Evidence (Mbe)

Front 1

Threshold Admissibility

Back 1

GENERAL RULE

Evidence is admissible if it is relevant, and if it is competent

Front 2

Relevance (Definition)

Back 2

evidence tending to prove any material fact to the action

Front 3

Direct or Real Evidence

Back 3

NO INFERENCES INVOLVED

testimony/real evidence speaking directly to material issue in case

Front 4

Circumstantial Evidence

Back 4

RELIES ON INFERENCE

evidence of collateral fact from which (or in conjunction with other facts) allow inference of material issue

Front 5

Exclusion of Relevant Evidence

Back 5

Relevant Evidence MAY be EXCLUDED for:

i. prejudicial effect (judicial discretion)
ii. public policy

Front 6

Relevance of Similar Occurrence(s) in Past

Back 6

- must be probative of material issue (relevant)

examples:

- prior false claims
- same bodily injury
- similar injury caused by same event/condition
- previous similar acts as proof of intent
- rebuttal of claim of impossibility
- sales of similar property
- habit

Front 7

Habit (Definition)

Back 7

a person's regular response to a specific set of circumstance

Fed. Rule 406 - evidence of habit relevant to prove that conduct on particular occasion in conformity with habit

Hint 7

Indicated by terms such as:

- INSTINCTIVELY

- AUTOMATICALLY

Front 8

Subsequent Remedial Measures

Back 8

INADMISSIBLE TO SHOW NEGLIGENCE/CULPABLE CONDUCT/DEFECT/NEED FOR WARNING

ADMISSIBLE TO SHOW:
i. proof of ownership/control
ii. rebuttal of claim that precaution was not feasible
iii. proof that adverse party has destroyed evidence

Front 9

Liability Insurance

Back 9

INADMISSIBLE TO SHOW NEGLIGENCE OR ABILITY TO PAY

ADMISSIBLE TO SHOW:
i. proof of ownership/control
ii. as impeachment
iii. as part of an admission

Front 10

Settlement Offers & Withdrawn Guilty Pleas

Back 10

INADMISSIBLE TO SHOW LIABILITY FOR/INVALIDITY OF A CLAIM DISPUTED AS TO VALIDITY OR AMOUNT

Front 11

Offers of Payment for Medical Expenses

Back 11

INADMISSIBLE

BUT... admissions of fact which accompany offers ARE admissible

Front 12

Admissible Evidence of Character

Back 12

i. Evidence of Specific Act

2. Opinion Testimony (witness must know person)

3. Testimony re: General Reputation

Hint 12

CIVIL CASES - GENERALLY INADMISSIBLE

CRIMINAL CASES - GENERALLY DEFENDANT MUST INITIATE

Front 13

Character Evidence (Criminal Cases)

Back 13

1. Defendant introduces

2. Prosecution is then able to rebut via:
- cross-examining witness re: basis of testimony
- calling qualified witnesses to testify as to D's bad character

Front 14

Admissible Specific Acts of Misconduct

Back 14

INADMISSIBLE FOR PURPOSE OF ESTABLISHING CRIMINAL DISPOSITION/BAD CHARACTER

ADMISSIBLE for select purposes:
- motive
- intent
- absence of mistake/accident
- modus operandi
- common plan/scheme

Hint 14

Specific Acts will only be admissible if:

1. there is sufficient evidence to support a jury finding that D committed prior act
2. probative value is not outweighed by potential unfair prejudice

Front 15

Prior Acts of Sexual Assault

Back 15

Admissible in case where D accused of sexual assault

Front 16

Facts - Judicial Notice

Back 16

facts which are:

- indisbutable
- matters of common knowledge
- matters capable of verification

Hint 16

- may occur at any time

- no requirement that party request judicial notice

Front 17

Authentication (actual physical evidence)

Back 17

object must be identifies as what it is claimed to be:
1. witness testimony that they recognize the object as what it is claimed to be
2. evidence that object has been in proper chain-of-custody

Hint 17

real evidence may be DIRECT, CIRCUMSTANTIAL, or DEMONSTRATIVE

Front 18

Handwriting Verification

Back 18

The following may verify handwriting:
- opinion of non expert with personal knowledge
- opinion of expert who has compared samples
- comparison by trier-of-fact

Front 19

Ancient Document

Back 19

i. document is at least 20 years old
2. document is in such a condition that is free from suspicion of authenticity
3. found in place such writing likely would be kept

Front 20

BEST EVIDENCE RULE

Back 20

Application:
i. writing is legally operative or dispositive instrument

2. knowledge of witness concerning a fact results from having read that fact in the document

Hint 20

Definition- to prove the terms of a document, the original must be produced in the terms of the writing are material; secondary evidence of the writing is only admissible if the writing is not available

Front 21

Competency of Witness

Back 21

1. witness must have personal knowledge of matter on which they are testifying
2. witness must take oath to testify truthfully

Front 22

Refreshing Recollection

Back 22

may be used to refresh memory of witness; witness may not read from writing while testifying (writing is not authenticated, and not in evidence)

Front 23

Past Recollection Recorded - Foundation

Back 23

Foundation MUST include proof that:

1. witness at one time had personal knowledge of recorded facts
2. writing was made by the witness or under their direction, or has been adopted by the witness
3/ writing was made timely (when matter fresh in witness' mind)
4. writing is accurate
5. witness has insufficient recollection to testify fully and accurately

Front 24

Expert Witness

Back 24

may state opinion/conclusion if

1. subject matter is one where scientific/technical/specialized knowledge would assist trier of fact
2. witness is qualified as an expert
3. expert possesses reasonable probability regarding their opinion
4. opinion supported by proper factual basis

Front 25

Proper Factual Basis (for expert testimony)

Back 25

i. personal observation
ii. facts made known to expert at trial
iii. facts not known personally but supplied outside the courtroom, and of a type reasonably relied on by other experts in the field

Front 26

Impeachment of Own Witness

Back 26

only legit where:

1. witness is an adverse party or identified with an adverse party
2. witness is hostile and affirmatively uncooperative
3. witness is one whom the party is REQUIRED BY LAW to call
4. witness gives surprise testimony

Front 27

Prior Inconsistent Statement

Back 27

- may be shown on cross, or by extrinsic evidence

- extrinsic evidence must have proper foundation

Hint 27

impeachment method

Front 28

Extrinsic Evidence of Prior Inconsistent Statement - Foundation

Back 28

Witness must, at some point, given opportunity to explain or deny statement

EXCEPTION - to impeach hearsay declarants, foundation not required

Front 29

Bias or Interest

Back 29

-tendency to show witness has motive to lie

-impeachment by extrinsic evidence ONLY legit where witness is asked about cross-examination

Front 30

Conviction of Crime

Back 30

- arrest/indictment insufficient

- only available for certain crimes:
1. crime involving dishonesty (legit impeachment)
2. felony, not involving dishonesty (legit impeachment)
Judge may exercise discretion re: felonies w/o dishonesty, if --
i. witness being impeached is criminal D, and prosecution has not shown probative value outweighs prejudice
2. court determines that conviction probative value is outweighed by prejudice

Front 31

Conviction Exclusions

Back 31

1. remote convictions (10 years past conviction/end of imprisonment - whichever is sooner)
2. juvenile convictions
3.constitutionally defective convictions

INADMISSIBLE

Front 32

Pardons

Back 32

Conviction INADMISSIBLE if D has been pardoned, and:
1. pardon based on innocence
2. person pardoned not convicted of subsequent felony

Front 33

Bad Acts

Back 33

- impeachment OK, but only if offered to attack witness character for truthfulness, and cross-examiner inquires in good faith

Front 34

Opinion/Reputation Evidence of Truthfulness

Back 34

impeachment OK

Front 35

Sensory Deficiency

Back 35

OK impeachment

Front 36

Contradictory Facts

Back 36

extrinsic evidence of contradictory facts to impeach where:
i. testimony on particular fact is material issue in case
ii. testimony of particular fact significant on issue of credibility
iii. witness volunteers testimony about subject as to which opposing party would otherwise be precluded from offering evidence

---not permitted to prove contradictory facts that are NOT MATERIAL

Front 37

Impeachment of Hearsay Declarant

Back 37

- evidence that would be admissible if the declarant had testified as witness

- declarant need not be given opportunity to explain or deny prior inconsistent statement
- party against whom the out-of-court statement was offered may call the declarant as a witness and cross-examine about statement

Front 38

Rehabilitation - Explanation on Redirect

Back 38

permissible

Front 39

Rehabilitation - Prior Consistent Statement

Back 39

---

Front 40

Objections

Back 40

made after question, before answer

mition to strike must be made as soon as answer emerges

-failure to object is deemed waiver of any ground for objection

Front 41

General Objection

Back 41

-sustained will be upheald on appeal; overruled held up on appeal (unless evidence was not admissible for any purpose, under any circumstances)

Front 42

Specific Objection

Back 42

- sustained, states reason, upheld on appeal only if ground states was correct, or if evidence excluded was not competent/could not be made so

Front 43

Part of Transaction

Back 43

if part of convo/act/writing introduced, adverse party may require any other part that should be considered (in fairness)

Front 44

Waiver of Privilege

Back 44

privilege waived:

i. failure to claim the privilege
ii. voluntary disclosure of privileged matter by privilege holder
iii. contractual provision waiving in advance right to claim privilege

Hint 44

-- waiver by one joint holder does not affect right to claim privilege by other holder

Front 45

Attorney-Client Privilege

Back 45

- communications made during professional consultation (seeking services of atty at the time of communication)

- Confidential Communications - unless made in the known presence and hearing of stranger communication privileged

- only client may waive

- indefinite application

Front 46

Attorney-Client Privilege Exceptions

Back 46

1. attorney's services sought to aid in the planning/commission of something client should have known was a crime/fraud

2. communication relevant to issue between parties claiming through same deceased client

3. Communication relevant to issue of breach of duty in dispute between attorney and client

Front 47

Attorney Work Product

Back 47

- not subject to discovery except in cases of necessity

Front 48

Physician-Patient Privilege

Back 48

i. professional relationship exists
ii. information acquired while attending patient in the course of treatment
iii. information necessary for treatment

PRIVILEGE WILL NOT APPLY IF:
- patient puts physical condition in issue
- physician's assistance sought to aid wrongdoing
- communication relevant to an issue of breach of duty in a dispute between physician and patient
- patient agreed by contract
- federal case applying federal law of privilege

Front 49

Psychotherapist/Social Worker-Client

Back 49

federal privilege

Front 50

Spousal Privileges - Immunity

Back 50

- married person whose spouse is D in a criminal case MAY NOT be called as witness by prosecution
- Married person may not be compelled to testify against his spouse in any criminal proceeding, even if spouse is not D

- privilege only applies to valid marriage, and terminates at the end of the marriage

Hint 50

- held by witness-spouse; witness-spouse cannot be compelled to testify against spouse, but may elect to

Front 51

Confidential Marital Communications

Back 51

confidential communications between spouses during valid marriage privileged

- communications AFTER divorce not privileged

- communication must be made in reliance upon the intimacy of the relationship

Front 52

Privilege against Self-Incrimination

Back 52

5th Amendment

- witness compelled to appear may refuse to give answer that ties the witness to the commission of a crime

Front 53

Clergy or Accountant Privilege

Back 53

Legit.

Front 54

Professional Journalist Privilege

Back 54

NO CONSTITUTIONAL PRIVILEGE

- states may have statues for privilege

Front 55

Governmental Privilege

Back 55

information not otherwise open to public; identity of an informer

-no privilege exists if identity of informer is voluntarily disclosed by holder of privilege

Front 56

Exclusion/Sequestration of Witnesses

Back 56

MAY NOT EXCLUDE:

i. party or designated officer/employee of a party
ii. person whose presence essential to presentation of party's case
3. person statutorily authorized to be present

Front 57

Hearsay - Definition

Back 57

statement by third party made out-of-court, offered to prove truth of the matter

- oral/written assertion
- nonverbal conduct intended as assertion

Front 58

Out-of-Court Statements that ARE NOT HEARSAY

Back 58

1. verbal acts or legally operative facts
2. statement offered to show effect on hearer or reader
3. circumstantial evidence of declarant's state of mind

Front 59

Admission by Party-Opponent

Back 59

- formal judicial admissions - conclusive

-informal judicial admissions and extrajudicial admissions - not conclusive, can be explained

- adoptive admission

Front 60

Silence as Admission

Back 60

implied admission if:
1. party heard and understood statement
2. party physically and mentally capable of denying statement
3. reasonable person would have denied accusation

Front 61

Unavailability

Back 61

unavailable if:

1. privilege exempts witness from testimony
2. refusal to testify despite court order
3. lack of memory of subject matter of statement
4. unable to testify b/c of death or physical/mental illness
5. witness beyond reach of court's subpoena; unable to procure attendance by reasonable means

Front 62

Former Testimony

Back 62

witness unavailable, testimony given at another hearing or deposition if:

1. party against whom testimony offered was party in former action
2. former action involved same subject matter
3. testimony given under oath
4. party against whom testimony offered had opportunity at prior proceeding to develop declarant's testimony

---grand jury testimony of unavailable witness INADMISSIBLE under this exception

Hint 62

DO NOT CONFUSE WITH PRIOR INCONSISTENT STATEMENT - grand jury testimony is admissible as impeachment and substantive evidence as a prior inconsistent statement

Front 63

Dying Declaration

Back 63

i. declarant believed his death was imminent
ii. statement concerned cause or circumstances of what he believed to be his impending death

Front 64

Excited Utterance

Back 64

i. relating to startling event
ii. while under stress of excitement from the event