Mbe Evidence

Front 1

Lay Witness Testimony

Back 1

It is innapropriate for a lay witness to incorporate in his testimony his own inferences in the form of an "opinion" or "conclusion" UNLESS the opinion is rationally based on the witness' perception and helpful to the factfinder (jury)

Front 2

Supremacy Clause (Crawford)

Back 2

Under Crawford, out of court statements by witnesses that are testimonial are inadmissable under the Confrontation Clause unless 1) the witness is unavailable to testify, and 2) the defendant had a prior opportunity to cross-examine the witness, regardless of whether the witness' statement is reliable

Front 3

Exclusion of Witnesses

Back 3

At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses

Front 4

Expert Witness Testimony on Defendant's Mental State

Back 4

FRE disallows an expert witness in a criminal case to give an opinion as to defendant's mental state if it constitutes an element of the crime charged

Front 5

Admission of Prior Convictions

Back 5

Admission of prior convictions involving dishonesty and false statements is not within the discretion of the court - such convictions are peculiarly probative of credibility and are always to be admitted

Front 6

Leading questions

Back 6

Leading questions should not be used on direct examination of a witness excvept as may be necessary to develop questions.

Front 7

Threats by a defendant against testifying witness

Back 7

Threats by a defendant agaisnt testifying witnesses either before or during trial are relevant evidence to show consciousness of guilt and are admissable as an admission

Front 8

Privilege for marital communications

Back 8

Extends to any confidential statement made between spouses during the existance of a legal marriage - most jurisdictions hold that the privilege survives the termination of the marriage either bydeath or divorce

Front 9

Expert opinion

Back 9

The facts or data in the particular case upon which an expert bases an opinion or inference may be those percieved by or made known to the expert at or before the hearing - if basing opinion on information reasonably relied on by other experts in the field the experts testimony is admissable without regard to personal knowledge.

Front 10

Attorney-client privilege

Back 10

The attorney client privilege prevents testimonial disclosure, discovery, or seizure by subpoena of confidential communications b/t attorney & client absent client waiver
The privilege attaches when a client first consults a lawyer about representing him - there preliminary discussions remain privileged evein if the attorny is not retained and the privilege persists even after the attorney-client relationship ends
The privilege is lost however, when the client carelessly discloses communications, as when he telephones his lawyer within the hearing of policement or other bystanders

Front 11

"Catch All" or Residual Exception to the Hearsay Rule

Back 11

In order to qualify for admission, a hearsay statement not falling w/in one of the recognized exceptions must satisfy the following conditioms:
1) it must have "equivalent circumstantial guarantees of trustworthiness
2) it must be offered as evidence of a material fact
3)the court must determine that the statement "is more probative on the point for whichit is offered than any other evidence which the proponent can procur through reasonable efforts

Front 12

"Equivalent Circumstantial Guarantees of trustworthiness"

Back 12

Court will consider:
1) whether the statement was under oath
2) the duration of the time lapse b/t the event and the statement
3)motivation to speak truthfully
4)whether the declarant had first hand knowledge.

Front 13

Present Sense Exception to the Hearsay Rule

Back 13

Covers statements describing/explaining an event made while the declarant was percieveing the event or immediately there after

Front 14

Former Testimony Exception to the Hearsay Rule

Back 14

Applies to testimony given under oath at a trial,. hearing or in a deposition where there has been an opportunity for cross examination

Front 15

Hearsay

Back 15

Hearsay rule applies when the proponent offers the declarants assertion for a purpose that requires the trier of fact to accept as true the facts it embodies - if the particular statemnt is not being offered for its truth - then the hearsay rule is inapplicable

Front 16

NON-HEARSAY

Back 16

1) Verbal Acts (proof of oral utterances by a parties in a contractaction constituting the offer/acceptance
2) Utterances and writings offered to show the effect on the reader (patron sues grocery store for injuries sustained in slip and fall on broken ketchup bottle - the store calls clerk who will testify that he heard the manager call out to parton "Don't step on bottle of ketchup)
3) Statements disclosing declarants state of mind (Witness testifies that several months b/f testator died,he said "my nephew is an spendthrift who is to lazy to hold a job)

Front 17

Is profered item the same one involved in the controversy?

Back 17

The resolutin is found in establishing a chain of custody, through the testimony of successive custodians - generally the chain is adequately forged if the evidence accounting for the item is sufficient to allow a reasonable jury to conclude that the offered evidence is the original -

Front 18

NON-HEARSAY

Back 18

1) Verbal Acts (proof of oral utterances by a parties in a contractaction constituting the offer/acceptance
2) Utterances and writings offered to show the effect on the reader (patron sues grocery store for injuries sustained in slip and fall on broken ketchup bottle - the store calls clerk who will testify that he heard the manager call out to parton "Don't step on bottle of ketchup)
3) Statements disclosing declarants state of mind (Witness testifies that several months b/f testator died,he said "my nephew is an spendthrift who is to lazy to hold a job)

Front 19

Is profered item the same one involved in the controversy?

Back 19

The resolutin is found in establishing a chain of custody, through the testimony of successive custodians - generally the chain is adequately forged if the evidence accounting for the item is sufficient to allow a reasonable jury to conclude that the offered evidence is the original -