Term
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Definition
| A statement other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted |
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Term
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Definition
| Admissible only if both the outer hearsay and the inner hearsay fall within an exception |
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Term
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Definition
An oral or written assertion
A nonverbal conduct intended as an assertion |
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Term
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Definition
1. Verbal acts or legally operative facts
2. Statements offered to show their effect on the hearer or reader
3. Statements offered as circumstantial evidence of the defendant's state of mind |
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Term
| Non hearsay: Prior witness statements |
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Definition
1. Inconsistent with DECLARANT's in court testimony and was given under oath;
2. Consistent with in court testimony and is offered to rebut charge of lying or exaggeration
3. Statement of identification |
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Term
| Admissions by Party Opponent: Silence |
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Definition
If a reasonable person would have responded and party remains silent in the face of accusatory statements, party must:
1. Have understood
2. Capable of denying
3. A reasonable person would have denied |
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Term
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Definition
1. Privilege
2. Refuses to testify
3. Lack of memory
4. Death or illness
5. Absent and unable to procure attendance |
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Term
| Unavailability exceptions |
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Definition
1. Former testimony
2. Statements against interest
3. Dying Declarations
4. Personal or Family History
5. Party procured unavailability |
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Term
| Former Testimony Exception |
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Definition
Party or predecessor in interest (CIVIL) was party to former action
Testimony was given under oath
Party had opportunity to develop declarant's testimony
Never grand jury |
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Term
| Statements Against Interest Exception |
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Definition
Against the person's pecuniary, proprietary, or penal interest when made.
Must have had personal knowledge of fact and knowledge that it was against interest.
Single remark |
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Term
| Dying Declaration Exception |
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Definition
The declarant believed his death was imminent (doesnt have to die)
The statement concerned the cause or circumstances
HOMICIDE OR CIVIL ACTION |
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Term
| Statements of Personal or Family History Exception |
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Definition
Concerns births, marriages, divorces, relationship, geneological, status
Member of family or associated with it
Based on personal knowledge |
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Term
| Statements offered against party procuring declarant's unavailability |
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Definition
| A party has engaged or acquiesced in wrongdoing that intentionally procured the defendant's unavailability. |
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Term
| Hearsay Exceptions: Availability Immaterial |
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Definition
1. Present state of mind
2. Excited utterances
3. Present sense impression
4. Present bodily condition
5. Past bodily condition to assist or diagnose in treatment
6. Business/public records
7. Misc. |
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Term
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Definition
An authenticted Business
Record made in regular course of business
Based on personal knowledge of entrant or based on someone with A DUTY TO TRANSMIT
Near time of event |
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Term
| Public records and reports |
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Definition
| i. setting forth activities of office or agency ii. matters observed pursuant to duty or law iii. records of factual findings from an investigation in civil actions or against the government in criminal. |
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Term
| Prior criminal conviction: felony |
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Definition
Admissible to prove any fact essential to the judgment.
Criminal: only against the accused for substance; can be used for impeachment against witnesses. |
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Term
| Judgment in former civil case |
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Definition
| A civil judgment is clearly inadmissible in a subsequent criminal proceeding and generally inadmissible in subsequent civil proceedings. |
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Term
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Definition
1. Ancient documents (20 years)
2. Learned treatises
3. Reputation
4. Family records
5. Market reports |
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Term
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Definition
1. Hearsay statement possess circumstantial guarantees of trustworthiness
2. That statement be strictly necessary
3. That notice must be given to the adversary |
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Term
| Hearsay: Confrontation Clause |
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Definition
1. Statement was offered against accused in criminal case
2. declarant is unavaialble
3. Statement was testimonial (investigation vs. emergency)
4. accused had no opportunity to cross-examine. |
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Term
| Hearsay: forensic analysis |
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Definition
| Are testimonial and may not be admitted unless the analyst is unavialable and the defendant previously had an opportunity to cross-examine. |
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Term
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Definition
Burden or producing evidence: prima facie
Persuastion: preponderance of evidence or beyond reasonable doubt. |
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Term
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Definition
A rule that requires that a particular inference will be drawn from an ascertained set of facts.
A presumption is overcome or destroyed when the adversary produces some evidence contrary to presumed fact. |
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Term
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Definition
| 1. Legitimacy 2. against suicide 3. Sanity 4. Death from absence 5. Ownership of car 6. Chastity 7. Regularity 8. Continuance 9. Mail delivery 10. solvency 11. bailee's negligence 12. marriage. |
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Term
| Preliminary facts decided by jury |
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Definition
Authenticity of a document
Credibility of a witness
Personal knowledge |
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Term
| Preliminary facts decided by judge |
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Definition
Facts affecting the competencey of the evidence.
Hearsay exceptions, privileges, expert testimony, mental competence.
Testify by accused re: admissibility does not waive 5th Amendment. |
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Term
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Definition
"Tends to prove any material fact."
Generally, must relate to time, event, or person in controversy. |
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Term
| Direct evidence vs. circumstantial evidence |
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Definition
Speaks directly to a material issue in the case.
Circumstantial evidence is indirect and relies on inference. |
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Term
| Prior false claims or same bodily injury |
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Definition
Evidence that a person has previously filed similar tort claims or has been involved in prior accidents is generally admissible to show the invalidity of the present claim.
However, false claims or claims involving the same bodily injury are relevant. |
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Term
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Definition
Habit describes a person's regular response to a specific set of circumstances.
In contrast, character evidence is trait.
Habit is admissible to show conformity with habit. |
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Term
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Definition
Relevant evidence can be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion if issues, misleading jury, undue delay, or waste of time.
Not unfair surprise. |
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Term
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Definition
Not admissible to show negligence or ability to pay.
Admissible to prove ownership, to impeach, or as part of an admission. |
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Term
| Subsequent remedial measures |
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Definition
Not admissible to prove negligence.
1. Prove ownership or control 2. rebut a claim that prosecution was not feasible 3. prove that opposing party has destroyed evidence. |
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Term
| Settlement offers and withdrawn guilty pleas |
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Definition
Evidence of compromises or offers to compromise is not admissible to prove liability for, or invalidity of, a claim that is disputed.
Dispute must exist. |
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Term
| Offer to pay medical expenses |
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Definition
Inadmissible.
However, unlike negotiations, admissions of fact re: medical expenses are freely admissible. |
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Term
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Definition
May be offered as substantive evidence to:
1. prove character when an ultimate issue
2. serve as circumstantial evidence of how a person probably acted
Generally not admissible in civil cases |
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Term
| Accused in Criminal Case can initiate |
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Definition
The prosecution cannot initiate evidence of bad character of the defendant merely to show that she is more likely to have committed the crime.
The accused however may introduce evidence of her good character to show her innocence of the alleged crime |
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Term
| How Defendant Proves Character |
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Definition
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Term
| How prosecution rebuts defendant's character evidence |
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Definition
1. Cross examining witness including specific instances of misconduct (no extrinsic evidence re: misconduct)
2. Calling qualified witnesses to testify on opinion or reputation |
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Term
| Character evidence: victim in a criminal case |
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Definition
Except in rape cases, defendant may introduce reputation or opinion evidence of a bad character trait of the alleged crime victim when it is relevant to show innocence.
Prosecution may rebut with victims goo character OR defendant's bad character for same train. |
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Term
| Rape victim's past behavior generally inadmissible |
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Definition
Criminal: admissible to prove someone else was source of injury. Specific acts between V and D are admissible by prosecution and by D to prove consent.
Civil: probative value substantially outweighs the danger of harm to the victim and of unfair prejudice. |
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Term
| Homicide cases: victims character for peacefulness |
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Definition
| When defendant pleads self defense, evidence of any kind that victim is first agressor opens door to evidence of victim's good character for peacefulness |
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Term
| Character evidence admissible if independently relevant |
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Definition
Motive
Intent
Mistake
Identity
Common scheme |
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Term
| Prior acts of sexual assault and child molestation |
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Definition
Evidence of a defendant's prior acts of sexual assault or child molestation is admissible in a case where the defendant is accused of committing an act of sexual assault or child molestation.
Must provide notice. |
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Term
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Definition
Indisputable facts that are either: 1. common knowledge or 2. capable of verification
Conclusive in civil; criminal instruct jury that they may accept fact
Mandatory for state and federal law |
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Term
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Definition
Testimony of a witness that she recognizes the object as what proponent claims OR
Evidence that the object has been held in a substantially unbroken chain of custody |
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Term
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Definition
A nonexpert with personal knowledge of the handwriting (pre-litigation)
An expert who has compared the writing samples of the maker's handwriting.
Genuineness may also be determined by trier of fact |
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Term
| Authentication: photographs |
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Definition
| Admissible only if identified by a witness as a portrayal of certain facts relevant to the issue and verified by witness as a correct representation. |
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Term
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Definition
X-rays cannot be authenticated by testimony of a witness that it is a correct representaiton of those facts.
Must be shown that process used is accurate, machine was in working order, and operator was qualified. |
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Term
| Authentication of oral statements |
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Definition
Voice identification: at any time
Telephone conversations |
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Term
| Self-authentication documents |
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Definition
| i. certified copies of public records ii. official publications iii. newspapers and periodicials iv. trade inscriptions v. acknowledged documents vi. commercial paper vii. certified business records |
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Term
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Definition
Original document rule
To prove terms of a writing the original must be produced if the terms of the writing are material.
Not applicable: when fact to be proved exists independently of writing; writing is collaterial; summaries of voluminous records; public records. |
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Term
| Best evidence rule: admissibility of secondary evidence |
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Definition
Satisfactory foundation:
1. loss or destruction of original 2. original is in possession of third party outside jurisdiction 3. original is in possession of adversary |
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Term
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Definition
Four attributes:
1. observe 2. recollect 3. communicate 4. speak truthfully
Witness must have personal knowledge and declare he will testify truthfully. |
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Term
| Permitted leading questions |
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Definition
1. On cross
2. To elicit preliminary or introductory matter
3. when the witness needs aid to respond
4. when the witness is hostile |
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Term
| Improper questions and answers |
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Definition
| 1. compound 2. argumentative 3. conclusionary 4. unduly harassing 5. calls for a narrative 6. assumes facts not in evidence |
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Term
| Present recollection revived |
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Definition
A witness may use any writing or thing for the purpose of refreshing her present recollection.
She may not read from the writing, because it is not authenticated. |
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Term
| Past recollection recorded |
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Definition
1. Witness at one time had personal knowledge
2. writing was made or adopted by witness
3. timely made
4. accurate
5. witness currently has insufficient recollection |
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Term
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Definition
| 1. Rationally based on the witness's perception 2. helpful to a clear understanding of his testimony or on a factual issue 3. not based on scientific, technical, or otherwise specialized knowledge. |
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Term
| Situations where opinions of lay witnesses are admissible |
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Definition
| 1. General appearance or condition 2. state of emotion 3. matters involving sense recognition 4. voice or handwriting identification 5. speed of moving object 6. value of services 7. rationality 8. intoxication |
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Term
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Definition
| i. subject matter is one where specialized k will assist trier of fact; ii. witness is qualified iii. expert has reasonable probability regarding opinion iv. supported by proper factual basis |
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Term
| Opinion by expert: proper factual basis |
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Definition
| i. personal observation ii. facts made known to the expert at trial iii. facts not known personally but supplied to him outside the courtroom and the type reasonably relied on by experts. |
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Term
| Opinion by expert: ultimate issues |
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Definition
An expert may render an opinion as to the ultimate issue in a case.
An expert may not, state an opinion as to whether the accused did or did not have the mental state. |
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Term
| Authoritative texts and treatises |
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Definition
Under the federal rules, these texts and treatises can be used not only to impeach experts, but also as substantive evidence, following:
i. an expert must must be put on stand
ii. relevant portion must be read into evidence. |
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Term
| Cross examination: restrictions on scope |
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Definition
| i. scope of direct examination including reasonable inferences that may be drawn from it ii. testing the credibility of a witness. |
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Term
| Accrediting or bolstering |
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Definition
| prohibited until witness has been impeached. |
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Term
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Definition
1. Prior inconsistent statements
2. Bias
3. Conviction of crime
4. Specific instances of misconudct
5. opinion or reputation for truthfulness
6. sensory deficiencies
7. contradictory facts |
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Term
| Impeachment: prior inconsistent statements |
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Definition
A party may show, by cross-examination or extinsic evidence, that the witness has on another occasion, made statements inconsistent with his present testimony.
To prove a statement by extrinsic evidence, witness must have an opportunity to explain or deny at some point (not necessarily before introduction) |
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Term
| Prior Inconsistent statements: evidentiary effect |
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Definition
Usually, prior inconsistent statements are hearsay, admissible only for impeachment purposes.
If however, the statement was made under oath at a prior proceeding, it is admissible as nonhearsay as substantive evidence. |
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Term
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Definition
| before a witness can be impeached by extrinsic evidence of bias or interest he must first be asked about the facts that show bias or interest on cross examination. |
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Term
| Impeachment: Conviction of crime |
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Definition
1. Dishonestly = no court discretion
2. Felony = discretion
3. Remote convictions = 10 years+
No foundation required for extrinsic evidence. |
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Term
| Impeachment: Specific instances of misconduct |
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Definition
That are probative for truthfulness
Extrinsic evidence not permitted. Only on cross.
Arrests are not bad acts. |
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Term
| Impeachment: opinion or reputation for truthfulness |
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Definition
| A witness may be impeached by showing that he has a poor reputation for truthfulness. |
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Term
| Impeachment: sensory deficiencies |
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Definition
| Witness's faculties of perception and recollection were so impaired as to make it doubtful that he could have perceived those facts. |
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Term
| Impeachment: contradictory facts |
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Definition
Material issue
Significant to issue of credibility
Witness volunteers information about a subject as to which the opposing party would otherwise be precluded from offering evidence. |
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Term
| Impeachment of hearsay declarant |
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Definition
As if declarant were at trial
No need to explain or deny a prior inconsistent statement.
May call declarant as a witness |
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Term
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Definition
Explanation on redirect
Good reputation or opinion for truthfulness
Prior consistent statement to rebut allegation of improper motive. |
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Term
| Testimonial privileges: general considerations |
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Definition
1. Person who may assert privilege is holder of privilege
2. Confidentiality
3. Waiver: i. failure to claim ii. voluntary disclosure of the privileged material iii. a contractual provision waiving privilege
In diversity cases, state privilege law applies |
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Term
| Attorney client- privilege |
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Definition
Client must be seeking professional services at time of communication
Communications through lawyer's agents okay.
Confidential
No privilege where attorney acts for two parties AGAINST each other.
Client holds privilege. |
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Term
| Attorney-client privilege: exceptions |
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Definition
Attorneys services are sought to aid crime fraud
Regarding a communication relevant to a claim against a deceased client
dispute between attorney and client. |
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Term
| Attorney-client privilege: waiver limitation |
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Definition
| There is no waiver if the disclosure was inadvertent and the holder took reasonable steps to preent disclosure and rectify the error. |
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Term
| Physician patient privilege |
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Definition
A professional relationship exists
Course of treatment
Information is necessary for treatment |
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Term
| Physician patient privilege: exceptions |
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Definition
| 1. Patient puts his physical condition at issue 2. physician's assistance was sought to aid wrongdoing 3. communication is relevant to issue of breach 4. patient agreed 5. federal case applying the federal law. |
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Term
| Psychotherapist/social worker client privilege |
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Definition
| This privilege operates in the same manner as attorney client |
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Term
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Definition
A married person whose spouse is a defendant in a criminal case may not be called as a witness by the prosecution.
Cant be compelled to testify in any proceeding regardless if spouse is defendant
Lasts only during marriage.
Privilege belongs to witness spouse. |
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Term
| Confidential marital communications |
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Definition
Civil or criminal
Communications between a husband and wife during a valid marriage are privileged.
Marital relationship must exist when communication was made, but divorce will not terminate.
Both spouses hold privilege. |
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