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41 Cards in this Set
- Front
- Back
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Similar matters are generally inadmissible. List exceptions
F SSS H |
F alse Claims
S im Accidts b/c of same condition S im past acts to prove intent S im Property values H abit |
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Character evidence generally inadmissible but can be used when
CIP |
C character one element of case
I impeach P Probability of similar conduct |
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How do we prove character?
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Specific acts when character is an element of case
Opinion about other's character Testimony re: reputation in community NOT USED IN CIVIL CASES |
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List the kinds of relevant evidence that may be excluded for public policy reasons.
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Liability Insurance
Subsequent remedial measures Settlement offers Offers to pay medical expenses W/D guilty pleas |
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What can the prosecution do once the defendant has attacked the victim's character
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Rebut claims made there.
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When are sub remedial measures admissible?
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When they show control, to rebut claim that repairs not feasible, or to prove destruction of evidence
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When are offers to pay medical bills admissible?
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Admissions of fact contained therein are admissible.
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How do we show character?
SOR |
Specific acts
Opinion testimony Reputation in the community |
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Prosecution can cross defense opinion/reputation witness by what means?
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By asking about how witness came about that opinion, including specific acts NO EXTRINSIC EVIDENCE
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SA case, CW prior history admissible to show
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Injury, semen or other physical evidence. Also prior acts with accused are admissible.
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404 b F R Evid is admissible to show
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Motive
Intent Mistake Identity Common Plan |
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Judicial notice is done when the facts are:
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Established scientific procedure
Capable of verification common knowledge or Adjudicative/Legislative |
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Authentication is accomplished when
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Handwriting verification by non-expert or an expert
one testifies that they saw document prepared |
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Ancient document is more than
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Twenty years old,
in non suspect condition found in a place where it would be kept |
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Best Evidence/Original Document rule is that
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Original must be produced to prove terms of a writing and secondary evidence only admissible if it is shown that original unavailable.
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Best evidence rule does not apply if:
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Fact proved is independent of writing
Writing is collateral to issue litigated Public record certified. |
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Name five ways to impeach a witness
PAC-SM |
1. Prior Inconsistent Statement
2. Act of Lying 3. Criminal Conviction 4. Sensory Deficits 5. Motive |
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Attorney Client, Psychotherapist Patient and Spousal Communications. What do these things have in common?
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They are the recognized Federal Testimonial Privileges.
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Can a witness refuse to testify in a Federal civil case, claiming the privilege against self-incrimination?
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Yes
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What is not hearsay?
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Non-assertive conduct is not hearsay.
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What is not hearsay?
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Prior statement by witness
Admission by party opponent Adoptive admission(silence where party understood and heard stmt and was physically capable of denying stmt A reasonable person would have denied stmt. NOT IN CRIM cases Or Prin Agent, Coconspirator |
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Unavailability for hearsay purposes
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refuses to testify
Privilege Cannot be subpoenaed Death Lack of memory |
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Declarant unavailable. Name five exceptions to the hearsay rule. Pt's-SAI-DD-Fam-Pro
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Prior testimony (under oath same subject matter)
Statements against interest Dying declaration (believing death is imminent & statement is about cause) Personal family history Stmts against one who initially arranged for wit to be unavailable. |
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The five kinds of hearsay where unavailability must be shown are:
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Prior, former testimony
Dying declaration Family History Statements against interest Statement against one who made wit unavail to begin with |
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Admission by party opponent
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Need not have been against interest when made
Declarant need not have personal knowledge of facts Declarant can be available or not Declarant must be a party |
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Statement against interest
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Must have been vs interest when made
Personal knowledge of facts reqd Declarant unavail. |
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It does not matter if declarant unavailable.
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Present state of mind(about intent)
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What is an excited utterance? Is the declarant's availability an issue?
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Excited utterance which
relates to startling event about statement made while under stress of that event no time to reflect. Declarant's availability immaterial |
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It does not matter if declarant unavailable
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Present sense impression which is contemporaneous with the sense impression of an event that may or may not be exciting.
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Declarant Availability immaterial. Start with
S-E-PSI-Phys Condition |
State of Mind
Excited utterances under stress Present sense impression (w/percep) Present Physical condition |
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Declarant Availability Immaterial
MD BRec |
Medical diagnosis statements about past condition if made to medical personnel to get treatment.
Business records business regular course personal knowledge |
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Past recollection recorded (declarant availability immaterial)
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document admissible when witness' memory cannot be revived
then document can be read into record so long as it was created near time of event |
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declarant availability immaterial....name another exception that rhymes with bublic
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Public Rec Reports
if under duty to report at or near time of event not admissible against D in crim case but for him and in civil cases |
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Declarant availability immaterial
Vit/AbPub/Anc/P/Fam VAPAPF |
Vital Statistics
Absence Entry Public record Ancient documents Property Deeds and Wills Reputation (character, pers fam history) Family records Market reports |
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What is not hearsay, one more time?
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Nonassertive conduct
Statement not offered for that truth Inconsistent statement Consistent to rebut ID Admission Party Opponent. |
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Unavailability is required....what are the exceptions?
FDAPP |
Former
Dying Against Interest Pers/family Procuring |
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Availability Immaterial
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State of mind
excited utterance Present sense Physical condition Rec Rec Bus Rec Pub Rec Vital Rec Judgment Ancient documents Prop Docs Learned treatises Fam Recs |
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Declarant unavailable
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privilege is claimed
refuses to testify beyond Process lacks memory dead |
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List the Exceptions for unavailable hearsay
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Former testimony
former party same subject matter oath oppty to develop testimony Statement against interest personal knowledge aware vs. interest those about declarant Dying decs about cause of death in homicide or wd action Personal family hx |
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Contrast statements against interest with admissions by party opponent
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SAI = stmt against interest when made by decl w personal knowledge of facts
Decl unavailable APO = decl must be a party need not be unavailable pers knowledge unnecess stmt need not be vs interest when made |
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Declarant availability not material
P/E/PSI/PrBodCond/MdTx/Bus/Past/Pub/Abs/Vit/Anc/LT |
Present state of mind
Excited utterance Present sense Impression Present Bodily Condition Med Treatment Business Rec Public Record Past Rec Rec Abs Pub Record Vit Stat Record |
