Term
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Definition
| MD 5-101 makes clear that courts CANNOT allow persons who are legally INCOMPETENT to testify EVEN IF rules of evidence are generally applicable |
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Term
| Prerequisites for Finding Reversible Error |
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Definition
in order to obtain reversal on appeal due to evidentiary error
1) Trial Judge Committed Error
2) Counsel Preserved the Error (unless “plain error” – very few can be considered “plain error”)
AND
3) Error is NOT Harmless – error must be substantial enough as to be “reversible”
a. FRE 103 (a) – exclusion of evidence effects a “substantial right of the party”
b. MRE 103(a) – party is “prejudiced by the ruling” |
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Term
| lack of personal knowledge |
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Definition
| A witness may not testify to a matter unless evidence is introduced SUFFICIENT to support a finding that the witness has PERSONAL KNOWLEDGE OF THE MATTER. Evidence to prove personal knowledge may, but need not, consist of the witness' own testimony. This rule is subject to the provisions of Rule 703, relating to opinion testimony by expert witnesses. |
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Term
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Definition
If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is LIMITED TO THOSE OPINIONS OR INFERENCES which are:
(a) Rationally Based On The Perception of the witness, and
i. Excludes guesses, speculation, conjecture, and irrational opinions
(b) Helpful to a Clear Understanding Of The Witness' Testimony or the determination of a fact in issue, and
i. Excluded if opinion is superfluous (ie jury in just a good a position to reach conclusion on its own) – jury is the
one that “connects the dots”, not the witness
(c) NOT based on scientific, technical, or other specialized knowledge within the scope of Rule 702.(inadmissible) |
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Term
| purpose of opinion testimony |
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Definition
witnesses should NOT give opinions and ONLY TESTIFY TO FACTS in order to allow jurors to draw their
own conclusions from witnesses testimony on the facts |
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Term
| collective facts doctrine |
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Definition
| approved opinion testimony to certain opinions that could theoretically be broken down to underlying facts |
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Term
| reason for collective fact doctrine |
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Definition
Witness may not Remember Underlying Factual Details, but only their Overall Impression
b) Collective Fact may be more Useful in Painting a Picture to the Jury
c) Most Efficient Way to Produce Evidence – although witness will not be precluded from also testifying to underlying facts |
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Term
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Definition
| identification witness testimony must be rationally based on the perception of the witness |
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Term
| opinion on ultimate issues |
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Definition
(a) Except as provided in subdivision (b), testimony in the form of an opinion or inference otherwise admissible is NOT
OBJECTIONABLE merely because it EMBRACES AN ULTIMATE ISSUE to be decided by the trier of fact. |
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Term
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Definition
| Relevant Evidence = proffered evidence must have only ANY tendency to make ANY fact in question MORE OR LESS LIKELY/PROBABLE to exist than it would be without the evidence = VERY LOW THRESHOLD |
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Term
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Definition
must be probative relationship between the piece of evidence and the fact
sought to be established |
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Term
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Definition
| must be link between the factual proposition which the evidence tends to establish and the substantive law that is the determination of the action |
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Term
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Definition
| provided only be eyewitnesses to that fact; requires no inference drawing |
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Term
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Definition
| all other evidence from which one or more inferences must be made in order to prove the fact at issue in the case |
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Term
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Definition
(“clean up batter rule”) - RELEVANT EVIDENCE MAY BE EXCLUDED when its probative value is SUBSTANTIALLY OUTWEIGHED by the risk of any one of the following:
1) Unfair Prejudice – produces an undue tendency to suggest decision on improper basis; evidence will be used for prohibited purpose - produce an EMOTIONAL response, rather than a logical, rational determination
Confusing the issue/misleading jury/creating unduly distracting
Undue consumption of time
Unfair surprise not recognized |
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Term
| standard of review for 403 |
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Definition
| reviews under ABUSE OF DISCRETION standard [very deferential to trial judge] |
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Term
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Definition
TRIAL JUDGE DETERMINES whether the preliminary facts have been
proved to the judge’s satisfaction by a PREPONDERANCE OF EVIDENCE |
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Term
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Definition
| applies if a preliminary fact must be true in order for proffered evidence to be relevant; trial judge must admit evidence offered to prove preliminary fact if evidence is sufficient to support a reasonable jury’s finding that the preliminary fact is true (question of credibility of evidence is for jury to decide) |
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Term
| 6th amendment confrontation clause |
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Definition
in all CRIMINAL prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him
1) Only Applies to CRIMINAL CASES
2) Only Applies to Evidence Offered AGAINST ACCUSED
3) Must go to the MERITS - offered as substantive evidence, NOT impeachment evidence |
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Term
| 3 categories of circumstances where HS offered by prosecutor is allowed |
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Definition
- out of court declarant testifies at trial
- accused forfeited his confrontation right criminal defendant found by trial court to have engaged in wrongdoing that results in forfeiture oh his confrontation right |
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Term
| HS testimonial statements |
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Definition
intended for use at a later trial or likely to be used; if
the OCS being offered is TESTIMONIAL, it is INADMISSIBLE UNLESS:
i. Declarant Testifies at Trial and is Subject to Cross-Examination OR
ii. Defendant had Opportunity to Cross-Examine Declarant Regarding Statement at an
Earlier Time |
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Term
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Definition
| applies to witnesses who “BEAR TESTIMONY” – statements where declarants REASONABLY EXPECT statement to be used in PROSECUTION |
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Term
| Testimonial statements example |
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Definition
- ex parte testimony
- prior testimony from grand jury
- testimony from former trial
- statements made during Police interrogation |
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Term
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Definition
| business records, statements in further of conspiracy, off-hand remarks, casual remarks to acquaintances |
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Term
| dying declarations as testimonial |
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Definition
| some are found to be testimonial and some are non-testimonial; might fall within hearsay exception for dying declarations, but if it is found to be testimonial (ie given to law enforcement official knowing it will be used in prosecution), then it is excluded under Crawford case if speaker dies and is unavailable at trial |
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Term
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Definition
| might fall into within the present sense impressions or excited utterances exception, but under Crawford, if they are testimonial, unless the speaker is made available at trial the statements are blocked by Confrontation Clause even though they fall within these firmly-rooted exceptions |
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Term
| crime victim statements to physician |
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Definition
| where victim knows or ought to know that the physician will probably turn the information over to the police |
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Term
| domestic violence victim's excited utterance to PO |
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Definition
cases are
split as to whether to treat as 911 call which is likely to be NONTESTIMONIAL, or to treat as
testimonial in that it is likely that the victim knew her statements to the officer would go in police
report that would end up in trial |
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Term
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Definition
| policy of TESTIMONIAL STATEMENT is that govt is the one creating the document to be brought in as evidence at trial – GOVT IS GATHERING EVIDENCE which makes it testimonial |
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Term
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Definition
statement other than the one made by the declarant while testifying at trial or hearing
Statement – ASSERTION of fact by a person
1) an ORAL or WRITTEN ASSERTION OR
2) NON-VERBAL CONDUCT of person IF INTENDED as ASSERTION |
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Term
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Definition
Sincerity - bias, motive to lie; Joking? Sarcastic statement?
BELIEF
2) Narration or Ambiguity – what did declarant actually mean to say? Did declarant meant what it sounds like he meant?
+
3) Perception – did declarant have 1st hand knowledge; did declarant have inaccurate perception (ie poor eyesight ACCURACY
4) Memory – could memory be faulty? how much time elapsed between declarant’s perception and his utterance? |
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Term
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Definition
Verbal Acts – statement may be by itself an OPERATIVE FACT which gives rise to LEGAL CONSEQUENCES (wills, contracts, defamatory statements)
- verbal parts of acts - donative transfer, threatening statements, property disputes (eminent domain) |
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Term
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Definition
if statement is offered to show its effect on the listener, it will NOT be hearsay; statement is NOT being offered to prove its truth, merely to prove the EFFECT that the statement had on the listener
a. OCS To Show That Listener (Or Reader) Was Put On Notice
b. Possessed Certain Knowledge
c. Certain Emotion
d. Behavior Was Reasonable Or Unreasonable |
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Term
| circumstantial evidence of declarant's state of mind |
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Definition
Emotion b. State of Mind (fear/no fear, liked/disliked person) c. Knowledge – possession of knowledge d. Belief e. Intent f. Sanity/Insanity
Offered only to prove declarant was aware of or believed a certain fact or had a particular state of mind NOT what the declarant said was true |
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Term
| Circumstantial evidence of declarant's consciousness |
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Definition
Consciousness
b. Ability to Talk
c. Ability to Speak Particular Language |
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Term
| nonverbal, assertive conduct |
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Definition
| Nonverbal (not in words – not oral or written), Assertive Conduct = conduct INTENDED AS AN ASSERTION (ie nodding head to mean yes; sign language; pointing someone out in lineup) is a statement and is a substitute for particular, identifiable words = OCS |
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Term
| nonverbal nonassertive conduct |
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Definition
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Term
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Definition
prior inconsistent statements by witness
prior consistent statements by witness
out of court identification by witness |
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Term
| Prior inconsistent statements |
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Definition
- inconsistent with Declarant's testimony and was given under oath at trial or hearing/deposition or other proceeding
- allowed as substantive and impeachment
HOWEVER, prior inconsistent statements that DO NOT fall under this provision can ONLY BE OFFERED FOR IMPEACHMENT or REHABILITATION purposes |
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Term
| prior consistent statements |
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Definition
Must TESTIFY at Trial or Hearing
b) Statements CONSISTENT
c) Offered to REBUT CHARGE against Declarant of RECENT FABRICATION or IMPROPER INFLUENCE or MOTIVE |
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Term
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Definition
| • Proof that the trial witness has previously made an eyewitness identification is technically HS, many common-law courts allow it as substantive evidence if it seems to have probative value |
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Term
| 5 subcategories of admissions of a party opponent |
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Definition
Opposing party’s own statement
Opposing party adopted a 3rd party’s statement by action or silence
• Adopts truth of estimate (insurance/mechanic)
Opposing party authorized a 3rd party to speak for him, her, or it
Opposing party’s agent’s or employee’s statement (made during the agency or employment relationship and concerning a matter within the scope of the agency or employment)
Opposing party’s coconspirator’s statements made during and in furtherance of the conspiracy |
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Term
| Judicial admissions that are binding |
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Definition
o Stipulations entered into in the case
o Clear and unequivocal admissions in the effective pleadings in the case
o Answers to requests to admissions |
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Term
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Definition
| party has adopted as true - party-opponent must hear other's statements, circumstances allow for the party opponent to reply, under the circumstances a person would correct |
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Term
| statements by party opponent's agent or employee |
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Definition
o Concerning a matter
o w/in scope of employment or agency
o during existence |
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Term
| Statements by Coconspirators during and in furtherance of the conspiracy |
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Definition
| must advance the objectives of conspiracy and not merely inform listener - common enterprise |
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Term
| Doesn't matter if witness/declarant is available for exceptions... |
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Definition
- present sense impression
- excited utterance
- then-existing mental, emotional, physical condition
- statement made for medical diagnosis or treatment
- recorded recollection
- records of regularly conducted activity
- absence of a record of a regularly conducted activity
public records
public records of vital stastics
absence of public record
records of religious organizations conerning personal or family history
certificates of marriage, baptism, and similar ceremonies
family records
records of documents that effect interest in property
statements in documents that affect an interest in property
statments in ancient documents
market reports and similar commerical publications
statements in learned treatises, periodicals or pamphlets
reputation concerning personal or family history
reputation concerning boundaries or general history
reputation concerning character
judgment of a previous conviction
judgment involving personal, family, or general history or a boundary
other |
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Term
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Definition
• Describing or explaining an event or condition made
o Opinions allowed
o Must be a percipient witness – must have perceived the event
• While the declarant was perceiving the event or condition, or immediately thereafter
o No material time may pass |
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Term
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Definition
statement
relating to a startling event or condition
must be sufficiently startling to eliminate the declarant's capcity to reflect before speaking (need not explain or refer to startling event)
made while declarant was still under stress of excitement
cause by event or condition |
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Term
| statements of declarant's present physical condition |
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Definition
A statement of the declarant’s then-existing sensory, or physical condition (such as pain or bodily health)
• Made while declarant is speaking is feeling the pain
Memory and perception are minimized
• Must be 1st hand |
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Term
| Statements made when seeking to obtain medical treatment or diagnosis for oneself or loved one |
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Definition
• Statements made for the purposes of medical diagnosis or treatment and describing medical history
• Or past or present symptoms, pain or sensations
• Or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment |
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Term
| test for medical treatment |
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Definition
• Declarant’s motive consistent with the purpose of the rule
• Is it reasonable for the physician to rely on the information in diagnosis or treatment |
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Term
| Direct Assertions of a Declarant’s then existing emotional condition |
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Definition
o Statement of declarant’s then-existing state of mind (such as motive, intent or plan)
o Or emotional condition (such as mental feeling) but not including a statement of memory or belief to prove the fact remembered believed
o Unless it relates to the validity or terms of declarant’s will |
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Term
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Definition
More likely that one did do the thing than if one did not have the intent – relevance test
• Used to help prove person did that thing they said they would
Admissible to show declarant’s subsequent action, after the statement, in accordance with his or her stated intent |
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Term
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Definition
Not including a statement or memory or belief to prove the fact remembered or believed
State of mind exception does NOT apply to statements of memory or belief about past actions or events, when offered to prove that the past action of event took place
Does away with circumstantial guarantee of perception and memory
Statement offered to prove a fact that declarant remembered or believe
• Can use backward looking regarding declarant’s intentions as to her last will and testament |
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Term
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Definition
o Party calling on the witness may refresh the witness’s recollection by showing them a document or other item
o Must have 1st hand knowledge of what he/she is testifying to
Knowledge is revived so that the witness can testify from memory
o When present memory is refreshed, witness is testifying to live memory
NO OCS
NO HS exception needed
o An item used to refresh memory will not come into evidence unless used for impeachment purposes by opposing council
Opponent must be allowed to see item |
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Term
| Past recollection recorded |
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Definition
A writing
Shows witness had 1st hand knowledge
Ask witness questions that show had insufficient knowledge of full testifying and accuracy
• Don’t need to have a complete blank
Made when fresh in memory (or adopted)
Correct at time
• Wouldn’t have said it if wasn’t correct
• If it’s a police officer then have to call him in to have him testify he made it accurate
o Minimizes memory b/c has to be made when fresh in memory
o Perception b/c first hand knowledge |
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Term
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Definition
Must be made in the routine of business
Record was made by or from information supplied by a person with personal knowledge of the matter recorded and who is working in the business and
Made at or near the time of the matter recorded |
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Term
| business record - person supplying the information |
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Definition
Must have 1st hand knowledge of the fact he reports
Must do reporting while working in the business
• If the person is not an employee – exception may not apply
o So a witness to an accident, even if made to a police officer or other person with a business duty to compile a report, will NOT be admissible |
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Term
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Definition
| If a regularly kept business record would otherwise qualify, it may be admitted to show that a particular entry is absent if such an entry would normally have made a particular event occurred |
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Term
| Public records HS exception |
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Definition
Record or statement of a public office of
Office’s activities
Matter observed while under a legal duty to report
Civil case or against the gov’t in a criminal case, factual findings from a legally authorized investigation
• Neither source nor other indicate lack of trustworthiness |
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Term
| 3 types of public records |
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Definition
Agency’s own activities
• Offered to show activities occurred
Mattes observed under duty – public official
• Observation made in line of duty
• Official had duty to report those observations
Investigative reports
• Factual findings resulting from investigations, except when used against a criminal defendant |
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Term
| criminal cases - public records |
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Definition
| cannot use matters observed under duty or investigative reports but officer's written report may be used by D against gov't in criminal proceedings |
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Term
| Opinions within the record |
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Definition
| So long as an investigative report includes factual findings, other “evaluative” parts of the report – opinions, evaluations and conclusions- may also be admitted |
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Term
| Test to determine trustworthiness of record |
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Definition
Timeliness of the investigation
Special skill or experience of the official
Whether a hearing was held on the level at which conducted
Possible motivational problems |
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Term
| 804 - must be unavailable - ways of showing |
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Definition
Privilege applies
• D is physically there but judge will not allow to testify
Declarant refuses to testify, despite an order by the court to testify
Declarant testifies to lack of memory
• Court may refuse to believe
Declarant cannot attend b/c of physical or mental illness (SERIOUS), has become mentally incompetent, or is deceased
Process or other reasonable means will not yield a better result
• 804(b)(1) HS exception for prior testimony
• 804(b)(2)-(4), (6) categories, either the declarant’s attendance at trial or her prior testimony
o If declarant cannot attend trial, proponent must, if reasonably possible, obtain the declarant’s testimony in another forum (depositions, etc.) |
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Term
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Definition
• Dying declarations
• Declarations against interest
• Prior testimony
• Persons or family history
• Forfeiture |
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Term
| Prior testimony - witness is unavailable |
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Definition
| - testimony given as a witness at a trial, hearing or lawful deposition, whether given during the current proceeding or a different one AND is now offered against a party who had (in a civil case whose predecessor in interst had) an opportunity and similar motive to develop it by direct, cross, or redirect |
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Term
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Definition
in prosecution for homicide or in a civil case
statement that declarant made
while believing that declarant's death was imminent
made about its cause or circumstances |
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Term
| statement against declarant's interest |
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Definition
o RP in declarant’s position would have made only if person believed it to be true b/c when made, it was so contrary to the declarant’s propriety or pecuniary interest or had so great a tendency to invalidate the declarant’s claim against someone else
Pecuniary = pocket book, giving up a claim/exposing self to claim
Propriety = property
Penal |
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Term
| statement of personal or family history |
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Definition
- declarant's own birth, etc., even though declarant has no way of acquiring personal knowledge about the fact OR
anothe rperson if declarant was related/so intimately associated with person's family that the information is likely to be correct |
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Term
| statement offered against a party that wrongfully caused the declarant's unavailability |
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Definition
| statement offered against a party that wrongfully caused or acquiesced in wrongfully causing the declarants unavailability as a witness, and INTENDED |
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Term
| catch all exception purpose/generally |
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Definition
Reliable, necessary hearsay ought to be admitted even if it does not fit within a specific, well-established HS exception
• Concept = no other available evidence and looks reliable, then court has discretion to admit it |
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Term
| catch all exception elements |
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Definition
Trustworthiness –
• must have circumstantial guarantee of trustworthiness that are equivalent to those of the other HS exceptions
Necessity –
• must be offered as evidence of a material fact (important, consequential, or central), must be more probative of that fact than any other evidence that proponent could reasonably produce, must serve the interests of justice by its admission
Fairness to adversary
• Proponent must give notice to the adverse party in advance of trial as to the nature of the HS to afford opponent opportunity to rebut the evidence
o Some federal courts have relaxed this rule to permit notice in the midst of trial |
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Term
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Definition
| • When evidence is of a type covered by a specific HS exception but fails to meet the exact standards for the exception, the near miss doctrine would block its admissibility under 807 |
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Term
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Definition
| Post crawford, testimonial so have to show forfeiture to admit |
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Term
| Factors to be considered for circumstantial guarantees of trustworthines |
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Definition
• Oath
• Time lapse
• Motive
• First-hand knowledge
• Written v. oral – written are considered more reliable
• Recanted statements |
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Term
|
Definition
Person may not be compelled to testify in violation of the A/C privilege (codified in ME but does not define – leaves to CL)
Client holds the privilege with regards to
• Confidential – reasonable expectation of privacy
• Communications – impressions don’t count
• B/t lawyer (or lawyer’s agent) and client
• Made with a view to obtaining professional legal services (even if it turns out attorney was not hired) |
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Term
| A/C privilege does not apply if |
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Definition
• Communication is in furtherance of an ongoing or future crime or fraud OR
• Privilege is waived either
o By voluntary disclosure (in testimony, discovery, or otherwise by the client or by attorney authorized to act as the client’s agent) of the communication outside a privileged relationship (this one or another privileged relationship) or
o By the client’s putting the communication in issue, as by making a claim against a lawyer for malpractice or ineffective assistance of counsel
Inapplicable in a will contest or when both parties are claiming through a deceased client
Generally identity of a client is not privileged, nor is fees |
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Term
| Corporation privilege A/C |
|
Definition
• An employee (or former employee)
• Speaks at direction of management
• With regard to conduct (or proposed conduct) within the scope of the employee’s employment
• With an attorney who is authorized by management to inquire into the subject and who is seeking information to assist in
o Evaluating whether the employee’s conduct is binding on the corporation or
o Assessing the legal consequences of the employee’s conduct or
o Preparing a legal response to others’ actions regarding the conduct |
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Term
| Husband-wife confidential communication |
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Definition
Confidential martial communications privilege – one spouse is not competent to disclose any confidential communication between the spouses during their marriage
• In any case, civil or criminal ,regardless whether either spouse is a party
• The confiding spouse holds a privilege protecting
• Confidential – reasonable belief of confider
o An eavesdropper can testify to what is said not the spouse
• Communications
• b/t husband and wife
• made during their marriage
• privilege continues even if marriage subsequently has ended
• Only confiding spouse can waive the privilege |
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Term
|
Definition
| Privilege applies to communications relating to diagnosis or treatment of the patient’s mental or emotional disorder |
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Term
| psycho-patient doesn't apply if |
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Definition
• If disclosure is necessary for the purposes of placing the patient in a facility for mental illness – HIGH STANDARD
• Judge finds patient, after being informed there will be no privilege, makes communications in the course of an examination ordered by the court and the issue at trial involves mental or emotional disorder
o Incompetent to withstand trial and too incompetent to waive
• Civil or criminal proceeding
o Patient introduces mental condition as element of claim or defense
o After patient’s death, mental condition is introduced by any party claiming or defending through or as a beneficiary of the patient – ex: will contest
• Patient, authorized representative of the patient, or the personal representative of the patient makes a claim against the psychiatrist of licensed psychologist for malpractice
• Related to civil or criminal proceedings under defective delinquency proceedings – juvenile
• Patient expressly consents to waive the privilege for purpose of making claim or bringing suit on policy of insurance on life, health, or physical condition |
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Term
| Priest-penitent privilege |
|
Definition
|
|
Term
|
Definition
MD has
Unless expressly permitted by a client or the personal representative or successor in interest of the client, a CPA or firm may not disclose
• Contents of any communication made to the licensed CPA or firm by a client who employs the licensed CPA to audit, examine, or report on any account, book, record, or statement of the client
• Any information that CPA in rendering professional service derives from
o Client who employs them
o Material of the client
• May disclose data to another CPA that conducts a quality review
o Does not waive the privilege required |
|
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Term
|
Definition
Holder = attorney
unless susbtantial need |
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Term
| husband-wife spousal immunity |
|
Definition
where one spouse is the accused in a criminal case and the other spouse is asked to testify against the accused
Holder in MD and federal is the witness-spouse
Spouse (that spouse is the holder) cannot be compelled to testify
Against his/her spouse who is a criminal accused
Privilege extends to ALL knowledge of the spouse-witness (not just confidential communication)
Lasts only as long as marriage lasts
Spouse-witness may testify voluntarily |
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Term
| MD privilege - spousal abuse |
|
Definition
• Unless charge involves
o Abuse of a child under 18 or
o Assault in any degree in which the spouse is a victim if
Person on trial was previously charged with assault in any degree or assault and battery of the spouse
Spouse was sworn to testify at the previous trial and
Spouse refused to testify on the basis of the provisions of this section |
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Term
|
Definition
Used to refuse to disclose a source
MD recognizes a limited privilege for journalists
News media
• Newspapers, magazines, journals, press associations, news agencies, wire services, radio, TV, and any printed, photographic, mechanical or electronic means of disseminating news and information to the public
Applies to any person who is, or has been, employed by the news media in any news gathering or news disseminating capacity
May not compel person to disclose source
- May compel disclosure of news or information but not the source if finds party seeking news or information has established by clear and convincing evidence that
• News or information is relevant to a significant legal issue before any judicial, legislative, or administrative body, or any body that has the power to issue subpoenas
o News or information could not, with due diligence, be obtained by any alternate means
o Overriding public interest in disclosure
• Court may compel
o If any person employed by the news media disseminates a source |
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Term
| subsequent remedial measures |
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Definition
| o Excludes generally evidence of a party’s subsequent remedial measures when offered as evidence of that party’s negligence or culpable conduct (including product liability) |
|
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Term
|
Definition
– opposing party controverts (argues/denies the truth) when that party testifies, in effect, that a device or procedure was not “capable of being utilized or dealt with successfully”
Only party who took subsequent remedial measure can raise the exclusion |
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Term
| Compromise and offers to compromise |
|
Definition
| o Offers to compromise – evidence that D has paid or offered to pay money in settlement of a claim that is disputed as to liability or amount (of P has offered to accept a certain sum) is NOT admissible to fix liability b/t parties |
|
|
Term
| statements made during negotiations |
|
Definition
any conduct or statement made in the course of negotiating a compromise (including offer to comprise) is excluded
Evidence “otherwise discoverable” does not become inadmissible simply b/c produced during the course of settlement negotiations |
|
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Term
| o Compromises and offers to compromise civil cases are inadmissible in related criminal cases |
|
Definition
| “except when offered in a criminal case and when the negotiations related to a claim by a public office in the exercise of its regulatory, investigative, or enforcement authority” – ex: compromise negotiations with IRS in criminal claim is Not protected |
|
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Term
| can offer statements made during negotiations, etc. |
|
Definition
Proving bias
Negating a contention of undue delay
Proving obstruction of justice
• (not an exhaustive list) must have limiting instruction |
|
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Term
|
Definition
o Statements made during a plea bargaining with a prosecuting attorney are NOT admissible
Want to facilitate plea bargaining
Applies only to statements made during plea bargaining with an attorney for the government
• NOT plea bargaining with law enforcement
Can be waived – prosecutor can ask defendant to sign a form waiving as a condition |
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Term
| Plea bargaining does not protect |
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Definition
Guilty pleas that are accepted (and neither withdrawn nor vacated)
Factual statements made in a rule 11-type proceeding regarding such accepted guilty pleas
Could come in under -->
• Party opponent statement
• Declarant witness’s prior statement
• Statement against penal interest |
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Term
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Definition
Nolo contendere or “no contest”
• Plea does not concede guilt and CANNOT be used as an admission
Guilty plea
• Plea may be introduced against defendant as an admission in a subsequent civil or cimrinal proceeding involving the same act
o Not conclusive evidence of guilt or wrongdoing – D may explain circumstances surrounding the plea and such explanation goes to the weight of the evidence
• Guilty plea withdrawn before – most jurisdictions provide that withdrawn guilty plea is not admissible against the accused in his subsequent criminal prosecution or in any later civil or criminal proceeding
• Unaccepted offer to plead guilty is excluded
• Damaging statements made by the accused in connection with a withdrawn plea, or plea or offer to plea nolo are generally inadmissible in any subsequent proceeding against the accused
o Damaging statements are admissible against the accused in a separate proceeding for perjury or false statement if they were made under oath, on the record, and in the presence of counsel |
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Term
| Payment of, offers to pay for medical expenses |
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Definition
o Evidence that D paid or offered to pay for P’s medical, hospital, or similar expenses is generally held not relevant to prove D liable for P’s injury
“good Samaritan rule”
Prompted by humanitarian motives
But admissions of fact accompanying offers to pay medical expenses are admissible |
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Term
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Definition
o Generally excludes, on the issue of fault, evidence of either insurance or lack of insurance
o Low probative value
o Would help jury feel bad for uninsured |
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Term
| D's settlement with 3rd person |
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Definition
o On a claim arising out of the same incident is excluded and might raise too many collateral issues
Except when 3rd person appears as a witness for D, courts may permit cross-examination as to the settlement, to show possible bias or prejudice |
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Term
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Definition
expert testimony will be admissible if the expert’s scientific, technical or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue
Court discretion to determine whether helpful
• Same as 701 – doesn’t have to be necessary but cannot be superfluous |
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Term
| possible rulings for expert testimony |
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Definition
Inadmissible b/c would not assist the jury
• B/c jury would not need it at all to objectively evaluate the facts
• Expert opinion has an insufficiently reliable basis
Fact finder does not need expert testimony to meet its burden of production but it will be helpful
• Admissible in the court’s discretion
Fact finder needs expert testimony b/c common sense and logic are insufficient to evaluate the facts
• Admissible and may be necessary in order for a party to meet its burden of production |
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Term
| Procedure for expert testimony |
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Definition
proponent of an expert first must elicit the witness’s qualifications on direct then offer the witness as an expert in the designated frield
Opponent may object either on the ground that the subject matter is improper or that the witness is unqualified
• With permission of the court, opponent may vior dire the witness on these points
If court accepts witness as an expert in the designated field, generally it will instruct the jury that the witness has been accepted as an expert on blah and is qualified to give knowledge on this subject |
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Term
| what experts can testify to |
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Definition
may be based on 1st hand knowledge
Opinion may have an HS basis
Cannot parrot another expert’s opinion
May be data inadmissible in evidence that are reasonably relied upon by experts in the field
• Ex: reliance on a psychologist’s report, even though report was made in anticipation of trial
Admission of nonsubstantive evidence offered to show the basis of expert testimony should only be admitted if its probative value for the purpose of evaluating the expert’s opinion substantially outweighs its prejudicial effect
- Whether expert may testify to his or her opinion on an ultimate issue is a question of whether the opinion will be helpful to the trier of fact |
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Term
| what experts cannot testify to |
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Definition
| experts may not testify to whether a criminal defendant had a “mental state or condition that constitutes an element of the crime charge (such as intent, premeditation, or malice) or of a defense” |
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Term
| Prereq for scientific evidence |
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Definition
o Process used to obtain results that are being proved is sound in principle
o Person following this process or principle was qualified and
o Test, etc., was performed properly in this case, on proper equipment, in good working order |
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Term
| soundness of the underlying principle |
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Definition
o Statutes may state sound in principle
o Undisputed authoritative source or judicial notice (through common general knowledge)
o If none of the above, then it must be formally proved
- MD - restrictive test and Fed - easier |
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Term
| Fed test for soundness of principle - factors |
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Definition
• Court must consider whether expert’s technique or theory
o Can be tested in some objective sense
o Has been subject to peer review and publication
o Has been generally accepted in the particular field
o Look at the technique or theory’s known or potential rate of error
o Standards and controls under Daubert |
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Term
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Definition
played direct part in the incident at issue, comes in as substantive
- item offered must be the same one involved in the event at issue
- prior to introducing, counsel will lay foundation by a witness with first hand knowledge
- if it's changed, have to bring that out |
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Term
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Definition
o Played no part in the incident at issue, merely helps the jury to better understand a witness’s testimony
Ex: looking at cuts on body to show it’s probably a certain kind of knife
o Not substantive, comes in only to illustrate the witness’s testimony |
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Term
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Definition
| trips to the scene) are required in eminent domain cases, otherwise, request for a view is in the court’s discretion |
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Term
| Demonstrations and experiments |
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Definition
o Only if circumstances are shown only to be substantially similar – not identical – to facts of the case at hand
o Goes to the weight of evidence not admissibility |
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Term
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Definition
• Subcategory of relevance
o Necessary to support a finding that an item of evidence is what its proponent offers it as
In civil cases, parties will stipulate to the authenticity of many items or obtain admissions to authenticity in requests for admissions – resolved pretrial
• Absence pretrial resolution
o See if it is self-authenticating under 902
o Then if not, 901 governs and authentication is required |
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Term
| self- authentication list |
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Definition
opponent may still introduce evidence to try to persuade fact-finder that such an item is not authentic
Foreign and domestic official documents
Certified copies of public records
Publications purporting to be issued by the gov’t
Newspapers, magazines, and other periodicals
Labels, tags, etc., on items in trade, etc.
Notarized documents
Commercial paper
Categories covered by statute
Certified copies of business records – Rule 903(6) |
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Term
| non-self authenticating evidence categories |
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Definition
Testimony of witness with first-hand knowledge that a matter is what it is claimed to be
• If no distinguishing characteristics then must show chain of custody to show likely no tampering
Lay testimony as to handwriting
• No expertise needed
• Not very probative b/c no expertise but lay person is still qualified
• If highly contested then use expert or jury to decide
Expert testimony or comparison with exemplar sent to the jury
• Handwriting, fingerprints, ballistics
Circumstantial evidence
• Open-ended method
Voice recognition – familiarity after the fact is ok
When witness placed a telephone call, the proponent needs to authenticate who answered
• Other circumstances show, instead of self-identification
Record obtained from a public office where it was authorized by law to be recorded or filed
Document being offered is apparently more than 20 years old, looks authentic, and was found in likely place
Process producing the evidence is reliable
• X-ray, etc.
Statutory methods |
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Term
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Definition
o Only if jurisdiction requires to be called in
o If state law requires the testimony of an attesting witness to authenticate this is required |
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Term
| Best Evidence rule applies if |
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Definition
o A writing recording, or photograph exists or one existed and
o Its contents (terms or details) are closely related to a controlling issue in (very important to) the case
If those two are met then
• In proving those content, terms, or particulars (rather than first hand knowledge independent of [not obtained from] the writing, recording, or photograph] and not just the existence of the writing, the proponent must offer the original or duplicate of the writing
• Unless the original or duplicate is unavailable for some reason other than the culpable fault of the proponent |
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Term
| generally best evidence rule |
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Definition
• At common law, best evidence rule required the production of the original writing in order to prove its contents, where its contents were an important issue in the case
o Eliminates risk of mistransmission of content
Memory
Fraud
• Either an original or a duplicate including a photocopy may be offered b/c of technological accuracy, reliability of modern means of reproduction |
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Term
| original v. duplicate under best evidence rule |
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Definition
• Original – includes all copies intended to have the same effect
• Duplicate – made from same impression as the original, both carbons and photocopies qualify as duplicates |
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Term
| photographs under best evidence rule |
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Definition
| covered by best evidence rule only if they are substantive real evidence and not demonstrative evidence and if the contents of the photos are important to the case |
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Term
| Best evidence is inapplicable if... |
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Definition
the witness is testifying to his or her first-hand knowledge not gained from the writing
o Can only apply if the witness gained his or her knowledge of the matter from the writing |
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Term
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Definition
o If original was in client’s custody, must show that client lost it (diligent search was made) or it was destroyed (not in bad faith)
o If the original is in a 3rd party’s control
If within reach of a subpoena, must issue a subpoena duces tecum |
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Term
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Definition
| • When admissible writings are too voluminous to be proved practically one by one, witness may testify to the summary of them all but they must be timely to allow opponent to inspect |
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Term
| proof of public record under best evidence rule |
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Definition
| may be made by certified copy |
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Term
| proof by statement of a party-opponent under best evidence rule |
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Definition
| o If opponent admits, either in his testimony or written admission, what the contents of the writing are, need not produce the writing |
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Term
| Chattel with writing on them Best evidence rule |
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Definition
o Ex: tombstone, police badge, etc.)
o To determine writing for purpose of best evidence consider
Length and complexity of the writing
How important or central the item and its contents are to the case
Whether there is a real dispute as to the contents and
The difficulty of production |
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Term
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Definition
o General rule of excludes evidence of a person’s other acts of a person’s character or character trait when offered to show that the person acted “in character” on the occasion at issue in the case
Applies to all character evidence, whether of reputation, opinion, or other specific conduct mar the conduct at issue
o INADMISSIBLE if offered as substantive evidence, to show that a party is a good or bad person and thus circumstantial evidence that the person acted in character and did the right or wrong thing in the incident at issue at trial |
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Term
| rationale for propensity rule |
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Definition
To ensure fairness b/c trial should be focused on litigated events, not other misdeeds or upon character traits
Risk unfair prejudice |
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Term
| exception to propensity rule for prior sexual assaults and child molestation |
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Definition
o Generally permit propensity use of other acts evidence in both criminal and civil trials for sexual assault and child molestation in federal court
MD recognizes limited exception to the propensity rule, but only for prior sex crimes involving same D and same victim |
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Term
| sweeping claim of innocence propensity rule |
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Definition
o When an accused or potentially another party or witness makes a sweeping claim of innocence claim opens the door to other acts evidence that would not have bene admissible
o D’s making such an assertion in an opening statement opens the door |
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Term
| habit evidence and business routine exception |
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Definition
• Evidence of an established pattern of repeated, similar acts that are specific enough to constitute an individual’s habit or a particular business or other organizations routine practice is admissible as substantive evidence to prove that the person or organization acted in accordance with that routine on the occasion in question at trial
o Specificity and uniformity of action
o Generally proved by the opinion testimony of a person with first-hand knowledge of sufficient instances of the person’s or business’s performance of a particular act |
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Term
| Limited exceptions to propensity rule |
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Definition
o Two limited exceptions in criminal cases
May only be triggered by the criminal accused who chooses to offer evidenc under them
Permit calling “character witnesses” to give reputation or opinion evidence of the accused’s or the victim’s pertinent character trait, as circumstantial, substantive evidence of what happened
Specific instances of the accused’s or victim’s conduct may be inquired into only on cross of the character witnesses NOT ON DIRECT
• Only for the limited purpose of impeaching the character witness, not as substantive evidence, and not as impeaching the accused of the victim |
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Term
| effect of accused offering reputation or opinion evidence of good character |
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Definition
| Once D has opened this door, prosecutor may both cross-examine the defense’s character witness as relevant specific instances of the D’s past behavior and also rebut with unfavorable reputation or opinion testimony by calling its own character witnesses |
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Term
| On cross-examine of character witnesses |
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Definition
| • To test credibility of statements as to D’s good reputation, prosecutor may attempt to impeach witness by examining them as to D’s specific acts, past crimes and misconduct |
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Term
| Character as an essential element of charge, claim or defense |
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Definition
o Reputation testimony, opinion, and evidence of specific instances are all admissible to prove a person’s character or character trait, when that person’s character is an “essential element of a criminal charge, civil claim or defense”
o Someone’s character must be proven as an element of the charge claim or defense
Negligent hiring or retention
Negligently entrusted
Slander
Possession of a firearm by a convicted felon |
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Term
| Permissible limited purposes of other acts evidence rather than proving propensity |
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Definition
o Evidence of specific instances other than the one charged or claimed may be offered for a more focused purpose other than simply to show that a person acted “in character” (good or bad) this time
Limiting instruction must be given
Motive, opportunity, intent, common scheme or plan, preparation, knowledge, identity, or absence of mistake or accident
- other acts evidence directly related to charged crime
- only need suffice to permit a reasonable jury to find that the alleged committed the other act |
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Term
| burden of production of evidence |
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Definition
o Initial burden is generally allocated by substantive law to same party who bears the burden of pleading a particular fact or issue
Party must produce sufficient affirmative evidence at trial to allow jury to reasonably find the existence of the fact as to which party bears the burden
Unless prosecutor, if opponent fails to meet burden move for judgment or for peremptory jury instruction on particular issue
If evidence is strong enough to shift burden to the other party, directed verdict or peremptory jury instruction will be appropriate unless comes forward with evidence |
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Term
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Definition
o DOES NOT SHIFT BACK AND FORTH
Civil – preponderance of the evidence
Civil – fraud or termination of parental rights, clear and convincing
Criminal – beyond reasonable doubt (not beyond all doubt) |
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Term
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Definition
rules of substantive law circumscribing the possibly relevant issues in a case
ex: child is presumed not to have consent |
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Term
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Definition
- presumption of innocence
- permissible inferences and rule 301 presumptions --> proof of one fact (basic fact) will create a presumption that the "presumed fact" is also true
- permissible inferences - if basic fact gives rise to permissible inference, proof of basic fact merely meets the party's burden of production (in criminal can only state MAY find...) |
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Term
| rebuttable presumptions in civil cases |
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Definition
When offered by either party, in criminal cases when offered by D, rebuttable presumption of the type addressed by 301-302 will have the following effect
• Proof of BF serves as sufficient proof of the PF to shift the burden of production as to that fact
Absent evidence rebutting presumption, if you find this then you may presume this
If D does not rebut at all or rebuts only as to BF, if you find BF then you may presume PF |
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Term
| effect when presumed fact is rebutted |
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Definition
o If D rebuts the PF
Bursting Bubble
• Presumption disappears and the burden of production shifts back to P to offer more evidence of the previously presumed fact
o If can’t D’s motion for judgment is granted
Uniform Rule’s approach
• Shifting burden of persuasion as to the nonexistence of the PF
o If you find BF you must find PF unless you are convinced by preponderance of evidence that not PF
Flexible approach
• If BF is logically probative of the PF, D’s rebuttal merely meets the BGF but does not shift it
• If you find BF, you may find PF |
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Term
| Impeachment of witnesses in general |
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Definition
• Impeachment evidence is intended to detract from the credibility of substantive evidence that has been presented
o Rehabilitative evidence shores up an impeached witness’s credibility
o Impeachment evidence cannot be used as affirmative proof
Will not help meet a party’s burden of production of evidence
• Two approaches witness is lying and witness is mistaken |
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Term
| impeachment to show witness is lying methods |
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Definition
o Witness’s prior convictions
o Witness’s prior bad acts, which have no resulted in witness’s criminal conviction but relevant for character for truthfulness
o Witness’s bad reputation for truthfulness, or character witness’s bad opinion of the first witness’s truthfulness
o Witness’s bias, interest, prejudice, or improper motive, giving reason to lie
o Prior inconsistent statements (inability to keep story straight)
o Lack of first-hand knowledge |
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Term
| methods to show witness is mistaken |
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Definition
attacks perception and memory
o Bad eyesight, hearing
o Use of drugs or alc at pertinent time
o Conditions under which witness’s observation were made
o Bias
o Suggestiveness
o Prior inconsistent statements, closer to time of the event, when memory was fresher
o Contradictory substantive evidence from other witnesses |
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Term
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Definition
o One can impeach any witness, including one’s own
o Precluded from calling a witness simply to prove the witness’s prior inconsistent statement if the statement is not admissible as substantive evidence
o Can impeach any HS declarant whose OCS is admitted as substantive evidence |
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Term
| Impeachment by attacks on witness's character for truthfulness |
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Definition
o Any witness, including any party who testifies (or any HS declarant other than a party opponent) whose OCS is admitted for TOMA puts his or her character for truthfulness and veracity at issue in the case
o Witness’s prior convictions, prior bad acts not having resulted in conviction and opinion or reputation evidence regarding witness’ bad character trait for truthfulness and veracy are ADMISSIBLE to impeach the witness
Offered to prove witness acted in character and lied in the testimony
Witness who has been impeached may be rehabilitated by reputation or opinion evidence
Propensity rule only to truthfulness |
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Term
| prior convictions of witness |
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Definition
- juvenile record doesn't count
- (b) applies if more than 10 years has passed since witness's conviction or release from confinement for it, whichever is later
- allowed IF its probative value is supported by specific facts and circumstances, substantially outweighs its prejudicial effect AND notice
- (a) federal definition of felony
- crime punishable by death or imprisonment for more than one year
- subject to 403 where witness was not D
- must be admitted in a criminal case in whcih witness is D if probative value outweighs prejudicial effects to D
- (a)(2)for any crime regardless of punishment, evidence must be admitted if court can readily determine that establishing the element of the crime required proving a dishonest or false statement (crimes of falsehood: libel/slander, defamation) |
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Term
| sanitize prior convictions |
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Definition
| jury is only told that accused was convicted of felony |
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Term
| manner of proof for prior convictions |
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Definition
May ask if convicted
Cannot go into details
Can prove sentence received
If witness denies conviction, can offer a certified copy of public record
Required to have record before ask the question |
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Term
| Factors determining if prior conviction can be used for impeachment |
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Definition
Nature of conviction
Nature of prior felony
Length of former imprisonment
Age of D
Conduct since prior offense
Impeachment value of the prior – was it a falsehood?
Length of time – conduct since
History since prior
Similarity b/t past and present – can’t use to prove what they did
Importance of D’s testimony – the more important the more probative
Centrality of the credibility |
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Term
| Prior bad acts not having resulted in a conviction |
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Definition
o Court’s discretion may permit witness to be asked about their prior acts that did not result in a conviction, are more probative of untruthfulness
Must have reasonable factual basis for inquiry – must have talked to someone who claims 1st hand knowledge of this act |
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Term
| cross-examination of character witness: inquiry into specific instances for limited purpose |
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Definition
o Can ask character witness about specific instances of the principal witness’s conduct inconsistent with the accuracy of the unfavorable reputation of opinion to which the witness has testified on cross
Limited purpose of impeaching the character witness’s testimony
o In criminal, prosecution may not ask a defense character witness a “guilt-assuming” hypo |
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Term
| Other methods of impeachment |
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Definition
o Impeachment by bias, interest, improper motive, or fear or favor is always permissible
o Right for accused to draw out such facts is implicit in confrontation clause
o May be proved by extrinsic evidence
Cannot impeach on groud that the witness lacks religion nor bolster it by showing witness’s religion |
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Term
| witness's mental and sensory weaknesses |
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Definition
o May be impeached by questioning them about facts probative of either their inability to perceive, remember, or communicate or their weaknesses in those abilities
Can use extrinsic evidence to prove witness was on medication, etc.
Also admissible to prove lacked first hand knowledge
Pyschiatric treatment may be protected |
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Term
| witness's prior inconsistent statements |
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Definition
o Before counsel could ask a witness about the witness’s prior inconsistent statement, counsel had to relate to the witness the time, [lace, and substance of the statement and to whom it was made
If prior statement was in writing, counsel had to show it to the witness before asking
• Counsel is entitled to offer extrinsic proof of prior inconsistent statements only if they concern non-collateral matters
o Non-collateral = material, not just relevant to credibility
o Subjet matter of prior inconsistent statement is non-collateral if that subject matter would have been a proper subject of proof, even if the witness had no testified |
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Term
| contradictory extrinsic evidence |
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Definition
| o When witness with first-hand knowledge of material facts give substantive evidence that conflicts with each other’s, each also impeaches the other’s testimony |
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Term
| Impeachment by experts of learned treatises |
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Definition
| o Counsel has choice of using learned treatises as substantive proof in accordance with requirements or merely to impeach an expert witness by contradiction |
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Term
| If witness's credibility has been impeached you can |
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Definition
o Have witness generally on redirect examination either deny the impeaching facts or explain
o Proving your witness’s prior statements that are consistent with trial testimony
o Calling favorable character witnesses to testify to witness’s good reputation for truthfulness or character witness’s good opinion of witness’s character for truthfulness |
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Term
| If a witness's credibility has been impeached, witness can always |
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Definition
| deny or explain circumstances |
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Term
| witness's prior consistent statements |
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Definition
o May be used when making of consistent OCS at the time it was made logically rebuts the impeachment undertaken (bias, prior inconsistent, or faded memory)
o Substantive use – only impeachment by bias or improper motive can be used – requires that prior statement have been made before the motive to lie allegedly existed |
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Term
| favorable character witnesses as to truthfulness |
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Definition
| o May be employed only when the impeachment constituted an attack on witness’s character for untruthfulness |
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Term
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Definition
competency = whether person can testify
- Parties to case, spouses, atheists, persons convicted of felonies can all testify but information can be used to impeach
o Interest, bias, and prior convictions
o MD – person convicted of perjury may not testify NOT in federal rules |
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Term
| Jury and judge as witnesses |
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Definition
NO
o Juror – object and request the opportunity to do so out of the presence of the jury
o Judge – no objection needed to preserve the point for appeal |
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Term
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Definition
o A party who wishes to impeach a jury verdict based on what happened in the jury room must obtain evidence from non-juror sources
o Fed – inquiry into verdict juror may not testify about any statement made or incident during the jury’s deliberations, effect of anything that or another juror’s vote, or any juror’s mental processes concerning the verdict or indictment |
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Term
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Definition
o Disqualification of parties from testifying – preclude a party to a suit by or against the deceased’s estate from testifying to a transaction with or statement by a person now decesased
Rationale – dead man’s lips are sealed |
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Term
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Definition
Party to a proceeding or against a personal representative, heir, devisee, distribute, or legatee, where judgment may be rendered against or for them, may not testify concerning any transaction with or statement made by the dead or incompetent person, personally or through an agent since dead, unless called to testify by the opposite party, or unless the testimony of the dead or incompetent person has been given already into evidence in the same proceeding concerning the same transaction or statement
• Called by opponent party
• Transaction is applied strictly |
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Term
| Sequestration of witnesses |
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Definition
rule against witnesses, given just before opening statements
MD - identification witness may be excluded prior to accused's presence in court |
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Term
| exceptions to sequestration of witnesses |
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Definition
o Parties may not be sequestered (5th and 14th amendment DP, 6th in criminal)
o If party is a corporation or other non-natural person, an officer or employee may stay in court as its representative
o Person whose presence is needed in court (expert, etc.)
o Crime victim must not be excluded from a court proceeding unless clear and convincing evidence that victim’s testimony would be changed if victim were allowed to hear others
o MD
Victim of a crime of violence
Child witness – support person |
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Term
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Definition
• Jury may rely on set life experiences and understanding with which jury comes into courtroom
o Must be able to rely on this information
o Jury may NOT supplement information |
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Term
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Definition
o May be taken either by court sua sponte or at the request of a party
o Judge may take judicial notice of
Legislative facts (law and relevant policy considerations)
Adjudicative facts (who did what, when, where, why and how)
o Legislative facts
Case law and enacted law
Policies
o Law
Judge reads law ot jury
o Other legislative facts
Can argue policy ramifications w/o meeting evidentiary standards |
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Term
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Definition
o Facts not subject to reasonable dispute and that are generally known within the trial court’s jurisdiction by person’s of average intelligence
Everyone knows that
o Facts not subject to reasonable dispute and that are capable of ready determination by resort to sources whose accuracy cannot reasonably be questioned
Look it up |
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Term
| Rebuttable presumptions in civil cases initial effect |
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Definition
| In civil, in criminal cases when offered by defense, under rebuttable presumption proof of b.f. serves as sufficient proof to the p.f. to shift the burden of production as to the fact |
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Term
| absent evidence rebutting the presumptions... |
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Definition
| "If you find b.f. then you may presume P.F." |
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Term
| when the presumed fact is rebutted (in MD and fed) |
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Definition
| if b.f. is logically probative of p.f. instruction is if you find b.f. then you may find p.f. |
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Term
| In a civil case, if P shifts burden of production to D and D doesn't meet it |
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Definition
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Term
| test for basic fact and presumed fact |
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Definition
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Term
|
Definition
| ask witness to give narrative |
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Term
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Definition
objection is appropriate when counsel for one party has already asked the same witness the same question and received a response to it but asks again
court gives more leeway to cross-examiner when witness does not appear to be forthcoming |
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Term
| leading question can be permitted... |
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Definition
to refresh witness's memory
bring witness to appropriate subject matter
background information regarding witness
preliminary matters such a laying the foundation for particular evidence
other matters not really in dispute
as neessary, when witness has been shown to be inarticulate due to youth or some other reason
counsel may lead an adverse party on direct |
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Term
| assuming fact not in evidence |
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Definition
| assume truth of an underlying fact not yet proved in evidence or admitted by witness's testimony --> objectionable |
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Term
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Definition
|
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Term
| harassing or badgering the witness |
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Definition
usually also subject to the objection asked and answered
may also be subject to the objection that counsel is venturing into irrelevant matters |
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Term
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Definition
objection is appropriate when counsel is apparently arguing with and harassing the witness
when counsel asks witness to draw a legal conclusion to which witness cannot properly testify |
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Term
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Definition
what counsel says is not evidence unless it is confirmed by the witness
- counsel may not use the opportunity of having a witness on the stand to simply make statement's of counsel's own |
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Term
| objections, cure improper form by rephrasing |
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Definition
at deposition, objections to the form of the question must be made at the time of deposition or are waived
objection on other grounds (relevancy/HS) are not waived if not made |
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Term
| Motion to strike on ground that answer was nonresponsive |
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Definition
only counsel who asked the question may move to strike witness's answer or part of it on ground it was nonresponsive
opposing may strike on other grounds |
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Term
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Definition
| appellate counsel must argue that error was so outrageous that even though trial counsel did not object, trial judge should have objected sua sponte, and error deprived appellate client of DP |
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Term
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Definition
in order to have apellate court review an alleged error in the exclusion of evidence, proponent must
1. put the substance of the excluded evidence on record by making an offer of proof
2. explain permissible purpose |
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Term
| when offer of proof is not required |
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Definition
not required when the substance of the evidence was apparent from the context within which questions were asked
- question to which the objection was sustained was leading
- witness's answer was given but stricken from the record |
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Term
| Error in admission of evidence |
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Definition
- make timely objection or motion to strike
- in federal court, not in md, counsel must also articulate specific grounds
- if motion is granted, may request judge to instruct jury to disregard (mistrial if it's a huge error)
- if denied, may request limiting jury instruction |
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Term
| "right for the wrong reason" |
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Definition
| wrong grounds for objection but right ruling is fine |
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Term
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Definition
must be made at trial as soon as ground for objection is apparent
- court has discretion to grant an untimely motion or to sustain an untimely obejtion |
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Term
| waiver of objection possible - after a motion in limine |
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Definition
once court rules definitely on the record a party need not renew an objection or offer of proof to preserve a claim of error for appeal
- in MD must renew if motion in limine to exclude evidence was denied |
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Term
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Definition
| if object once to evidence and objection is overruled in state court, generally still need to object every time similar evidence is offered - continuing objection to a particular line of questioning |
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Term
| confirming evidence is a waiver |
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Definition
| waive that objection by confirming the objected to evidence with your witness |
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Term
| relevance conditioned on fact |
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Definition
| when relevance of evidence depends on fulfillment of condition of fact the court shall admit it upon the introduction of evidence sufficient to support a finding by the trier of face that the condition has been filled |
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Term
| jury determines issue when |
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Definition
| evidence allows jury to reasonably conclude that fulfillment of condition is not established |
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Term
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Definition
| courts cannot allow persons who are legally incompetent to testify even if rules of evidence are generally applicable |
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Term
| limited circumstances for leading questions on direct |
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Definition
judge's discretion - develop witness testimony
hostile witness
adverse party
witness identified with adverse party |
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Term
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Definition
- can only ask questions within direct exam
- impeachment/credibility of witness
judge has discretion to expand |
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Term
| opinion testimony by lay witness |
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Definition
can use if rationally based on perception and helpful to jury
cannot be based on scientific, technical, or specialized knowledge |
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Term
| factors for testimonial statements |
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Definition
- objectively consider solemn declaration
- on going emergency
- asked something to elicit statement to resolve situation
- formality |
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Term
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Definition
| testimonial - Melandez-Diaz |
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Term
| Md. v. federal impeachment |
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Definition
- in maryland one test "probative value of admitting the evidence must outweigh the danger of unfair prejudice to witness or objecting party"
- infamous crimes or other crimes relevant
- do not admit convictions over 15 years |
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Term
| impeachment by evidence of a criminal conviction in fed |
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Definition
- more than 10 years? conviction or release (later) --> specific facts and circumstances, substantially outweigh prejudicial effect
- if not then felony then crime of falsehood?
- no, then if witness is accused must show probative value outweighs prejudicial effect |
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