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26 Cards in this Set

  • Front
  • Back
How is relevance determined?
If the evidence tends to prove or disprove a material fact.
When should relevant evidence be excluded nonetheless?
If its probative value is outweighed by its prejudicial effect or public policy so dictates (i.e. insurance, subsequent repairs)
What type of evidence is excludable because of public policy reasons?
1. Liability insurance
2. Subsequent remedial actions
3. Settlement offers
4. Withdrawn Guilty pleas or offers to plea guilty
5. Offers to pay or payment of medical bills
When should evidence excludable by policy reasons be admissible nonetheless?
To prove ownership or control
When can character evidence be offered?
1. when character is in issue

Usually never in a civil case unless directly in issue

2. to show circumstantial evidence of how a person probably acted
In a criminal case, D may introduce to show his innocence. P may introduce only on cross exam
How can character evidence be proved?
1. Specific Acts
2. Opinion
3. Reputation
Can character evidence be introduced in rape cases?
No. not to show victim's character. But,
In Criminal cases
1. may introduce evidence of victims sexual behavior to show semen does not belong to D
2. Prior instances of sexual contact between D and V admissible to show consent.

In Civil Cases
1. Admissible only if probative value outweighs prejudice or
2. Victim put her reputation in controversy
When can specific acts of misconduct be admissible?
If relevant to show another issue such as Motive, Intent, Mistake (absence of), Identity, Comman schema
What is judicial notice
Where court accepts a fact as true with no formal evidence presented.
How can a writing be authenticated before being admissible into evidence?
1. Admission
2. Eyewitness testimony to execution
3. Verification of handwriting by expert or layman familiar with writer
4. Ancient Document - writing is at least 20 years old, in a place of natural custody
5. Photos - admissible if verified by a witness as a correct representation of the scene.
6. Self-authenticating - govt. papers, newpapers and periodicals, commercial paper, certified business docs., certified copies of public records.
What is the Best Evidence Rule
To prove the terms of a writing, the original writing should be produced and if cant be produced proper excuse must be given.
What is the Parole Evidicne Rule?
Rule that says once an agreement is in writing, that writing is the agreement and thus the only evidence.
When is parol evidence admissible
1. To explain an ambiguous term in a contract
2. As evidence of a party's reformation of a K.
3. As evidence when a party challenges validity of a K.
What does a person need to have to be a witness?
1. personal knowledge 2. declaration he will testify truthfully.
When is asking leading questions appropriate?
1. On cross-examination
2. to elicit preliminary or introductory matter
3. to aid witness because of age, mental or physical condition
4. On direct, when witness is hostile
Describe difference between Present Memory Refreshed and Past Recollection Recorded.
1. PMR is where W is shown a writing to help jog memory. PRR is where even the writing cannot jog W's memory.

2. PMR is not read into evidence whereas PRR may be read into evidence.

3. PRR must have foundation laid before being read into evidence. Must show 1) W at one time had personal knowledge 2) W created or adopted the writing 3) while the event was fresh in W's mind and 4) the writing is accurate.

4. PRR is hearsay because it is being offered into evidence BUT it is an exception.
When can a witness give opinion testimony?
When the witness is an expert and opinion is based on 1) personal observation 2) facts made known at trial (hypos) 3) outside facts relied upon by experts in the field

Lay witnesses when based on their personal perceptions.
Can a cross-examiner introduce extrinsic evidence to refute a witness's testimony?
generally no. but may be introduced to show 1) prior inconsitent statements 2) bias 3) conviction of crime involving dishonesty or any felony 4) reputation for truth 5) sensory deficiencies
Which privileges are recognized in the Federal courts?
Atty-client: client holds privilege, third party privilege covered (atty asks doctor to examine client)

Spousal Communication:

Doctor-Patient: patient holds,

Psychotherapist-Client - client holds
Describe the spousal communication privileges.
1. Spousal immunity: spouse cannot be compelled to testify against defendant-spouse in a criminal case. Witness-spouse holds the privilege

2. Marital Communications - both spouses hold privilege.
What are four other privileges?
1. Privilege against self-incrimination - Fifth Amendmet right

2. Clergy-penitent

3. Professional Journalist - depends on the state

4. Governmental privilege
What is hearsay?
An out-of-court statement offered in evidence to prove the truth of the matter stated.
What is nonhearsay?
1. Prior inconsistent or consistent statements by W, given under oath.

2. Party-admissions
Discuss the five hearsay exceptions when a declarant is unavailable.
1. Former Testimony - where present cases arises from the same subject, was given under oath and party against whom offered had the opportunity to confront declarant in the prior proceeding

2. Statement against interest - against W's OWN interest

3. Dying declaration - made under belief of impending death

4. Statement of personal or family history.

5. Statement against party procuring declarant's unavailability.
When is a declarant unavailable?
Ill or dead
Lack of memory
Subbornly refuses to testify
Discuss hearsay exceptions where declarant need not be unavailable.
1. Present State of Mind - statement of a Declarant's then-existing state of mind

2. Excited Utterance - made while still under stress of excitment

3. Present sense impression - made while declarant perceiving the event

4. Declaration of physical condition - present conditions made to a non-physician or past conditions made to a physician.

5. Business Records - made in usual course of business

6. Past Recollection Recorded - a memo made by declarant at the time of the event

7. Official Records - including police reports with witness accounts but not in criminal cases.

8. Ancient documents and docs affecting property interests

9. Learned Treatises - is a realible authority in the expert's field

10 Reputation - to show character, family history, land boundaries and community history