Term
| Rule 702. Testimony by Experts |
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Definition
| If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. |
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Term
| Rule 703. Basis of Opinion Testimony by Experts |
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Definition
| The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. |
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Term
| Rule 801. Definitions ***** |
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Definition
The following definitions apply under this article:
(a) Statement.
A "statement" is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion.
(b) Declarant.
A "declarant" is a person who makes a statement.
(c) Hearsay.
"Hearsay" is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.
(d) Statements which are not hearsay.
A statement is not hearsay if--
(1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent with the declarant's testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or (B) consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive, or (C) one of identification of a person made after perceiving the person; or
(2)Admission by party-opponent. The statement is offered against a party and is
(A) the party's own statement, in either an individual or a representative capacity or
(B) a statement of which the party has manifested an adoption or belief in its truth, or
(C) a statement by a person authorized by the party to make a statement concerning the subject, or
(D) a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, or
(E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.
The contents of the statement shall be considered but are not alone sufficient to establish the declarant's authority under subdivision (C), the agency or employment relationship and scope thereof under subdivision (D), or the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered under subdivision (E). |
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Term
| Rule 802. Hearsay Rule ***** |
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Definition
| Hearsay is not admissible except as provided by these rules or by other rules prescribed by the Supreme Court pursuant to statutory authority or by Act of Congress. |
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Term
| Rule 803, what are the 23 exceptions to the hearsay rule? |
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Definition
(1) Present sense impression.
(2) Excited utterance.
(3) Then existing mental, emotional, or physical condition.
(4) Statements for purposes of medical diagnosis or treatment.
(5) Recorded recollection.
(6) Records of regularly conducted activity.
(7) Absence of entry in records kept in accordance with the provisions of paragraph
(8) Public records and reports.
(9) Records of vital statistics.
(10) Absence of public record or entry.
(11) Records of religious organizations.
(12) Marriage, baptismal, and similar certificates.
(13) Family records.
(14) Records of documents affecting an interest in property.
(15) Statements in documents affecting an interest in property.
(16) Statements in ancient documents.
(17) Market reports, commercial publications.
(18) Learned treatises.
(19) Reputation concerning personal or family history
(20) Reputation concerning boundaries or general history.
(21) Reputation as to character.
(22) Judgment of previous conviction.
(23) Judgment as to personal, family or general history, or boundaries. |
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Term
| Rule 702 - what five things must you have to allow testimony by experts |
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Definition
| Knowledge, skill, experience, training, education |
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Term
| What is C.V.? & why do you need it? |
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Definition
| Curriculum Vitae - "course of life" - resumé. Sets up the persons experience, education, expertise, etc. |
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Term
| In a federal court expert witness designation what 3 things must also be included? |
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Definition
1) expert basis of testimony
2) how much expert is being paid
3) all other cases the expert has testified in |
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Term
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Definition
| a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. |
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Term
| When are dying declarations admissible in criminal cases? |
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Definition
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Term
| What are the three types of admissions and when are they admissible in what court? |
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Definition
| 1) Positive admission - verbal or pysical admission to the crime - admissible in criminal and civil court 2) Negative “plead the fifth” – not admissible criminally but possibly admissible civilly 3)Standing silent – not admitting guilt or denying – admissible civilly but not criminally |
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Term
| Rule 703 How do expert witnesses get other depositions or reports by other witnesses into court? |
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Definition
| Evidence "of a type resonably relied upon by experts in...the forming of opinions or inferences..." |
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Term
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Definition
| The Bruton Rule prohibits the introduction of a nontestifying codefendant's confession in a joint trial where the confession inculpates the defendant |
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Term
| List and explain 5 accepted reasons for unavailability |
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Definition
1)Former testimony
2)Statement under belief of impending death
3)Statement against interest
4)Statement of personal or family history
5)Forfeiture by wrongdoing. |
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Term
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Definition
| Res gestae (Latin "things done") is a term found in substantive and procedural American jurisprudence and English Law |
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Term
| What is present sense impression? |
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Definition
| A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter. |
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Term
| What is excited utterance? |
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Definition
| A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition. |
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Term
| What is "then existing mental, emotional, or physical condition"? |
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Definition
| A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will. |
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Term
| What is "Statements for purposes of medical diagnosis or treatment"? |
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Definition
| Statements made for 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
| In terms of rule 803, what is recorded recollection? |
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Definition
| A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness' memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party. |
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Term
| Explain records of regularly conducted activity. |
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Definition
| A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business...all as shown by the testimony of the custodian or other qualified witness... |
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Term
| Explain public records and reports as they pertain to rule 803. |
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Definition
| Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, or (C) in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness. |
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Term
| Explain family records as they pertain to rule 803. |
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Definition
| Statements of fact concerning personal or family history contained in family Bibles, genealogies, charts, engravings on rings, inscriptions on family portraits, engravings on urns, crypts, or tombstones, or the like. |
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Term
| What are records of documents affecting interest of property as it relates to rule 803. |
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Definition
| The record of a document purporting to establish or affect an interest in property, as proof of the content of the original recorded document and its execution and delivery by each person by whom it purports to have been executed, if the record is a record of a public office and an applicable statute authorizes the recording of documents of that kind in that office. |
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Term
| What are statements in documents affecting an interest in property as they pertain to rule 803? |
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Definition
| A statement contained in a document purporting to establish or affect an interest in property if the matter stated was relevant to the purpose of the document, unless dealings with the property since the document was made have been inconsistent with the truth of the statement or the purport of the document. |
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Term
| Explain statements in ancient documents as they relate to rule 803. |
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Definition
| Statements in a document in existence twenty years or more the authenticity of which is established. |
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Term
| What are learned treatises in regards to rule 803? |
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Definition
| To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits. |
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Term
| What is reputation concerning boundaries of general history in regards to 803. |
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Definition
| Reputation in a community, arising before the controversy, as to boundaries of or customs affecting lands in the community, and reputation as to events of general history important to the community or State or nation in which located. |
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Term
| What is reputation as to character in regards to rule 803? |
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Definition
| Reputation of a person's character among associates or in the community. |
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Term
| When is it ok for a hearsay statement about a subjects pain and suffering, within days, weeks, or months of the incident to be allowed? |
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Definition
| During a statement for purpose of medical diagnosis or treatment. |
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Term
| What is the definition of a "statement"? |
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Definition
| (1)an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion. |
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Term
| Give 2 examples of statements which are not hearsay |
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Definition
(1) Prior statement by witness.
(2)Admission by party-opponent. |
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Term
| What is the "Best evidence rule"? |
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Definition
| If the evidence is a document or recording, generally it must be the original. |
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Term
| What is the "voluminous document rule"? |
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Definition
| The voluminous document rule states that you can have a witness prepare and testify to a summary of the voluminous document (medical summaries, billing summaries, etc). |
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Term
| Are summaries (speradsheets) of bills, payments, invoices, etc. allowed to be introduced into evidence? |
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Definition
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Term
| Are summaries of medical statements or records admittible as evidence? |
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Definition
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Term
| What is the "parole Evidence Rule"? |
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Definition
| The terms of a written contract cannot be changed or altered by oral or written agreements or statements made prior to signing. |
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Term
| Are oral statements made in the observation of witnesses that contradict the contract before the contract is signed admissible? |
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Definition
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Term
| What is the exception to the "Parole Evidence Rule"? |
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Definition
| if the contract is changed AFTER signing by written or oral agreement showing MODIFICATION to the contract. Unless the contract has a statement about changes must be in writing and signed. |
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Term
| When can the Parole Evidence Rule be used and not used as an objection. |
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Definition
| Parole evidence rule only may be used as an objection when dealing with contract defenses. This rule cannot be used to defend any other action, such as Fraud, Duress, undue influence, etc. |
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Term
| What two prong test is part of the "Daubert Rule"? |
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Definition
| 1) the relevencey prong 2) the reliability prong. |
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Term
| Which rule does not require proof of unavailability as it pertains to hearsay? |
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Definition
Rule 803
***List 6-10 of the exceptions. *** |
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Term
| Under which rule must you prove unavailability of a witness for hearsay exceptions? |
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Definition
Rule 804
***list 3-4 exceptions*** |
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Term
| List the hearsay exceptions under rule 804 that require proof of unavailability: |
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Definition
1) Former testimony
2) Statement under belief of impending death
3) Statement against interest
4) Statement of personal or family history
5) Forfeiture by wrongdoing |
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Term
| What admissions are characterized under Rule 801? |
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Definition
1) admission by the accused (must be voluntary and they must be mirandized (if in custody))
2) Admission by silence
3) co-conspirator admission (see Bruton Rule) |
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Term
| Can head-nodding, head-shaking, and physical gestures be taken as a statement? |
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Definition
| Yes, they are all technically non-verbal means of communicating and can be considered a statement. |
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Term
| What is the subpoena jurisdiction through the district court? |
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Definition
| The entire state od Wyoming and 100 miles outside of it's borders. |
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Term
| Under rule 804. what is the definition of "unavailability as a witness" and which situations are accepted as unavailable for the declarant? |
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Definition
(1) is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant's statement; or
(2) persists in refusing to testify concerning the subject matter of the declarant's statement despite an order of the court to do so; or
(3) testifies to a lack of memory of the subject matter of the declarant's statement; or
(4) is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or
(5) is absent from the hearing and the proponent of a statement has been unable to procure the declarant's attendance (or in the case of a hearsay exception under subdivision (b)(2), (3), or
(4), the declarant's attendance or testimony) by process or other reasonable means.
A declarant is not unavailable as a witness if exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of a statement for the purpose of preventing the witness from attending or testifying. |
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Term
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Definition
| A "statement" is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion. |
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Term
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Definition
| A "declarant" is a person who makes a statement. |
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Term
| Is failing to demand or object to the introduction of evidence of 2 other murders and sexual assault incompetence of counsel? |
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Definition
| Yes, see Proffit V. Wyoming (2008) 114 |
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Term
| Can an attorney ask a witness whether another witness lies? |
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Definition
| No. See Jensen V. State (2008) WY 85, State V. Diggs (2001) Kan. 349, Proffit V. Wyoming (2008) 14 |
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Term
| Describe the plain error process. |
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Definition
| 1) There must be an error or defect that the appellant has not affirmatively waived; 2) It must be clear or obvious; 3) It must have afected the appellants substantial rights; 4) If the three other prongs are satisfied, the court of appeals has the discretion to remedy the error if it seriously effects the fairness, integrity, or public erputation of judicial proceedings. |
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Term
| What three things make the foundation for allowing expert testimony? |
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Definition
| (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. |
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