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64 Cards in this Set
- Front
- Back
Role of judge |
Decides preliminary questions of competency of evidence |
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Role of jury |
Determine weight and credibility of evidence |
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Challenge to evidence ruling |
Ruling must affect substantial right of a party and the party must notify judge of error - Through an objection if evidence is admitted - Through an offer of proof if the evidence is excluded |
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Completeness rule |
For partial introduction of evidence, adverse party may compel introduction of omitted portion to help explain admitted evidence |
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Judicial notice |
Court's acceptance of a fact as true without requiring formal proof |
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ADjudicative facts |
Subject to judicial notice if fact is not subject to reasonable dispute bc Generally known within the community, or Can be accurately and readily determined from reliable sources |
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Mode and order of presentation of evidence - trial process |
Judiciary has control over order of witnesses/presentation of case to effectiveley determine truth and avoid wasted time or witness harassment; may also question or call witnesses |
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Leading questions |
Direct - not permitted unless hostile witness, needed to develop witness's testimony, or witness struggles with communication Cross-examination - OK |
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Compound questions |
Improper - requires answers to multiple questions |
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Question assuming facts not in evidence |
Not OK |
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Argumentative questions |
Not OK |
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Question calling for conclusion/opinion |
Not OK |
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Repetitive question |
Not OK
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Burden of production |
Must produce legally sufficient evidence for each element of claim such that reasonable trier of fact could infer alleged fact has been proven |
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Burden of persuasion |
Civil - preponderance of the evidence Criminal - beyond a reasonable doubt |
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Rebuttable presumption |
Shifts burden of production to opposing party |
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Conclusive presumption |
Cannot be challenged by contrary evidence |
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Evidence is relevant if |
- has a tendency to make a fact more or less probable than it would e without the evidence (probative value) - the fact is of consequence in determining the action (material) |
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Direct evidence |
Identical to factual proposition it is offered to prove |
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Circumstantial evidence |
Indirect proof of factual proposition through inference from collateral facts |
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Exclusion of relevant evidence |
If probative value is substantially outweighed by the danger of unfair prejudice |
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Relevance dependent on existence of fact |
Proof must be sufficient to support finding that the fact does exist |
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Curative admission of irrelevant evidence |
Admitted when necessary to rebut previously admitted irrelevant evidence to remove unfair prejudice |
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Character evidence is typically |
inadmissible |
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Character evidence - civil cases - inadmissible to... |
prove person acted in accordance with that character/trait on a particular occasion |
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Character evidence - civil cases - admissible when... |
character is essential element of claim/defense instead of proving a person's conduct usually defamation, negligent hiring/entrustment, and child custody |
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Criminal case - D's character - prosecution... |
not permitted to introduce evidence of D's bad character to prove propensity |
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Criminal case - D's character - defense... |
permitted to introduce evidence of good character, but must be pertinent, and must be reputation/opinion testimony |
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Criminal case - character - opening the door |
Once D offers evidence of good character, prosecution can attack D's character |
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Criminal case - victim's character - defense... |
D may introduce reputation/opinion evidence of victim's character when relevant to defense asserted |
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Criminal case - victim's character - prosecution... |
Rebuttal evidence of victim's good character when D has introduced evidence of victim's bad character |
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Methods of proving character |
Testimony about person's reputation or witness opinion |
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Character impeachment |
Evidence of witness's untruthfulness is admissible/relevant to impeach witness |
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Prior bad acts - in general |
Not admissible to show D's criminal propensity to prove he committed crime in question |
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MIMIC stands for |
Motive Intent absence of Mistake Identity Common Plan |
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MIMIC evidence may be introduced for... |
for any purpose except for propensity |
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Specific acts as character evidence - civil case |
When character evidence is an essential element of claim/defense, specific acts or opinion/reputation |
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Specific acts as character evidence - criminal case |
Not admissible except when character is element of claim |
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Specific acts as character evidence - cross-examination |
Character witness can be asked about specific acts committed by person witness is testifying about |
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Habit evidence |
Evidence of persons habit admissible to prove person acted in accordance with habit on a particular occasion May be admitted without corroboration and without an eyewitness |
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Witnesses 0 competence - personal knowledge |
non-expert witness must have personal knowledge of matter in order to testify |
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Dead man's statute |
Protects decedent's estate from parties with financial interest in estate Waiver - protected party can waive by failing to object to disqualified witness or introducing protected evidence Not applicable in criminal cases |
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Impeachment - generally |
Challenge to witness's testimony can be based on character for truthfulness, bias, ability to perceive/testify accurately, contradictory prior statement, or another witness |
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Witness's criminal conviction |
Can be used to impeach witness's character for truthfulness Crimes not involving dishonesty/false statement - admissible only if felony or punishable by death COnviction or release > 10 years ago - admissible if probative value substantially outweighs prejudicial effect and reasonable written notice |
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Prior inconsistent statements |
Can be used to impeach if inconsistent with material part of witness's testimony |
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Impeachment of hearsay declarant |
Credibility of dclarant can be attacked by any evidence admissible if a declarant had testified as witness |
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Rehabilitation of witness |
Explain/clarify on redirect examination Offer oponion/reputation evidence of witness's character for truthfulness Offer prior consistent statement to rebut express/implied charge that witness lied due to improper motive/influence |
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Present recollection refreshed |
Witness may examine any item to refresh witness's present recollection, and testimony must be based on refreshed recollection |
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Past recollection refreshed |
Memo/record about matter witness once had knowledge of but now has insufficient recollection of to testify about may be admissible under recorded recollection hearsay exception |
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Lay witness opinion |
Admissible if based upon the perception of the witness and helpful to clear understanding of witness's testimony or determination of a fact in issue |
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Expert witness testimony |
Scientific, technical or some other specialized knowledge |
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Qualified expert |
Qualified as an expert by knowledge, skill, experience etc |
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Authentication of tnagible evidence |
All tangible evidence must be authenticated with sufficient evidence to support a finding that the thing is what its proponent claims it is |
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Physical objects authenticated through |
Personal knowledge Distinctive characteristics Chain of custody Reproductions X-rays, EKGs - process was accurate, verified |
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Documentary evidence authenticated by |
Stipulation, eyewitness testimony, or handwriting verification Ancient documents - 20 years |
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Best evidence rule - original document |
Must be produced to prove contents of writing when contents are at issue or witness is relying on contents when testifying Handwritten copies of original are not duplicates and are admissible under BER only when original is lost |
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Best Evidence Rule - original not required when originals are lost or destroyed in good faith |
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Parol Evidence Rule |
Operates to exclude evidence that, if introduced, would change the terms of a written agreement |
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Extrinsic evidence always admissible to: |
Clarify ambiguity Prove course of dealing show fraud/duress/mistake Show presence/absence of consideration |
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Subsequent remedial measures |
Not admissible to prove negligence, culpable conduct, defective product/design, or need for warning/instruction Admissible for impeachment or ownership |
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Compromise offers and negotiations |
Not admissible to prove/disrove validity or amount of disputed claim, or for impeachment by prior inconsistent statement Admissible to show bias or prejudice, negate claim of undue delay, or prove obstruction |
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Evidence of payment, offers, medical expenses |
Not admissible to prove liability, but statements accompanying offer may be admissible |
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Plea negotiation as evidence |
Withdrawn guilty pleas, pleas of no contest, and statements made while negotiating plea bargain or during plea proceeding are not admissible |
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Confrontation clause |
Prefers face to face confrontations, but can be denied if important public interest at stake |