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44 Cards in this Set

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what is the definition of hearsay?
hearsay is a statement, other than one made by the declarant while testifying at the trial/hearing, offered in evidence to prove the truth of the matter asserted.
what is the former testimony exception to hearsay?
testimony of a now unavailable witness given at another hearing or in a deposition taken in accordance with 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.
may a witness claim the privilege of self-incrimination at any proceeding?
the privilege against compelled self-incrimination may be claimed at any proceeding, whether civil or criminal, at which the witness's appearance/testimony are compelled.

note: applicability of the privilege doesn't depend on likelihood of actual criminal prosecution.
what is impeachment?
impeachment involves the casting of an adverse reflection on the truthfulness of a witness.
what must be done before a writing is received into evidence?
before a writing may be received in evidence, it must be authenticated by proof showing that the writing is what the proponent claims it is.
who should decide the authenticity of a document?
the authenticity of a document is a preliminary fact to be decided by the jury.
who may authenticate a recording of a voice?
any person familiar w/an alleged speaker's voice may authenticate a recording of the voice by giving an opinion as to its identity.

note: lay opinion testimony is sufficient to identify a voice.
who may verify a writing?
someone with (1) personal familiarity with the person's handwriting; or (2) a basis for forming an opinion as to the handwriting derived from speciailized knowledge; or (3) a particular fact-finding function, such as that assigned to the jury.
what is a typical Dead Man Act?
A Dead Man Act provides that a party or person interested in the event, or her predecessor in interest, is incompetent to testify to a personal transaction or communication with a deceased, when such testimony is offered against the representative or succesor in interest of the deceased.

they are designed to protect those who claim directly under the decedent from perjured claims.
what is an admission?
an admission is a statement made or an act done that amounts to a prior acknowledgment by one of the parties to an action of one of the relevant facts.
what is the theory of allowing admissions of party-opponents?
courts allow admissions by a party-opponent on the theory that if the party sais or did something that now turns out to be inconsistent with his contentions at trial, he should be estopped from preventing the earlier statement's admission into evidence.
are vicarious admissions allowed?
some statements are considered admissions even if not made by the party against whom they are offered. i.e. a statement by an agent concerning a matter w/n the scope of her agency, mady during the existence of the agency relationship.
are evidence of repairs/precautionary measures made after an injury admissible to prove negligence?
no, for public policy reasons. the purpose is to encourage people to make such repairs.
what is the difference between habit evidence and character eveidence?
habit describes one's regular response to a specific set of circumstances. character describes ones's disposition in respect to general limits.
in a civil case, is evidence of character to prove the conduct of a person in the litigated event admissible?
generally, no. slight probative value of character is outweighed by the dangers of prejudice and distracting from main issue.
what is evidence of habit?
habit describes a person's regular response to a repeated specific situation.
what is character evidence?
character describes one's disposition in respect to traits or general patterns of behavior.
is evidence of habit relevant and admissible?
evidence of a person's habit is relevant to prove that the conduct of the person on a particular occasion was in conformity with that habit and therfore admissible.
what is the dying declaration exception to hearsay?
a statement made by a now unavailable declarant while believing her death was imminent that concerns the cause/circumstances of what she believed to be her impending death is admissible.
when applying the dying declaration exception, must the declarant actually be dead?
no. the declarant need not actually die as a result of the circumstnaces giving rise to her belief of imminent death.
what does one need to testify as an expert?
a person must have special knowledge, skill, experience, training, or education sufficent to qualify him as an expert on the subject to which the testimony relates. the expert must possess reasonable certainty or probability regarding his opinion.
who may testify if the subject matter is scientific, technical, or requires specialized knowledge?
expert testimony is admissible and appropriate. in these areas, layperson testimony would not be permitted.
who may motion to strike an unresponsive answer?
the examining counsel only, not opposing counsel.
may examining counsel adopt an unresponsive answer?
yes, examining counsel can adopt an unresponsive answer if it is not ofjectionable on some other ground.
will state courts take judicial notice of law of a foreign country?
no.
what is a notorious fact?
facts of common knowledge in the community
what is a manifest fact?
fact capable of certain verification by resort to easily accessible sources of unquestionable accuracy.
are notorious or manifest facts appropriate for judicial notice?
yes both are appropriate for judicial notice. notice MUST be taken of these facts if so requested by a party.
what is relevant evidence?
relevant evidence tends to prove or disprove a material fact in issue.
when is proof of specific instances of a person's conduct admissible?
when character is directly in issue.
when is evidence relevant?
evidence is relevant if it tends to make the existence of a material fact more probable or less probable than it would be w/o the evidence.
when may relevant evidence be admissible?
relevant evidence may be admitted unless there is some specific rule against its admission, (i.e. hearsay)
is there a situation where a patient cannot invoke his doctor-patient privilege?
a person cannot invoke the doctor-patient privilege, which prohibits the doctor from divulging information acquired while attending a patient, where that person has put his physical condition in issue, (i.e. personal injury case)
what is the general rule regarding bolstering or accrediting the testimony of a witness?
generally, a party may not bolster or accredit the testimony of her witness until the witness has been impeached.
what is the public records exception to hearsay?
under the public records exception to hearsay rule, records, reports, statements, or data compilations in any form of public offices or agencies are admissible if they set forth: (1)the activites of the office or agency; (2) matters observed pursuant to a duty imposed by law (excluding police observations in crim cases); (3) factual findings resulting from an investigation made pursuant to authority granted by law, in civil actgions and against the government in crim cases.
is a photograph always admissible?
no. a photo is not admissible unless proper foundation is laid. absent verification and identification,(foundation), a photo is not admissible.
what must be done for a photo to be admissible?
proper foundation must be laid. a photo must be identified by a witness as a portrayal of certain facts relevant to the issue, and verified by the witness as a correct representation of those facts.
must the person testifying be the person who took the photo?
no. it is sufficient if the identifying witness is familiar w/the scene or object that is depicted.
what is the holding in the Hillman case?
the Hillman court held that state of mind is admissible to show that the declarant acted in conformity w/his expressed declaration.
may the state of mind exception to hearsay include declarations of intent?
yes. declarations of intent offered to show subsequent acts of the declarant, i.e. a statemnt of intent to do something in the future is admitted as circumstantial evidence that the intent was carried out.
may evidence of a witness's possible bias be admitted?
evidence that a witness is biased or has an interest in the outcome of the case tends to show that the witness has a motive to lie.
how can bias of a witness be proven?
bias or adverse interest can be proved by cross-examination or extrinsic evidence.
when is lay opinion testimony admissible?
it is admissible when (1) it is rationally based on the perception of the witness; (2) it is helpful to a clear understanding of his testimony or to the determination of a fact in issue; and (3) it is not based on scientific, technical, or other specialized knowledge.
are lay opinions allowed regarding the general appearance/condition of a person?
yes.