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29 Cards in this Set
- Front
- Back
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Evidence - Hearsay - Inadmissible Hearsay - Misdemeanor Convictions
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A misdemeanor conviction is hearsay not admissible under any exception.
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Evidence - Hearsay Exceptions - Judgments
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A judgment for a felony offense may be offered as evidence against accused to prove a fact in the judgment (not to prove propensity, character, etc.) E.g. Prosecution offers copy of accused's conviction for robbery to corroborate Witness' testimony that accused was armed during a robbery they committed.
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Evidence - Opinion affidavit is hearsay
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An affidavit which swears to an opinion of someone not a party - testator - is hearsay; opinion is not reputation evidence.
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Evidence - Evidence of defendant's good character...
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Evidence of defendant's good character can only be introduced by defendant in a criminal case, NOT a civil case.
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Evidence - Intrinsic evidence introduced on cross does not require foundation
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To show bias, a prosecutor may question a witness on cross-examination about their plea deal without laying foundation.
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Evidence - Judicial notice in criminal case
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A judge may take judicial notice of a fact of common-knowledge - even if it's an element of the crime - and in a criminal trial, instruct the jury that it may, but need not, accept such fact as evidence of an element of the offense.
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Evidence - Character evidence admissible if used not for character or propensity, but for MIMIC
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If relevant, character evidence may be admitted to show motive, intent, absence of mistake, identity (stolen gun used or signature crimes), or common scheme or plan, so long as not used to show propensity or character.
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Evidence - Extrinsic evidence of bad acts admissible to show bias
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Extrinsic evidence of bad acts may not be used to impeach, but rather must be inquired into in good faith during cross; however, extrinsic evidence of bad acts may be used to show bias, regardless of how the witness answers the inquiry.
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Evidence - Extrinsic evidence of bad acts inadmissible to impeach
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Extrinsic evidence of bad acts cannot be used to impeach a defendant.
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Evidence - Arrest is not a bad act
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A witness on cross cannot be asked about previous arrests, since an arrest is not a "bad act."
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Evidence - In rebutting Defendant's testimony for character, Prosecution may only use bad acts to show knowledge
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In rebutting Defendant's testimony for character, Prosecution may only use bad acts to show knowledge, not propensity!
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Evidence - Statements from a treatise as substantive evidence
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A statement from a treatise established as reliable by the expert on direct may be read into the record as substantive evidence (though the treatise statement itself will not be physically admitted).
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Evidence - Agent's statement used as vicarious admission of party opponent requires...
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For an agent's statement to be used as a vicarious admission of party opponent, the statement must have been made (1) DURING agent's employment, and (2) within scope of his agency.
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Evidence - Admissibility of polygraph test
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A polygraph test is presumptively inadmissible because its probative value is outweighed by the tendency of its results to mislead and confuse the jury and because its tendency to cause unfair prejudice.
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Evidence - Relevant evidence is inadmissible for three pragmatic considerations...
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Otherwise relevant evidence will not be admitted where it may cause (1) unfair prejudice, (2) confusion, or (3) waste time
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Evidence - Character evidence substantively admissible where character is at issue
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In a civil case, where party's character is at issue (i.e. truth as an affirmative defense in a defamation suit), reputation, opinion, or specific acts may be offered as substantive evidence of party's character.
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Evidence - Burden of Persuasion and Burden of Going Forward with the Evidence
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The plaintiff always has the burden of persuasion. If the plaintiff has made out a prima facie case, he has also met his burden of going forward with evidence, and the burden of moving forward shifts to the defence. Where the defense provides evidence to rebut plaintiff's case, the burden of going forward with the evidence shifts back to the plaintiff to rebut the presumption laid out by the defense.
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Evidence - Privilege > APO Non-Hearsay
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Privilege > APO Non-Hearsay, and so privilege will prevent statement from being introduced
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Evidence - Marital Communications Privilege post-divorce
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Divorce does not defeat the marital privilege if the communication was made during marriage. However, it would defeat the privilege of spousal immunity, which applies in criminal cases.
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Evidence - Spousal immunity
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Spousal immunity is only applicable in a criminal case and grants the Witness the privilege not to testify against their spouse; the privilege, however, belongs to the party-spouse only. The couple must currently be married, need not have been married at the time of the event, and includes privilege against testifying to non-verbal conduct, as well.
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Evidence - Clergy-Penitent Privilege cannot be invoked by communication at a social function
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Clergy-penitent privilege does not apply where the defendant poured his heart out to a priest, in private, at a social function, because the communication was not made to the priest in his capacity as a spiritual advisor. Note: the privilege can be used in both civil and criminal matters.
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Evidence - Inconsistent Statement of Hearsay Declarant unavailable
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If the interests of the justice require it, an inconsistent statement of a hearsay declarant who is unavailable due to death is admissible to impeach, despite lack of foundation or inability to cross-examine.
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Evidence - Real Evidence - Circumstantial Evidence admissible to show chain of custody
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A paper bag that had a gun in it is admissible where the officer testifying to the bags contents saw defendant carrying paper bag run into alley, appear without the paper bag, and then the officer found the paper bag near the alley. Such testimony (object being identified as what proponent claims it be) and events are sufficient authentification for gun to be used as circumstantial evidence against defendant, and for trier of fact to inspect.
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Evidence - Dying declaration is only admissible in homicide trial or civil action
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A dying declaration is only admissible in homicide trial or civil action.
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Evidence - Evidence of liability insurance vs. other insurance
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Evidence that defendant had liability insurance is inadmissible; however, evidence that defendant took out casualty insurance twice prior to arson is admissible substantively to show motive.
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Evidence - Preliminary Fact determination
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It is within a judge's discretion to determine whether the jury can be present for preliminary fact determination on the admissibility of evidence.
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Evidence - Witnesses - Impeachment by use of past bad acts
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A witness may be impeached on cross with respect to any act of misconduct that is probative of truthfulness (i.e. act of deceit or lying) so long as cross-examiner acts in good faith.
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Evidence - Choice of Law
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In a diversity case, a federal court must apply the substantive law of the state in which the court sits, and the federal law to procedure; HOWEVER, state procedural law will apply where it would result in a difference in the outcome of litigation. E.g. where state procedural law provides a different presumption than the FRE on a substantive element of a claim or defense, that state's procedure applies.
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Evidence - No physician-patient under federal law where State does not supply privilege; not under general CL, either.
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No physician-patient under federal law where State does not supply privilege; not under general CL, either.
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