• Shuffle
    Toggle On
    Toggle Off
  • Alphabetize
    Toggle On
    Toggle Off
  • Front First
    Toggle On
    Toggle Off
  • Both Sides
    Toggle On
    Toggle Off
  • Read
    Toggle On
    Toggle Off
Reading...
Front

Card Range To Study

through

image

Play button

image

Play button

image

Progress

1/21

Click to flip

Use LEFT and RIGHT arrow keys to navigate between flashcards;

Use UP and DOWN arrow keys to flip the card;

H to show hint;

A reads text to speech;

21 Cards in this Set

  • Front
  • Back
Lay Witness: Competency Requirements (4)
4 Requirements for admissibility:
PK (fact perceived w/ senses = fact testified to),
present recollection,
communication,
sincerity
Lay Witness: Opinion
(Admissibility)
Admissible if (1) rationally based on (2) W’s perceptions & (3) helpful to jury (gives jury more info than would testimony limited to describing W’s perceptions).
1. Ex: speed of auto, sanity, intoxication, emotions, value of W’s property. NOT legal conclusions.
2. Cannot be based on scientific/specialized knowledge
Expert Opinion
(5 Requirements for Admissibility)
Opinion must be:
1. helpful to jury (average juror couldn’t figure out)
2. W must be qualified;
3. W must believe in opinion to reasonable degree of certainty,
4. opinion must be supported by proper factual basis, &
5. opinion must be based on reliable principles reliably applied
- Subject to 403 balancing test IF facts/data that expert relied on = inadmissible, not admitted into evidence, not authenticated & expert wants to talk about the inadmissible docs/facts
Expert Opinion (Scientific)
Daubert/Kumho:
- Peer reviewed & published/tested/low error rate/reasonable level of acceptance—CA requires general acceptance)
Authentication
Every item of non-testimonial evidence must be authenticated = prove it is what the proponent claims it to be.
- Burden of Proof: "sufficient to sustain finding of genuineness"
Handwriting
- How to authenticate
1) personal familiarity with person’s handwriting,
2) basis for forming an opinion derived form specialized knowledge (expert), or
3) particular fact-finding function (jury).
Signatures
- How to authenticate:
1. Admission ("Is this your sig?")
2. Eyewitness testimony (saw him sign)
3. Expert Opinion (handwriting expert)
4. Lay Opinion (seen D sign elsewhere)
5. Circumstantial Evidence (P testifies about mail procedures he took).
6. A Genuine Exemplar (other doc w/ verified sig)
Ancient Documents Rule
- Authenticity established if:
1. doc is 20 yrs old or more,
2. does not on its face present any irregularities, and
3. was found in a place of natural custody
Self-Authenticating Writings
- Certified copies of public docs (deeds), acknowledged docs (orig sig is notarized), official publications (govt pamphlets), newspapers, periodicals, business records, & trade inscriptions (tag/label that purports to have been attached in course of biz & indicates ownership, control, or origin)
Authentication of Photos
Witness has PK that fairly & accurately depicts what is shown; not necessary to call photographer.
Authentication of Non-Unique Items (facially indistinguishable from other like items, i.e., bag of white powder)
Proponent must lay CHAIN OF CUSTODY demonstrating that this is the specific item proponent claims it to be
Voice Identification
Person can’t alone ID themselves when communicating - requires additional proof in order to lay foundation
Best Evidence Rule
- Applies only where evidence offered to prove CONTENTS OF A WRITING (defined broadly = any tangible collection of data- xray, tape, photo, video, disk)
- Rule requires original BUT
- Original doc not required if original document not available and:
1) all original docs lost/destroyed; or
2) original can’t be obtained through judicial procedure
Voluminous Documents Exception to the Best Evidence Rule
- Huge quantity of docs can be summarized if originals available for inspection.
Type of Evidence Admissible to Prove Contents of a Writing
(when Best Ev. Rule applies)
1. Originals
2. Duplicates usually also admissible (= copy of original produced by same impression that produced the original or by a machine)
- Exception: no duplicate where genuine question raised as to authenticity.
3. Testimony re: contents of writing admissible where original lost or destroyed UNLESS bad faith by proponent of testimony.
Judicial Notice (definition)
- 2 issues: Facts Appropriate for JN & Procedure for taking JN
Process of establishing facts w/o presenting evidence
Facts Appropriate for Judicial Notice
Courts can take JN of facts not subject to reasonable dispute b/c they are either:
1. generally known w/i jurisdiction, or
2. capable of accurate & ready determination by resort to sources whose accuracy cannot reasonably be questioned
Procedure for Taking Judicial Notice
Party must request JN to compel JN and if not requested, court has discretion to take JN.
- If requested in civil case, court instructs jury it must accept noticed fact as conclusive.
- In criminal case, court instructs jury it may, but is not required to accept judicially noticed fact.
- JN may occur at any time, even on appeal.
OBJECTIONS TO FORM OF TESTIMONY & QUESTIONS
a. Calls for a narrative
b. Unresponsive
c. Usually no leading Qs on direct unless adverse W, hostile W, W needing help. Leading Qs permissible on cross. Cross must stay w/i scope of direct.
d. Assumes facts not in evidence
e. Argumentative
f. Compound
g. Questioning Preliminary Facts
Circumstantial Evidence
A fact about it is being proved as a basis for an inference that another fact is true.
Direct Evidence
Offered to prove a fact about the object as an end in itself