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95 Cards in this Set
- Front
- Back
Relevance |
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Relevance (cont.) |
Irrelevant evidence is inadmissible. Relevant evidence might be admissible. |
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Relevance Determining Relevance |
Two steps:
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Relevance Probative Value |
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Relevance Unfair Prejudice |
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Relevance Exclusions for Public Policy Reasons |
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Relevance Exclusions for Public Policy Reasons Liability Insurance |
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Relevance Exclusions for Public Policy Reasons Subsequent Remedial Measures/Repairs |
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Relevance Exclusions for Public Policy Reasons Settlements, Offers to Settle and Pleas |
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Relevance Exclusions for Public Policy Reasons Payment or Offers to Pay Medical Expenses |
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Relevance Similar Occurences |
Evidence unrelated to the specific people/events of the case is generally irrelevant, subject to the following exceptions. |
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Relevance Similar Occurences Causation |
P shows 3P also got food poisoning from restaurant when both ate roughly at the same time (causation). |
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Relevance Similar Occurences Prior Accidents or Claims |
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Relevance Similar Occurences Motive or Intent |
If P (woman) can show that D (employer) failed to hire a woman in 100 other instances where women applicants applied for a job, the evidence of previous similar acts are relevant to prove intent to discriminate. |
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Relevance Similar Occurences Rebutting Impossibility |
P may introduce any other instance where it happened to rebut impossibility. |
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Relevance Similar Occurences Comparable Sales |
Where value of property is an issue, evidence of sales price of similar property in same area and sold at same time is relevant. |
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Relevance Similar Occurences Habit |
Habit of the person to act in a certain way is relevant and admissible to show the person acted in accordance with the habit on the occasion in question.
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Relevance Similar Occurences Routine Practice |
Routine business practice is relevant to show that conduct of the entity was in conformity with that practice on the occasion in question. |
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Relevance Similar Occurences Industrial Custom |
Industrial custom evidence relevant to prove standard of care in negligence case |
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Character Evidence Approach |
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Character Evidence Civil Cases |
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Character Evidence Criminal Cases |
Two doors of admissibility. Both are closed when the prosecution begins.
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Character Evidence Criminal Cases Admissibility of D's Character to Prove Conduct |
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Character Evidence Criminal Cases Admissibility of Evidence of Victim’s Character |
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Character Evidence Rape Shield Statute Criminal Case |
Reputation and opinion evidence inadmissible. Specific acts of alleged victims conduct admissible only to prove:
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Character Evidence Rape Shield Statute Civil Case |
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Character Evidence Specific Instances of Bad Conduct |
Specific instances of D’s bad conduct may be admitted to prove anything other than character is relevant. |
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Character Evidence Specific Instances of Bad Conduct MIMIC |
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Testimonial Evidence Competency Four Requirements |
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Testimonial Evidence Objections |
Objections must be timely and sufficiently specific or else they’re waived.
Examples of objections:
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Testimonial Evidence Witness Use of Documents During Trial |
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Testimonial Evidence Witness Use of Documents During Trial Refreshing Recollection |
If witness cannot recollect, apply the hearsay exception to refreshing recollection:
If all elements are satisfied, the document can be read to the jury. Hearsay objection is overruled since the exception applies. |
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Opinion Testimony Lay Opinion |
Admissible if rationally based on the witness’s perceptions and helpful to the trier of fact. Cannot be based on scientific or other specialized knowledge.
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Opinion Testimony Expert Opinion |
5 requirements for admissibility:
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Opinion Testimony Expert Opinion (cont.) |
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Opinion Testimony Expert Opinion Daubert/Kumho Standard |
Opinion must be based on reliable principles
Reliability:
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Evidence of Witness Credibility |
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Impeachment |
Three step approach to admissibility of impeachment evidence:
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Impeachment Extrinsic Evidence |
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Impeachment Extrinsic Evidence Impeachment by Contradiction |
Extrinsic evidence inadmissible to contradict on collateral matter
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Impeachment Extrinsic Evidence Impeachment by Prior Inconsistent Statements (PIS) |
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Impeachment Extrinsic Evidence Impeachment with Evidence of Bias, Interest, or Motive |
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Impeachment Extrinsic Evidence Impeachment w/ Conviction for Crime Involving False Statement |
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Impeachment Extrinsic Evidence Impeachment w/ Conviction for a Crime Not Involving False Statement |
Felonies that do not involve false statement may be admissible to impeach but court may exclude for unfair prejudice. Misdemeanors that do not involve false statement are inadmissible to impeach. |
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Impeachment Extrinsic Evidence Impeachment w/ Non-conviction Misconduct Evidence Bearing on Truthfulness |
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Impeachment Extrinsic Evidence Others |
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Hearsay Terms |
Hearsay: out-of-court statement offered to prove the truth of the matter asserted in that statement.
Statement: verbal or written expression of the person or conduct by a person intended to communicate (assertive conduct). |
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Hearsay Statement |
Examples:
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Hearsay Three-Step Approach |
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Hearsay Not Hearsay Independent Legal Significance |
Statement is not hearsay if it has independent legal significance.
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Hearsay Not Hearsay Effect on Listener |
Statement is not hearsay if offered to show the effect on the listener.
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Hearsay Not Hearsay Speaker's Knowledge of Facts Stated |
Statement is not hearsay if offered to show speaker’s (or writer’s) knowledge of facts stated.
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Hearsay Not Hearsay Out-of-Court Declarant Now In-Court Witness |
Statement is still considered here say if the out-of-court declarant is now that in court witness.
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Hearsay Exemptions Opposing Party Statement |
Statement by party, or by someone whose statement is attributable to a party, offered by party opponent.
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Hearsay Exemptions Opposing Party Statement Not Subject to Personal Knowledge Requirement or Opinion Rule |
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Hearsay Exemptions Vicarious Opposing Party Statement |
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Hearsay Exemptions Other Vicarious Opposing Party Statement |
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Hearsay Exemptions Out-of-Court Statement From a Declarant Who Now Testifies at Trial |
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Hearsay Exceptions (Hearsay but admissible) |
Testimony given by a person in earlier proceeding or deposition is admissible if:
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Hearsay Exceptions Declarant Unavailable |
Declarant is unavailable if:
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Hearsay Exceptions Opportunity to Examine |
Example: Y sues Airline for crash. Y brings expert to testify. Expert dies. X now sues Airline. X may offer expert testimony b/c Airline was a party in the earlier proceeding and had opportunity and motive to effectively cross-examine. |
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Hearsay Exceptions Similar Motive |
Example: if X’s case was about private nuisance, and Y’s case is about wrongful death. Then expert testimony will be excluded. Opportunity existed, but motive was different. |
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Hearsay Exceptions Predecessor in Interest |
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Hearsay Exceptions Declaration Against Interest |
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Hearsay Exceptions Dying Declaration |
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Hearsay Exceptions Excited Utterance |
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Hearsay Exceptions Present Sense Impression |
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Hearsay Exceptions Declaration of Then Existing Physical or Mental Condition and State of Mind |
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Hearsay Exceptions Declaration of Then Existing Physical or Mental Condition and State of Mind State of Mind Exception |
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Hearsay Exceptions Past or Present Mental or Physical Condition Made for Medical Diagnosis or Treatment |
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Hearsay Exceptions Past or Present Mental or Physical Condition Made for Medical Diagnosis or Treatment Examples |
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Hearsay Exceptions Business Records |
Hearsay is admissible if:
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Hearsay Exceptions Public Records |
Hearsay record of a public office is admissible if within one of the following categories:
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Hearsay Exceptions Judgment of Previous Convictions |
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Confrontation Clause |
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Confrontation Clause Testimonial Evidence |
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Writings and Other Physical Evidence Authentication |
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Writings and Other Physical Evidence Signatures |
In a breach of contract case, if plaintiff wants to prove that it’s D's signature on the contract, she must prove by the following methods:
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Writings and Other Physical Evidence Ancient Documents Rule |
Authenticity is established if:
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Writings and Other Physical Evidence Self-Authenticating Writings |
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Writings and Other Physical Evidence Photos |
Watch for personal knowledge problems. Does fact testified to = fact perceived?
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Writings and Other Physical Evidence Authentication of Unique Items |
Proponent must lay chain of custody demonstrating that this is the specific item proponent claims it to be.
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Best Evidence Rule |
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Best Evidence Rule Approach |
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Privileges Attorney-Client |
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Privileges Attorney-Client Exceptions |
Privilege does not apply where:
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Privileges Psychotherapist-Patient & Social-Worker Client Privileges |
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Privileges Doctor-Patient Privileges |
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Privileges Doctor-Patient Privileges Exceptions |
Exceptions:
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Privileges Spousal Privileges |
Two kinds:
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Privileges Spousal Privileges Spousal Testimonial Privilege |
Permits witness to refuse to testify against his/her spouse as to anything (criminal only);
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Privileges Spousal Privileges Spousal Confidential Communication Privilege |
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Judicial Notice |
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Judicial Notice Facts Appropriate for Judicial Notice |
Applies to facts not subject to reasonable dispute because they are either: (1) generally known within the jurisdiction; or (2) accurately and readily determinable. |
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Judicial Notice Proceudres for Taking Judicial Notice |
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