Evidence Flashcards
Relevant Evidence
Evidence that has any tendency to make a material fact more probable or less probable than would be the case without evidence
Similar Occurrence
If evidence concerns some time, event or person other than that involved in the case at hand, the evidence is inadmissible.
Plaintiff’s Accident History
Generally, plaintiff’s accident history is Inadmissible because it shows nothing more than the fact that the plaintiff is accident prone
Exception - admissible if the event that caused the plaintiff’s injuries is at issue
Similar Accidents Caused by Same Event or Conditions
Generally, other accidents involving defendant are inadmissible because they just show general character for carelessness
Exception - admissible if the other accident occurred under substantially similar circumstances
- to show the existence of a dangerous condition
- causation of accident
- prior notice to the defendant
Liability Insurance
Admissibility
Evidence that a person has or does not have liability insurance is inadmissible for the purposes of proving fault or absence of fault
Exception: may be used to show (a) proof of ownership/control of instrumentality or location, if any of these issues is disputed by the defendant; or (b) for the purpose of impeachment of a witness
Post-Accident Repairs
Post-accident repairs, design changes, policy changes are inadmissible for the purpose of proving negligence, culpable conduct, product defect, or need for warning.
Exception: Subsequent remedial measures may be admissible for some other relevant purpose, such as proof of Ownership/Control or Feasibility of Safer Condition, if either disputed by the defendant
Settlement of Disputed Civil Claims
The following are inadmissible in the event of a disputed civil claim:
- evidence of settlement
- offer to settle
- statement of fact made during settlement discussions for the purpose of showing liability
Exceptions: Impeachment for bias
Statements of act made with a government regulatory agency
Plea Bargaining in Criminal Case
The following are INADMISSIBLE:
Offer to plea guilty - cannot be used against the defendant in the pending criminal case or in subsequent civil litigation based on the same facts
Withdrawn guilty plea - cannot be used against the defendant in the pending criminal case or in subsequent civil litigation based on the same facts
Plea of nolo contendere (“no contest”) - can’t be used against defendant in subsequent civil litigation based on same facts
Statement of Fact made during any of the above plea discussions
Offer to Pay Medical Expenses
Evidence that a party has paid or offered to pay an accident victim’s hospital or medical expenses is inadmissible to prove liability.
Note: does not exclude other statements made in connection with an offer to pay hospital or medical expenses
Character Evidence
Refers to a person’s general propensity or disposition. e.g. honest, fairness, peacefulness, or violence
Potential Purposes for the Admissibility of Character Evidence
- Person’s character is an ESSENTIAL ELEMENT OF THE CASE
- Proves CONDUCT IN CONFORMITY WITH CHARACTER at the time of litigated event
- Witness’ bad character for truthfulness to IMPEACH CREDIBILITY
`Defendant’s Character (Criminal Case)
Character Evidence is:
- INADMISSIBLE during the prosecution’s case-in-chief
- ADMISSIBLE by defendant during defense to show evidence of a relevant character trait to prove conduct. This OPENS THE DOOR TO REBUTTAL by the prosecution.
Admissible Forms of Character Evidence
When character evidence is admissible through a character witness to prove conduct n conformity, the proper form:
- Reputation
- Opinion
Prosecution’s Rebuttal
If defendant has “opened the door,” prosecution may:
1. Cross examine defendant’s character witnesses with “have you heard” or “did you know” questions about specific acts of the defendant that reflect adversely on the particular character trait defendant has introduced; and/or
- by calling its own reputation or opinion witnesses to contradict defendant’s witness
Victim’s Character - Self-defense Case
Criminal defendant may introduce evidence of victim’s violent character to prove victim’s conduct in conformity, i.e. as circumstantial evidence that the victim was the first aggressor
method: character wittiness may testify to victim’s reputation for violence and may give opinion
Prosecution Rebuttal: evidence of victim’s good character for peacefulness or defendant’s character for violence
Separate Rule of Relevance
If the Defendant, at the time of the alleged self-defense, was aware of the victim’s violent reputation or prior specific acts of violence, such awareness may be proven to show defendant’s state of mind - fear - to help prove that he acted reasonable in responding as he did to the victim’s aggression
Victim’s Character - Sexual Misconduct
Under “rape shield law,” in both criminal and civil cases, where defendant is alleged to have engaged in sexual misconduct, the following evidence about the victim’s ordinarily inadmissible:
- opinion or reputation evidence about the victim’s sexual propensity, or
- evidence of specific sexual behavior of the victim
Victim’s Character - Sexual Misconduct - Exceptions
Exceptions:
- Specific sexual behavior used to prov that someone other than the defendant was the source of semen or injury to the victim;
- Victim’s sexual activity with the defendant if the defense of consent is asserted; or
- Whee exclusion would violate defendant’s right of due proceeds (ex. Love Triangle Defense)
Defendant’s Character (Civil Cases)
Character evidence is generally INADMISSIBLE to prove conduct in conformity
Evidence of person’s character is ADMISSIBLE in civil action whee such character is an ESSENTIAL ELEMENT OF A CLAIM OR DEFENSE
- tort action alleging negligent hiring or entrustment of employee
- defamation case (libel or slander)
- child custody dispute
Admission of Defendant’s other crimes for non-character purposes
General Rule: other crimes or specific bad acts of defendant are not admissible during the prosecution’s case-in-chief if the only purpose is to suggest that because of defendant’s bad character he is more likely to have committed the crime currently charged
Five Most Common Non-Character Purposes:
Motive Intent Mistake or accident, the absence thereof Identity Common scheme or plan
Authentication of Writings
If the relevance of a writing depends upon its source or authorship, a showing must be made that the writing is authentic.
Authentication of a Document
Requires witness’s personal knowledge
Proof of Handwriting
Can be authenticated by:
- Lay person opinion
- Expert comparison opinion
- Jury comparison
Ancient Document Rule
Authenticity may be inferred if document is:
a. at least 20 years old;
b. facially free of suspicion; and
c. found in a place of natural custody
Solicited Reply Doctrine
Document can be authenticated by evidence that it was received in response to a prior communication to the alleged author
Self Authenticating Documents
The following are presumed to be authentic - no foundation testimony needed:
- Official publications
- certified copies of public or private records on file in public office
- Newspapers or periodicals
- Trade inscriptions and labels
- Acknowledged document
- Commercial paper
Authentication of Photographs
Witness may testify on the basis of personal knowledge that the photograph is a “fair and accurate representation” of the people or objects portrayed
Best Evidence Rule
A party who seeks to prove the contents of a writing must either:
- produce the original writing, or
- provide an acceptable excuse for its absence
Note: writing includes sound recordings, X-rays and films
Best Evidence Rule - Application
Applies: when the writing is a legally operative document or the witness is testifying to facts that she learned solely from reading about them in a writing
Does not apply: when witness with personal knowledge testifies to a fact that exists independently of the writing
Original Writing
An original writing is whatever the parties intended as the original.
duplicate - any counterpart produced by any mechanical means that accurately reproduces the original (i.e. photocopy)
Note: handwritten copy is neither an original nor duplicate
Excuses for non-production of original
- lost or cannot be found with due diligence
- destroyed without bad faith
- cannot be obtained with legal process
“Escapes” for Best Evidence Rule
- Voluminous record can be presented as a summary or chart
- Certified Copies of Public Records
- Collateral documents (may be proven by secondary evidence)
Witnesses - Competency
Competency of a witness may be established through:
a. personal knowledge
b. oath or affirmation
Dead Man’s Statute
In a civil action, an interested witness is incompetent to testify in support of her own interest against the estate of a decedent concerning communications or transactions between the interested witness and the decedent
Note: Under FRE, there is no “dead man’s rule.”
Leading Questions
Definition and Rule
Defined: Form of question suggests the answer
Rule: Generally NOT allowed on Direct Examination
Generally ALLOWED ON Cross Examination
Exceptions:
- preliminary or introductory matters
- youthful or forgetful witness
- hostile witness
- adverse party or someone under control of opposing party
Refreshing Recollection
Basic Rule: Witness may not read from prepared memorandum; must testify on basis of current recollection. BUT, if witness’s memory fails, he may be shown a memorandum (or any tangible item) to jog his memory.
Note: Adversary has the right:
- to inspect the memory-refresher
- to use it on cross-examination
- to introduce it into evidence
