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155 Cards in this Set
- Front
- Back
Limited admissibility |
evidence may be admitted for one purpose without being admissable for another purpose
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$$requirements for establishing relevance
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1. probative 2. material
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$$probative
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evidence is probative if it is makes any fact more or less probable than it would be without the evidence.
e.g. dangers of drug use on humans do not make any fact that is material to a charge of drug smuggling either more probable or less probable than it would be without this evidence. |
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Material
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whether the proffered evidence bears on a fact of consequence in regard to the particular matter before the court.
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$ When can relevant evidence be excluded?
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the probative value of the evidence is SUBSTANTIALLY OUTWEIGHED by dangers or considerations
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$ 403 dangers
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1. unfair prejudice
2. confusion of issues 3. misleading the jury -subject to appellate review |
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$ 403 considerations
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1. undue delay
2. waste of time 3. needless presentation of cumulative evidence -NOT subject to appellate review |
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when can negative evidence come in?
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when the P seeking to introduce the evidence can show that:
the occurrence probably would have been observed if it had in fact taken place. |
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Negative Evidence--fact that an event wasnt
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P seeking to bring it in if they can show that the occurrence probably would have been observed or recorded if it had in fact taken place.
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Cumulative testimony
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relevant, but probative value outweighed by its cumulative nature
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Safety history wrt products liability is admissibile when
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1. material circumstances of other customers' use were substantially similar and 2. manufacturer probably would have gotten complaints if similar accidents had happened.
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Liability Insurance
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admissible to prove ownership, agency, control or witness bias
inadmissible to prove negligence, wrongdoing or ability to pay also LACK of insurance in inadmissible except to rebut a false claim that ∆ has insurance. |
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Admissions collateral to disclosure of insurance
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fact that there is liability insurance is admissible if the admission is so intertwined with an insurance disclosure that they cant be meaningfully separated
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Subsequent remedial measures
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inadmissible to prove negligence, culpable conduct, product defect or defect in a product's design
***admissible to prove: 1. ownership or control over condition that caused the harm at issue and 2. feasibility of precautionary when measures, (if disputed i.e. ∆ raises impossiblity defense***) or to impeach a witness |
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Offers to Settle
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not admissible to prove liability or invalidity of a claim as to the validity or the amount but are allowed to demonstrate bias on the part of co-∆'s who may have settled out of court.
-admission made in connection with offer to settle not admissible. --TN inadmissible to prove liability or validity of a claim whose validity or amount is disputed OR IS REASONABLY EXPECTED TO BE DISPUTED |
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Offer to pay medical bills, furnish medical services
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not admissible to prove negligence
-admission made in connection with offer to pay is admissible |
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Prior false claims
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admissible if ∆ can make some showing that the prior similar claims were FALSE.
Inadmissible to prove that π is HIGHLY LITIGIOUS |
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Identity of Conditions wrt similar occurrences
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that the conditions were sufficiently similar that what caused previous injury is likely to have also caused π's injury
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Valuing property of substantially similar items
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Only an actual selling price of substantially similar property(i.e comparable) is admissible to prove the value of an item. An unaccepted offer is not admissible to prove value.
BUT and unaccepted offer by a property owner to sell to a 3P may be used against him |
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Character Evidence--generally
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evidence of how a person generally behaves, or behaved on some other occasion(s), offered to prove how that person acted on the occasion in question. Generally not admissible to prove how a person acted on the particular occasion in question.
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$$$$$Character in a Criminal Case
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1. Prosecutor cannot introduce any evidence of ∆’s bad character if purpose of evidence is to show conformity therewith
includes bad reputation, prior crimes, or prior bad deeds 2. ∆ is allowed to present evidence of relevant good character traits to try to establish he acted in conformity with his good character and did not commit the crime ⁃ limited to opinion and reputation? 3. if ∆ opens door, state allowed to introduce bad character ⁃ reputation or opinion also allowed to ask ∆’s character witness about specific acts but no extrinsic evidence i.e. evidence of prior crimes 4. Evidence of prior crimes bad acts may be admissible to prove MIMIC but not to prove conformity therewith. ⁃ if prior crime offered under mimic, apply 403 balancing test. 5. If defendant testifies, then he automatically places character at issue and state can introduce lack of truthfulness |
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character in a civil case
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1. No evidence of character trait of party to show conformity therewith during even that gave rise to litigation
2 .If character is being used for any other legitimate purpose it will not be kept out⁃ e.g. usually negligent entrustment, defamation(∆ can use specific instances of good character) 3. If party testifies, then truthfulness is at issue as soon as he takes the stand. (party usually testifies in a civil case). |
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when is character "in issue"
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1. Defamation(evidence of P's character to prove/disprove the truth of what D said about P)
2. Negligent Entrustment( D's knowledge of entrustee's bad character) 3. Child Custody(character/fitness of parent) 4. Insanity Defense(where D claims lack of volitional control as a result of a mental defect) 5. Entrapment(prove/disprove D was predisposed to commit the crime) 6. Character of decedent in wrongful death (in computing damages) 7. Self-Defense (regarding victim;s knowledge of D's violent nature) |
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Habit--TOC/Balancing test
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courts look to 1. adequacy of the sample (i.e number of instances cited)
AND 2. uniformity of the responses. ***-Evidence of HABIT is admissible to show conformity therewith. |
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biz routine practice
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evidence of an org's routine practice is treated identically to a person's habit. can be used to show that person or org. acted in conformity with that habit on a particular occasion
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Exceptions use char. evid to prove conformity therewith
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1. criminal ∆ may introduce his own favorable character traits (if pertinent) BUT this opens the door for the prosecution to rebut with evidence of negative character traits
2. CRIM ∆ may introduce character traits of the alleged victim , once again can be rebutted by prosecution 3. HOMICIDE--π may introduce evidence of the PEACEFULNESS of VICTIM (and violent nature of ∆) to REBUT evidence that victim was of violent temperament and was probably the aggressor 4. may be introduce for impeachment purposes |
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When can proof of specific acts be made?
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1. inquiry during cross of a witness giving reputation or opinion evidence to test the basis of that opinion or reputation testimony
2. when evidence is NOT being used to establish action in conformity therewith--i.e. motive, ooportunity, plan, preparation, or identity--when the character of a person is "in issue" an essential element of the charge, claim or defense. |
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What kinds of evidence can crim ∆ introduce when he seeks to establish his own good character to suggest that it is unlikely he committed the crime.
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reputation and opinion but once ∆ opens the door, then π can ask about specific instances but is bound by the question.
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When can crim ∆ introduce evidence of alleged V's bad character?
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reputation and opinion evidence of the V's character where, if the V had acted in conformity with his character, the conduct would tend to prove the defendant's innocence.
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π's rebuttal When crim ∆ introduces evidence of alleged V's bad character?
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when ∆ offers evidence that ∆ is 1st aggressor, π may REBUT by introducing evidence of he V's peaceful character.
-only instance where prosecution may initiate introduction of circumstantial character evidence |
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criminal sexual offense cases
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∆ cannot offer evidence that V engaged in other sexual behavior or has a sexual predisposition except in certain conditions
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civil sexual offense cases
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evidence an alleged V's past sexual conduct or sexual predisposition is admissible only if the probative value of such evidence substantially outweighs the danger of harm to the victim and unfair prejudice to a party.
Evidence of sexual reputation is only admissible if it has been place in controversy by the alleged victim. |
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Rape Shield
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Evidence offered to prove a V's sexual predisposition is generally inadmissible in criminal cases. But an exception exists for "evidence of specific instances of sexual behavior by the alleged victim wrt person accused when it is used to prove CONSENT.
or prover source of semen, injury, other physical evidence cam from someone else. when evidence is admissible, it can only take the form of specific instances |
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Pederasses/Sexual Preds
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π may introduce evidence of similar crimes of child molestation. π must dislcose to ∆ at least 15 days before trial (or later if good cause is shown) the statements or witnesses or a summary of the substance of the testimony to be offered.
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Hearsay
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1)out of court 2) statement 3)offered in evidence for the truth of the matter asserted
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Statement
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can be 1. oral 2. written 3. assertive conduct
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$ out of court statements that are not hearsay
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1. Verbal Acts--acceptance, offer, gift, bailment
2. knowledge on part of of listener is relevant to the case i.e. i.e.statements offered to show their EFFECT on the HEARER or READER $$ 3. PINS of W offered to impeach BUT PINS can be used both to impeach and as SUBSTANTIVE evidence if: 1 PINS is an excited utterance 2. given under oath at a trial or other proceeding |
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Hearsay that comes in for TOTMA i.e. exclusions
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1. admissions by a party
2. PINS given under oath a legal proceeding 3. prior ID made by a witness CURRENTLY on witness stand. |
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multiple Hearsay
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must be admissible for EACH LAYER
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HEARSAY Exceptions
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BAD SPLITS, PEPPI F.
B usiness records A dmission by party opponent D Dying declaration S pontaneous statements P ast recollection recorded L earned treatise I nterest, declaration against T Testimony, former S tate of mind or condition P ublic records E quivalency P rior inconsistent statements P rior consistent statement I dentification F orfeiture |
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Hearsay exclusion v. Hearsay Exception
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Exclusion applies to evidence that meets all 3 hearsay requirements but, for policy reasons, is defined to be non-hearsay.
Exception meets 3 req. of hearsay but is nevertheless admitted under an exception under FRE 803 or 804 Basically exclusion is not hearsay but exception is hearsay |
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hsy exclusions--categories
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1. prior statements by a witness
2. admissions (statements made by or imputed to a party-opponent offered against that party) |
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Admissions--types
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1. Individual admissions(admitted in pleadings or by "conduct")
2. Adoptive Admissions(A said X then ∆ said "that's right; silence) 3. Authorized/Vicarious Admissions 4. Co-conspirator admissions |
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Admissions--generally
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-personal knowledge not required
-any statement made by a party-opponent is an ADMISSION -must be RELEVANT (403) -admissible only against person who made the statement |
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$ Adoptive Admissions
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-explicit i.e. adopting one's statement as their own
$ -Silence-->If at any previous time a party hears an accusation and fails to protest, and a judge determines that a reasonable person would have protested the accusation if untrue, then both the ACCUSATION and the SILENCE are considered an ADOPTIVE admission by that party and we can have evidence of both accusation and silence. |
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Silence as an adoptive admission
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when 1. declarant heard the accusatory statement; 2. declarant was capable of denying the statement; and 3. a reasonable person would have denied the statement if it were not true
UNLESS accusation made by police bc violates 5th amendment right against self-incrimination e.g. "You Murderer" at the scene of the crime COD HERD Capable Of Denying HEard the statement Reasonable to Deny |
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Vicarious Admissions--##
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statement by a non-party (parties in privity, employee within scope of employment, agent, or co-conspirator during the course of and in furtherance of the conspiracy proved by a preponderance of the evidence
TN admission of A: 1. concerning a matter in scope of employment 2. made during existence of agency relationship 3. against A's interest when mae |
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admissions by conduct
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conduct can be considered an admission if, from the conduct, one can reasonably infer that ∆ was conscious of his guilt
e.g. FLIGHT, -assuming false name, - resisting arrest attempted bribe of an officer |
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401/403 and non-assertive conduct
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evidence must be relevant and the probative value must not be substantially outweighed by the possibility of unfair prejudice
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Spontaneous Statements
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1. Excited Utterance
2. Present Sense Impressions |
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when is evidence of prior conduct admissible
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KIPPOMIA
knowledge intent plan preparation opportunity motive identity absence of mistake or accident |
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$ Excited Utterance
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statement 1. made under stress of excitement caused by a startling event or condition that 2) RELATES to the startling event
-availability immaterial -no time requirement, but canot have recovered his "faculties" |
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$ Present Sense Impression
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statement that 1)describes or explains an event or condition made 2) while declarant was perceiving the condition or event or immediately thereafter.
-ten minutes too long b/c speaker may not have had TIME TO REFLECT -availability immaterial |
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$ Present State of Mind "I'm goin' to crooked creek!"
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statement of D's then-existing state of mind, emotion, sensation or physical condition
May be offered to prove: 1) declarant's state of mind itself where it is "IN ISSUE" and "MATERIAL" (intent, attitude, mental feeling, pain, etc.) or 2. Declarant's later conduct following through on that state of mind (as circumstantial evidence that the intent was carried out) -inadmissible if statement of memory or belief to prove the fact remembered or believed. except if it relates to execution, revocation, identification or terms of declarant's will |
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$ Declaration of physical condition
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$ 1. declarations of PRESENT symptoms, pain, sensations, or physical condition even if made to a consulting doctor
2. statements re: past bodily condition AND the CAUSE or EXTERNAL SOURCE are admissible if made for [and "reasonably pertinent" to] PURPOSES OF DIAGNOSIS OR TREATMENT i.e. must be made to medical personnel. --applies to the declarant's bodily condition thus physicians declaration of someone elses is hearsay. IN TENNESSEE "DIAGNOSIS AND TREATMENT" |
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$ ****Business Records
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***Hospital records ALWAYS potential business records on MBE
KRAP biz records are excepted if it is regular practice of the business to 1)KEEP such records and the records were made:2) in the REGULAR course of business 3) AT or near the time of the even/condition recorded and person preparing them had 4)PERSONAL KNOWLEDGE must be authenticated by 1)testimony or 2)certifying in writing that it is a biz. record can be attacked for lack of trustworthiness espec. if it is written with an EYE TOWARD LITIGATION --complaints by employees not biz records because ees not under business duty to file their claims. ******-absence of a record can be introduced to prove nonoccurrence if it normally would have been recorded had it occurred.**** -availability of the recorder is IMMATERIAL |
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Public Records and Reports
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1. records setting forth the activities of the office or agency
2. matters observed pursuant to a duty imposed by law as to which matters there was a duty to report (except police/law enforcement personnel in a criminal case UNLESS the duties are ministerial) 3. In a civil case or case against the Gov't factual findings can be admitted if resulting from an investigation authorized by law must be recorded by and within the scope of duty of a public employee at or near the time of the event UNLESS the circs indicate a lack of trustworthiness---NOT IN TENNESSEE -cant try to sneak in police incident reports under biz record or cathall exception but maybe under past recollection recorded if witness takes the stand -But police reports can be used BY accused just not against medical examiner's autopsy report typically not "law enforcement personnel" |
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Learned Treatises
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Statements from authoritative works admitted if called to the attention of an expert witness and the works are established as reliable authority.
TENNESSEE-->ONLY FOR IMPEACHMENT |
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$ *****Past Recollection Recorded
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writing 1) made or adopted by a witness 2) who had 1st hand knowledge of the events, 3) but who cannot now remember the facts; 4) writing made while the facts were fresh in his mind.
-document may be read aloud and admitted into evidence. -some courts hold that it may not be rec'd as an exhibit unless offered by the adverse party. |
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Residual
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necessary statement 1) offered as evidence of a MATERIAL FACT, 2)MORE PROBATIVE ON THE POINT than any other reasonably procurable evidence 3)with UNEQUIVOCAL GUARANTEES OF TRUSTWORTHINESS of trustworthiness
-notice required including name and address of declarant. |
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***Hearsay Exceptions: Unavailability Required
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DAFFT
**Dying Declarations **AGAINST interest Family and personal history Forfeiture by wrongdoing **Testimony, former |
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***Unavailability def
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PRIMA
validly asserts PRIVILEGE REFUSES despite a court order ILL or dead lack of MEMORY ABSENT -proponent cannot procure the unavailability |
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***Dying Declaration
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-declarant must be unavailable but need not be dead. (ADMISSIBLE IN CIVIL CASE)
-if a criminal case AND IN TENNESSEE-- ∆ MUST BE CHARGED WITH HOMICIDE made while declarant believed death was imminent and the statement was made concerning the cause or circumstances of what he believed to be his impending death. -no one wants to meet their maker with lies on their lips |
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$ ***Statement against Interest
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-declarant must be UNAVAILABLE*****
declarant KNEW statement against his pecuniary, proprietary, or penal(civil or criminal) interest when made. -must be disserving -must have personal knowledge -rendered invalid the declarant's claim against another If statement exposes ∆ to criminal liability and offered to exculpate the accused it is admissible only if supported by corroborating evidence (NOT IN TN) |
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$ ***Former Testimony
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-must be unavailable
statement made under oath in the same or at some other at which the party against whom it is offered had motive and opportunity to develop testimony [by direct, cross, or redirect examination] In civil cases, the party's predecessor in interest must have been a party in the former action. Predecessor in interest includes one in a privity relationship with the party such s grantor-grantee, testator-exectutor, life-tenant-remainderman and joint tenants. -no affidavits, coroner's inquests, or grand jury testimony |
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$$$$$Forfeiture by Wrongdoing
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statement of an unavailable witness is admissible when offered against a party who has engaged or acquiesced in wrongdoing that intentionally procured the declarant's unavailability.
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Statement of Personal or Family History
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-declarant must be UNAVAILABLE
statement of personal or family history made by family or one intimately associated with the family 1. concerning Dec's own birth, adoption, marriage, divorce, legitimacy;relationship by blood, adoption, or marriag; or other similar fact |
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Reputation
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admissible concerning a person's character, or personal or family history, land boundaries, or a community's general history.
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Judgment
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a judgment of a prior felony conviction is admissible in a civil case to prove any fact essential to the judgment. In criminal case, only against the accused.
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commands/questions
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not assertions and therefore not hearsay
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negligence cases/notice
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IN negligence cases, where knowledge of the danger is the issue, a 3P's warning may be admitted to show the listener's notice of the danger
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animals/machines
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not considered hearsay because they have no motivation to lie.
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prior ID
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a w's out of crt statement identifying a person made after declarant has perceived him and where declarant is 1. presently testifying and 2. available for cross is specifically excluded as nonhearsay
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perceived defined
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witness was aware of the person; doesnt actually have to see the person or even recognize his presence through another sense (smell or touch)
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guilty plea
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admissable as an admission because the plea is considered a statement by a party
BUT guilty pleas to minor offenses usually not admissable conviction however is not an admission but conviction of a felony is admissible to impeach and is admissible in any ensuing civil suit "to prove any fact essential to sustain the judgment" |
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nolo contendere plea
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not admissible as an admission bc does not concede guilt
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under what circumstances will declarant of an out-of-court statement be considered unavailable?
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PRISM
exempted by Privilege Refusal to testify Incapability--death, physical or mental illness, infirmity Subpoena--unable to procure declarant by process or other reasonable means Memory--(lack of wrt subject matter) |
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$$$Competency--elements
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Ws generally presumed to be competent to give testimony until the contrary is established
1. W must have PERSONAL KNOWLEDGE of he matter on which he will testify 2. witness must declare he will testify truthfully judge/jurors may not testify |
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Competency--testimonial abilities
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1. capacity to observe
2. recollect 3. communicate 4. appreciate the obligation to speak truthfully. |
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Competency--Dead Man's Statutes
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laws prohibiting testimony concerning a transaction between a witness with an interest in the outcome and a now-deceased person in cases pressed or defended by the decedent's executor
"interested" if P stands to gain or lose by the judgment o the judgment may be used for or against him ina subsequent action predecessor in interest also dq'd |
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Competency of Juror as a witness
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may not testify re:
1. any matter or statement occurring during the course of deliberations 2. mental process by which juror arrived at his or her decision 3. anything that influenced any juror's mental processes Exceptions: 1. extraneous prejudicial information improperly brought to jury's attention i.e. news article 2. outside influence improperly brought to bear on a juror(threat to juror's family) 3. mistake in entering the verdict into the verdict form Atty MAY testify |
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S Leading Q's-when permissible
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generally only on cross/hostile witness.
but can be used when necessary to develop the witness' testimony. 1. witness needs aid (child, loss of memory, physical/mental weakness) 2. preliminary or introductory manner 3. in examining an expert 4. if the question suggest the whole subject rather than the a specific answer 5. witness needs his memory "jogged" |
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redirect-permissible scope
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only matters brought up on cross
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Methods of Rehabilitation
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1. explanation of responses on cross-examination
****2. If W has been impeached for: 1. Reputation for truth 2. Prior Crimes 3. Prior Acts You can bring in good reputation evidence. (i.e.testimony of other witnesses) If W has been impeached for any other reason, then courts are silent. 3. Prior consistent statements when used to defeat a charge of BIAS or RECENT FABRICATION --statement must have been made before the motive to change the story or fabricate |
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Refreshed Recollection
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all materials but cannot be used unless the witness' present memory is EXHAUSTED
-***if you use a document to refresh recollection, you must make document available to opposing party who can introduce it if he wants to and you cannot object for any reason |
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scope of cross
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limited to:
1. credibility of W AND 2. matters brought up in direct and inferences therefrom but crt has discretion to broaden the scope |
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intrinsic v. extrinsic
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intrinsic--from the mouth of the witness
extrinsic-not from the mouth of the W |
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when can I impeach my own witness
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1. W is an adverse party
2. W must be called by law i.e. attesting W in a will case 3. examining party is genuinely surprosed due to inconsistencies between witness's present testimony and her prior statements |
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$ ways to impeach a W
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SCCIBB
Sensory Deficiencies Conviction of a Crime Character Inconsistent prior statements Bias or Interest Bad Acts |
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$ Imp-PINS--means of proof/foundation###
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MOP: cross, extrinsic if not limited by a collateral matter rule
Found: none for Intrins; extrinsic--> P witness must given chance to explain or deny the PINS and opposing party must be given a chance to rehabilitate BEFORE or AFTER evidence of prior inconsistent statement is used. UNLESS PINS is also an ADMISSION **If PINS also qualifies as an exemption to the hearsay rule then it comes in as substantive evidence BUT IN TN ONLY TO IMPEACH |
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$ Imp-Conviction of a crime-MOP/Found
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must be a felony (punishable by death or imprisonment in excess of 1 year) or ANY CRIME involving dishonesty or false statement-->403 balancing test
juvenile, 10 years or more from later of conviction or release, conviction that violated const. rights not allowed MOP: cross; record of judgment FOund: none |
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$ Imp--Bad acts--MOP/Found
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bad acts=act not resulting in conviction
MOP-cross ONLY FOund--none no other extrinsic info can come in once witness answers crossexaminer may inquire into prior unconvicted acts relating to truthfulness but must be done in good faith ***if bad act shows bias, then bias rules control i.e. extrinsic evidence allowed. |
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$ Imp--Bias--MOP/Found
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W may be impeached by showing that he has some reason to favor one side of the other.
can be shown by: 1. personal relationship (relative) 2. animosity 3. financial interest in outcome of the case 4. intimidation (threats to W) 5. desire to curry favor with π (W has criminal charges pending) 6. W has been paid MOP: cross/extrinsic Foundation: must be asked on cross, then extrinsic evidence of he bias can come in NEVER A COLLATERAL ISSUE |
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testimonial infirmities
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1. sincerity(is he lying)
2. communicative ability (did he really mean tht D killed V) 3. perception (did he accurately observe what happened) 4. memory (does he really remember what happened) |
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$ imp--opinion/rep--mop/found
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-limited t character trait of truthfulness
MOP--calling other Ws found--none |
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$ imp--sensory deficiencies--mop/found
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-lack of knowledge; faculties of perception or recollection were impaired
MOP: cross, extrinsic Found: prior questioning as to sensory deficiency before introducing extrinsic evidence. |
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$ bolstering a witness who hasnt been impeached
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usually not admissible but can be used in sexual assault case to prove timely complaint
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$ imp--contradiction
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allowed only where contradiction relates to a material issue.
no foundation necessary MOP--cross, extrinsic |
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withdrawn guilty plea
nolo contendere |
inadmissible to impeach
probably admissible |
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collateral matter rule
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matter not material to the matter being litigated
-may be inquired into intrinsically to attack credibility on cross BUT extrinsic evidence on same question regarding a collateral matter may not be introduced unless it is relevant to prove/disprove a substantive fact in dispute. |
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crimen falsi--403
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not subject
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juvenile convictions exception
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of a W other than the accused can come in if:
1. conviction would be admissible to attack credibility of an adult AND 2. court determines that its admission is necessary for a fair determination of the issue of guilt or innocence. |
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exception to 10 year felony rule
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1. Crt decides in the interests of ustice the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.
AND 1. party seeking to introduce old conviction gives sufficient advance written noticeof intent to use such evidence |
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pardons
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cant come in provided that:
1. pardon is based on INNOCENCE OR 2. pardon or its equivalent based on finding of rehabilitation and W hasnt been convicted of a felony subsequently |
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$ Opinion--When lay witnesses can offer opinion testimony
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where the opinion satisfies 3 conditions:
1. rationally based on W's perception AND 2. helpful (i.e. probative) to a clear understanding of the W's testimony or determining a fact in issue 3. Not based on scientific, technical or other specialized knowledge i.e. not expert testimony |
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Admissible lay witness opinion
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1. Speed and other measurements (ht, weight) but not "carefully, recklessly, properly" [legal conclusions which must be avoided]
2. Identity 3. Sensory Descriptions (sound, smell, taste) 4. Value of Property 5. Familiarity with handwriting 6. Sanity, but not that a person is "mentally incompetent" 7. Physical condition 8. Intoxication but not "alcoholic/schizo" ---- --INADMISSIBLE lay opinion: opinion on what another person did or thought |
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$$Opinion--expert witnesses
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1. subject matter is one where scientific, technical other specialized knowledge would SUBSTANTIALLY assist the trier of fact (goes to relevancy)
2. witness is qualified (i.e. possesses skill, special knowledge, expertise, training, education) 3. expert possesses reasonable probability re his opinion supported by a proper factual basis --$Experts can only testify about law when Foreign law is at issue -when expert is on stand for the purpose of judge's determining whether he is qualified, facts that are relevant to the experts qualifications can come in for qualification purposes only but not to IMPEACH even if it would, in fact impeach the W because the Expert hasn't actually started to testify until he is qualified. |
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Opinion--possible sources of info upon which an expert can rely
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1. personal observation
2. facts made known to expert at trial 3. facts not known personally but supplied to him outside of the courtroom and of a type reasonably relied upon by experts in the particular field |
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Opinion--experts--factors as to whether scientific evidence is scientifically valid
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1. whether the theory or technique has been or may be RELIABLY TESTED
2. subjected to PEER REVIEW 3. SIZE of known or potential ERROR RATE in using the technique 4. whether the technique has been GENERALLY ACCEPTED (used to be the sole factor under Frye) 5.whether the technique grows naturally out of work that the testifying expert was CONDUCTING INDEPENDENTLY OF LITIGATION or was developed specifically for the present litigation |
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Opinion--ultimate issues
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only an expert may render an opinion on an ultimate issue.
UNLESS in criminal case expert is giving opinion as to whether ∆ had the requisite mental state. |
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Opinion experts-authoritative texts, treatises
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can be used only to impeach
--expert must be on stand when the treatise is read --relevant portion read into evidence but not received as an exhibit |
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Opinion experts--changing the hypothetical on cross
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if expert was directly examined based on a hypo, and the changes are based on additional facts already brought out or that the cross-examiner represents will be brought out
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authentication generally
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for all real and demonstrative evidence, a foundation must be laid to authenticate by a showing of evidence:
"sufficient to support a finding that the matter in question is what its proponent claims" TENNESSEE--statements contained in authenticated documents in existence for 30 YEARS or more will be admitted into evidence that establish or affect an interest in property. |
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Real v. Documentary
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Real: physical/documentary
Demonstrative: evidence prepared for purposes of explanation |
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3 forms of authentication
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1. testimony based on personal
knowledge 2. Distinctive characteristics(pearl handled gun) 3. Chain of custody-object had a substantially unbroken chain of possession |
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Authenticating Handwriting
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1. layperson with familiarity (no time limit) so long as not familiarity for purposes of litigation
2. comparison by an expert 3. comparison by trier of fact (judge or jury) |
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Authenticating Voice/telephone conversations
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Residence:
-call made to number assigned by a phone co. -self-identiication--jones speaking Business: -call made to number assigned -conversation related to biz reasonably transacted **ANY person familiar with an alleged speaker's voice may authenticate a recording of the voice by giving an opinion as to its identity. |
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photographs/motion picture/videotape/sound recording
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may be authenticated by testimony that it is a fair and accurate representation of the actual scene or event
-not necessary that photographer testify |
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scientific evidence
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i.e. ballistics, radar, blood
1. device must be in PROPER WORKING ORDER 2. device must be operated by a QUALIFIED INDIVIDUAL 3. technique must be GENERALLY ACCEPTED in the scientific field. |
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BER--generally
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to prove the contents of a writing the original writing must be produced if the terms of the writing are material.
secondary evidence i.e. oral testimony is admissible only if original is unavailable. |
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BER-when it applies
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1. writing is is a legally operative or dispositive instrument
OR 2. Knowledge of a witness concerning a fact results from havig read the document |
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Privilege against self-incrimination
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W may refuse to answer any question if its answer might tend to incriminate him.
Testimony is incriminating if it ties a W to the commission of a crime or would furnish a lead to evidence tying a witness to crime. |
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BER--n/a
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1. fact to be proved exists independently of the writing
2. writing is collateral to litigated issue 3. summaries of voluminous records 4. public records |
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BER--when secondary testimony allowed
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If a proponent cannot produce the original writing in court, he may offer secondary evidence of its contents if a satisfactory explanation is given for the nonproduction of the original.
Satisfactory explanations: 1. loss or destruction of the original 2. original is in possession of 3P outside the jurisdiction and is unobtainable 3. original is in possession of an adversary who, after due notice, fails to produce the original |
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BER--questions of preliminary fact for jury
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1. whether original ever existed
2. whether a writing, recording or photograph produced at trial is an original 3. whether evidence offered correctly reflects the contents of the original. |
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Objections--timeliness--trial
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-made after Q, before answer if Q calls for inadmissible matter
-if not before answer, must make motion to strike if answer emerges as inadmissible |
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Unresponsive Statement
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An unresponsive answer is subject to a motion to strike by examining counsel but not by opoosing counsel. Thus examining counsel can adopt an unresponsive answer if it not objectionable on any other ground.
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Objections--timeliness-depo
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-objections to form-->made when q is asked or it may be waived
-objections to substance of either question or answer--> may be postponed until depo transcript is offered into evidence |
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Objections--rule 103--generally
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timely and specific objection must be made in order to preserve that issue for appeal unless plain/prejudicial error has occurred.
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Obj--specificity--general
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one not stating grounds--
sustained-->will be upheld on appeal if there was any ground for the objection. Overruled-->will be upheld on appeal unless evidence was not admissible under any circumstances for any purpose |
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Obj--specific
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states grounds for objection
--sustained-->upheld only if ground stated was correct or if the evidence excluded was not competent and could not be made so. |
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Obj-opening the door
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one who introduces evidence on a particular subjec thereby asserts its relevance and cannot complain if adversary thereafter offers evidence on the same subject
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Plain Error
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error that is not only clear in retrospect but also causes a miscarriage of justice
elements: -1)error 2)that is clear and obvious under current law, 3) affects substantial rights 4)adversely affects fairness, integrity, or public reputation of judicial proceedings if uncovered |
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Harmless Error
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-factors:
-whether erroneously admitted evidence was primary evidence relied upon -whether the aggreived P nonetheless was able to present the substance of his claim existence and usefulness of curative instructions -extent of jury argument based on tainted evidence -was other proper evidence overwhleming i.e. can party in error prove that result would have been the same BEYOND A REASONABLE DOUBT |
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motions in limine
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p.309
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obj-introducing part of transaction
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where part of a conversation, act or writing is introduced into evidence, adverse party may require proponent of the evidence to introduce any other part that ought in fairness to be considered
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obj--motion to strike--unresponsive answers
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examining counsel may move to strike unresponsive answers, but opposing counsel may not
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See Judge and Jury Flashcards
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530-551
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offers of proof
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-relate to exclusion of evidence
an offer of proof may be made disclosing the nature, purpose and admissibilty of rejectd evidence, to persuade the trial court to hear the evidence and to preserve the evidence for review on appeal. -It may be made by witness testimony, a lawyer's narration or tangible evidence marked and offered |
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$ purpose of confrontation clause
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intended to guarantee a criminal defendant the right to be confronted with the witness against him.
guarantees the 1. right to be present at trial,2. the right to learn what evidence is being offered against her and 3. right to cross-examine witnesses |
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$ when does allowing hearsay into evidence violate confrontation clause
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Confrontation clause precludes admission of hearsay statement that are deemed "testimonial" UNLESS ∆ has been afforded an opportunity to cross-examine a ∆ either:
1. at the time the out-of-court statement was made; or (2) at trial. |
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$ definition of "Testimonial"
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1. ex parte in-court testimony or its functional equivalent9i.e. affidavits, custodial examinations, prior testiony that the ∆ had been unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorily)
2. extra-judicial statements . . . contained in formalized testimonial materials (affidavits, depos, prior testimony, confessions) AND 3. statments made under circs which would lead an objective W to reasonably believe that the statement would be available for use at a later trial BASICALLY, prior testimony at a preliminary hearing, before a grand jury, at a previously held trial, or statements made during police interrogations during an investigation to determine the occurrence of prior events after an emergency has passed potentially to be used for future prosecutorial or investigative purposes. |
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$ consequence of a statement being "testimonial"
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-excluded unless accused had an opportunity to cross examine or declarant testifies at trial and is subject to cross examination
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$ consequence of a statement being "non-testimonial"
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admitted as long as it falls within a hearsay exception
exception--if ∆ engaged in conduct DESIGNED to make declarant unavailable |
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Burden of persuasion
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the burden of a party to persuade the jury to decide an issue in its favor. If, after all the proof is in, the issue is equally balanced in the mind of the jury, then party with the burden of persuasion must lose.
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Burden of Going forward with the evidence
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burden of producing sufficient evidence to create a fact question of the issue involved.
When π makes out prima facie case the burden shifts to the ∆. if defendant meets burden ie. by presumption , then burden shifts back to π, who must rebut the presumption |
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Eerie doctrine
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in a diversity case, federal court must apply the substantive law of the state in which the court sits, but usually applies federal law to procedural matters.
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Judicial Notice--generally
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always relates to either:
1. whether the fact is an appropriate fact for judicial notice-->Judicial Notice is appropriatewhen fact is indisputable OR can be be verified through scientific principles 2. Assuming Judicial notice has been taken, what result--> depends on criminal or civil case |
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Judicial Notice--Criminal Case
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jury may but are not required to accept the fact has been established
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Judicial Notice--civil case
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fact judicially noticed is CONCLUSIVELY established
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Preliminary Hearing
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All preliminary fact questions involving the standards of trustworthiness of alleged exceptions to the hearsay rule are to be determined by the court.
During the hearing at which judge makes preliminary fact determination, both parties must be given an opportunity to present evidence wrt fact to be determined. Also, it is within the judge's discretion whether the jury should be excused during the preliminary fact determination. |
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MBE tip--worst answer question
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look for correct or winning answer choices and put “+” beside pick; if not sure leave it blank; if wrong put a “-”
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Voluminous writings
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contents of voluminous writings that are otherwise admissible may be presented in the form of a chart as long as the original documents are available to the other party for examination and copying.
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Spousal Privilege
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1. Criminal Case Spouse cannot be forced to testify against ∆
2. ANY case, civil or cim, spouse can refuse to disclose OR KEEP SPOUSE from disclosing confidential communications made b/t spouse DURING marriage. i.e. pillow talk. if one spouse tells a 3P, then they waive privilege but the other spouse is still entitled to the privilege. -does not terminate on death or divorce. |
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$ physician-patient privilege
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physician is foreclosed from divulging in judicial proceedings information that he acquired while attending a patient in a prof capacity, which information was necessary to enable the physician to act in his professional capacity.
-information given pertaining to a non-medical matter is not protected by the privilege. --NOT recognized in TN |