spent majority of time in clinical practice or teaching
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Permissible data sources for experts to base opinions on (3)
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- personal knowledge
- other evidence in trial record - facts outside the record if of a type reasonably relied upon by experts in the particular field in forming opinions |
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NC - when may expert disclose source of out of court material (3)
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- reliable
- sole purpose is to show basis of opinion and aid jury in evaluating basis of opinion - limited instructions given |
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Daubert Rules (4)
T-R-A-P |
- testing or principles and methodology
- rate of error - acceptance by other experts in the same discipline (general acceptance not required) - peer review of publication |
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NC Rules - Not Daubert (4)
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non-exclusive "indices"
- established technique - expert has background in using the technique - whether the expert uses visual aids to help the jury - whether the expert engaged in independent research using the technique |
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NC Accident Reconstruction
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expert may give estimate of speed at which vehicle was traveling based on analysis of physical evidence even if expert did not observe the accident
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Learned Treatise Rule (3)
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- relevant portions may be read into evidence on direct examination
- relevant portions may be read into evidence on cross in order to impeach - may never be introduced into evidence |
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Ultimate Issue (Expert or Lay)
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opinion testimony on ultimate issue is permissible PROVIDED the other requirements for opinion testimony are met
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Ultimate Issue Criminal
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may not give opinion on mental state as it is an element of a crime
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Cross examination (GR)
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- matters within the scope of direct
- matters which test the witness' credibility |
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Cross examination (NC)
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same as federal, except cross is not limited to scope of direct and the witnessed may be questioned on anything relevant to the case
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Bolstering own witness
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in general, not allowed until credibility is attacked
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NC Bolstering
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prior consistent statement is admissible to bolster own witness' credibility on direct
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NC Bolstering ID evidence
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only to bolster credibility, not as substantive evidence
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7 Impeachment Methods
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- prior inconsistent statements
- bias - sensory deficiencies - bad reputation or opinion - criminal convictions - inquiry about bad acts - contradiction |
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Two procedural issues regarding impeachment
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- extrinsic evidence may be used except for prior bad acts and collateral contradictory facts
- there is no right of confrontation with the exception of prior bad acts |
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Prior Inconsistent Statement
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any witness may be impeached by showing that on some prior occasion, he made a material statement (oral or written) that is inconsistent with trial testimony
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May a prior inconsistent statement given orally under oath and as part of a formal hearing, proceeding, trial, or deposition be used substatively as well?
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yes
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NC Rule on Substantive Evidence and Impeachment
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all forms of prior inconsistent statements are admissible ONLY to impeach, not as substantive evidence
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Federal rule of Confrontation
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Confrontation timing is flexible, and not required immediately. But after pf by extrinsic evidence, witness must be given an opportunity at some point to return to stand and explain or deny the prior inconsistent statement
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NC - is extrinsic evidence of prior inconsistent statement admissible without need to confront witness or to give opportunity to deny?
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yes
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May opposing party not be granted an opportunity to explain or deny an inconsistent statement (Fed and NC)
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yes
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Confrontation rules for bias (2)
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- witness must be confronted with alleged bias while on the stand (NC) - Fed's discretion
- if confrontation prerequisite is met, bias ma be proven by extrinsic evidence |
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What are sensory deficiencies?
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bad eyesight, hearing, retardation
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Is confrontation required to show sensory deficiency? Extrinsic evidence?
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No confrontation
Yes for extrinsic evidence |
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For bad reputation or opinion of a witness' character is confrontation required? Extrinsic Evidence?
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- no
- yes |
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Criminal Convictions (Fed)
Permissible (2) |
- conviction of any crime (felony or misdemeanor) as to which the prosecution was required to prove false statement as element of crime
- if conviction did not require pf of false statement, it must be a felony limited to 10 years |
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Criminal Convictions (NC)
Permissible (2) |
- any type of conviction if crime was punishable by more than 60 days
- 10 year term (no balance of probative v. prejudice) |
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Is confrontation on cross examination the only means to inquire about bad acts (without conviction) if they reflect on adversely on witness' character or truthfulness?
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yes - must be done in good faith and with court's discretion
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Can you inquire if a witness is presently being prosecuted?
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Yes - goes to bias in favor of govt
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Contradiction
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if witness makes a mistake and sticks to it, then extrinsic evidence may be introduced so long as matter is not collateral
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Rehabilitation of Witness
When? How? |
- only when impeachment clearly suggested witness was lying
- character witness may be used to show witness had good character |
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Prior Consistent Statement (Bolstering) (NC)
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prior consistent statement can be used to bolster credibility of own witness under any circumstances, but is not admissible as substantive evidence
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Prior Consistent Statement
(Bolstering) (Fed) |
same as NC but may be used as substantive evidence
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Federal Privileges - Federal Law
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principles of common law as interpreted by the feds
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Federal Privileges - State Law
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privilege law of state (Erie)
same for Dead Man's Act |
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Elements of Atty-Client Priv (5)
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- confidential communications
- between atty and client (or rep) - made during professional, legal consultation - unless privilege is waived by client - on an exception is applicable |
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Subject Matter Waiver (3)
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a voluntary waiver of the privilege as to some communications will also waive the privilege as to other communication if:
- partial disclosure is intentional - disclosed and undisclosed communications concern the same subject matter - fairness requires that the disclosed and undisclosed communications be considered together |
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Inadvertant waiver will not waive the privilege so long as the privilege-holder (2)
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- took reasonable steps to prevent the disclosure
- takes reasonable steps to correct the error |
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Exceptions to Atty-Client Priv (3)
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- future crime
- reliance on counsel - atty-client dispute |
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Physician-Patient Priv (3) (GR)
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- confidential communication or information acquired by physician from patient
- for purpose of diagnosis or treatment - also applies to psychotherapists |
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Federal Distinction for Physician-Patient Privilege
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for actions based solely on federal law, on the physcotherapist priv exists
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General Exception to Doctor - Patient Privilege
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claim of insanity or injury
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NC exception to Doctor - Patient Privilege
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judge has wide discretion to lift and it is not applicable to child abuse or neglect cases
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Spousal Immunity
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Witness-Spouse hold privilege and may voluntarily testify
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Confidential Communication Between Spouses
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In any type of case, a spouse is not required, and is not allowed absent consent of other spouse, to disclose confidential communication made by one to the other during the marriage
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2 Exceptions to Marital Privilege
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- communications or acts in furtherance of future crime or fraud
- communications or acts destructive of the family unit |
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Hearsay Definition
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out of court statement of a declarant (oral or written) offered to prove the truth of the matter asserted
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Hearsay Rules
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Hearsay is inadmissible unless an exception or exclusion applies
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Principal Categories of Non H/S (3)
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- verbal act
- words that show effect on person who heard or read the statement - circumstantial evidence of Speaker's state of mind |
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Verbal Act
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"I accept" - acceptance of contract
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Words that show effect on person who heard or read the statement
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"Salsa on Floor" - shows notice
"A is having affair with B" - shows motive for murder |
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Circumstantial Evidence of Speaker's State of Mind
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"I'm batman"
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Prior Statements (GR)
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a witness' own prior statement, if offered to prove the truth of the matter asserted is H/S and is INADMISSIBLE unless an exception or exclusion applies
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Witness-Statement Exclusions form H/S (Non-hearsay) (3)
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- prior statement of identification
- prior inconsistent statement if made orally under oath and made during a formal trial, hearing, proceeding, or deposition - prior consistent statement used to rebut charge of recent fabrication or improper motive or influence |
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NC Exceptions to Witness-Statement Exclusions
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the three federal exclusions are not admissible fro their truth - prior id and prior consistent statements come in for credibility and prior inconsistent statements come in to impeach
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Party Admission
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any statement made by a party is admissible if it is offered against the party (called H/S exception in NC)
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6AMD Right in regard to H/S
Prosecutor may not use a H/S statement against the criminal D even if it falls within an exception if (3) |
- statement is testimonial
- declarant is unavailable - the defendant had no opportunity for cross exam either prior to or at trial |
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Meaning of "testimonial" (2)
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- grand jury testimony
- responses to police interrogation |
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Are statements made during police questioning in 911 calls and crime scene interviews testimonial?
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yes
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Are statements enabling police to bring assistance to an ongoing emergency testimonial?
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no
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Is the report of a police lab testimonial?
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yes (new finding)
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Forfeiture Exception (Declarant unavailable due to D's wrongdoing) (2)
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- must be found to be D's fault by a preponderance of evidence
- D's conduct was designed to prevent witness from testifying |
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Former Testimony Exception
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the former testimony of a now-unavailable witness, if given a former proceeding, is admissible against a party who had the opportunity to cross
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Grounds of Unavailability (5)
P-A-I-L-S |
- privilege
- absence from juris - illness or death - lack of memory - stubborn refusal to testify |
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Statement against interest exception
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an unavailable declarant's statement against his or her pecuniary, proprietary, or penal interest
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4 ways statement against interest differs from party admission
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- must be against interest WHEN MADE
- any person (not just party) - personal knowledge is required - declarant must be unavailable |
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In NC, does a statement against penal interest require corroboration?
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yes
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Dying Declaration Exception
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statement under belief of impending death (need not die)
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When is Dying Declaration Allowed:
Civil/Crim Fed/NC |
Fed
- Criminal is HOMICIDE only - Civil is ALL NC - Criminal is ALL - Civil is ALL |
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Excited Utterance (unavailability not required)
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statement concerning a startling event and made while declarant is still under the stress of excitement cause by the event
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7 Factors to consider in determining if a statement is an excited utterance
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- nature of event
- passage of time - visual clues in mbe (exclamatory phrase, excitement oriented verbs, !) |
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Present Sense Impression (Unav. not Req)
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description of event made while the event is occurring or immediately thereafter
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Present State of Mind (Unav not Req)
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contemporaneous statement concerning declarant's present state of mind, feeling, or emotions (fear)
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Declaration of Intent (Unav not Req)
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statement of declarant's intent to do something in the future including the intent to engage in conduct with another person
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Present Physical Condition (Unav not Req)
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statement made to anyone about declarant's physical condition
(I hurt) |
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Statement for purpose of medical treatment or diagnosis (Unav not Req)
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must concern past or present symptoms or general cause of condition for purpose of treatment
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Business Records (5)
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- records of any type of business
- made in the regular course of the business - the business regularly keeps such records - made at or about the time of the event recorded - consists of information observed by employees of the business or a statement that falls within an independent H/S exception |
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Foundation to Prove Business Record (2)
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- call sponsoring witness to testify to the 5 elements or
- written certification under oath |
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Public Records (3)
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- activities of office or agency (e.g. payroll)
- matters observed pursuant to a duty imposed by law (Weather bureau) - findings of fact or opinion resulting from an investigation authorized by law (OSHA) |
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Exclusion of public records
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those made for prosecutorial purposes in a criminal case
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NC Police Report Exclusion
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Applies the exclusion only when the prosecution is the predominant purpose of the report
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Impeachment of Hearsay Declarants
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Opponent may use any of the impeachment methods to attack the credibility of a hearsay declarant
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