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14 Cards in this Set
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- Back
- 3rd side (hint)
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EVIDENCE
Level 1 --- (5) |
1. Form (2)
2. Purpose (3) 3. Presentation (4) 4. Hearsay (3) 5. Privilege (5) |
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EVIDENCE
Level 2 - Form (2) |
1. BASIC RULE - 611 (A,B,C) - (3)
(A) THE COURT SHALL EXERCISE CONTROL TO: ↠make interrogation effective for ascertainment of truth ↠avoid needless consumption of time ↠protect W from harassment; undue embarrassment (B) - (2) ↠Cross generally limited to subject of direct ↠Exception - court discretion (C) - (3) ↠Leading questions should not be used on direct. A leading question is one that suggests an answer. ↠EXCEPTIONS - (2) (i) Hostile W (ii) Adverse party ↠OTHER EXCEPTIONS - (not in 611(c)) - (4) (i) foundational (ii) to refresh recollection (iii) handicapped W (iv) expert 2. OBJECTIONS - (17) 5A - (MRSSU) ↠Ambiguous ↠Argumentative ↠Asked & Answered ↠Assuming Facts not in Evidence ↠Authentication Lacking 4C - (LENS) ↠Calls for Legal Conclusion ↠Calls for Expert Opinion ↠Calls for Narative ↠Calls for Speculation 3I - (ICI) ↠Improper Impeachment ↠Improper Character Evidence ↠Irrelevant NLHBC *No Leaders Hear Beyond Compound ↠Nonresponsive ↠Leadind on Direct ↠Hearsay ↠Beyond Scope ↠Compound *What is the form of the evidence or question? |
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EVIDENCE
Level 2 - Purpose (3) |
1. LOGICAL RELEVANCE - (3)
↠Lendency to make existence of any fact of consequence more or less probable 2. LEGAL RELEVANCE - (3) ↠Discretionary Rule of Exclusion ↠Policy Exclusions - (5) ↠Prejudicial Impact (403) - evidence may be excluded if its probative value is substantially outweighed by - (4) (i) unfair prejudice (ii) confusion of issue (iii) misleading to jury (iv) consideration of undue delay / waste of time / cummulative evidence 3. CHARACTER - (2) ↠Evidence of character is inadmissable to show deft. acted in conformity therewith. ↠EXCEPTIONS - (5) (i) character at issue (ii) habit (iii) Criminal - Prosecutor may not, in his case in chief, introduce evid. of dft's bad character to show he acted in conformity on a particular occasion. (iii-Exception 1) Mercy rule - Dft (R/O) */prosecutor rebuts (R/O, & on cross-exam, specific acts in the form of "have you heard/did you know." No extrinsic evidence - must take W's response) (iii-Exception 2) MIMIC - (not offered for its truth) - Motive; Intent; Mistage or absence of; Identification; Common scheme. (iv) Victim's exception: if dft argues self-defense, prosecution may present evidence of victim's relevant good character (i.e., peacefulness) (v) See impeachment *What is it being offered for? |
1. Logical Relevance - (3)
---> Tendency to make existence of any fact of consequence more or less probable --->(1) To be admissible, all evidence must be logically relevant. --->(2) Must be relevant to time, proximity, place, or person --->(3) Exceptions: Similar happenings - (4) ------>(a) Causation ------>(b) Prior accident/claims - (2) ---------->(i) where fraudulent, or ---------->(ii) to show past damage ------>(c) To show intent ------>(d) To rebut impossibility 2. Legal Relevance - (3) --->(1) Discretionary rule of exclusion --->(2) Policy Exclusions - (5) ------>(a) Liability Insurance to prove negligence excluded, unless to show - (2) ---------->(i) ownership of vehicle ---------->(ii) or bias/impeachment ------>(b) Subsequent remedial measures, to prove negligence (unless for ownership/control, feasibility, or impeachment) ------>(c) Settlement offers, to prove liability/amount (unless for bias/impeachment/prejudice or to negate claim of undue delay) ------>(d) Medical payments, to show liability (unless for admissions of fact) ------>(e) Withdrawn guilty pleas not admissible --->(3) Prejudicial Impact (403) - Evidence may be excluded if its probative value is substantially outweighed by - (4) ------>(a) unfair prejudice ------>(b) confusion of issue ------>(c) misleading to jury ------>(d) consideration of undue delay / waste of time / cumulative evidence 3. Character - (2) --->(1) Evidence of character is inadmissable to show deft. acted in conformity therewith. --->(2) Exceptions - (5) ------>(a) Character at issue (e.g., as in defamation where the character of the plaintiff is at issue) ------>(b) Habit ------>(c) Criminal - (3) ---------->(i) Rule: Prosecutor may not, in his case in chief, introduce evidence of Deft's. bad character to show he acted in conformity on a particular occasion. ---------->(ii) Exception: Mercy Rule - Deft (Rights/Opinion)/prosecutor rebuts (R/O, and on cross-exam, specific acts in the form of "have you heard/did you know." No extrinsic evidence - must take W's response) ---------->(iii) Exceptions: MIMIC - (not offered for its truth) - (5) --------------->(1A) Motive --------------->(2A) Intent --------------->(3A) Mistake or absence of --------------->(4A) Identification --------------->(5A) Common scheme ------>(d) Victim's exception: if Deft. argues self-defense, prosecution may present evidence of victim's relevant good character (i.e., peacefulness) ------>(e) See Impeachment |
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EVIDENCE
Level 2 - Presentation (4) |
1. WITNESSES - (2)
↠(1) COMPETENCY - (4) ⇰⇰W must have personal knowledge ⇰⇰must be able to understand & tell the truth ⇰⇰Child-must be able to observe, recall & communicate ⇰⇰Insane-must be able to receive, recall & communicate ↠(2) IMPEACHMENT - (2) ⇰⇰Impeachment is done to attack credibility ⇰⇰Methods - (4) ⇛⇛⇛Biax/Motive - lay foundation (ask W about facts relating to bias, then extrinsic okay ⇛⇛⇛Prior Inconsistent Statement - Extrinsic okay, unless collateral-(2) ⇛⇛⇛Defect in memory/perception/knowledge (extrinsic okay) vs. 2. DOCUMENTS - (5) ↠(1) Relevant ↠(2) Authenticated ↠(3) Best Evidence Rule - (2) ⇰⇰Where contents of a writing are at issue, use original or show unavailable through no fault of proponent. ⇰⇰Contents at issue-(3) ⇛⇛⇛Independent legal significance ⇛⇛⇛Offered as proof of a fact ⇛⇛⇛W's testimony dependent on contents ↠(4) Hearsay ↠(5) Privileges 3. OPINION - (2) ↠(1) Lay - (2) ⇰⇰Inadmissible-no legal conclusions & no speculation ⇰⇰Ex-Sensory opinion w. common experience + opportunity to observe ↠(2) Expert - (4) ⇰⇰Assists fact find & ⇰⇰Qualified & ⇰⇰Opinion w/in scope of expertise & ⇰⇰Based on evidence reasonably relied on by experts 4. SUBSTITUTES - (4) ↠(1) Judicial Notice-(accept facts as true w/out proof) - (3) ⇰⇰Standard - generally known or capable of accurate determination ⇰⇰Criminal Cases - not conclusive ⇰⇰Civil Cases - conclusive ↠(2) Stipulations ↠(3) Burdens of proof and production ↠(4) Presumptions (shift burden) *How is it being presented? |
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EVIDENCE
Level 2 - Hearsay (3) |
1. Exclusions - (6)
2. Exemptions - (2) 3. Exceptions - (4) *Is this Hearsay? |
APPROACH - (3)
1. DEFINE HEARSAY: Out-of-court sstatement offered for the truth of the matter stated. 2. GEN.-RULE: Absent an exception or exemption, hearsay is inadmissible. 3. EXCEPTION: (by elements) (1) Exclusions - (6) --->1. Nonassertive conduct --->2. Verbal Acts/Legally operative facts --->3. Effect on listen --->4. State of mind of declarant to show ------>(a) Intent ------>(b) Attitude ------>(c) Belief ------>(d) Knowledge ------>(e) Insanity --->5. Non-Human evidence - Animals (includes parrots) --->6. Impeachment (is non-hearsay) (2) Exemptions - (2) --->1. Prior Statements ------>***Declarant is a trial witness, subject to cross ------>(a) Prior inconsistent statement (if prior sworn, substantive) ------>(b) Prior consistent statement (to rebut fabrication/undue influence) -- made before motive to lie ------>(c) Prior identification (by testifying W, after perceiving) --->2. Admissions ------>(a) Party - must be offered against the party: no personal knowledge needed ------>(b) Adoptive - e.g., by silence ------>(c) Authorized ------>(d) Agent within scope - must be made while employment relationship exists ------>(e) Co-conspirator - during & in furtherance of conspiracy (3) Exceptions - (4) --->1. Unavailability type - (2) ------>(a) Civil + Criminal (but not testimonial hearsay) - (5) ---------->***BLL: admissible if "firmly rooted exception" or bears "particularized guarantees of trustworthiness" ---------->(i) Former testimony ---------->(ii) Declaration Against Interest ---------->(iii) Dying Declaration ---------->(iv) Family or Personal History ---------->(v) Forfeiture by wrongdoing ------>(b) Criminal-testimonial hearsay ---------->***BLL: testimonial hearsay inadmissible unless D gets right to confrontation ---------->(i) "Testimonial Heasay" - (3) --------------->(1A) Prior testimony at prelim. hearing / prior trial --------------->(2A) Grand Jury Testimony --------------->(3A) Police Interrogation --->2. Reliability type - (4) ------>(a) Excited Utterance ------>(b) Present Sense Impression ------>(c) Bodily Condition for Medical Diagnosis ------>(d) State of Mind (to show intent) --->3. Documentary type - (6) ------>(a) Business Record/Absence ------>(b) Past Recollection Recorded (+ past recollection refreshed) ------>(c) Official Records ------>(d) Ancient Documents (20 years) ------>(e) Statemenets affecting property interests ------>(f) Learned treatises --->4. Other - (4) ------>(a) Reputation - (4) ---------->(i) Personal Family ---------->(ii) Character ---------->(iii) Land Boundaries ---------->(iv) Community History ------>(b) Families ------>(c) Market Reports / Commercial Publications ------>(d) Residual |
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EVIDENCE
Level 2 - Privilege (5) |
1. Privileged Relationship - (5)
2. Confidential Communication - (2) 3. Holder 4. Waiver - (2) 5. Exceptions - (4) *Is it privileged? Protect against compelled disclusre (in a judicial proceeding) of confidential communications obtained in the context of a protected relationship. |
1. Privileged Relationship - (5)
--->(1) Doctor (patient is holder) --->(2) Lawyer (client is holder) --->(3) Marital - (2) ------>(a) Spousal/Testimonial (criminal cases only) - (4) ---------->(i) Applies to all adverse testimony ---------->(ii) before or during marriage ---------->(iii) holder - witness spouse ---------->(iv) Ends with the end of the marriage. ------>(b) Confidential marital communication (criminal & civil) - (4) ---------->(i) Made between spouses while H & W ---------->(ii) Either spouse holder ---------->(iii) Lasts forever ---------->(iv) Must be confidential --->(4) Clergy (each is holder) --->(5) Psychotherapist - (client is holder) - (3) ------>(a) Psychiatrist ------>(b) Psychologist ------>(c) Social worker 2. Confidential Communication - (2) --->(1) is presumed - burden on opponent to show not confidential --->(2) unknown eavesdropper does not destroy confidentiality 3. Holder ---> holder of privilege should be identified 4. Waiver - (2) --->(1) Voluntarily reveal --->(2) Fail to object 5. Exceptions - (4) --->(1) Suit between professional & client or accusation of prof. misconduct by client against prof. --->(2) Suit between joint holders (of the privilege) --->(3) Communication designed to further a fraud --->(4) Now deceased, disposition of property. |
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EVIDENCE: Presentation - Witnesses
*How is it being presented? |
1. WITNESSES - (2)
↠(1) COMPETENCY - (4) ⇰⇰W must have personal knowledge ⇰⇰must be able to understand & tell the truth ⇰⇰Child-must be able to observe, recall & communicate ⇰⇰Insane-must be able to receive, recall & communicate ↠(2) IMPEACHMENT - (2) ⇰⇰Impeachment is done to attack credibility ⇰⇰Methods - (4) ⇛⇛⇛Character for truth/veracity-(2) ↪↪↪↪Reputation & Opinion - extrinsic evidence of character for truth admissible only after attacked ↪↪↪↪Specific Bad Acts - Allowed on cross only -- EXCEPT prior convictions-(3) ⇉⇉⇉⇉⇉If dishonesty (embezzlement, fraud, perjury), admissible with no discretion & no balancing (see 10 yr rule) ⇉⇉⇉⇉⇉If other felony-(2) ⇝⇝⇝⇝⇝Dft on stand: prob. value must outweigh risk of unfair prejud. ⇝⇝⇝⇝⇝403 test (prob. value substantially outweighed by prejudicial impact) ⇉⇉⇉⇉⇉10-yr. Rule = reverse 403 test-keeps out stale evidence -use date of conviction or release, whichever is latest. ⇛⇛⇛Biax/Motive - lay foundation (ask W about facts relating to bias, then extrinsic okay ⇛⇛⇛Prior Inconsistent Statement - Extrinsic okay, unless collateral-(2) ↪↪↪↪To impeach, it's non-hearsay ↪↪↪↪If for truth, must be under oath & declararant subj. to cross. ⇛⇛⇛Defect in memory/perception/knowledge (extrinsic okay) |
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EVIDENCE: Presentation - Documents
*How is it being presented? |
2. DOCUMENTS - (5)
↠(1) RELEVANT ↠(2) AUTHENTICATED ↠(3) BEST EVIDENCE RULE - (2) ⇰⇰Where contents of a writing are at issue, use original or show unavailable through no fault of proponent. ⇰⇰Contents at issue-(3) ⇛⇛⇛Independent legal significance ⇛⇛⇛Offered as proof of a fact ⇛⇛⇛W's testimony dependent on contents ↠(4) HEARSAY ↠(5) PRIVILEGES |
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EVIDENCE: Presentation - Opinion
*How is it being presented? |
3. OPINION - (2)
↠(1) LAY - (2) ⇰⇰Inadmissible-no legal conclusions & no speculation ⇰⇰Ex-Sensory opinion w. common experience + opportunity to observe ↠(2) EXPERT - (4) ⇰⇰Assists fact find & ⇰⇰Qualified & ⇰⇰Opinion w/in scope of expertise & ⇰⇰Based on evidence reasonably relied on by experts |
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EVIDENCE: Presentation - Substitutes
*How is it being presented? |
4. SUBSTITUTES - (4)
↠(1) JUDICIAL NOTICE-(accept facts as true w/out proof) - (3) ⇰⇰Standard - generally known or capable of accurate determination ⇰⇰Criminal Cases - not conclusive ⇰⇰Civil Cases - conclusive ↠(2) STIPULATIONS ↠(3) BURDENS OF PROOF & PRODUCTION ↠(4) PRESUMPTIONS (shift burden) |
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EVIDENCE: Hearsay - Approach
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APPROACH - (3)
(1) DEFINE HEARSAY: ⇛ Out-of-court statement offered for the truth of the matter stated. (2) GEN.-RULE ⇛ Absent an exception or exemption, hearsay is inadmissible. (3) EXCEPTION ⇛ (by elements) |
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EVIDENCE: Hearsay - Exclusions (Not offered for truth)
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EXCLUSIONS - (6)
1. Nonassertive conduct 2. Verbal Acts/Legally operative facts 3. Effect on listen 4. State of mind of declarant to show ⇛(a) Intent ⇛(b) Attitude ⇛(c) Belief ⇛(d) Knowledge ⇛(e) Insanity 5. Non-Human evidence - Animals (includes parrots) 6. Impeachment (is non-hearsay) |
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EVIDENCE: Hearsay - Exemptions (Non Hearsay)
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EXEMPTIONS - (2)
1. PRIOR STATEMENTS ⇛***Declarant is a trial witness, subject to cross ⇛(a) Prior inconsistent statement (if prior sworn, substantive) ⇛(b) Prior consistent statement (to rebut fabrication/undue influence) -- made before motive to lie ⇛(c) Prior identification (by testifying W, after perceiving) 2. ADMISSIONS ⇛(a) Party - must be offered against the party: no personal knowledge needed ⇛(b) Adoptive - e.g., by silence ⇛(c) Authorized ⇛(d) Agent within scope - must be made while employment relationship exists ⇛(e) Co-conspirator - during & in furtherance of conspiracy |
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EVIDENCE: Hearsay - Exceptions
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EXCEPTIONS - (4)
1. UNAVAILABILITY TYPE - (2) ⇛(a) Civil + Criminal (but not testimonial hearsay) - (5) ⇨⇨***BLL: admissible if "firmly rooted exception" or bears "particularized guarantees of trustworthiness" ⇨⇨⇨(i) Former testimony ⇨⇨⇨(ii) Declaration Against Interest ⇨⇨⇨(iii) Dying Declaration ⇨⇨⇨(iv) Family or Personal History ⇨⇨⇨(v) Forfeiture by wrongdoing ⇛(b) Criminal-testimonial hearsay ⇨⇨⇨***BLL: testimonial hearsay inadmissible unless D gets right to confrontation ⇨⇨⇨(i) "Testimonial Heasay" - (3) ↠↠↠↠(1A) Prior testimony at prelim. hearing / prior trial ↠↠↠↠(2A) Grand Jury Testimony ↠↠↠↠(3A) Police Interrogation 2. RELIABILITY TYPE - (4) ⇛(a) Excited Utterance ⇛(b) Present Sense Impression ⇛(c) Bodily Condition for Medical Diagnosis ⇛(d) State of Mind (to show intent) 3. DOCUMENTARY TYPE - (6) ⇛(a) Business Record/Absence ⇛(b) Past Recollection Recorded (+ past recollection refreshed) ⇛(c) Official Records ⇛(d) Ancient Documents (20 years) ⇛(e) Statemenets affecting property interests ⇛(f) Learned treatises 4. OTHER - (4) ⇛(a) Reputation - (4) ⇨⇨⇨(i) Personal Family ⇨⇨⇨(ii) Character ⇨⇨⇨(iii) Land Boundaries ⇨⇨⇨(iv) Community History ⇛(b) Families ⇛(c) Market Reports / Commercial Publications ⇛(d) Residual |
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