Law, Evidence

Front 1

What is the dead man act?

Back 1

States (not FRE) provide that a person interested in the event is incompetent to testify to personal communication w/ deceased when such testimony offered against the rep/successors in interest of the deceased.

Front 2

For what of the dead man act, what does interested mean?

Back 2

A person is interested if he stands to gain or lose by the judgment or the judgment may be used for or against him in a subsequent action.

A predecessor in interest of the interested party is also qualified.

Hint 2

Gain or lose . . .

Front 3

What are limitations on witness's ability to testify?

Back 3

Witness must have personal knowledge, and

Witness must declare that he will testify truthfully (doesn't have to be under god).

Front 4

What facts are appropriate for judicial notice?

Back 4

Indisputable facts that are either matters of common knowledge in the community (notorious facts) or capable of verification by resort to easily accessible sources of unquestionable accuracy (manifest facts).

Hint 4

Notorious v. Manifest

Front 5

What is habit evidence?

Back 5

Habit describes a person's regular response to a specific set of circumstances.

Habit evidence can come in as substantive evidence.

Watch out for (always, automatically, instinctively).

Hint 5

Response - circumstance

Front 6

What is the best evidence rule (BER)?

Back 6

To prove terms of a writing (recording, photo, x-ray), the original must be produced if terms are material and secondary evidence only admissible if original is unavailable.

Front 7

When does best evidence rule typically apply?

Back 7

When the writing is a legally operative or dispositive instrument or the knowledge of a witness concerning a fact results from having read it in the document.

Front 8

What is the rule for statements by an opposing party (admission by party-opponent)?

Back 8

Any statement made by a party and offered against that party is not hearsay under FRE.

It can be an opinion. It is not required to be made against declarant's interest at the time it was made. Personal knowledge is not required. Can be predicated upon hearsay.

Front 9

What is the rule for physician-patient privilege?

Back 9

Generally, a physician cannot be compelled to disclose information obtained from a patient while treating the patient in a professional capacity if that information is related to the treatment.

The privilege does not apply in federal cases where state law does not supply the rule of privilege (federal question).

Front 10

Does federal law recognize a physician-patient privilege?

Back 10

No.

Front 11

With respect to Eerie doctrine, which provides that application of state law (while sitting in diversity) is appropriate only when the presumption _________?

Back 11

Operates on a substantive element of a claim or defense & matters involving elements of a prima facie case are substantive in nature; thus, state law applies to such matters.

Front 12

A witness may be __________ by means of being interrogated upon cross-examination, in the discretion of the court, with respect to any act of _________ that is probative of ______________.

Back 12

impeached

misconduct

truthfulness (an act of deceit or lying).

Front 13

Is the commission of the crime of false pretenses probative of truthfulness?

Does it matter if actor was convicted?

Back 13

Yes. False pretenses involves the making of a false representation and is therefore an act of misconduct that is probative of the actor's truthfulness.

No, conviction is not required.

Front 14

Which witnesses may be impeached by evidence that might show her to be unworthy of belief?

Back 14

Any witness who takes the stand puts her character for honesty and veracity in issue and may be impeached by evidence that might show her to be unworthy of belief.

Front 15

What is the rule for statements by an opposing party?

Back 15

An opposing party's statement (i.e. any statement made by a party and offered against that party) is not hearsay under the Federal Rules.

The statement need not have been against the declarant's interest when made, and may even be in the form of an opinion.

Personal knowledge is not required; the admission may be predicated on hearsay.

Front 16

Excited utterance rule:

Back 16

An out-of-court statement relating to a startling event, made while under the stress of the excitement from the event (before the declarant had time to reflect upon it), is admissible.

Declarant availability immaterial.

Front 17

Present sense impression rule:

Back 17

Comments made concurrently with the sense impression of an even that is not necessarily exciting may be admissible.

There is little tome for a calculated misstatement, and the contemporaneous nature of the statement makes it reliable.

Declarant availability immaterial.

Front 18

Present state of mind rule:

Back 18

A statement of a declarant's then-existing state of mind, emotion, sensation, or physical condition is admissible.

It is usually offered to establish a person's intent or as circumstantial evidence that the intent was carried out.

Declarant's availability immaterial.

Front 19

Business record rule:

Back 19

Any writing or record made as a memorandum of any act or transaction is admissible in evidence as proof of that act or transaction.

Front 20

Business record elements:

Back 20

Business

Entry made in regular course - customary to make the type of entry involved (entrant had duty to make entry).

Personal knowledge - must consist of matters w/n personal knowledge of the entrant or w/n knowledge of someone w/ duty to transmit such matters to the entrant.

Entry made near time of event

Authentication - established by the custodian (i) testifying that the record is a business record, or (ii) certifying in writing that the record is a business record.

Front 21

Facts affecting the competency of the evidence must be determined by ______________.

Requirements for hearsay exceptions, privileges, and expert testimony, as well as mental competence, must be decided by ___________.

Back 21

the judge

Front 22

Examples of preliminary facts to be decided by the jury:

Back 22

agency, authenticity of a document, credibility of a witness, and personal knowledge.

Front 23

Discretionary exclusion of relevant evidence, rule - go:

Back 23

A trial judge has broad discretion to exclude relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, undue delay, or waste of time.

Unfair surprise is NOT a valid group upon with to exclude relevant evidence.

Front 24

Federal courts currently recognize which common-law privileges?

Back 24

attorney-client

spousal immunity

privilege for confidential marital communications

psychotherapist/social worker-client

clergy-penitent

In diversity cases, the state law of privilege applies.

Front 25

Who may assert privilege?

Back 25

A privilege is personal to the holder, and generally may only be asserted by the holder.

Sometimes the person with whom the confidence was shared may assert the privilege on the holder's behalf.

Front 26

How is a privilege waived?

Back 26

1. failure to claim the privilege

2. voluntary disclosure of the privileged matter by the privilege holder

3. a contractual provision waiving in advance the right to claim a privilege.

A privilege is NOT waived when someone wrongfully discloses information w/o the holder's consent. Similarly, a waiver by one joint holder does not affect the right of the other to assert it.

A privilege is not abrogated b/c it was overheard by someone whose presence is unknown to the parties (absent negligence), even the eavesdropper is prohibited form testifying.

Front 27

Attorney-client privilege rules

Back 27

1. attorney-client relationship - client must be seeking professional services at time of communication.

2. confidential communication - representatives of the attorney or client does not destroy privilege, but communications made in the known presence and hearing of a stranger are not privileged.

Client holds the privilege, she alone may waive it.

Privilege applies indefinitely, even after client's death.

Front 28

Exceptions to attorney-client privilege:

Back 28

1. if the attorney's services were sought to aid in the planning or commission of something the client should have known was a crime of fraud,

2. regarding communication relevant to an issue between parties claiming through the same deceased client, and

3. for a communication relevant to an issue of breach of duty in a dispute between the attorney and client.

Front 29

In a business record exception, is an opinion allowed?

Back 29

Yes, so long as they are in the regular course of business.

Front 30

What is the definition of impeachment?

Back 30

Impeachment is the casting of an adverse reflection on the veracity of a witness.

Front 31

An expert may be cross-examined concerning statements contained in any publication established as reliable authority either by testimony of this expert or another expert, or by judicial notice.

The texts and treatises can be used for what purposes?

Back 31

To impeach experts and also as substantive evidence - subject to the following limitations:

1. an expert must be on the stand when an excerpt is read from a treatise, and

2. the relevant portion is read into evidence but is not received as an exhibit.

Front 32

To be admissible a photograph must be . . .

Back 32

identified by a witness as a portrayal of certain facts relevant to the issue, and verified by the witness as a correct representation of those facts.

It is sufficient if the witness who identifies the photograph is familiar with the scene or object depicted.

Generally, a photographer's testimony is not necessary to authenticate a photo.

Front 33

The qualification of a witness as an expert is a preliminary fact to be determined by whom?

Back 33

The judge.

The existence of preliminary facts other than those of conditional relevance must be determined by the court. These questions are withheld from the jury out of fear that once the jury hears the disputed evidence the damage has been done rendering ineffective an instruction to disregard the evidence if the preliminary fact is not found.

Front 34

Does the parol evidence rule permit parol evidence to establish or disprove a contract attacked on grounds of fraud, duress, or undue influence inducing consent?

Back 34

Yes, although the general rule is that if an agreement is reduced to a writing with the intent that it embody the full and final expression of the bargain, all prior or contemporaneous negotiations or agreement are merged into the written agreement (and extrinsic evidence is inadmissible to add to, detract from, or alter the agreement), parole evidence is admissible to show that a contract was void or voidable - such as for fraud.

Front 35

General rule for physician-patient privilege, go

Back 35

Confidential communications between a patient and his physician are privileged, provided that

1. a professional relationship exists,

2. the information is acquired while attending the patient in the course of treatment, and

3. the information is necessary for treatment (nonmedical information is not privileged).

Front 36

Examples where the physician-patient privilege does not apply

Back 36

1. the patient expressly waives

2. the patient puts his physical condition in issue (personal injury suit)

3. the physician's assistance was sought to aid wrongdoing (commission of crime or tort)

4. the communication is relevant to an issue of breach of duty in a dispute between the physician and patient

5. the patient agreed by contract (insurance policy) to waive the privilege

6. it is a federal case applying the federal law of privilege.

Front 37

What is the rule for chain of custody?

Back 37

The that proponent must show that the object has been held in a substantially unbroken chain of possession.

Front 38

Are the following hearsay, nonhearsay, or hearsay with an exception?

a. verbal acts or legally operative facts (words of contract, defamatory words)?

b. statements offered to show their effect on the listener or reader (to prove notice in a negligence case)?

c. statements offered as circumstantial evidence of declarant's state of mind (evidence of insanity or knowledge)?

Back 38

a. not hearsay

b. not hearsay

c. not hearsay

Front 39

Explain difference between

statements offered as circumstantial evidence of declarant's state of mind (offered as evidence of insanity of knowledge)

v.

statements that reflect directly on declarant's state of mind (offered to establish intent)

Back 39

circumstantial evidence = not hearsay

directly reflect = hearsay subject to specific exception.

Front 40

Does the past recollection recorded exception to the hearsay rule require unavailability?

Back 40

No, availability is immaterial.

Rule: if a witness has insufficient memory of an event to enable her to testify fully and accurately, even after consulting a writing given to her on the stand, the writing itself may be introduced into evidence if a proper foundation is laid.

Front 41

What is the proper foundation to introduce a writing pursuant to the past recollection recorded exception?

Back 41

1. the witness at one time had personal knowledge of the facts recited in the writing,

2. the writing was made by or under the direction of the witness or has been adopted by her,

3. the writing was timely made when the matter was fresh in the mind of the witness,

4. the writing is accurate, and

5. the witness has insufficient recollection to testify fully and accurately.

Front 42

The extent and scope of cross-examination is a matter of ______________.

Back 42

judicial discretion