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Chapter X. Privileges 6 results (showing 5 best matches)
- May a trial judge conduct an in camera review of allegedly privileged communications to determine whether the crimefraud exception applies? Many jurisdictions have not answered that question. But the Supreme Court requires a threshold test to be met before such a review can occur. The threshold is fairly low. The party seeking the in camera review must show, through non-privileged materials, that there exists a that an in camera review “may reveal evidence to establish the claim that the crime-fraud exception applies.”
- The existence of privileges demonstrates that the law of evidence is not solely concerned with achieving accurate factfinding. Privileges result in the exclusion from evidence of information that may be quite probative. The law recognizes privileges because it has determined that the cost incurred by the loss of reliable evidence is outweighed by the social benefits that accrue from having privileges. Because the cost is high, however, courts often state that privileges are to be construed narrowly.
- (3) In Camera Review [§ 692]
- Less uniformity exists among jurisdictions regarding privileges than in any other area of the law of evidence. Therefore, if you are being tested
- of evidence that might lead to his conviction.
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Chapter VII. Opinions and Expert Testimony 7 results (showing 5 best matches)
- A doctor may base an opinion on medical records he has reviewed, conversations with other medical personnel about the patient, and interviews with the patient’s family, even if none of these has been introduced into evidence, so long as the court decides that these are the types of things that doctors in the field reasonably rely upon in making diagnoses.
- peer review
- in evidence. That is, an expert may base an opinion upon hearsay statements that themselves would not be admissible in evidence. But an expert may do this only if such facts or data constitute the
- e if it will assist the factfinder to understand the evidence or to determine a fact in issue. [FRE 702.] This is a broad standard. So long as the testimony concerns some type of “specialized knowledge” and will be helpful to the jury, it is a proper subject for expert testimony.
- test states that the proponent of novel scientific evidence must first demonstrate that the proffered test, theory, or principle has gained
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Chapter IX. Best Evidence Rule 10 results (showing 5 best matches)
- Where an expert testifies and bases an opinion on a writing, recording, or photograph, there is no BER problem. An expert may base an opinion on facts that are not admissible in evidence if they are the kinds of facts that such experts reasonably rely upon. [FRE 703.] For example, a doctor may base an opinion on an X-ray she has reviewed without running afoul of the BER.
- The Best Evidence Rule is one of the most confusing rules in the law of evidence. Despite its name, the Best Evidence Rule
- The most difficult part of BER analysis relates to the threshold question of whether the offered evidence is used to prove the contents of a writing, recording, or photograph. This element of the rule is satisfied if the evidence falls into one of the following three categories. If it does not, the BER is inapplicable.
- A. BEST EVIDENCE RULE (“BER”) [§ 622]
- This category applies whenever the litigation directly involves a writing such as a contract, lease, will, written libel, photograph, or book (e.g., a copyright action). It does not apply where the writing is only “evidence” of a fact (e.g., receipts, minutes, transcripts). The writing itself must have a
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Chapter III. Relevancy 219 results (showing 5 best matches)
- A piece of evidence must have a tendency to make the existence of a material fact more or less probable
- Sometimes the relevancy of a proffered piece of evidence depends on the existence of another fact that has not yet been proved. Such evidence is said to be . A court should admit such evidence either (a) upon the introduction of evidence sufficient to support a finding of the existence of the other fact or (b) subject to the introduction of such evidence. [FRE 104(b).]
- Some evidence rules deal with specific categories of evidence, setting forth when such evidence is admissible and when it is not. For example, specific rules deal with the admissibility of character and habit evidence, evidence of liability insurance, and proof of prior sexual conduct. These rules are discussed below, beginning at § 80.
- The law of evidence distinguishes between a person’s character or character traits and a person’s habits. Evidence of a person’s habit is more probative of his conduct on a particular occasion than is character evidence. Thus, evidence that a person always ran a particular stop sign is good evidence that the person ran that stop sign on the occasion in question, although evidence that he is a “careless” driver is not. Therefore, FRE 406 specifies that evidence of a person’s
- Evidence must be relevant to be admissible. But not all relevant evidence is admissible. In fact, most of the rules of evidence address the question of when relevant evidence is and is not admissible.
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Chapter VI. Witnesses 45 results (showing 5 best matches)
- Extrinsic evidence (i.e., evidence other than testimony from the witness) may be offered to prove lack of capacity. The admissibility of such evidence is, of course, subject to . Thus, the trial judge may find in a particular instance that the probative value of the evidence is substantially outweighed by the
- Extrinsic evidence ordinarily may be offered to prove bias. The court must determine the admissibility of such evidence under , balancing the probative value of the evidence against the danger of unfair prejudice, confusion, waste of time, etc. For example, where the witness has admitted to the acts or statements showing bias, the court may exclude the extrinsic evidence on the ground that it is cumulative.
- The collateral matter rule is easily stated (but less easily understood). If the extrinsic evidence is relevant solely because it tends to discredit the witness, it is said to relate to a collateral matter and is therefore inadmissible. If, however, the evidence is also relevant to prove or disprove a substantive fact in dispute, it is not collateral, and extrinsic evidence may be offered.
- The federal rules and most state rules say nothing about the collateral matter test. In fact, the reason for excluding extrinsic evidence on collateral matters is that the probative value of such evidence is rarely worth the time and the risk of diverting the jury’s attention from the real issues in the case. Therefore, courts exclude this evidence on the basis of a FRE 403 balancing.
- The item used to refresh memory is not evidence; it is only a . Therefore, it need not be authenticated, comply with the Best Evidence Rule, fall within a hearsay exception, or meet
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Chapter I. Analytical and Exam Approach 10 results (showing 5 best matches)
- There are numerous grounds upon which a court may exclude a particular piece of evidence. In thinking about the admissibility of any piece of evidence, picture an obstacle course. At the starting line stands the piece of evidence that a party is seeking to introduce. At the finish line is the jury box. That piece of evidence must be able to hurdle any number of a series of obstacles that its opponent puts up (by way of objections) in its path to the jury box. For example, the opponent may object that this piece of evidence is inadmissible because it is (a) irrelevant, (b) hearsay, (c) presented through an incompetent witness, (d) privileged, (e) impermissible opinion, and (f) in violation of the best evidence rule. Each of these is an independent obstacle (objection).
- This book divides the law of evidence into ten subject areas. (This corresponds with the way the Federal Rules of Evidence, many casebooks, and evidence courses divide up the law.) When you approach an evidence problem you need to think about all the obstacles (objections) that can possibly be raised to its admission. The mnemonic HEAR PA BROWN will clue you in to the various grounds for objection.
- With respect to a particular piece of evidence, state the objection that is most likely to be raised; if it is not obvious, state why the objection is appropriate. Then discuss the arguments for admission that can plausibly be raised in response to the objection and reach a conclusion as to the validity of the objection. Be sure to discuss both sides of the argument. Next, if there is another ground for objecting to the piece of evidence, discuss it in the same way. If not, go to the next piece of evidence that might be objectionable and discuss it in the same manner.
- Until the last part of the 20th century, the vast majority of states (with California as an important exception) followed the common law in dealing with questions of evidence. Despite differences in detail from state to state, a majority common-law rule could be discerned in most areas of evidence law. The enactment of the Federal Rules of Evidence in 1975 sparked a dramatic change. Although the Federal Rules embraced many common-law rules, it also departed from the common law in many respects. Since its enactment, 45 states (plus Puerto Rico and the military) have adopted codes of evidence based on the Federal Rules. In late 2011, a new, restyled version of the Federal Rules was enacted. The rules were rewritten in a clearer and stylistically more consistent manner, but no substantive changes were made.
- Almost every evidence problem you get will fall into one or more of these areas. On an essay question, you are typically asked to discuss all the plausible grounds for exclusion. Run through HEAR PA BROWN in your mind. Relevance is usually addressed first in an essay question. If there is a hearsay problem, discuss it. If the evidence raises a privilege problem, discuss that. Don’t stop simply because you conclude the evidence is inadmissible hearsay. Within the time constraints, discuss all plausible issues. The idea, after all, is to show off all you know that is pertinent to the question.
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Chapter II. General Provisions 28 results (showing 5 best matches)
- If a party complains on appeal that the trial judge erroneously admitted evidence, it must show that (a) it to the evidence; (b) it did so in a (c) the evidence was inadmissible ; and (d) admission of the evidence affected a
- The trial judge excludes evidence upon a hearsay objection. Even if the evidence was not objectionable as hearsay, the decision to exclude will be upheld if the evidence could have been excluded under some other rule of evidence.
- One of the most important general principles in the law of evidence is that
- If the objection failed to state a proper legal basis for excluding the evidence, the trial judge’s decision to admit the evidence will be upheld
- If a party complains on appeal that the trial judge erroneously excluded evidence, it must show that (a) it made at trial; (b) the evidence could not have been excluded ; and (c) exclusion of the evidence affected a
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Chapter V. Hearsay Exceptions 34 results (showing 5 best matches)
- The court may consider the contents of the statement itself as evidence of the existence of the startling event and the declarant’s spontaneous reaction to the event. Independent evidence of either is not required, although the existence of such independent evidence makes it more likely that the court will find that the proponent of the statement has met the burden of demonstrating that it qualifies as an excited utterance.
- Reputation evidence may be used for several different purposes. Some are discussed above: reputation for personal or family history and as to land boundaries and customs. Reputation evidence may also be used to prove important to the community, state or nation. [FRE 803(20).] Finally, reputation evidence may be used to prove . [FRE 803(21).] Recall, however, that evidence of a person’s character is admissible only for certain purposes.
- preponderance of the evidence
- The statement is offered as evidence of a . (Since evidence must be relevant to be admissible, this adds nothing.)
- Prosecution calls Witness to testify that Cohort told him, “Defendant and I are working together to sell the drugs. He gets them from Supplier, and I sell them on the street. I want you to help me.” The court may consider this statement as evidence that Cohort (the declarant) and Defendant were co-conspirators and that the statement was made during and in furtherance of the conspiracy. But this statement by itself may not be considered sufficient evidence to establish that it is an admission by co-conspirator. Prosecution must produce other evidence to show that Cohort and Defendant were conspiring to sell drugs.
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Chapter VIII. Authentication 22 results (showing 5 best matches)
- real evidence
- Before a writing may be introduced into evidence, it must be “authenticated;” that is, its proponent must establish that . Under the federal rules, the authentication requirement applies not only to writings, but to other forms of physical evidence (e.g., the murder weapon) and to less tangible things, such as voices. [FRE 901.]
- A writing may be authenticated by circumstantial evidence. There are innumerable ways in which this might be done. Some standard techniques of authentication by circumstantial evidence have evolved over the years.
- The authentication requirement is really a means of establishing the relevance of the proffered item. The standard for authentication is the low one associated with conditional relevance. See § 40. The proponent of the evidence need only introduce
- Defendant is charged with the criminal extortion of Victim. Victim testifies that he received an unsigned, handwritten note threatening him. Defendant objects that it has not been authenticated. The prosecutor presents evidence that the note was written on very unusual paper of the type that Defendant regularly used and with an unusual ink of the kind that Defendant regularly used. This is sufficient evidence to authenticate that Defendant wrote the note.
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Chapter XII. Burdens of Proof and Presumptions 38 results (showing 5 best matches)
- approach, also in honor of two famous Evidence scholars), the presumption acts merely to
- Suppose Plaintiff introduces a great deal of unchallenged evidence establishing Defendant’s negligence. At this point, if Defendant fails to produce some counter-evidence, the judge would have to grant Plaintiff’s motion for a directed verdict. In other words, absent some evidence from Defendant, the judge would have to conclude that no reasonable juror could rule for Defendant. At this point, the judge would hold up a red light
- Suppose the only evidence Plaintiff introduces is that Plaintiff’s and Defendant’s cars collided. No evidence indicating Defendant was at fault is introduced. Defendant would be entitled to a directed verdict because no reasonable juror could find that Defendant was negligent. Thus, the judge would (figuratively) hold up a red light, stopping Plaintiff from getting his case to the jury. Plaintiff has not only failed to meet his burden of persuasion, he has failed to meet his burden of production.
- a. Preponderance of the Evidence [§ 780]
- case must prove its case by a preponderance of the evidence. This means that it must satisfy the factfinder that it is
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Chapter IV. Hearsay 15 results (showing 5 best matches)
- Hearsay is probably the most important topic in an evidence course. Certainly, it is one of the most confusing. The basic rule concerning hearsay can be stated simply: Hearsay evidence is inadmissible unless it falls within an exception to the hearsay rule. Therefore, it is crucial to understand (a) what constitutes hearsay, and (b) what comprises the exceptions. This chapter deals with the first of these problems: what constitutes hearsay. Chapter V covers the hearsay exceptions.
- “a statement that (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement.”
- however, is the declarant and it is his statement that concerns us for hearsay purposes. Looking at the evidence, it appears that Denny actually said something like, “My head hurts,” or “I have a headache.” That is Denny’s out-of-court statement.
- If the state of mind of a declarant is relevant to the case, a statement made by him may be circumstantial evidence of his state of mind, regardless of its truth.
- . This makes sense because it would do no good to call the bloodhound or radar gun into court for cross-examination. Before testimony about the barking may be introduced, however, evidence will have to be presented regarding the bloodhound’s competence to track scents and his handler’s competence in interpreting the dog’s reactions. In the case of the radar gun, evidence will have to be presented that the gun was in good working order and was operated properly. But these are not hearsay problems.
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Chapter XI. Judicial Notice 3 results
- device: L.A. Law.) The Federal Rules of Evidence contain provisions governing judicial notice only of
- evidence to disprove its truth is
- Neither the federal rules nor most state evidence rules contain provisions governing judicial notice of legislative facts. Courts may notice legislative facts without regard to whether they are indisputable and may consider reports, books, articles, studies, etc., without following any particular procedure.
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Index 22 results (showing 5 best matches)
Table of Contents 25 results (showing 5 best matches)
Title Page 1 result
- Publication Date: November 12th, 2012
- ISBN: 9780314285942
- Subject: Evidence
- Series: Quick Reviews
- Type: Outlines
- Description: Quick Review of Evidence is a short, clear, concise, and substantive outline. It is designed to make the study of law clear and convenient, and to help students prepare for their law school exams. The main body is an outline of the substantive content that a student needs to prepare for a law school exam. The concise format provides a "big picture" overview, allowing students to review the subject quickly prior to final exams.
