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Donashimen Assadollahof EVIDENCE Inglês 48 flashcards

Flashcards do conjunto (48)

  1. 1FRE Exemptions / CEC Exceptions1. Party Admission
    2. Vicarious Party Admission
    3. Declaration Against Interest
    4. PIS
    5. PCS
    6. Prior Stmts of Identification
  2. 2Party AdmissionBOTH (FRE and CEC) THE SAME- a party admission is a stmt made
    1. by A PARTY,
    2. by someone whose stmt is attributable to a party or
    3. by the PARTY'S OPPONENT
  3. 3Vicarious Party Admission FREFRE RULE-
    1. stmt made by employee OF A PARTY
    2. is a party admission OF THE EMPLOYER
    3. if stmt [concerned a matter within the scope of employment] AND
    4. it [was made during employment relationship]
  4. 4Vicarious Party Admission CEConly stmts that are 1. by employees
    2. whose CONDUCT makes the employer vicariously liable under the doctrine of respondent superior are admissible.
  5. 5Declaration Against Interest FRE1. Stmt made by an UNAVAILABLE DECLARANT is admissible IF
    2. at the TIME when the stmt was made
    3. it was against the financial or criminal interest of the declarant (against declarant PROPRIETARY, PECUNIARY interest) OR
    4. it exposed Declarant to civil or crime liability (PENAL liability)
  6. 6Under FRE- where Defendant seeks to introduce stmt a declaration against its interest as the declarant what must he dothe stmt must be CORROBORATED to be admissible as a declaration against interest
  7. 7Declaration against interest- CEC1. stmt made by UNAVAILABLE DECLARANT
    2. admissible if at time it was made
    3. it was against the financial or criminal interest of the declarant, OR
    4. the stmt was made against declarant's SOCIAL INTEREST bc it risked making the declarant an object of (1) hatred, (2) ridicule or (3) social disgrace in the community
  8. 8Prior Inconsistent Stmt FREif PIS was given
    1. UNDER OATH
    then 2. it is EXCLUDED from hearsay rule AND
    3. can be admitted to prove the TRUTH of the facts asserted
  9. 9Prior Inconsistent Stmt CECStmt is considered HEARSAY
    1. EXCEPT FOR ALL INCONSISTENT stmts
    2. that were made by the witness
    3. regardless of made under oath or not
    4. CAN be admitted to prove the truth of facts asserted
  10. 10Prior Consistent Stmt FRE1. if PCS is otherwise made admissible on the issue of W'S CREDIBILITY ==> THEN ITs also admissible to prove the TRUTH of the their CONTENT
  11. 11PCS - FRE1. admissible if
    2. is to rehabilitate the witness after an inference of recent fabrication has been raised OR
    3. used to rehabilitate the DECLARANT'S credibility as a witness when attacked on another ground - i.e. charges of inconsistency or faulty memory
  12. 12PCS- CECEvidence of PCS is admissible IF the evidence is offered AFTER either:
    1. the evidence of a PIS has been admitted to attack the witness's CREDIBILITY or
    2. evidence of an express or implied charge has been made w/ re: to witness's testimony being recently fabricated or is influence by bias or some other motive AND
    3. In either case (1 or 2) the PCS MUST BE MADE PRIOR to the alleged inconsistent stmt or prior to the arising of the alleged bias, motive for fabrication or other improper motives.
  13. 13Prior Stmts of IDENTIFICATION FRE and CEC1.out of court stmt
    2. made by a witness
    3. identifying the accused IS admissible
    IF 4. stmt of identification was made AFTER PERCEIVING person AND (2) after declarant testifies at trial (subject to cross) about THAT STMT
  14. 14WHAT MUST happen in order for prior stmt of identification to be admissibleprior out of court identifications by a witness must be made by a witness who is PRESENT TO TESTIFY IN CURRENT TRIAL (SUBJECT TO CROSS)
  15. 15Prior Stmt of Identification CEC1. a hearsay exception
    2. stmt of identification are LIMITED TO CRIMINAL TRIAL
    AND the additional requirements are that
    3. stmt was made at the time when the crime or the occurrence was FRESH in the witnesses memory AND
    4. witness must testify that he made this ID and
    5. witness must twisty that the identification was a TRUE REFLECTION o this opinion at that time
  16. 16List all hearsay exceptions1. hearsay exceptions where declarant's availability is immaterial
    = see next NC
    2. Stmt of Mental or Physical Condition
    3. Business Records
    4. Public records
    5. Learned Treatises
    6. Residual Hearsay Exception
    7. Unavailability of Declarant
    8. Dying Declaration Exception
    9. Former Testimony Exception
  17. 17For Which of the hearsay Exceptions is declarant's availability immaterial1. Present Sense Express -FRE / Contemporaneous Statement - CEC
    2. Excited Utterance - FRE/ Spontaneous Stmt - CEC
    3. Stmt Describing Infliction or Threat of Physical Abuse- THE OJ EXCEPTION in CA only
  18. 18What are the exceptions under stmt of mental or Physical conditions1. Declaration of then existing physical or mental condition
    2. Stmt of Past or Present Mental or physical condition made for medical diagnosis or treatment
  19. 19out of court stmt made by a party offered as evidence against that party at trial hearsay or not ?NOT hearsay
  20. 20When is a prior stmt of identification admissiblewhere a witness has already made a previous out of court identification of a person after perceiving that person --> so the prior ID stmt is not hearsay even if its offered to prove the truth of the matter asserted= that is the identification
  21. 21Hypothetical of when not sufficient foundation is given to allow admissibility of prior inconsistent stmtdeclarant's prior statement that is consistent with her testimony is not hearsay only if offered to rebut a charge of recent fabrication or improper influence or motive. In addition, the declarant must testify and be subject to cross-examination concerning the statement. If these conditions are met, the statement may be used as substantive evidence. Here, the woman's statement to the arresting officer is an out-of-court declaration offered for the truth of its assertion. The statement is relevant to her guilt or innocence only if it is true that she did not know the location of the warehouse. According to the facts, there is nothing to show that the prosecution attacked her credibility in a way that she had recently fabricated her trial testimony, or that an improper motive or influence to testify falsely arose after the making of the prior consistent statement. She was testifying to her out-of-court statement during direct examination. Without such foundational circumstances, the prior inconsistent statement is inadmissible hearsay.
  22. 22when will a stmt be admissible non-hearsaywhen the D or some other person actually heard the stmt or warning, the stmt will be admissible non-hearsay bc the truth or falsity of the out of court stmt is IMMATERIAL. Such evidence is for example admissible as non-hearsay to show the effect on the hearer.
  23. 23When jury is required to detmeurine the state of mind of a defendant based on circumstantial evidence, what evidence is relevantany stmts or warnings HEARD or otherwise UNDERSTOOD by the D are relevant
  24. 24What are the elements of Excited utterance Exception under the FREa stmt
    1. relating to a startling event or condition AND
    2. made while the declarant was under stress or excitement caused by the event or condition
    is admissible under this exception
  25. 25Under the excited utterance exception what is specifically req'd from the statement that is made in response to the existing eventthe stmt need only be RELATED to the event, it doesn't need to describe or explain that event
  26. 26Sample analysis of a stmt that is hearsayIn this fact pattern, the woman said something out of court, which may or may not be true. Thus, it is hearsay. She will have to testify to it in court, if she wishes that evidence to come in, or the defendant will have to bring in other proof, such as a copy of the conviction, in order to establish the fact.
    s there a hearsay exception for this statement? No. It did not describe the woman’s state of mind. She mentioned it factually. It is hearsay without any exception, if it is being offered to prove why the husband was in prison. Select this answer choice.
    Always ignore answer choices about evidence being “self-serving.” All evidence is self-serving, or it would not be offered by counsel to help win the lawsuit.
  27. 27Sample analysis of a stmt that is hearsayIn this fact pattern, the tenant is going to show that he put the landlord on notice of a possible problem. Whether there really was a problem is not yet at issue. He is just trying to say that he alerted the landlord to take a look at the trees. Consequently, his statement is not hearsay. Select this answer option.
  28. 28Former Testimony exception under the FREprovides that testimony given by a witness in another hearing (including a hearing in a diff proceeding ) or taken in a deposition in the same or different proceeding is excepted from the hearsay rule IF
    1. THE FORMER WITNESS is UNAVAILABLE int he PRESENT proceeding AND
    2. the party against whom the former testimony is offered ( or his predecessor- in- interest) had an opportunity to develop the former testimony by direct, redirect, cross -examination and had a similar motive to develop the former testimony by cross-x.
  29. 29when is there no policy reason for not admitting prior testimony by witnessIf the prior testimony was given under oath, with an opportunity to cross-examine, then there is no policy reason for not admitting it at trial if the witness cannot be there in person.
  30. 30Business Record Exceptiona report, record, or data compilation is admissible IF
    1. made at or near the time it occurred
    2. by a person with knowledge
    3. if it was regular practice to keep the record in the course of a regular conducted business activity
  31. 31Under the Best Evidence Rule are duplicates such as photocopies generally admissible as original docsyes
  32. 32hearsay exception fo stmt concerning the declarant's own relationship by bloodederal Rule of Evidence 804 provides a hearsay exception for statements "concerning the declarant's own...relationship by blood...or other similar fact of personal or family history...[or] a statement concerning the foregoing matters...of another person, if the declarant was related by blood...." and where the declarant is unavailable. Nick's grandmother is unavailable. The statement by Nick's grandmother that he was related to John by blood is therefore admissible despite being hearsay.
  33. 33hearsay exception re stmt contained in a doc purporting to establish or affect an interest in property if803 provides a hearsay exception for a stmt contained in a doc purporting to establish or affect an interest in property if the matter stated was RELEVANT to the purpose of the document, unless dealings with the property since the doc was made have been inconsistent with the truth of the statement or the purport of the document.
  34. 34What type of stmts re: family history are exceptions to hearsayStatements regarding family history are exceptions to the hearsay rule, in three different ways: (1) if the information is contained in the records of religious organization; (2) if the information is contained in a traditional family record; or (3) if a statement was made by a relative and the speaker is unavailable for trial.
  35. 35When does the prior testimony exception to hearsay rule applyThe prior testimony exception to the hearsay rule applies if the stmt was taken at a deposition in this litigation.
    The declarant must be UNAVAILABLE,
    The fact that the stmt was taken at a deposition would mean it was taken under oath, and that most likely all of the parties participated and had an opportunity to develop testimony. Under those circumstances, the hearsay exception would apply and the statement would be admitted.
  36. 36THE LEARNED TREATISES EXCEPTIONthe learned treatises exception states that to the extent called to the attention of an expert witness upon cross-x, or relied upon by the expert witness in direct-x, stmt contained in published treatises, periodicals, or pamphlets relating to history, medicine, science, or art, may be READ into evidence but NOT RECIEVED as exhibits IF they have been determined to be RELIABLE authority by testimony, admission of the witness, other expert testimony, or judicial notice. Here, the witness was qualified as an expert, the expert established the authority of Medicine Today, the article was admitted, and then presented to the expert on cross-examination.
  37. 37Stmt made by declarant who is not witness and has no knowledge of the stmta witness cannot generally testify to out of court stmt made by a declarant who is not the witness when the witness has no knowledge of the statements. The statements contained within the journal article fall under the learned treatises exception to the hearsay rule. This exception allows for statements contained within a periodical, which have been deemed to be reliable by the admission of the expert witness, to be read into evidence in court evidence so long as they are called to the attention of an expert on cross-examination or relied on by the expert on direct examination. There is a limitation to this exception which states that while the statements may be read, they cannot be admitted as exhibits. This answer fails because it states the opposite of the applicable exception.
  38. 38elements of the business record exception: Hearsay is an out-of-court statement offered for the truth of the matter asserted therein. Under Fed. R. Evid. 803(6), the record of a regularly conducted activity is admissible as a hearsay exception, if: (1) the record was made by, or from information transmitted by, someone with knowledge; (2) the record was kept in the course of a regularly conducted activity of a business or organization; (3) making the record was a regular practice; (4) the conditions are shown by the testimony of a custodian or other qualified witness; and (5) the opponent does not show any lack of trustworthiness.
    In this fact pattern, most of the elements for the business record exception are shown. However, there is no custodian or other qualified witness who can lay the foundation for those elements. Without that supporting testimony, Rule 803(6) cannot be used.
  39. 39another example of hearsay:The note is an out-of-court statement of the bystander which is being offered in court by the plaintiff for its truth (i.e., that the defendant caused the accident). It is, therefore, hearsay. There is no exception that applies here, although some might argue that it may qualify as a present sense impression. However, because the statement was written at least one hour after the accident, it would not meet the requirement that it be made contemporaneously with the observation or immediately thereafter.
  40. 40photograph a hearsay stmt ?no Hearsay is an out-of-court statement offered for its truth. Because a photograph is not a statement, it is not hearsay and need not fit a hearsay exception. Note also that the best evidence rule is not likely to be an issue here. A photograph on Facebook is electronically stored information, which means that an original of it is any printout that accurately shows the information.
    It is not an opposing party's statement, because it is not a statement of any kind. The photograph is considered an original under the Best Evidence Rule. Finally, it does not matter that the girlfriend is not a party to the case, because, again, the photograph is not a statement, so the court is not examining whether it is an opposing party's statement.
  41. 41when is a duplicate admissibleduplicate is admissible to the same extent as an original unless: (1) a genuine question is raised about the original’s authenticity; or (2) the circumstances make it unfair to admit the duplicate.
    Step 4: In this fact pattern, the photograph is digital, making every printout an original. Therefore, the photograph does not run afoul of the best evidence rule
  42. 42stmt of a party that is offered in evidence by opponent party is or is not hearsay ?A statement of a party that is offered in evidence by the opponent party is not hearsay and freely admissible. They are admissible substantively, that is, they may be used by the jury to decide the lawsuit. Unlike impeachment evidence, which is admissible for the more limited purpose of challenging the credibility of a witness, substantive evidence may be used by the jury to determine liability and damages in a civil case, and guilt or not in a criminal case. Under the facts of this question, the statement may also be used to undermine the credibility of the defendant.
  43. 43important note for the bar exam question!!students must be AWARE that the bar examiners have a preference for the non-hearsay answer choice over the exception-to-the-hearsay rule answer choice.
    If the stmt constitutes non-hearsay, then it is obviated from needing a hearsay exception for admission. In other words, in analyzing the bases for a statement's admission that appears to have a hearsay problem, first see if it constitutes nonhearsay. If not, and the statement is hearsay, then look to see if a relevant exception applies. Here, the defendant's statement is clearly against his penal interest under Rule 804, and the defendant is unavailable to testify as required by Rule 804 by virtue of his present ability to invoke his Fifth Amendment right against self-incrimination. However, his statement is also nonhearsay--it is a statement by a party offered by the opponent party, and the Federal Rules of Evidence define opposing party's statements as nonhearsay. The bar examiners prefer (D) over (C) because (D) is the nonhearsay answer.
  44. 44testimonial stmts:Testimonial statements are ones that are made to law enforcement in order to prove past events relevant to a future prosecution. The victim was speaking to the defendant and therefore, her statements were not testimonial. The victim's statements were also nonhearsay as they are not being admitted for the truth of what they assert. Rather, the statements were being admitted to show prior bad acts.
  45. 45forfeiture by wrongdoing to apply the prosecution must prove whatAdmit the phone calls, because the defendant forfeited his Confrontation Clause rights when he killed the victim. For forfeiture by wrongdoing to apply, the prosecution must prove that: (1) the defendant acted wrongfully or acquiesced in wrongful acts that resulted in the witness's unavailability at trial; and (2) that the defendant intended to prevent the witness from testifying. In Giles v. California, the U.S. Supreme Court held a court would need to find that the defendant acted, at least in part, with the intent to silence the witness, to make the declarant unavailable, or to deprive the criminal justice system of evidence. There are no facts to support the notion that the defendant killed the victim in order to prevent her testimony at her murder trial.
  46. 46confrontation clause1: The 6th A to provides that a person accused of a crime has the right to confront the witnesses against him. This right includes the right to be present at trial and to cross-examine the prosecution’s witnesses. The introduction of out-of-court stmts must not deny the D his right of confrontation, but hearsay stmts are NOT automatically excluded. Rather, the prosecution must demonstrate that the witness is unavailable after good-faith efforts have been made, and the hearsay statement is trustworthy.
  47. 47how is trustworthiness shownStep 2: Trustworthiness is shown when the hearsay statement: (1) falls within one of the recognized hearsay exceptions; or (2) is made under oath, and the defendant had the opportunity to cross-examine the witness at the time it was made. Out-of-court statements that are testimonial in nature, such as statements made to the police or 911 after an emergency has ceased, are inadmissible under the Confrontation Clause, even if such statements would be considered to be excited utterances. Statements, however, are considered non testimonial and admissible when made in the course of police investigation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency
  48. 48exampleAs to hearsay, the phone calls were out-of-court statements, but they are not being offered for the truth of the matter asserted therein, that the victim would be hurt if she appeared at his first trial. Instead, they are being offered to show admissible character evidence for planning, preparation, and motive under Fed. R. Evid. 404(b).

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EVIDENCE FlashCards sobre Sem título, criado por Donashimen Assadollahof em 26-06-2019.
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