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103 Cards in this Set

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NONHEARSAY:

(1) Prior statements by witness

(2) Admissions by party-opponent
NONHEARSAY:

(1) Prior statements by witness
-Prior inconsistent statement
-Prior consistent statement
-Prior statement of identification

(2) Admissions by party-opponent
-Judicial + extrajudicial
-Adoptive
-Vicarious

NOTE: These are ADMISSIBLE as SUBSTANTIVE evidence!
HEARSAY EXCEPTIONS--DECLARANT's UNAVAILABILITY IMMATERIAL

1. Present state of mind
2. Excited utterances
3. Present sense impressions
4. Declarations of physical condition
5. Business records
6. Past recollection recorded
7. Official records and other official writings
8. Ancient documents and documents affecting property interests
9. Learned treatises
10. Reputation
11. Family records
12. Market reports
HEARSAY EXCEPTIONS--DECLARANT's UNAVAILABILITY IMMATERIAL

1. Present state of mind
2. Excited utterances
3. Present sense impressions
4. Declarations of physical condition
5. Business records
6. Past recollection recorded
7. Official records and other official writings
8. Ancient documents and documents affecting property interests
9. Learned treatises
10. Reputation
11. Family records
12. Market reports

NOTE: These do NOT require that declarant be unavailable!
HEARSAY EXCEPTIONS--
DECLARANT UNAVAILABLE

1. Former testimony
2. Dying declarations (statements under belief of impending death)
3. Statements against interest
4. Statements of personal or family history
5. Statements offered against party procuring declarant's unavailability
HEARSAY EXCEPTIONS--
DECLARANT UNAVAILABLE

1. Former testimony
2. Dying declarations (statements under belief of impending death)
3. Statements against interest
4. Statements of personal or family history
5. Statements offered against party procuring declarant's unavailability

NOTE: These base the admissibility of hearsay on the PRESENT UNAVAILABILITY of the declarant TO TESTIFY!

CLUE: Fat Sisters Deserve Silver Stars
True or false?

Silence in the face of accusations by police in a CRIMINAL CASE is sometimes considered an admission.
FALSE!

Silence in the face of accusations by police in a CRIMINAL CASE is almost NEVER an admission!
SILENCE is treated as an admission ONLY IF:

(1) The party ______ and ________ the statement;

(2) The party was physically and mentally _________ of DENYING the statement; and

(3) A ________ person would have denied the accusation.
SILENCE is treated as an admission ONLY IF:

(1) The party HEARD and UNDERSTOOD the statement;

(2) The party was physically and mentally CAPABLE of DENYING the statement; and

(3) A REASONABLE person would have denied the accusation.
To be an ADMISSION, the statement:

(1) Need NOT have been against _________ interest when made;

(2) May be in the form of an __________; and

(3) Personal _________ is NOT required.
To be an ADMISSION, the statement:

(1) Need NOT have been against DECLARANT'S interest when made;

(2) May be in the form of an OPINION; and

(3) Personal KNOWLEDGE is NOT required.

ADMISSIONS BY PARTY-OPPONENT = NONHEARSAY
__________: A statement made or act that amounts to a prior ACKNOWLEDGMENT by one of the parties of one of the ________ facts.
ADMISSION: A statement made or act that amounts to a prior ACKNOWLEDGMENT by one of the parties of one of the RELEVANT facts.
PRIOR STATEMENT BY A WITNESS is NOT hearsay if:

(1) It is _________ w/ declarant's in-court testimony + was given ______ _______ at a prior proceeding;

(2) It is _________ w/ declarant's in-court testimony + is offered to _______ a charge that the witness is __________ or EXAGGERATING b/c of some motive; or

(3) It is one of __________ of a person made after perceiving him.
PRIOR STATEMENT BY A WITNESS is NOT hearsay if:

(1) It is INCONSISTENT w/ declarant's in-court testimony + was given UNDER OATH at a prior proceeding;

(2) It is CONSISTENT w/ declarant's in-court testimony + is offered to REBUT a charge that the witness is LYING or EXAGGERATING b/c of some motive; or

(3) It is one of IDENTIFICATION of a person made after perceiving him.
A declarant is "UNAVAILABLE" if he:

(1) Is exempt from testifying b/c of _________;

(2) _________ to testify despite court order;

(3) Testifies to ______ of MEMORY of the subject matter of the statement;

(4) Is unable to testify due to ________ or PHYSICAL or ________ ILLNESS; or

(5) Is _______ + proponent is unable to procure his attendance by _______ means.
A declarant is "UNAVAILABLE" if he:

(1) Is exempt from testifying b/c of PRIVILEGE;

(2) REFUSES to testify despite court order;

(3) Testifies to LACK of MEMORY of the subject matter of the statement;

(4) Is unable to testify due to DEATH or PHYSICAL or MENTAL ILLNESS; or

(5) Is ABSENT + proponent is unable to procure his attendance by REASONABLE means.
Statements in any authenticated document 20 years old or more.
ANCIENT DOCUMENTS: Statements in any authenticated document 20 years old or more.

o Any document affecting an interest in property (regardless of age) is admissible!

o Declarant need NOT be unavailable!
A copy of a JUDGMENT of a _______ FELONY CONVICTION is admissible to prove ANY FACT ESSENTIAL TO THE JUDGMENT.
A copy of a JUDGMENT of a PRIOR FELONY CONVICTION is admissible to prove ANY FACT ESSENTIAL TO THE JUDGMENT.

-In a CRIMINAL case, it may be used for this purpose ONLY against ACCUSED.

-Declarant need NOT be unavailable!
WRITINGS BY WITNESS WHO CANNOT NOW REMEMBER the facts, made while the facts were still fresh in her mind.

-Declarant need _____ be UNAVAILABLE!

-The writing itself is ____ admissible; it must be READ TO THE JURY.
RECORDED RECOLLECTION: WRITINGS BY WITNESS WHO CANNOT NOW REMEMBER the facts, made while the facts were still fresh in her mind.

-Declarant need NOT be UNAVAILABLE!

-The writing itself is NOT admissible; it must be READ TO THE JURY.
Statement made to MEDICAL PERSONNEL for the purpose of diagnosis or treatment.

Must declarant be UNAVAILABLE?
MEDICAL DIAGNOSIS OR TREATMENT: Statement made to MEDICAL PERSONNEL for the purpose of diagnosis or treatment.

Declarant need NOT be UNAVAILABLE!
Statement made CONCURRENTLY W/ PERCEPTION of event described.

Must declarant be UNAVAILABLE?
PRESENT SENSE IMPRESSION: Statement made CONCURRENTLY W/ PERCEPTION of event described.

Declarant need NOT be UNAVAILABLE!
Statement made while UNDER STRESS OF EXCITEMENT OF STARTLING EVENT.

Must declarant be UNAVAILABLE?
EXCITED UTTERANCE: Statement made while UNDER STRESS OF EXCITEMENT OF STARTLING EVENT (and BEFORE he had time to REFLECT UPON it).

Declarant need NOT be UNAVAILABLE!
Statement of THEN-EXISTING STATE OF MIND, EMOTION, SENSATION, OR PHYSICAL CONDITION.

-Usually introduced to establish ______.

-Admissible when state of mind is a ________ ISSUE or to show ___________ acts of declarant.

-Must declarant be UNAVAILABLE?
STATE OF MIND: Statement of THEN-EXISTING STATE OF MIND, EMOTION, SENSATION, OR PHYSICAL CONDITION.

-Usually introduced to establish INTENT.

-Admissible when state of mind is a MATERIAL ISSUE or to show SUBSEQUENT acts of declarant.

-Declarant need NOT be UNAVAILABLE!
DECLARATIONS OF PHYSICAL CONDITION

(1) PRESENT bodily condition - admissible?

(2) PAST bodily condition - admissible?
DECLARATIONS OF PHYSICAL CONDITION

(1) PRESENT bodily condition -ADMISSIBLE

(2) PAST bodily condition - ADMISSIBLE if to assist DIAGNOSIS or TREATMENT
________ QUESTION: A question that SUGGESTS TO THE WITNESS THE DESIRED ANSWER.
LEADING QUESTION: A question that SUGGESTS TO THE WITNESS THE DESIRED ANSWER.
Shifts the burden of going forward to the opposing party as to the fact presumed.
REBUTTABLE PRESUMPTION: Shifts the burden of going forward to the opposing party as to the fact presumed.
What is the standard for carrying the BURDEN OF PERSUASION in a CRIMINAL case?
GUILTY BEYOND A REASONABLE DOUBT

This is the standard for carrying the burden of persuasion in a CRIMINAL case
What is the standard for carrying the BURDEN OF PERSUASION in an ordinary CIVIL case?
PREPONDERANCE OF THE EVIDENCE

This is the standard for carrying the burden of persuasion in an ordinary CIVIL case.
Facts which must be resolved before determination of the admissibility or exclusion of evidence can be made.
PRELIMINARY FACTS: Facts which must be resolved before determination of the admissibility or exclusion of evidence can be made.
The judge's ________ __________ is irrelevant to judicial notice.

NOTE: The only facts that can be judicially noticed are ________ facts and ________ facts.
The judge's PERSONAL KNOWLEDGE is irrelevant to judicial notice.

NOTE: The only facts that can be judicially noticed are NOTORIOUS facts and MANIFEST facts.
MOTION TO STRIKE UNRESPONSIVE ANSWERS

Can EXAMINING COUNSEL do so?

Can OPPOSING COUNSEL do so?
MOTION TO STRIKE UNRESPONSIVE ANSWERS

Yes, EXAMINING COUNSEL may do so!

No, OPPOSING COUNSEL cannot!
Prohibits prosecution from compelling one spouse to testify against the other spouse.

In what type of proceeding?

Who has the privilege?
SPOUSAL IMMUNITY: Prohibits prosecution from compelling one spouse to testify against the other spouse.

In CRIMINAL PROCEEDINGS.

Privilege belongs to WITNESS-SPOUSE.
PRIVILEGE FOR CONFIDENTIAL MARITAL COMMUNICATIONS

Protects communications (ie. expressions intended to ________ message).

Between _________.

Made in ________ on ________ of marital relations.
PRIVILEGE FOR CONFIDENTIAL MARITAL COMMUNICATIONS

Protects communications (ie. expressions intended to CONVEY message).

Between SPOUSES.

Made in RELIANCE on INTIMACY of marital relations.
BEST EVIDENCE RULE

- Where terms of writing are ________

- ________ writing must be produced

- In proving the _____ of the writing
BEST EVIDENCE RULE

- Where terms of writing are MATERIAL

- ORIGINAL writing must be produced

- In proving the TERMS of the writing
Person's regular response to a specific set of circumstances.
HABIT: Person's regular response to a specific set of circumstances.
Describes one's disposition in respect to traits or general patterns of behavior.
CHARACTER: Describes one's disposition in respect to traits or general patterns of behavior.
PRESENT SENSE IMPRESSION

- _______ made by a person

- While __________ a not particularly ________ or ________ event

- Concerning the _____ he is _________

Must declarant be unavailable?
PRESENT SENSE IMPRESSION

- COMMENT made by a person

- While PERCEIVING a not particularly SHOCKING or EXCITING event

- Concerning the EVENT he is OBSERVING

This is an EXCEPTION to the HEARSAY RULE!

Declarant's unavailability is IMMATERIAL!
- Person's regular response

- To a specific set of circumstances
HABIT:

- Person's regular response

- To a specific set of circumstances
- Describes one's disposition

- In respect to traits / general patterns of behavior
CHARACTER:

- Describes one's disposition

- In respect to traits / general patterns of behavior
- Comment made by a person

- While observing a not particularly shocking / exciting event

- Concerning the event he is observing
PRESENT SENSE IMPRESSION:

- Comment made by a person

- While observing a not particularly shocking / exciting event

- Concerning the event he is observing
- Statement made / act done

- Amounting to a prior acknowledgement of a relevant fact

- By one of the parties to an action
ADMISSION:

- Statement made / act done

- Amounting to a prior acknowledgement of a relevant fact

- By one of the parties to an action
- Casting an adverse reflection

- On the truthfulness of a witness
IMPEACHMENT:

- Casting an adverse reflection

- On the truthfulness of a witness
- Testimony of a now unavailable witness

- Given at another hearing / deposition

- Is admissible in a subsequent trial

- So long as there is similarity of parties / issues

- So that opportunity to develop testimony / cross-examine at prior action is available
FORMER TESTIMONY EXCEPTION:

- Testimony of a now unavailable witness

- Given at another hearing / deposition

- Is admissible in a subsequent trial

- So long as there is similarity of parties / issues

- So that opportunity to develop testimony / cross-examine at prior action is available
- In a civil action / homicide prosecution

- Statement by a now unavailable declarant

- While believing his death was imminent

- Concerning cause / circumstances of what he believed to be his impending death
DYING DECLARATION:

- In a civil action / homicide prosecution

- Statement by a now unavailable declarant

- While believing his death was imminent

- Concerning cause / circumstances of what he believed to be his impending death
- A statement

- Other than one made by declarant while testifying at the trial / hearing

- Offered in evidence

- To prove the truth of the matter asserted
HEARSAY:

- A statement

- Other than one made by declarant while testifying at the trial / hearing

- Offered in evidence

- To prove the truth of the matter asserted
- Statement of a person

- Now unavailable as a witness

- Against his pecuniary, proprietary, or penal interest when made
STATEMENT AGAINST INTEREST:

- Statement of a person

- Now unavailable as a witness

- Against his pecuniary, proprietary, or penal interest when made
- Evidence tending to make the existence of any fact

- Of consequence to the determination of the action

- More probable than it would be w/o the evidence
LOGICAL RELEVANCE:

- Evidence tending to make the existence of any fact

- Of consequence to the determination of the action

- More probable than it would be w/o the evidence
- Conduct intended by the actor

- To be a substitute for words
ASSERTIVE CONDUCT:

- Conduct intended by the actor

- To be a substitute for words
Facts of common knowledge in the community
NOTORIOUS FACTS: Facts of common knowledge in the community
- Facts capable of certain verification

- By resort to easily accessible and relevant sources
MANIFEST FACTS:

- Facts capable of certain verification

- By resort to easily accessible and relevant sources
WHAT TYPE OF ADMISSION IS THIS?

- One that is not the statement / act

- Of the party against whom it is offered at trial
VICARIOUS ADMISSION:

- One that is not the statement / act

- Of the party against whom it is offered at trial
WHAT TYPE OF ADMISSION IS THIS?

- When a party

- Expressly or impliedly

- Adopts someone else's statement as his own
ADOPTIVE ADMISSION:

- When a party

- Expressly or impliedly

- Adopts someone else's statement as his own
- An oral or written assertion; or

- Nonverbal conduct intended as an assertion
STATEMENT:

- An oral or written assertion; or

- Nonverbal conduct intended as an assertion
- Eliciting facts from the witness

- That discredit his own testimony
CROSS-EXAMINATION:

- Eliciting facts from the witness

- That discredit his own testimony

NOTE: This is a type of impeachment!
- Putting other witnesses on the stand

- Who will introduce facts discrediting another witness' testimony
EXTRINSIC EVIDENCE

- Putting other witnesses on the stand

- Who will introduce facts discrediting another witness' testimony

NOTE: This is a type of impeachment!
When an object is identified as what the proponent claims it to be
AUTHENTICATION: When an object is identified as what the proponent claims it to be
- Permits one to refuse to disclose + prohibits others from disclosing

- Certain types of confidential information

- In judicial proceedings
TESTIMONIAL PRIVILEGE:

- Permits one to refuse to disclose + prohibits others from disclosing

- Certain types of confidential information

- In judicial proceedings
Facts that relate to the parties in a particular case
ADJUDICATIVE FACTS: Facts that relate to the parties in a particular case
Deals w/ tendency of evidence to prove / disprove a material issue
RELEVANCE: Deals w/ tendency of evidence to prove / disprove a material issue
When proffered evidence relates to one of the substantive legal issues in the case
MATERIALITY: When proffered evidence relates to one of the substantive legal issues in the case
When evidence does not violate an exclusionary rule
COMPETENCE: When evidence does not violate an exclusionary rule
AUTHORITATIVE TEXTS AND TREATISES

Can they be used for impeachment?

Can they be used as substantive evidence?
AUTHORITATIVE TEXTS AND TREATISES

Can they be used for impeachment? YES

Can they be used as substantive evidence? YES

NOTE: Passages can only be READ INTO EVIDENCE (not admissible as an exhibit).
Statements by a witness that are not directly relevant to the issues in the case
COLLATERAL MATTER: Statements by a witness that are not directly relevant to the issues in the case
How are questions of relevance determined?
Questions of relevance are determined BY A JURY!
When is a prior consistent statement by a witness nonhearsay?
PRIOR CONSISTENT STATEMENT BY A WITNESS

- Nonhearsay if introduced to rebut a charge of recent fabrication / improper motive
In determining whether a witness is qualified as an expert, what evidence can a judge consider?
To determine whether a witness is qualified as an expert, a judge may consider ANY RELEVANT EVIDENCE in making a decision.
Define the PAROL EVIDENCE RULE.
PAROL EVIDENCE RULE:

- If an agreement is reduced to writing

- All prior / contemporaneous agreements

- Are merged into the written agreement

- So that extrinsic evidence is not admissible to add to / detract from / alter the agreement
Parol evidence is admissible to _________ or _________ a K attacked on grounds of fraud / duress / undue influence inducing consent.
Parol evidence is admissible to ESTABLISH or DISPROVE a K attacked on grounds of fraud / duress / undue influence inducing consent.
When is conviction of a crime admissible?
CONVICTION OF A CRIME

- Admissible if involving a crime of dishonesty / falsehood
When is conviction of a crime INADMISSIBLE?
CONVICTION OF A CRIME

INADMISSIBLE if:

- More than 10 years have passed

- Conviction was a juvenile adjudication

- Witness has been pardoned + has not committed crime punishable by > 1 year
When is proof of liability insurance admissible?
LIABILITY INSURANCE is admissible to show:

- AGENCY, OWNERSHIP, or CONTROL

- BIAS or PREJUDICE
When is proof of liability insurance INADMISSIBLE?
PROOF OF LIABILITY INSURANCE

INADMISSIBLE to show:

- Negligence or other wrongful conduct
PAROL EVIDENCE RULE

- If an agreement is reduced to _________

- All ______ or ____________ agreements

- Are ________ into the written agreement

- So that _________ EVIDENCE is not admissible to _____ TO, ________ FROM, or _______ the agreement
PAROL EVIDENCE RULE

- If an agreement is reduced to WRITING

- All PRIOR or CONTEMPORANEOUS agreements

- Are MERGED into the written agreement

- So that EXTRINSIC EVIDENCE is not admissible to ADD TO, DETRACT FROM, or ALTER the agreement
JUDICIAL NOTICE

- Conclusive in a ________ case, but NOT in a _________ case

- A party must _______ that notice be taken of a _______

- May be taken for first time ___ _______

- Reviewing court must take notice if trial court properly did so

- Federal Rules govern only judicial notice of ___________ FACTS
JUDICIAL NOTICE

- Conclusive in a CIVIL case, but NOT in a CRIMINAL case

- A party must REQUEST that notice be taken of a FACT

- May be taken for first time ON APPEAL

- Reviewing court must take notice if trial court properly did so

- Federal Rules govern only judicial notice of ADJUDICATIVE FACTS
AUTHORITATIVE TEXTS AND TREATISES

Can be used to _______ experts

Can be read into the record as _________ EVIDENCE so long as:

- Expert is ___ _______ when statement from treatise is read into evidence

- Relevant portion is READ INTO EVIDENCE but ____ received as an ________
AUTHORITATIVE TEXTS AND TREATISES

Can be used to IMPEACH experts

Can be read into the record as SUBSTANTIVE EVIDENCE so long as:

- Expert is ON STAND when statement from treatise is read into evidence

- Relevant portion is READ INTO EVIDENCE but NOT received as an EXHIBIT
What type of evidence tends to prove or disprove a material fact in issue?
RELEVANT EVIDENCE: Tends to prove or disprove a material fact in issue
When is cross-examination proper?
CROSS-EXAMINATION is proper on:

- Matters brought out on direct examination; and

- Inferences naturally drawn from those matters
PHYSICIAN-PATIENT PRIVILEGE:

- Prohibits a doctor

- From ________ information while attending a patient

- Where that patient has put his physical condition ___ ______
PHYSICIAN-PATIENT PRIVILEGE:

- Prohibits a doctor

- From DIVULGING information while attending a patient

- Where that patient has put his physical condition IN ISSUE
Define a FELONY CONVICTION.
FELONY CONVICTION: Crime punishable by death or imprisonment in excess of 1 year
JUDICIAL NOTICE may only be taken of facts NOT subject to _________ ________.
JUDICIAL NOTICE may only be taken of facts NOT subject to REASONABLE DISPUTE.

NOTE: These are NOTORIOUS FACTS + MANIFEST FACTS!
Recognition of a fact as true w/o formal presentation of evidence
JUDICIAL NOTICE: Recognition of a fact as true w/o formal presentation of evidence
PRIOR INCONSISTENT STATEMENT - NONHEARSAY

- Not hearsay if

- Made UNDER _______ + subject to penalty of ________

- In a _________ or PRIOR _________
PRIOR INCONSISTENT STATEMENT - NONHEARSAY

- Not hearsay if

- Made UNDER OATH + subject to penalty of PERJURY

- In a DEPOSITION or PRIOR HEARING
When is state of mind admissible?
STATE OF MIND:

Admissible to show that declarant acted in conformity therewith
PRIVILEGE AGAINST SELF-INCRIMINATION

Applies only to ___________, NOT to ______ EVIDENCE
PRIVILEGE AGAINST SELF-INCRIMINATION

Applies only to TESTIMONY, NOT to REAL EVIDENCE
PRIVILEGE AGAINST SELF-INCRIMINATION

- A witness cannot be _________ to testify against himself

- In a _______ or __________ PROCEEDING

- But may _______ to answer any question tending to _________ himself
PRIVILEGE AGAINST SELF-INCRIMINATION

- A witness cannot be COMPELLED to testify against himself

- In a CIVIL or CRIMINAL PROCEEDING

- But may REFUSE to answer any question tending to INCRIMINATE himself
When is EXPERT TESTIMONY appropriate?

- When the _______ MATTER

- Is one where _________, TECHNICAL, or OTHER _____________ KNOWLEDGE

- Would ________ the TRIER OF FACT

- In ___________ EVIDENCE or DETERMINING A FACT __ _____
When is EXPERT TESTIMONY appropriate?

- When the SUBJECT MATTER

- Is one where SCIENTIFIC, TECHNICAL, or OTHER SPECIALIZED KNOWLEDGE

- Would ASSIST the TRIER OF FACT

- In UNDERSTANDING EVIDENCE or DETERMINING A FACT IN ISSUE
OFFERS TO PAY + PAYMENT OF MEDICAL EXPENSES

INadmissible to prove _________ CONDUCT
OFFERS TO PAY + PAYMENT OF MEDICAL EXPENSES

INadmissible to prove CULPABLE CONDUCT
TRUE or FALSE?

Admissions of fact accompanying an offer to pay medical expenses are admissible
TRUE!!!

Admissions of fact accompanying an offer to pay medical expenses ARE admissible!!!
Are withdrawn guilty pleas + offers to plead guilty admissible?
WITHDRAWN GUILTY PLEAS + OFFERS TO PLEAD GUILTY

These are NOT admissible!
SETTLEMENT OFFERS OR NEGOTIATIONS

When are these inadmissible?

- To prove __________; or

- _________ of a claim that is DISPUTED as to ________ or ________
SETTLEMENT OFFERS OR NEGOTIATIONS are admissible:

- To prove LIABILITY; or

- INVALIDITY of a claim that is DISPUTED as to VALIDITY or AMOUNT

NOTE: Admissions of fact accompanying settlement offers or negotiations are NOT admissible (cf. admissions of fact accompanying an offer to pay medical expenses ARE admissible)
When is liability insurance INADMISSIBLE?
When is liability insurance INADMISSIBLE?

To prove NEGLIGENCE or ABILITY TO PAY
When is liability insurance admissible?

To prove _________ or CONTROL, as ____________, or as part of an _________
When is liability insurance admissible?

To prove OWNERSHIP or CONTROL, as IMPEACHMENT, or as part of an ADMISSION
Subsequent remedial measures are INADMISSIBLE to prove:

- _________;

- ________ CONDUCT;

- ________ in a product or its design; or

- Need for a _________ or INSTRUCTION
Subsequent remedial measures are INADMISSIBLE to prove:

- NEGLIGENCE;

- CULPABLE CONDUCT;

- DEFECT in a product or its design; or

- Need for a WARNING or INSTRUCTION
CHARACTER EVIDENCE

General Rule: Character evidence is NOT admissible in a _________ case.

Why not?
CHARACTER EVIDENCE

General Rule: Character evidence is NOT admissible in a CIVIL case.

Why not? The probative value of character evidence is outweighed by danger of prejudicing jury.
CHARACTER EVIDENCE--CIVIL CASES

In general, character evidence is not admissible in a CIVIL case.

EXCEPTION: It IS admissible when a person's character itself is one of the ________ in the case!
CHARACTER EVIDENCE--CIVIL CASES

In general, character evidence is not admissible in a CIVIL case.

EXCEPTION: It IS admissible when a person's character itself is one of the ISSUES in the case!
CHARACTER EVIDENCE

General Rule: Character evidence is NOT admissible in a _________ case.

Why not?
CHARACTER EVIDENCE

General Rule: Character evidence is NOT admissible in a CIVIL case.

Why not? The probative value of character evidence is outweighed by danger of prejudicing jury.
CHARACTER EVIDENCE--CIVIL CASES

In general, character evidence is NOT admissible in a CIVIL case.

EXCEPTION: It IS admissible when a person's character itself is one of the ________ in the case!
CHARACTER EVIDENCE--CIVIL CASES

In general, character evidence is NOT admissible in a CIVIL case.

EXCEPTION: It IS admissible when a person's character itself is one of the ISSUES in the case!

ie. In a defamation suit, character evidence would be admissible.
CHARACTER EVIDENCE - CIVIL CASES

Character evidence is admissible to __________ a witness.
CHARACTER EVIDENCE - CIVIL CASES

Character evidence is admissible to IMPEACH a witness.
CHARACTER EVIDENCE - CIVIL CASES

When character evidence IS admissible (ie. when character itself is at issue), it may be proven in 3 ways:

(1) _________ ACTS

(2) _________ TESTIMONY

(3) __________ IN THE COMMUNITY
CHARACTER EVIDENCE - CIVIL CASES

When character evidence IS admissible (ie. when character itself is at issue), it may be proven in 3 ways:

(1) SPECIFIC ACTS

(2) OPINION TESTIMONY

(3) REPUTATION IN THE COMMUNITY
CHARACTER EVIDENCE - CRIMINAL CASES

The prosecution CANNOT introduce evidence of D's bad character merely to show that D was more likely to have __________ A CRIME.
CHARACTER EVIDENCE - CRIMINAL CASES

The prosecution CANNOT introduce evidence of D's bad character merely to show that D was more likely to have COMMITTED A CRIME.
CHARACTER EVIDENCE - CRIMINAL CASES

D may introduce evidence of his ______ reputation for the trait involved - doing so "______ THE DOOR."
CHARACTER EVIDENCE - CRIMINAL CASES

D may introduce evidence of his GOOD reputation for the trait involved - doing so "OPENS THE DOOR."

D cannot have a witness testify about SPECIFIC ACTS!

Ex. In a criminal cases involving reckless driving, D could have someone testify that he has a good reputation for safe driving. However, D could NOT have someone testify that he has a good reputation for truthfulness.
RECORDED RECOLLECTION

o _________ by a witness

o Who CANNOT now __________ the facts

o Made while the facts were _______ IN HER MIND
RECORDED RECOLLECTION

o WRITING by a witness

o Who CANNOT now REMEMBER the facts

o Made while the facts were FRESH IN HER MIND
Statement made to MEDICAL PERSONNEL for the purpose of diagnosis or treatment
MEDICAL DIAGNOSIS OR TREATMENT: Statement made to MEDICAL PERSONNEL for the purpose of diagnosis or treatment

This is a HEARSAY EXCEPTION!

Declarant's availability is immaterial!
RECORDED RECOLLECTION

This is a HEARSAY __________!

Must D be available?
RECORDED RECOLLECTION

This is a HEARSAY EXCEPTION!

D's availability is immaterial!
Statement made CONCURRENTLY WITH PERCEPTION of event described
PRESENT SENSE IMPRESSION: Statement made CONCURRENTLY WITH PERCEPTION of event described

This is a HEARSAY EXCEPTION!

D's availability is immaterial!
Statement made while UNDER STRESS OF EXCITEMENT OF STARTLING EVENT
EXCITED UTTERANCE: Statement made while UNDER STRESS OF EXCITEMENT OF STARTLING EVENT

This is NONHEARSAY!

D's availability is immaterial!
STATE OF MIND: Statement of ______________ state of MIND, _________, SENSATION, OR ________ CONDITION.
STATE OF MIND: Statement of THEN-EXISTING state of MIND, EMOTION, SENSATION, OR PHYSICAL CONDITION.

Usually introduced to establish INTENT.

Admissible when state of mind is a material issue or to show subsequent acts of declarant.
HEARSAY EXCEPTIONS - UNAVAILABILITY REQUIRED

(1) FORMER __________

(2) ________ DECLARATION

(3) STATEMENT __________ INTEREST

(4) STATEMENT OF __________ OR FAMILY __________

(5) STATEMENT OFFERED AGAINST PARTY _________ DECLARANT'S ___________
HEARSAY EXCEPTIONS - UNAVAILABILITY REQUIRED

(1) FORMER TESTIMONY

(2) DYING DECLARATION

(3) STATEMENT AGAINST INTEREST

(4) STATEMENT OF PERSONAL OR FAMILY HISTORY

(5) STATEMENT OFFERED AGAINST PARTY PROCURING DECLARANT'S UNAVAILABILITY

PNEUMONIC: Former Drummers Sleep, Sleep, Sleep
ADMISSIONS BY PARTY-OPPONENT - NONHEARSAY

o Statement (MUST / NEED NOT) be AGAINST INTEREST when made

o Declarant (MUST / NEED NOT) have PERSONAL KNOWLEDGE OF FACTS

o Declarant (MUST / NEED NOT) be UNAVAILABLE

o Declarant (MUST / NEED NOT) be a party
ADMISSIONS BY PARTY-OPPONENT - NONHEARSAY

o Statement NEED NOT be AGAINST INTEREST when made

o Declarant NEED NOT have PERSONAL KNOWLEDGE OF FACTS

o Declarant NEED NOT be UNAVAILABLE

o Declarant MUST be a party
STATEMENTS AGAINST INTEREST - HEARSAY EXCEPTION

o Statement (MUST / NEED NOT) be AGAINST INTEREST when made

o Declarant (MUST / NEED NOT) have PERSONAL KNOWLEDGE OF FACTS

o Declarant (MUST / NEED NOT) be UNAVAILABLE
STATEMENTS AGAINST INTEREST - HEARSAY EXCEPTION

o Statement MUST be AGAINST INTEREST when made

o Declarant MUST have PERSONAL KNOWLEDGE OF FACTS

o Declarant MUST be UNAVAILABLE