Term
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Definition
| Evidence having any tendency to make the existence of a fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. |
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Term
| When is relevant and irrelevant evidence admissible? |
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Definition
| Relevant evidence is admissible unless excluded for some reason (hearsay, improper character etc.). Irrelevant evidence is NEVER admissible. |
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Term
| What are the three reasons relevant evidence will be excluded under the 403 balancing test? |
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Definition
| When the probative value of the evidence is substantially outweighed by the chance that either the evidence will cause unfair prejudice, confusion of the issues, or waste time. |
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Term
| What does unfair prejudice mean? |
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Definition
| When the factfinder might react to the evidence in an impermissible way OR when the fact finder might give undue probative value to the evidence. |
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Term
| What are limiting instructions? |
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Definition
| When evidence is admissible for one purpose, the judge will instruct the jurors as to the purpose the evidence is admitted, so as to inform them of the proper scope of the evidence. |
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Term
| What is conditional relevance? Who determines whether something is conditionally relevant and how is it done? |
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Definition
When the relevance of evidence depends on the fulfillment of a condition of fact.
The judge shall admit the evidence if he determines that the evidence is sufficient on the standard of whether a reasonable juror could find that the condition is fulfilled. |
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Term
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Definition
| An out of court statement introuduced to prove the truth of the matter asserted. |
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Term
| Why is hearsay especially prejudicial? |
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Definition
| Because the declarant was not under oath, the jury has no opportinity to check the demeanor of the declarant, and there is no opportunity to cross-examine the declarant. |
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Term
| What is a verbal act or a performative utterance, and is it hearsay? |
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Definition
| Words that have legal effect when they are spoken. These are not hearsay. |
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Term
| What is an implied assertion? |
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Definition
| A statement that asserts something it does not explicitly state. These are still subject to the hearsay rule depending on what it's being introduced to prove. |
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Term
| What is assertive conduct, and give some examples. |
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Definition
Conduct understood by society to convey a certain meaning. Ex: Nodding your head, raising hand, pointing.
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Term
| In order to fall under the confrontation clause of the 6th amendment, the evidence offered against him must be... give an example of testimonial hearsay. |
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Definition
1. Testimonial: Statements made under circumstances that an objective witness would reasonably believe would be available for use at a later trial.
2. Hearsay
Ex: DNA reports, statements taken by a police officer in the course of interrogation, 911 call after the attacker leaves and declarant stays on the phone. |
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Term
| True or false, in order to comply with the confrontation clause, the hearsay declarant must be available at trial for cross examination. |
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Definition
| False, if the declarant is unavailable but the defendant had an earlier opportunity to cross examine him, the evidence is not excluded. |
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Term
| What is multiple hearsay? When it is excluded? Give examples. |
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Definition
| Hearsay which is contained within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with a hearsay exception. Example: Police officer's notebook with a quote from a witness. The outer layer is the written words of the cop (could fall within business records exception) Inner layer is spoken words of the eye witness (could fall under present sense impression or excited utterance). |
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Term
| What are the three non-hearsay types of prior statements by a witness? |
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Definition
1. Prior inconsistent statements used to show that current testimony is inconsistent with prior statements made.
2. Prior consistent statements by a witness used to rehabilitate an express or impled charge of fabrication.
3. Prior statements of identification. If the declarant testifies any witness can describe the witness' identification regardless of whether the declarant can remember the ID. |
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Term
| What are direct admissions and are they hearsay? |
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Definition
| Any statement by a party to the litigation used against him at trial. Content of the statement is irrelevant, and these are NOT hearsay. |
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Term
| What are adoptive admissions and are they hearsay? |
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Definition
| Adoptive admissions are reactions to a statement or action by another person that manifests an adoption or belief in its truth. For example: Someone accuses you of stealing and you do not respond. An innocent person would contest the accusation. Not Hearsay. |
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Term
| What is an authorized admission and it it hearsay? What is the CA-Fed Split? |
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Definition
| When a party has hired someone to specifically speak for them, and the evidence is being introduced against that party to the litigation. The person whom they have hired's statement is admissible. Under Fed rule, the judge would need to find that the person was authorized by a preponderance of the evidence. Under CA rule, it only need to meet the "if a reasonable jury could find he was authorized" standard. |
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Term
| What is an agent or employee admission and is it hearsay? |
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Definition
A statement offered against the party and was made
1. By the party's agent or servant
2. Concerning a matter within the scope of agency or employment.
3. Made during the existence of this relationship.
Not hearsay |
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Term
| What is a co-conspirator admission and is it hearsay? How does the judge decide whether the prongs are met, what is the standard? |
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Definition
Statements by a co-conspirator of a party
During the course of the conspiracy
In furtherance of the conspiracy
If the judge finds that a reasonable jury could find the aforementioned satisfied. |
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Term
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Definition
When there is a co-defendant to a conspiracy who refuses to take the stand makes a prior incriminating statement in the same trial, the accomplice's prior statement is inadmissible if it inculpates the co-defendant.
Remedies: Sever the trials, redact confession to exclude the defendant's name, don't use confession, limiting instructions may be ok if the statement is not facially incriminating to co-defendant.
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Term
| What is a present sense impression, and does the witness need to be unavailable? |
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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. Witness availability immaterial. |
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Term
| What is an excited utterance? Availability? |
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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 evennt or condition. Personal knowledge of the event is required. Availability immaterial. |
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Term
| What is the state of mind exception? Whose state of mind can it relate to? Regarding past? present or future state of mind? What is the CA exception? Availability? |
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Definition
| Statements that explicitly say the declarant's thoughts or emotions. Only applies to declarant's state of mind in the present or future, no backwards looking. In CA, backwards looking is permitted in some limited circumstances, but declarant must be unavailable. Availability immaterial generally. Can use statements of state of mind to prove conduct in conformity. |
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Term
| What is the medical/injury reports exception? Availability? |
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Definition
| Statements made for the purposes of medical diagnosis or treatment reasonably pertaining to diagnosis or treatment. Availability immaterial. |
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Term
| What is Past recollection recorded? Is it physically admissible? Availability? |
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Definition
| A statement concerning a matter which a witness once had knowledge but now has insufficient recollection. Made when the matter was fresh in the witness' memory. May only be physically admitted into evidence if introduced by an adverse party, otherwise it may only be read into evidence. Availability immaterial. |
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Term
| What is present recollection refreshed? Can it be read to the jury? Is it admissible? Availability? |
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Definition
| When a witness has forgotten something and they are exposed to it, and it refreshes their memory and are now able to testify to it. Cannot be read out loud to the jury, or admitted into evidence. Availability immaterial. |
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Term
| What are the elements of a business record? Availability? |
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Definition
| 1. Regularly maintained 2. Made promptly 3. Based on knowledge 4. Supported by testimony by custodian of the records 5. Appears trustworthy. Declarant availability immaterial. |
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Term
| What is absence of record? Availability? |
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Definition
| Business records used to show the non-occurrence of an event. Availability immaterial. |
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Term
| What three types of things fall under public records? |
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Definition
1. Activities of an office or agency (records or receipts)
2. Matters observed or reported pursuant to a duty to report (levels of rainfall) No problem with CC in criminal cases if gathered for neutral purposes.
3. Factual findings resulting from an investigation made pursuant to authority granted by law. (Only in civil actions or against the government in criminal cases) |
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Term
| What does it mean when a declarant is unavailable and what are the situations in which unavailability is met? |
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Definition
Declarant is unavailable to testify at trial because of:
1. Protected by privilege 2. Refuses to testify even with subpoena. 3. The person can't remember. 4. The person is dead. 5. Physical or mental illness. 6. Pleading the 5th. 7. Unable to procure attendance by all reasonable means. |
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Term
| What is under the former testimony by a witness exception? Availability? In CA? |
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Definition
| The declarant must be unavailable to testify. Testimony given at another hearing or deposition is admissible IF and only IF in the prior trial, the predecessor in interest had an opportunity AND similar motive to direct, cross, and redirect exam. It doesn't matter if the first trial was civil or criminal. If the second trial is criminal, the defendant himself must have had the similar motive and opportunity, but if civil only needs to be a predecessor in interest. In CA there is no predecessor in interest requirement, they need only have a similar motive. |
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Term
| What are the elements of a dying declaration? Availability? What are the CA-Fed differences? |
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Definition
Witness must be unavailable (most likely dead). 1. State of mind-Belief that you are going to die. 2. Personal knowledge of the cause of death. 3. Statement related to the cause of death.
CA- No limitation on the type of trial it may be introduced at, but declarant must have died.
FED-Unavailability does not have to mean death, but can only be introduced in a civil trial or against the defendant in a homicide trial. |
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Term
| What is a declaration against interest? What are the CA-Fed differences? Availability? |
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Definition
| Statements that are obviously against the interests of the declarant, so contrary in fact that a reasonable person would make the statement only if it were true. Usually against pecuniary or penal interest. FED- Statements inculpating the declarant but exculpating defendant from criminal liability are inadmissible unless corroborating evidence shows trustworthiness. CA-Permits statements that tend to bring social disgrace to the person who said them. Rationale is reliability (why would someone say something against their interest unless it were true?) Declarant must be unavailable. |
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Term
| What is forfeiture by wrongdoing? Availability? Does this eliminate confrontation clause issues? |
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Definition
| If party causes the unavailability of the declarant by engaging or acquiescing in wrongdoing, the evidence will still be admitted unless it violates the confrontation clause unless intent can be shown to make witness unavailable for trial. |
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Term
| What is the residual exception? What are the 2 views? |
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Definition
Some evidence not specifically covered by 803 or 804 may nonetheless be admitted if: Statement is trustworthy, interests of justice will be served by its admission, it is more probative on the matter than any other evidence that can be procured through reasonable efforts, sufficient notice is given.
1. Something that is not specifically covered by any other exception but justice calls for its admission.
2. Something that barely misses being admissible under another exception but justice calls for its admission and the evidence is trustworthy. |
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Term
| What is the relationship between hearsay and due process? |
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Definition
| In a criminal action, some exclusions of evidence may be so poorly prejudicial to a criminal defendant's case that they violate due process. For example: a confession made by another is excluded because of the hearsay rule. DP violations only occur in the most rare occasions. There needs to be pervasive assurances that the excluded evidence is trustworthy. |
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Term
| When is character evidence generally inadmissible? When is it admissible? |
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Definition
It is inadmissible when it is introduced for the purpose of proving action in conformity therewith on the occasion at issue. I.E. He is a known thief in a larceny case.
Permissible uses are to prove things such as : Notice, Fitness (child custody), Truth of statement (slander), Reason to fear (self defense). |
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Term
| When can character of the criminal defendant be introduced and how? |
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Definition
| In a criminal case irrespective of whether the defendant testifies, but the defendant must open the door to his own good character or the victim's bad character before the state can offer character evidence. The evidence must be a character trait pertinent to the crime. |
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Term
| When can you introduce character of the victim, and how must you do it? |
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Definition
| Must be offered by the criminal defendant, then state can rebut impeached witness. Must be pertinent to the crime charged. In Federal homicide cases, the defendant must bring a claim of self-defense and claim that the victim was the first aggressor, then Fed prosecution can offer character first. |
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Term
| When can you offer character of a witness? |
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Definition
| Only on impeachment and rehabilitation. |
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Term
| How can you offer character evidence generally? When can you use specific instances of conduct? What is the CA/FED split? |
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Definition
| Through reputation, opinion testimony. Specific instances of conduct are only available to give specific contradiction of testimony OR if reputation or opinion evidence has been opened on direct, on cross, state can impeach testimony by mentioning specific instances of conduct and asking if the witness has heard of them, but the state must ask the question in good faith and cannot introduce the evidence, they must take the witness' answer as it comes. In California, the use of specific instances of conduct is more open. Specific instances of conduct of the victim can be introduced on direct if the character of the victim is at issue (usually self-defense). |
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Term
| When can you introduce evidence of specific crimes, civil wrongs etc.? |
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Definition
| When it is introduced for a reason other than to prove character in conformity therewith. For example, if I steal a car, the state can introduce evidence of my prior convictions for meth addiction to prove motive for stealing the car (to support my addiction), but not to show that I'm a criminal. |
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Term
| What is a habit? Is it admissible to prove character in conformity? |
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Definition
| A regular practice of meeting a particular kind of situation with a specific type of conduct. It is admissible to prove character in conformiity. Religious habits are not habits. Must be pervasive in order to apply. Action should be routine, repeated often, and should not involve reflection. Ex: I avoid going through richmond on my way to work everyday because it's dangerous. Admissible if relevant to prove I did not commit a crime in Richmond that day. |
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Term
| When is a victim's past sexual behavior admissible? |
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Definition
Only in 3 situations in criminal cases:
1. Specific instances of sexual behavior to prove someone other than the defendant was the source of the semen or injury. 2. Prior sexual conduct between the defendant and victim when consent is raised as an issue. 3. Evidence that would violate the constitutional right to confrontation** |
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Term
| In sex cases, when is evidence of similar crimes admissible? |
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Definition
| When introduced for any matter that's relevant! Must give 15 days notice. In civil actions, same thing except 403 balancing might make it inadmissible. In CEC, Domestic violence and elder abuse crimes for civil cases also admissible. |
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Term
| When is evidence of subsequent remedial measures admissible? |
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Definition
| When it is introduced for a reason other than to prove fault, negligence, blame, etc. |
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Term
| When are settlement efforts in civil cases admissible? |
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Definition
| When not introduced to show validity or invalidity of underlying claim. (Prejudice or bias, negating contention of undue delay, proving obstruction) |
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Term
| When are criminal pleas/discussions admissible? |
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Definition
| Never unless valid waiver executed. |
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Term
| When is the payment of medical or similar expenses admissible? |
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Definition
| As long as it's not introduced to prove liability. Under this exception, a statement that someone will pay for medical insurance for the victim is also inadmissible. |
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Term
| When is the evidence of insurance admissible? |
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Definition
| When not used to prove whether the person acted negligently or wrongly. (Agency ownership control bias ok) |
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Term
| What is scope of cross-examination limited to? |
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Definition
| The matters discussed on direct exam. |
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Term
| What is the rule of completeness? |
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Definition
| Any evidence admitted in part may be motioned to be admitted in whole by the adverse party upon request to the judge. Judge has discretion. |
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Term
| What is a leading question and when is it used? |
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Definition
| A question which suggests the answer in the question. It is usually used on cross-exam or on direct when a party calls a hostile witness or adverse party. |
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Term
| To Exclude witnesses from court at the request of a party or on the court's own motion, there are 4 types of people who cannot be excluded. Who are they? |
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Definition
| 1. A party who is a natural person (Person as a witness as opposed to a corporation/company) 2. An officer or employee of the party who is not a natural person designated as its representative by its attorney. 3. A person whose presence is shown by a party to be essential to the presentation of the party's cause. 4. Person authorized by statute to be present. |
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Term
| When may a court call witnesses? |
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Definition
| At its discretion subject to objection by a party to the litigation. |
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Term
| When may the court interrogate a witness? |
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Definition
| At its discretion, but they risk reversal if they reveal their biases to the jury. |
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Term
| When can the jury ask questions to the parties or witnesses? |
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Definition
| At the judge's discretion. |
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Term
| On impeachment, when trying to prove dishonesty through opinion and reputation, what are the limitations on the scope of the impeachment. |
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Definition
| 1. Evidence may only refer to character for truthful or untruthfulness. 2. Truthful character can only be supported after it has been attacked, cannot bolster credibility of a witness before it has been attacked. |
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Term
| When proving dishonesty through specific instances of conduct, whose truthfulness must the testimony concern? Can it be proved by extrinsic evidence? |
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Definition
| It can concern the witness' own truthfulness or the untruthfulness of another witness as to which the witness who is being cross-examined has testified. CAN NOT be proved by extrinsic evidence. |
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Term
| Can you attack someone's religious beliefs or lack thereof on impeachment. |
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Definition
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Term
| When can you impeach by prior conviction? |
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Definition
| 1. If it is a crime involving dishonesty. 2. Any felony carrying more than one year of potential punishment subject to 403 balancing. |
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Term
| When can a witness be impeached by inconsistency? What are the limitations? |
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Definition
| It must be the witness' own prior statement. Extrinsic evidence not admitted unless the witness is afforded an opportunity to explain or deny and the opposing party is permitted to interrogate also. |
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Term
| Can you impeach your own witness to get around the hearsay rule? (Introduce prior inconsistent statements to prove the truth of the matter asserted.) |
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Definition
| Under the federal rules only if they were under oath at the prior proceeding. You can't do it in an exercise of bad faith in Fed Court also. |
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Term
| When impeaching for bias or motive to fabricate, can you introduce extrinsic evidence? |
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Definition
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Term
| What are two ways to impeach by incapacity? |
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Definition
| Physical incapacity-bad eyesight. Psychological incapacity-delusional. Can't just be depression or general drug use. Has to be high at the time. |
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Term
| What are the rules of specific contradiction? |
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Definition
| Evidence that demonstrates that part of the testimony of the witness was false. Can be proven by extrinsic impeachment by showing documents, calling other witnesses, etc. Impeachment must not go to a collateral matter. Collateral matter is evidence that cannot be proved for any other purpose other than contradicting the witness on impeachment. Evidence is not collateral if the contradictory fact could have been shown for any purpose independent of the contradiction. |
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Term
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Definition
| Evidence offered solely for the purpose of enhancing a witness' credibility before it has been attacked on cross by opinion, reputation or otherwise. Bolstering is prohibited. |
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Term
| Are specific instances of conduct permitted on rehabilitation? |
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Definition
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Term
| When rehabilitating the truthfulness or honesty of a witness, what are the requirements? |
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Definition
| 1. Must be in response to an attack on truthfulness. 2. Must have been made through reputation, opinion, or otherwise which includes evidence of misconduct (conviction of a crime). Does not include attacks on bias or motive, or incapacity. Might work with a prior inconsistent statement depending on what the statement is. |
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Term
| When can prior consistent statements be introduced on rehabilitation? |
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Definition
| Only to rebut an express or implied charge of fabrication, bias, or motive. The consistent statements MUST HAVE ARISEN BEFORE the improper influence or motive arose to be admissible on rehabilitation. |
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Term
| What are the requirements for opinion testimony of lay witnesses? |
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Definition
| 1. Must be rationally based on the perception of the witness. 2. Must be rationally helpful to a clear understanding of the jury. |
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Term
| Can a lay witness give their opinion on an ultimate issue? |
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Definition
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Term
| How does someone qualify as a witness? |
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Definition
| 1. The jury must need assistance of an expert in the field. 2. The expert must be qualified (has knowledge, skill, experience training or education) To be determined by the judge. |
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Term
| What are the requirements of the Daubert test for expert opinion? |
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Definition
| 1. Testimony must be based on sufficient facts or data. 2. Testimony is a product of reliable principles and methods. (Can it be tested? Has it been published or subject to peer review publication? Error rates?)3. Witness has applied the principles and methods reliably to the facts of the case. |
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Term
| What are permissible bases for expert testimony? |
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Definition
| First hand observation or evidence outside the trial (can be hearsay) from which the expert bases his opinion on. |
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Term
| What are the requirements for the attorney-client privilege? |
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Definition
| 1. Communication 2. In confidence 3. Between attorney and client. 4. To facilitate legal services. (Can be waived). |
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Term
| What is the crime-fraud exception and when does it apply? |
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Definition
| When the discussions of crime or fraud are made between attorney and client in regards to future wrongdoing. |
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Term
| What are the requirements for invoking Marital communications privilege? |
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Definition
| 1. Communication 2. Between spouses 3. In confidence 4. While married. Invocation applies to either party. |
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Term
| What is the standard for admissibility of physical evidence in regard to the requirement of authentication? |
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Definition
| If a reasonable jury could find that the evidence really is what proponent claims it is, it is admissible. Possible ways to authenticate: Testimony, voice ID, expert/non-expert opinion. etc. |
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Term
| What are examples of things that are self-authenticating? |
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Definition
| Public records, official publications, newspapers, etc. |
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Term
| Are chain of custody problems a bar to admissibility? |
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Definition
| No they are not, just have to meet the reasonable jury could find this to what it is claimed to be standard, but it is an argument against admissibility. |
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Term
| What is the best evidence rule? |
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Definition
| It is the requirement that the original document be admitted, not the copy. Applies to writings, recordings, photos, computer data, x-rays, etc. The person must be trying to prove the content thereof. |
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Term
| When will duplicates be admitted? |
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Definition
| Unless there is a genuine question as to the authenticity, or there are unfair circumstances. |
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Term
| When is the best evidence rule not applicable to evidence is should be applicable to? |
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Definition
| When the original is lost or destroyed in good faith, is in the possession of the other party, when the evidence relates to a collateral matter, or when the original can't be obtained by subpoena. |
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Term
| What is the burden of production? |
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Definition
| The party that bears the burden of producing the evidence at a point in the proceeding. |
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Term
| What is the burden of persuasion? |
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Definition
| The convincing force required for the evidence in order to win on an issue. |
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Term
| What are the two views on presumptions? |
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Definition
| 1. Thayer view: A presumption shifts the burden of production, but not the burden or persuasion. 2. Morgan view: A presumption shifts both burden of production and persuasion. |
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Term
| What is a conclusive presumption? |
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Definition
| A presumption that if fact 1 is proven, by law you have proven fact 2, for example: if proving knowledge is sufficient to prove intent, then if you prove knowledge, you have conclusively proven intent. |
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Term
| What is a rebuttable presumption? |
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Definition
| A presumption that may be rebutted with evidence. Use both thayer and morgan views. |
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Term
| What is a permissive inference? |
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Definition
| Tells the jury that they may infer a fact from a basic fact, but it is not required. For example: Res ipsa means an egregious situation may draw an inference of negligence, but the jury is not required to believe negligence occurred. |
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Term
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Definition
| A fact that is not subject to reasonable dispute. There are adjudicative and legislative facts. |
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Term
| What is it ok to take judicial notice of an adjudicative fact? |
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Definition
| When it is either generally known in the surrounding territory or capable of accurate and ready determination. |
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Term
| What is the CEC exception for prior inconsistent statements? |
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Definition
| The CEC allows all prior inconsistent statements of a witness, whereas the FRE only allows prior inconsistent statements under oath at a previous trial, hearing, or proceeding. |
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Term
| What is the CEC FRE split on adoptive admissions? |
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Definition
| CEC requires knowledge of the content of the statement, FRE does not. |
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Term
| What is the CEC FRE split on authorized admissions? |
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Definition
| In judging admissibility, the trial judge under the FRE will need to find authorization by a preponderance of the evidence. Under the CEC, it need only be evidence sufficient to sustain a finding. |
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Term
| What is the CEC FRE split on co-conspirator admissions? |
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Definition
| Under the FRE, the judge needs to find a conspiracy by a preponderance of the evidence. Under the CEC, it is only necessary to find evidence sufficient to sustain a finding. |
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Term
| What is the CEC FRE split on present sense impressions? |
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Definition
| Under the FRE, the statements needs to pertain to the event or condition while perceiving the event or condition or immediately thereafter. Under the CEC, the statement needs to explain or make understandable the conduct of the declarant while engaged in the conduct. |
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Term
| What is the CEC FRE split on excited utterances? |
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Definition
| Under the FRE, the statement needs to relate to an exciting or startling event or condition while still excited. Under the CEC, the statement must narrate, describe, or explain the event or condition. |
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Term
| What is the CEC FRE split on state of mind exception? |
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Definition
| FRE only allows then existing or forward looking, declarant availability immaterial. CEC only allows past state of mind if the declarant is unavailable. |
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Term
| What is the CEC FRE split on business records? |
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Definition
| In the FRE it is admitted unless it does not appear trustworthy, but under the CEC it will be admitted only if it appears trustworthy. |
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Term
| What is the CEC FRE split on public records? |
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Definition
| There is no extra provision in the CEC relating to public records, it is just the business record exception which does not include the findings of fact made pursuant to law (available only against the government in a criminal case or in a civil case) |
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Term
| What is the CEC FRE split on former testimony? |
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Definition
| Under the FRE, there is a predecessor in interest requirement for civil cases, under the CEC only similar opportunity and motive are required. Also, if offered by a party in an earlier trial, may be offered against them in a subsequent trial. |
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Term
| What is the CEC FRE split on declarations against interest? |
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Definition
| The CEC has an extra provision for statements that bring upon shame or social disgrace. |
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Term
| What is the CEC FRE split on the residual exception? |
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Definition
| There is no residual exception under the CEC, but truth in evidence says all non-hearsay or improper character should get in if relevant. |
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Term
| What is the CEC FRE split on character of the victim of a crime? |
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Definition
| Under the FRE may introduce evidence of all character relating to a crime. Under CEC can only relate to character for violence. Can use specific instances of conduct. There is no exception in CEC whereby the prosecution can introduce evidence of peaceful character in homicide cases. |
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Term
| What is the CEC FRE split on habit evidence? |
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Definition
| The CEC excludes evidence of character trait for skill or care, but might be admissible anyways, not sure. |
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Term
| What is the CEC FRE split on character of the victim in sex cases? |
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Definition
| In the CEC, reputation and opinion and specific instances cannot be used to prove consent. Under the FRE can only be used if 1. Evidence of prior acts of sexual conduct are introduced to prove someone other than D was source of semen/injury. 2. Prior instances of sexual conduct with D where consent is raised as an issue. 3. Evidence that would violate CC. |
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Term
| What is the CEC FRE split on character of the defendant (similar crimes) in sex cases? |
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Definition
| CEC does balancing on all prior convictions. Convictions over 10 years ago have a presumption against admissibility. |
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Term
| What is the CEC FRE split on subsequent remedial measures? |
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Definition
| CEC does not apply to strict liability cases. |
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Term
| What is the CEC FRE split on offers to pay medical expenses? |
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Definition
| Fre only covers offers, CEC covers offers and related statements. |
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Term
| What is the CEC FRE split on evidence of insurance? |
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Definition
| CEC only covers evidence that the person was insured, FRE covers both. |
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Term
| What is the CEC FRE split on impeachment by dishonesty? |
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Definition
| In FRE specific acts can only be inquired into on cross, under the CEC you just balance. |
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Term
| What is the CEC FRE split on a witness' criminal history? |
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Definition
| FRE for crimen falsi or convictions over a year. CEC only allows moral turpitude felonies. |
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Term
| What is the CEC FRE split on impeaching your own witness for the truth of the statement's assertion? |
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Definition
| Under the CEC it is always allowed. Under FRE, it rests on the bad faith of the attorney. Cannot impeach witness just to get in hearsay. |
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Term
| What is the CEC FRE split on rehabilitating truthfulness? |
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Definition
| CEC allows rehab with specific acts of conduct, it just needs to be balanced. FRE does not allow rehab with specific acts of conduct. |
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Term
| What is the CEC FRE split on the basis of expert testimony? |
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Definition
| CEC uses Frye general acceptance in the community test. FRE uses Daubert test. 1. Is there sufficient facts/data to testify. 2. Is it the product of reliable methods/theories? (has it been tested, subject to peer review, error rates?) 3. Is it appropriate to apply method here? |
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Term
| What is the CEC FRE split on privilege? |
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Definition
| FRE allows in camera review of privileged material to see if crime-fraud has been committed. CEC does not. |
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