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161 Cards in this Set
- Front
- Back
Red herrings (5)
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Not the best evidence, Dead Man's Statute, Self-serving and prejudicial, Res gestae, TV objections ("Witness is not on trial!" "The evidence calls for an inference upon an inference")
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Irrelevant evidence is…
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never admissible
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Relevant evidence…
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might be admissible
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Evidence is relevant if…
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it has any tendency to make the existence of any fact that is of consequence to the determination of the matter more or less probable than it would be without the evidence
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Is evident about contract party's secret, subjective intent re entering into contract relevant?
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No, because it is not "of consequence"
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How to tell if something is "of consequence?"
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Use knowledge of substantive law in the case
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When do courts have discretion to exclude relevant evidence?
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If probative value is substantially outweighed by unfair prejudice (look for: emotionally disturbing, admissible for one purpose but inadmissible for another), confusion or waste of time, or policy reasons
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Evidence of liability insurance is…
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admissible for any purpose, EXCEPT to prove culpable conduct like negligence, or D's ability to pay a judgment
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Any time evidence is admissible for one purpose but not for another, raise possibility of…
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Limiting instruction or court's discretion to exclude - unfair prejudice
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Evidence of subsequent remedial measures or repairs is…
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admissible (x was D's responsibility, or to rebut defense of no feasible precaution), EXCEPT to prove culpable conduct, or, in products liability cases, defective product design
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If D says "the door was safe," can P introduce evidence that D later put a sticker on the door?
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No - evidence of subsequent remedial measures is inadmissible to prove negligence
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In a criminal case, pleas (of guilty or nolo contendere), offers to plea, and related statements are…
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Inadmissible to prove guilt
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In a civil case, evidence of settlements, offers to settle and related statements are…
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inadmissible to prove liability to fault
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Exceptions to settlement rule:
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No claim yet asserted (offers to settle before other party says anything); no dispute as to liability or damages ("I know I owe you the full $10K, but can we agree I'll just pay you $5?")
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Evidence of payment or offers to pay medical expenses is inadmissible…
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to prove liability for injuries.
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Statements related to payment/offers to pay medical expenses are…
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always admissible.
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"if you will sign a release, I will pay your hospital bill. I shouldn't have dropped that banana peel." Admissible?
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No - because it's all part of a settlement discussion.
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Similar occurrences evidence means…
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Evidence about other people or events
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Evidence of someone doing same thing at same time as injured P may be relevant…
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if it makes it more likely that D caused P's injury
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Evidence of prior accidents/claims by P is…
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usually irrelevant, unless it shows a pattern of P bringing fraudulent claims, or a relevant preexisting condition
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Evidence of previous similar acts may be relevant…
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to prove intent (e.g., unbroken string of consistently hiring male over qualified female)
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Evidence of previous similar acts may be relevant to rebut…
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a defense of impossibility (eyeball in Whoopsi Cola) - and remoteness in time won't block it
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Evidence of comparable sales of similar property in the same area may be relevant…
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to establish value
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Is habit evidence admissible to show conduct in accordance with habit?
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Yes
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What is the difference between habit evidence and character evidence?
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Habit evidence describes specific conduct and makes no moral judgment; character evidence says something general about a person and conveys a moral judgment
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How many times does someone have to do something for it to be a habit?
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Lots - more than a couple
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Routine business practice evidence is relevant…
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to show that conduct of an entity was in conformity with that practice on the occasion in question
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Industrial custom evidence is relevant…
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to prove standard of care in negligence case.
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Character evidence approach (4 steps) -
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What is the purpose for which the evidence is offered? (Character in issue? Circumstantial evidence of conduct in conformity with character? To impeach or support credibility?); What method is used to prove character? (Specific acts/Opinion/Reputation); Civil or criminal case? Is the trait pertinent?
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Civil case - character evidence is _________ to prove conduct.
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Inadmissible, EXCEPT for a civil claim based on sexual assault or child molestation - then, D's prior acts of sexual assault or child molestation are admissible to prove conduct
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Civil case - defamation - character evidence is ___________.
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Admissible, because character is in issue in a defamation case
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Civil cases - character is in issue in these types of cases:
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Defamation, negligent entrustment (parents negligent to give car to teenage son whom they knew to be reckless), child custody.
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Civil cases - what form of character evidence may be used to prove character when character is in issue?
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All - opinion, reputation, specific acts
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Criminal case - character evidence is never offered to prove…
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Character in issue
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Character is only in issue in…
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civil cases
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Prosecution can be the first to offer evidence of D's character only …
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In sexual assault/child molestation cases, P can be first to offer evidence that D committed other sexual assaults/child molestations; Where court has admitted evidence of V's character offered by D, prosecution can be first to offer evidence that D has same character trait
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If D witness testifies that D has reputation for being gentle/non-violent. Can P introduce opinion/reputation/specific acts evidence to rebut?
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P may introduce opinion/reputation/specific acts information on cross against D, if door is already open
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If D witness in an assault case testifies that D has reputation for being gentle/non-violent. Can P introduce opinion/reputation/specific acts evidence showing D is honest to rebut?
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No - honesty is not a pertinent trait here
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If D opens door for character evidence, may D introduce specific acts evidence of his own good conduct on direct?
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No
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If D calls witness who testifies that D is gentle, can P ask on cross, "Did you know that D kicked his evidence professor?"
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Yes - once D opens door, specific act evidence is admissible on cross
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If D calls witness who testifies that D is gentle, can P call evidence prof to stand and on direct ask about incident in which D kicked prof?
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No - specific evidence act is never admissible on direct, even if D opened door
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D can open door to V's character evidence in two ways:
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D may offer evidence of V's character. Or, in a homicide case, if D offers evidence that V attacked him first, P may offer evidence of V's character for peacefulness
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Re character evidence, criminal cases - what's the one time the doors open together:
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After court admits D's evidence of V's character, P may offer evidence of D's violent character
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Character evidence rules only applies if…
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character evidence is admitted to prove character
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Rape shield/criminal: What evidence of victim's character is admissible?
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ONLY specific instances of alleged V's conduct is admissible, and only to prove 3d party is source of semen/injury or prior acts of consensual intercourse between D and V. (NO opinion/reputation evidence of V)
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Rape shield/civil: What evidence of victim's character is admissible?
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Reputation, opinion, specific acts evidence is admissible if probative value substantially outweighs unfair prejudice (special balancing test) and, w/ reputation evidence, P put V's reputation at issue
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Specific evidence of D's prior bad acts, inadmissible to prove character, admissible to show (MIMIC)
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MOTIVE, INTENT, absence of MISTAKE, IDENTITY (requires similarity and uniqueness - e.g. both times wore ballet tutu and swim flippers for bank robbery; not both murderers stabbed Vs in heart), COMMON plan/scheme (D committed act in past that is part of plan to commit crime w/ which he's charged - e.g., stole ice cream truck last week that is the getaway vehicle in instant bank robbery)
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Can court exclude specific evidence of D's prior bad acts admissible under MIMIC?
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Yes, if probative value substantially outweighed by prejudice, character or waste of time.
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What are requirements for a witness to be competent to testify?
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Personal knowledge (may be limited; distinguish from hearsay - does fact perceived = fact testified to? If not, PK), Present recollection, Communication (directly or through interpreter, Sincerity (oath)
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Which two types of people may never be competent?
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Judge or juror in the case
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Requirements for stating objective?
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Timely manner, specific way
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Types of objection - testimonial evidence
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Hearsay, calls for narrative (overbroad question - question must elicit specific facts); nonresponsive (W didn't answer q); improper leading question (leading q suggests answer to W; no leading on direct unless adverse or hostile W, or W needs help; leading OK on cross as long as stay w/i scope of direct); assumes facts not in evidence ("When did you stop beating your wife?"); argumentative ("Do you expect the jury to believe that load of baloney?"); compound ("Isn't it true that you both cheated on your wife, and you beat her up?" - confusing to jury)
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Present recollection refreshed - what can be used to refresh?
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Anything - but other side can inspect it and introduce it into evidence
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What should P's counsel do when W says memory is not refreshed?
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Only option: Offer document into evidence under past recollection recorded rule (W once had personal knowledge, doc made by W or under W's direction or was adopted by W (W did/said something to indicate she agreed with contents), doc was accurate when made, W now has insufficient recollection to testify)
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Opinion testimony - default rule
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Inadmissible
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Lay opinion is admissible if…
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rationally based on W's perceptions (perception must be sufficient) and helpful to trier of fact (gives jury more info than would testimony limited to W's perceptions); cannot be based on scientific or other specialized knowledge
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Lay opinion is traditionally permissible re these specific qs, if admissibility test met (5)
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Speed of auto, sanity, intoxication, emotions, value of W's property
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Lay opinions are never permissible re…
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legal conclusions - they are not helpful because they give jury less info than testimony describing W's perceptions
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Expert opinion is admissible if…
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helpful to jury, W is qualified, W believes in opinion to reasonable degree of certainty, opinion is supported by proper factual basis, opinion is based on reliable principles that were reliably applied
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In context of expert opinion, helpful means…
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expert uses specialized knowledge to reach conclusion the average juror could not figure out for herself
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Expert opinion may be based on one of the following:
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Admitted evidence, personal knowledge, or inadmissible evidence reasonably relied upon
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If prior witness testified "X, Y, & Z" about the crime scene, then attorney asks expert W, "assume hypothetically A, B, & C; what is your opinion?" - MAY expert testify?
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Only if X, Y, & Z match A, B, & C
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In context of expert opinion, what does "reliable principles, reliably applied" mean?
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Daubert/Kumho standard: Peer-reviewed and published, tested and subject to retesting, low error rate, reasonable level of acceptance; also, reliable on common sense basis - no logical inconsistencies, considered other pertinent evidence and alternative explanations)
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Learned treatise hearsay rule
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A learned treatise is admissible to prove anything stated therein if it is an accepted authority in the field; book is read to jury not admitted into evidence
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Evidence offered to support a W's credibility is…
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inadmissible unless W's credibility was attacked first
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If prior consistent statement was made before bribe or inconsistent statement (once W's credibility was attacked), it is …
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admissible for all purposes (e.g., not hearsay)
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If prior consistent statement was made after bribe or inconsistent statement (once W's credibility was attacked), it is …
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inadmissible for any purpose
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Impeachment evidence - approach:
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Intrinsic/extrinsic? Admissible under impeachment technique? Foundation requirements?
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Extrinsic evidence means…
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any evidence other than testimony given at the instant proceeding by the witness being impeached
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Impeachment by contradiction -
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contracts a fact re which W testified
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Is extrinsic evidence admissible to impeach W by contradiction?
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Yes, unless on a collateral matter (fact not material to issues in the case, which says nothing about W's credibility other than to contract the W)
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Conviction for crimes involving false statement - admissible to impeach?
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Always admissible (felony/misdemeanor irrelevant) for impeachment (not necessarily conduct) - no discretion; balancing only allowed if conviction > 10 years old.
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Conviction for crimes involving false statement - admissible to prove conduct in conformity with character?
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Not necessarily - see character evidence rules
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Misdemeanors not involving false statement - admissible to impeach?
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No
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Felonies not involving false statement - admissible to impeach?
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Yes, but discretion to exclude/balancing
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Conviction evidence - extrinsic evidence allowed?
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Yes (if otherwise admissible)
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What's the rule about old convictions?
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If conviction is otherwise admissible, but > 10 years have passed since release from prison or date of conviction (whichever is later), inadmissible unless probative value outweighs unfair prejudice
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Prior bad acts (NOT BAD ACTS) admissible in both civil and criminal cases is admissible to IMPEACH…
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If those acts involved lying; intrinsic evidence only
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What is the one type of conduct P can ask W about, for purposes of impeachment?
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Lying
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Is extrinsic evidence admissible to impeach W using opinion/reputation evidence?
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Yes
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Forms of impeachment
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Character for untruthfulness, prior convictions, prior inconsistent statements, bias, incapacity, specific contradiction
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What is hearsay?
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An out of court statement offered to prove the truth of the matter asserted
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What is a statement for purposes of hearsay?
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Verbal or written expression of a person, conduct by a person intended to communicate
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When is info from a machine a "statement" for purposes of hearsay?
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When a person is involved - e.g., inputting data that the computer spits back
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When is info from an animal a "statement" for purposes of hearsay?
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When a person is involved - e.g., "inputting" phrases that a parrot spits back
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When is "that is my land" not hearsay?
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Adverse possession case
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Is it hearsay when the W quotes her own out-of-court statement?
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Yes (if other factors for hearsay are met)
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Exemptions from hearsay
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Party admission, authorized admission, agent admission, adoptive admission, co-conspirator admission, prior inconsistent given under oath at trial/deposition; prior consistent statement offered to rebut charge of recent fabrication/improper influence/motive; statement of identification of a person made after perceiving the person
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Do you need personal knowledge for a party admission?
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NO
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What is the one exception to the requirement for personal knowledge?
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Party admissions
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Agent admission
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Statement by employee concerning matter w/I scope of employment
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Hearsay - former testimony exception
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Declarant unavailable; criminal case: party against whom testimony is now offered had during earlier proceeding had opportunity and similar motive to examine; Civil case: party or predecessor-in-interest (requires close privity relationship) had opportunity and similar motive to examine
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Declarant unavailable means
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Court exempts declarant due to privilege; declarant is sick or dead; proponent cannot procure declarant's testimony by subpoena or other means; declarant refuses to testify despite court order; declarant's memory fails
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Hearsay - declaration against interest exception
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Declarant's out-of-court statement was against financial interest of declarant when made, or would've subjected declarant to future criminal liability; if offered to exculpate the accused, must be corroborating evidence to admit
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Hearsay - dying declaration exception
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W must believe he's about to die, and statement must concern cause/circumstances of the impending death; admissible in civil and homicide cases only
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Which hearsay exception applies only in civil or homicide criminal cases?
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Dying declaration - note: not even attempted homicide
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Hearsay - excited utterance exception
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Availability immaterial - statement relates to startling event/condition and declarant still under stress of excitement caused by event/condition
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Hearsay - present sense impression exception
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Availability immaterial - statement describes/explains an event/condition made while declarant was perceiving the event/condition or immediately afterward
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Hearsay - state of mind exception
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Availability immaterial - statement describes declarant's then-existing physical or mental condition or state of mind - NOT admissible to prove fact remembered/believed
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No state of mind exception for…
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fact remembered or believed
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Hillman doctrine
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Jury can infer that declarant acted in accordance with intention
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Hearsay - medical/physical condition exception
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Availability immaterial - statement of past or present mental/physical condition, or its cause, o that person or any other person, made for medical diagnosis or treatment - admissible
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If child says to mom "my head hurts" knowing mom's going to doctor, does medical exception apply?
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Yes - son makes statement for purpose of med diagnosis/treatment
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Hearsay - business records exception
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Availability immaterial - court may exclude if untrustworthy. Record of events, conditions, opinions, diagnoses; kept in course of regularly conducted business; made at/near time of matters described; by person w/ knowledge of facts in record; it was regular practice of business to make such record
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Hearsay - public records exception - civil
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Availability immaterial - excludable if untrustworthy. Record describes activities of the office, describes matters observed pursuant to duty imposed by law, or contains factual findings resulting from investigation made pursuant to authority granted by law
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Hearsay - public records exception - criminal
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Availability immaterial - excludable if untrustworthy. Record describes activities of the office
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Hearsay - judgment of previous conviction
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Availability immaterial - Hearsay describing felony convictions is admissible in both civil and criminal cases to prove any fact essential to the judgment, but when offered by prosecution for purposes other than impeachment, judgments against persons other than the accused are inadmissible
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Confrontation clause excludes…
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Out-of-court statement if declarant does not testify, is now unavailable, the statement is "testimonial," and defendant had no chance to cross-examine declarant about the statement when it was made.
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Testimonial
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statement is made in court, statements made to further a police investigation aimed at producing evidence for a prosecution (not police to deal with ongoing emergency)
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Every item of nontestimonial evidence must be…
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authenticated
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What is the burden for authentification?
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Sufficient to sustain finding
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How to authenticate signatures?
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Admission, eyewitness testimony, expert opinion, lay opinion, circumstantial evidence (ancient documents - authenticity established if document 20+ years old, does not present irregularities on its face, found in place of natural custody), genuine exemplar
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What are self-authenticating documents?
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Public documents (deeds) acknowledged documents (where original signature is attested before a notary to be valid), official publications (government pamphlets), newspapers, periodicals, business records, trade inscriptions (tag/label that purports to have been attached in course of business and indicates ownership/control/origin)
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What's the challenge w/ photos?
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Personal knowledge - W can testify to whether a photo "fairly and accurately depicts" the scene at time of accident, but only photographer can testify that it IS a photo of the scene taken at the time of the accident
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How to authenticate non-unique items?
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Proponent must lay chain of custody demonstrating that this is the specific item proponent claims it to be
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Small breaks in the chain of custody are…
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not a problem, because only needs to meet sufficiency standard
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Best evidence rule -
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Original is required to prove the contents of a writing, with many exceptions
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Writing
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Documents, videos, photos, x-rays, audio recordings, computer disks, or any tangible collection of data
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When is evidence being offered to prove contents of a writing?
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Case terms on contents of legal instrument, W's knowledge of facts is obtained from writing
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Best evidence rule - voluminous documents exception
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Summary suffices if originals are available for inspection
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If best evidence rule applies, what type of evidence is admissible to prove contents of a writing?
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Originals (including computer printouts/certified copies); duplicates (machine-produced copy) - unless genuine question about authenticity of original
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When may testimony regarding contents of a writing be admissible?
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When the original was destroyed, unless bad faith by proponent of testimony
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Privileges recognized under FRE:
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Attorney-client, spousal, psychotherapist-patient, and social worker-client - UNLESS civil diversity cases - in which case state rules govern
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Attorney client privilege
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Confidential communication between attorney and client, made to facilitate legal services
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Who can waive attorney client privilege?
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Only the client
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When is a communication from a corporation employee to the corp.'s attorney privileged?
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If corp. authorized employee/agent to communicate to the lawyer
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Which is stronger, the atty/client privilege or the doctor/patient privilege?
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Attorney-client!
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How is "confidential" determined?
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From client's point of view
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Attorney-client privilege - what about communications made in front of other people?
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Still confidential if people are in scope of privilege - course of facilitating legal services
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Attorney-client privilege - what about communications with a lawyer client decides to hire (in his office, formally)?
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Privileged
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When does attorney-client privilege not apply (when other factors met)?
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Professional services sought to further what client knew/should have known to be a crime/fraud, communication relates to alleged breach of duty between lawyer/client; two or more parties consult an attorney on a matter of common interest and the communication is offered by one of these parties against the other
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Psychotherapist-patient/social worker-client privilege
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Same basic rules as attorney-client
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Doctor-patient privilege
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Not in FRE; exists in CA; majority rule is: A patient has a privilege to prevent disclosure of information confidentially conveyed to a physician where the patient conveyed the information for the purpose of pertaining diagnosis or treatment, and the information was pertinent to obtaining diagnosis or treatment
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Information conveyed to a doctor in order that the doctor testify
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Is not privileged
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Exceptions to doctor-patient privilege
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Patients puts his physical condition in issue (PI suit), where physician's services sought to aid in crime/fraud/escape capture after crime/tort; in case alleging breach of duty arising out of physician-patient relationship (malpractice); in CA, not recognized in criminal cases
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Spousal privilege - testifying
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Spouse has privilege not to testify against spouse in criminal cases - must be married at time of trial - communication can take place at any time; only testifying spouse can waive
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Spousal privilege - confidential communications
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Protects confidential spousal communications during marriage - either spouse can assert the privilege
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Which spousal privilege applies in civil action between spouses?
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neither
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Which spousal privilege applies in a criminal prosecution in which one spouse is charged with a crime against the other spouse or one of their kids
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neither
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Facts appropriate for judicial notice
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Must be not subject to reasonable dispute because they are either general known in the jurisdiction, or capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned
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Procedure for taking judicial notice
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Party may request judicial notice to compel; otherwise, court has discretion
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Is jury required to accept judicially noticed fact?
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Civil - if requested, jury must accept noticed fact as conclusive; in criminal - court instructs jury it may, but is not required to, accept noticed fact
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May judicial notice be taken on appeal?
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Yes
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What counts as a prior inconsistent statement?
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Actual inconsistency, evasion - not just a lack of memory
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Under the Fifth Amendment privilege, a witness may...
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Refuse to answer any question on the ground that may incriminate him (can't be compelled to testify himself)
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Can a person become familiar with handwriting/speaker's voice/both for purposes of trial?
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Only voice
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Who may authenticate handwriting?
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Someone with personal familiarity, a basis for forming an opinion as to the handwriting derived from specialized knowledge, a particular fact-finding function - e.g., jurors
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What does a Dead Man Act provide?
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An interested party, or her predecessor in interest, is incompetent to testify to personal transaction/communication with a deceased when such testimony is offered against the representative/successor in interest of the deceased. State law (but NOT CA) only; apply in fed court diversity cases
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Evidence of repairs/settlements/insurance is barred because of
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public policy
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When a person is charged with one crime, extrinsic evidence of other crimes/misconduct is ______ to establish a criminal disposition
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Inadmissible (might be admissible to impeach - but only for truthfulness)
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Why shouldn't D offer to settle before P makes a claim?
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Because that's a party admission - admissible hearsay exemption - not a settlement offer.
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Need judges decide preliminary facts outside the presence of the jury?
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No (at least, not generally)
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D's attempt to bribe a W would be considered...
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an admission by conduct; therefore, an exemption to hearsay (or conduct not intended to be an assertion, also nonhearsay)
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Format for evidence essays
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Form (legal objections to qs & as), Purpose (logical/legal relevance, extrinsic policy exclusions, character evidence), Presentation (personal knowledge, competency, impeachment, lay/expert opinion, document reliability, judicial notice), Hearsay, Privileges
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"I looked at the DMV record and it showed a blue Corvette is registered to Dan." Problem?
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Best evidence rule - in proving contents of a writing, original must be produced or shown to be unavailable
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"Gasoline is the best firestarter." Hearsay to show intent of arsonist?
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No. That doesn't prove the truth of the matter asserted. It's circumstantial evidence of talking about ways to start fires/using gasoline
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If W can't identify who made the statement, does that make it inadmissible?
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No - it's still admissible that someone made the statement
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Grand jury testimony of a person not now testifying is...
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hearsay - not nonhearsay, and not within any exception, because grand jury testimony doesn't give opportunity to cross
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Judgments of felony conviction are admissibile in both criminal and civil action to...
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prove any fact essential to the judgment, whether judgment arose after trial or upon a plea of guilty
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Do courts have discretion over the extent/scope of cross?
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Yes
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Does impeachment have to positively controvert a witness's testimony, or can it just cast an adverse reflection on the veracity of a W?
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The latter - it need not absolutely contradict.
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