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24 Cards in this Set
- Front
- Back
Objections
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Must be time/made at first possible opportunity
Should be specific - rule name or number |
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Offer of proof
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Must make when judge makes ruling re:evidence party disagrees with
Say 1) what evidence is/would have been, 2) why in/admissible, 3) why important to case Must do to preserve appeal |
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Relevance
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Any tendency to make material fact more or less likely than without the evidence
Low threshold; need not be conclusive, just more or less relevant |
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Excluding relevant evidence
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Court has discretion to exclude relevant evidence if unfair prejudice substantially outweighs the relevancy
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When character evidence is NOT allowed
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When offered to show conformity on a specific occasion
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When character evidence allowed in criminal case
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Defendant calls character witnesses to provide knowledge (not opinion) concerning specific trait
Evidence offered of past crimes, wrongs, acts when not offered for conformity (motive, common scheme/plan, opportunity, modus operandi, knowledge) Character of victim (but rape shield applies) Character of witness re:truthfulness or impeachment (dishonesty/false statement OR felony) |
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Requirements for privilege
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Statements must be made:
1) In confidence 2) Asserted at 1st possible opportunity (e.g., deposition) 3) Not waived/voluntarily disclosed to 3rd person |
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LIST
types of privilege |
Attorney client
Doctor patient Marital privilege |
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Exceptions to attorney-client privilege
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ID of client and fact of representation
Future crime or fraud Litigation between attorney-client |
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Requirements for doctor-patient privilege
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Must be seen for diagnosis, treatment, medical advice
P cannot put physical condition in issue, e.g., by staute 90 days after filing PI case |
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Marital privilege requirements
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1) Confidential communication
2) Made during marriage 3) Either spouse asserts the privilege |
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Spousal testimony rule
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Cannot be forced to testify against spouse WHILE married
Irrelevant as to when communication occurred; question is whether CURRENTLY married |
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Lay opinion requirements
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Must be rationally based on sense perceptions and helpful to fact-finder (height, weight, speed)
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Expert opinion requirements
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Must be:
1) Beyond understanding of average juror 2) Qualified by knowledge, skill, training, education, experience Once qualified, can answer hypotheticals, based answers on inadmissible evidence Must testify to reasonable degree of probability |
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Hearsay definition
Exemptions |
Out of court statement offered to prove truth of matter asserted
Prior inconsistent statement under oath, prior consistent statement to rebut charge of recent fabrication made before motive to lie, prior identification of person |
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LIST
admissions by party opponent |
Own prior statement
Adoptive admission Tacit admission Vicarious admission by agent Statement by co-conspirator |
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LIST
methods of establishing unavailable declarant |
Dead, disabled, incompetent, privilege asserted, refusal to testify, unable to remember
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DEFINE
former testimony/declarant unavailable hearsay exception |
1) given under oath
2) against party whom statement offered had similar opportunity/motive to develop former testimony |
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DEFINE
dying declaration/declarant unavailable hearsay exception |
1) Homicide or civil case
2) speaker believed death was imminent (look at conduct, statements, doctor/nurse statements, seriousness of condition) 3) statement must concern cause or circumstances of impending death 4) speaker had opportunity for personal knowledge re:statement |
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DEFINE
statement against interest/declarant unavailable exception |
1) Against declarant’s pecuniary, proprietary, penal interest
2) Objectively/subjectively against interest 3) In criminal case, statement that inculpates or exculpates defendant will not be admitted without corroborative evidence |
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LIST
803 hearsay exceptions |
Present sense impression
Exited utterance Mental state Medical treatment Recorded recollection Business records Public records under seal Learned treatises Ancient documents |
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DEFINE
medical treatment exception to hearsay |
1) statement made to health care provider (not necessarily doctor) for purpose of medical treatment or diagnosis
2) statement must be reasonably pertinent to diagnosis or treatment - statement of patient not permissible; can include medical history or past symptoms |
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DEFINE
business record exception to hearsay |
Look for of multiple levels of hearsay
1) authenticated by custodian of record 2) maintained in ordinary course of business (not for litigation purposes) 3) created reasonably soon after event 4) relied upon internally in business; not opinions |
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DEFINE
confrontation clause |
Confrontation Clause prohibits the introduction of “testimonial” out-of-court statements against criminal defendant UNLESS
Declarant appears as a witness at trial OR Is unavailable and defendant had a prior opportunity to cross-examine the declarant concerning statement |