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| Guidelines | 1. Determine if criminal case or civil case,
2. Situate proceeding (where is case procedurally),
3. What is the purpose evidence is being offered (impeach, truth of matter asserted, etc.),
4. Is the evidence relevant
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| Relevancy- Prejudicial impact v. Probative value | Even relevant evidence excluded if substantially outweighed by the danger of unfair prejudice
Unfair surprise is not a reason to exclude evidence
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| Relevancy- R 403 A trial judge has discretion to exclude relevant evidence if | 1. Probative value is substantially outweighed by danger of unfair prejudice,
2. Cumulative evidence,
3. Waste of time, and
4. Confusion of the issues
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| Judicial notice of facts | 1. Which are capable of accurate or ready determination, and
2. Which are common knowledge within the jurisdiction of the court (ct. records)
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| Judicial notice of facts- Significance Civil case v. criminal case | Civil case- fact is conclusively established on a jury
Criminal case- prosecution burden of producing evidence on that point is satisfied
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| Best evidence rule | Whenever trying to establish the contents of a writing the original must be produced, unless it is shown to be unavailable
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| Handwriting authentication | Hand= authentication done by-
1. Someone who is familiar with the persons handwriting (familiarity had to be gained before trial),
2. By an expert, or
3. By trier of fact
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| Voice authentication | 1. By someone with familiarity (familiarity before trial or for purposes of trial),
2. By an expert,
3. By an trier of fact
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| Character evidence- Rule 1 in a criminal case | 1. Prosecution cannot introduce reputation evidence of D's bad character if purpose is to show D acted in conformity of reputation (no propensity evidence),
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| Character evidence- Rule 2 in a criminal case | 2. D is allowed to present evidence of relevant good character traits to establish acted in conformity with good character (not specific facts),
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| Character evidence- Rule 3 in a criminal case | 3. If D does present evidence of good character then D opened door and prosecution can rebut with evidence of D's bad character (repuration evidence, not specific acts)
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| Character evidence- Rule 4 in a criminal case | 4. Evidence of prior crimes or bad acts are NEVER admissible to show D probably acted unlawfully again, but can be admitted for any other purpose (MIMIC)
Admissible if MIMIC= Motive, Intent, Absence of Mistake, Identify, Common plan or scheme
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| Character evidence- Rule 5 in a criminal case | 5. If D testifies automatically places character for truth in issue
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| Character evidence- Rule 1 in civil cases | 1. Inadmissible unless directly in issue or an essential element of D's claim or defense,
Most common cases for character evidence-
1. Defamation,
2. Child custody,
3. Fraud,
4. Negligent entrustment,
5. Self-defense
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| Character evidence- Rule 2 & 3 in civil cases | 2. If litigant has some other purpose for introduction of evidence then prohibition won't keep it out if showing D acted in conformity of their character,
3. If D testifies automatically places character for truth in issue
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| Impeachment- Ways to impeach | 1. Prior inconsistent statement,
2. Bias or motive to misrepresent,
3. Prior conviction,
4. Specific acts of misconduct(never convicted) that bear on truthfulness, and
5. Bad reputation for truthfulness
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| Impeachment- Ways to impeach Prior inconsistent statement | Only to impeach NOT for the truth of the matter inserted
Exception: Statement made under oath as part of legal proceeding then allowed for truth and impeachment
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| Impeachment- Ways to impeach Bias or motive to misrepresent | Always admissible
Extrinsic evidence can be admitted to prove
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| Impeachment- Ways to impeach Prior conviction | Prior crime involving dishonesty or false statement (e.g. perjury)= then can use to impeach (felony or misdemeanor does not matter)
Serious crime such as felony punishable by more than one year= allowed, but trial judge has discretion to exclude
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| Impeachment- Ways to impeach Prior conviction |
If too remote (more than 10 years have elapsed since release of confinement) then cannot use to impeach
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| Impeachment- Ways to impeach Specific acts of misconduct (never convicted) that bear on truthfulness | Inquired into on cross-examination to impeach, but ct can use discretion to prevent
No extrinsic evidence allowed if witness denies
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| Impeachment- Ways to impeach Bad reputation for truthfulness | Can be proven by extrinsic evidence
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| Hearsay | Out of court statement offered to prove the truth of the matter asserted
Analysis-
1. Isolate statement,
2. Determine declarant of statement,
3. Purpose evidence is offered
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| Hearsay exceptions | 1. Present sense impression (most common tested),
2. Excited utterance,
3. Statement concerning mental or physical condition,
4. Statement made for purpose of medical diagnosis or treatment,
5. Recorded recollection,
6. Business records,
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| Hearsay exceptions continued... | 7. Former testimony (witness unavailable at time of trial),
8. Dying declaration (witness unavailable at time of trial),
9. Statement against interst (witness unavailable at time of trial)
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| Non-hearsay | Statements allowed in for the truth of the matter asserted
Requires the declarant be testifying at trial or hearing, and be subject to cross-examination
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| Types of non-hearsay | 1. Admissions,
2. Prior sworn inconsistent statements,
3. Prior consistent statements,
4. Prior identifications
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| Hearsay exception- Dying declaration | 1. Belief that death is imminent,
2. Statement concerning cause or circumstances surrounding death,
3. Declarant must be unavailable,
4. Only applies in ALL civil cases and homicide cases
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| Hearsay exception- Excited utterance | Statement related to startling event made while declarant was still under the stress of the excitement
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| Hearsay exception- Present sense impression | Statement describing or explaining an event, made while the declarant was observing or perceiving the event or immediately thereafter
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| Hearsay exception- Statements made for medical diagnosis or treatment | An out of ct. statement about nature of injury or medical condition made to medical personel is admissible
ONLY if it relates to medical diagnosis or treatment
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| Hearsay exception- Business record | Admits into evidence records that are kept in the ordinary course of business
Record has to be made by person who has duty to make record as part of his employment
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| Statement or partial statement admitted as part of prior statement or partial statement admitted | When a statement or part of a statement is introduced an adverse party can introduce another or the other part of the statement on fairness grounds
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| Hearsay exception- Business record |
The declarant must have personal knowledge of the fact stated in the record, or must have received info. from someone who had personal knowledge due to recording during their ordinary course of business
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| Employee statements | Statements by an agent concerning any matter within the scope of the agency is admissible against a principal
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| REMEMBER- | 1. An admission answer is favored over an hearsay exception answer,
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| Admissions | 1. Said by party,
2. Present in court,
3. Subject to cross-examination,
4. Not hearsay
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| Offer to settle | Any statement made in conjunction are inadmissible
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| Offer to pay medical expenses | Inadmissible to prove liability
But, can severe any other statements made in conjunction are admissible
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| Hearsay exception- State of mind | Circumstantial evidence offered to show the declarant's then existing state of mind, emotion, or physical condition
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| Attorney-client privilege | Protects confidential communication between an attorney and a client
Covers confidential communication between attorney and prospective client
Protects communication between client and an attorney representative
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| Marital privilege | Only applies when husband and wife is ALONE with a confidential communication
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| Experts testimony | Base testimony on personal observation, authoritative texts, and facts that are reasonably relied on by other experts in the field
Do NOT have to have personal knowledge of facts
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| Lay witness testimony | Anything that is rationally based in that witnesses perception
Must have first hand knowledge of
NO legal conclusions
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