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110 Cards in this Set

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Big tips for Evidence essay
1. talk about relevance for each piece of evidence offered, eve if obvious
2. state as many objections as possible
3. state as many theories of admissibilities as possible
big tip for evidence multistate
always start by identifying why evidence is / is not relevant
Logical relevance defined
if it has any tendancy to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evid.
Relevance: to determine "of consequence"...
consider substantive underlying law
Relevance: to determine "more probable than not"...
it's just common sense
Legal relevance defined
assuming that evidence is logically relevant, court still has discretion to esclude if PV substantially outweighed by (i) unfair prejudice, (ii) confusion, or (iii) waste of time
(i.e. "suprise evidence")
Inadmissible forms of evidence, despite relevance
Note: below evidence admissible for all reasons not stated
1. liability insurance to prove culpable conduct / ability to pay
2. subsequent remedial measures or repairs to prove culpable conduct
3. settlements, offers to settle and pleas
4. Payment or offers to pay medical expenses
examples of acceptable reasons for admission of subsequent remedial measures or repairs
1. to prove feasibility of precautions
2. subsequent remedial measures in products liability
Requirements for "inadmissibility of settlements, offers to settle and pleas" rule to apply
1. must first be a claim
2. must be a dispute to settle - D cannot admit to amount owed
3. cannot be a humanitarian gesture (i.e. where D asks for something in return --> offer)
Can you admit surrounding statements for payments or offers to pay medical expenses?
Yes (i.e. "i'll pay your hospital bill (not-admissible)... I shouldn't have dropped that banana peel (admissible)
Similar occurrences: rule and reqs
Rule: similar occurrences admissible sometimes to prove causation

Reqs: same time, same place, same conditions makes it more probable that causation is as P claims
Are prior accidents or claims admissible evidence?
Usually no.

1. pattern of fradulent claims
2. where shows a pre-existing condition (relevant to damages, causation)
Are previous similar acts admissible to prove intent?
Y - increases probability that there was intent
Is evidence admissible to rebut a defense of impossibility?
Is habit evidence admissible? When?
Yes. Habit of a person to act in a certain way is admissible to show the person acted in accordance with the habit on the occassion in question
Tests for Habit v. Character evidence
Habit: specific conduct in a specific situation and it's repeated; no moral judgment; suggests always

Character evidence: says something general and makes a moral or ethical judgment (i.e. someone is "careful")
Equivelence of Habit evidence for a business? When is it used?
Routine Practice evidence

To show that conduct of entity was in conformity with that practice on the occassion in question.
Is industrial custom evidence admissible? For what?

To prove standard of care.
Character Evidence approach - Memorize!
1. What is the purpose for which the character evidence is offered?
a. to prove character b/c character is an issue in the case
b. to prove character as circum. evid. of a person's conduct on occassion in question
c. to impeach or support W's credibility
2. What method or technique is used to prove character?
a. specific acts of conduct
b. opinion
c. reputation
3. Is it a civil or criminal case?
4. Does the evidence prove a pertinent character trait?
When is character evidence admissible in civil cases?
1. claim is based on sexual assualt or child molestation - to prove conduct
2. character is an issue in the claim (which involves dishonesty)
a. defamation
b. child custody
c. negligent entrustment
what is negligent entrustment?
entursting possession to someone who is known to be careless / reckless
Character admissibility in criminal cases, concerning D's character
Prosecution CANNOT BE THE FIRST to offer character evid. except in
(1) cases of sexual assualt or child molestation, or
(2)where court has admitted evidence of V's character offered by accused, P can admit evid. of same character trait
Can Defense be the first to offer character evidence of self?
For criminal case, restrictions on P's evidence offered to rebut D's character evid.
Must be PERTINENT to D's char. evid. (i.e. for assualt case, char. for violence is pertinent)
In criminal case, what character evidence is admissible on direct? On cross?
Direct: reputation and opinion
Cross: SPECIFIC INSTANCES, reputation, and opinion
Admission rules regarding character evidence of VICTIM
Almost same as for Defense: P cannot be first to offer character to prove conduct; D can go first, then P can rebut, No specific instances on direct, but okay on cross AND
once D offers character evid. of V, P can offer evidence that D has same character trait
Restrictions to D's evidence alleged victim's character when offereed to support defense of consent
REPUTATION and OPINION evidence inadmissible.

SPECIFIC INSTANCES of alleged V's conduct admissible only to prove
1. 3rd party is source of semen or injury OR
2. prior acts of consensual intercourse b/w D and alleged V
For these specific instances evidence, (1) D must give notice of intent to offer evidence and (2) in camera hearing held.
When is specific instances of D's bad conduct admissible?
To prove anything other than character that is relevant.
M.I.M.I.C. = Motive, Intent, Mistake (absence of mistake), Identity, Common plan or scheme
Common plan or scheme defined
prior act that is same plan / scheme to commit crime (i.e. using an ice-cream truck as get-away car)
What is identity under specific instances of conduct?

How is it measured?
Identity = signature crime (method of committing a crime)

Measured by similarity and uniqueness to event in question
Does judge retain discretion to exclude evidence for unfair prejudice where evidence addresses character evidence? How?
Yes; balance PV for proper purpose against unfair prejudice created by impermissible purpose
What determines a witness's ability to testify (one word)
Requirements for witness competency (4)
1. Personal knowledge (perception of facts w/own senses)
2. Present recollection - W must testify from present recolletion, not from some record regarding matters W once knew but has now forgotten
3. Communication - W must be able to relate perception
4. Sincerity - W must take oath or affirmation to tell truth
Prosecution witness testifies "defendant shot victim." W is blind and bases testimony on what someone said. What is the Proper objection?
lack of personal knowledge (not hearsay - would be "Sheriff told me that D shot the victim.")
How to distinguish b/w PERSONAL KNOWLEDGE and HEARSAY
look at form of testimony of W. If quoting or attributing testimony to what someone else said --> hearsay
-If saying something happened --> personal knowledge
Reqs for objections to testimony
Must be
1. timely AND
2. specific
When are leading questions permissible?
1. on cross
2. on direct if adverse witness
Forms of objections
1. calls for narrative
2. unresponsive
3. leading question
4. assumes facts not in evidence
5. argumentative
6. compound
Three-step approach to Hearsay problems
1. find the statement
2. ask what it is offered to prove; if not explicit, just determine why statement is relevant (don't stop at the first one)
3. given what it's offered to prove, will jury be mislead if speaker lying or mistaken; if Y --> HEARSAY
Definition of Hearsay
Out-of-court statement offered for the purpose of establishing the truth of the matter asserted in that statement
Exceptions to Hearsay
1. Independent legal significance
a. defamation
b. adverse possession (statement by of openly claiming adversely possessing)
c. wonership of personal property (chattels)
2. Effect on the listener (knowledge or notice (of a danger) on part of listener)
3. shows knowledge
4. shows CIRCUMSTANTIAL evidence of state of mind ("I am dracula"; not "I feel like killing")
What is an admission? Does it require personal knowledge or opinion?
a statement by a party, or someone whose statement is attributable to a party, offered by a party opponent
Does not require personal knowledge or opinion
NOTE: includes guilty pleas
Exemptions to hearsay (a.k.a. nonhearsay) (5)
1. admission of party opponent
2. prior inconsistent statemtn given under oath
3. prior consistent statement offered to rebut charge of recent fabrication or improper motive
4. statement of ID of a person made after perceiving the person
5. transcript of testimony given under oath at trial or grand jury proceeding
What is a vicarious party admission? 2 specific types?
1. statement by employee of party (a) concenring matter w/in scope of employment and (b) made during employment relationship.
2. Adoptive admission (nonparty makes statement and party indicates belief in its truth
3. co-conspirator statemtn (during course and furtherance of conspiracy)
When is a former testimony given by someone now unavailable admissible?
1. testimony given in earlier proceeding AND
a. party against whom tstimony is now offered had, during earlier proceeding, OPPORTUNITY to examine them and the MOTIVE to conduct exam was similar to motive now; OR
b. in civil case, party against whom testimony is now offered is a successor in interest to a party in earlier proceeding who had opportunity and similar motive to examine.
When is a person "unavailable?"
1. court exempts declarant from testifying due to privilege
2. decl. refuses to testify despite court order
3. decl.'s memory fails
4. decl. is dead or sick
5. proponent of statement cannot procure decl.'s attendance by process or other reasonable means
When is a mere statement by an unavailable decl. admissible?
If, at time statement was made, statement was against financial interest of decl. or would have subjected decl. to criminal liability.
But note: if statement offered to exculpate acused, there must be corroborating evidence to admit the statement.
Distinction b/w declarent against interest and party admission
decl. against interest: needn't be by the party

party admission: must be by the party
When is a dying declaration admissible?
1. person believes he is about to die and
2. the decl. describes the circumstances of his death
Note: for homicide prosecution, permitted only if declaraent unavailable
What are the state of mind hearsay exceptions?
1. excited utterance
2. Present sense impression
3. Decl. of then existing physical or mental condition
4. statement of past or present mental or physical condition if made for med. diagnosis or treatment
What is an excited utterance?
An Excited utterance is...

a statement relating to startling event or condition by decl. under stress of excitement caused by event or condition.
Note: timing does not matter
What is a present sense impression?
A present sense impression is...
a statement describing or explaining an event or condition made while decl. was perceiving the event or condition or immeidately thereafter
What is the danger of decl. of an existing physical or mental condition?
used to describe memory, or belief -> not admissible to prove the fact remembered or believed (avoid "I remember," "I believed")
What must business records be to be admissible?
Business records are...
1. made at or near time of event described
2. by a person with knowledge AND
3. it was regular practice of business to make such records
Note: can cover mult. hearsay levels
Is it hearsay for a W to read a document to himself in order to refresh recollection? How about if a lawyer hands the W something else to refresh recollection?
No, it is "Refreshing Recollection"

Lawyer can use anything to refresh W's recollection
Does the opponent's counsel get to see something that is used to refresh recollection?
Yes, whatever is used to refresh recollection must be produced to the other side and can be admitted into evidence
What can a Lawyer do if the item used to refresh recollection does not refresh W's recollection? What is this called?
admit thing into evidence.

This is called the "recorded recollection hearsay exception."
Requirements for "recorded recollection hearsay exception"
b. document was (1) MADE by witness or (2) under W's direction or (3) ADOPTED by W
c. document was written or adopted at the time when the facts were FRESH IN W'S MEMORY
d. Document was ACCURATE when made
e. W now has INSUFFICIENT RECOLLECTION to testify as to the matters contained in the document
Requirements for LAY OPINION (3)
Lay opinion Must be:
1. RATIONALLY BASED on W's perceptions (logical relationahip b/w perception and opinion)
2. HELPFUL to the trier of fact AND
3. not based on scientific or other specialized knowledge
Examples of when lay opinion permitted
1. speed of auto
2. sanity
3. intoxication
4. emotions
5. value of W's property
What is "helpful" for lay / expert opinions?
tells the jury more than they could figure out on its own
Requirements for Expert Opinion
Expert opinion must be
1. Helpful
2. Qualifications (practical exp., educ.)
3. Degree of Certainty
4. Basis for opinion: Admitted evidence or Personal Knowledge (inadmissible evidence reasonably relied upon in the field)
5. Opinion must be baesd on reliable principles reliably applied to the facts
How is basis for expert opinion tested on MBE?
hypo must correctly characterize admitted evidence
For Expert Opinion, test for reliable principles reliably applied to the facts
When test has been
1. published in scientific journals
2. has a low error rate
3. is subject to retesting, and
4. has a reasonable level of acceptance
OR test meets common sense
Are learned treatises hearsay?
Yes, but they are a hearsay exception. Can read aloud, but cannot admit into evidence
What are the two sources that can be used to impeach a W?
1. mouth of W herself on cross-examination
2. Extrinsic evidence: the rest of the world
What to do if other side's W testifies on direct and then refuses to answer questions for cross or doesn't show for cross? Why?
Can move to strike W's testimony or even mistrial.

Because party has an ABSOLUTE right to cross-examine W who have testified against that party
How can cross-examiner ask W questions outside of scope of direct examination? Is there a limitation?
Ask judge to take W on direct; but if does, cannot ask leading questions.
What type of prior inconsistent statements are admissible?
Prior inconsistent statements are admissible if made BEFORE the bribe or inconsistent statement.
Three step approach to admissibility of impeachment evidence
1. is source extrinisc evidence or cross of W being impeached?
2. If extrinsic, is it admissible given impeachment technique?
3. Any other foundation requirements?
Is extrinsic evidence admissible to impeach?
If evidence concerns a collateral matter, no.
what is extrinsic evidence?
evidence coming from anywhere other than the W on the stand
what is a collateral matter?
a fact not material to the issues of the case and says nothing about credibility oterh than to contradict the W.
What is a contradiction?
W asserts fact to be true; other side presents evidence showing W's assertion wrong.
Requirements for admissibility of prior inconsistent statements to impeach (3)
1. must be given under oath (includes depositions)
2. cannot impeach on collateral matter.
3. Foundational requirment: W must be given opportunity to explain / deny _at_that_proceeding_
Requirements for admissibilty of bias, interest, or motive evidence to impeach (1)
must have opportunity to explain / deny
Requirements for admissibilty, for impeachment purposes, of prior convictions for crimes INVOLVING FALSE STATEMENTS
For convictions / prison terms w/in last 10 years: no requirements - all admissible
For convictions / prison terms older than 10 years, balancing test
Requirements for admissibilty, for impeachment purposes, of prior convictions for crimes of NOT INVOLVING FALSE STATEMENTS
For misdemeanor: none - not admissible
For felony convictions: just balancing
For old felony convictions: PV must outweigh prejudice
Is extrinsic evidence admissible to prove conviction for crime that is an admissible prior conviction?
When is misconduct admissible for impeachment purposes? Does it include arrests? Is intrinsic evidence admissible?
- admissible when misconduct has bearing on truthfulness, absent a conviction
- does not include arrests?
- extrinsic evidence is inadmisible
Potential forms of impeachment
1. contradiction
2. prior inconsistent statements
3. bias, interest, motive
4. prior convictions
5. misconduct bearing on truthfulness
6. reputation and opinion regarding truthfulness
Can you impeach by reputation and opinion regarding truthfulness? If so, can you use extrinsic evidence?
Yes. Yes.
Methods of authenticating signatures (7)
1. admission
2. eyewitness testimony (seeing X sign)
3. expert opinion (comparing disputed w/genuine example and declares both by same person)
4. lay opinion (seen D's sign name elsewhere)
5. circum. evid.: (i.e. P testifies of delivery of letter)
6. genuine exemplar (jury compares genuine against disputed)
B of P for authentication of evidence
sufficient to support a finding (below proponderance of evidence)
Self-authenticated documents
1. copies of public docs (deeds)
2. acknowledged docs (includes notary)
3. official publications (gov.'t pamphlets)
4. bus. records
5. trade inscriptions
6. newspapers
7. periodicals
8. trade inscription
Requirements for authentication of trade inscription. And what is it?
None. self-authenticating.

tag or label which purports to have been attached in course of bus. and inciates ownership, control, or origin
Who can authenticate photos?
any W so long as W has personal knowledge; but where question of timing of photo, only photographer has personal knowledge
How to authenticate non-unique items? When are they non-unique?
lay chain of custody demonstrating that the item is the item the proponent claims it to be.
Non-unique when facially indistinguishable fromother like items
Do small breaks in the chain of custody matter for authentication?
Best evidence rule: when it applies and it's effect
Applies only where evidence offered to prove the contents of a writing.
Where best evidence rule applies, the original is required.
What is writing under the best evidence rule?
any collection of data in tangible form.
When is evidence offered to prove contents of a writing? (2)
1. case turns on contents of legal instrument (i.e. wills, deeds, K's)
2. Knowledge obtained from writing (i.e. letter, x-ray)
What are exceptions to the best evidence rule?
Original not required when:
1. collateral documents exception: doc is of minor importance in the case and its contents are not in dispute
2. voluminious documents exception: doc so voluminous that cannot conveniently be brought into court room and admitted, SO LONG AS originals are available.
Are duplicates admissible as well when best evidence rule applies? And what is a duplicate?
Duplicate admissible under best evidence rule unless there si a genuine question as to the authenticity of the original.

Duplicate = copy of an original produced (1) by machine or (2) by the same impressino that created the original
Is testimony admissible where original lost or destroyed?
Yes, unless bad faith by proponent of testimony. Depends on who destroyed original and who is proposing evidence.
What is the attorney-client privilege?
1. a communication
2. between attorney and client or their representatives
3. intended by client to be confidential
4. for the purpose of acquiring legal service AND
5. not waived by client
Are employees of a corporation protected by attorney-client privilege?
Yes, where employee si authorized by the corp. to make the communication with the lawyer.
Exceptions to Attorney-Client Privilege (3)
Attorney-client privilege does not apply where:
1. Waiver
2. where professional services sought to further crime or fraud OR
3. 2 or mor eparties consult an attorney on a matter of common interest and the communication is offered by one of the parties against the other
When does Doctor-Patient privilege (includes psychotherapist) apply?
1. information confidentially conveyed to a physician or psychotherapist
2. for the purposes of obtaining diagnosis or treatment (not for examination for insurance co.)
Note: includes nurses; so can't be in public place; does not include information not pertinent to med. treatment
Exceptions to doctor-patient privilege (3)
1. criminal cases
2. malpractice suits b/w the doctor and patient
3. cases where patient puts his physical condition in issue
If client has the option of excercising attny-client or doctor-patient privilege, use which one?
Attny-Client b/c so much broader
When does the SPOUSAL TESTIMONIAL privilege apply? What does it cover?
Applies ONLY in criminal cases.

Permits W to refuse to testify against his /her spouse as to anything
When does the SPOUSAL CONFIDENTIAL COMMUNICATION privilege apply? What does it cover?
Applies in any case.

Protects confidential spoual communications made DURING marriage.
What is judicial notice? What 2 issues does it raise?
When court establishes facts without presenting evidence.

1. facts appropriate for J.N.
2. Procedure for taking J.N.
What facts are appropriate for judicial notice?
1. generally known within territorial jurisdiction OR
2. capable of accurate and ready determination by resort to sources whose acuracy cannot reasonably be questioned
1. What is the procedure for taking judicial notice?

2. What are the instructions?

3. When can it occur?
1. Party must request to compel J.N. OR Court has discretion to take J.N.
2a. If requested for civil case, court instructs jury it must accept noticed facts as conclusive.
2b. If requested for criminal case, court instructs jury it may, but is not required to accept J.N. fact.
3. It can occur at any time, even appeal.
Can you attack an expert witness based on his lack of knowledge based on evidence suggesting his beliefs contradict principles believed in the field?
Test to tell if statement is an excited utterance
Does declarent "scream" or "yell" the statement? Y --> excited utterance
Can a judge call W's upon her own initiative and interrogate any W's who testify?
When to use motion to strike instead of an objection
Motion to strike: where there was no basis or opportunity for an earlier objection; use where question not objectionable.

Objection: must be made after question asked, but before witness answers