Fed Evidence: Presentation Relevance and Hearsay

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Author:
mjabali
ID:
278352
Filename:
Fed Evidence: Presentation Relevance and Hearsay
Updated:
2014-07-21 18:09:48
Tags:
evidence
Folders:
Evidence
Description:
mode of presentation
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  1. mode of presentation: definition of judicial notice
    court's acceptance of a fact as true without requiring formal proof
  2. mode of presentation: judicial notice: requirements
    • - adjudicative (NOT legislative) facts
    • - not subject to any reasonable dispute
    • - that are generally known
    • - and accurately and
    • - readily determinable, and from a 
    • - source that cannot be reasonably questioned
  3. mode of presentation: leading questions: allowable leading questions on direct examination
    • foundational or basic information
    • a witness who has trouble communicating (i.e. child)
    • adverse or hostile witness on direct examination
  4. mode of presentation: improper questions [5]
    • 1. compound questions
    • 2. questions that assume facts not in evidence
    • 3. argumentative questions- intended to provoke an argument
    • 4. questions that call for a conclusion/improper opinion for which the witness is not qualified
    • 5. repetitive questions- those that have already been asked and answered.
  5. mode of presentation: witness who don't have to be excluded
    • - defendant (in a criminal case)
    • - an officer or employee who is the designated representative of a corporation
    • - advisory witnesses and
    • - victimes
  6. mode of presentation: presumption: if seeking to raise presumption from destroyed evidence, must show:
    • - destroyed intentionally
    • - evidence was relevant;
    • - and  victim acted with due diligence to prevent or recover
  7. mode of presentation: cross-examination generally limited to the subject matter of the direct examination and matters affecting the credibility of the witness, but court may allow inquiry into other matters
  8. relevance: character evidence: in cases in which character or a trait of character of a person is an essential element of a charge, claim or defense, proof may be made by specific instances of that person's conduct
  9. character evidence: may use in these types of civil cases:
    • - past sexual assault and molestation by a D in sexual assault and molestation cases
    • - when character is an essential element
  10. relevance: character evidence: propensity applies to people, not animals (so can't say a dog, or horse generally tame, etc.)
  11. prior bad acts: not admissible to show propensity, but admissible to show:
    • motive
    • intent
    • absence of mistake
    • identity
    • common plan
    • opportunity
    • accident
    • preparation
    • knowledge
  12. Form of prior bad acts
  13. approach to hearsay: 1) is it an assertion 2) made out of court 3) who actually asserted it (who is the declarant)?
  14. hearsay defintion
    out of court statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted
  15. inadmissible hearsay examples
    - statements in a police report that are attribute to witnesses or to prove conclusions of the investigating officer

    - statements made by a 3rd party that a witness heard and wants to admit in testimony
  16. hearsay exceptions: newspapers are self-authenticating
  17. Hearsay exceptions: hearsay allowed when declarant's availability is immaterial: recorded recollection requirements
    • 1. record about a matter the witness once knew about
    • 2. the witness made or adopted the record when the matter was fresh in his mind
    • 3. the record accurately reflects the witness' knowledge; AND
    • 4. the witness now cannot recall the events well enough to testify, even after consulting the writing while on the stand
  18. hearsay exceptions: hearsay allowed when declarant's availability immaterial: business records admissible when:
    • 1. record is kept in the course of regularly conducted business activity;
    • 2. the making of the record was a regular practice of the activity; AND
    • 3. the record was made at or near the time that someone had knowledge about the activity

    BUT may be deemed inadmissible if the source or the preparation of the information appears to lack trustworthiness
  19. hearsay: exemptions: admissions
    A defendant's statement to police is admissible against him as an admission.

    -Admissions are the words or acts of a party-opponent or his predecessor or representative, offered as evidence against him

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