Evidence Flashcards
The competence of a child depends on…
his intelligence, his ability to differentiate between truth and falsehood, and his understanding of the importance of telling the truth.
When does best evidence rule apply?
The rule applies only when the contents of a document are at issue or a witness is relying on the document when testifying.
Is evidence generated by a machine or an animal hearsay?
No
Is evidence of a judgment of acquittal introduced in a subsequent legal proceeding to prove that the defendant did not commit the criminal act hearsay?
Yes. Although there is an exception to the hearsay rule for judgments of conviction, there is no such exception that allows for the admission of a judgment of acquittal.
If a prior inconsistent statement is made under oath at a trial, hearing, or deposition…
it is admissible both to impeach the declarant’s credibility and as substantive evidence, so long as the witness testifies at the present trial or hearing and is subject to cross-examination concerning the statement. The witness need not actually be cross-examined, so long as she is subject to cross-examination at the present trial.
Who decides if evidence admissible
Question of law, so judge decides.
Sometimes these will hinge on factual questions, and court decides those too. Court not bound by rules of evidence.
When must hearings on admissibility of evidence be held outside presence of jury?
- When it’s on admissibility of a confession
- When D in crim case is witness and makes that request
- When interest of justice otherwise requires
Weight and credibility of witnesses is up to…
the jury
If you feel ruling on evidence erroneous, could be basis for reversal in appeal, but only if…
1) some sub right of party affected,
2) need to have notified the judge of the mistake and been given a chance to correct it, by…
a) Objection
b) Offer of proof. If evidence gets left out and you explain to court what it is and why it should have been admitted. Not always required if it’s straightforward and clear.
But if plain error, sometimes don’t need to notify the judge.
Rule 105
Sometimes evidence admissible for one person but not for another. Upon request of objecting party, court can give limiting instruction to jury for when evidence has one legit purpose and another illegitimate one. [Pay attention to type of evidence and what it’s being used for.]
Rule 106: the rule of completeness:
The rule of completeness (i.e., Federal Rule 106) permits a party to compel the introduction of a statement that in fairness should be considered at the same time as an admitted writing or recorded statement. While the rule of completeness generally is applied to the introduction of an omitted portion of an admitted writing or recorded statement, this rule can also apply to separate related writing or recorded statement.
- If adversary introduces part of a written statement, you’re allowed to intro other parts to put it in perspective
- Can do it right then, don’t have to wait until it’s your turn to present evidence
- And can intro that part even if otherwise would be inadmissible
Judicial notice doctrine:
Sometimes court relieves you of resp of presenting evidence for an adjudicative fact is really not subject to reasonable dispute; if something is gen known within territorial jx, or accurately and readily determined by sources whose accuracy cannot be reasonably questioned, then court in its discretion and if requested can relieve you of resp of presenting evidence for that
Ex: July 4th was a Friday this year; NYC is north of Miami.
In civil case, judge just instructs jury you must find this fact. If crim case though, judge instructs jury they MAY find this fact.
Adjudicative facts
things jury would have to decide; Not about law or facts appellate courts consider on whether a law is rational basis
Order of a trial
o Usually begins with plaintiff or prosecution. D gets to cross those witnesses.
o Then D gets chance to present their case
o Sometimes goes back again to another round back and forth with P then D
- Order is within discretion of trial court.
- Court may even call and question witnesses, and everyone gets to cross them since no one’s witness. Every party has opp to object outside jury. But doesn’t usually happen.
Leading question
Suggests answer within the question.
Ex: “Isn’t it true that…”
Basic rule: leading questions not permitted on direct exams.
Sometimes can use leading questions on direct:
- Preliminary background info
- Witness that has trouble communicating (Child, elderly person, super nervous person)
- Hostile witness (Other party, or closely associated with party)
present recollection refreshed
- You can show them anything to remind them, then they put it aside, then they testify from present recollection
- What you show them does not become evidence
- They don’t read from it, it just reminds them and they put it aside
- Other side is allowed to look at that doc
- Past recollection recorded is diff
Past recollection recorded
If still can’t remember, they can just read from their record they made when it was fresh in their memory. Can only be what they wrote.
Cross
- Limit scope to the subject/scope of direct. But courts can decide to expand so you don’t have to call them as witness to keep things efficient.
- allowed to use leading questions!
Improper question formats (other than leading question on direct)
- Compound question
- Assuming facts not in evidence
- Argumentative (not a question just bothering witness)
- If call for inappropriate conclusion or one witness not qualified to make
- Asked and answered (repetitive). But if party has not answered your Q you can keep asking and asking.
Witnesses may be excluded from court room upon request of either party if…
necessary to prevent from hearing testimony of others
Some may not be, like someone essential to presentation of case, or crime victim if by state rule. There is an exception for an officer or employee of a party who is not a natural person, and this exception has frequently been applied to the police officer in charge of investigating a criminal case.
Even spouse can be excluded. There is no exception for an eyewitness, a former co-defendant, or an officer who testifies as to chain of custody. Accordingly, these individuals must be removed from the courtroom if so requested by the defendant.
Burden of production
Coming forward with evidence enough to get to jury (sufficient to support a finding)
Burden of persuasion
- Convincing jury to decide case your way
- Civil: usually preponderance of the evidence
- Crim: usually BARD
Presumption (rebuttable)
shifts burden of production on a particular issue, but not burden of persuasion
Destruction of evidence presumption
if someone destroys evidence, presumption that it was bad for side that destroyed it
Conclusive/irrebuttable presumptions
diff kind of presumption; just rules of law
Rule on relevance
- Evidence must be relevant; Irrelevant = inadmissible
- Makes fact at issue more likely than it would be without the evidence. Doesn’t need to be sufficient.
- Relevance = material and probative
Direct v. circ evidence
o Direct: equivalent to what it’s offered to prove
o Circ: from which you can infer some fact
o But more important is how a certain piece of evidence makes a fact more likely
403
- even if relevant and no particular rule excluding it, might still exclude under 403 if certain risks sub outweigh probative value of evidence
- Risks: confusion, prejudice, waste of time (like cumulative), misleading jury
- Tilted in favor of admissibility though; must be substantial
104b: relevance conditioned on fact
o Sometimes relevance question hinges on some fact that is best for jury
o Court will give question to the jury
Character propensity evidence
- Basically prohibits argument that says someone acted in conformity with particular character trait. Not permitted to introduce evidence of a defendant’s bad character to prove that the defendant has a propensity to commit crimes and therefore is likely to have committed the crime in question. Too prejudicial, low probative value.
- Even when you are allowed to intro this evidence, only can through reputation/opinion, not through specific instances
- Can’t use it for character and conformity, but can use it for other relevant uses, like when character is in issue, like in child custody case, negligent entrustment case (rare, only in civil).
When can you use propensity argument?
o Impeachment
o Almost never in civil cases can you use propensity argument, but FRCP and some states allow in sex crime/child abuse cases prosecutor or civil plaintiff to intro evidence of person’s prior acts
o In general pros not allowed to admit character evidence for propensity, but we do let crim D intro character evidence and open that door…a pertinent trait of character. A defendant is permitted to introduce evidence of his good character as being inconsistent with the type of crime charged. The defendant’s character evidence must be pertinent to the crime charged. Proof of good character offered by the defendant must be in the form of reputation testimony or opinion testimony.
o We also allow crim D’s to bring forward evidence about V’s character if pertinent—when homicide or violent case and purported victim started it. A criminal defendant may introduce reputation or opinion evidence of the alleged victim’s character when it is relevant to the defense asserted.
o Can sometimes introduce past crimes/wrongs also (exemptions)
o Habit evidence
When D brings in character evidence about himself…
In general pros not allowed to admit character evidence for propensity, but we do let crim D intro character evidence and open that door…a pertinent trait of character.
D limited to witnesses that will testify as to opinion/rep.
But if D opens door, P can then introduce evidence to rebut. P can cross-exam that witness brought by D with questions about specific instances of the past, even though D is limited to witnesses that will testify as to opinion/rep. But can’t try to prove it. If witness negates, have to just accept the answer.
When D brings in character evidence about V…
We also allow crim D’s to bring forward evidence about V’s character if pertinent—when homicide or violent case and purported victim started it. Must be opinion/rep evidence, not specific acts.
Rule that prohibits that for victims of sex crimes (rape shield laws).
Then P can intro evidence that V is not violent or that D has the same trait he is accusing V of having.
Introducing past crimes/wrongs
Ok if not being used to make propensity argument. Ex: motive, intent, absence of mistake, MO.
Habit evidence
- Allowed to show conformity with it.
- More regular, automatic
- Can be habit of an org
- Specific
Who can be a witness?
Anyone who has personal knowledge about what they’re testifying about and is willing to swear/make oath they are telling the truth is competent to testify.
Some states have particular competency rules (like age of children). Some states have dead man’s statute: limit ability of witnesses to testify about transactions with people who are deceased. Bc of Erie doctrine, fed court in diversity case should refer to state competency rules.
Judge cannot be a witness in case where he/she sitting. Juror may also not testify in front of jury he is sitting.
After a verdict, 606b says juror may not testify as witness in inquiry into validity of a verdict or indictment, at least as to certain matters (any statement made during deliberations, incident that occurred during deliberations, or effect of anything of that on a juror’s mind). But see exceptions.
The basic rule that a juror cannot impeach his own verdict applies in this case. A juror cannot testify as to the mental processes that he or any other juror used in arriving at a verdict, even when those mental processes reflect a misunderstanding of the law. The mere fact that the verdict is based on a mistake, even one made by all of the jurors, is insufficient to permit a juror to impeach the verdict.
606b
After a verdict, 606b says juror may not testify as witness in inquiry into validity of a verdict or indictment, at least as to certain matters (any statement made during deliberations, incident that occurred during deliberations, or effect of anything of that on a juror’s mind). So can’t ask about what happened in jury room, what was said, what’s in their minds.
The basic rule that a juror cannot impeach his own verdict applies in this case. A juror cannot testify as to the mental processes that he or any other juror used in arriving at a verdict, even when those mental processes reflect a misunderstanding of the law. The mere fact that the verdict is based on a mistake, even one made by all of the jurors, is insufficient to permit a juror to impeach the verdict.
Exception: if some technical error on the verdict form or extraneous prejudicial info was improperly brought to bare or some outside influence improperly brought to bare.
Exception 2: if juror makes clear statement that he relied on racial stereotypes or animus in a conviction, then constitutionally required court hear evidence of that.
Impeachment approaches
- Bad character for truthfulness or untruthfulness (liar)
- Impeachment by bias (lying)
- Impeach by sensory competence (just mistaken)
608/609
cannot present evidence of cases of prior dishonesty?
What kind of character evidence for truthfulness/untruthfulness can you intro for impeachment?
Reputation/opinion, not prior specific instances.
But can cross-exam witness about specific acts of dishonesty by inquiring into them if probative of honesty/dishonesty. But have to take whatever answer they give you. And do need a reasonable basis for asking the question in the first place.
Can introduce evidence that someone has been convicted of certain crimes to call into question their credibility of a witness. A witness’s character for truthfulness may be impeached by evidence of the witness’s conviction of the crime in this instance. The conviction may be proved by extrinsic evidence. See more details.
Can introduce evidence that someone has been convicted of certain crimes to call into question their credibility of a witness. Crimes allowed for this purpose:
Generally, a witness may be impeached by a conviction for a crime that requires as an element of the crime proof or admission of an act of dishonesty or false statement, such as perjury, without weighing the probative value of the conviction against its prejudicial effect, if the conviction is no more than 10 years old. In measuring the 10-year period, the later of the date of conviction or release from imprisonment is used.
A conviction may not be used for impeachment purposes if the witness has been pardoned, provided that either (i) the action was based on a finding of innocence; or (ii) the witness has not been subsequently convicted of another felony.
1) Crimes involving dishonesty and false statement (perjury, fraud, embezzlement)
2) felonies (crimes punishable by death or more than a year).
- Can do this unless risk of unfair prejudice sub outweighs probative value with most witnesses.
- If the witness is the crim D himself, only allowed if probative value outweighs the risk of unfair prejudice (so the reverse).
- If crime more than 10 years old since conviction or release (whichever is later), then admissible only if probative value sub outweigh prejudicial effect, and must have advanced notice that using this
- If pardon or cert of rehab, cannot be used if based on finding of innocence or have not subsequently been convicted of another felony
Prior inconsistent statement
o Can cross witness on prior inconsistent statement (not for the truth of matter, for impeachment)
o Can be done with any kind of statement, doesn’t need to meet hearsay rule???
o Can also prove those statements by extrinsic evidence but witness must have chance to explain her side
How can you impeach a hearsay declarant?
Same way you would if they were in court?
Rehabilitating your witness
o Most important is just giving your witness a chance to explain
o Can also use a prior consistent statement (made before alleged motive)
o If their character for truthfulness has been attacked, you can bring witnesses to bolster their character for truthfulness
When are opinions from lay witnesses ok?
Opinions from lay witnesses admissible wrt common sense impressions (appearance, intox, speed, other people’s emotions).
Has to be 1) based on percep of witness and 2) helpful to a clear understanding of the testimony or determination of fact in the case.
Implicit third requirement: they not be based on any purported scientific or specialized knowledge (bc wades into expert witness area with its own rules).
Expert witness
requires that scientific, tech or other specialized info will help trier of fact understand evidence or determine a fact in issue
Can an expert testify on witness cred?
No
What makes an expert qualified?
Qualified = by knowledge, skill, experience, training or education
Need not be a formal degree, can be practical experience/training
