evidence I
What is Nonhearsay?
Statement by party opponent
Prior Statement of Identification
Prior Inconsistent Statement
Prior Consistent Statement
What is habit or routine evidence?
evidence of a person's or organization's habit or routine practice may be admitted to prove that it acted in accordance with the habit or routine practice.
When is character evidence admissible in civil cases?
In negligent entrustment or hiring, defamation and child custody. It can be proven by reputation, opinion, and specific acts.
Collateral Evidence Rule
Under the collateral-evidence rule, extrinsic evidence cannot be used to impeach a witness on a collateral matter—ie, one that is irrelevant to a material issue in the case.
A defendant's prior bad acts may be admissible to prove
MIMIC
Motive
Identity
Mistake (absence of)
Intent
Common Plan or Scheme
What is the scope of cross-examination?
Cross-examination should only cover matters within the scope of direct examination and impeachment. Leading questions are permitted.
When a declarant is unavailable, what is the amendment you bring up and for what reason?
In a Criminal Case, if the statement by an unavailable declarant is testimonial, and the defendant had no opportunity to cross-examine the declarant, the statement will generally not be admitted pursuant to the Sixth Amendment Confrontation Clause.
When is character evidence admissible in criminal cases?
When Defendant opens the door and Defendant can use reputation or opinion evidence.
Prosecution can use reputation, opinion and specific acts.
Best Evidence Rule and when does it apply?
If a party seeks to prove the contents of documentary evidence (writing, photograph, recording, etc.) the party must introduce the original document into evidence, or provide a valid excuse for its non-production.
Applies when Witness is testifying without independent knowledge (saw robbery on security tape) or to prove content of a writing with legal significance (will, contract)
List the Hearsay Exceptions (available or unavailable)
Present Sense Impression
Excited Utterance
Then-Existing Mental, Emotional or Physical Condition
Statement for Medical Treatment or Diagnosis
Recorded Recollection
Business Records
Public Records
Learned Treatises
When are leading questions allowed on direct examination?
To develop preliminary matters (name and address), for young or forgetful witnesses, or for hostile witnesses or a hostile adverse party
How do you authenticate handwriting, a voice, a photograph
Handwriting - use a lay witness who was familiar with the handwriting before the litigation, an expert witness or the trier of fact (jury comparing the handwriting to an authenticated specimen)
Voice - anyone can authenticate a voice, including lay person even if the person became familiar for the purpose of litigation.
Photograph - Anyone who has personal knowledge of the scene in the photograph may authenticate it. photographer not necessary!
In self-defense cases, a criminal defendant may offer evidence of the victim's violent character using...
BONUS: after that, what can the prosecution do?
reputation and opinion evidence.
The prosecution may rebut by introducing, reputation evidence or opinion evidence of the victim's or defendant's character.
What is judicial notice and how does it differ between civil and criminal court?
Fact beyond reasonable doubt can be recognized by the court (common knowledge or official record)
Treated as conclusive in civil case; permissible inference in a criminal case.
List the 7 ways to impeach a witness and whether extrinsic or intrinsic evidence can be used to do so?
1. Prior Inconsistent statements (either extrinsic evidence can be used but MUST give an opportunity to explain)
2. Character for Truthfulness can be given by reputation or opinion testimony using extrinsic evidence
3. Specific instance involving a bad act (intrinsic evidence)
4. Contradiction (either extrinsic or intrinsic)
5. Conviction of a crime (either extrinsic or intrinsic)
6. Sensory Deficiencies (either extrinsic or intrinsic)
7. Bias or interest (either extrinsic or intrinsic)
Statement by a party opponent includes:
statements made or adopted by party opponent and made by agent, employee, co-conspirator or authorized person.
When is a prior inconsistent statement also admissible as substantive evidence?
A prior inconsistent statement is also admissible as substantive evidence—ie, to prove the truth of the matter asserted therein—if the statement is excepted or excluded from the rule against hearsay.
Define Business Records and Public Records
Business Records - a record made in the regular course of business at or about the time the event occurred that contains information observed by employees of the business.
Public records: a record of a public office on a matter observed while under a legal duty to report. **does not include police report in criminal matters**
Define Recorded Recollection
witness has insufficient recollection of the event but he had personal knowledge of the event at a former time, made or adopted a statement while the event was fresh in his memory and can vouch for the accuracy of the statement when made or adopted.
What does the attorney-client privilege not apply to?
Crime - fraud, illegality, safety of others
if client tells 3rd party or they are present
Physical evidence provided by client
Documents from before attorney-client relationship
Fee Arrangements
What do insurance coverage and subsequent remedial measures have in common?
Tyey are both inadmissible to prove negligence or guilt. But may be used to show agency, ownership, bias
When are misdemeanor convictions and felony convictions always admissible?
Must be within the last 10 years to be admissible. Misdemeanor and Felony convictions involving dishonesty or untruthfulness are always admissible.
**Misdemeanors that are never admissible are drug possession, trespassing, battery)
Regarding pertinent traits, in any criminal case, Defendant may introduce _______. Prosecution may rebut with ______.
Their own pertinent trait, or the victim's pertinent trait. Prosecution may rebut with Defendant's bad character (specific bad acts) and victim's good character.
Define Present Sense Impression, Excited Utterance
and then-existing mental, emotional or physical condition
Present sense impression - declarant describes or explains event as it is happening or immediately therafter.
Excited Utterance - startling event, statement made by declarant while under stress of excitement
Then Existing mental, emotional or physical condition: declarant states his then-existing feelings, physical conditions or intent.
What is a Daubert Motion?
Pre-trial challenge to expert testimony.
1. Whether theory or technique can be and has been tested
2. whether it has been subjected to peer review and publication
3. it's known or potential error rate
4. the existence and maintenance of standards controlling its operation
5. whether it has attracted widespread acceptance within a relevant scientific community.