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44 Cards in this Set
- Front
- Back
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RELEVANCE
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Any fact that is of consequence-- does it make the proposition more probable with it than it would without the information
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COMPETENCE
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Does the witness have the ability to perceive, understand, remember and communicate the event?
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FOUNDATION
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A proper basis for admission of testimony. The evidence must be authenticated and a basis established that shows it is reliable.
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EXPERT TESTIMONY
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Needs foundation showing the expert had sufficient education, training, background and experience
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PHOTOGRAPHS
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Photos must depict what they purport to depict
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RULE 403 PROBLEMS
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Authorizes the exclusion of relevant evidence on grounds of prejudice, confusion or waste of time. Is the probative value of evidence substantially outweighed by danger of unfair prejudice, confusion and delay.
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Character Evidence
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May not be introduced to
1. Prove the defendant acted in conformity with specified character trait. 2. To show that someone has a propensity to act in a certain way. |
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Character is issue in criminal case ONLY
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1. After the defendant first offers character evidence (by general reputation only) OR
2. By testifying, the defendant places his or her character for truthfulness at issue. Evidence offered is limited to relevant character traits-- relevant to the crime charged |
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Prosecution
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1.May impeach character witnesses through specific instances of bad character
2. May rebut the defendant's good character evidence by offering evidence again through general reputation witnesses of defendant's bad character. |
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What are the specific instances of conduct that may be used to prove character
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Motive, opportunity, intent, common plan, scheme, design, identity or absence of mistake or accident (mimic rule, signature crimes, social killers)
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HABIT
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Habit is defined as a regular and systematic routine and is proved by showing specific instances of conduct.
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PRIVATE MARITAL COMMUNICATION
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Either spouse has the right to prevent the other spouse form testifying about confidential communications between them while they were married-- this is true even if the testimony would occur subsequent to a divorce-
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SPOUSAL TESTIMONY<BR><BR>2. OBSERVATIONS OR TRANSACTIONS OF SPOUSE
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Where husband or wife is criminal defendant during term of legitimate marriage, his or her spouse may:<BR><BR>1. State court- may not testify about anything if either the witness or party spouse opposes such testimony.<BR><BR>2. Federal court- may testify if he or she voluntarily elects to- even over the party spouse's objection for observations and transactions only. Includes those that preceded marriage.
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IMPEACHMENT
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Scope of cross is bias, credibility and matters covered on direct testimony
You may impeach any witness by showing that his general reputation for truthfulness is bad, by his prior criminal convicitons and his prior bad acts that bear on truthfulness |
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BIAS
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As of right, one can inquire into matters pertaining to bias. (Family relationships, compensation of a witness, pending criminal charges and anything which would provide hte witness with a motive to lie or allow the jury to find tha thte witness is under an influence to prevaricate.
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PRIOR CONVICTIONS- LESS THAN 10 YEARS OLD
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Court has no discretion to exclude a conviction for a crime involving a false statement or dishonest act that is less than 10 years old. (Includes felonies and misdemeanors)
All other felonies are subject to 403 analysis unless it's a prior conviciton of crim defendant. it is then excluded if it is more prejudicial than probative |
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PRIOR CONVICTIONS- GREATER THAN 10 YEARS OLD
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Measured from date of last conviction or incarcertaion whichever is later) requires:
A. Prior notice of the intention to use the crime for impeachment. B. A ruling, supported by specific facts and circumstances that he probative value of the conviction substantially outweighs its prejudicial effect. |
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PRIOR CONVICTIONS- ACCUSED
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Conviction may be exluced if prejducial effect is greater than the probative value.
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PRIOR CONVICTIONS- OTHERS
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Only if prejudice is substantially greater than the probative value- conviction is excluded.
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CROSS EXAMINATION
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Scope of direct and any sensory deficiences applicable to that witness.
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EXPERT WITNESS (1)
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Expert must have sufficient background, education, training, experience. Experts can't testify on the ultimate legal issue, but just factual issues.
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EXPERT WITNESS (2)
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Experts can acquire information through inadmissible evidence if responding to a hypothetical question, like personal knowledge, through information acquired only by observing the trial.
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EXPERT TEST
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1. Based on Principles of Science
2. Subject to Peer Review 3. Publication 4. Examination of Potential for Error 5. Has it been tested? |
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PHOTOGRAPHS
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Must depict what they purport to depict
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BEST EVIDENCE
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To prove the contents of a writing, recording or other documents, you must show original unless you can explain why they're not available.
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SUBSEQUENT REMEDIAL MEASURES
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Come in to show ownership, control, or feasibility
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OFFERS TO PAY MEDICAL EXPENSES
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Inadmissible, but anything said during hte offer to pay is admissible.
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BEST EVIDENCE 2
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Once you decide that the original is not available, any method is good, even a person's recollection, but you must use the best method. This rule does not apply to a collateral matter.
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UNAVAILABILITY EXCEPTIONS
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Had to be subject to cross at time testimony was given-- grand jury testimony, affidavits don't apply
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FORMER TESTIMONY
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Subject to/opportunity for cross byyou ro someone privy with you, who had a similar interest. Excludes statement made to police official.
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DYING DECLARATION
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Statement made before imminent death (death doesn't have to occur) concerning circumstances of that death. Civil or homicide case only
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STATEMENT OF FAMILY HISTORY
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Records of date of birth, death
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FORFEITURE BY FLIGHT OF WITNESS
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Done something wrong to procure the loss of that witness' attendance
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PRESENT PHYSICIAL CONDITION
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Present then existing physicial or mental condition.
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PRESENT MENTAL STATE
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Things person intends to do in future.
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STATEMENT OF TREATMENT OR DIAGNOSIS
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Statement made for purposes of obtaining treatment or diagnosis, must be pertinent, can even include past medical conditions.
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EXCITED UTTERANCE
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Statement describing or explaining a startling event made while under the stress or excitement of the condition. At the time, or immediately thereafter, the longer after the event, less likely to be an excited utterance.
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PRESENT SENSE IMPRESSION
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Statement describing an event or condition made while perceiving it or immediately thereafter.
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PAST RECOLLECTION RECORDED
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Read into evidence by the witness or played if a tape recording (only one that reaquires witness to be on stand)
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PRESENT RECOLLECTION REFRESHED
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Anything can be used to refresh. If refreshing while on stand, opponent has right to review what was used to refresh. Court has discretion of whether to allow opponent to see it.
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RECORDS EXCEPTIONS
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Used for businesses/govt- allowed without the person who had done the act to be present, come in through keeper of hte records and must be established that its reliable.
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OFFER OF PROOF
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Ofer made for excluded evidence unless it's a witnesses' testimony and hte answer will be obvious. This is to preserve evidence on appeal.
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JUDICIAL NOTICE
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To prove facts that are capable of being readily ascertained and verified.
In civil case, it's conclusive. In a criminal case, the jury can disregard. |
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LIMITED ADMISSIBILTY
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Prior inconsistent notices, presumptions- aid in making burden of proof.
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