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196 Cards in this Set
- Front
- Back
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Where a ruling excludes evidence, an _________ must be made (outside the presence of the jury).
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Order of Proof
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The only time a reversal will result from admission of evidence when the party failed to object is when there is _________, which affects the Defendant's _______ rights.
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Plain Error; Constitutional.
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When considering Preliminary Questions of Admissibility, the judge decides based on the ________ standard.
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Preponderance of the Evidence
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When considering Preliminary Facts, the judge is not bound by the F.R.E., except for issues of ________.
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privilege.
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What is Limited Admissibility?
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Where evidence is admitted for one purpose but is admissible for another, the court will restrict the evidence to its proper purpose and give the jury a limiting instruction upon request.
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An accused may testify on a __________ without waiving his Fifth Amendment right to self-incrimination as to other issues, and cross-exam is them limited to the _______ of those issues.
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preliminary issues; scope
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What is the Rule of Completeness?
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Where a party introducing a part of a writing/recorded statement, the other party may immediately introduce any other portion of the writing which, in fairness, should be considered contemporaneously.
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What are the 2 types of facts subject to Judicial Notice?
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1) Commonly known facts which are not subject to reasonable dispute and are generally known in the jurisdiction, and
2) Facts which are capable of accurate and ready determination by sources of unquestionable accuracy --> Includes as radar, historical records, blood tests,. |
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A judge ______ take Judicial Notice of a fact that she knows from her experience.
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may not
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When is it mandatory that a judge take Judicial Notice of a fact?
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1) One party requests, and
2) The court is supplied with the necessary information --> The opposing party does not need notice, but can object |
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Generally, once a fact is Judicially Noticed, contradictory evidence...
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is not permitted.
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If a Civil Jury is presented with a Judicially Noticed fact...
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it must accept the fact as Conclusive.
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If a Criminal Jury is presented with a Judicially Noticed fact...
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it may, but is not required, to accept the fact as Conclusive.
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The Burden of Production (producing evidence) is the _______ in a Civil case.
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Plaintiff
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This is the Burden regarding the Degree to which evidence must be proven:
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Burden of Persuasion.
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What are the 3 Levels of Burden of Persuasion?
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1) Preponderence of Evidence (Civil Case)
2) Clear and Convincing (quasi-Criminal cases, such as SEC, validity of deeds, etc.) 3) Beyond a Reasonable Doubt (Criminal) |
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What are the 2 ways to Shift the Burden of Proof?
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1) Affirmative Defense shifts the burden back to the PL of Prosecutor, or
2) Presumptions |
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In Criminal cases, presumptions are ______ for violating _____.
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disfavored; Due Process.
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Relevant Evidence is that which:
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tends to make the existence of a fact more or less probable than without.
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What does it mean when something is Logically Relevant?
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It has probative value, in that it has some logical tendency to prove or disprove some fact of consequence.
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What does it mean when something is Legally Relevant?
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Evidence is helpful in deciding a case and public policy considerations are balanced.
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Although Relevant, evidence may be excluded if if the Probative Value if Substantially Outweighed by:
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1) Danger of Unfair Prejudice (invites the jury to make a decision on an improper basis)
2) Confusion of Issues 3) Misleading the Jury 4) Undue Delay 5) Waste of Time 6) Needless Presentation of Cumulative Evidence |
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The FRE Balance Test for Prejudice favors ______.
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admission.
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In Negligence and Products Liability cases, evidence of prior or subsequent accidents may be relevant to prove:
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1) Dangerous Condition Existed
2) Defective Product 3) Cause of Accident, or 4) Notice of Dangerous Condition |
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Absence of similar accidents is usually offered by the Defendant to _______ of a dangerous condition or defect and thereby showing lack of ______ or _______.
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Rebut a claim; Negligence or Notice.
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Fleeing the scene, Hiding from police, using an Alias, failure to submit a BAC Test, Threats to witness, are all _______ of guilt and are relevant to show _______,
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Consciousness of guilt; Guilty Mind.
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Character Evidence is admissible to prove conduct in conformity, except for when ________.
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Character is in issue.
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What are the Specific Causes of Action in Civil Cases where Character is an Issue?
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1) Defamation
2) Child Custody 3) Negligent Entrustment 4) Negligent Hiring 5) Criminal Entrapment 6) and Self-Defense Claims |
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When dealing with methods of proving Character in Civil cases, evidence may be made in the form of _______ or ______.
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Opinion or Reputation
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If proving Character through Opinion a Civil case, the witness must establish that he has ________ to form an pinon about the _______.
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sufficient knowledge; particular trait.
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If proving Character through Reputation a Civil case, the witness must establish that:
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he is aware of the relevant community.
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In a Criminal Case, the Prosecution may not initially introduce evidence of the Defendant's _________ until testimony about the _______ of _____ character is introduced by the Defendant.
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bad character; pertinent trait for good character
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Once the door to good Character evidence of the Defendant has been raised, the Prosecution may rebut with ______ or ______.
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reputation and opinion.
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Testimony to demonstrate a pertinent Bad Character trait of the Victim won't be permitted unless:
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it is to show the Defendant acted in Self-Defense.
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After providing testimony of Bad Character Evidence of the Victim for Self-Defense, the Prosecution may rebut with ______ or _____ evidence.
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Reputation or Opinion.
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By attacking a Victim's Character for a certain Trait, the Defendant opens the door to an attack on:
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his own Character for the Same trait.
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Circumstantial Evidence of other Crimes, Wrongs, or Acts (otherwise Inadmissible) may be offered to show:
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1) Motive
2) Intent 3) Mistake (Absence) 4) Identity 5) Knowledge 6) Opportunity 7) Preparation, or 8) Plan/Scheme |
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Evidence of _____ of a Person or _____ of an Organization is relevant to prove conformity, even if not ________.
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habit; routine; not corroborated
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Habit Evidence is admissible in the form of _____ or ______.
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opinion; specific acts.
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Negative Habit Evidence is _______.
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Admissible.
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Although Logical Relevant, Evidence barred due to Public Policy is not _______.
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Legally Relevant.
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Although Evidence of Subsequent Remedial Measures is Inadmissible to prove Negligence, Design Defect, Culpable Conduct, or Need for a Warning, it CAN be used to show ______ , ______, or ______.
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1) Ownership
2) Control, or 3) Feasibility of Precautions --> As long as after the fact. |
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Evidence of a Compromise of an Offer to Compromise coupled with an Admission _______ be severed.
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cannot
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Evidence of a Compromise of an Offer to Compromise cannot be used to Impeach, except:
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1) To show Bias or Prejudice
2) To show Delay 3) Obstruction of Justice |
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For the Exclusion of Offers to Compromise to be triggered, there must be a _______ as to ______ or _____>
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Dispute; Amount; Fault
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Offers to Pay Medical Bills (or Expenses) coupled with an Admission is _______.
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severable (or "redactable")
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Evidence of a person's Liability Insurance can't be used to show ______, but it can be used to show ____, ______, ______, or _______.
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negligence;
ownership, agency, bias, or prejudice. |
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Under the Rape Shield Law, evidence of a victim's ___________ is admissible, which includes ____, _____, or ______.
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alleged past sexual behavior or propensity;
use of contraceptives, fantasies, or how they dress, or speak. |
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In Criminal cases, under the Rape Shield Law, evidence of the Victim's Sexual behavior is admissible in 3 cases:
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1) Consent is raised,
2) Source of semen, or 3) If Confrontation Clause would violate right |
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In Civil cases, under the Rape Shield Law, evidence of the Victim's Sexual behavior that is otherwise is admissible, still requires _________.
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a Balancing Test (probative value substantially outweighs the harm to the victim or danger of unfair prejudice to any party)
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In Criminal Case, if a Defendant is accused of Child Molestation or Sexual Assault, ________ are admissible to show predisposition, subject the Judge's ________.
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specific acts/allegations; balancing test.
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In Civil Case, if a Defendant is accused of Child Molestation or Sexual Assault, ________ are admissible to show predisposition, subject the a balancing test.
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Past Convictions.
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No person has a Common Law right to:
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1) Refuse to be a Witness
2) Refuse to Disclose Info, or 3) Refuse to Produce Objects or Writings |
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What are the 4 Confidential Communication Privileges recognized by the FRE and all states:
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1) Attorney-Client
2) Psycho-therapist Patient 3) Clergy 4) Husband/Wife (Spousal & Marital) |
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The Attorney-Client Privilege includes anything spoken, in writing, or ______ intended to be confidential; not ________.
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conduct; observations.
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The Attorney-Client Privilege may be claimed by ______.
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either the Client or Lawyer.
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Waiver of the Attorney-Client Privilege generally operates as a _______, only permitting ______.
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partial waiver, reasonable scrutiny.
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If a Client Inadvertently Waives the Attorney-Client Privilege, the court will find it was NOT waived if:
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1) It was Unintentional
2) The client took Reasonable steps to Protect info, and 3) The client took Timely steps to Remedy |
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The Identity of a Client is generally now privileged, unless...
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it will lead to disclosure of privileged information.
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The Attorney-Client Privilege extends _______.
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beyond the client's death.
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FRE never recognized a ______ Privilege. Where one exists, it must be created by _______.
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Doctor-Patient; State Law.
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However, the _________ Privilege is very broad and applies to:
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Therapist-Patient;
1) Social Workers 2) Mental Health Care Workers 3) Marriage Counselors --> Not vocational counselors |
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The ________ Privilege protects all Communication, both spoken and observations (and impressions).
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Spousal
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The ________ Privilege protects all Communication both during and before the marriage, but is lost upon ______.
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Spousal; Divorce.
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The ________ Privilege applies in Criminal cases.
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Spousal
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Under the Spousal Privilege is held by the _____ and ______.
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witness and NOT defendant.
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Under the Marital Communication Privilege is held by the _____ and ______.
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witness AND defendant.
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The ________ Privilege applies in both Criminal and Civil cases.
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Marital Communication Privilege.
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The ________ Privilege protects only Confidential Communication, not observations, that occurred during the marriage, although Divorce has no effect.
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Marital Communication Privilege.
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Under the Marital Communication Privilege, Communications made the the presence of older kids, friends, and relatives _________.
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Waives the privilege.
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Under the ________ Privilege, crimes in which the Spouses both took party in a crime does is not Privileged.
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Marital Communication Privilege.
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The _______ or the _____ may assert the Religious Privilege.
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Clergy or the defendant.
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Both the U.S. and the states have a Privilege to refuse to disclose the identity of ________, and only the _______ can assert this privilege.
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Informant; Government.
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Under the Court-created Executive Privilege, the President has an _____ privilege to refuse national security information.
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Absolute.
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Examples of where the Fifth Amendment Privilege Against Self-Incrimination does not apply:
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blood, hair, handwriting, fingerprints, line-ups, scars, tattoos, identification, clothing.
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The Defendant in a Criminal trial has the Fifth Amendment Privilege to ________, and the Prosecutor _______.
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not to take the stand; may not comment on this (if so, Mistrial)
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The Defendant or a Witness in a Civil case does have the Fifth Amendment Privilege to ________; they must assert this Privilege _____.
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not take the stand; on the stand.
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When a witness Waives their Fifth Amendment right no to Take the Stand, Cross-Examination _______
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is limited to the Subject Matter regarding the Waiver.
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When granted ________ Immunity, the the government may not prosecute any crime that was testified about.
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Transactional
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When granted ________ Immunity, the the government may not any evidence from testimony, including derivative evidence.
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Use
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In a _________, a party can comment on the failure of the other party to testify and can suggest an ___________.
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Civil Case; Adverse Inference.
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Under the Dead Man's Statute, abolished by the MBE, a witness may not...
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testify about any transactions regarding a deceased person.
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For a Lay Witness to testify, they must have _________ to what they are testifying; this is not required for an Expert Witness.
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personal knowledge
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The only 3 things a Juror may testify about are:
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1) Extraneous prejudicial information seen by the jury,
2) Outside influence, or 3) A clerical error |
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The examples of things will a Juror's Affidavit will be admitted:
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1) Questions regarding if someone brings a newspaper
2) Unauthorized visit to Scene of Crime 3) Bribed 4) Juror conducted his own out of court Experiment 5) Threats of harm against Family 6) Communication by Juror with court personnel 7) Bible passages |
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The Credibility of any Witness may be attacked (Impeached) by ______.
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anyone.
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What are examples of Bias or Prejudice for purposes of Impeachment?
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1) personal, family relationship; hostile
2) business relationship 3) financial gain 4) fee arrangement |
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Bias and Prejudice, in connection with Impeachment, is considered ______, not _______, and you can use _______ evidence.
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material; collateral; extrinsic
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Sensory Defects of a witness is always considered _________ and you can use _______ evidence.
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relevant; extrinsic
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A witness's character for Untruthfulness is always _______ and may be attacked by using ______ or _____ evidence
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Material; reputation or opinion
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A witness's character for Truthfulness can be shown by ______ or ______, but only if ________
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reputation or opinion; his credibility has first been attacked.
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You can cross-exam about Specific Acts regarding ______ only.
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Truthfulness/Untruthfulness
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Examples of Proper Bad Acts (regarding honestly):
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false tax returns, false employment information, forgery, false names, resume, lying about age, marital status, employment, cheating at cards
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Examples of Improper Bad Acts:
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drugs/booze, failure to pay debts, gambling, prostitution, sexual misconduct
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If a witness's Character for Untruthfulness Impeached using Bad Acts and the witness lies about the specific instance:
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you are stuck with the answer.
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What is considered a "Felony" conviction for purposes of Impeachment?
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A crime punishable by death or more than a year in prison.
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For Impeachment of a Witness other than the Defendant, a Felony conviction for a Non-Honesty Crime must:
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be excluded if its probative value is substantially outweighed by unfair prejudice.
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For Impeachment of the Defendant with a Felony conviction of a Non-Honesty Crime, the Prosecution must:
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show that the probative value substantially outweighs the prejudice.
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A Conviction for an Honesty Crime, Felony or Misdemeanor, is:
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admissible, as long as happened within 10 years.
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A Conviction for an Honesty Crime, Felony or Misdemeanor, if happened more than 10 years ago, is:
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inadmissible, unless probative value outweighs its prejudicial effect.
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To Measure the 10-Year Time Limit for Honestly Crimes, you measure either:
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1) From the date of Conviction, or
2) Date of Release, whichever is later |
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Juvenile Adjudications are _______ to Impeach the Defendant, and _______ for other Witnesses.
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Inadmissible; Discretionary (if necessary)
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A Defendant can hide prior Convictions by ________.
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not testifying.
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Religious Beliefs are ________ to impair or enhance a witness's Credibility.
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Inadmissible.
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The Scope of Cross-Exam is limited to what 2 areas?
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1) Scope of Direct
2) Impeachment |
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What are the 5 instances where Leading Questions are okay on Direct Exam?
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1) Hostile Witness
2) Adverse Witness 3) Child Witness 4) Fundamental or Preliminary Background info 5) Refreshing Recollection |
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When Refreshing a Witness's Memory, the proponent may not introduce the content into Evidence, but the other party may:
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1) Inspect it
2) Cross with it 3) Show writing to Jury 4) Introduce RELEVANT portions into evidence |
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When Refreshing a Witness's Memory with Privileged Material, the Court will:
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rule on whether a Waiver occurred.
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A Prior Inconsistent Statement (not Sworn) is Admissible to _______.
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impeach only.
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A Prior Inconsistent Statement (not Sworn) may be ______ or _______, and the content _____ need to be shown to witness.
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oral or written; not shown
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Extrinsic Evidence of a Prior Inconsistent Statement maybe Admissible, provided that:
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the witness is given an opportunity to Explain it at some point during the trial.
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If a Witness Denies making a Prior Inconsistent Statement, Extrinsic Evidence is _______.
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admissible .
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For a Lay Witness to testify based on an Opinion or Inference, it must be ___________.
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1) Rationally-based upon Perceptions,
2) Based on Personal Knowledge, and 3) Helpful to a Clear Understanding of the Witness's Testimony or Determination of Fact at Issue |
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The proper Scope of a Lay Witness Opinion includes:
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V - Value of land
E - Emotional state of others M - Measurement: speech of car P - Physical state: drunk, tall, sick S - Sensory: smell, sound taste S - Sanity |
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The requirement for Testimony of Experts that the Expert has:
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special skills, knowledge, education, training, or experience
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Expert Testimony Admission: Qualifications + _______ + Reliable
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Relevant
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What is the Scientific Test for under Fyre?
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General Acceptance in Scientific Community
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What is the Scientific Test for under Daubert (MBE)?
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T - Tested?
A - Acceptance? P - Peer Review E - Error Rate? S - Standard? |
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What are the 3 Bases for Expert Opinion Testimony?
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1) Personal knowledge at or before Trial
2) Facts presented at trial in hypothetical form, or 3) Facts presented to expert outside of court |
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If an Expert Witness is Relying on Facts Presented to him Outside of court, then under the Reason Reliance Rule:
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these facts must be the type "resonantly relied upon" by other experts in that field.
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A Lay and Expert Witness can give an Opinion on an Ultimate Issue, but for a Lay Witness,
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the Opinion needs to be Helpful.
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In a Criminal Case, an Expert may not give an Opinion regarding whether:
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the Defendant did or did not possess the State of mind which is an Element/Defense of the crime
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A "Statement" for purposes of the Hearsay Rule is of 3 things:
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1) Oral Statement
2) Written Assertion, or 3) Assertive Conduct |
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What are the examples of Evidence offered for Non-Hearsay purposes?
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1) Effect on Listener (notice, motive, intent)
2) State of Mind 3) Verbal Acts 4 Condition of a Person 5) Nature of Place |
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What is a Verbal Act (for purposes of non-Hearsay)?
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It's a word that itself can give rise to a Cause of Action; they have Independent Legal Significance
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What are examples of Verbal Act (for purposes of non-Hearsay)?
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Words of a K, Deed, will, or Judgement, Defamation, Social Greetings, Signs, License Plates, Badges
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What is an Admission?
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A Statement of a party against himself
--> can be a an Opinion --> personal knowledge not required (unlike Statement Against Interest) --> Party need not be Available |
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For an Adoptive Admission, there must be evidence that shows the party:
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1) Heard,
2) Understood, and 3) Adopted it as their own |
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An Admission by Silence Requires that:
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that a reasonable person would have denied it.
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An Employee/Vicarious Admission mus be made:
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with in the Scope of Employment and During Time of Employment.
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A Co-Conspirator's Statement/Admission, whether not Conspiracy is charged, can be against all others, if:
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1) The Court determines the Conspiracy existed (Preliminary Fact)
2) Made in Furtherance of the Conspiracy, and 3) During the Consiracy |
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Prior Inconsistent Statements, Prior Consistent Statements, and Prior Identifications, the Declaration must:
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1) Testify at Trial, and
2) Be Subject to Cross-Exam |
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The Following Are Hearsay Exceptions where it does NOT matter if the Declarant is Unavailable:
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1) Present Sense Impression
2) Excited Utterance 3) Then-Existing State of Mind (Mental, Emotion, or Physical Condition) 4) Statement for Medical Diagnosis or Treatment 5) Recorded Recollection 6) Business Records, etc. etc. |
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The Following Are Hearsay Exceptions where it DOES matter if the Declarant is Unavailable:
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1) Former Testimony
2) Statement of Impending Death 3) Statement Against Interest 4) Statement of Family History |
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Important Requirements for Present Sense Impression Hearsay Exception:
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1) Spontaneous
2) Person knowledge 3) Doesn't need to be excited 4) Can be oral or writing |
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Important Requirements for Excited Utterance Exception:
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1) Startling event
2) Person Knowledge 3) Immediate (except rape) |
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Important Requirements for Then-Existing State of Mind Exception:
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1) Includes statements made to prove intent, plan, motive, design, feelings, pain, or health
2) Does not include Past or statements from Memory 3) Does Not include Beliefs |
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Important Requirements for Statement for Medical Diagnosis Exception to Hearsay:
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1) Includes statement made for medical treatment or diagnosis,
2) Includes describing past medical history, past symptoms, and present symptoms, pain or sensation 3) Statements Admitting or Assessing Fault Not Included 4) Includes the Cause of Injury as Reasonable Pertinent to Diagnosis or Treatment 5) Can be Made to any Medical Personnel 6) Or Family Member |
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Important Steps for Recorded Recollection/Past Recollection Recorded Exception:
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1) First must attempt to "Refresh"
2) Memorandum must have been made while Fresh in Mind 3) Witness must testify the writing Accurately Reflects Prior Knowledge (Authenticated) 4) Writing/record is Read into Evidence, but not Admitted as Exhibit unless Offered by Other Party |
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Rights of Adverse party regarding Recorded Recollection/Past Recollection Recorded testimony:
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1) Inspect it
2) Cross with it 3) Show to jury 4) Introduce relevant parts into evidence |
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Important Requirements for Business Records Exception to Hearsay:
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1) Must be made At or Near time
2) By Person with Knowledge of it 3) And Kept in the Course of Regular Business (not for Litigation) 4) As a Regular Practice to Make reports 5) Can't lack Trustworthiness 6) Foundation Witness/Custodian 7) Authenticated (by Custodian or Affidavit) |
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An Absence of Entry in Business Records may be Admitted to prove Non-Occurrence of the event or matter if a foundation witness testifies that:
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1) He is familiar with the records, 2) Diligently searched, and
3) Found no record/entry of event |
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Important Requirements for Public Records Records Exception to Hearsay:
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1) Must show the Report was made by a Duty of Law
2) Includes reports, records, statements, or data complications of public offices |
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The Public Records Records Exception, LEO Reports:
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are not included in Criminal Cases.
--> Defendant CAN use against government. |
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The Public Records Records Exception, in Civil Cases, LEO Reports are ________ if they _______ and _______.
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Admissible; Pursuant to a Legal Duty and Trustworthy.
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The Statements in Ancient Documents Exception applies to Documents:
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1) 20 Years or Older, and
2) Found in a Place you would Expect |
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Learned Treaties, Journals, Textbooks, Periodicals, can be ________, as long as Authoritativeness is established by _____ , ______, or ______.
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read into Evidence; Judicially Notice, Expert Testimony, or Stipulation.
--> Must be Read to Jury |
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Learned Treaties on ______, ______, ______, and ______ can be Read into Evidence.
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Medicine, Art, Science, and History
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A Witness is Deemed Unavailable if:
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1) Privilege
2) Refusal 3) Incapability 4) Memory 5) Subpoena (did not testify) |
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Under the Former Testimony Exception, testimony from Trial, Depo, or Prelim Hearing may be used Substantively if the Statement was:
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1) Made under Oath
2) Made in the Same or Different Proceeding regarding the Same Subject Matter 3) The Other Party had the Opportunity and similar Motive to Examine the Witness |
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Under the Statements Made Under Belief of Impending Death Exception, the Statement is only available in ______ or ______ cases
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Homicide; Civil cases.
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What are the Important Requirements for the Statements Made Under Belief of Impending Death Exception?
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1) Victim Believed they were dying
2) Statement was about Cause of Death, and 3) Victim now Unavailable |
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What are the Important Requirements for the Statements Against Interest Exception?
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1) Statement made Against Pecuniary, Property or Penal Interest
2) Person is a Non-Party, and 3) Victim now Unavailable |
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What is the Statement of Personal or Family History Exception?
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Is is a Statement concerning the person's own relationship by Blood, Adoption, or Marriage
--> Must be Unavailable. |
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What is a "Testimonial" Statement or Evidence for purposes of the Sixth Amendment Confrontation Clause?
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Where the Primary Purpose of the Statement of Evidence is is Prove Past Events for Prosecution.
--> NOT when made to Aid Police during On-going Emergency |
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What are Examples of "Testimonial" Statements or Evidence?
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1) Public Records Used Against Defendant
2) Statements made during Police Interrogation, or 3) Collecting Information from an Informant |
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If Hearsay turns out to be "Testimonial," it can still be _____ by giving Defendant the Opportunity to _________.
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Cross-Examine
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A Defendant Forfeits his Confrontation Clause rights if he...
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causes the Unavailability of the Defendant to Prevent from Testifying
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A Party can Impeach a Hearsay Declarant Even if they are Not at Trial through ____, _____, ____, etc.
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Bias, Prior Conviction, or Prior Inconsistent Statements
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Rules for Residual/Catch-All Exception to Hearsay:
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1) Must be More Probative on a Point than any other Evidence
2) Must give Notice 3) Must be a Material Issuei |
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Authentication requires Evidence...
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is sufficient to support a finding that the matter in question is what it purports to be.
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"Sufficient Evidence" for purposes of Authentication means the Evidence:
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is that of which a Reasonable Juror could find Genuine by Preponderance of Evidence.
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The Relevant of Demonstrative Evidence depends on:
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ts ability to Explain or Simulate Material Facts
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Demonstrative Evidence must:
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1) Fairly and Accurately Represent the what it Portrays
2) A Witness Must be Substantially Familiar with it --> Foundation |
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Real Evidence may be Authenticated by:
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1) Distinctive Characteristic
2) Testimony of Person Familiar with It. |
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Who can Authenticate Handwriting?
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1) Jury,
2) Lay Person Familiar with It (not just for Litigation), or 3) Expect |
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The following 6 Documents are Self-Authenticating and do NOT require Foundation:
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C - Certified docs
O - Official Publications (FAA, CDC) N - Newspapers and Periodicals T- Trade Inscriptions/Labels A - Acknowledged Documents by Law C - Commercial Paper (UCC stuff) |
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Under the Original Document/Best Evidence Rule, the Original is Required where:
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1) The Contents of Writing are at Issue
2) The Testimony of a Party Relies on Writing (not First-Hand Knowledge) |
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Under the Independent Source Rule, the B.E.R. does NOT apply where:
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a fact to be proved has a Source Independent from the Writing
--> Thus, the Contents not at issue |
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What are Examples of Exceptions to B.E.R. under the Independent Source Rule?
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1) Sales-receipt
2) Birth Cert. 3) Death Cert. 4) Marriage Cert. --> Unless is offered to Prove that it Occurred. |
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What are the 3 Substitutes for Original in line with the B.E.R.?
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1) a Duplicate Copy
--> Unless Genuine Question 2) Certified Copy of Public Record 3) Summary of Voluminous Record |
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The B.E.R. does Not apply if the Evidence at Issue is:
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1) Lost
2) the Opponent Refuses to Deliver 3) a Collateral Matter 4) Subpoena but not Obtained |
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The Contents of a Voluminous Writing may be Presented in Chart, Summary, or Calculation, as long as:
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1) Originals would be Admissible
2) Opportunity to Access Original given Pretrial 3) Properly Authenticated |
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The Contents of a Voluminous Writing must be made available:
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1) For Examination, and/or
2) Copying, 3) at a Reasonable Time and Place. |
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If a PL puts her physical condition at Issue in a lawsuit, they may not...
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Asserting the Doctor-patient Privilege.
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The Declarant's Being Present and Available for Cross-examination does, his previous out-of-court statement is ______.
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Still Hearsay.
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The Best Evidence Rule Only applies when the Writing, Recording, or Photo:
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1) Is the Controlling Instrument (e.g., deed, will, or contract). or 2) The Witness is Testifying about Facts she Read (e.g., a letter, a license plate number, etc.).
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The Best Evidence Rule does NOT apply to _________ or a _______.
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Collateral Matters; a Physical Object.
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The Contents of Voluminous writings, recordings, or photographs may be...
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presented in the form of a Chart, Summary, or Calculation.
--> The Court may Order that they be produced. |
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Demonstrative Evidence is generally not offered as _________.
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Substantive Evidence.
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What are the 2 General Requirements for Admissibility of Evidence?
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(1) It must be relevant, and
(2) Its Probative Value must not be Substantially Outweighed by the Danger of A) Unfair Prejudice, B) Misleading the Jury, C) Waste of Time, D) Confusion of issues |
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Statements of Fact Concerning Family History contained in Bibles, Jewelry Engravings, Genealogies, Tombstone Engravings are ________ even if __________.
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Admissible; Declarant is Available.
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Where a Witness has made a Previous Out-of-court Identification of a Person, it is ________, even for Substantive Person, but he must be _______ and be Subject _______.
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Admissible; Available to Testify; Subject to Cross.
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An Adoptive Admission or Admission by Silence Occurs when...
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a Party Fails to Act in Response to a Provocative Challenge and a "Reasonable Person" in the party's position would have Denied the assertion.
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Evidence of Specific Bad Acts are Admissible only on Cross as a way of Impeaching the _______ or ________ Evidence.
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Reputation or Opinion Evidence.
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A Judge has Discretionary Use of Judicial Notice when _______; however, the Court Must do so if the Party Provides Sufficient Information and _______.
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No Request is made; Requests.
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A Properly Qualified Expert May Offer Opinion Testimony if:
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1) His analysis would Help the Trier of Fact...
2) In an area Requiring Specialized Knowledge. |
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A Declarant's Prior Statement that is Consistent with her Testimony is Not Hearsay Only If:
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It is offered to Rebut a Charge of Recent Fabrication, Improper Influence, or Improper Motive.
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Statements Made to LEO's during an Emergency (including 911 call) are NOT _______, which means they do not violate a Defendant's _______ rights.
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Testimonial; Confrontation Clause rights.
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Prior Inconsistent Statements given Under Oath at a Prior Proceeding is Admissible as ________, if the Declarant Testifies at the trial and __________.
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Substantive Evidence (not hearsay); Subject to Cross.
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Statements contained in Treatises May be Admitted into Evidence as Substantive Evidence during Direct or Cross
Examination of an Expert if: |
1) The Treatise is established as a Reliable Authority and
2) The Treatise is Called to the Attention of the expert or is Relied upon during his Direct. |
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The Defendant in a Criminal Trial may offer ________ evidence of a _______ of his Good Character to Prove that he is Innocent.
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Reputation or Opinion; Pertinent Trait
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Federal CL does not recognize a ______ Privilege
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Physician-Patient
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A Exception to the Physician-Patient Privilege Applies when:
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1) The Patient is Planning to Cause Serious Bodily Injury or Death to another, and
2) The Doctor has a Reasonable Belief that the Patient will do so. |
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A Document is Not Generally Admissible unless it has been _______.
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Authenticated.
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Once Evidence has been Admitted, it is the job of the Jury, to determine the ______ and ______ of the Evidence.
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Weight and Credibility
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