Wa Barbri - Evidence

Front 1

Objections

Back 1

Must be time/made at first possible opportunity

Should be specific - rule name or number

Front 2

Offer of proof

Back 2

Must make when judge makes ruling re:evidence party disagrees with

Say 1) what evidence is/would have been, 2) why in/admissible, 3) why important to case

Must do to preserve appeal

Front 3

Relevance

Back 3

Any tendency to make material fact more or less likely than without the evidence

Low threshold; need not be conclusive, just more or less relevant

Front 4

Excluding relevant evidence

Back 4

Court has discretion to exclude relevant evidence if unfair prejudice substantially outweighs the relevancy

Front 5

When character evidence is NOT allowed

Back 5

When offered to show conformity on a specific occasion

Front 6

When character evidence allowed in criminal case

Back 6

Defendant calls character witnesses to provide knowledge (not opinion) concerning specific trait

Evidence offered of past crimes, wrongs, acts when not offered for conformity (motive, common scheme/plan, opportunity, modus operandi, knowledge)

Character of victim (but rape shield applies)

Character of witness re:truthfulness or impeachment (dishonesty/false statement OR felony)

Front 7

Requirements for privilege

Back 7

Statements must be made:

1) In confidence
2) Asserted at 1st possible opportunity (e.g., deposition)
3) Not waived/voluntarily disclosed to 3rd person

Front 8

LIST

types of privilege

Back 8

Attorney client
Doctor patient
Marital privilege

Front 9

Exceptions to attorney-client privilege

Back 9

ID of client and fact of representation

Future crime or fraud

Litigation between attorney-client

Front 10

Requirements for doctor-patient privilege

Back 10

Must be seen for diagnosis, treatment, medical advice

P cannot put physical condition in issue, e.g., by staute 90 days after filing PI case

Front 11

Marital privilege requirements

Back 11

1) Confidential communication
2) Made during marriage
3) Either spouse asserts the privilege

Front 12

Spousal testimony rule

Back 12

Cannot be forced to testify against spouse WHILE married

Irrelevant as to when communication occurred; question is whether CURRENTLY married

Front 13

Lay opinion requirements

Back 13

Must be rationally based on sense perceptions and helpful to fact-finder (height, weight, speed)

Front 14

Expert opinion requirements

Back 14

Must be:

1) Beyond understanding of average juror
2) Qualified by knowledge, skill, training, education, experience

Once qualified, can answer hypotheticals, based answers on inadmissible evidence

Must testify to reasonable degree of probability

Front 15

Hearsay definition

Exemptions

Back 15

Out of court statement offered to prove truth of matter asserted

Prior inconsistent statement under oath, prior consistent statement to rebut charge of recent fabrication made before motive to lie, prior identification of person

Front 16

LIST

admissions by party opponent

Back 16

Own prior statement

Adoptive admission

Tacit admission

Vicarious admission by agent

Statement by co-conspirator

Front 17

LIST

methods of establishing unavailable declarant

Back 17

Dead, disabled, incompetent, privilege asserted, refusal to testify, unable to remember

Front 18

DEFINE

former testimony/declarant unavailable hearsay exception

Back 18

1) given under oath
2) against party whom statement offered had similar opportunity/motive to develop former testimony

Front 19

DEFINE

dying declaration/declarant unavailable hearsay exception

Back 19

1) Homicide or civil case

2) speaker believed death was imminent (look at conduct, statements, doctor/nurse statements, seriousness of condition)

3) statement must concern cause or circumstances of impending death

4) speaker had opportunity for personal knowledge re:statement

Front 20

DEFINE

statement against interest/declarant unavailable exception

Back 20

1) Against declarant’s pecuniary, proprietary, penal interest
2) Objectively/subjectively against interest

3) In criminal case, statement that inculpates or exculpates defendant will not be admitted without corroborative evidence

Front 21

LIST

803 hearsay exceptions

Back 21

Present sense impression

Exited utterance

Mental state

Medical treatment

Recorded recollection

Business records

Public records under seal

Learned treatises

Ancient documents

Front 22

DEFINE

medical treatment exception to hearsay

Back 22

1) statement made to health care provider (not necessarily doctor) for purpose of medical treatment or diagnosis

2) statement must be reasonably pertinent to diagnosis or treatment - statement of patient not permissible; can include medical history or past symptoms

Front 23

DEFINE

business record exception to hearsay

Back 23

Look for of multiple levels of hearsay

1) authenticated by custodian of record

2) maintained in ordinary course of business (not for litigation purposes)

3) created reasonably soon after event

4) relied upon internally in business; not opinions

Front 24

DEFINE

confrontation clause

Back 24

Confrontation Clause prohibits the introduction of “testimonial” out-of-court statements against criminal defendant UNLESS

Declarant appears as a witness at trial OR

Is unavailable and defendant had a prior opportunity to cross-examine the declarant concerning statement