Term
| List all the hearsay exceptions available only when the declarant is unavailable |
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Definition
1. Former Testimony. Available only if (1) the party against whom the testimony if offered or, in civil cases, the party's predecessor in interest was a PARTY TO THE FORMER ACTION; (2) the former action involved the SAME subject manner; (3) testimony given under oath; and (4) the party against whome the testimony is offered had an opp at the prior proceeding to develop the declarant's testimony.
2. Statement's against interest: statement against pecuniary, proprietary, or penal interest WHEN MADE, as well as collateral facts contained in the statement, is admissible.
3. Dying Declaration. Declarant believed his death was imminent and the statement concerned the cause or circumstances of what he believed to be his impending death. ONLY available in HOMICIDE or civil action. |
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Term
| What are the hearsay exceptions where defendants availability is immaterial? |
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Definition
1. Present state of mind. A statement of a declarant's then existing state of mind, emotion, sensation or physical condition is admissible. It is usually offered to establish intent.
2. Excited Utterances. An out-of-court statement relating to a startling event, made while under the stress of the excitement from the event.
3. Present Sense Impressions. Comments made concurrently with the sense impression of an event that is not necessarily exciting may be admissible.
4. Declarations of Physical Condition. A spontaneous declaration of present body condition is admissible even though not made to physician. But PAST body condition must be made to medical personnel to assist in diagnosing or treating the condition.
5. Business Records. Need (1) business, (2) entry made in regular course of business, (3) pers. knowledge, (4) made near time, and (5) authenticated.
6. Past recollection recorded. Writing itself not admissible, must be read to the jury
7. Official Records: records of activities of public agencies, or matters observed by duty, or by investigations authorized by law. NO PLICE REPORTS IN CRIMINAL CASE
8. Ancient Docs: 20 years or more, authentic.
9. Docs affecting an itnerest in prop.
10. Learned treatises. Must be called to attention of expert and shown to be reliable authority by testminy or judicial notice.
Finally, the "catch all exception" for trustworthy and necessary statements if notice given to other party. |
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Term
| Under the FRE, what are the circumstances for relevant to be inadmissible? |
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Definition
1. probative value substantially outweighed by prejudice
2. public policy |
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Term
| When is evidence "relevant?" |
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Definition
Evidence is relevant if it has any tendency to make a fact of consequence any more or less probable that it would be without such evidence.
Generally, it must relate to the time, place or person of the present litigation, otherwise it is not relevant. |
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Term
| What is the exception to the general rule that evidence is only relevant if it relates to the time, place or persons involved in the present litigation? |
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Definition
Certain Similar Occurrences are relevant if they are probative of a material issue and that probative value outweighs the risk of confusion and undue prejudice.
Examples: prior false claims or same bodily injury, previous similar acts admissible to prove intent, rebutting claim of impossibility, sales of similar property to prove value, habit, business routine, industy custome as evidence of standard of care |
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Term
| What are the primary pieces of evidence that are excluded for public policy reasons? |
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Definition
1. liability insurance: not admissible to show negligence or ability to pay a substantial judgment. May be admissible to prove ownership or control, to impeach, or as part of an admission.
2. Subsequent Remedial Measures: evidence of repairs or other precautionary measures made following an injury is not admissible to prove negligence, culpable conduct, a defect in product design, or a need for warning / instructions. It may be admissible to prove ownership/control, rebut a claim of impossibility, or prove that the opposing party has destroyed evidence.
3. Settlement Offers and Withdrawn Guilty Pleas: evidence of compromises or offers to compromise is NOT admissible to prove liability for, or invalidity of, a claim that is disputed as to validity or amount. Not even direct admissions of liability during a compromise negotiations are admissible. So too are withdrawn guilty please and offers to plead guilty |
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Term
| What are the two ways in which character evidence can be offered as substantive, rather than impeachment, evidence. |
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Definition
1. to prove character when it is the ULTIMATE issue in the case
2. to serve as circumstantial evidence of how a person probably acted |
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Term
| Is character evidence admissible in civil case? What about in a criminal case? |
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Definition
NO, unless character is directly in issue, e.g. defamation
In a criminal case, D must initiate where she would show her good character to show her innocence of the alleged crime. |
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Term
| If a criminal D opens the door and introduces his character, how can P rebut? |
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Definition
cross examine defense witness and ask about D's past specific bad acts but he is limited to intrinsic evidence
call own qualified witness to testify to the D's bad reputation or give their opinions as to defendant's character. no specific bad acts allowed on direct. |
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Term
| When can criminal D introduce evidence of victim's character? |
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Definition
Not in rape cases. In other cases, the D may introduce reputation or opinion evidence of a bad character trait of the allege4d crime victim when it is relevant to show the D's innocence.
Once D has introduced evidence about the victim, the prosecution can counter with reputatino or opinion evidence of the D's good character, or the D's bad character for the same trait. |
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Term
| What are the exceptions to the general rule that evidence of victim's character in rape cases is inadmissible? |
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Definition
1. CRIMINAL CASE: a victim's sexual behavior is admissible to prove that someone else other than the D is the source of the semen, injury, or other physical evidence. Also, past sex between the D and the victim are admissible by the prosecution for any reason and by the defense to prove consent.
In CIVIL cases: admissible if it is not excluded by any other rule and its probative value substantially outweighs the danger of harm to the victim and of unfair prejudice to any party. Reputation evidence only allowed if victim placed it in controversy. |
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Term
| when is evidence of D's prior acts of misconduct admissible as substantive law? |
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Definition
| MIMIC and ... prior acts of sexual assault or child molestation if D is charged with either. |
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Term
| IN order to admit PHYSICAL EVIDENCE, the proponent must satisfy his "ABC"s |
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Definition
It must be relevant and be
AUTHENTICATED
BALANCING TEST -- some auxiliary policy or principle may outweigh the need to admit the real evidence e.g. undue prejudice or inconvenience of bringing the object to the court room. |
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Term
| state the "ancient documents rule" |
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Definition
a writing may be authenticated and admitting without more if it is
1. at least 20 years old
2. in such a condition as to be free from suspicion as to authenticity
3. found in a place where such a writing would likely be kept |
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Term
| Define the Best Evidence Rule |
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Definition
to prove the terms of a writing, which includes anything reduced to tangible form, the original writing must be produced if the terms of the writing are material. Secondary evidence of the writing is only admissible if the original is unavailable.
The rule does not apply where:
1. facts to be proved exist independent of the writing
2. writing is collateral to a litigated issue
3. summaries of voluminous records
4. public records |
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Term
| list the seven types of self-authenticating documents |
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Definition
1. certified copies of public records
2. official publications
3. newspapers and periodicals
4. trade inscriptions
5. acknowledged documents
6. commercial paper
7. certified business records |
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Term
| Secondary evidence may be used to prove the contents of a writing in the absence of the original when... |
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Definition
1. loss or destruction of the original
2. the orig is in possession of a third party outside the jurisdiction and is unobtainable
3. the orig. is in the possession of an adversary who, after due notice, fails to produce the original |
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Term
| Define the PAROL EVIDENCE RULE |
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Definition
| If an agreement is reduced to writing, prior or contemporaneous statements are merged into the written agreement, and they are inadmissible to vary the terms of the writing. |
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Term
| Under what conditions does the PAROLE EVIDENCE RULE not apply? |
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Definition
1. incomplete or ambiguous contract
2. reformation of K
3. challenge to validity of K
4. subsequent modifications of K (subject to statute of frauds) |
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Term
| what are the two requirements for witness competency? |
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Definition
presumed to be competent, but witness must have:
1. personal knowledge of the matter about which he is to testify
2. witness must declare he will testify truthfully
infants and inane people may testify so long as the aforementioned req'ts are satisfied |
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Term
| When is opinion evidence by lay witness admissible? |
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Definition
1. rationally based on the w's perception
2. helpful to clear understanding of his testimony or helpful to a determination of a fact in issue
3. not based on scientific, technical or other specialized knowledge. |
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Term
| What are the requirements for opinion testimony given by an EXPERT? |
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Definition
HQCFP: hollow quarters can't fill pockets!
Note: for the "F", factual basis, expert may rely on:
1. personal observation
2. facts made known to the expert at trial
3. facts not known personally but supplied to him outside the courtroom and of a type reasonably relied upon by experts.
NOTE: an expert may render an opinion as to the4 ultimate issue in the case. However, in a criminal case, an expert may not state an opinion as to whether the accused did or did not have the mental state in issue. that is for the jury |
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Term
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Definition
cross examination
extrinsic evidence
direct exam |
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Term
| Impeachment w/ prior inconsistent statement |
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Definition
foundation requirements provides that witness must be given an opportunity to explain or deny the statement.
if prior statement made under oath, can be used for the truth of the matter asserted as well |
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Term
| Impeachment with past convictions |
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Definition
1. any crime involving dishonesty (court has NO discretion to bar introduction of such evidence)
2. felony not involving dishonesty (court can exclude)
3. generally, if more than 10 years have elapsed, can't use it |
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Term
| Impeachment with BAD ACTS |
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Definition
a witness may be asked on cross about an act of misconduct only if the act is PROBATIVE OF TRUTHFULNESS. Must inquire in GOOD FAITH
NO EXTRINSIC EVIDENCE
NOTE: an ARREST, by itself, it not a "bad act" and cannot be used to impeach |
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Term
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Definition
a w who has been impeached may be rehabilitated by the following methods:
1. explanation on redirect
2. good reputation for truthfulness
3. prior consistent statement |
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Term
| Who may make a motion to strike an unresponsive answer? |
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Definition
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Term
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Definition
No such thing in FRE. Governed by common law as interpreted by the courts...
1. a-c privilege
2. spousal privilege
3. psychoteharapist privilege |
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Term
| General considerations with respect to privilege |
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Definition
1. it is personal to the holder
2. communication must be made in confidence
3. neither counself nor the judge may comment on a claim of privilege
4. any privilege is waived by 1. failure to claim it, 2. voluntary disclosure of the privileged matter by the privilege holder,. 3. contractual provision waiving in advance the right to claim the privilege, 4. eavesdroppers do not destroy the privilege and may be restrained from testfifying
NOTE: a waiver by one joint privilege holder does NOT affect the right of the other holder to assert the privilege |
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Term
| What are the TWO spousal privileges? |
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Definition
1. Privilege for confidential communication between husband and wife. Must be made during marriage; lasts after divorce. BOTH spouses have the privilege and may prevent the other from disclosing
2. spousal immunity. when invoked, a married person whose spouse is a CRIMINAL DEFENDANT may not be called as a witness by the prosecution. Moreover, a married person may not be compelled to tesify against his spouse is ANY CRIMINAL PROCEEDING, regardless of whether the spouse is the D. Privilege lasts only during the marriage. Only the witness-spouse may invoke it. |
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