Evidence Flashcards
Relevance
two step process:
- determine if evidence is relevant.
- if so, determine if it should still be excluded based on judicial discretion, or public policy.
elements
1. any tendency to make the existence of any fact more less probable than it would be without the evidence
2. the fact is of consequence to the determination of the action
(probative value is not outweighed by unfair prejudice probative value=degree/ do we need it at this point?
(time, event,or person in controversy)
personal knowledge
witnesses must have personal knowledge of what they are testifying about
admissibility of evidence
- relevance
- foundation
- proper form?
- exclusionary rules?
- admissible if satisfies all
Exceptions to general rule
causation: can use evidence concerning other times, events, or persons if similar to events at issue
prior false claims or same bodily injury: evidence of previous similar false claims or claims involving tame BI is relevant to prove 1. present claim likely to be false, 2. P’s condition is attributable to prior injury
- similar accidents or injuries caused by the same event or condition: admissible to prove 1. existance of a dangerous condition 2. D had knowledge of dangerous condition 3. dangerous condition was the cause of the present injury
- previous similar acts to prove intent: history of segregation to show motive for current exclusion
- rebutting claim of impossibility: D’s claim that the car will not go above 50mph
- sales of similar property:
evidence of unaccepted offers by a party to the action to buy or sell the property may be used against him as an admission. - Habit: describes a persons’ regular response to a specific set of circumstances. Under FRE, evidence of a person’s habit may be admitted to prove that on a particular occasion the person acted in accordance with the habit.
- industrial or business routine: established business routine to show a particular event happened
- industry custom as standard of care: may be offered to show adherence to or deviation from an industry-wide standard of care.
discretion to exclude relevant evidence
Judge has discretion to exclude relevant evidence if its probative value is substantially outweighed by undue prejudice (emotional reaction, evidence admissible for one fact but not another), or is likely to confuse the issues, mislead jury, delay or waste of time.
Discretion to exclude relevant evidence for public policy reasons
- liability insurance
admissible: prove negligence/ability to pay
admissible: ownership/control, impeachment, or admission of liability
Subsequent remedial measure:
admissible: negligence, culpable conduct, product defect
admissible: ownership/control, rebut the claim that precautions were impossible, prove destruction of evidence.
settlement offers: only inadmissble to prove or disprove the validity or amount of disputed claim or impeach by prior inconsistent statement. (need indication of making a claim and claim must be indispute)
offer to pay or payment of medical expenses:
inadmissible: to prove culpable conduct but related statements are admissible
withdrawn guilty pleas: inadmissble
character evidence in civil cases
generally inadmissible to prove they acted in conformity with that character on given occasion.
exceptions to character evidence in civil cases
character is at issue: allowed if character is an element of claim/defense (defamation, child custody, negligent entrustment)
to prove conduct: prior sexual assault or child molestation: D’s prior acts of sexual assault or molestation are admissible to prove through opinion, reputation, or specific instances of conduct.
if litigant had relevant alternative it can come in
if a party testifies their credibility automatically is at issue
Defendant’s character evidence in criminal cases
The prosecution cannot introduce character evidence to show propensity.
D can use reputation or opinion evidence to show innocence. not specific acts
However, if D does, P can rebut it with pertinent bad character evidence. Cross-exam of character witness (knowledge opinion, reputation, specific instances, but no extrinsic evidence) or bringing in own witness(reputation or opinion)
Prior bad acts not allowed unless for MIMIC
If D testifies, character automatically at issue
- sexual assault/child molestation
Exceptions to use specific instances in criminal cases
P can use character evidence (specific instances) to show: Motive Intent Mistake Identity (similarity and uniqueness) Common plan or scheme
elements: to be admissible, 1 there must be sufficient evidence to support a jury finding that D committed the prior bad act and 2. probative value not substantially outweighed by danger of unfair prejudice
P must give notice explaining non-propensity purpose and reasoning
victims in criminal cases
P cannot open door
but if
1. D offers evidence of victims character, P can rebut or
2. In homicide cases if D offers evidence that V attacked first, P can offer evidence of victim’s character for peacefulness
type of character evidence allowed by prosecution
direct: reputation, opinion but not specific instances of conduct
cross: reputation, opinion, and specific instances of conduct to attack direct examination testimony
character evidence
can be used to prove character when it is at issue or as circumstantial evidence of how a person probably acted.
can be proven through specific acts, opinion testimony or reputation
rape victim’s past behavior
generally not admissible.
but in criminal cases, specific instances of victim’s sexual behavior is allowed to prove different source, injury, or other physical evidence,
specific instances between alleged victim and D are allowed to show consent
in civil allowed if probative value substantially outweighs danger of harm to victim and unfair prejudice to any party.
reputation allowed if victim places it in controversy
character evidence in homicide for self defense cases
if D pleads self defense, evidence that victim was first aggressor opens the door for evidence that victim had good character for peacefulness.
prior acts of sexual assault or child molestation
prior acts of sexual assault/molestation allowed in criminal or civil cases if D accused of it and disclosed 15 days before trial
judicial notice
facts taken as true without presentation of evidence
can be indisputable facts that are either matters of common knowledge or capable of verification through sources of unquestionable accuracy
who can request judicial notice
- the court at its discretion
2. any party
adjudicating and legislative facts
FR govern only adjudicative facts.
legislative facts (relating to legal reasoning and lawmaking) do not need to be common knowledgenor capable of undisputed verification
mandatory v permission judicial notice
Must: federal and state law and official regulations of forums State and fed.
May: municipal ordinances and private acts/resolutions of congress. laws of foreign countries.
real evidence
actual physical evidence can be direct, circumstantial, original or prepared.
direct evidence
offered to prove facts about the object as an end of itself
permanent injury show injury itself
circumstantial
facts about the object are proved as basis for an inference that other facts are true
original (real evidence)
connection with transaction that is in question at trial
ex: murder weapon
prepared
demonstrative evidence
ex. sketches, models
admissibility of real evidence
- authentication through a. testimony that witness recognizes object or b. evidence of substantially unbroken chain of command
- stipulation
- oral statements only when important
- condition of object: if condition is relevant must show it is in substially the same condition.
- balancing test: some policy may outweigh the need to admit evidence (physical inconvenience, indecency, impropriety, undue prejudice.
character v habit evidence
character: something general about a person and conveys a moral judgment
habit: specific conduct and makes no moral judgment. must be repeated conduct
testimonial Evidence:
competency
who can testify? 4 requirements
- personal knowledge (does the fact testified to = the fact perceived? if not, PK is objection.) perception may be limited.
- present recollection: cannot be based on a record the witness once knew but has now forgotten
- ability to communicate
- sincerity: oath or affirmation.
judge and jurors cannot testify
objections to form of testimony and questions
- calls for a narrative: too broad
- unresponsive: not answering the question
- leading: cannot suggest answer in question (ok on cross but must be w/in scope of direct)
- assumes facts not in evidence
- argumentative (not really a question)
needs for timely and specific objection
witness use of documents during testimony
can be hearsay but can try to overcome by
- refreshing recollection
- recorded recollection
opinion evidence
normally this is inadmissible
opinion evidence
expert
- helpful to the jury: specialized knowledge to reach conclusion average juror cannot figure out on their own.
- witness must be qualified
- witness must believe in opinion to a reasonable degree of certainty
- opinion must be supported by a proper factual basis: personal knowledge, admitted evidence, inadmissible evidence reasonably relied upon.
- the opinion must be based on reliable principles that were reliably applied. (peer-reviewed and published, tested, and subject to retesting, low error rate, and a reasonable level of acceptance
if there are common sense issues w/ testimony it is inadmissible if W failed to consider pertinent evidence and alternative theories
Learned treatise: admissible to prove anything stated therein if it is an accepted authority in field.
evidence to support the W’s credibility
inadmissible unless credibility is attacked first
prior consistent statement is not hearsay and admissible for all purposes if
- made before alleged bribe or
2. rehabilitates witness credibility if attacked on some other non-chracter ground
impeachment generally
- is source of impeachment extrinsic evidence or testimony at this proceeding of witness being impeached?
- if extrinsic, is it admissible given impeachment technique?
Def: Any evidence other than testimony given at this proceeding by the witness being impeached. - any other foundation requirements
impeachment evidence inadmissible to contradict on collateral matter
extrinsic evidence to contradict on collateral matter (not material to issues at hand and nothing re credibility)
impeachment by prior inconsistent statement by witness
careful of hearsay. PIS is ok, but to show the truth? no.
PIS who testifies at trial is not hearsay if given under oath at trial or depo. can be used to prove anything.
otherwise, hearsay and inadmissible for truth.
Extrinsic evidence of PIS cannot be used to impeach on collateral matter.
Foundation requirement: extrinsic evidence admissible only if witness given opportunity to explain or deny.
impeachment with evidence of bias, interest, motive
admissible
Foundation requirement: extrinsic evidence admissible if witness given opportunity to explain or deny
impeachment with prior convictions
crime involving dishonesty or false statement 10 years of less (felony/misdemeanors)
no balancing for unfair prejudice.
specific instances not allowed to show conduct by prosecution
extrinsic ok
crimes not involving dishonesty or false statement
felonies not involving dishonesty or false statement may be allowed unless probative value outweighed by unfair prejudice (extrinsic ok)
misdemeanors: not involving dishonesty/false statements are inadmissible
impeachment with nonconviction misconduct evidence bearing on truthfulness
Acts of misconduct that did not result in a conviction are admissible to impeach in both civil and criminal cases if the acts involved lying. Extrinsic evidence to prove the acts is inadmissible. Impeacher only may cross-examine witness about her misconduct.
impeachment with reputation and opinion re: truthfulness
admissible
impeachment of hearsay declaration
When a hearsay statement has been admitted in evidence, the credibility of the declarant may be attacked
by any evidence that would be admissible for that
the purpose if the declarant had testified as a live witness.
no foundation requirement
refreshing recollection
refreshing recollection (do not read out loud only to oneself) can use anything to refresh recollection, the opponent can inspect and offer into evidence items used to refresh
recorded recollection
recorded recollection: if W cannot remember, must show
a. the witness once had personal knowledge of the facts
b. document was made by the witness/at their direction, or adopted it
c. document was made at a time when facts were fresh in the witness’s memory
d. document was accurate
e. witness now has insufficient recollection to testify re matters in doc.
lay opinion
admissible if
- rationally based on W’s perception and
- helpful to the trier of fact (more evidence than w/o) and cannot be based on scientific or other specialized knowledge.
Hearsay
out of court statement used to prove the truth of the matter asserted.
statement: verbal or written expression of a person or conduct intended to communicate (question not enough)
truth of matter asserted: what is it offered to prove, and would jury be misled if OOC speaker were lying or mistaken? yes–>hearsay.
statements that are not hearsay
- statement has independent legal significance
- effect on listener
- circumstantial evidence of declarant’s state of mind.
declarant is an in court witness
can still be hearsay because non-offering party was unable to cross-examine when the statement was made.
opposing party statement
not hearsay
statement by a party or by someone whose statement is attributable to that party offered by a party opponent. The statement is not subject to personal knowledge requirement or opinion rule.
vicarious opposing party statement
- statement By authorized spokesperson of party or
- Employee of party concerning matter within scope of employment and made during employment relationship.
a. Authorization can be expressed or implied
b. Adoptive opposing party statement (nonparty makes statement and party indicates belief in its truth)
c. Co-conspirator statement (made during course and in furtherance eof conspiracy)
what is a prior statement by testifying party
out of court statement from a declarant who now testifies at trial and is subject to cross-examination
unavailable declarant statement is still admissible if
: (1) court exempts declarant from testifying due to privilege, (2) declarant is dead or sick, (3) proponent of statement cannot procure declarant’s attendance by process or other reasonable means, (4) declarant refuses to testify despite court order, or (5) declarant’s memory
former testimony exception
requires unavailability
- The party against whom the testimony is now offered had, during the earlier proceeding, an opportunity to examine that person and the motive to conduct that exam was similar to the motive the party has now, or
- In a civil case, the party against whom the testimony is now offered was not present in the earlier proceeding but has a close privity-type relationship with someone who was a party to that earlier proceeding (a “predecessor in interest”) and who had an opportunity and a similar motive to examine the witness in that earlier proceeding.
- Deposition testimony satisfies requirements
declaration against interest exception requires unavailability
Hearsay statement is admissible if, at time it was made, it was against the financial interest of declarant or would have subjected declarant to criminal liability.
personal knowledge
knew it was against interest and no motive to misrepresent
unavailable
If the statement would have subjected declarant to criminal liability and is being offered in a criminal case (usually, offered by defendant to show that someone else committed to the crime), there must be corroborating evidence to admit the statement.
dying declaration requires unavailability
hearsay statement by someone believing he is about to die and describing cause or circumstances leading to impending death is admissible in civil action or in homicide prosecution. Declarant need not die but must be unavailable.
Excited utterance
Hearsay statement relating to startling event or condition is admissible when made while declarant was still under stress of excitement caused by event or condition. No need to show declarant unavailable
present sense impression
hearsay statement is admissible if describing or explaining an event or condition made while declarant was perceiving the event or condition or immediately thereafter. No need to show unavailability.
then existing physical or mental condition
Hearsay statement of declarant’s then-existing physical or mental condition or state of mind is admissible to show the condition or state of mind. But a statement describing a memory or belief is not admissible to prove the fact remembered or believed. Thus, “I remember/believe that the defendant shot the victim” is not admissible to prove defendant shot the victim. No need to show declarant unavailable.
1. If statement is admitted to prove speaker’s intention, then the same evidence can be used to infer future conduct consistent with the intention.
statement of past/present physical condition made for medical diagnosis or treatment
hearsay statement by one person concerning the past or present mental or physical condition or its cause of that person or any other person is admissible if made for and pertinent to medical diagnosis or treatment. Declarant need not be unavailable.
business records exception
Hearsay is admissible if it is (1) a record of events, conditions, opinions or diagnoses (2) kept in course of regularly conducted business activity (3) made at or near time of matters described (4) by person with knowledge of the facts in that record, (5) it was regular practice of business to make such record, (6) authenticated by testimony or written certification, and (7) opponent does not show that it is untrustworthy. No need to show declarant unavailable. (can cover multiple levels of hearsay)
public records exception
Hearsay record of a public office is admissible if within one of the following categories: (1) record describes activities and policies of the office; (2) record describes matters observed pursuant to duty imposed by law (but not police reports in criminal cases); or (3) record contains factual findings resulting from investigation made pursuant to authority granted by law, unless opponent shows untrustworthy. In criminal case, prosecution cannot use (3). No need to show declarant unavailable
judgment of previous conviction
Hearsay statement describing felony conviction (e.g., copy of the judgment of conviction) is admissible in both civil and criminal cases to prove any fact essential to the judgment, but when offered by prosecution for purposes other than impeachment, judgments against persons other than the accused are inadmissible. No need to show declarant unavailable.
confrontation clause
Confrontation Clause (CC) of the US Constitution might make inadmissible an out-of court statement offered by the prosecution against defendant in a criminal case. The CC excludes an out-of-court statement if (1) declarant does not testify at the trial, (2) the statement is “testimonial”, and (3) defendant had no chance previously to cross-examine declarant about the statement
authentication
Every item of non-testimonial evidence (e.g., writings, photos, guns) must be authenticated.
ancient documents rule
Authenticity is established if (1) document is 20 years old or more, (2) does not on its face present any irregularities (e.g., erasures), and (3) was found in a place of natural custody (i.e., where you would expect such documents to be found).
self-authentication writings
For certain writings, authentication is unnecessary. These include certified copies of public documents (deeds), acknowledged documents (i.e., documents where the original signature is attested before a notary to be valid), official publications (government pamphlets), newspapers, periodicals, business records, and trade inscriptions.
authentication of non-unique items
To authenticate, proponent must lay chain of custody demonstrating that this is the specific item proponent claims it to be. Small break will not defeat authentication.
best evidence rule
Applies only where evidence offered to prove the contents of a writing. (case turns on contents of legal instrument or knowledge obtained from writing) Writings = not only documents but also videos, photos, x-rays, audio recordings, computer disks, or any tangible collection of data. The rule requires original, but with many exceptions.
Voluminous documents exception
can be summarized if originals are available for inspection
if Best evidence rule applies, what can be used to prove contents of a writing
- Original: computer printouts and certified copies are ok
- Duplicates: usually admissible. A copy of original produced by same impression that produced the original (carbon copy) or by machine (photo copy or camera)
- Testimony regarding contents of writing: may be admissible where original lost or destroyed unless bad faith by proponent of testimony
but if there is a genuine question as to authenticity of original, need original
privileges
attorney-client
psychotherapist
doctor-patient: states, diversity or fact pattern will confirm this
corporation employee-corp. atty.
if the corporation authorized the employee/agent to communicate to the lawyer on behalf of the corporation.
atty-client not applicable
where (1) professional services sought to further what client knew or should have known to be a crime or fraud, or
(2) client puts the legal services at issue, as in a malpractice suit against the lawyer, or
(3) two or more parties consult an attorney on a matter of common interest and the communication is offered by one of these parties against another
no doctor/patient privilege
Privilege does not apply (1) where the patient puts his physical condition in issue, as in a personal injury suit; (2) where physician’s services sought to aid in crime or fraud or to escape capture after a crime or tort; (3) in case alleging breach of duty arising out of physician-patient relationship, as in a malpractice action. Some states (including California) do not recognize the privilege in criminal cases
spousal testimonial privilege
permits witness to refuse to testify against his/her spouse as to anything. Applies only in criminal cases.
- Can apply to matters occurring before or during marriage
- Witness owns the testimonial privilege
spousal confidential communication privilege
protects confidential spousal communications during the marriage. Applies in both criminal and civil cases.
- Communication privilege applies if communication made during the marriage in reliance of the intimacy of the marital relationship
- Both spouses own the privilege
requirements/exceptions to marital privileges
For both privileges, there must be a legally valid marriage. Neither privilege applies in civil action between spouses or in criminal prosecution where one spouse is charged with a crime against the other spouse or one of their kids
statement of personal or family history
statement of unavailable declarant concerning births, marriages, divorces, relationship, genealogical status, etc are admissible if
- declarant is member of the family in question or intimately associated with it and
- statements are based on the declarant’s personal knowledge of the facts or knowledge of family reputation
statement offered against party procuring declarant’s unavailability
unavailable witness’ statement is admissible when offered against party who has engaged or acquiesced in wrongdoing that intentionally procured the declarant’s unavailability
hearsay catchall
- sufficient guarantees of trustworthiness
a. look a totality of circumstances in which statement was made
b. any evidence that corroborates the statement - statement must be strictly necessary
- proponent must give reasonable notice
a. substance of the statement
b. name of declarant
what is reputation evidence allowed for
allowed for:
- character
- personal or family history
- land boundaries
- community’s general history
presumptions
rule: requires inference from an ascertained set of facts. and shifts burden of production.
destroying presumptions: when adversary produces evidence to rebut the presumption
no mandatory presumptions in criminal cases.
