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Evidence Mind Map (Witnesses (Privileges - Federal courts acknowledge in …

- - - - Opinion must be: based on witness's perception
      - helpful for a clear understanding of a fact at issue; and
      - not based on scientific, technical, or other specified knowledge
    - - Subject matter appropriate for expert opinion
        
        Scientific knowledge
        
        Technical knowledge
        
        Other specialized knowledge
      - Witness qualifies as an expert
      - Opinion backed with reasonable certainty
      - Opinion supported by a proper factual basis
        
        Personal knowledge
        
        Facts made known at trial
        
        Facts made known outside of court
        
        Facts need not be admissible in court
        
        Of the kind that are reasonably relied upon by experts in the field
  - - - Not allowed on direct examination
      - Allowed to prove
        
        Motive
        
        Opportunity
        
        Intent
        
        Preparation
        
        Common scheme or plan
        
        Knowledge
        
        Identity
        
        Absence of mistake or accident
    - - Only allowed if character is at issue, such as child custody
  - - - Prior inconsistent statements
        
        Does not have to show this evidence to witness, only to opposing counsel
      - Bias or interest
      - criminal convictions
        
        Crimes involving dishonesty - court has no discretion to exclude, no time limitation on the age of the crime
        
        Felonies not involving dishonesty - crime must not be too remote and if older than ten years is generally excluded
    - - Admissible only if the witness has an opportunity to explain the statement and an adverse party has the opportunity to explain the statement and an adverse party has the opportunity to examine the witness about it or if justice requires
  - - - Client may refuse to disclose and to prevent any other person disclosing confidential communications made for the purpose of rendition of professional legal services to the client
      - Includes the attorney and its representatives
      - Only client can waive privilege
    - - Confidential communications made for the purpose of diagnosis or treatment of the patient's physical, mental, or emotional condition
    - - Marital communications provides that either spouse has a privilege to refuse to disclose and to prevent spouse from disclosing a confidential communication made between spouses while they are married
      - Spousal testimony provides that a spouse may not be called as a witness by the prosecution against spouse in a criminal case and may not be compelled to testify against spouse in any criminal proceeding including those where spouse is not the defendant
- - - - Exclude if 'No'
      - Include if 'Yes'
  - - - Intent
      - Habit
      - Industrial custom or routine
    - - Liability insurance admitted to show ownership or control, not to show negligence or ability to pay
      - Subsequent remedial measures to prove ownership, control, or destruction of evidence, not to show negligence
      - Settlement offers and Withdrawn guilty please are inadmissible
  - - - Prosecution cannot introduce character evidence
      - Defense can introduce evidence of good character to help prove innocence. Party or witness impeachment too
    - - Generally not admissible under direct examination, only if character directly at issue
      - Party or witness only for impeachment
- - - - Official publications issued by a public authority
      - Instruments - negotiable and commercial paper
      - Label, tag or trademark affixed on an item in regular course of business
      - Certified public documents by clerk of agency or court that had custody
      - Acknowledged documents signed before a notary, sworn to truth, content, and execution (except wills)
      - Newspapers and periodicals with reasonable wide circulation
      - Sealed documents (government certified)
- - - - Out of court statement?
        
        Yes
        
        Offered for truth of the matter asserted?
        
        Yes - inadmissible
        
        No - admissible
        
        No - Admissible
  - - - Privilege
      - Refusal to testify
      - Lack of memory
      - Death, physical/mental illness
      - Absent beyond the reach of the court's subpoena power and proponent of statement cannot procure attendance or testimony
      - Five exceptions
        
        Former testimony
        
        Given as a witness at a trial, hearing, or lawful deposition
        
        Offered against party who had an opportunity to develop by direct, cross, or re-direct examination
        
        Statements against interest
        
        Reasonable person in declarant's position would have made only if believed to be true
        
        Contrary to declarant's proprietary or pecuniary interests
        
        Supported by corroborating circumstances that clearly indicate its trustworthiness
        
        Dying declarations
        
        Statement made by declarant under the belief declarant's death was imminent
        
        Statement about its cause or circumstances
        
        Statement of personal or family history
        
        Statement against party procuring declarant's unavailability
    - - Present state of mind or physical condition
        
        Must be then-existing state of mind or emotional, sensory, or physical condition
        
        Not including a statement of memory or belief
      - Excited utterance
        
        Statement made to a startling event or condition
        
        Made while under stress of excitement caused
      - Present sense impression
        
        Statement made describing or explaining an event or condition
        
        Made while or immediately after declarant perceived it
      - Business Records
        
        Made at or near the time by someone with knowledge
        
        Kept in the course of a regularly conducted activity of a business or organization
        
        Making a record a regular practice of that activity
        
        Shown by a custodian's testimony or certification
        
        Neither the source of information nor the method of preparation indicate a lack of trustworthiness
      - Public records
        
        Record sets out office's activites
        
        Of a matter observed while under a legal duty to report
        
        Neither the source of information nor the method of preparation indicate a lack of trustworthiness
      - Past recollection recorded
        
        A record that
        
        Is on a matter the witness once knew about but now cannot recall; and
        
        Was made or adopted by the witness when the matter was fresh in the witness's memory; and
        
        Accurately reflects the witness's knowledge
        
        May be read into evidence
        
        May only be received as an exhibit if offered by an adverse party