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EVIDENCE - Coggle Diagram

- - - - generally inadmissible
        
        However, if no better evidence exists, then admissible IF:
        
        Based on the witness's perception
        
        helpful for a clear understanding of a fact at issue
        
        not based on scientific, specialized, or technical knowledge
    - - Must be SCIENTIFIC, TECHNICAL or OTHER SPECIALIZED KNOWLEDGE
      - Witness must qualify as an expert
      - Opinion backed with reasonable certainty
      - Opinion supported by a proper factual basis
        
        Personal knowledge
        
        Facts made known at trial
        
        facts not made known at trial
        
        Fact need not be admissible
        
        Of the kind that are reasonably relied upon by experts in the field
  - - - Cross EXAM
        
        Prior Inconsistent Statements
        
        Don't have to show the witness, but you have to show the attorney if requested
        
        ONLY ADMISSIBLE IF:
        
        Witness has opportunity to explain
        
        adverse party has the opportunity to examine the witness about it
        
        Bias or INterest
        
        Criminal Convictions
        
        Crimes of Dishonesty
        
        AUTOMATICALLY Admissible
        
        Felony or misdemeanor, always admissible
        
        NO TIME LIMIT
        
        Crimes not involving Dishonesty
        
        Ten year time limit - date of conviction or date released from prison, whicever comes last
        
        BALANCING TEST
        
        State must show the probative impeachment value is NOT outweighed by the prejudicial effect to THE DEFENDANT
        
        For a witness other than a defendant, probative value must be SUBSTANTIALLY outweighed by the prejudicial effect to be EXCLUDED
      - EXTRINSIC EVIDENCE
        
        Prior Bad Acts
        
        Interrogation about prior bad acts is generally admissible
        
        Bad act must be probative of truthfulness
        
        Extrinsic evidence is not permitted
        
        WItness can simply deny the act
        
        Reputation Evidence
        
        Witness can be impeached with reputation evidence of untruthfulness
  - - - Only the client can waive the privilege
      - Client may refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of rendition of legal services to the client
    - - Confidential communications made for the purpose of diagnosis or treatment of a patient's mental, physical, or emotional condition
    - - MARITAL COMMUNICATION PRIVILEGE
        
        Provides that either spouse can refuse to disclose or prevent the other 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 his spouse in any criminal proceeding including those where the spouse is not the defendant
- - - - Causation
      - similar accidents or injuries caused by the same event
      - Similar events to prove intent, habit, and industry custom or routine
  - - - Only admissible to show:
        
        Ownership or control
        
        NOT admissible to show negligence or ability to pay
    - - Only admissible to show:
        
        ownership or control, OR destruction of evidence
    - - Inadmissible
    - - inadmissible
  - - - Direct Exam
        
        Generally NOT ADMISSIBLE, only when character is directly at issue (child custody, defamation)
      - Cross Exam
        
        Party or witness: only for impeachment
    - - Direct Exam
        
        Prosecutor cannot initiate
      - Cross Exam
        
        Party: defendant can introduce evidence of good character to help prove innocence
        
        party or witness: impeachment purposes
- - - - Hearsay is an out of court statement used to prove the truth of the matter asserted
        
        Party? Then it is admissible as an opponent-party statement
        
        Conclude if hearsay
        
        If not a party, then analyze BOTH the out of court statement AND the truth of the matter asserted
        
        Conclude if hearsay
        
        CHECK for double hearsay
        
        Analyze both levels of the hearsay statement
  - - - Former testimony
        
        GIven as a witness at a TRIAL, HEARING, OR DEPOSITION
        
        Offered against a party who had 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 financial interest
        
        supported by corroborating circumstances indicating it is likely true
      - Dying declarations
        
        Statement made by declarant believing their death is imminent
        
        statement about cause or circumstances
      - Statement of personal or family historuy
      - Statement offered against the party procuring the 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 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 is perceiving 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 the record was a regular practice of that activity
        
        Shown by a custodian's testimony or by certification
        
        neither the source or the method of prep indicate untrustworthiness
      - 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 or circumstances indicate untrustworthiness
      - 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
    - - Privilege
      - Refusing to Testify
      - Lack of memory
      - Death or physical/mental illness
      - Absent beyond reach of court's subpoena power and the proponent of the statement has been unable to procure attendance or testimony
- - - - Some are self-authenticating, but most require a testimonial sponsor to provide that the writing was made, signed, or adopted by the particular relevant person
      - SELF AUTHENTICATING (OIL CANS)
        
        Official Publication issued by public authority
        
        Instruments - negotiable and commercial paper
        
        Label, Tag, or trademark affixed on item in regular course of business
        
        Certified Public Document
        
        Acknolwedged documents signed by NOtary
        
        Newspapers and periodicals
        
        Sealed Documents
  - - - Original writing, recording, photograph is REQUIRED to prove its content
        
        THINK wills, contracts, deeds
- - - - Significant features that make it identifiable upon examination
    - - Cannot be substantially broken, must present evidence of the Chain of Custody