Shared Flashcard Set

Details

Evidence
General Notes
38
Law
Graduate
11/08/2011

Additional Law Flashcards

 


 

Cards

Term

1. preliminary remarks

2. challenges- cause and peremptory

3. jury sworn in

Definition
steps of voire dire
Term

1. when there's a witness on the stand, during questioning and answer

2. during witness affidavit

3. allowing a narrative statement 

Definition
3 ways to make a proffer (all outisde of presence of jury)
Term

relates to fact of consequence 

+

has probative value 

Definition
relevancy =
Term
"probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay or waste of time"
Definition
403 test
Term
whether the witness has a proper understanding and appreciates the duty to testify truthfully
Definition
competency test
Term

must be:

1. rationally based on the perception of the witness AND

2. helpful to a clear understanding of his testimony or the determination of a fact in issue

Definition
 701 opinion testimony (only applies to non-expert witnesses)
Term

may include:

1. knowledge 2. skill 3. experience 4. training OR 5. education

Definition
702 expert testimony 
Term

1. whether the theory or technique can be and has been tested

2. whether it has been subjected to peer review and publication

3. the technique's known or potential rate of error

4. the existence and maintenance of standards controlling the techniques operation

5. whether the technique or theory has been generally accepted in the relevant scientific community 

Definition
Foret suggestions of the Daubert Test
Term

1. if defendant brings in, to rebut

2. non-character purpose (KIPPOMIA)

3. character is in issue

 

 

 

4. victim:

a. hostile demonstration or overt act

b. to show self-defense if there is a history of assaultive behavior AND a familial/intimate relationship

c. to show peacefulness in a homicide case to rebut that victim was first aggressor

5. to impeach the credibility of a witness

Definition

RULE: character evidence is not admissible

exceptions...

Term

1. KIPPOMIA

2. res gestae

"clear and convincing" is standard of proof

Definition

RULE: evidence of other crimes, wrongs or acts is not admissible

exceptions...

Term

1. there was a hostile demonstration or overt act at that time

2. in self-defense case, if there is a history of assaultive behavior and familial/intimate relationship, prior threats let in

Definition

RULE: prior threats are not admissible

exceptions...

Term

1. identify the purpose, other than propensity, for which the evidence of other crimes is directed 

2. prove the other crime was committed by the accused

3. articulate the evidence hypothesis by which the purpose for which the other crimes is being offered may be inferred from the proffered evidence 

Definition
Prier Safeguards = prosecutor must be prepated to present to the satisfaction of the trial judge evidence that will: 
Term

knowledge

intent

plan 

preparation

opportunity

motive

identity

absence of mistake/accident

Definition
KIPPOMIA = 
Term

Opinion or 

evidence of specific instances of conduct

(no reputation)

Definition
406 Habit evidence must be in form of...
Term

NO reputation

NO opinion

NO specific instances (with 2 exceptions)

Definition
412 Victim's past sexual behavior
Term

extrinsic evidence may always be used to show their 1. bias 2. interest 3. corruption 4. defect of capacity 

other e.e. may also be used when used to attack credibility IF passes the "weight test"

Definition
607 Credibility of a witness
Term

Reputation ONLY 

NO prior bad acts, vices, etc. 

(609 and 609.1 are exceptions)

Definition
attacking credibility of a witness; what forms allowed? 
Term

R: can bring in evidence of crimes for which he was convicted if punishable by death or greater than 6 months OR it involved dishonesty/false statement; no details; 10 year time limit; no juvenile; not if pardoned

R: only convictions; details if 1. he denies 2. he has testified as to facts or circumstances of it or 3. probative value outweighs unfair prejudice; no juvenile adjudications

Definition

609 Civil Cases

609.1 Criminal cases 

Term
one which suggests a desired response
Definition
Leading Questions = 
Term

1. to lay the foundation for a particular evidentiary rule

2. questioning of a child witness or a witness with limited capacity

or 3. to elicit general background information

Definition
leading questions are allowed when...
Term

1. any relevant evidence having a reasonable tendency to disprove the truthfulness or accuracy

2. Bias

3. Contradiction

4. Reputation for untruthfulness

5. Conviction of a crime

(can't ask about unadjudicated prior bad acts)

Definition
Intrinsic Impeachment may be presented by showing:
Term

1. Substantial right of the party is affected AND

2. timely objection OR

3. it was proffered 

Definition
103 Erroneous Ruling- May not be found unless...
Term

1. does not require a drawing of inference 

2. involves a process of reasoning or inference by which a conclusion is drawn 

Definition
Relevant evidence may be direct or circumstantial
Term

1. written acknowledgment of the debt can be shown

2. within 1 year, with at least one credible witness (w/o a pecuniary interest in the suit)

Definition
Dead Man's Statute Exceptions
Term

-a persons emotion state or appearance

-a person's handwriting

-a person's intoxication

-the speed of vehicles

-the appearance of things (slippery floor)

-that a stain appears to be blood

-that a stain appears to be semen

-smells

-tastes

-a person's height, weight or age

Definition
Opinion evidence by lay witnesses if it meets the requirements may include opinions on a variety of topic: 
Term

- the length of time an injured person was in cardiac arrest

-the point of impact between 2 vehicles

-the manner of packing marijuana for distribution

-the quantity of a vehicle's broken glass after a murder

-the street value of week

-whether an injury was serious

-blood splatter evidence

-whether a person was under the influence of narcotics

Definition
A lay witness may be allowed to render opinions about certain things if the topics are that which the witness has personal experience such as: (should have been or could have been qualified as an expert)
Term

-speed of cars

-but NOT speed of an airplane

Definition
Lay witnesses can testify as to things that they encounter frequently in their lives such as:
Term

1. will call and then question them about qualifications

2. opposing party may either agree to accept or cross/traverse the witness or object

3. judge decides if he is qualified and competent to testify 

Definition
To qualify an expert witness: 
Term

1. obtained from personal observations

2. made known to him before the trial

3. perceived by him at the trial

4. anything of a type reasonably relied upon by experts in a particular field in forming opinions or inferences upon the subject 

Definition
What can an expert base his testimony on?
Term
What the Daubert test does for scientific evidence, Kumho does for technical or specialized evidence
Definition
What is Kumho?
Term

1. defamation case and defendant has pled truth as a defense

2. allegations of negligent entrustment

3. negligent hiring case

4. child custody cases where the fitness of a parent is at issue

5. crimes of conspriacy involving dishonesty or false statements 

6. embezzlement involving dishonesty or false statement 

Definition
Character is in Issue when...
Term

1. there is no question to the fact of the subject matter

2. the activity would have been bruited about the neighborhood

3. neither the event nor conduct nor the rumor occurred at a time too remote from the present offense

4. the event or conduct and the rumor concerned the pertinent trait

5. the examination will be conducted in proper form: "have you heard?"

Definition
Johnson Safeguards
Term

1. by any relevant evidence having a reasonable tendency to disprove the truthfulness or accuracy of his testimony

2. bias, interest, corruption, defect in capacity

3. contradiction or prior inconsistent statement

4. reputation for untruthfulness

5. conviction of a crime

Definition
several ways to impeach the credibility of a witness
Term

1. make interrogation and presentation effective for the ascertainment of the truth

2. avoid needless consumption of time and

3. protect witneses from harrassment or undue embarrassment 

Definition
611 the court should exercise reaonable control over the mode and order of interrogating witnesses and presenting evidence so as to:
Term

1. witnesses subjective truthfulness

2. ability to comprehend or communicate the situation

3. accuracy of his perception

4. ability to fully remember 

5. any other fact which will assist in determining whether his testimony is accurate 

Definition
Credibility = character for truthfulness or vercity and includes: 
Term

1. any relevant evidence having a reasonable tendency to disprove the truthfulness of accuracy of his testimony 607(C)

2. bias, interest, corruption or defect in capactiy 607(D)(1)

3. contradiction or prior inconsistent statement 607(D)(2)

4. reputation for untruthfulness 608

5. conviction of a crime 609 and 609.1

Definition
Credibility may be attacked by: 
Supporting users have an ad free experience!