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60 Cards in this Set
- Front
- Back
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Logical Relevance
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Evidence that has any tendency to make a material fact more probable or less probable than without it
Must relate to time, event or person involved in present litigation |
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Exceptions to Logical Relevance - relationship requirement
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i. Causation
ii. Prior accidents iii. Intent/State of Mind iv. Rebuttal evidence to rebut defense of impossibility v. Comparable sales to establish value vi. Habit evidence - specific and automatic vii. Business routine viii. Industry trade or custom |
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Discretionary Relevance - FRE 403
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Relevant evidence may be excluded if its probative value is substantially outweighed by danger of:
i. unfair prejudice ii. confusion of issues iii. misleading jury iv. undue delay v. cumulative evidence |
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Liability Insurance
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Inadmissible
- show negligence - show ability to pay Admissible - ownership/control - impeach with bias |
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Subsequent Remedial Measures
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Inadmissible
- show negligence, culpability or strict liability Admissible - ownership/control - impeachment as to feasibility of precautionary measures |
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Settlement Offers
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Inadmissible
- negligence, culpability or amount of damage There must be: i. claim ii. dispute |
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Types of "Settlement Offers" Excluded
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i. actual compromises
ii. offers to compromise iii. offers to plead guilty in crim case v. withdrawn pleas of guilt vi. please of nolo contendre |
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Offer to Pay Medical Expenses
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Not admissible
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Character Evidence - Civil
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Not admissible
- when offered as circumstantial evidence to infer conduct Admissible - character is material issue (defamation, negligent entrustment, child custody) ** if yes, may use specific acts, opinion and reputation |
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Character Evidence - Criminal
Offered by Prosecution |
Cannot initiate evidence of bad character of D
If D opens door, may respond by: i. Specific Acts - inquiry on cross of D's good character witness about specific acts ii. Opinion/Reputation - call P witnesses to testify to bad opinions or reputation of D character |
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Character Evidence - Criminal
Offered by Defense |
D may offer evidence of GOOD character for the pertinent trait to show disposition in order to infer innocence
**Opinion or reputation only |
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Character Evidence
Victim Character - Defense |
Where D is arguing self defense, D may initiate OPINION or REPUTATION evidence of a bad character trait of victim to infer aggressor
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Character Evidence
Victim Character - Prosecution |
May rehabilitate by showing good reputation/opinion of victim or
show bad reputation/opinion of D since D opened door by attacking same trait of victim |
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Character Evidence
Rape Shield - Criminal |
D may not introduce opinion/reputation evidence of V's sexual history
May introduce specific instances if: i. offered to prove that 3rd party was source of physical evidence ii. show prior acts of consensual sex with D |
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Character Evidence
Rape Shield - Civil |
Evidence of V's sexual disposition only admissible if probative value substantially outweighs danger of harm to victim
D must give notice and in camera hearing held |
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Specific Acts of Misconduct Admissible to Show
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i. Motive
ii. Opportunity iii. Intent iv. Preparation/planning v. Knowledge vi. Identity (modus operandi) vii. Absence of mistake |
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Methods of Authenticating Writings
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1. Direct evidence (admission, eyewitness, handwriting proof)
2. Circumstantial evidence (ancient writings, solicited reply doctrine) 3. Sufficient evidence for JURY to find authentic 4. Self authenticating docs |
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Handwriting Proof
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Lay witness - anyone familiar with signature
Expert - compared disputed signature with specimen Jury comparison - give jury signature and specimen |
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Ancient Document Rule
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Prima facie authentic if:
i. 20 or more years old ii. regular on its face iii. found in a place of natural custody |
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Solicited Reply Doctrine
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Authenticates a document if proof that it came in response to prior communication
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Self-Authenticating Documents
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i. certified copies of public/business records
ii. official publications iii. newspapers/periodicals iv. trade inscriptions/labels v. acknowledged documents vi. signatures on certain docs |
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Best Evidence Rule
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Party seeking to prove contents of a writing must either produce the original document or account for its absence
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Best Evidence Rule
Applies/Doesn't Apply |
Applies
- legally operative documents - where witness' sole knowledge comes from document Doesn't apply - facts independent of the writing (any witness can testify to a fact even if memorialized) - collateral documents |
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Best Evidence Rule
Duplicates |
Duplicate is admissible to same extent as original unless
i. genuine question as to authenticity of original ii. where it would be unfair to admit duplicate in lieu of original **Handwritten copy is NOT a duplicate |
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Competency of Witness
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Personal Knowledge
i. perception ii. memory iii. communication Oath - sincerity, manifest intent to tell truth |
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Dead Man Act
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An interested survivor cannot testify for his interest against the decedent about communications or transactions with decedent in a civil case except with a waiver
**Doesn't apply in CRIMINAL |
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Dead Man Act
Elements |
i. interested witness
ii. testifying for his interests iii. against decedent iv. about communications/transactions with decedent **Waiver is where decedent testified in deposition prior to death |
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Leading Questions
Permissible when |
i. cross
ii. preliminary matters iii. hostile witness iv. child/handicap/infirm |
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Present Recollection Refreshed
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- when witness' memory fails, anything may be used to job memory
- BUT, refreshing object doesn't come into evidence by proponent - opposing counsel may see object, use it during cross and THEN introduce it in evidence |
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Past Recollection Recorded
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Writing is read into evidence but jury doesn't handle the writing
Foundation i. W had personal knowledge ii. writing made by witness or under his supervision iii. writing timely made iv. writing is reliable v. W unable to remember all or part of details |
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Opinion Testimony
Lay person |
Admissible if
- rationally based on perception of witness - helpful to trier of fact (not a legal conclusion) |
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Opinion Testimony
Expert - requirements |
1. Subject matter appropriate for expert (assist trier of fact) - convince judge by preponderance
- reliable methodology - relevant opinion 2. Witness qualified (need not be academic) 3. Witness possesses reasonable certainty 4. Opinion supported by factual basis - within personal knowledge; or - facts in evidence; or - of type that experts would reasonably rely |
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Opinion Testimony
Learned Treatises |
Reliability established by:
i. reliance by expert on direct ii. admission on cross of opposing expert iii. testimony of any expert iv. judicial notice **Treatise read to jury, text not received into evidence |
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Impeachment
Methods |
1. Interest/Bias
2. Prior inconsistent statement 3. Prior conviction 4. Prior bad acts 5. Bad reputation for honesty |
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Impeachment
Prior Inconsistent Statement |
Generally only admissible to impeach (not for its truth)
EXCEPT i. prior inconsistent statement ii. of a party iii. under oath (trial, hearing, grand jury, dep) **Extrinsic evidence admissible to prove prior inconsistent statement **W must be afforded opportunity to explain inconsistency |
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Impeachment
Prior Convictions |
Only usable to impeach
- any crime involving dishonesty (fraud, larceny by trick) within 10 years - MUST ADMIT - felony within 10 years - discretionary **Extrinsic evidence of conviction admissible |
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Impeachment
Prior Bad Acts |
i. Good faith requirement
ii. Act involved deceit or lying iii. collateral so no extrinsic evidence |
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Impeachment
Rehabilitation |
i. good reputation/opinion
ii. prior consistent statement |
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Impeachment
Rehabilitation by reputation/opinion |
- if impeached by character attack, may introduce evidence of reputation/opinion for truth
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Impeachment
Rehabilitation by prior consistent statement |
i. NOT to rebut charge of prior inconsistent statement
ii. Rebut charge of recent fabrication - pre-motive statement - admissible for its truth (NOT HEARSAY) iii. Prior consistent identification - prior out-of-court statement of I.D. made by witness testifying at trial who is subject to cross-exam - admissible for truth (NOT HEARSAY) |
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Impeachment
Prior Consistent Statement T/F - admissible for truth? |
True
It is not hearsay |
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Privileges
Attorney/Client |
i. right parties
ii. confidential "communication" (not applicable to physical evidence or pre-existing docs) iii. Professional legal relationship (intent by client to establish and predominantly legal advice sought) |
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Privileges
Attorney/Client - No Privilege |
i. future crime or fraud
ii. a communication at issue iii. disputes between parties as to professional relationship iv. joint client exception |
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Privileges
Physician-Psychiatrist/Patient |
i. patient seeking treatment
- MD examining solely for litigation not privileged ii. information acquired confidential and necessary to facilitate professional treatment - ramblings not privileged **waived if patient sues or defends by putting physical or mental condition in issue |
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Privileges
Husband/Wife - Spousal Communications |
i. held by both
ii. applies to CONFIDENTIAL communications iii. during marriage |
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Privileges
Husband/Wife - Spousal Immunity |
if valid marriage, cannot compel spouse to testify against other spouse in CRIMINAL case
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Hearsay
Non-hearsay (not offered for truth) |
1. Verbal acts (words spoken or written with relevant legal significance)
2. Effect on listener 3. State of Mind |
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Hearsay
Exclusions from Hearsay |
1. Prior inconsistent statements under oath
2. Prior consistent statement to rebut charge of recent fabrication 3. Prior statement of identification made by an in-court witness 4. Party Admission |
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Hearsay
Admission of Party |
i. party's own statement
-need not be against interest at time of statement ii. adoptive/tacit admission - person heard accusation, able to respond and a reasonable person would have objected iii. authorized person iv. employee/agent - concerning issue within scope and ruing relationship v. co-conspirator |
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Hearsay
Exceptions |
1. Present state of mind
2. Statement of existing intent to prove intended act 3. Excited utterance 4. Present sense impression 5. Declaration of present physical condition 6. Declaration of past physical condition 7. Business records |
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Hearsay
Excited utterance exception |
i. startling event
ii. statement made under stress of excitement iii. concerns facts of startling event |
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Hearsay
Present sense impression exception |
Contemporaneousness, statement describing event as it happens
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Hearsay
Declaration of past physical condition exception |
i. statement made to medical personnel
ii. pertinent to diagnosis or treatment |
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Hearsay
Business records exception |
i. made at or near the time
ii. by or from information transmitted by a person with knowledge iii. kept in regular course of business iv. regular course of business to make record |
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Hearsay
Unavailable declarant exceptions - what is "unavailable" |
PRISM
i. privilege ii. refusal to testify despite court order iii. incapable (illness/death) iv. subpoena power (beyond reach) v. memory fails |
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Hearsay
Unavailable declarant exceptions |
i. former testimony
ii. statement against interest iii. dying declaration |
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Hearsay
Unavailable declarant - former testimony exception |
admissible if party against whom testimony offered had opportunity to cross (NOT GRAND JURY)
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Hearsay
Unavailable declarant - statement against interest exception |
i. statement made against person's pecuniary, proprietary or penal interest
ii. at the time the statement was made |
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Hearsay
Unavailable declarant - dying declaration |
i. made under sense of impending death (but need not actually die)
ii. concerning cause or circumstances of impending death **ONLY admissible in homicide or civil cases |
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Admissibility Determinations
Questions for Judge |
i. preliminary questions re: qualification of witness, existence of privilege, admissibility of evidence
ii. judge not bound by FRE |
