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21 Cards in this Set
- Front
- Back
Lay Witness: Competency Requirements (4)
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4 Requirements for admissibility:
PK (fact perceived w/ senses = fact testified to), present recollection, communication, sincerity |
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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 |
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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 |
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Expert Opinion (Scientific)
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Daubert/Kumho:
- Peer reviewed & published/tested/low error rate/reasonable level of acceptance—CA requires general acceptance) |
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Authentication
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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" |
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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). |
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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) |
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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 |
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Self-Authenticating Writings
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- 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)
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Authentication of Photos
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Witness has PK that fairly & accurately depicts what is shown; not necessary to call photographer.
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Authentication of Non-Unique Items (facially indistinguishable from other like items, i.e., bag of white powder)
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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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Voice Identification
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Person can’t alone ID themselves when communicating - requires additional proof in order to lay foundation
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Best Evidence Rule
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- 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 |
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Voluminous Documents Exception to the Best Evidence Rule
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- Huge quantity of docs can be summarized if originals available for inspection.
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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. |
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Judicial Notice (definition)
- 2 issues: Facts Appropriate for JN & Procedure for taking JN |
Process of establishing facts w/o presenting evidence
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Facts Appropriate for Judicial Notice
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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 |
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Procedure for Taking Judicial Notice
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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. |
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OBJECTIONS TO FORM OF TESTIMONY & QUESTIONS
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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 |
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Circumstantial Evidence
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A fact about it is being proved as a basis for an inference that another fact is true.
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Direct Evidence
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Offered to prove a fact about the object as an end in itself
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