Term
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Definition
- Does it have any tendency to make a fact more or less probable than it would be without the evidence
- the fact is of consequence in determining the action |
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Term
| Reasons for Excluding Relevant Evidence |
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Definition
- unfair prejudice
- confusing the issues
- misleading the jury
- undue delay
- wasting time
- needlessly presenting cumulative evidence |
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Term
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Definition
construed so proceedings are done:
- fairly
- eliminate expense and delay
- promote the development of evidence law |
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Term
| Scope of Cross Examination |
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Definition
- can't go beyond the subject matter of the direct examination
AND
-matters affecting the witness's credibility |
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Term
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Definition
The court can allow leading questions:
- on cross examination
AND
- when a party calls a hostile witness, adverse party or a witness identified with an adverse party |
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Term
| Need for Personal Knowledge |
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Definition
| A witness must have personal knowledge on the matter they are being asked to testify to |
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Term
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Definition
| A presiding judge cannot testify as a witness at trial |
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Term
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Definition
| - cannot testify in front of other jurors at trial |
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Term
| Exceptions to Prohibited Testimony at Trial |
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Definition
- extraneous prejudicial information was improperly brought to the jury's attention
- an outside influence was improperly brought to bear on any juror
OR
- a mistake was made in entering the verdict on the verdict form |
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Term
| Opinion Testimony by Lay Witness |
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Definition
| rationally based on the witness's perception |
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Term
| Court Calling or Examining a Witness |
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Definition
- The court can call and examine a witness on its own
- A party can object to the calling or examining of the witness |
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Term
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Definition
| if part of a writing or recorded statement is introduced, an adverse party can require the introduction of the other part of the writing or recorded statement |
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Term
| Subsequent Remedial Measures |
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Definition
measures taken that would have made an earlier injury or harm less likely to occur are not admissible to prove
- negligence
- culpable conduct
- a defect in a product or its design
OR
- a need for a warning or instruction |
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Term
| Exceptions to the Subsequent Remedial Measures |
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Definition
- impeachment
- feasibility of precautionary measures
- proving ownership
- proving control |
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Term
| Compromises and Offers to Compromise |
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Definition
not admissible to prove liability for a claim
not admissible to prove invalidity of a claim
not admissible to prove amount of a claim
not admissible to impeach through a prior inconsistent statement or contradiction |
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Term
| Inadmissibility of Pleas, Plea Discussions |
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Definition
- withdrawn guilty plea or solo plea are not admissible
- comments in plea negotiations are not admissible |
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Term
| Exceptions to the Inadmissibility of Pleas Rule |
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Definition
- a guilty plea that is not withdrawn is admissible
- if you change your story and tell a different story on the stand, your old plea can be used to impeach |
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Term
| Payment of Medical Expenses |
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Definition
- not admissible to prove liability for an injury
- may come in on a theory of detrimental reliance if offer to pay but don't |
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Term
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Definition
- lack of insurance is not admissible to prove a person acted negligently
- can be used to prove a person's bias
- can be used prove agency, ownership, control |
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Term
|
Definition
| evidence of a person's character is not admissible for purpose of proving action in conformity therewith... |
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Term
| Character Evidence Rule Exceptions |
|
Definition
- character as an element of a claim or defense
- character of accused put in issue
- character of victim put in issue
- character used to support or attack credibility |
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Term
|
Definition
- opinion
- reputation
- specific instances of conduct |
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Term
| Additional Character Rule Exceptions |
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Definition
- D's character at issue in sexual assault/child molestation cases
- not offered to prove a person's character and no propensity inference resulting |
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Term
| Opening to Use Character Evidence |
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Definition
| - when D offers evidence of good character and places character at issue, the P can ask witness whether she was aware of a specific act by the D to test how well they know the D |
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Term
| Character Evidence for Other Purposes |
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Definition
- you can use character evidence to:
1. if self defense is in question, what the D reasonably believed about the victim is at issue
2. damages can be measured according to injury to P's reputation, not character |
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Term
| Sexual Behavior of the Victim |
|
Definition
past sexual behavior of the victim is inadmissible
Except:
- to prove source of semen or injury
- when constitutionally required
- offered by accused to prove consent |
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Term
| Sexual Assault and Character Evidence |
|
Definition
- P can offer prior acts of SA or CM if D is charged with either crime
- applies to criminal and civil |
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Term
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Definition
| evidence of a person's habit or an organization's routine is admissible to prove a person acted in accordance with the habit or routine |
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Term
| Other Crimes, Wrongs, or Acts |
|
Definition
| not admissible to prove character of a person in order to show action in conformity therewith |
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Term
| Exceptions to Past Crimes, Wrongs, or Acts Rule |
|
Definition
- proof of motive
- opportunity
- preparation
- plan, knowledge (consciousness of guilt)
- identity (common plan or scheme)
- absence of mistake or accident
- intent |
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Term
| Who May Impeach a Witness |
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Definition
| Any party can impeach a witness, including the party that called the witness to attack credibility |
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Term
| Attacking a Witness's Character |
|
Definition
- You can go after a witness's reputation for being truthful or untruthful
- evidence of truthful character can only be admitted if the witness has been attacked on truthfulness |
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Term
| Impeaching a Witness Using Criminal Conviction |
|
Definition
If the crime was punishable by death or by imprisonment for more than a year evidence MUST be admitted:
- in a civil or criminal case where the witness is not a defendant
AND
- in a criminal case where the witness is a defendant IF the probative value of the evidence outweighs is prejudicial effect to that defendant |
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Term
| Limits on Impeaching a Witness Using Criminal Convictions |
|
Definition
- A conviction that is 10 years old
- Pardon, Annulment, or Certificate of Rehabilitation
- Juvenile Adjudication
Can only use these in certain circumstances |
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Term
| Prior Inconsistent Statements |
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Definition
| - a party does not have to show a witness the contents of the witness's prior statement but has to show the adverse party's attorney |
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Term
| Who is Competent to Testify? |
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Definition
| - generally everyone is competent unless the rules say otherwise |
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Term
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Definition
| A witness may testify to a matter only if they have personal knowledge of the matter (this can be proved by the witness's own testimony) |
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Term
| Religious Beliefs and Witness Credibility |
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Definition
| religious beliefs cannot be used to attack a witness's credibility |
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Term
| Authenticating or Identifying Evidence |
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Definition
| proponent must produce evidence to support that the item is what the proponent says it is |
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Term
| Examples of Authenticating or Identifying Evidence |
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Definition
| - testimony of a witness with knowledge - Non-expert opinion about handwriting - Comparison by an Expert Witness - Distinctive Characteristics - Opinion about a voice - Evidence of a telephone conversation - Evidence About Public Records - Evidence about Ancient Documents or Data Compilations (at least 20 years old when offered) - Evidence about a process or system - Methods provided by a statute or rule |
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Term
| Evidence that DOES NOT Require Authentication |
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Definition
| - Domestic public documents that are sealed and signed - Domestic public documents that are not sealed but signed and certified - Foreign public documents - Certified copies of public records - Official publications by public authorities - Newspapers and periodicals - Trade inscriptions - Acknowledged Documents - Commercial paper - Presumptions under a federal statute - Certified Domestic Records of a Regularly Conducted Activity - Certified Foreign Records of a Regularly Conducted Activity |
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Term
|
Definition
| consist of letters, words, numbers, or their equivalent set down in any form |
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Term
|
Definition
| consist of letters, words, numbers, or their equivalent recorded in any manner |
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Term
|
Definition
| a photographic image or its equivalent stored in any form |
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Term
|
Definition
| the writing or recording itself |
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Term
|
Definition
| a counterpart produced by a mechanical, photographic, chemical, electronic that accurately reproduces the original |
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Term
| Admissibility of Duplicates |
|
Definition
| A duplicate is admissible just like the original as long as there is no genuine question raised about the original's authenticity |
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Term
|
Definition
Evidence of a writing, recording, or photograph is admissible if:
- all the originals are lost or destroyed (not by the proponent acting in bad faith)
- an original cannot be obtained by any available judicial process
- the writing, recording, or photograph is not closely related to a controlling issue
- the party whom the original would be offered against, has control of the original and fails to produce it at trial or hearing after being asked to produce it |
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Term
| Summaries to Prove Content |
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Definition
| proponent can use a summary, chart, or calculation to prove the content of voluminous writings, records, or photographs |
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Term
| Testimony or Statement of a Party to Prove Content |
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Definition
| the proponent may prove the content of a writing, recording, or photograph by using testimony, deposition, or written statement of the party against whom the evidence is offered |
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Term
| Functions of the Court and Jury |
|
Definition
Generally the court determines if the proponent has met the factual conditions for admitting other evidence of the content of a writing, recording, photograph
In a jury trial, the jury determines any issue about whether:
- an asserted writing, recording, photograph ever existed
- another one produced at the trial or hearing is the original
- other evidence of content accurately reflects the content |
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Term
|
Definition
| a person's oral assertion, written assertion, or nonverbal conduct, if the person meant it as an assertion |
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Term
|
Definition
| the person who made the statement |
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Term
|
Definition
A statement that:
- the declarant does not make while testifying at the current trial or hearing
AND
- a party offers in evidence to prove the truth of the matter asserted in the statement |
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Term
| Statements That Are NOT Hearsay |
|
Definition
- A Declarant-Witness's Prior Statement
- An Opposing Party's Statement
- Prior statement by identification |
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Term
| Declarant-Witness's Prior Statement (Inconsistent) |
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Definition
| is inconsistent with the declarant's testimony and given under penalty of perjury at trial, hearing, or other proceeding or in a deposition |
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Term
| Declarant-Witness's Prior Statement (Consistent) |
|
Definition
is consistent with the declarant's testimony and is offered:
- to rebut a charge that the declarant recently fabricated the statement
OR
- to rehabilitate the declarant's credibility as a witness when attacked on another ground |
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Term
| An Opposing Party's Statement |
|
Definition
The statement is offered against an opposing party AND
- was made by the party in an individual or representative capacity
- is one the party manifested that it adopted or believed to be true
- was made by a person whom the party authorized to make a statement on the subject
- was made by the party's agent or employee on a matter within the scope of that relationship and while it existed
OR
- was made by the party's co-conspirator during and in furtherance of the conspiracy |
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Term
| Hearsay Exemptions (Available or Not) |
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Definition
| - present sense impression - excited utterance - then-existing mental, emotional or physical condition - statements for purpose of medical diagnosis or treatment - recorded recollection - business records and other regular entries - absence of a record of a regularly conducted activity - public records - records of vital statistics - absence of public record or entry - records of religious organizations - marriage, baptismal and similar certificates - family records - records of documents affecting an interest in property - statements in documents affecting an interest in property - statements in ancient documents - market report, commercial publications - learned treatises - reputation concerning personal or family history - reputation concerning boundaries or general history - reputation as to character - judgment of previous conviction - judgment as to personal, family, or general history, or boundaries |
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Term
| Hearsay Exemptions (Unavailable) |
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Definition
- former testimony
- dying declarations
- statements against interest
- statements of pedigree
- forfeiture by wrongdoing |
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Term
| Hearsay Exemption (Residual - Catchall) |
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Definition
| - offered as evidence of a material fact - statement can be proven as true - is more probative on the issue for which it is being offered than any other evidence the proponent can obtain - admitting will serve the purpose of the rules and justice |
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Term
|
Definition
|
|
Term
| Out of Court Statements (NOT Hearsay) |
|
Definition
- effect of statement on listener
- state of mind of declarant
- legally operative facts
- impeachment and rehabilitation |
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Term
| Opinion Testimony by Lay Witnesses |
|
Definition
Limited to testimony:
- based on the witness's perception
- helpful to clearly understanding the witness's testimony or to determining a fact in issue
Testimony can't be based on scientific, technical, or other specialized knowledge |
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Term
| Testimony by Expert Witnesses |
|
Definition
An expert witness can be someone qualified by:
- knowledge
- skill
- experience
- training
- education |
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Term
| Disclosure of Facts or Data Underlying an Expert's Opinion |
|
Definition
| An expert can state an opinion without first testifying to the underlying facts or data |
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Term
| Court-Appointed Expert Witnesses |
|
Definition
| The court can appoint any expert of its own choosing or one the parties agree on |
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Term
| Judicial Notice of Adjudicative Facts |
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Definition
| The court can deem a fact a fact that is not subject to reasonable dispute if: - it is generally known - can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned |
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Term
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Definition
| Can only ask leading questions on cross examination |
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Term
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Definition
| bars the circumstantial use of character evidence to show action in accordance with character |
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Term
| Safeguards to Deceptive Testimony |
|
Definition
- oath
- witness demeanor
- cross examination |
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Term
| Justifications for Hearsay Exceptions |
|
Definition
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Term
|
Definition
| out of court statements that are not hearsay because the very fact that they were spoken or written carries legal consequences |
|
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Term
|
Definition
| if you can't make a determination that something is hearsay but the evidence is relevant, go with it being admissible |
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Term
|
Definition
| the right to prevent the disclosure in evidence of a confidential communication or other protected information |
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Term
| Holder in Attorney-Client Privilege |
|
Definition
| the client is the only holder |
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Term
| Requisites to Grant Privilege |
|
Definition
- communications must originate in a confidence that they will not be disclosed
- confidentiality must be essential to the relation between the parties
- the relation ought to be sedulously fostered
- the injury that would accrue to the relation by the disclosure of the communications must be greater that the benefit thereby gained for the correct disposal of litigation |
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Term
| Exceptions to the PFRE 503 (Attorney-Client Privilege) |
|
Definition
- Furtherance of crime or fraud
- Claimants through same deceased client
- Breach of duty by lawyer or client
- Document attested by lawyer
- joint clients |
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Term
| Control Group Test (Attorney-Client) |
|
Definition
| limited the privilege to statements made by those who have authority to seek out and act on legal advice (this group includes the directors and executive officers of the corporation) |
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Term
|
Definition
- a broader privilege that is not absolute like the attorney-client privilege
- attorney is the holder |
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Term
|
Definition
- marital communications
- ability to refuse to testify against spouse |
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Term
| Martial Privilege (Communication) |
|
Definition
- communication is protected if said while married
- if later become divorce, the communication shared during the marriage is covered
- either spouse can assert this privilege |
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Term
|
Definition
- plays a role in the incident
- a sponsor is necessary to get this evidence in |
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Term
|
Definition
- absent tampering, the defense has to prove something else happened in the chain
- one missing link is generally okay...2 or more becomes problematic |
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Term
|
Definition
- evidence of similar happenings trigger case by case analysis of probative value and the risk of prejudice under 403
- courts approach this kind of evidence skeptically because of its capacity to mislead the jury |
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Term
|
Definition
- at common law, before any attested writing could be introduced the attesters had to be called or their absence explained
- another form of authentication |
|
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Term
|
Definition
- not recognized in American evidence law
- closely associated with the original document rule |
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Term
| Crawford v. Washington Highlights |
|
Definition
- testimonial statements from an absent witness are only admitted if the defendant had an opportunity to cross-examine
- the Sixth Amendment guarantees the right of the defendant to confront their accuser
- the Confrontation Clause ensures reliability of evidence testing it by cross examination |
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Term
| Opinion on an Ultimate Issue |
|
Definition
- testimony on an ultimate issue is not objectionable
- Exception (an expert witness cannot speak to the mens rea of the crime charged) --> that is a matter for the trier of facts |
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Term
| Habit/Routine Practice Rule |
|
Definition
- evidence of a person's habit or an organization's routine practice is admissible
- evidence does not have to be corroborated
- used to prove the person or organization acted in accordance with the habit or routine |
|
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Term
|
Definition
- mandatory presumptions are unconstitutional in criminal cases
- a mandatory presumption "MUST" is allowed in civil cases |
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Term
|
Definition
- pleading
- production
- persuasion |
|
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Term
| Burden of Proof (Pleading) |
|
Definition
| asserting the truth of legally significant facts |
|
|
Term
| Burden of Proof (Production) |
|
Definition
| presenting some evidence that tends to prove or disprove those facts |
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Term
| Burden of Proof (Persuasion) |
|
Definition
| convincing the fact-finder to some requisite degree of certainty that particular facts do or do not exist |
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Term
| The Frye Test (Novel Scientific Evidence) |
|
Definition
- if the theory or technique has "gained general acceptance" in its own field, it can be used as evidence
- if not generally accepted, the evidence cannot be admitted |
|
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Term
| Daubert Standard (Scientific Evidence) |
|
Definition
- federal standard set by the Supreme Court
- the judge must decide "whether the reasoning or methodology underlying the testimony is scientifically valid AND
- whether that reasoning or methodology properly can be applied to the facts at issue |
|
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Term
|
Definition
- Is the theory testable?
- Has the theory been subject to peer review?
- What is the potential or known rate of error?
- General or widespread acceptance can be important in ruling particular evidence admissible |
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Term
|
Definition
| an effort to reconstruct past events with an eye toward criminal prosecution |
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|
Term
| Statement Against Interest (Hearsay Exception) |
|
Definition
A statement:
- a reasonable person in the declarant's position would have made only if the person believed it to be true
AND
- supported by corroborating circumstances that indicate trustworthiness |
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Term
| Prior Statement by Identification |
|
Definition
| statement of identification is not hearsay if it was made after the witness perceived the identified person |
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