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Evidence - Coggle Diagram

- - - - observe
      - recollect
      - communicate
      - appreciate the obligation to speak truth fully
  - - - generally admissible
      - must be:
        
        based on the witness's perception
        
        helpful for a clear understanding of fact at issue
        
        not based on scientific, technical, or other specialized knowlege
    - - subject matter appropriate for expert opinion
        
        scientific knowledge
        
        Technical knowledge
        
        other specialized knowledge
      - Witness qualifies as expert
      - opinion backed with reasoble 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 int he field
  - - - motive
      - opportunity
      - intent
      - preparation
      - common scheme or plan
      - knowledge
      - identity
      - absence of mistake or accident
  - - - cross-exam
        
        prior inconsistent statements
        
        extrinsic evidence is only admissible if the witness has the opportunity to explain the statement and adverse party has the opportunity to examine the witness
        
        bias or interest
        
        criminal convistions
        
        crimes involving dishonesty
        
        felonies not involving dishonesty
      - extrinsic evidence
        
        prior bad acts
        
        FRE 608: generally, interrogation about prior bad acts is admissible within the court's discretion. the bad act must be probative of truthfulness.
        
        extrinsic evidence of bad acts is not permitted
        
        if the witness denies the act the cross-examiner cannot refute the testimony by calling over witnesses or by producing other evidence
        
        Reputation
        
        a witness may be impeached by showing a poor reputation for truthfulness.
  - - - attorney-client privilege:
        
        client may refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of rendition of professional legal services to the client
        
        includes the attorney and its representatives
        
        only the client can waive the privilege
      - Physician, psychotherapist, or social worker-patient privilege
        
        confidential communications made for the purposes of diagnosis or treatment of the patient's physial, mental, or emotional condition
      - spousal privilege
        
        Marital communication privilege: provides that either spouse has a privilege to refuse to disclose and to prevent her spouse from disclosing a confidential communication made between spouses while they were husband and wife
        
        spousal testimony privilege: a spouse may not be called as a witness by the prosecution against his spouse in a criminal case and may not be compelled to testify against hist spouse in any criminal proceeding including those were the spouse is not the defendant
- - - - Under 403, a court has the discretion to exclude relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice; confusion of the issues; misleading the jury; or by consideration of undue delay, waste of time, or needless presentation cumulative evidence
  - - - Causation
      - similar accidents or injuries caused by the same event
      - Similar acts admissible to prove intent, habit, and industrial custom or routine
    - - But may be admissible to prove ownership or control
      - NOT admissible to show negligence or ability to pay
    - - Not admissible to prove negligence, but MAY be admissible to prove ownership or control, or to prove the destruction of evidence
    - - inadmissible but could be admissible for other purposes
  - - - Criminal Direct examination
        
        Prosecution cannot inititate
      - Civil Direct Examination
        
        Generally not admissible. Only when character directly at issue: child custody, defamation, etc.
      - Criminal on Cross Exam
        
        Party: Defendant can introduce evidence of good character to help prove innocence. Party or witness: impeachment
      - Civil on cross-exam
        
        Party or witness: only for impeachment
- - - - unavailable if:
        
        privilege
        
        refusing to testify
        
        lack of memory
        
        death or physical/mental illness
        
        absent beyond the reach of the court's subpoena power and the proponent of the statement has been unable to procure attendance or testimony
      - 5 exceptions
        
        Former testimony
        
        given as a witness at a trial, hearing, or lawful deposition
        
        offered against a party who had an opportunity and similar motive to develop it by direct, cross, or redirect examination
        
        Statements against interest
        
        reasonable person in the declarant's position would have made only if the person believed it to be true
        
        contrary to declarant's proprietary or pecuniary interest
        
        supported by corroborating circumstances that clearly indicate its trustworthiness
        
        Dying declaration
        
        Statement made by declarant believing that declarant's death was imminent
        
        Statement of personal or family history
        
        Statement offered 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 beleif
      - Excited uttterance
        
        statement relating to a startling event or condition
        
        made while under the stress of excitement that it caused
      - present sense impressions
        
        statement describing or explaining an event or condition
        
        made while or immediately after the declarant perceived it
      - Business records
        
        made at or near the time by someone with knowledge
        
        kept in the course of a regularly conducted activity or a business or organization
        
        making the record was a regular practice of that actitivty
        
        shown by a custodian's testimony or by certification
        
        neither the source of information nor the method of preparation indicate a lack of trustworthiness
      - public records
        
        record sets out the office's activities
        
        of a matter observed while under a legal duty to report
        
        neither the source of information nor other circumstances indicate a lack of trustworthiness
      - Past recollection recorded
        
        a record that:
        
        is on a matter the witness once knew about but now cannot recall
        
        was made or adopted by the witness when the matter was fresh in the witness's memory
        
        accurately reflects the witness's knowledge
        
        may be read into evidence
        
        may only be received as an exhibit of offered by an adverse party
- - - - Official publications issued by public authority
      - Instruments - negotiable and commercial paper
      - Label, tag, or trademark affixed on item in regular course of business
      - Certified public documents (by clerk or agency or court that had custody)
      - Acknowledged documents signed before notary, sworn to truth, content, and execution (except wills)
      - Newspapers and periodicals with reasonably wide circulation
      - Sealed documents (government certified)