Evidence Flashcards
Statement Against Interest
- Declarant unavailable
- Statement was against their interests at the time they made it
- They knew it was
If against penal interests, it must be supported by corroborating evidence
Dying Declaration
- Declarant unavailable
- Made statement while death was impending
- Statement re: circumstances of death
Can only be used in civil/homicide case
Statement for Medical Diagnosis/Treatment
If statement was made to a doctor that is being paid to testify, it is inadmissible in MI, but admissible on the MBE
Past Recollection Recorded
& how is it entered into evidence?
- Witness has insufficient recollection, but had personal knowledge at a prior time
- They made/adopted the statement while the event was fresh in their memory, and
- They can attest for the accuracy of the statement
- If admitted, witness reads the statement into evidence
- Writing is NOT admitted unless offered by OP
Business Records Exception
- Record made in the regular course of business,
- At or about the time the event occurred,
- Containing information witnessed by employees or otherwise falling into a hearsay exception
MI: Statement by DV Victim
- Statement made within 5 years of filing the current case, by a victim to an officer,
- Describing the defendant’s infliction/threatened infliction of physical injury, at or near the time of the infliction/threat, and
- Circumstances indicate its trustworthiness
NOTE: Remember the 6A Confrontation Clause
MI: Statement by child victim of sexual act
Immediately after incident, or delayed by fear, describing sexual act, child is under 10 when they made the statement, and the statement corroborates the kid’s in-person testimony
OP must get notice of the statement
Scope of Cross-Examination
- Matters within scope of direct
- Matters affecting witness credibility
In MI, you do not need to stay within scope of direct
Scope of Leading Questions
Permitted on cross
Only allowed on direct to:
- Develop preliminary matters,
- Help young/forgetful witnesses, or
- Hostile witness/OP
Is evidence relevant? Is it admissible?
Relevant: It can make a fact of consequence more or less probable than it would be without it.
Admissible: Relevant evidence is admissible unless:
- It is excluded by statute or a rule
- Its probative value is substantailly outweighed by its prejudicial effect.
- This test favors admission
- Prejudicial effect can include things like undue delay, confusing the issues, misleading the jury, needless cumulative evidence, etc.
Authenticating a Phone Call
To Person: the circumstances show that the person answering is the one who called.
- Look for self-identification, language patterns, or person disclosing knowledge that they had.
To Business: Call related to a business reasonably transacted over the phone
Authenticating an Ancient Document
- Condition of document creates no suspicion about its authenticity
- Document found in a place where, if authentic, it would likely be
- Document is at least 20 years old
Self-Authenticating Documents
- Official publications (books, pamphlets, etc.)
- Newspapers
- Business records with sworn declaration
- Notarized documents
- Certified copies of public records
- Trade inscriptions (labels, signs, tags)
- Commercial papers
Best Evidence Rule
You must present documentary evidence to prove the contents of a writing in two situations:
- The writing is a legally operative document; or
- The witness learned of the event solely from the writing and had no independent knowledge of the events
A duplicate of the original document is admissible to the same extent as the original unless:
- Genuine question re: its authenticity
- It would be unfair (i.e., part is cut off)
BER: When is an original document not required?
- Lost or destroyed w/o bad faith
- Cannot be obtained by any judicial process
- Not closely related to a controlling issue
Witnesses: Lay vs. Expert
Lay witnesses testify based on personal knowledge.
Expert witnesses are qualified by their skill or qualifications.
An expert can testify to opinion or otherwise if it is helpful to the trier of fact and based on sufficient information. This means that their opinion can be based on:
- Personal knowledge of the facts
- Facts in the record known to them
- MBE: Facts not in the record that another expert would rely on (not in MI).
Excluding Witnesses from Courtroom
At party’s request, the court must exclude nonparty witnesses so they do not hear witness testimony. Court cannot exclude:
- Party
- Person whose presence is essential to presenting the party’s claim/defense
- Someone authorized by statute to be there
Impeachment: Ways to impeach
- Prior inconsistent statement
- Bias
- Prior conviction
- Deficiency in senses
- Prior bad act
- Reputation or opinion of trustworthiness
- Contradiction
Impeachment: Prior inconsistent statement
They made a statement inconsistent with their testimony.
- Must confront in order to use extrinsic evidence. UNLESS:
1. They are OP
2. They are not in the court at all
3. The interests of justice require it
Impeachment: Conviction (MBE)
- Felony/Misdemeanor where dishonesty or false statement is part of the crime
- Felony convictions
Defendant witness: Probative value must outweigh prejudicial effect
Non-defendant witness: Excluded if the probative value is substantially outweighed by prejudicial effect
Conviction/date of release must be within last 10 years.
Impeachment: Conviction (MI)
- Felony/Misdemeanor where dishonesty or false statement is part of the crime
- Felony convictions for theft crimes (robbery, larceny, etc.)
Probative Value:
- Look at age of conviction (more recent, more probative)
- Extent that crime indicates truth-telling
Defendant witness: Probative value must outweigh prejudicial effect
- Consider similarity of prior conviction to this charge (more similar, more prejudicial)
- Might be prejudicial if it would lead defendant to refuse to testify
Conviction/date of release must be within last 10 years.
Impeachment: Specific Acts
Must be acts that indicate truthfulness.
Extrinsic evidence cannot be used
Impeachment: Reputation/Opinion for Untruthfulness
Through character witnesses.
Cannot testify to specific acts.
Impeachment: Contradiction
Can impeach someone who lied or made a mistake on direct exam.
- If they admit it, they are impeached
- If they deny it, you can use extrinsic evidence as long as it is not a collateral fact
Character Evidence: Civil Case
Can be used if character is an essential element of the case (child custody, negligent hiring/entrustment, defamation).
Can use specific acts, reputation, or opinion
Character Evidence: Criminal Case
Defendant opens the door with reputation or opinion evidence that he acted in accordance with a pertinent trait.
Prosecutor can cross to impeach those witnesses with specific acts.
Prosecutor can call own witnesses to testify as to reputation/opinion to contradict defendant’s witnesses.
Character Evidence: Self-Defense Cases
Defendant may introduce victim’s violent character to prove he acted in accordance with it (as initial aggressor).
- Reputation or opinion only
Prosecutor can rebut with reputation or opinion of either:
- Victim’s character for peacefulness
- Defendant’s character for violence
MICHIGAN: Defendant can only bring up the victim’s violent character in criminal homicide cases.
Character Evidence: Homicide Cases
Prosecutor can offer evidence of victim’s peacefulness to rebut evidence that he was the first aggressor.
- Can be specific acts, reputation, or opinion
Character Evidence: Victim’s Sexual Disposition
Civil: Only if victim put it in controversy (and probative value substantially outweighs prejudicial effect).
Criminal: Evidence to prove victim engaged in other sexual behavior to prove their sexual disposition is inadmissible unless:
- Offered to prove defendant was not source of the semen/injury
- Defendant had consent
- It would violate defendant’s constitutional rights
Character Evidence: Defendant’s Prior Sexual Misconduct
If accused of sexual assault or molestation, the court can admit evidence of any other sexual assault or molestation.
- Must be specific acts (not reputation/opinion)
Prosecution must disclose intent to introduce it and the statements (or a summary) at least 15 days before trial, or later with good cause.
Character Evidence: MI Domestic Violence
Evidence of past DV can be offered with at least 15 days’ notice before trial.
- If longer than 10 years, it is likely inadmissible
- Only specific acts
- Still subject to 403
Character Evidence: Sex Offense Against Minor
Evidence of past acts can be offered with at least 15 days’ notice before trial.
- Only specific acts
- Still subject to 403
Habit/Routine
Habit: regular response to particular situation
Habit can be offered to prove a person acted in accordance with it.
- Does not need to be corroborated.
- This is different than character evidence.
Other Crimes/Bad Acts
Cannot be used to prove propensity. Can be used to prove MIMIC.
- Motive: evidence to show there was a motive to do something
- Intent: ex: prior molestation to show they knew the person in this case was a child
- Mistake: evidence to show it was not a mistake
- Identity: evidence to show you knew who it was
- Common Scheme: ex: evidence you stole a car to help rob the bank
Must give notice of intent to use MIMIC.
- Just need a reasonable juror to be able to conclude prior bad act occurred
- Still must pass 403
Privileges: Spousal Immunity
Protects marriages at time of trial.
- Crim cases
- Held by witness spouse
- Parties must be married at time of trial, but not when communication was made
MI: Applies in civil and criminal cases.
- In civil: held by party against whom spouse will testify.
Privileges: Confidential Communications
Protects confidential communications during marriage.
- Civil and criminal
- Held by both spouses
- Parties must be married at time of communication, but not at trial.
MI: For criminal cases, only the witness spouse holds it.
