Evidence Flashcards
Evidence is releant if
- (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.
- Generally, relevant evidence relates to the time, person, or event at issue, but there are exceptions for certain similar occurrences, e.g.:
a. To prove causation
b. Prior false claims
c. Similar accidents caused by the same condition
d. Rebutting a claim of impossibility
e. Habit- Distinguish from character evidence (which is more general and often inadmissible)—e.g., “Charlie never stops at the stop sign at Main and Oak” (habit) vs. “Charlie is a careless driver” (character)
f. Business routine and industrial custom
Policy-based Relevance—Evidence Excluded for Social Policy Reasons
Think about the general rule, the rationale behind the rule, and its exceptions/limita- tions
Liability insurance
subsequent remedial measures
settlement offers and accompanying admissions of fact
payments or offers to pay medical expenses
Withdrawn guilty pleas and accompanying statements—generally inadmissible
Payments or offers to pay medical expenses
a. Inadmissible to prove liability
b. But note: Accompanying statements of fact are admissible (unlike rule for settle- ment negotiations)
Settlement offers and accompanying admissions of fact
a. Inadmissible to prove or disprove validity or amount of disputed claim, or to impeach by prior inconsistent statement or contradiction
b. Exception—preexisting information not protected
Subsequent remedial measures
a. Inadmissible to prove—negligence, culpable conduct, or defect
b. Admissible to prove—ownership or control, feasibility of the repair, or destruc- tion of evidence
Liability insurance
a. Inadmissible to prove—negligence or ability to pay
b. Admissible to prove—ownership or control, impeachment, or as part of an admission of liability
iscretionary Relevance—Rule 403 Balancing Test
Judge has broad discretion to exclude relevant evidence if its probative value is substantially outweighed by:
a. Unfair prejudice
b. Confusion of issues
c. Misleading the jury
d. Undue consumption of time
character Evidence—Special Relevance Problem
- Determine its purpose—substantive or impeachment evidence? (For character evidence offered to impeach a witness, see VII., infra.)
Which methods of character evidence are permitted
a. Reputation testimony (“Mary has a good reputation for honesty in our commu- nity”)
b. Opinion testimony (“I think Mary is a very honest person”)
c. Specific acts—usually not permitted, unless character is directly at issue in the case (rare); in sexual assault or child molestation cases; or when the act is independently relevant (i.e., relevant to an issue other than defendant’s character)—“MIMIC”:
1) Motive
2) Intent
3) Mistake (absence of)
4) Identity
5) Common plan or scheme
If it is a criminal case and you are introducing character eveidence.
Criminal cases—determine who can initiate and under what circumstances
1) Defendant may introduce evidence of his own good character to show innocence
2) When prosecution may introduce defendant’s bad character
a) As rebuttal when defendant “opens the
door”
b) Specific acts that are independently
relevant (“MIMIC”)
c) Specific similar acts by defendant in
sexual assault or child molestation case
(admissible for any relevant purpose,
including propensity)
3) Character of the victim
a) Defendant may introduce if relevant to
his innocence (generally in self- defense
cases)
b) Prosecution may rebut with (i) defendant’s bad character for same trait or (ii) victim’s good character for same trait
Character Evidence in a civil case.
civil cases—character evidence generally not admitted
1) Exceptions—when character is directly in issue (e.g., defamation, negligent hiring); similar specific acts in a sexual assault or child molestation case; or specific acts that are independently relevant (“MIMIC”)
Real Evidence
- Object is presented directly to the trier of fact for inspection
- Allows the trier of fact to reach conclusions based upon its own perceptions rather than relying upon those of witnesses
Types of real evidence
direct: 1. offered to prove the facts about the object as an end in itself. Such as evi of permanent injury can be shown by the injury itself.
circumstantial: facts about the object are proved a s a basis of an inference that other facts are true. such as in paternity cases a child is shown and is the same race as alleged father
original: some connection with the transaction that is in question at trial. Such as the alleged murder weopen.
Prepared: demonstative evidece, such as sketches models jury view of scene.
authentication of evidence.
- Recognition testimony by witness—if item has recognizable features
- Chain of custody—if evidence is a type likely to be confused or if it can be easily tampered with:
a. Proponent must show that the object has been held in a substantially unbroken chain of possession
b. Need not negate all possibilities of substitution or tampering, but must show adherence to some system of identification and custody
Documentary evidence- authentication
- Writings must be authenticated by proof showing they are what the proponent claims they are (unless self-authenticating such as newspapers, commercial paper, etc.)
a. Standard for authentication—proof sufficient to support a jury finding of genuineness - Authenticated by stipulation, evidence of authenticity, etc.
- Oral statements—only when important
Best Evidence Rule (Original Document Rule
- In proving the terms of a writing (including a recording, photograph, or X-ray), where the terms are material, the original writing must be produced
a. Secondary evidence is allowed only if the original is unavailable for some reason other than the serious misconduct of the proponent - Rule applies only in certain situations
a. When the writing is a legally operative or dispositive instrument (e.g., contract, deed, will, divorce decree)
b. When the witness’s knowledge of a fact comes from having read it in the document
1) If the fact exists independently of a writing, the best evidence rule does not apply
Requirements of Witness competency
- Personal knowledge of the subject matter
- Sworn oath or affirmation that witness will testify truthfully
- All witnesses presumed competent under the Federal Rules until the contrary is demonstrated (no age requirement)
Will the Dead Man act apply?
- Not recognized by Federal Rules; statutes vary by state
- May bar an interested person from testifying in a civil case as to a communica- tion with a deceased, if such testimony is offered against the representative of the deceased (e.g., executor)
- Many exceptions to act and “door-openers”
Lay opinion testemony:
- Requirements—rationally based on the witness’s perception, helpful to the jury, and not based on scientific or technical knowledge
- Common examples
a. General appearance or condition of a person
b. State of emotion
c. Speed of moving object
d. Intoxication
e. Sanity
f. Voice or handwriting identification
Expert opinion testimony:
- Is the subject matter one where expert testimony would assist the trier of fact (relevant and reliable)?
a. Court acts as gatekeeper to determine reliability (Daubert test) - Is the expert qualified on the subject?
- Does the expert possess reasonable probability regarding her opinion?
- Is the opinion supported by a proper factual basis (personal observation, facts made known to her at trial, or facts supplied outside courtroom and of a type reasonably relied upon by experts in field)?
Impeaching the credibility of a witness
Any party may attack the credibility of any witness
Common methods of impeaching a witness’s credibility
Impeachment by cross-examination and (some methods) extrinsic evidence
1. Prior inconsistent statement
- Bias
- Prior conviction of crime
a. Any crime (misdemeanor or felony) involving dishonesty or false tatement—judge has no discretion to exclude
b. Any other felony
c. Limitations on remoteness (10-year rule) - Prior bad acts
a. Must be probative of truthfulness (i.e., an act of deceit)
b. Cross-examination only; no extrinsic evidence - Opinion or reputation evidence of untruthfulness
- Sensory deficiencies
- Contradictory facts
Is the testimony privileged
- Identify the privilege, its scope, and its holder
- Are there any exceptions, waivers, or limitations?
- Applicability in federal court
a. Federal courts currently recognize:
1) Attorney-client privilege
2) Spousal immunity
3) Marital communications privilege
4) Psychotherapist/social worker-client privilege
5) Clergy-penitent privilege
6) Governmental privileges
b. If not one of those, does state law apply with respect to privileges (i.e., is it a diversity case)?
Attorney client privilege
Attorney-client
a. Client must be seeking attorney’s services at the time of the communications
b. Communication must be confidential (not intended to be disclosed to third parties)
c. Termination of attorney-client relationship does not terminate privilege; it even survives death
d. Special rules for corporate clients
e. Nonapplicability:
- Where client seeks legal advice in aid of crime or fraud
- Parties claiming through the same deceased client
- Dispute between attorney and client (e.g., malpractice)
- Client puts legal services at issue