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112 Cards in this Set
- Front
- Back
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Relevancy (general)
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Generally, all evidence is admissible in the Court's discretion if relevant and not excluded by other evidentiary rules.
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Hearsay Rule
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The Hearsay Rule excludes out of court statements offered for their truth, with limited exceptions.
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Statement of a Party Opponent Exception
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The statement of a party opponent exception permits the admission of a statement of one party that is inconsistent with the party's trial interest, if offered by the other party.
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Statement for Medical Diagnosis and Treatment Exception
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The statement for medical diagnosis and treatment exception permits the admission of a statement of past or present physical condition made to a healthcare professional for purpose of obtaining treatment where the statement is related to the treatment or diagnosis.
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Work Product Doctrine
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The work product doctrine permits the lawyer to prevent disclosure of the attorney's thoughts, theories, and the like, and extends to persons used by the lawyer in providing the legal services.
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Circumstantial Evidence of the Declarant's State of Mind
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Statements offered as circumstantial evidence of the declarant's state of mind are not hearsay because they are offered to show what a person was thinking, feeling or knew at the moment, not for their truth.
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State of Mind Exception
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The state of mind exception deems admissible a statement of the declarant's then existing state of mind, to prove the declarant's then existing thinking.
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Character Evidence (general)
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Character evidence involves evidence of a person's general character or a specific character trait and generally is inadmissible.
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"Element" Character Evidence ("he has a Darn NICE character")
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Character evidence is admissible when relevant to an element/character is at issue in the cause of action, in the form of reputation, opinion, and/or specific instances of conduct (w/out limitation to cross exam.)
Defamation Negligent hiring/supervision/entrustment Immigration Child custody Entrapment defense |
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Offer to Compromise/Settle
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An offer to compromise/settle a civil claim and statements made in connection therewith are not admissible, with limited exceptions such as bias or laches.
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Personal Knowledge Requirement
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The personal knowledge requirement requires that witnesses testify to facts based on their personal knowledge (usually learned from their own senses).
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Leading Questions
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Leading questions suggest the answer, and generally, are proper only during cross examination, but may be directed at other times in the Court's discretion.
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Lay Opinion
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Lay opinion, in the form of common shorthand summaries of perception, is permitted if rationally based on the witness' own perceptions and if the opinion will help make the tx more understandable.
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Refreshing Recollection
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Refreshing recollection is a way of refreshing the memory of a witness who, once refreshed, testifies from present memory.
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Past Recollection Recorded Exception
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The past recollection recorded exception to the hearsay rule provides that when a person has suffered a reduction in memory, but wrote or adopted a statement concerning an event about which s/he has personal knowledge, made at or near the time of the event, the written statement may be admissible.
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Business Records Exception
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The business records exception to the hearsay rule permits the admission of a writing made contemporaneously to an event by one with personal knowledge, where made in the regular course of business and it is the regular course of biz to make and keep such records and where the record is properly authenticated.
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Relevance
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Relevance means that the evidence must have a tendency to make a fact of consequence to the action more probable or less probable.
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Unfair Prejudice
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Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.
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Other Crimes Evidence
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Evidence that the defendant committed some crime other than that which is the subject of the litigation, offered to illustrate the defendant's character and to show that the defendant acted in conformity with that character is not admissible.
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Impeachment by Prior Conviction of Crime
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The rule admits, for impeachment purposes, a final adult conviction for a crime involving dishonesty or a serious felony that is not more than 15 years old (from date of conviction) where the probative value is not outweighed by the danger of unfair prejudice.
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Plea Offer Statements
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Statements made in connection with criminal plea negotiations that did not result in a guilty plea are not admissible against the party who made the offer to plead.
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Impeachment (general)
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Impeachment evidence is admissible to attack a witness' credibility, but is admissible only after a witness testifies.
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Limited Admissibility
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Limited admissibility evidence is only admissible and useable by the trier of fact for a limited purpose.
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Substantive Admissibility
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Substantive admissibility evidence is admissible and useable by the trier of fact for any purpose.
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Logical Relevance
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Logical relevance means evidence having any tendency to make the existence of a fact of consequence more or less probable.
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Authentication
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Authentication provides that the item in question is what its proponent claims it to be.
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Public Policy Exclusions (PRISM)
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Pleas & connected statements
Remedial measures (subsequent) Insurance coverage Settlement offers & connected statements Medical expense offers |
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Subsequent Remedial Measures
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Subsequent remedial measures are generally inadmissible to show a party acted wrongfully, unless ownership, control, or feasibility of precautionary measures are at issue.
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Compromise w/Party in Hospital (MD)
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A settlement with a party in a hospital within 15 days of the injury is unenforceable and statements are inadmissible.
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S.P.O.T Expert Issues
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S = Subject, proper if subject requires some specialized knowledge to understand and the expert's opinion would assist the trier of fact. (science & procedure must be sufficiently reliable; remember Frye - MD)
P = Person. To be qualified, a witness must have specialized knowledge, education, training, or experience. O = Opinion. An expert may base her opinion on info reasonably relied on by other experts in the field, including reliable hearsay. T = Testimony. Expert must offer proper tx based on expert's expertise, not a legal conclusion. |
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Offer to Pay Medical Expenses
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Statements made in connection with an offer to pay medical expenses are not admissible to prove liability, but admissions of fact made in connection with those statements are admissible.
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Insurance Coverage
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Insurance coverage is generally inadmissible to show a party acted wrongfully, except to show ownership, agency, control, or bias of a witness.
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Competency of Witnesses (general)
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Generally, every person is presumed competent to testify, unless you do not understand the oath.
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Opening the Door
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Evidence that is otherwise inadmissible becomes admissible because the adverse party has opened the door by offering some bit of evidence.
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Convicted Perjurer (MD)
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In Maryland, a convicted perjurer is automatically incompetent to testify.
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Dead Man's Rule (MD)
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The Dead Man's Rule (MD) precludes interested parties from testifying about any communication, transaction, or promise made to them by a now deceased or incapacitated person when the testimony would go against the decedent's estate.
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General Objection (MD)
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A general objection is a complaint to an evidentiary matter and is permitted in MD, unless Court asks for specific grounds.
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Specific Objection
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In the federal courts, specific objections are required.
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Proffer/Offer of Proof
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When evidence is excluded, a lawyer should state what the excluded evidence is, so an appellate court can determine if it was error to exclude.
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Harmless Error Rule
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The harmless error provides that even where the appellate court finds error in a previous ruling, the error was not significant enough to justify remedy.
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Plain Error Rule
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The plain error rule provides that an appellate court may consider an error in a previous ruling even though no objection was made at trial, because it is fundamental to the fair trial right.
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General Objection (MD)
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A general objection is a complaint to an evidentiary matter and is permitted in MD, unless Court asks for specific grounds.
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Specific Objection
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In the federal courts, specific objections are required.
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Proffer/Offer of Proof
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When evidence is excluded, a lawyer should state what the excluded evidence is, so an appellate court can determine if it was error to exclude.
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Harmless Error Rule
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The harmless error provides that even where the appellate court finds error in a previous ruling, the error was not significant enough to justify remedy.
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Plain Error Rule
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The plain error rule provides that an appellate court may consider an error in a previous ruling even though no objection was made at trial, because it is fundamental to the fair trial right.
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Judicial Notice
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Judicial notice allows the court to consider evidence without a formal offering of evidence to prove the fact, if the fact is not reasonably subject to dispute. (2 types: notorious or easily verified)
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Rehabilitation
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Rehabilitation is evidence which detracts upon an attack upon the credibility of a witness, and may occur after impeachment.
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6 Ways to Impeach: 2 Eyes (I) 4 Seeing (C)
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Interest and Bias and Motive
Inconsistent statements and conduct (prior) Contradiction Conviction of crime Character for Truthfulness Capacity to observe, recall, relate |
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Intrinsic Evidence
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Intrinsic evidence is the witness' own answers on the stand.
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Extrinsic Evidence
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Extrinsic evidence is everything besides the witness' own answers on the stand.
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Impeachment by Prior Inconsistent Statement
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Prior inconsistent statements may be introduced on cross through intrinsic evidence only, unless the witness denies the PIS and the PIS involves a non-collateral matter.
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Impeachment by Contradiction
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A witness' tx can be contradicted with another witness' tx or tangible evidence, but cannot use extrinsic evidence to contradict a witness on a collateral matter.
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Impeachment by Character Evidence for Untruthfulness
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Character evidence is admissible to impeach as to one's truthfulness through reputation, opinion, or specific instances of conduct showing untruthfulness (prior bad acts), but not through extrinsic evidence.
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Prior Consistent Statement
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Rehabilitation can be done through the use prior consistent statements made by the witness.
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Rehabilitation by Character Evidence for Truthfulness
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Once a witness has been impeached concerning their untruthfulness, his/her credibility can be rehabilitated through the use of character evidence of truthfulness.
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Statement (hearsay)
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For the purposes of hearsay, a statement is an intentional assertion.
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Non-Hearsay: C-ELVIS ("If you're saying you can C-ELVIS, you aren't offering the truth")
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Capacity to Observe, Recall or Relate Info.
Effect on Hearer Legally Operative Facts Verbal Acts Impeach Show the declarant's State of mind circumstantially |
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Statement of Capacity
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Statements of capacity are not hearsay because they are not offered for their truth, but to show that a person could see, hear, smell, understand, communicate, etc.
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Legally Operative Facts
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Statements that have some legal effect, regardless of their truth, are not hearsay.
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Verbal Acts
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Statements accompanying and clarifying ambiguous conduct are not hearsay.
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Effect on Hearer or Reader
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Statements offered to show info communicated to someone to explain the effect it had on the person's actions or show their knowledge is not hearsay.
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Illegally Recorded Evidence
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Illegally recorded evidence is not admissible in a judicial proceeding for any purpose. MD has an all-party consent statute for recorded conversations.
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Best Evidence Rule
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Under the best evidence rule, when the contents of a document is central to the litigation, to prove the contents of the document, the original doc is required, unless it is excused.
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Marital Communications Privilege
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Under the marital communications privilege, either spouse can prevent the disclosure of confidential communications made btw the spouses during the marriage.
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Authentication
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Authentication requires that the proponent prove that the item is what its proponent claims.
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Motion for Judgment
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A Motion for Judgment should be granted if, looking at the facts in the light most favorable to the non-moving party, the moving party is entitled to judgment as a matter of law.
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Prior Consistent Statement Made Before Motive to Fabricate Arose
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A prior consistent statement made before the motive to fabricate arose is a hearsay exception in MD when the out of court statement is consistent with initial trial tx.
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Prior Inconsistent Statement Under Oath
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A prior inconsistent statement made under oath at a previous court proceeding is a hearsay exception in MD.
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Prior Witness Identification
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Evidence of a statement of a prior witness ID made right after perception is a hearsay exception in MD, if the identifying witness also testifies and is subject to cross about the ID.
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Nance Rule (MD)
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MD's Nance Rule allows for the admissibility of written and signed or recorded prior inconsistent statements by the witness as a hearsay exception.
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Prompt Report of Sexual Assault Exception
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A prompt report of sexual assault reported by the victim is a hearsay exception in MD.
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Vicarious Admission - General (Statement of a Party Opponent)
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A vicarious admission is a statement not actually made by a named party, but treated as made by the party.
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Vicarious Admission - Statement of Agent/Employee (SPO)
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A statement made by an agent or employee of the party while during and concerning matter within scope of employment is a vicarious admission for purposes of the statement of a party opponent hearsay exception.
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Vicarious Admission - Statement of a Co-conspirator (SPO)
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A statement by a co-conspirator during and in furtherance of a conspiracy is is a vicarious admission for purposes of the statement of a party opponent hearsay exception.
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Nance Rule (MD)
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MD's Nance Rule allows for the admissibility of written and signed or recorded prior inconsistent statements by the witness as a hearsay exception.
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Prompt Report of Sexual Assault Exception
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A prompt report of sexual assault reported by the victim is a hearsay exception in MD.
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Vicarious Admission - General (Statement of a Party Opponent)
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A vicarious admission is a statement not actually made by a named party, but treated as made by the party.
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Vicarious Admission - Statement of Agent/Employee (SPO)
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A statement made by an agent or employee of the party while during and concerning matter within scope of employment is a vicarious admission for purposes of the statement of a party opponent hearsay exception.
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Vicarious Admission - Statement of a Co-conspirator (SPO)
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A statement by a co-conspirator during and in furtherance of a conspiracy is is a vicarious admission for purposes of the statement of a party opponent hearsay exception.
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Hearsay Within Hearsay
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Hearsay within hearsay is an out of court statement that contains another out of court statement; a hearsay exception must apply to each level of hearsay.
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Crawford
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Under Crawford, testimonial hearsay is not admissible in a criminal case unless the declarant is unavailable and the defendant had an opportunity to cross-examine the declarant. (This does not apply to the dying declaration or forfeiture by wrongdoing exceptions.)
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Testimonial (definition)
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A testimonial statement is one which would reasonably expected to be used later in court.
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Forfeiture by Wrongdoing Exception
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The forfeiture by wrongdoing exception admits hearsay statements of a witness who is unavailable b/c of a party's wrongdoing against the wrongdoer.
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Present Sense Impression
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A present sense impression is a hearsay exception that allows a statement describing or explaining an event made contemporaneously to the event.
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Excited Utterance
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An excited utterance is a hearsay exception that allows a statement describing or explaining a startling event made while under the effects of the startling event.
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Statements of Present Condition
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Statements of present condition are hearsay exceptions that allow statements describing a then-existing state of mind or future conduct consistent with that state of mind.
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Public Records and Reports
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Public records, or writings of a public agency concerning its public function, are admissible as hearsay exceptions.
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Absence of Public Records
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The absence of public records to show an event did not happen is a hearsay exception.
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Judgment of Previous Conviction (NOT MD)
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The judgment of previous conviction is not recognized in MD, but allows for the record of a criminal conviction for a felony (imprisonment for over a year) to be admitted in subsequent civil action if relevant to an element of the cause of action.
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Exceptions Requiring Unavailability - DAFFY ("He can't testify. He's DAFFY.")
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Dying declarations
Against Interest (Statements) Forfeiture by wrongdoing Former testimony family historY |
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Dying Declarations
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A dying declaration is a statement under the belief of imminent death relating to the cause of death, and is a hearsay exception when the declarant is unavailable in a civil trial or criminal homicide-related prosecution.
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Statement Against Interest
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A statement against interest is one made against the penal, proprietary or pecuniary interest, and admissible as a hearsay exception when the declarant is unavailable. (Does not apply if statement offered to exculpate accused unless there is corroboration to show trustworthiness, or offered to inculpate accused either b/c of Confrontation Clause.)
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Former Testimony Exception
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The former tx exception allows hearsay if the former tx was under oath at a prior proceeding or deposition, if the declarant is unavailable.
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Residual/Catch All Exception
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The residual hearsay exception allows for a new exception to be allowed, requiring pre-trial notice.
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Frye Rule (MD)
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Under the Frye rule in MD, to be admissible, a court must find that a novel scientific process or technique is generally accepted in the relevant scientific/medical community.
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Spousal Immunity
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A witness-spouse of a criminal D to whom the witness is married at the time of trial may refuse to tx against the defendant-spouse.
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Attorney-Client Privilege
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A lawyer may not disclose confidential communications concerning legal representation from the client without the client's consent.
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Doctor-Patient Privilege
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NOT IN MD!
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Accountant-Client Privilege (only MD)
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In MD, an accountant may not disclose confidential communications concerning the accounting services from the client without the client's consent.
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Exclusion of Witnesses
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A judge, if requested by a party, must exclude witnesses from the courtroom so that they cannot hear the other witnesses at trial, and also may do so at his/her discretion.
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Rebuttal
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Rebuttal is offered by the plaintiff or prosecution and occurs after the defendant has put on its case, and proper when regarding new matter introduced by the defense. --> Surrebuttal
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Learned Treatise
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A learned treatise is admissible as a hearsay exception after an expert has testified on the treatise, and the treatise has been established as a reliable authority, but can only be read to the jury.
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Habit or Routine
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A habit/routine is customary conduct, deriving as a tendency arising from frequent repetition, and is admissible since it is not deemed character evidence.
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MIMIC Plus
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An exception to the general rule that "other crimes evidence" is inadmissible, if offered to show Mimic, Intent, absence of Mistake, Identity or "signature," Common scheme or plan, preparation, knowledge, accident, or opportunity.
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Conformity Character Evidence
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Character evidence offered to prove that person acted on a specific occasion in conformity with their general character is not admissible, except when character is an issue itself, when a D first introduces evidence of his own good character (criminal only), when D introduces evidence of a pertinent character trait of a victim (criminal only), and in a criminal case charging sexual or child assault, prosecution may introduce evidence that D committed a similar act previously, even if uncharged.
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Chain of Custody
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When an object is not distinctive, the party offering the object must provide evidence of a chain of custody from the time the particular object becomes relevant until its introduction in court.
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Reply Doctrine
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To authenticate a letter or other doc under the reply doctrine, it must be shown that a communication was sent to the purported author of that letter or doc and that the person who sent the first communication received a doc shortly thereafter referring to the prior communication.
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Self-Authentication
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A document is self-authenticating because of its official nature, are of undisputed authenticity and need not be authenticated by extensive proof. These include newspapers and periodicals, commercial labels/brand names, notarized docs and commercial paper.
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Psychotherapist-Client Privilege
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A psychotherapist may not disclose confidential communications and information concerning treatment or diagnosis of the client without the client's consent. The patient is the holder but if not present, the psychotherapist must claim it on his behalf.
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Priest-Penitent Privilege
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A person has a privilege to refuse to disclose a confidential communication by the person to a clergyman in his capacity as a spiritual advisor.
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Rape Shield Laws
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Rape shield laws render inadmissible reputation and opinion evidence concerning a victim of rape's other sexual behavior.
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