Chapters 4,5,6

Penny-Ann Lupton
Flashcards by Penny-Ann Lupton, updated more than 1 year ago
Penny-Ann Lupton
Created by Penny-Ann Lupton almost 6 years ago
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ACT Year 12 Certificate Evidence Flashcards on Chapters 4,5,6, created by Penny-Ann Lupton on 06/14/2015.

Resource summary

Question Answer
What is the threshold test? 4pts -test of whether evidence is admissible into evidence. -Is evidence something trier of fact may consider? Is it material or relevant? -threshold test for admission of any evidence requires evidence be both relevant and material -Not all relevant &material be admitted
Material fact a fact that relates to any matter in dispute between parties
Relevant fact a fact that logically supports a proposition
Conditional relevance term describing evidence that may not initially appear relevant but is admitted on condition that its relevance will be established
Probative value -degree to which a potential piece of evidence helps prove a proposition
Circumstantial evidence indirect evidence from which trier of fact can logically infer existence of a material fact
Prejudice Potential to be given undeserved weight by the jury
Probative Strength of evidence in proving what party proposes
Consciousness of Guilt 5 pts •Behaviour of accused may be admitted as evidence he was behaving in "guilty manner." •Ran away from scene of crime/lied about his whereabouts on night in question •Behavioural evidence is an inference based on circumstantial evidence. •Usually admitted on basis it is relevant. •In civil cases, consciousness of guilt could be when a person fixes something that caused injury
Prior Judicial Determinations 3pts •single incident can result in both criminal/civil legal proceedings •courts ruled conviction is admissible into the civil proceeding as prima facie proof of the act. •criminal case always tried before civil proceedings to avoid undue prejudice to defendant, whose right to remain silent would be prejudiced in defending the civil action.
Hearsay -statement originally made out of court, that Is repeated in court for truth of its contents
Test for Hearsay 3pts 1. Is the proposed evidence a statement originally made outside courtroom? 2. Is it being repeated in court? 3. Is it presented to show what was said is true?
implied statement 3pts -action, behaviour, or course of conduct that conveys information to observers 1st type-intended such as pointing finger at someone 2nd type-not intended i.e scenario about poisoning
Safeguard test for hearsay 3pts 1. person who made statement is testifying under oath & subject to sanctions/penalties for perjury. 2. trier of fact can observe person making statement & assess reliability & truthfulness. 3. opposing part has opportunity to cross-examine witness /attack her testimony to test its truthfulness.
Out of Court Statements: Not Hearsay 2pts -Out of court statement may not be admissible when offered for truth of contents. -May be admissible for other purposes that have nothing to do with whether contents of statement are true.
Admission of a party - anything said by party by way of word or conduct that other party wishes to introduce against that party
Vicarious admission admission made by auth speaker for party
Admission by action meaning /intention conveyed by an act/gesture
Conspiracy common design/plan by 2 or more persons to commit a criminal act or omission
Co-conspirator exception rule allowing evidence against one member of conspiracy as evidence against all other members
Conditionally admissible 3pts •evidence admitted for specific purpose but not admissible on larger issue •May be admitted if jury considers WHETHER CONSPIRACY EXISTS. •Cannot be used in determining WHETHER ACCUSED IS A MEMBER of conspiracy.
Declaration against interest -statement made by party that is against party's legal interest
Pecuniary or proprietary interest 2 pts •Concerned with financial/ownership matters •Person making statements that can cost him money, the statements are considered sufficiently reliable that should be admitted into evidence.
Penal Interest a matter that could result in the person's being incarcerated
Dying declaration -statement made by person who is certain they are about to die
Test for Dying Declaration 5 pts 1. Maker of statement must be DEAD. 2. At the time, the person must have KNOWN he/she was going to die almost immediately. 3. Statement must have been ADMISSIBLE if person who made it had lived. 4. Statement about who/what CAUSED maker of statement to die. 5. Criminal case seeking to admit statement RELATES to death of statement-maker.
Test for Statement against penal interest 5pts 1.Person making statement must be dead, insane, out of jurisdiction, or too ill to testify. REFUSAL to testify not sufficient. 2. Person making statement must believe he /she VULNERABLE to criminal prosecution as result of making statement. 3.The vulnerability to criminal prosecution cannot be REMOTE 4.Court should consider if any other EVIDENCE supporting statement against penal interest and whether there is connection between person making the statement and accused person. 5.Court will look at TOTALITY of circumstances to determine admissibility. Some statements may be inculpatory (tending to incriminate) and exculpatory (tending to exonerate) and would not meet test.
Res gestae -a spontaneous statement statement made in excited state or expressing an existing physical, mental, or emotional state
Excited utterance statement made while speaker's mind is still dominated by a startling event
Present Impression 2 pts -Statement regarding a person’s perception of their IMMEDIATE PHYSICAL SURROUNDINGS or actions -Statement does not have to be made in a life-threatening situation, but the comments do have to be almost instantaneous with no opportunity for concoction
Business record -a record made in the ordinary course of business by individual performing the duties of employment who has no motive to fabricate
Test to admit business records 5 pts 1. Made in ORDINARY course of business, 2. By a person whose DUTY was to keep such records, 3. Person did so from PERSONAL knowledge, 4. Made at the TIME of the event 5. Person making records had no MOTIVE to misrepresent them
Past Recollection Recorded 2 pts -Witness to incident will write notes or otherwise record her perceptions of the incident as it occurred. -Notes must be at the time/shortly after,
Test for past recollection recorded 4 pts 1. must have been recorded RELIABLY. 2. At time, must have been FRESH/vivid to be probably accurate. 3. Witness must be able to assert record accurately represented his KNOWLEDGE and recollection at the time or "knew it to be true at the time." 4. The ORIGINAL record itself must be used, if it is procurable.
Test for Admissibility of prior evidence 3 pts 1. Witness is unavailable for the trial, 2. Material issues and the parties are substantially the same in both proceedings, 3. Opposite party had the opportunity to cross-examine in earlier proceeding
Costs of presenting prejudicial evidence •excessive use of court TIME •FAIRNESS to the parties •potential to CONFUSE the issues
what does a judge consider determining probative value •CREDIBILITY only where it is so suspect as to be misleading •RELIABILITY only where it is so suspect as to be misleading
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