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Evidence Tricks

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firofuha's version from 2017-05-05 15:20

mnemonics

Question Answer
HEAR PA BROWNThe Categories of Evidence
HEARHearsay
PPrivileges
AAuthenticity
BBest Evidence Rule
RRelevance
OOpinion Testimony
WWitness (impeachment/rehabilitation)
NNotice, Judicial
memorize

404B Reasons for Character other than Propensity

Question Answer
MMotive
IIntent
MMistake (Absence of)
Iidentity
CCommon Plan or Scheme
memorize

405 Methods of proving Character

Question Answer
RReputation
OOpinion Testimony
SASpecific Acts
memorize

Hearsay

BAD SPLITS PEPPI F
Question Answer
BBusiness record exception (has its own pneumonic KRAP – see below)
AAdmissions by a party opponent
DDying Declaration
SSpontaneous Statements (i.e. exited utterances)
PPublic Records
LLearned Treaties (618 under TRE, 803 (18) under FRE)
IInterest, Declaration against
TTestimony Former
SState of Mind or Condition
PPast Recollection Recorded
EEquivalent or catch all (FRE 807) (equivalent guarantee of trustworthiness)
PPrior inconsistent statement (Actually 613 but allows hearsay in)
PPrior consistent statement (Actually 613 but allows hearsay in)
IIdentification (prior statement of)
FForfeiture by wrongdoing.
memorize

Business Records

Question Answer
KRegular practice of the business to KEEP
RMade in the REGULAR course of business
AMade AT or near the time of the event
PMade by an employee with PERSONAL knowledge, or provided to that employee by another employee with a duty to report such knowledge
memorize

Rule 804 6 reasons, 5 Exceptions

 

Question Answer
PPrivilege
RRefuses
IIll, infirmed, dead
MMemory (lack of)
AAbsent (includes inability to subpoena and the Distant Deponate)
memorize

 

Question Answer
DDying Declaration
IInterest, declaration against
FFormer Testimony
FForfeiture by wrongdoing
FFamily History/Pedigree statements
memorize

Types of Error

Question Answer
Harmlessyou made the objection, there was an improper ruling by the judge (he was wrong), BUT it does not affect a substantial right of your client. LOSE Incorrect ruling by the judge that does not effect a substantial right of the party
Prejudicial you made the objection, there was an improper ruling, and it was prejudicial to a substantial right, so you win and get a new trial. WIN Incorrect ruling by trial court and it effects final determination
Plainyou made no objection, evidence came in that should not have, and it was so prejudicial that even though you didn’t object it was so obvious/so fundamental/ egregious, the appeals court will save the client and you are granted a new trial. WIN Incorrect ruling/no objection- prejudicial effect egregious
Invited (waived) you made a tactical decision to let the evidence in or raised it on your own. LOSE
memorize

Daubert and expert witnesses

Question Answer
What are the factors from Daubert1) can theory be tested and has it been 2) subject to peer review and publication 3) standards and known error rates 4) accepted by scientific community (Frye) 5) was there research independent of litigation
Daubert in a Sentence“The task is not to analyze what the experts say, but what basis they have for saying it.”
What does Kumho do?Expands Daubert to all "experts" not just scientists, i.e. technicians, engineers, persons with highly specialized knowledge
GE v. Joiner (1997)Abuse of discretion standard is what's going to apply to these gatekeeper rulings that all the trial judges are going to be making.
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