Use LEFT and RIGHT arrow keys to navigate between flashcards;
Use UP and DOWN arrow keys to flip the card;
H to show hint;
A reads text to speech;
74 Cards in this Set
- Front
- Back
|
Relevance def'n |
Any tendency to make a material fact more or less probable. |
|
|
All relevant evidence admissible unless: |
Exclusionary rule OR Outweighed by one or more of: Unfair prejudice Confusion of issues Misleading the jury Undue delay Waste of time Unduly cumulative |
|
|
When evidence not involving event, time, person other than that involved in case is admissible: |
P's accident history if the event that caused accident is at issue Similar accidents caused by same instrumentality If intent is in issue--Shows they behaved with the same intent as before Habit--Frequency and particularity Industrial Custom as a standard of care |
|
|
Things that are inadmissible for policy reasons |
Liability insurance--unless shows instrumentality or ownership Subsequent remedial measures Settlements of disputed civil claims--settlement, offer to settle, statements of fact during settlement IF they are to show liability or impeach as inconsistent (ONLY if there is already a claim as to liability or damages.) Offer to pay medical expenses |
|
|
Inadmissible for policy reasons in plea negotiations in crim cases |
Offer to plea guilty Withdrawn guilty plea Plea of nolo contendere Statements of fact EXCEPT a nonwithdrawn guilty plea is admissible. |
|
|
Character evidence def'n |
A person's general propensity or disposition. |
|
|
Character in criminal case overview |
Prosecution may not offer evidence of D's character to prove his conduct on a particular occasion during the case in chief D during the defense may intro character evidence by rep or opinion, but it opens door to rebuttal. If the door is opened prosecution can use specific acts of the D to impeach the character W's knowledge of D, or P can call rep or opinion W. |
|
|
Victim's Character in a criminal case in which self defense is raised. |
D may intro evidence of victim's violent character to show they were first aggressor. Must be rep or opinion. Prosecution can rebut with D's character for violence or V's character for peacefulness. Homicide: if D offers ANY evidence that V was first aggressor, P may intro evidence of peacefulness. |
|
|
When self defense raised, D can raise victim's violent rep or specific acts only when: |
It shows D's state of mind, ie, fear, to show reasonable response to V's aggression. |
|
|
Evidence of victim's character in sexual misconduct case |
In both crim and civil case, evidence of sexual propensity and behavior not allowed EXCEPT in crim cases when Specific behavior of V to prove someone else was source of semen or injury OR V's sexual activity with D if the defense of consent asserted OR Love triangle (to show false claim of nonconsensuality) Only allowed in civil cases if probative value substantially outweighs danger of harm to V and unfair prejudice. |
|
|
When evidence of character is admissible in civil actions: |
Essential element of a claim or defense, only three cases: Tort of negligent hiring or entrustment Defamation Child custody dispute. |
|
|
When Prosecution or Plaintiff can show evidence of other crimes for non character purposes: |
MIMIC--Must weigh probative value, need not prove crime occurred, only that juror COULD conclude reasonably that it did. Motive Intent Mistake, or absence of it ID Common scheme or plan |
|
|
Other acts of sexual misconduct in crim or civil sexual assault cases |
Prior acts allowed in case in chief to show propensity for sexual assault. (not reputation or opinion, only acts). |
|
|
Authentication of writings |
Must show that it is what it purports to be with a foundation by: W's personal knowledge--saw it signed Proof of handwriting--lay, expert, or jury Circumstantial evidence--any connection showing authorship Ancient documents Solicited reply doctrine--evidence that it was received in response to a prior comm to alleged author |
|
|
Ancient document may be considered authentic if: |
At least 20 years old Facially free of suspicion Found in a place of natural custody |
|
|
Self authenticating documents |
Shifts burden to prove it isn't authentic Official publications Certified copies of public or private records Newspapers or periodicals Trade inscriptions and labels Acknowledged doc--Notarized Commercial paper--Promissory notes, etc. |
|
|
Authentication of photos |
W may testify by personal knowledge that the photo is a fair and accurate representation. |
|
|
Best evidence rule |
A party that seeks to prove contents of a writing must either produce original or provide an excuse. (includes x rays, sound record, films) |
|
|
Two times that best evidence rule applies |
When party is seeking to prove contents of writing. 1. Legally operative document like a patent, deed, contract. 2. W is testifying to facts that she learned solely from reading about them in a writing. |
|
|
What qualifies as original for best evidence rule |
Writing intended as original Duplicate by mechanical means unless it would be unfair or there is a Q as to authenticity of original. NOT a handwritten copy. |
|
|
Excuse for non production of original writing |
Can't be found with due diligence Destroyed without bad faith Can't be obtained with legal process--beyond subpoena power. |
|
|
"Escapes" from best evidence rule |
Voluminous records Certified copies of public records Collateral documents |
|
|
Competency of Ws in general |
Personal knowledge Oath or affirmation |
|
|
Dead Man's Statute |
In a civil action, an interested W is incompetent to testify against the estate of a decedent concerning a transaction or communication between the W and the decedent. |
|
|
When leading Qs are allowed on direct |
Preliminary introductory matters Youthful or forgetful W Hostile W W is adverse or under control of other party |
|
|
Safeguard for adverse party to a document used for recollection refreshed |
Inspect document or item Use it on cross Introduce it into evidence |
|
|
Past recollection recorded allowed as hearsay exception when: |
Showing that writing didn't jog memory W had personal knowledge at former time Made or adopted by W When the event was fresh in the W's memory, W can vouch for accuracy when it was made. |
|
|
Opinion of a lay W is admissible when |
Rationally based on W's perception Helpful in deciding a fact |
|
|
Expert W opinion testimony admissible if |
Qualified by education or experience Special knowledge that will be helpful to jury. |
|
|
Types of evidence an expert can express opinion on |
Personal knowledge Other evidence in the trial record Facts outside the record if of a type reasonably relied on by experts in the field. |
|
|
How court weighs reliability of principles and methods used by expert |
TRAP Testing of principles Rate of error Acceptance by experts (not consensus) Peer review or publication |
|
|
How learned treatise in aid of expert testimony may be used as hearsay exception: |
On direct of party's own expert: read in to evidence. On cross of opponent's expert: Read in to impeach opponent's expert. Learned treatise may never be into'd as exhibit. |
|
|
Impeachment methods |
Prior inconsistent statements Bias, interest, or motive to misrepresent Sensory deficiencies Bad rep or opinion of W's character for truthfulness Crim convictions Bad acts--can't use extrinsic evidence Contradiction |
|
|
Prior inconsistent statements |
May be used for impeachment if Orally under oath as part of a trial, depo, etc. |
|
|
Bias, Interest or Motive to Misrep. |
Bias may be proved by any fact that would tend to show bias. MUST be confronted on the stand with alleged bias. |
|
|
Bad rep or opinion on W's character for truthfulness as impeachment |
Any witness may be impeached by this method. |
|
|
Crim convictions as impeachment evidence |
Any crime where falsity was element of crime Felonies, based on court's discretion. Must be within ten years of conviction or release from prison unless proponent shows substantial probative value |
|
|
Impeachment by inquiry about bad act as impeachment if they reflect on W's character for truthfulness |
must be deceit or lying, confrontation on cross and no extrinsic evidence. Extrinsic evidence allowed if for another purpose like bias. |
|
|
Contradiction as impeachment |
On cross, through confrontation of W, may try to establish a contradiction with testimony from direct. If the W admits mistake or lie, extrinsic evidence only allowed to prove contradictory fact if is not collateral fact. |
|
|
Rehabilitation of impeached W by testimony on reputation or opinion |
Showing W's character of truthfulness: only when suggested W was lying Prior consistent statement to rebut - a charge of recent fabrication, only if statement made before motive to fabricate arose - to rebut a contention of inconsistency - to rebut a contention of sensory deficiency |
|
|
Privileges in federal court procedure |
If under federal substantive law, common law privilege If DIVERSITY where state law applies the fed court must apply privilege law of the state whose substantive law is applicable |
|
|
Elements of attorney client privilege |
Confidential communication Between attorney and client or representative of either Made during a professional consultation Unless waived or exception applies |
|
|
Joint client rule in attorney client privilege |
If 2 or more clients with common interest consult the same attorney, their comms are privileged as to third parties, but if they later dispute each other, privilege does not apply between them. |
|
|
Waiver of attorney client privilege |
Voluntary: Only the client or their estate can Subject matter waiver: A voluntary waiver of confidentiality of some comms will also waive the privilege as to other comms if - intentional disclosure - of the same subject matter - fairness requires disclosure together |
|
|
Inadvertent waiver of attorney client privilege |
No waiver if privilege holder took reasonable steps to prevent it AND took reasonable steps to correct it. |
|
|
Exceptions to attorney client privilege |
Future crime or fraud Client puts legal advice in issue Attorney client dispute |
|
|
Physician patient privilege elements |
Confidential communication of information acquired by a physician from patient for purpose of diagnosis or treatment of a medical condition Also applies to psychotherapists |
|
|
Federal law physician privilege exception |
In fed court actions based solely on federal substantive law, privilege exists only for psychotherapy. None for physical conditions |
|
|
Spousal Immunity |
A spouse can't be COMPELLED to testify about anything against the spouse in a crim case. The Witness spouse is the holder of the privilege |
|
|
Confidential communication between spouses |
Any type of case, crim or civil, the spouse may not in the absent of consent disclose confidential comms made during the marriage. Both hold the privilege |
|
|
Exceptions to both spousal immunity and confidential comms between spouses |
Jointly perpetrated future crimes Comms destructive of family unit Litigation between spouses themselves |
|
|
Main categories of non hearsay purposes |
Verbal acts--legally binding words Effect on the person who heard or read statement Circumstantial evidence of speaker's state of mind |
|
|
W statement exclusions from hearsay if W is currently subject to cross AND it is: |
ID of a person W's prior inconsistent statement if oral, under oath and made during trial, hearing or depo Prior consistent statement to rebut a charge of recent fabrication or of sensory deficiency |
|
|
Statement of opposing party |
ANY statement made by opposing party if offered against the opposing party and against interest at time of trial. -Adoptive admission if expressly or impliedly adopted -Vicarious admission if made within scope and period of employment |
|
|
Major hearsay exceptions |
Forfeiture by wrongdoing Former testimony Statement against interest Dying declaration Excited utterance Present sense impression Present state of mind Declaration of intent Present physical condition Statement for med treatment or diagnosis Business or public records. |
|
|
Hearsay and the 6th Amendment |
Prosecution may not use hearsay if the statement is -Testimonial, -Declarant is unavailable -D had no opportunity for cross at any time. |
|
|
Examples of testimonial statements for 6th amendment |
Grand jury testimony Police interrogation if primary purpose is to establish past events potentially relevant to a later criminal prosecution (not if purpose was to assist in emergency). Sworn affidavits Lab report only testimonial if its purpose is to accuse a particular individual. (DNA testing with no suspect is non testimonial) - Even if testimonial, not a confrontation violation to have expert testify generally on the report. NOT testimonial: business records |
|
|
Forfeiture hearsay exception |
Any type of hearsay is admissible if D's wrongdoing made the W unavailable if: -By a preponderance of evidence -D's wrongdoing was designed to prevent D from testifying |
|
|
Former testimony hearsay exception |
A now unavailable W's testimony is admissible if given at prior proceeding against a party who had an opportunity and motive to cross examine them. |
|
|
Grounds for unavailability |
Privilege Absent from jx (not found by DD) Illness or death Lack of memory Stubborn refusal to testify |
|
|
Statement against interest hearsay exception |
An unavailable declarant's statement against his pecuniary, proprietary or penal interest. |
|
|
Statement against interest differences with party admission: |
Statement against interest: -Must be against interest when made -Any person can make a statement against interest -Personal knowledge is required -Declarant must be unavailable |
|
|
Qualification in crim cases for statement against penal interest |
Must be supported by circumstances showing trustworthiness of the statement. |
|
|
Dying declaration |
Statement made under a belief of impending and certain death by a now unavailable declarant concerning the cause or surrounding circumstances of their death. In a crim case: MUST be a charge of homicide |
|
|
Excited Utterance |
Statement concerning startling event made while declarant is still under the stress of the excitement caused by the event. |
|
|
Present Sense impression |
Description of an event made while the event is occurring or immediately thereafter |
|
|
Present state of mind |
Contemporaneous statement concerning declarant's present state of mind, feelings, emotions. |
|
|
Declaration of Intent exception to hearsay rule |
Statement of declarant's intent to do something in the future, including intent to engage in conduct with another person |
|
|
Present physical condition |
Statement made to anyone about declarant's current physical condition. Must be CURRENT condition. |
|
|
Statement made for the purpose of obtaining medical treatment or diagnosis |
Statement made to ANYONE if it concerns -past or present symptoms -General cause of the condition -Except the ID of the tortfeasor unless it was a domestic or child abuser. |
|
|
Business records elements for hearsay rule exception |
Records of business of any type Made in regular course of business The business routinely keeps the records Made contemporaneously Contents consist or info observed by employees or a statement that falls within an independent hearsay exception. |
|
|
Public records hearsay exception |
Records of a public office or agency setting forth -Activities of the office -Matters observed pursuant to legal duty -Findings of fact or opinion resulting from an investigation authorized by law. Exception: Police reports prepared for prosecutorial purposes are not admissible against the D. |
|
|
Hearsay within hearsay |
Both levels of the hearsay must fall within a hearsay exception |
|
|
Impeachment of hearsay declarants |
Any impeachment method may be used to attack cred of a hearsay declarant whose statement was admitted. If a prior inconsistent statement, the requirement that the declarant be able to explain is waived. |
