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41 Cards in this Set
- Front
- Back
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When is evidence relevant?
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Evidence is relevant if it has any tendency to make a material fact more probable or less probable than would be the case without the evidence.
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When will relevant evidence not be admissible?
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All relevant evidence is admissible unless some specific exclusionary rule is applicable, or the court makes a discretionary determination that the probative value of the evidence is substantially outweighed by pragmatic considerations.
a. Danger of unfair prejudice b. Confusion of the issues c. Misleading the jury d. Undue delay e. Waste of time f. Unduly cumulative |
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What similar occurrences will generally be inadmissible?
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Plaintiff's accident history
Similar accidents caused by same event or condition |
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What similar occurrences will generally be admissible?
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Intent in issue
Comparable sales on issue of value Habit Industrial custom as standard of care |
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What evidence will generally be inadmissible for policy reasons?
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Liability insurance
Subsequent remedial measures Settlements of disputed civil claims Offer to pay hospital or medical expenses |
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What is character evidence?
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refers to a person's general propensity or disposition, e.g., honesty, fairness, peacefulness, or violence.
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What are some potential purposes for the admissibility of character evidence?
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1. Person's character is an essential element in the case (substantive law requires proof of a character trait).
2. Character evidence to prove conduct in conformity with character at the time of the litigated event, aka the character as circumstantial evidence of conduct on a particular occasion. 3. Witness's bad character for truthfulness to impeach credibility. |
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When may the prosecution in a criminal case refer to character evidence regarding defendant?
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Only after defendant has opened the door.
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What does rape shield law do?
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in both criminal and civil cases, where defendant is alleged to have engaged in sexual misconduct, the following evidence about the victim is ordinarily inadmissible.
a) Opinion or reputation evidence about the victim's sexual propensity, or b) Evidence of specific sexual behavior of the victim. |
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Exceptions to the rape shield law?
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i. Specific sexual behavior of the victim to prove that someone other than the defendant was the source of the semen or injury to the victim.
ii. Victim's sexual activity with the defendant if the defense of consent is asserted; or iii. Where exclusion would violate defendant's right of due process |
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When can defendant's other crimes be admitted for non-character purposes?
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Motive
Intent Mistake or accident, absence of Identity Common Scheme or Plan |
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What are the requirements of the ancient document rule?
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1. at least 20 years old
2. facially free of suspicion 3. found in a place of natural custody |
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What are self-authenticating documents?
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1. official publications
2. certified copies of public or private records on file in public office 3. newspapers or periodicals 4. trade inscriptions and labels 5. acknowledged document - notary 6. commercial paper |
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What is the best evidence rule?
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a party who seeks to prove the contents of a writing (includes sound recordings, x-rays, films), must either produce the original writing or provide and acceptable excuse for its absence. If court finds excuse is acceptable, the party may then use secondary evidence - oral testimony or a copy. Better described as the "original writings" rule.
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When does the best evidence rule not apply?
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when a witness with personal knowledge testifies to a fact that exists independently of a writing which records the fact.
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What is the NC Dead Man's Statute and its exception?
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a. Interested witness incompetent only if testimony concerns oral communications between witness and decedent.
Exception - an interested witness may testify against the decedent's estate concerning the identity of the operator of a motor vehicle. |
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When are leading questions allowed?
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a. Generally not allowed on direct examination
b. Generally allowed on cross-examination c. But allowed on direct exam as follows: 1) Preliminary introductory matters 2) Youthful or forgetful witness 3) Hostile witness 4) Adverse party or someone under the control of the adverse party |
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What is refreshing recollection?
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if witness's memory fails him, he may be shown a memorandum (or any other tangible item) to jog his memory.
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What is past recollection recorded, what are the elements, and can it be introduced into evidence?
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1) Showing writing to witness fails to jog memory
2) Witness had personal knowledge at former time 3) Writing was either made by witness, or adopted by witness 4) Making or adoption occurred while the event was fresh in the witness's memory 5) Witness can vouch for accuracy of writing when made or adopted. Can only be read into evidence |
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What is necessary for an expert witness in a med-mal case in NC?
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NC - in medical malpractice actions, expert must be specialist in same field as defendant; and during year prior to incident at issue, expert must have spent majority of time in clinical practice or as instructor at medical school.
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What are the impeachment methods?
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1. Prior inconsistent statements
2. Bias, Interest or motive to misrepresent 3. Sensory deficiencies 4. Bad reputation or opinion about witness's character for truthfulness 5. Criminal convictions 6. Inquiry about bad acts 7. Contradiction |
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What are the elements for attorney-client privilege?
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a. Confidential communications
b. Between attorney and client (or representative of either) c. Made during professional, legal consultation d. Unless privilege is waived by the client e. Or an exception is applicable |
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What are the elements for the physician-patient privilege?
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a. Confidential communication or information acquired by physician from patient
b. For purpose of diagnosis or treatment of medical condition c. Also applicable to psychotherapists d. Federal distinction - in federal court actions based solely on federal law, privilege exists only for psychotherapy. |
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What is the spousal immunity privilege?
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In criminal cases only, a spouse cannot be compelled to testify to anything against the defendant spouse. (may voluntarily testify)
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What is the confidential communications between spouses privilege and who holds it?
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a. In any type of case, a spouse is not required, and is not allowed in the absence of consent by the other spouse, to disclose a confidential communication made by one to the other during marriage.
Both spouses hold this privilege. |
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What is hearsay?
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Out of court statement of a person (oral or written) AND
Offered to prove the truth of the matter asserted in the statement. |
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What are the principal categories of non-hearsay purposes?
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1. Verbal act (legally operative words) - situation where the substantive law attaches legal rights and obligations to certain words, simply because the words were spoken.
2. Words that show effect on person who heard or read the statement 3. Circumstantial evidence of speaker's state of mind |
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Are party admissions hearsay?
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FRE - no, excluded.
NC - yes, but an exception to hearsay. |
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What are the hearsay exceptions?
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1. Former testimony
2. Statement against interest 3. Dying declaration 4. Excited utterance 5. Present sense impression 6. Present state of mind 7. Declaration of intent 8. Present physical condition 9. Statement for purpose of medical treatment or diagnosis 10. Business records 11. Public records |
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What is former testimony?
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The former testimony of a now-unavailable witness, if given at a former proceeding or in a deposition, is admissible against a party who, on the prior occasion, had an opportunity and motive to cross-examine or develop the testimony of the witness. Issue in both proceedings must be essentially the same.
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What is a statement against interest and how does it differ from a party admission?
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An unavailable declarant's statement against his or her pecuniary, proprietary, or penal interest (money, property or criminal liability)
1) Must be against interest when made 2) Any person (not merely party) can make statement against interest 3) Personal knowledge required 4) Declarant must be unavailable |
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What is a dying declaration? How is it applied in federal cases and state cases?
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Statement made under a belief of impending and certain death by a now-unavailable declarant concerning the cause or surrounding circumstances of the declarant's death. (need not die so long as declarant thought he would and thereafter becomes unavailable)
1) Federal a) Criminal cases - homicide only b) Civil cases - all types 2) NC a) Criminal and civil cases - all types |
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What is an excited utterance? What factors to consider?
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Statement concerning a startling event and made while declarant is still under the stress of excitement caused by the event
1) The nature of the event 2) Passage of time 3) Visual clues a) Exclamatory phrase b) Excitement oriented verbs c) Exclamation point |
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What is present sense impression? Standards in FRE and NCRE?
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Description of an event made while the event is occurring or immediately thereafter
FRE - within seconds. NC - 10 minutes later is sufficiently close. |
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What is present state of mind?
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Contemporaneous statement concerning declarant's present state of mind, feelings, emotions
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What is declaration of intent?
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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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What is present physical condition?
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Statement made to anyone about declarant's current physical condition
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What is a statement for the purpose of medical treatment or diagnosis?
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Statement made to anyone (but usually involves medical personnel) concerning past or present symptoms or general cause of condition for the purpose of treatment or diagnosis.
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What are the elements for business records?
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1) Records of any type of business
2) Made in the regular course of the business 3) The business regularly keeps such records 4) Made at or about the time of the event recorded 5) Content consists of a) Information observed by employees of the business, or b) A statement that falls within an independent hearsay exception |
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What are public records?
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Records of a public office or agency setting forth
1) The activities of the office or agency; or 2) Matters observed pursuant to a duty imposed by law; or 3) Findings of fact or opinion resulting from an investigation authorized by law (including interviews of outsiders) |
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What exclusion does NC apply to public records, and will this exclusion still hold?
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NC - applies the police report exclusion only when prosecution is the predominant purpose of the report. This may not be ok anymore because the person preparing the report (i.e. a chemist) must be cross-examined in order for the report to be admissible.
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