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How is relevance of evidence determined? When are certain similar occurrences relevant?
- Evidence is relevant if it tends to make the existence of any fact of consequence to the outcome more probably than it would be without the evidence. It must relate to the present litigation.
- In certain circumstances past occurrences are relevant:
- 2.Prior false claims
- 3.Similar Accidents or Injuries Caused by the same event or condition
- 4. Previous Similar Acts to prove intent
- 5. Rebutting claims of impossibility
- 6. Habit
What are the 4 types of public policy exclusions of relevant evidence
- Liability insurance
- Subsequent remedial measures
- Settlement offers and withdrawn guilty pleas (claim and dispute)
- Offers to pay medical expenses
What are the two ways to authenticate real evidence?
- Testimony from a witness that she recognizes the object as what the proponent claims it to be
- Evidence that the object has been in a substantially unbroken chain of possession.
What is the Best Evidence Rule?
The original writing must be produced if it is a legally operative document or the knowledge of a witness concerning a fact results from having read the document
When does the parol evidence rule not bar evidence concerning a contract after its final integration?
- An incomplete or ambigous contract
- The Party is alleging facts or a mistake that would entitle him to reform the contract
- The party is challenging the validity of the contract
What is the difference between a recorded recollection and a refreshed recollection?
- A writing used to refresh recollection cannot be read into evidence. A recorded recollection may be read into evidence if the proper foundation is laid. That foundation must include proof that:
- The witness at one time had personal knowledge of the facts in the writing
- The writing was made by the witness or under her direction
- The writing was timely made while still fresh in the witness's mind
- The writing is accurate
- The witness has insufficient recollection to testify fully and accurately
When is texts and treatises allowed to be read into evidence
- When an expert is on the stand and
- And the relevant portion is not received as an exhibit
Under the federal rules a witness may be impeached by any party. What are the ways that a witness may be impeached?
- Prior inconsistent statements (if extrinsic evidence, ask witness about it at some point)
- Presenting evidence of bias (if extrinsic evidence ask witness about bias first)
- Conviction of certain crimes
- Opinion or Reputation about truthfulness
- Dishonest acts (no extrinsic evidence)
When can a witness be impeached by evidence of past crimes?
- Any crime involving dishonesty
- Felony not involving dishonesty at judges discretion
- The crime must not be more than 10 years old or a juvenile offense
When does the attorney client privilege not apply? 3 situations
- Attorney's services were sought to aid in the planning or commission of something the client should have known was a crime or fraud
- Communications through a deceased client
- Communications involving a breach of duty dispute between attorney and client
What is the definition of hearsay? and what are three things that are not offered to prove totma?
- A statement uttered by one other than the declarant while testifying at a trial or hearing offered in evidence to prove the truth of the matter asserted.
- Verbal Acts or legally operative facts
- statements offered to show their effect on the hearer or reading (prove notice)
- Circumstantial evidence of declarant's state of mind
What are two exceptions to hearsay?
- Previous Statements by a Witness
- Admissions by a party opponent
What is the definition of unavailability?
- Protected by privilege
- Dead or seriously ill
- Refuses to testify against court order
- Lack of memory
What are the five exceptions to hearsay based on unavailability?
- Statement against interest
- Statement against party who procured declarant's unavailability
- Family History
- Dying declarations
- Former testimony
Confrontation Clause Requirements
- 1. Offered against accused in criminal case
- 2. Declarant unavailable
- 3. Testimonial in nature
- 4. Accused had no opportunity to cross-exam declarant at time
- Prosecution demonstrates D's wrongdoing caused unavailability
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