Term
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Definition
| If the E has any tendency to make a material fact more or less probable thant would be the case without the evidence |
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Term
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Definition
| Relevant if 1) P's prior accidents and P's injury is at issue, 2) involved the same instrumentality or condition and existence of a dangerous condition, causeation of accident, or prior notice to D, 3) intent in issue, 4) comparable sale on issue of value, 5)habit, 6) industrial custom as standard of care |
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Term
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Definition
| Repetitive response to a particular set of circumstances, identifiable by the frequency of conduct and particularity. Admissible as circumstantial evidence of how the person acted on the occasion at issue |
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Term
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Definition
| Liability insurance, subsequent remedial measures, settlements of disputed civil claims if there is a claim of dispute at the time of the discussion unless the info = stmt of facts to gvt agency (NOT IN NC), plea bargaining in criminal cases, offer to pay hospital or medical expenses but does not exclude the facts related |
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Term
| D's character in a criminal case |
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Definition
| Not admissible during the prosecution's case in chief. D can introduce character evidence but it must be relevant and established through reputation or opinion testimony. Opens the door to pros's rebuttal, where they can use specific acts |
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Term
| Victim's character in a self-defense case |
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Definition
| Criminal D may introduce evidence of victim's violent character to prove victim's conduct in conformity but not with specific acts. Pros can rebut with evidence of victim's good character (FRE adds D's violent character) |
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Term
| Victim's character in a sexual misconduct case |
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Definition
| R/O evidence about the victim's sexual propensity or specific sexual behavior is inadmissible unless 1) specific sexual behavior of the victim to prove the someone other than the D was the source of semen or injury, 2) victim's sexual activity with the D if the defense of consent is asserted, or 3) where exclusion would violate D's right of due process |
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Term
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Definition
| Not allowed unless it is an essential element of a claim or defense, i.e. negligent hiring, negligent entrustment, defamation, child custody dispute. Can be proved by reputation, opinion, and specific acts |
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Term
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Definition
| Not allowed unless it is an essential element of a claim or defense, i.e. negligent hiring, negligent entrustment, defamation, child custody dispute. Can be proved by reputation, opinion, and specific acts |
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Term
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Definition
| Admissible for MIMICS: Motive, Intent, Mistake (Lack thereof), Identity, Common scheme or plan. In NC cannot prove through conviction. 403 still applies. |
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Term
| D's sex character sex crime or civil action |
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Definition
| FRE only. Prior specific sexual misconduct of the D is admissible as part of the case in chief of the prosecution or of the plaintiff to show D's propensity for sex crimes. Cannot use reputation or opinion evidence. |
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Term
| Methods of Authentication |
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Definition
| Witness' personal knowledge, proof of handwriting by lay person with familiarity with handwriting, expert comparison, jury comparison |
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Term
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Definition
| Authenticity may be inferred if doc is 1) at least 20 years old, 2) facially free of suspicion, 3) found in a place of natural custody |
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Term
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Definition
| Doc can be authenticated by evidence that it was received in response to a prior communication to the alleged author |
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Term
| Self-Authenticating Documents |
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Definition
| Presumed authentic: official publications, certified copies of public or private records on file in public office, newspapers or periodicals, trade inscriptions and labels, acknowledged document, or commercial paper |
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Term
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Definition
| A party who seeks to prove the contents of a writing must eithe rprodcue the original writing or provide an accepable excuse for its absence. Applies when the party is seeking to prove the contents of the writing, i.e. a legally operative document |
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Term
| Excuses for non-production of original doc (BER) |
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Definition
| 1) lost or cannot be found with due diligence, 2) destroyed without bad faith, 3) cannot be obtained with legal process, 4) ct must be persuaded by preponderance of the evidence that excuse has been established |
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Term
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Definition
| Voluminous records, certified copies of public records, collateral docs |
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Term
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Definition
| FRE: does not apply. NC: Interested W incompetent only if the T concerns an oral comm between the W and decedent unless the identity of a motor vehicle. Other states: interested W is incompetent to testify in support of her own interest against the estate of a decedent concerning communications between the interested W and the decedent |
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Term
| When leading questions are allowed on direct |
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Definition
| 1) preliminary introductory questions, 2) youthful or forgetful W, 3) hostile, 4) adverse party or person under control |
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Term
| Adversary's rights when recollection is refreshed |
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Definition
| 1) to inspect the memory-refresher, 2) to use it on cross examination, 3) to introduce into evidence |
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Term
| Foundation for past recollection recorded |
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Definition
| 1) showing writing to W fails to jog memory, 2) W had personal knowledge at former time, 3) W was either made by W or adopted by W, 4) Making or adoption occurred while writing was fresh in W's memory, 5) W can vouch for accuracy of writing when made or adopted |
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Term
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Definition
| Admissible if 1)rationally based on W's perception and 2) helpful to jury in deciding a fact |
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Term
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Definition
| Must be based on reasonable degree of probability or reasonable certainity. |
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Term
| Permissible data sources for basis of expert opinion |
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Definition
| 1) personal knowledge, 2) Other evidence in the trial record, 3) facts outside the record if of the type reasonably relied upon by experts in the particular field in forming opinions |
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Term
| NC qualifications for med mal expert |
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Definition
| 1) specialist in the same field as D and 2) during year prior to the incident at issue, expert must have spent majority of time in clinical practice or as instructor at med school |
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Term
| Disclosure of the basis of expert opinion |
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Definition
| FRE: Can only disclose what was relied on, not the actual contents of the out of court material. NC: Expert may disclose the content of out of court material if: 1) reliable, 2) sole purpose is to show basis of opinion to aid jury in evaluating expert's credibility, and 3) limiting instructions are given to the jury to safeguard against jury's misuse of the material as substantive evidence |
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Term
| Reliability of Basis of Expert Opinion |
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Definition
| FRE: Gatekeeper approach (Testing of principles or methodology, Rate of error, Acceptance by other experts in same discipline, Peer review and publication). NC: Discretion approach |
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Term
| Learned treatise in Aid of Expert Testimony |
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Definition
| On direct of party's own expert: revelant portions of treatise may be read into evidence as substantive evidence if established as reliable authority, 2) On cross of opponent's expert: read into evidence to impeach and contradict opponent's expert. Can come in as substantive evidence. Cannot be introduced as exhibit |
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Term
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Definition
| Only a proper objection if expert seeks to give direct opinion that D did or did not have relevant mental state |
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Term
| Scope of cross examination |
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Definition
| FRE: matters within the scope of direct and matters that test the W's credibility. NC: Cross is not limited to the scope of the direct examination |
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Term
| Bolstering your own witness |
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Definition
| Cannot, unless W's credibility has been attached, unless W's prior ID of a person if W is testifying at trial |
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Term
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Definition
| 1) PIS, 2) Bias, 3) Sensory Deficiencies, 4) Bad Reputation or Opinion about W's character for truthfulness, 5) Criminal convictions, 6) Bad acts that reflect adversely on truthfulness, and 7) Contradiction |
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Term
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Definition
| FRE: PIS may be used as substantive evidence if the smt was mad under oath as part of a formal proceeding. NC: Only if it was in a depo. |
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Term
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Definition
| FRE: Must confront at some point unless party opponent. NC: Do not have to confront. |
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Term
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Definition
| Only method that you MUST confront before using extrinsic evidence to prove. NC: Must be told of circumstances or stmts that allegedly show bias and given immed opportunity to explain or deny |
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Term
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Definition
| No confrontation req. Extrinsic evidence is allowed. |
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Term
| Bad reputation or Opinion about W's character for truthfulness |
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Definition
| No confrontation req. Extrinsic evidence is allowed, but no specific acts |
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Term
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Definition
| FRE: 1) a false stmt was an element of the crime, 2) felony (w/in the ct's discretion) within 10 years of trial unless the probative value on credibility is substantial. Prove by confrontation or EE. NC: Any type of conviction if crime was punishable by more than 60 days of confinement, but still have 10 year limit. |
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Term
| Bad acts without conviction |
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Definition
| Only done by confrontation on cross. Must have a good faith basis for the inquiry and permission to make the inquiry is subject to the ct's discretion. |
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Term
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Definition
| Extrinsic evid is not allowed if the fact at issue is collateral |
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Term
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Definition
| Showing W's good character for truthfulness- only when clearly suggested W is lying. Prior consistent stmt to rebut a charge of recent fabrication- not HS. Stmt must have been made prior to the motive to fabricate arising. FRE: admissible as substantive evidence, but not in NC |
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Term
| Elements of Attorney-Client Privilege |
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Definition
| 1) Confidential communication, 2) Between atty and client or rep of either, 3) Made during a professional legal consultation, 4) Unless privilege is waived or 5) an exception is applicable |
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Term
| FRE applies in all federal court actions except in 3 situations... |
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Definition
| 1) privileges, 2) competency, and 3) burdens of proof and presumptions |
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Term
| Scope of confidential communications |
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Definition
| Client must intend confidentiality. Privilege does not apply to client's knowledge of the underlying facts, pre-existing documents, or physical evidence. |
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Term
| Confidentiality with joint clients |
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Definition
| Privileged as to third parties, but if the two clients later have a dispute with each other concerning the common interest, privilege does NOT apply between them |
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Term
| Who counts as an attorney, client, or rep for confidentiality? |
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Definition
| Atty = any person the client reasonably believes is a member of the bar. Rep = any agent reasonably necessary to facilitate the provision of legal services. Client = any person seeking to become a cleint. Privilege attaches at the outset of formal consultation with the attorney even if the client does not retain the attorney. |
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Term
| Waiving the attorney client privilege |
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Definition
| 1) voluntarily by the client, 2) Subject matter waiver and 3) Inadvertent waiver |
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Term
| Subject matter waiver of A-C privilege |
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Definition
| A voluntary waiver of the privilege as to some communications will also waive privilege as to other communications if 1) upon intentional partial disclosure, 2) the disclosed and undisclosed communications concern the same subject matter and 3) fairness requires the disclosed and undisclosed communications be considered together |
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Term
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Definition
| Does not waive so long as the privilege holder 1) took reasonable steps to prevent the disclosure and 2) takes reasonable steps to correct the error |
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Term
| Exception to A-C privilege |
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Definition
| 1) future crime/fraud, 2) legal advice in issue, 3) attorney-client dispute |
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Term
| Physician Patient Privilege Elements |
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Definition
| 1) Confidential communication, 2) for the purpose of diagnosis or treatment of medical condition, 3) FRE: if the axn is based solely on federal law, priv exists only for psychotherapy. |
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Term
| Exceptions to Physician Patient Privilege |
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Definition
| If patient expressly or impliedly puts physical or mental condition in issue. NC: 1) Not in child abuse or neglect proceedings and 2) Judge may lift the privilege if in his opinion disclosure is necessary to proper admin of justice |
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Term
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Definition
| 1) spousal immunity and 2) confidential communications btw spouses |
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Term
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Definition
| Applicable in criminal cases only. Witness spouse holds the privilege and can exercise it at her will. |
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Term
| Confidential communications between spouses |
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Definition
| Applicable in any type of case. A spouse is not required, and is not allowed in the absence of consent by the other spouse, to disclose a confidential communication made by one to the other during the M. Both spouses hold this privilege. |
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Term
| Exceptions to the H-W privilege |
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Definition
| Applicable to both Spousal Immunity and confidential communications between spouses. 1) Communications/acts in furtherance of jointly-prepetrated future crime or fraud, 2) communications or acts destructive of the family unit, or 3) in litigation between the spouses themselves |
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Term
| Common Nonhearsay Purposes (i.e. not offered for the truth but to prove...) |
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Definition
| 1)Verbal act, 2) words that show effect on the listener, 3) circumstantial evidence of the speaker's state of mind |
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Term
| Categorical Nonhearsay in FRE |
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Definition
| Prior Statements of Trial Witness and Party Admissions |
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Term
| FRE Prior statements of a trial witness that are nonhearsay |
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Definition
| 1) W's prior stmt of identification, 2) W's prior inconssitent stmt IF prior stmt was made orally under oath and made during formal trial, hearing, proceeding or depositoin, 3) W's prior consistent stmt used to rebut charge of recent fabrication or improper motive or influence |
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Term
| NC Prior statements of trial W |
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Definition
| Prior identificaiton and consistent stmts come in only to bolster credibility, not as substantive evidence (still hearsay). PIS come in only to impeach, unless PIS is in a depo, and then it can come in as substantive evidence. |
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Term
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Definition
| Any stmt made by a party is admissible if it is offered against the party (nonhearsay in FRE; hearsay exception in NC). |
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Term
| Hearsay exceptions where unavailability is required |
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Definition
| 1) former testimony, 2) Dying declaration, 3) Stmt against interest, 4) forfeiture by wrongdoing |
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Term
| HS Exception- Forfeiture by wrongdoing |
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Definition
| Any type of HS stmt is admissible against a D whose wrongdoing made the W unavailable if the court finds by a preponderance of the evidence the D's conduct was designed to prevent W from testifying. Also prevents confrontation clause objections. |
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Term
| Grounds for unavailability |
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Definition
| 1) Privilege, 2) Absence from the jxdn, 3) Illness or death, 4) Lack of memory, 5) Stubborn refusal to T. Also in NC, 1) civil axns, W is more than 100 miles from the courthouse, 2) videotaped dep of an expert W may be used without the need to show unavailability |
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Term
| HS Exception- Former Testimony |
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Definition
| Former T is given at a former proceeding or in a depo an dthe party who it is offered against had a prior opportunity and motive to cross examine or develop the testimony of the W. Same in NC. |
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Term
| HS Exception- Stmt against interest |
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Definition
| Must be a stmt against pecuniary/proprietary/penal interest. In criminal cases, the stmt against penal interest must be supported by corroborating circumstances showin gtrustworthiness of the stmt. |
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Term
| Party admission vs. stmt against interest |
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Definition
| 1) Stmt against interest must be against the interest at the time it was made. 2) Any person, not just a party, can make the statment against interest. 3) Declarant must be unavailable for stmt against interest |
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Term
| HS Exception- Dying Declaration |
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Definition
| Stmt made under a belief of impending and certain death concerning the cause or surrounding circumstances of the declarant's death. Type of case- Federal: Criminal (homicide only) and all types of civil; NC: all types in both criminal and civil |
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Term
| HS Exceptions where unavailability is immaterial |
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Definition
| 1) Excited utterance, 2) Present sense impression, 3) Present state of mind, 4) Declaration of intent, 5) Present Physical condition, 5) Stmt for the purpose of medical treatment or diagnosis, 6) business records, 7) public records |
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Term
| HS Exception- Excited Utterance |
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Definition
| Stmt concerning a startling event and made while D is still under the stress of excitement cause by the event |
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Term
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Definition
| Description of an event made while the event is occurring or immediately thereafter |
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Term
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Definition
| Contemporaneouse stmt concerning declarant's present state of mind, feelings, emotions |
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Term
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Definition
| Stmt of declarant's intent to do something in the future, including the intent to engage in conduct with another person. Includes participation of other person. Fed ct will allow evidence to show both person's intent |
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Term
| Present physical condition |
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Definition
| Stmt made to anyone about declarant's current physical condition |
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Term
| Stmt for purpose of medical treatment or diagnosis |
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Definition
| Stmt made to anyone, usually medical personnel, concerning the declarant's 1) present symptoms, 2) past symptoms, 3) general cause of D's condition |
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Term
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Definition
| Elements: 1) Records of any type of business, 2) made in the regular course of business, 3) the business regularly keeps such records, 4) the records were made contemporaneously at the time of the event, 5) contents consist of information observed by EEs of the business OR a stmt that falls within an independent HS exception |
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Term
| Proving business records foundation |
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Definition
| 1) Call sponsoring W's to testify to the 5 elements of business records HS exception. W need not be the author of the report-- can be records custodian or any other person with knowledge. OR 2) Written certification |
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Term
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Definition
| Records of a public office or agency setting forth 1) the activites of the office or agency or 2) matters observed pursuant to a duty imposed by law OR 3) findings of fact or opinion result from an investigation authorized by law (broader than a business record exception). Exclusion: Police reports prepared for prosecutorial purposes not admissible against D in criminal case. |
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Term
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Definition
| Prosecution may not use a hearsay stmt against the crimnal D, even if it falls within a HS exception if 1) stmt is testimonial 2) D is unavailable and 3) D has had no opportunity for cross examination (before or at trial) |
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Term
| What is testimonial for confrontation clause purposes |
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Definition
| 1) grand jury testimony, 2) stmts in response to police interrogation if the primary purpose of the questioning is to establish or prove past events potentially relevant to a later criminal prosecution NOT to enable police assistance to meet an ongoing emergency, 3) documents, including affidavits and police reports prepared for prosecution, but not business records |
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