Evidence, 2013, Mbe

Front 1

When is evidence ADMISSIBLE?

Back 1

If it is PROBATIVE (tends to prove or disprove), MATERIAL (any fact of consequence to the action), and COMPETENT (does not violate any exclusionary rule).

Front 2

When is evidence RELEVANT?

Back 2

When it tends to make the existence of any fact of consequence MORE PROBABLE than it would be without the evidence.

Front 3

When is evidence of previous similar activities admissible?

Back 3

To prove:

(i) the EXISTENCE of a dangerous condition
(ii) that the ∆ had KNOWLEDGE of the dangerous condition, and
(iii) that the dangerous condition was the CAUSE of the present injury.

Front 4

What is HABIT evidence and when is it admissible?

Back 4

A habit describes a person's REGULAR RESPONSE to a SPECIFIC SET OF CIRCUMSTANCES.

Admissible to show that the conduct of the person on a particular occasion was in conformity with the habit.

Front 5

What are the four big steps to determine the admissibility of evidence?

Back 5

(1) Relevance
(2) Foundation (competency of witness, authenticity of evidence, reliability of scientific test)
(3) Form (questions are phrased right, answers are within requirements for expert opinion, documents comply with best evidence rule)
(4) Exclusionary Rules: Discretionary exclusion for prejudice, policy based exclusion, privilege, hearsay, parol evidence.

Front 6

When is the discretionary exclusion of relevant evidence okay?

Back 6

When its probative value is substantially outweighed by the danger of unfair prejudice (confusion of issues, misleading the jury, undue delay, waste of time).

Judge's discretion.

Front 7

When will relevant evidence be excluded for PUBLIC POLICY CONCERNS?

Back 7

When public policy favors the behavior involved, and admitting evidence might discourage the behavior, like:

(1) Liability insurance: to show negligence or ability to pay.
(2) Subsequent Remedial Measures: to show negligence, defect, need for warning, but IS admissible to show ownership, rebut a claim that precaution was not feasible, or prove opposing party has destroyed evidence.
(4) Settlement Offers and Withdrawn Guilty Please: to prove liability for a disputed claim.
(5) Offers to pay medical Expenses: always inadmissible (though accompanying facts are admissible).

Front 8

When character evidence is admissible, how may it be proved?

Back 8

(1) SPECIFIC ACTS

(2) OPINION testimony of witness who knows the person; and

(3) testimony as to the person's general REPUTATION in the community.

Front 9

When is character evidence admissible in a CIVIL CASE?

Back 9

If character is directly in issue (defamation). Not admissible to prove the conduct of a person in the litigated event (propensity).

Front 10

When is character evidence admissible in a CRIMINAL CASE?

Back 10

(1) ∆ opens the door by showing evidence of her good character to show innocence using REPUTATION or OPINION evidence.
(2) Prosecution may now cross the witness, limited to INQUIRY of the witness only, or calling other qualified witness to testify of bad REPUTATION or give their OPINION.
(3) ∆ may introduce REPUTATION or OPINION evidence of a victim's relevant bad character trait to show ∆'s innocence. Prosecution may counter with good R or O evidence of victim, or bad R or O evidence of ∆'s same character trait.

Front 11

When are specific acts of misconduct admissible as character evidence?

Back 11

Only if they are also admissible as relevant to some other issue. MIMIC

Motive
Intent
Mistake, lack of
Identity
Common scheme

Front 12

What standard of proof is applied to make previous specific acts admissible?

Back 12

Must be sufficient evidence to support a jury finding that ∆ committed the prior act.

Front 13

When will a court take judicial notice of a fact and what is the effect?

Back 13

If it is an indisputable fact that is either COMMON KNOWLEDGE or CAPABLE OF VERIFICATION.

Conclusive in a civil case, but not in a criminal case.

Front 14

When MUST a court take judicial notice of LAW?

Back 14

If the law is FEDERAL or STATE law or regulations.

It MAY take notice of municipal ordinances, private acts or resolutions of congress, local state legislature, or laws of foreign countries.

Front 15

How is REAL evidence authenticated?

Back 15

Identified as what the proponent claims it to be:

(1) Testimony of a witness that she recognizes the object
(2) Evidence that the object has been held in substantially unbroken chain of possession (blood sample).

Front 16

How is DOCUMENTARY evidence authenticated?

Back 16

Must show with sufficiency to support a jury finding:

(1) admitted, stipulated
(2) eyewitness to execution
(3) handwriting verification
(4) ancient document (more than 20 years, in right place)
(5) reply letter
(6) photographs with witness to testify correct representation
(7) x-ray, testimony about machine, working, custodial chain.
(8) self authenticating: public record, publication, news, business records, etc.

Front 17

What is the BEST EVIDENCE rule?

Back 17

To prove the terms of the writing, the original must be produced unless it is lost, destroyed, or outside of the jurisdiction, then secondary evidence may be used.

Front 18

What is PAROL EVIDENCE and when is it admissible/inadmissible?

Back 18

If an agreement is reduced to writing with intent that it be the full and final expression of the bargain, then PAROL EVIDENCE (prior and contemporaneous negotiations) are inadmissible to vary the terms of the writing.

Parol evidence is admissible to complete an incomplete k, explain an ambiguity, challenge to validity of a K.

Front 19

When is a witness COMPETENT to testify?

Back 19

When he has PERSONAL KNOWLEDGE and he declares he will testify TRUTHFULLY.

Front 20

What is a DEAD MAN ACT?

Back 20

A state law that states an INTERESTED witness is incompetent to testify to a personal transaction or communication with a deceased, when such testimony is offered against the representative of the deceased's estate.

Front 21

What may a witness use to REFRESH HER RECOLLECTION?

Back 21

Anything! May not read from it, not authentic, not in evidence, must give to adverse party, adverse party is free to admit.

Front 22

When may a witness use a RECORDED RECOLLECTION?

Back 22

A writing may be used if the witness at one time had

(i) personal knowledge of the facts in the writing
(ii) that was made by the witness
(iii) when the matter was fresh in her mind
(iv) accurately
(v) and the witness now has insufficient recollection to testify fully and accurately.

Front 23

When may a witness be impeached by PRIOR INCONSISTENT STATEMENTS?

Back 23

When the witness made prior inconsistent statements with his present testimony, and the witness is given an opportunity to explain or deny the statement.

These statements are hearsay, admissible only for impeachment, but if the prior statement was under oath at prior proceeding, it is nonhearsay and comes in as substantial evidence.

Front 24

When may a witness be impeached by prior CONVICTION of a crime?

Back 24

If the crime involves dishonesty or if the crime is a felony and its probative value is not substantially outweighed by prejudice.

Front 25

What is the ATTORNEY CLIENT PRIVILEGE?

Back 25

Communication between an attorney and client will be privileged if (i) confidential and (ii) made while seeking professional services.

Front 26

When is a privilege WAIVED?

Back 26

When a party fails to claim the privilege, voluntarily discloses the information, or contracts to waive the privilege in advance.

Front 27

What is the PHYSICIAN-PATIENT privilege?

Back 27

Communication between patient and physician is privileged if (i) a professional relationship exists (ii) during course of treatment and (iii) statements were necessary for treatment.

Front 28

What are the HUSBAND-WIFE privileges?

Back 28

Spousal Immunity: A married person may not be compelled (but may choose) to testify against his spouse in any criminal proceeding.

Confidential Marital Communications: Any communication made during the marital relationship in reliance on the intimacy (confidence) of the relationship is privileged.

Front 29

What is HEARSAY?

Back 29

A statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

Excluded upon appropriate objection bc no opportunity to cross examine the declarant.

Front 30

When are statements not offered to prove the truth of the matter asserted?

Back 30

When they are (i) verbal acts (ii) to show effect on the hearer (iii) or circumstantial evidence of the declarant's state of mind.

(ask if it matters if the declarant is telling the truth, if yes hearsay, if not, not hearsay)

Front 31

What statements are declared NONHEARSAY by the federal rules of evidence?

Back 31

Prior Statements by the witness either (i) inconsistent with testimony and given under oath, consistent with testimony and offerred to rebut a charge that the witness is lying, OR (iii) identifying a person after perceiving him.

Admissions by a Party-Opponent: Silence adopts statements only if a reasonable person would have denied. Co-party statements not admissible.

Front 32

What are the hearsay exceptions that require the declarant to be unavailable?

Back 32

Former Testimony: If opposition was a party and had chance to cross.

Statements against Interest: made against pecuniary, proprietary or penal interests when made.

Dying Declaration: Homicide or civil only, declarant believed his death was imminent, statement concerns cause or circumstances of impending death.

Statements of Family History: declarant is member of family and has personal knowledge of facts.

Statement offered against party procuring declarant's unavailability.

Front 33

What are the hearsay exceptions that don't require the declarant to be unavailable?

Back 33

(1) Present state of mind
(2) Excited utterance
(3) Present sense impression
(4) Declaration of physical condition
(5) Business record
(6) Past recollection recorded
(7) Official Records
(8) Ancient Documents

Front 34

What is the BUSINESS RECORD hearsay exception?

Back 34

Any record made in course of regularly conducted business activity, when it was customary to make the type of record involved, and the entrant had personal knowledge or it was his duty to transmit such matters to the entrant.

Front 35

What is the OFFICIAL RECORD exception to the hearsay rule?

Back 35

Public records and reports are admissible if (i) made by a public employee (ii) at or near the event's occurrence. Judgments are admissible to prove any fact essential to the judgment.

Front 36

What are the CONSTITUTIONAL LIMITATIONS on the hearsay exceptions?

Back 36

Hearsay that qualifies under an exception is still inadmissible if offered against accused in a criminal case, the declarant is unavailable, the statement is testimonial, and the accused had no opportunity to cross examine the declarant.

Front 37

When is a preliminary fact decided by the judge and when is it decided by the jury?

Back 37

Judge: facts affecting the COMPETENCY of the evidence: Hearsay, privileges, expert testimony, mental competence.

Jury: Agency, authenticity of a document, credibility of a witness, and personal knowledge.

Front 38

When is a lay opinion admissible?

Back 38

Generally, law opinions are not admissible. However, exception is made if (i) opinion is rationally based on the perception of the witness; (ii) helpful to a clear understanding of the testimony or to the determination of a fact in issue; (iii) not based on scientific technical, or other specialized knowledge (iv) situation where lay opinion is worth while (speed of an object).