evidence 1 - Sheet1 Flashcards
evidence
What are typical SUCKER answers for evidence questions?
(1) ‘Inadmissible because it is not the best evidence.’
(2) ‘Inadmissible because of the Dead Man’s Statute.’
(3) ‘Inadmissible because the evidence is self serving and prejudicial.’
(4) ‘The statement is part of the res gestae.’
(5) T.V. Objections:
- ‘The witness is not on trial’
- ‘The evidence calls for an inference upon an inference’
(6) ‘Not hearsay because it is the witness’ own statement.’
(7) Res Gestae (present sense impression and the then existing mental/physical state have taken the place of this common law exception).
evidence
When is evidence relevant?
Any tendency; Of consequence; More or less probable
Evidence is relevant when it has ANY TENDENCY to make the existence of any fact that is OF CONSEQUENCE to the determination of the action MORE OR LESS PROBABLE than it would be without the evidence.
evidence
What types of facts are ‘of consequence?’
(1) Anything that must be proved in the case (know the elements)
AND in CA:
(2) Is disputed
- not stipulated to
evidence
Can evidence be somewhat relevant?
NO
Relevance is a YES or NO inquiry (unlike probative value).
evidence
Can evidence be somewhat probative?
YES
Probative value is a sliding scale (unlike relevance).
evidence
What must a judge determine to rule that relevant evidence is nevertheless inadmissible?
The probative value is SUBSTANTIALLY outweighed by
(1) unfair prejudice;
(2) confusion; or
(3) waste of time
evidence
When is relevant evidence often inadmissible?
(1) When it is emotionally disturbing
(2) When it is admissible for one purpose and inadmissible for another
evidence
What type of relevant evidence is typically inadmissible for policy reasons?
(1) Liability insurance
(2) Subsequent remedial measures
(3) Settlement offers
(4) Offers to pay medical expenses
evidence
When is liability insurance:
(1) Inadmissible; and
(2) Admissible
(1) Inadmissible
- To prove culpable conduct; or
- Ability to pay
(2) Admissible
- Anything else: bias, scope of employment, etc.
evidence
When are subsequent remedial measures:
(1) Inadmissible; and
(2) Admissible
(1) Inadmissible
- To prove culpable conduct; or
- Defective product design (CA allows this)
(2) Admissible
- Anything else: ownership, rebut the no feasible precaution defense, etc.
evidence
When are settlements, settlement offers, and surrounding statements:
(1) Inadmissible; and
(2) Admissible
(1) Inadmissible;
- To prove liability in a civil suit
(2) Admissible
- When there is no claim or threat of a claim
- When no dispute as to liability or damages exist (D is looking for a bargain, offering $5,000 to settle while admitting to owing $10,000)
evidence
When are guilty pleas, pleas of nolo contendre, and related statements:
(1) Inadmissible; and
(2) Admissible
(1) Inadmissible;
- To prove guilt in a criminal case
(2) Admissible
- never
evidence
When are offers to pay medical expenses:
(1) Inadmissible; and
(2) Admissible
(1) Inadmissible;
- To prove liability in a civil suit
(2) Admissible
- Surrounding statements are admissible.
evidence
Similar occurrence evidence is typically inadmissible.
When may similar occurrences be admissible?
Causation; Fraud; Preexisting Condition; Possibility; Value; Habit; Practice; Custom
(1) To prove causation
- Too similar to be a coincidence
- Same time, place, manner, and injury
(2) To prove fraud
- Previously had faked a slip and fall
(3) To prove a preexisting condition
- Injury existed previously
(4) To rebut impossibility defense
- It has happened before
(5) To establish value
- Comparable sales
- Similar property, area, time
(6) Habit
- Specific conduct
- No moral judgment
(7) Routine Practice (Business Habit)
- Conformity
(8) Industrial Custom
- Establishing standard of care
- How it’s done in the industry
evidence
What is the difference between habit and character?
(1) Habit
- Specific conduct that conveys no moral judgment
- Always stops at lights, completely behind the line, gets out of the car to ensure he is behind the limit line, pushes his car through the intersection only after determining that it is 100% safe, and waives a red flag to warn others.
- Only can be established via O/SA, NEVER R
(2) Character
- General statement about a person that conveys a moral judgment
- ‘Careful Driver’
- May be established via ROSA
