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OSUMT MIDLANDS

MIDLANDS

QuestionAnswer
402 Relevance. Relevant Evidence, any evidence tending to makes the existence or non existence of a fact more or less probable, is admissible. Evidence that is not relevant is NOT admissible
403 Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice,misleading the jury, cumulative evidence
404a Character Evidence. Evidence of a person's character is NOT admissible for the purpose of proving action in conformity therewith
404b Other Crimes, Wrongs, or Acts. Evidence of other crimes, is NOT admissible in order to show action in conformity therewith but can be admissible to show motive, opportunity, intent, preparation, plan,knowledge,identity,or absence of a mistake/accident
406 Habit; Routine Practice. Evidence of this whether corroborated or not and regardless or presence of eyewitness, is relevant to prove that the conduct of the person on a particular occation was in conformity with the habit or routine practice
407 Subsequent Remedial Measures. If measures are taken after the fact that would have made an injury less likely to occur, those measures are NOT admissible to prove negligence,culpable conduct. Can be used to prove control, feasibility of precaution measure
602 Lack of Personal Knowledge. A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Subject to 703
608(a) The credibility of a witness may be attacked with character evidence only pertaining to the truthfulness or untruthfulness of that witness. However, evidence of truthfulness is only admissible after the truthfulness of that witness has been attacked.
608(b) Specific Instances of Conduct. Other than crime convictions, cannot be used to attack of support a witness's credibility, except during cross exam when the instance involves the truthfulness of that witness or another witness being talked about.
615 Exlcusion of Wits. The court shall order wits to be constructively excluded so that they cannot hear testimony of other wits. This rule does not authorize constructive exclusion of party rep/wit authorized to be party rep
701 Opinion Testimony by Lay Wits. Opinion must meet 3 reqs. Must be rationally based on their perception, be helpful to clear understanding of testimony/determination of fact at issue, not based on scientific, technical, special knowledge w/in scope of 702
702 Testimony by Experts. In order to testify as expert, wit must be qualified by 1+: knowledge, skill, experience, training, edu. Once qualified, must meet ALL: based on sufficient f&d, product of reliable principles&methods, applied p&m reliably to case
703 Bases of Opinion Testimony by Experts. If expert bases opinions on facts that are generally relied upon by other experts in the field, underlying facts need not be admissible in court in order for opinions to be admissible.
705 Disclosure of Facts of Data underlying Expert. Can give opinions before underlying facts unless Court requires otherwise. Order does not matter.
801d2 Admission by Party Opponent-- NOT HEARSAY
802 Hearsay. Hearsay, an out of court statement being offered for the truth of the matter asserted, is inadmissible
803(1) Present sense impression. An exception to hearsay. A statement describing or explaining an event made by the declarantwhile he/she was perceiving the even or right after the event occurred. Usually no trigger event
803(2) Excited utterance. A statement about a startling even which was caused by the startling event
803(6) Records of Regularaly Conducted Business Activity. Statements made in documents taht are kept in the regular course of business adn that can be verified as autherntic bythe custodian of the document or qualified witness
803(18) Learned Treatises. Statements made in journals, periodicals, etc., established as a reliable authority by expert testimony or judicial notice. If admitted, these statements may be read into evidence but the treatise cannot be received as an exhibit
804 Declarant Unavailable; Hearsay Exception. Remember 2 levels you must overcome. 1 Give defintion of unavaibility and 2 Give the exception
805 Hearsay within HearsayIf evidence contains more than one level of hearsay, each level must meet an exception in order for the evidence to be admitted
MK Studios v. Princess Productions R. Recklessness requires proof of a risk with higher degree of magnitude than neg. Reckless conduct involves an easily perceptible danger of death or substantial physical harm and the prob. of harm must be substantially greater than that to prove neg. R>N
Motown Car Company v. Mink R. Civil recklessness does not require a showing of a conscious disregard of a known risk. Civ reck-reasonable person in actors position would have appreciated high degree of risk, regardless of being consciously aware. Must have known/had reason to know
Nasty Brewing Company's Famous IPA v. R Swanson and Co. R. All persons are required to give their surroundings the attention that a reasonable person would give them under the cricumstances, making due allowances for those things that would distract the attention or perception of a reasonable person
Bangs v. Kelly R. Consideration of physical/mental qualities are to be taken in consideration in determining tortious (wrongful) conduct. Trans loss of control-considered to relieve actor of liability
Wallace v. DeVeas R. Persons having superior skill or knowledge are required to conduct themselves consistent with such superor capactiyu. In the practice of a profession, the standard of care is the skill and knowledge normally possessed by members of that profession.
Gilbertson v. Everest Experience R. Lack of compliance with customs is relevant, but NOT dispositve for purposes of demonstrating whether conduct was done with reckless disregard for the safety of others.
Armstrong v. Bennett R. Pamphlets/brochures describing services to be rendered is considered contractual language.
Hopson v. Dawson R. Under rare circumstances, it is reasonable to take actions that involve a high degree of risk of serious harm to others. (i.e., rushing friend to hospital in pouring rain). Doesnt preclude liability if actors own behavior caused emergency
Kirby v. Davis R. Courts should consider whether emergency was predictable and could/should have been addressed by appropriate procedures
Smith v. Kierce R. Law will generally enforce contracts that release party for neglience but will generally void contract provisions that propose to release party for prospective recklessness.
Yanka v. Edwards Industries C. Causation-2 parts. 1-direct "but for" 2-foreseeable
Jackson v. Bryan AD. Plaintiffs own contributory negligence is nt defende in actions brought for harms caused by def's recklessness. P's own recklessness IS an AD, so is assumption of risk
Duncan v. Kendall AD. The standard for determining whether a plaintiff was reckless is the same as that for determining whether defendant's conduct was reckless
Keith v. Mark AD. Basis of Ass. of risk D is p's voluntary consent to accept risk and look out for the P's own well being. Ass. of risk requires showing of actual, subjective awareness on part of P. P must KNOW exist. of risk and appreciate its unreasonable character.
Vir v. Londo Manufacturing Ag. Corp is charged with knowledge of facts learned by its agents within scope of employment. Ought and reasonably expected to act upon facts, communicate facts.
Filteau v. Wanek Au. As long as prepond. of evidence shows person made statement, court must assume person made it
Riley v. Jones Au. the fact that email is listed as coming from an address that is either known or purports to belong to certain person is sufficient to lay found. in order to determing admissibility
Jeff v. Wario's Toolkit p- must establish all elements by prep. of evidence (More likely than not true). AD must be proven by defendant by prep. of evidence
Coburn Camera Crew v. Ellicott City "person" refers to corporations also. D cant say acted safely with respect to other situations separate from case at hand. P cat intorduce business' prior bad acts to prove bad practices. BUT, nothing prevents parties from offering traits (404b)
Davis v. Adams Ex. Scienfitic evidence must be relevant and reliableconsider only methods empliyed and data relied upon, not conclusions themselves
Richards v. Mississippi BBQ Court must distinguis experts relying on hearsay to form scientific conclusions (admissible) from conduits who memely repeat what they are told (inadmissible). Must relate to specialized knowledge
Tarot Readers Association of Midlands v. Merrell Dow Reliability- judges consider testability, subjected to peer review, publication, known error rate, acceptance. While relevant ARE NOT DISPOSTIVE. Lack of publication does NOT automatically foreclose admission
Thomas v. Davis FI. No rebuttal witS. One side cant say that evidence opposing side is presenting is irrelevant based on something that their side chooses to neglect to bring up. Just because D isnt saying nep. didnt breach duty, doesnt mean P cant bring the breach up
Karan v. Baboons, Inc FI. Even if bifurcated trial, p still must establish harm in order to establish d's liability on recklessness. @ same time, should ONLY discuss liability (not damages) (401 & 403)= judges vigilant
Davis v. Happyland RS. Both deceased and surviving spouse are party opponents. Not HS, but NOT enough to establish harm. Disress, loss of companionship = NOT rel AND prejudicial.
Created by: kaitstephens09