Evidence Flashcards
Irrelevant evidence is inadmissible, and relevant evidence
Might be admissible.
Evidence is logically relevant if
It has a tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.
The substantive law in a given case is what you look to in order to decide what facts are of consequence. The evidence must relate to the time, event, or person in controversy in the litigation currently before the court.
Are prior accidents or claims of the plaintiff admissible?
 Usually, without similarities, prior accidents or claims of the plaintiff will be irrelevant and, as such, and admissible.
What are the exceptions to the general rule that prior accidents or claims of the plaintiff are usually irrelevant and inadmissible
Pattern of fraudulent claims
Pre-existing condition
Relevant to prove intent
Relevant to rebut defense of impossibility
Comparable sales relevant to establish value
Habit evidence
Routine business practices relevant to show conduct in conformity
Industrial custom evidence relevant to prove standard of care
Under the federal rules of evidence, the court must decide any preliminary questions about whether a witness is qualified, a privilege exist, or evidence is admissible. In so deciding, is the court bound by evidence rules?
The court is not bound by evidence rules, except those on privilege.
Rule for hearings on the admissibility of a confession, e.g. Miranda violations?
Hearings on the admissibility of a confession shall in all cases be conducted outside the presence of the jury.
If a party moves to exclude prospective witnesses before they testify what should the court do?
The court must order witnesses excluded so they cannot hear other witnesses testimony.
The court has a discretion to exclude logically relevant evidence if its probative value is substantially outweighed by
Unfair prejudice, confusion, or waste of time.
What if evidence is admissible for one purpose but inadmissible for another purpose
In such cases, the court must balance the probative value of the evidence for its admissible purpose against the unfair prejudice of the evidence for its inadmissible purpose.
Facts appropriate for judicial notice of adjudicative facts
A court may recognized as true indisputable facts that are generally known within the jurisdiction or capable of accurate and ready determination by sources whose accuracy cannot be reasonably questioned
A court shall take judicial notice of adjudicative facts if
Requested by a party and if the court is supplied with the necessary information
Even without a request, do courts have discretion to take judicial notice of adjudicative facts
Yes
Appellate court judicial notice of adjudicative facts
A reviewing court is required to take judicial notice of any matter that the trial court properly noticed or was obliged to notice but did not
When may judicial notice of adjudicative facts be taken
Judicial notice may be taken at any stage of the proceeding, even on appeal
Is judicial notice of adjudicative facts conclusive in civil and criminal cases
Judicial notice is conclusive in civil cases.
Judicial notice is not conclusive in criminal cases. The effect of judicial notice in criminal cases is to satisfy the prosecution’s burden of proof, but the jury may elect to disregard the judicially notice fact and decide otherwise.
Adjudicative v legislative facts
Adjudicative Facts are those facts that gave rise to, and must be proven to resolve, the action.
Legislative facts are those facts that are necessary to interpret the scope and meaning of the law.
What are the public policy reasons to exclude relevant evidence?
Liability insurance
Subsequent remedial measures or repairs
Settlements, offers to settle, pleas
Evidence of payments/offers to pay medical expenses
Admissibility of liability insurance?
Evidence of defendant’s liability insurance is inadmissible to prove culpable conduct or the defendant’s ability to pay a judgment. However, evidence of liability insurance can be used to prove something else and it can be admitted for that other reason. Before admitting the evidence however the court must balance any unfair prejudice against probative value.
Admissibility of subsequent remedial measures or repairs?
Evidence of safety measures or repairs after an accident is inadmissible to prove culpable conduct or a defective product design in a product’s liability action.
Evidence of defendant’s subsequent remedial measures or repairs may be admissible to rebutt defendant’s claim that there was nothing she could do to fix the problem. If the defendant, however, merely contends that the situation was safe as is then the rule excluding evidence of repairs applies and the evidence is in admissible. If the subsequent remedial measures or repairs are admissible for one purpose and inadmissible for another the court must balance unfair prejudice against probative value.
Admissibility of settlement, offers to settle, pleas, related statements
Evidence of settlements, offers to settle, and all related statements about the case made after a claim is asserted or implied are inadmissible to prove culpability in civil cases.
Evidence of pleas, offers to plea, and all related statements about the case are inadmissible to prove guilt.
If a defendant has admitted liability and exactly how much she owes, will the settlement offer exclusion rule apply
No
Admissibility of evidence of payment/offers to pay medical expenses?
Evidence of payment/offers to pay medical expenses are inadmissible to prove liability for injuries in question. Related statements are still admissible.
What are the four requirements for witness competency under the FRE?
Ability to observe, ability to remember, ability to communicate, appreciation of oath obligation
A witness may testify to facts observed if
She has a present recollection
Under the FRE, is a witness who was traumatized and cannot remember a fact but who is able to recall after police hypnosis allowed to testify in federal court?
Yes
What is the burden of proof for personal knowledge
Sufficient to support a finding, I.e. could a reasonable person believe the witness perceived the fact she testified to?
A witness must declare, by oath or affirmation, that
She will testify truthfully
Objections to form of testimony or examination
- Cross examination not limited to the subject matter of the direct examination and matters affecting the credibility of the witness.
- Question is too broad
- Unresponsive answer. 
- Leading questions on direct examination (exceptions)
- Question assumes facts not in evidence.
-  Argumentative question
- Compound question
- Witnesses reading documents during testimony
When must a motion to strike the unresponsive portion of the witnesses answer be made?
A motion to strike must be made immediately after a witnesses response, and can only be made when the original question did not obviously contemplate an objectionable response.
What are the exceptions to the general rule that no leading questions are allowed on direct examination
Adverse witness, e.g. when the plaintive called the defendant
Hostile witness OR
Witness who needs help
Are leading questions permitted on cross examination?
Leading questions are permitted on cross examination, but questions must stay within the scope/subject matter of the direct examination. If a lawyer wants to go beyond the scope into other subjects, she must conduct a direct examination and no leading questions are permitted.
What is an argumentative question?
An argumentative question is one in which the lawyer argues the facts or issues of the case rather than just eliciting a direct response from the witness.
Refreshing the recollection of the witness
It is OK for a witness to read the record to herself. Once the witness’s memory is refreshed, the item that was shown to her must be taken away, and the witness must then testify from her refreshed memory. The item used to refresh eyewitnesses memory can be inspected and offered into evidence so the Finder of fact can also inspect it.
When a witness’s memory cannot be refreshed a recorded recollection can be offered into evidence and the document/hearsay will be read to the jury. What is required for this recorded recollection exception?
- Witness once had knowledge of the facts
- The document was created by the witness, or under her direction, or adopted by the witness
- The document was written or adopted at a time when the facts were fresh in the witnesses memory
- It was accurate when made AND
- Current recollection is insufficient to testify to the matters contained in the document
Lay opinion evidence is only admissible if
It is rationally based on witness’s perception, will be helpful to the trier of fact, and is not based on scientific or other specialized knowledge.
Traditional categories for admissible lay opinion
General appearance or condition of a person, voice or handwriting ID, speed of an automobile or other moving object, intoxication, sanity, emotions, value of witness’s own property or services.
Traditional categories for inadmissible lay opinion
Agency or authorization
Contract or agreement
To be admissible, expert testimony must be
Helpful to the jury in the determination of the action; Based on the knowledge, experience, and training of the expert; believed to a reasonable degree of certainty by the expert; based on a proper factual basis; and based on proven and reliable data and methods reliably applied to the underlying facts of the case.
An expert opinion must be supported by proper factual basis. A proper factual basis may be predicated upon
- Admitted evidence
- The expert witness’s personal knowledge OR
- Inadmissible evidence reasonably relied upon by the expert
The judge must find by a preponderance of the evidence that the expert opinion is based on reliable principles that were reliably applied to the facts of the case. Criteria for reliable scientific opinion:
Peer reviewed and published, tested and subject to more testing, low error rate, and reasonable level of acceptance.
Learned treatise hearsay exception
A learned treatise is admissible to prove anything stated in it, as long as the treatise is an accepted authority in the field. If the court finds a publication to be a reliable authority, then statements may be read into evidence, but that publication may not be received as an exhibit.
May an expert witness state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense?
No. Those elements are for the trier of fact alone.
Every item of non-testimonial evidence must be
Authenticated
Authentication requires proving what
Authentication requires proving that the evidence is what the proponent of the evidence claims it to be.
What is the burden of proof for authentication
Sufficient to sustain a finding. Whether a reasonable person would believe the item is what its proponent claims it to be.
What happens if there’s conflicting evidence as to authenticity?
All of that evidence is admitted, and the jury must weigh it and decide who to believe.
Evidence of authenticity for signatures
- Admission
- Testimony of eyewitnesses
- Expert opinion or lay opinion of handwriting
- Ancient documents rule
- Genuine exemplar
What is the ancient documents rule
Authenticity is established at the document is 20 years old or more, does not on its face present any irregularities, and is found in a place of natural custody.
What are self authenticating documents
Certified copies of public documents, acknowledge documents (notarized), official publications, newspapers and periodicals, business records, trade inscriptions.
To authenticate a non-unique item, the proponent of the evidence must
Lay the chain of custody, demonstrating that this is the specific item the proponent claims it to be
What is the best evidence rule?
Where a witness is testifying as to the contents of a writing and those contents are in fact an issue, the best evidence rule requires that the writing (not handwritten copy ok) be admitted into evidence, unless it has been lost or destroyed for some reason other than the proponent’s intentional misconduct.
“Writing” for purposes of the best evidence rule
Any tangible collection of data/information. Videos, photos, x-rays, computer disks
Voluminous documents exception to the best evidence rule
If too numerous to bring in all the originals, eyewitness may be called to summarize the contents, so long as the originals are available for inspection.
What privilege law applies in federal court civil actions based on diversity jurisdiction?
State privilege law
Attorney client privilege
Any communication between an attorney and client or their representatives intended by the client to be confidential and made in an effort to facilitate professional legal services is privileged in all criminal and civil proceedings unless the privilege is waived by the client.
Corporate clients and attorney-client privilege?
Attorney-client privilege applies to communications by corporate employees or agents if the corporation authorize the employee or agent to communicate with the attorney. There is no Attorney client privilege for employee statements where the employee is a mere witness.
What happens to attorney-client privilege if the client passes away
The privilege survives and the client’s estate holds the privilege
Attorney client privilege exceptions
- Legal services sought to further crime or fraud
- Alleged breach of duty between attorney-client
- Two or more clients in matter of common interest
- competency or intention of client, e.g, wills or inter vivos transfers
Spousal privileges
Confidential marital communication
Spousal testimonial privilege
Confidential marital communication
All communications made during the course of a valid marriage and intended to be confidential between the spouses are privileged. Applies in both criminal and civil cases and both spouses hold the privilege.
Are non-verbal marital communications privileged
A majority of jurisdictions have held that nonverbal communications are not privileged. A minority of jurisdictions have held that nonverbal communications are privileged if such communications occurred at home.
Exceptions to confidential marital communications rule
- Civil actions between spouses
- Criminal prosecution where one spouse charged with crime against other spouse or children
Spousal testimonial privilege
A person is permitted to refuse to testify against her spouse as to anything. Under the FRE, this privilege only applies in criminal cases. Under the FRE and minority view the witness spouse is the holder of privilege. The majority view is that the defendant spouse is the holder of privilege.
Exceptions to spousal testimonial privilege
- Civil actions between spouses
- Criminal prosecution where one spouse is charged with a crime against spouse or children
Doctor patient privilege
No such privilege is recognized under the FRE. Most states, however, have adopted this privilege.
A patient has the privilege to prevent disclosure of any communication to a physician intended by the patient to be confidential and conveyed for the purpose of receiving medical diagnosis or treatment, so long as the information conveyed was in fact pertinent to medical diagnosis or treatment.
Exceptions to doctor-patient privilege
- Patient’s physical or mental condition in issue
- Services sought to aid in a crime or fraud or escape capture after crime or tort
- Alleged breach of duty between physician and patient
Psychotherapist patient and social worker client privileges
Any communication intended by a patient or client to be confidential and made to facilitate the provision of professional psychological services is privileged.
Exception to psychotherapist patient and social worker client privilege
- Patience physical or mental condition in issue
- Services sought to even a crime or fraud or escape capture after crime or tort
- Alleged breach of duty between psychotherapist patient or social worker client
 In civil cases is character evidence admissible when character itself is an issue in the case. If so what methods or techniques are admissible?
Character evidence is always admissible in civil cases when character itself is an issue in the case.
The methods of general reputation in the community, opinion, and specific instances are all admissible.
In civil cases is character evidence admissible to prove conduct?
Character evidence is inadmissible to prove conduct in a civil case, except where the civil claim is based on sexual assault or child molestation.
Rape shield statute- civil
Special evidence rules in civil cases involving rape or other sexual assault limit the defenses use of evidence regarding the alleged victim’s character when offered to prove consent.
The defense can only offer testimony regarding a victim’s reputation in the community if the victim put her own reputation at issue And probative value substantially outweighs unfair prejudice.
The defense can only offer opinion evidence and evidence of specific acts that demonstrate the victim’s character if probative value outweighs unfair prejudice.
What are examples of civil cases were character is at issue
Defamation of character because truth is a Defense so evidence regarding plaintiffs character is admissible.
Negligent entrustment
Child custody dispute
Can the prosecution introduce character evidence during its case in chief
Generally no character evidence is admissible during the prosecution’s case and chief. The prosecution can only rebut character evidence that is first introduced by the defendant. The two exceptions are that the prosecution can be the first to offer evidence that the defendant committed prior acts of sexual assault or child molestation and where the court has admitted evidence of the victim’s character offered by the defendant, the prosecution can be the first to introduce evidence that the defendant has the same character trait.
What form of character evidence is admissible on direct exam
Reputation in the community and opinion evidence.
Specific instances of conduct is not admissible.
What form of character evidence is admissible on cross examination
Reputation in the community, opinion evidence, and specific instances of conduct are all admissible. 
If the defendant offers evidence that the victim attacked first in a homicide case, what can the prosecution offer in rebuttal?
The prosecution can rebut by offering character evidence of victim’s peacefulness or of the defendant’s same character trait.
Rape shield statue-criminal
Special rules in criminal cases involving rape or other sexual assault that limit the defense’s evidence of alleged victims character when offered to prove consent.
Reputation and opinion evidence is inadmissible.
Specific instances of conduct is only admissible when offered to prove third-party cause of semen/injury or prior acts of consensual intercourse between defendant and alleged victim.
When specific instances of the defendants prior bad conduct are offered to prove anything relevant other than character, then
The character evidence rules do not apply and the evidence becomes admissible to prove a mimic fact. The court must balance probative value of evidence against potential unfair prejudice of evidence every time.
What are the mimic facts?
Motive, intent, absence of mistake or accident, identity, and common plan or scheme.
Is evidence supporting credibility of a witness admissible?
Such evidence is generally inadmissible unless credibility is first attacked.
Exceptions: Prior consistent statement of identification, evidence of prompt complaint by a rape victim, and evidence that defendant complained of mistreatment at first suitable opportunity to bolster claim of coerced confession.
Is extrinsic evidence of a prior inconsistent statement admissible to impeach on collateral matter?
Extrinsic evidence of a prior inconsistent statement is inadmissible to impeach on a collateral matter.
Is a prior inconsistent statement generally admissible to impeach?
Yes
Note: The witness must have an opportunity to explain or deny the inconsistency. Confrontation required
Is a prior inconsistent statement given under oath admissible?
A prior inconsistent statement of a witness to testify at trial is not heresay if the statement was given under oath at trial or deposition; such a statement is thus Admissible to prove truth of facts in the statement. If the statement was not given under oath, however, then it is hearsay and inadmissible to prove the truth.
Is evidence of bias, interest, or motive through cross-examination or extrinsic evidence admissible to impeach
Yes. Impeachment by evidence of bias, interest, or motive through cross examination or extrinsic evidence is admissible to impeach. The witness must have an opportunity to explain or deny. Confrontation required.
Are misdemeanors and felonies admissible to impeach
- All convictions for false statements are admissible to impeach a witness. Exception: Convictions that are more than 10 years old from the date of conviction or the date of release from prison, whichever is later is inadmissible unless the offering party shows that probative value substantially outweighs unfair prejudice to the accused and proponent gives an adverse party reasonable written notice of the intent to use such evidence, so that the adverse party has a fair opportunity to contest its use.
- Misdemeanor convictions not involving lying are inadmissible to impeach
- Felony convictions not involving lying if used against the accused criminal is admissible only if its probative value outweighs the prejudicial effect
- felony convictions not involving lying if used against anyone else is admissible so long as any prejudicial effect does not substantially outweigh the probative value.
Are acts of misconduct by a witness that did not result in a conviction admissible to impeach in civil and or criminal cases?
Acts of misconduct by a witness that did not result in conviction are admissible to impeach in both civil and criminal cases if those acts involved lying and the witness is impeached on cross examination. No extrinsic evidence.
Is reputation or opinion evidence regarding the witness’s truthfulness admissible for impeachment through either cross examination or extrinsic evidence?
Reputation or opinion evidence regarding the witnesses truthfulness is admissible for impeachment either through cross-examination or extrinsic evidence.
May a witness be impeached by showing that her knowledge base is too limited?
All witnesses may be impeached by showing that their knowledge base is too limited. This most often arises with expert witnesses, opinion witnesses, and character witnesses.
May witnesses be impeached through cross examination or extrinsic evidence by defects in capacity?
Yes.
Defects in capacity include perceptive disabilities, lack of memory, and lack of capacity, e.g. mental disorders.
How can a witness who has been impeached be rehabilitated?
Witnesses who have been impeached may be rehabilitated on redirect examination or by extrinsic evidence. Prior consistent statements are generally not permitted to rehabilitate. There are two exceptions. A prior consistent statement made before an alleged bribe is admissible because if the witness says the same thing after a bribe as she said before the bribe this fact refutes the notion that the alleged bribe motivated the witness’s statement. It is not hearsay and is admissible for all purposes. The second exception is a prior consistent statement made before the alleged inconsistent statement.
At a party’s request the court must order witnesses excluded so that they cannot hear other witnesses testimony. A court may also exclude witnesses on its own. But this role does not authorize excluding
A party; an officer or employee of a party after the party’s attorney designates the officer or employee as the party’s representative; a person whose presence a party shows to be essential to presenting the party claim or defense; or a person authorized by statute to be present.
What is hearsay?
Hearsay is an out of court statement offered to prove the truth of the matter asserted in that statement. A statement is a verbal or written expression of a person or conduct that is intended to communicate.
Is hearsay generally admissible?
No. Hearsay is generally inadmissible because the declarant cannot be cross examined when she speaks out of court, and without cross examination, it’s difficult for the finder effect to assess whether they declared as lying or mistaken about the facts in her statement. When an in court witness quotes her own out-of-court statement, it is still hearsay.
Multiple hearsay
Hearsay included within hearsay may be admissible only if each level of hearsay in the combined statement satisfies a hearsay exception or exemption.
Examples of what is not hearsay?
Statements of independent legal significance
Statement offered to show affect on listener
Knowledge of the facts stated
Circumstantial evidence of speakers State of mind
The FRE provides for three categories of hearsay exemption– statements that, even when offered for the truth of the matter asserted, are exempt from consideration as hearsay. What are the three categories of hearsay exemptions?
Admission of party opponent
Vicarious party admissions
Some prior statements by witnesses (Prior inconsistent statement given under oath, prior consistent statement offered to rebut a charge of recent fabrication or improper influence or motive, prior statement of identification)
What are the hearsay exceptions when the declarant is unavailable?
- Testimony given at an earlier proceeding or deposition is admissible even if hearsay if 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.
- In a civil case only, a statement may be admissible if 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 in the earlier proceeding and who had an opportunity and similar motive to examine the witness in that earlier proceeding.
- Statement that was against the financial interests of the declarant or would’ve subjected the declarant to criminal liability at the time is admissible.
- A hearsay statement made when the declarant believed she is dying that describes the cause or circumstances leading to her impeding death is admissible in a civil action and in a homicide prosecution. Declarant does not have to die but she must be unavailable.
What are the hearsay exceptions if the declarant is available
- Excited utterances
- Present sense impressions
- Present state of mind (internal realty)
- Statements of past or present mental or physical condition made for medical diagnosis or treatment
- Business records exception
- Public records exception
- Judgments of previous conviction
- Recorded recollection exception
What does the business records hearsay exception require?
Written record of events, conditions, opinions, or diagnoses kept in ordinary course of business by a person with a duty to record by a person with knowledge of the information in the record made at or near the time of the matter is described and must be trustworthy. There are two ways to establish that a business record meets the elements of the hearsay exception by testimony of a witness you can testify to the foundational facts or a written affidavit.
What does the public records hearsay exception require?
Hearsay record of a public office is admissible if the record describes activities of the office, the record describes matters observed pursuant to a duty imposed by law, and the record contains factual findings resulting from an investigation made pursuant to authority granted by law unless it is untrustworthy. The part of a public record that contains statements by witnesses who are not public servants cannot qualify under this exemption because non-public servants have no obligation/duty to accurately report. Note this exception is unavailable to prosecution in a criminal case.
What is the judgments of previous convection hearsay exception?
A hearsay statement describing a felony conviction is admissible in both civil and criminal cases to prove any fact essential to the judgment. The judgment must’ve been entered after a trial or guilty plea, the conviction must have been for a crime punishable by death or by imprisonment for more than a year, the evidence can be admitted to prove any facts essential to the judgment, And when offered by the prosecutor in a criminal case for a purpose other than impeachment, the judgment must have been against the defendant.
Residual hearsay
A statement not specifically covered by the hearsay exceptions under the FRE but having equivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule, if the court determines that the statement is offered as evidence of a material fact, the statement is more probative on the point for which does offered than any other evidence, interest of justice is best served by admission, and there is advance notice to the adverse party.
Confrontation clause
Even if hearsay does not make the evidence in admissible, the confrontation clause might make an out of court statement offered by the prosecution against the defendant in a criminal case inadmissible.
Intrinsic v extrinsic evidence
Intrinsic evidence involves questioning the testifying witness on the cross exam.
Extrinsic evidence is any evidence other than testimony given by the witness being impeached on cross exam.
