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43 Cards in this Set

  • Front
  • Back
Definition of Relevance
To be admitted, all evidence must be relevant. Evidence is relevant if it tends to prove or disprove a material fact.
Definition of Authentication
All real or documentary evidence must be authenticated as genuine and that it is what it purports to be.
Definition of Best Evidence Rule
When proving the contents of a writing, the original must be produced if the terms are material.
4 Step Approach to Answering Evidence Problems
1) Is the evidence relevant?
2) Is there a proper foundation?
- Has competency been established?
- Has the authenticity of the evidence been established?
- Has the reliability of the scientific test been established?
3) Is the evidence in the proper form?
- questions phrased properly?
- answers w/in requirements for lay/expert opinion?
- comply with BE Rule?
4) Is evidence subject to exclusionary rule?
-403 -hearsay -policy based -privilege -parol evidence
Definition of Hearsay
An out of court statement offered to prove the truth of the matter asserted. A statement that is otherwise hearsay is admissible to prove notice or knowledge on the part of the listener.
Three examples of out of court statements that are not in need of cross examination, and are thus not hearsay?
1) Legally operative facts or verbal acts (words of contract, gift, or defamatory words)
2) Statements offered to show their effect on the hearer or reader (to prove negligence in negligence cases)
3) Statements offered as circumstantial evidence of declarant's state of mind (evidence of insanity or notice)
Define Witness Competence
A witness is competent to testify if he has personal knowledge of the subject matter and he declares he will testify truthfully.
Define Physician-Patient Privilege in Nevada
In Nevada, confidential communications between a physician and a patient are privileged. However, the privilege is not applicable where the plaintiff puts his physical condition in issue.
Define Present Physical Condition
Statements of present physical condition made to a physician are admissible if made to assist in diagnosing or treating the condition.
Expert Witness Three Requirements
1) Expert must be qualified
2) Testimony must be helpful to the jury
3) The opinion must be based on a reasonable degree of certainty
Define Attorney Client Privilege
Confidential communications between an attorney and a client, made during professional consultation are privileged from disclosure. In Nevada, a communication is "confidential" if it is not intended to be disclosed to a third person. An unknown eavesdropper does not destroy privilege and cannot testify.
Character evidence in criminal cases.

Offered by P?
Offered by D?
If offered by P = inadmissible

If offered by D = admissible w/requirements
What are the requirements for D offering character evidence at a criminal trial?
Can be done by calling another witness who testifies as to Reputation or Opinion.

P can then rebut by calling another W with R or O
- can ask about specific acts "are you aware of..."
Hearsay exceptions that require unavailability?
1) Former testimony
2) Family history
3) Dying declaration
4) Declaration against interest

Major Hearsay Exceptions? (11)
1)Business Records 2)Dec. Against Int. 3)Ancient Doc. 4)Medical Diagn./Trtmnt. 5)Prior Testimony 6)Excited Utterance 7)Dying Decl. 8)Present Sense Impression 9)Recorded Recollection 10)Public Record 11)Present physical or mental state
Evidence Exclusions that are technically hearsay but excluded?
1) Admission by party opponent
2) Prior statements made by presently testifying witness (who can be crossed)
3) Prior consistent statements (to rehabilitate)
4) Prior identification (line-up)
Hearsay exclusions that are not hearsay at all?
1) Verbal acts (gift,control,defamation)
2) Statements that show the effect on the listener
3) Circumstantial evidence of speaker's state of mind
4) Prior inconsistent statements used to impeach or rehabilitate
What's Nevada law concerning legal relevance (403)?
Court MUST exclude evidence whose probative value is substantially outweighed by unfair prejudice.
4 relevant evidence that is excluded for policy reasons?
1) Liability insurance
2) Subsequent remedial measures
3) Settlement offers
- including during negotiations
4) Payments or offers to pay medical expenses
4 Questions to ask about character evidence:
1) Purpose?
- to prove character b/c character in issue?
-to prove character as circumstantial evidence of a person's conduct on the occasion in question?
-to impeach or support credibility?
2) What method is being used?
3)Civil or Criminal case?
4)Does evidence prove a pertinent character trait?
When is character evidence admissible in a civil case?
When character itself is in issue (defamation, negligent entrustment).

Inadmissible if offered to prove that either party acted in conformity with that trait.
When is character evidence admissible in both civil and criminal cases?
Under MIMIC:
- Mistake
- Intent
- Motive
- Identity
- Common plan or scheme
When can prior bad acts be used?
1) ON cross

2) No extrinsic evidence is allowed (you're stuck with the answer you get)
How is reputation for untruthfulness brought in?
ONLY by calling another witness.
Is a claim necessary to disallow the admission of offers to pay medical expenses?
NO. Claims or threatened claims are necessary to preclude settlements or settlement offers. Admissions with SO are not admissible. Admissions with offers to pay medical bills are.
What is one of the main limits of the Confidential Marital Communication privilege?
It is inapplicable if the confidential communication is made to aid the commission or planning of a crime of fraud.
What is the scope of the client-physician privilege?
It must relate to medical treatment.
What is the requirement for expert testimony's basis for opinion?
Must base opinion on facts or data which are of a type reasonably relied upon by experts in the particular field.
When are inconsistent statements considered non-hearsay (and thus admissible for impeachment and substantively)?
1) Declarant testifies at trial and is subject to cross concerning the PIS
2) The prior statement was given under oath at a hearing, trial or deposition.
When is it permissible to use prior consistent statements?
To rehabilitate and counter the effect of impeachment in the preceding question. It may be offered to rebut an express of implied charge of recent fabrication or improper influence or motive.
What to watch out for on offers to pay medical bills questions?
Make sure that it's not a settlement agreement. Like: "Betty offered to pay for all of Sammy's medical expenses and give him $5,000 if he would AGREE NOT TO SUE HER."
For what purpose(s) can a learned treatise be used on cross examination against an expert witness?
To impeach and substantively.
What may a prior inconsistent statement, made under oath at a prior proceeding, be used for?
To impeach and substantively.

IF PIS was not under oath, only can be used to impeach.
What is the difference between the use of an offer to plead guilty and an actual guilty plea?
Offer to plead guilty is a settlement offer an is inadmissible for policy reasons.

An actual guilty plea is a hearsay exception and can be offered to prove any fact essential to the judgment.
When can a statement of warning by a 3rd-party be used?
It can always be used. It is not hearsay because it gives knowledge to D of danger.
What communications made between spouses are protected? When does the privilege end?
A confidential communication made between spouses while they were married is protected. Either spouse has a privilege to refuse to disclose and prevent the other spouse from disclosing. Divorce will not terminate the privilege.
Extrinsic evidence cannot be offered to impeach a witness on cross examination on a collateral matter. When can it be used?
ON cross when the issue is materiality: 1) the testimony as a whole shows bias, defects in perception or memory, or untrustworthy character, or 2) testimony about an outcome affecting fact as by showing a material inconsistent statement.
What is one of the general requirements for admissibility of real evidence?
It must be authenticated--it must be identified as being what its proponent claims it is.

If the evidence is of a type that is likely to be confused or can be easily tampered with, the proponent of the object must present evidence of chain of custody. There must be shown some adherence to a system of identification and custody.
May a judge call witnesses upon her own initiative and interrogate any witness who testifies?
Yes. Judge has total discretion as long as no partisanship for a particular side is shown.
Can a guilty plea in a criminal case be considered an admission by a party opponent?
Yes. As long as the guilty plea is conclusive in the civil suit that follows and is relevant to increase the likelihood that D was at fault.
Can a report made by a business in anticipation of litigation be considered a business record?
No. It must occur during the normal course of business where there would be no motive to lie.
What is the spousal immunity privilege?
A person whose spouse is dhe defendant in a a criminal case may not be called as a witness by the prosecution, and a married person may not be compelled to testify against her spouse in any criminal proceeding. In federal court, one spouse may choose to testify against the other in a criminal case, with or without the consent of the party-spouse. Spousal immunity lasts only during the marriage and terminates upon divorce. As long as the marriage exists, the privilege can be asserted even as to matters that occurred prior to the marriage.
What is the for confidential marital communications?
Either spouse may refuse to disclose and may prevent another from disclosing a confidential communication made between the spouses while they were married. The communication must be made during a marriage, and must be in reliance upon the intimacy of the marriage relationship, which is presumed. This privilege is not afforded to a communication that is made in the know presence of a stranger. Both spouses jointly hold this privilege.