Download Evidence Law: Relevance, Authentication, Witnesses, and Privileges and more Exams Law of Evidence in PDF only on Docsity!
Evidence: Relevance: Generally CORRECT ANSWERS✅ Evidence is relevant if it makes material fact more probable -Judge can exclude if prejudicial value outweighs benefit: *Confuse issue. *Mislead jury. *Undue delay. *Waste of time *Unduly cumulative. Evidence: Relevance: Similar Occurrences CORRECT ANSWERS✅ Six areas: -Can't show P's accident history unless P's injuries at issue -Can only show very similar accidents involving D if to show: 1. Dangerous condition. 2. Causation of accident at issue. 3. Prior notice to D -Similar occurrences admissible to raise inference of intent -Can show comparable sales to determine issue of value -Can use to show habit: Always, invariably, automatically -Industrial custom as standard of care
Evidence: Relevance: Policy Based Exclusionary Rule CORRECT ANSWERS✅ Five areas: -Liability insurance: Can only use to show ownership/control or to impeach witness -Subsequent Remedial Measure: Can only use to show control, feasibility if controverted by D -Settlement in Civil: Can't use settlement, offer to settle, facts stated, unless for impeachment or in subsequent criminal -Plea Bargain in Criminal: Offer, withdrawal, nolo contender, statement of fact made during these, are all inadmissible. -Offer to pay hospital bills inadmissible Evidence: Relevance: Character Evidence: Criminal: D's Character CORRECT ANSWERS✅ D may introduce character and reputation, opens the door -D's character trait is never an element in crime for bar -Can only testify to character trait relevant to crime -No general law abiding evidence Evidence: Relevance: Character Evidence: Criminal: D's Character: Prosecution Rebuttal CORRECT ANSWERS✅ When D opens the door, P may rebut by: have you heard/ did you know -Must have good faith rationale
Evidence: Relevance: Character Evidence: Other Crimes CORRECT ANSWERS✅ Other Crimes not admissible if propensity is the goal -UNLESS (MIMIC): *Motive *Intent (state of mind) *Mistake (show not a mistake) *Identity (closeness in time/place) *Common Scheme or Plan (similar to identity) -Conviction=Proof -Otherwise need sufficient evidence from which reasonable juror -Judge can still say prejudice outweighs -MIMIC can be used in fraud or assault Evidence: Relevance: Character Evidence: Sexual Misconduct Propensity CORRECT ANSWERS✅ Prior sexual assault or child molestation can be used for any relevant purpose Evidence: Authentication of Writing: Generally CORRECT ANSWERS✅ Document admissible if judge things reasonable juror would think original -Methods -Self Authenticating Documents -Photographs Evidence: Authentication of Writing: Methods CORRECT ANSWERS✅ Methods
-Witness -Proof of handwriting (Some familiarity, expertise) -Ancient document rule *At least 20 years old, free of suspicion, found in place of natural -Solicited Reply Document *Receive document in response to prior communication Evidence: Authentication of Writing: Self Authenticating Docs CORRECT ANSWERS✅ Self Authenticated Documents (Burden shifted to other side) *Official publication (gov) *Certified copies of public or private records (deed) *Newspaper periodicals *Labels or trade inscriptions *Acknowledged document *Commercial paper (promissory note, check) Evidence: Authentication of Writing: Photographs CORRECT ANSWERS✅ -Witness may testify that "photograph is fair and accurate" -Just has to have personal knowledge Evidence: Best Evidence Rule CORRECT ANSWERS✅ If seek to prove contents of writing, must present original or excuse -Applies when: *Writing is legally operative document (deed, patent, mortgage)
Evidence: Witnesses: Generally CORRECT ANSWERS✅ -Competency -Leading Questions -Using Writing *Refreshing Recollection *Past Recollection Recorded -Opinion Testimony *Lay *Expert Cross Examination Credibility and Impeachment Evidence: Witnesses: Competency CORRECT ANSWERS✅ -Personal knowledge -Oath or affirmation -Dead man's statute *Some states don't allow those with interest against estate to testify about estate Evidence: Witnesses: Leading Questions CORRECT ANSWERS✅ Isn't it a fact that..." -Generally not allowed on direct. Unless: *Preliminary matters *Youthful or forgetful witness *Hostile -Generally allowed on cross
Evidence: Witnesses: Using Writing: Refreshing Recollection CORRECT ANSWERS✅ Refreshing recollection -Can't read from prepared memo (must be memory) -If memory fails, can show memo to jog (any writing) -Can't read refresher into evidence -Adversary can inspect, cross examine, introduce into evidence Evidence: Witnesses: Using Writing: Past Recollection Recorded CORRECT ANSWERS✅ Past Recollection Recorded (Hearsay exception) -Showing writing fails to jog memory -Witness has personal knowledge at former time -Writing either made by witness or adopted -Making or adopting occurs while event was fresh -Witness can vouch for accuracy of writing -Can be read into record, not evidence -Opponent can see the memo Evidence: Witnesses: Opinion Testimony: Lay CORRECT ANSWERS✅ Lay person can testify as to opinion if: -Rationally based on witness perception (personal knowledge) -Opinion will be helpful in deciding pertinent fact (drunk, sober, speeding, sane, insane) Evidence: Witnesses: Opinion Testimony: Expert CORRECT ANSWERS✅ Need -Education or experience
*Character for Truthfulness -Rehabilitation Evidence: Witnesses: Credibility and Impeachment: Bolster/impeach Own Witness CORRECT ANSWERS✅ -Bolster own witness *Can't do it until credibility has been attacked *Witness can't reiterate prior consistent statement *Can say I picked him out of lineup Impeachment of own witness *Allowed without limit Evidence: Witnesses: Credibility and Impeachment: Impeachment Methods: Prior Inconsistent Statement CORRECT ANSWERS✅ -Only for impeachment unless prior statement under oath, then evidence -Witness must have ability to address statement. -If witness is opposing party, this can be evidence Evidence: Witnesses: Credibility and Impeachment: Impeachment Methods: Bias, Interest or Motive to Misrepresent CORRECT ANSWERS✅ -Party, friend, relative or employee of party -Expert witness being paid -Person with grudge -Court decides if witness must be confronted on stand -You can prove bias through extrinsic evidence
Evidence: Witnesses: Credibility and Impeachment: Impeachment Methods: Sensory Deficiencies CORRECT ANSWERS✅ -Anything that could effect perception or memory -No confrontation required -Can use extrinsic evidence Evidence: Witnesses: Credibility and Impeachment: Impeachment Methods: Character for untruthfulness CORRECT ANSWERS✅ -Any witness. -Can use criminal convictions and bad acts -Extrinsic evidence required for convictions *Felony or misdemeanor if prosecution was required to prove false statement as element of crime. *If conviction did not require proof of false statement, it must be felony *Conviction or release must be within 10 Proving -Ask witness to admit -Introduce record of conviction with intrinsic Inquiry about Bad Acts -Confrontation -No extrinsic evidence -Must have good faith basis -Must involve deceit or lying (not assault)
-No third party listening Attorney must be member of the bar or client reasonably believes -Can be representative of attorney Client -Includes person seeking to become client. Doesn't have t retain -Can be representative of client Waiver -Voluntary -Only client has power. -Survives death of client Subject matter -Partial waiver will waive other parts:
- If the partial disclosure is intentional
- If the disclosed and undisclosed concern same
- If fairness requires they be considered together Inadvertent waiver -Does not waive privilege if reasonable steps Exceptions -Future crime or fraud
-Client puts legal advise at issue -Attorney client dispute, unpaid fees Evidence: Privileges: Doctor Patient CORRECT ANSWERS✅ -Confidential communication or information -For purpose of diagnosis or treatment of medical condition -Also applicable for psychotherapist or social worker -In federal actions solely on federal law, no psychotherapy -Can't have third party present if does not relate to medical treatment/diagnosis no privilege Exception -If patient puts physical/mental at issue Evidence: Privileges: Husband Wife CORRECT ANSWERS✅ Spousal Immunity- Criminal Cases Only -A spouse not compelled to testify against D spouse -Witness spouse can waive -Have to be married at time of trial Confidential Communication -In any type of case a spouse without consent cant disclose confidential communication -Both hold privilege -Statement or acts
-Fine if oral, under oath and during trial, hearing, deposition -Fine if being used now to rebut fabrication, motive, influence Evidence: Hearsay: Party Admissions CORRECT ANSWERS✅ Any statement made by party if it is offered against party for truth -Made by party -Is it offered against his interest Vicarious party admissions -Statement by agent/employee is admissible against principal/employer if concerns matter within scope of agency/employment and made during same Evidence: Hearsay: Criminal Right of Confrontation CORRECT ANSWERS✅ Prosecution may not use exception if: -Statement is testimonial *Grand jury *Statement made in response to police interrogation if point was to prove events relevant to criminal prosecution *Non testimonial if enabled police to meet emergency *Documents *Affidavits prepared for use are testimonial *Business record are non testimonial *Police reports prepared for prosecutorial purposes are testimonial Evidence: Hearsay: Exceptions CORRECT ANSWERS✅ -Forfeiture
-Unavailable Witness (Can't use if witness is available) *Former Testimony *Statement against interest *Dying Declaration -Spontaneous Statements (Unavailability not required) *Excited utterance *Present Sense Impression *Present State of Mind *Declaration of Intent *Present Physical Condition *For purpose of medical treatment or diagnosis *Business records Evidence: Hearsay: Exceptions: Forfeiture CORRECT ANSWERS✅ -Hearsay admissible if Ds wrongdoing made unavailable -Court must find preponderance of the evidence that D's conduct was motivated to prevent witness from testifying -D forfeits both hearsay exception and 6th Amendment objection Evidence: Hearsay: Exceptions: Unavailable Witness: Former Testimony CORRECT ANSWERS✅ -Unavailable witness -Testimony given at former proceeding or deposition -Against party who had an opportunity and motive to cross examine or develop testimony of witness -With issue in both proceedings essentially the same
Evidence: Hearsay: Exceptions: Spontaneous Statements: Present Sense impression CORRECT ANSWERS✅ A description of an event made while the event is occurring -Declarent doesn't have time to fabricate -Don't need startling event -Doesn't matter if declarent available Evidence: Hearsay: Exceptions: Spontaneous Statements: Present State of Mind CORRECT ANSWERS✅ Contemporaneous statement about matter to which declarant has unique knowledge -State of mind -Feelings -Emotions Evidence: Hearsay: Exceptions: Spontaneous Statements: Declaration of Intent CORRECT ANSWERS✅ -Statement of intent to do something in the future Evidence: Hearsay: Exceptions: Spontaneous Statements: Present Physical Condition CORRECT ANSWERS✅ -To anyone about declarant current physical condition -Can't be backward looking Evidence: Hearsay: Exceptions: Spontaneous Statements: Medical Diagnosis CORRECT ANSWERS✅ Statement made to anyone concerning: -Past symptoms -Present symptoms
-General cause of condition -If made for purpose of medical treatment and diagnosis Evidence: Hearsay: Exceptions: Spontaneous Statements: Business Records CORRECT ANSWERS✅ Records of public office or agency setting fort: *Activities of the office or agency *Matters observed pursuant to legal duty *Finding of fact or opinion resulting from an investigation authorized by law *We don't allow police report prepared for prosecutorial purposes. Bias. Evidence: Hearsay: Exceptions: Impeachments CORRECT ANSWERS✅ Any method may be used to attack credibility of a hearsay declarant whose statement was admitted into evidence (E) EXAM CHECK LIST CORRECT ANSWERS✅ Objections Purpose (Why)
- Relevance
- Policy
- Character
- Impeachment Presentation (How)
- Testimony
- Document
- Jud. Notice Hearsay
