Term
| Impeachment - Prior inconsistent statements - means of proof, foundation |
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Definition
Cross examination, extrinsic evidence (if not a collateral matter to the issue at hand)
Foundation: witness must be given opportunity to explain or deny the inconsistent statement (except for hearsay declarants) |
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Term
| Impeachment - bias or interest - means of proof, foundation |
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Definition
Cross examination, extrinsic evidence (only if cross-examination has occurred first)
Foundation: witness must be asked on cross-examination about facts showing bias or interest before extrinsic evidence is allowed. If these facts are admitted on cross-examination, admissibility of extrinsic evidence is within the court's discretion. |
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Term
| Impeachment - conviction of a crime - type of conviction, court discretion, means of proof |
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Definition
Conviction must be less than 10 years old, adult (not juvenile)
Crimes involving dishonesty: court cannot bar
Felony not involving dishonesty: court has discretion if witness is criminal defendant and prosecution has not shown probative value outweighs prejudice |
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Term
| Impeachment - specific instances of conduct (bad acts) - type of bad act, means of proof |
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Definition
| bad act must be probative of truthfulness, can prove by cross-examination ONLY |
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Term
| Impeachment - opinion or reputation for truthfulness - means of proof |
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Definition
| A witness who knows the person being impeached in business circles can speak about the person's poor reputation for truthfulness |
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Term
| Impeachment - sensory deficiencies - means of proof, what it is |
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Definition
Cross examination, extrinsic evidence
Testimony or evidence must prove that persons's facilities of perception or recollection were so impaired as to make it doubtful that he could have perceived those facts. |
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Term
| Hearsay exceptions - availability immaterial - state of mind |
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Definition
Statement of then-existing state of mind, emotion, sensation, or physical condition. Usually introduced to established intent.
Admissible when state of mind is a material issue or to show subsequent acts of declarant |
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Term
| Hearsay exceptions - availability immaterial - excited utterance |
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Definition
| Statement made while under the stress of excitement of a startling event, before the declarant had time to reflect on it |
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Term
| Hearsay exceptions - availability immaterial - present sense impression |
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Definition
| Statement made concurrently with the sense impression of an event that is not necessarily exciting |
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Term
| Hearsay exceptions - availability immaterial - declarations of present bodily condition |
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Definition
| spontaneous declaration of present bodily condition even if not made to a physician |
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Term
| Hearsay exceptions - availability immaterial - declarations of past bodily condition |
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Definition
| only admissible if made to medical personnel to assist in diagnosing or treating the condition |
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Term
| Hearsay exceptions - availability immaterial - recorded recollection (past recollection recorded) - circumstances |
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Definition
| Where a witness states that she had insufficient recollection an event to enable her to testify fully and accurately, the writing may be read into evidence if a proper foundation has been laid. |
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Term
| Hearsay exceptions - availability immaterial - recorded recollection (past recollection recorded) - foundation |
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Definition
1) the witness at one time had personal knowledge of the facts in the writing
2) the writing was made by the witness or under her direction
3) writing was made when matter was fresh in witness's mind
4) writing is accurate
5) witness has insufficient recollection to testify fully and accurately |
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Term
| Hearsay exceptions - availability immaterial - business records |
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Definition
A writing is admissible if it is a:
1) record of events, conditions, opinions, or diagnoses made in the course of a regularly conducted business activity
2) by entrant with personal knowledge of facts or within the knowledge of someone with a duty to transmit such records to the entrant
3) it was customary to make type of entry involved |
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Term
| Hearsay exceptions - availability immaterial - public records exception - type of matter observed |
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Definition
1) Records and reports of public agencies regarding their activities
2) recordings of matters observed pursuant to a duty imposed by law (except police observations against defendant in criminal cases)
3) in civil actions AND against the government in criminal cases, records or factual findings resulting from an investigation authorized by law |
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Term
| Hearsay exceptions - availability immaterial - public records exception - judgments, differences between admissibility in civil and criminal cases |
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Definition
A copy of a judgment of a prior felony conviction is admissible to prove any fact essential to the judgment
Criminal case: admissible to prove fact essential to judgment against accused, admissible for impeachment against the plaintiff
Civil case: admissible for fact essential to judgment and impeachment of everyone |
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Term
| Best evidence rule - general rule, secondary evidence admissible when? |
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Definition
To prove the terms of a writing (broadly defined), the original writing must be produced if the terms of the writing are material.
Secondary evidence of the writing is admissible only if the original is unavailable (unless bad faith caused destruction). |
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Term
| Best evidence rule - rule not applicable (original document not required) in these situations |
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Definition
1) where fact to be proved exists independent of the writing
2) writing is collateral to litigated issue
3) records are voluminous (can produce summary instead)
4) public records that are certified or testified to as correct |
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Term
| Hearsay exceptions - availability immaterial - ancient documents |
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Definition
| Statements in an authenticated document 20 years old or more are admissible, as are statements in any document affecting an interest in property regardless of age |
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Term
| Hearsay exceptions - availability immaterial - learned treatise |
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Definition
| Treatises are admissible as substantive proof under the Federal Rules if 1) they are called to the attention to or relied on by an expert, and 2) they are established as reliable authority by the testimony of that witness, other expert testimony, or judicial notice |
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Term
| Hearsay exceptions - availability immaterial - reputation |
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Definition
| Admissible if concerning a person's character, personal or family history, land boundaries, or community's general history |
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Term
| Nonhearsay - prior statement - nonhearsay if prior statement is... |
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Definition
1) inconsistent with declarant's in-court testimony, and given under oath at prior proceeding
2) consistent and offered to rebut a charge that witness is lying or exaggerating because of some motive
3) identification of a person made after perceiving him |
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Term
| Character evidence - civil cases - rule |
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Definition
| Character evidence is NOT admissible to prove conduct EXCEPT when 1) claim based on sexual assault or child molestation, or 2) if character is directly in issue (defamation, negligent entrustment, child custody) |
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Term
| Character evidence - criminal cases - defendant - bad character if the accused (defendant) may be shown once door is open by... |
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Definition
1) Offering direct evidence of a pertinent character trait - reputation and opinion, but NOT specific instances of conduct
2) Cross-examining character witness for reputation, opinion, and SPECIFIC INSTANCES of conduct |
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Term
| Character evidence - criminal cases - victim's bad character - attacked first exception |
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Definition
| If prosecution offers evidence that victim attacked first, can offer rebuttal evidence that victim is peaceful |
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Term
| Character evidence - criminal cases - victim's bad character - defense may open door by... |
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Definition
| presenting evidence of victim's (plaintiff's) bad conduct when relevant to show defendant's innocence |
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Term
| Character evidence - criminal cases - victim's bad character - once door open, prosecution may present... |
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Definition
| Reputation or opinion evidence of 1) victim's good character, or 2) defendant's bad character for the same trait |
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Term
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Definition
| Evidence of a person's habit (regular response) is relevant to prove that the conduct of the person on a particular occasion was in conformity with the habit. |
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Term
| Character evidence - evidence of other crimes or misconduct - specific instances |
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Definition
| Admissible IF relevant for some issue other than character - MIMIC (motive, intent absence of mistake, identity, common plan or scheme), or for impeachment (but note rules) |
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Term
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Definition
| Courts MAY take judicial notice of indisputable facts that are either 1) common knowledge in the community, or 2) easily capable of verification |
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Term
| Judicial notice - in civil case, in criminal case |
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Definition
| A judicially noticed fact is conclusive in a civil case, but NOT in a criminal case |
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Term
| Judicial notice - legislative facts exception |
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Definition
| Legislative facts (those facts relating to legal reasoning and lawmaking) need not be of common knowledge nor capable of indisputable verification to be judicially noticed. |
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Term
| Photographs - how authenticated |
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Definition
| Photos must be 1) identified by a witness as a portrayal of certain facts relevant to the issue, and 2) verified by a witness as a correct representation of facts relevant to the issue |
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Term
| Best evidence rule - when secondary evidence permissible |
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Definition
| If proponent cannot produce the original, he may offer secondary evidence if a satisfactory explanation is given, such as 1) loss or destruction of original, 2) original is in possession of a 3rd party outside jurisdiction, and 3) original is in possession of an adversary who fails to produce the original |
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Term
| Parol evidence rule - general statement |
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Definition
| If an agreement is reduced to writing, that writing is the agreement and hence constitutes the only evidence of it. Prior or contemporaneous negotiations or agreements are merged into the written agreement, and they are inadmissible to vary the terms of the writing. |
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Term
| Parol evidence rule - when does not apply - parol evidence of prior contemporaneous negotiations are admissible to... |
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Definition
1) complete an incomplete K, or explain an ambiguous term
2) reform the contract due to a mistake
3) invalid - show that the K is void or voidable, or that it was subject to a condition precedent
4) invalid - show subsequent modification or discharge of the written agreement |
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Term
| Witness - personal knowledge |
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Definition
| A witness must have personal knowledge of the matter about which he is to testify |
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Term
| Present recollection revived - how to refresh recollection, how writing handled (admitted?) |
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Definition
| A witness can't read her testimony from a prepared writing, but her recollection can be refreshed from a writing. The writing does not have to be offered into evidence, and the witness can't speak directly while reading the writing. |
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Term
| Lay opinion - admissible if |
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Definition
| 1) rationally based on the perception of the witness (personal knowledge), 2) opinion is helpful to trier of fact, and 3) not based on scientific, technical, or other specialized knowledge |
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Term
| Expert opinion - admissible if (4 requirements) |
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Definition
| 1) subject matter helpful to jury in that it is derived from specialized knowledge , 2) witness qualified as expert (has special knowledge or skill), 3) expert has reasonable probability regarding the opinion, and 4) based on proper factual basis |
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Term
| Expert opinion - what is proper factual basis? |
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Definition
| 1) personal observation, 2) facts made known to expert at trial, 3) facts not known personally but supplied outside courtroom and of a type reasonably relied upon by experts in field |
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Term
| Spousal immunity privilege - basics of privilege |
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Definition
| One spouse cannot be forced to give adverse testimony against another in a CRIMINAL case |
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Term
| Spousal immunity privilege - elements required for privilege |
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Definition
| 1) criminal case, 2) valid marriage at time of trial, 3) holder of privilege is witness-spouse, and 4) all facts (including pre-marriage) barred |
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Term
| Confidential marriage privilege - basics of privilege |
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Definition
| communications between a husband and wife during valid marriage are privileged |
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Term
| Confidential marriage privilege - elements |
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Definition
| 1) both civil and criminal cases, 2) marriage necessary at time of communication, 3) protects against confidences (not all testimony - so spouse may have to take the stand), 4) either spouse holds the privilege |
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Term
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Definition
1) verbal acts or legally operative facts (statement has independent legal significance)
2) out of court statements used to show its effect on the hearer or reader
3) out of court statement used to show circumstantial evidence of declarant's state of mind (evidence of insanity or knowledge) |
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Term
| Admission by a party opponent - basic definition of admission |
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Definition
| An admission is a statement made or act that amounts to a prior acknowledgment by one of the parties of one of the relevant facts |
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Term
| Admission by a party opponent - do not have to be (2 things) |
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Definition
| don't have to be 1) against interest at time when made, or 2) based on personal knowledge |
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Term
| Admission by a party opponent - adoptive admission - implied by silence |
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Definition
| Silence by a party is an admission only if 1) the party heard and understood the statement, 2) the party was physically and mentally capable of denying the statement, and 3) a reasonable person would have denied the statement (NOTE: silence in face of police accusations not an admission) |
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Term
| Admission by a party opponent - vicarious admission is an admission if by... |
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Definition
| 1) spokesperson authorized to speak by a party on its behalf (press agent), or 2) statement of agent within the scope of agency AND while employment exists |
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Term
| Hearsay exception - unavailability required - former testimony |
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Definition
| Statement made by same party or predecessor in interest 1) under oath 2) at same or at other proceeding involving same subject matter 3) at which the party against whom it is offered had motive and opportunity to develop testimony |
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Term
| Hearsay exception - unavailability required - statement against interest |
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Definition
| statement against declarant's pecuniary, proprietary, or penal interest when made, and declarant had personal knowledge of facts |
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Term
| Nonhearsay - admission by co-conspirator |
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Definition
| Admissions of conspirator while participating in conspiracy are admissible against co-conspirators ONLY if there was an opportunity to cross-examine the hearsay declarant |
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Term
| Hearsay exception - unavailability required - dying declaration |
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Definition
| In a homicide prosecution or civil action, statement made by declarant now unavailable admissible if 1) declarant believed death imminent, and 2) statement concerned cause or circumstances of impending death |
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Term
| Hearsay exception - unavailability required - statement offered against party procuring declarant's unavailability |
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Definition
| Statement of a person (now unavailable as a witness) is inadmissible when offered against the party who has engaged or acquiesced in wrongdoing that intentionally procured the defendant's availability |
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