Evidence Flashcards
HIGH
LOGICAL RELEVANCE
Evidence must be relevant in order to be admissible. Evidence is relevant if it is both:
- Probative (evidence is probative if it has any tendency to make a fact more or less probable); AND
- Material (evidence is material if it is a fact of consequence in determining the outcome of the action).
LOW
LEGAL RELEVANCE
The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following:
- unfair prejudice,
- confusing the issues,
- misleading the jury,
- undue delay,
- wasting time, or
- needlessly presenting cumulative evidence.
MED
POLICY EXCLUSION: SUBSEQUENT REMEDIAL MEASURES
Subsequent remedial measures are actions taken after an injury or harm that make future injury less likely (e.g., installing a handrail after a person falls down the stairs).
Subsequent remedial measures are NOT admissible to prove negligence, defective product design, or culpable conduct.
However, subsequent remedial measures are admissible to show agency, ownership, or control of property or for impeachment purposes.
LOW
POLICY EXCLUSION: COMPROMISE OFFERS OR SETTLEMENT NEGOTIATIONS
Offers, conduct, or statements made during negotiations to settle or compromise are NOT admissible to
prove a disputed claim,
to prove an amount, or
for impeachment purposes.
POLICY EXCLUSION: OFFERS TO PAY MEDICAL EXPENSES
Offers to pay medical expenses are NOT admissible to prove liability for the plaintiff’s injuries. However, any conduct or statements accompanying the offer to pay are admissible (e.g., factual admissions accompanying an offer to pay are admissible).
lowest
POLICY EXCLUSION: GUILTY PLEAS
Absent a knowing and voluntary waiver from the defendant, the following are NOT admissible against the defendant:
- Withdrawn guilty pleas;
- No contest pleas;
- Statements made while negotiating with prosecutors; AND
- Statements made during plea negotiations.
However, pleas and statements made during negotiations are admissible if fairness dictates or for perjury hearings.
lowest
POLICY EXCLUSION: LIABILITY INSURANCE
Evidence that a person was or was not insured against liability is NOT admissible to prove whether the person acted negligently or otherwise wrongfully.
However, the court may admit this evidence for another purpose, such as proving a witness’s bias or prejudice or proving agency, ownership, or control.
HIGH
THREE FORMS OF CHARACTER EVIDENCE
Character evidence is evidence of a person’s character or a person’s specific character trait (e.g., he is violent; she is honest; he is a reckless driver; etc.). There are three forms of character evidence that can be presented:
- Reputation in the community (e.g., “Everyone in the community knows Johnny is violent.”);
- Opinion testimony (e.g., “I personally think Johnny is a violent person.”); AND
- Specific Instances (e.g., “I saw Johnny get into a bar fight last weekend.”)
HIGH
APPLICATION OF CHARACTER EVIDENCE IN CIVIL CASES
In civil cases, character evidence is NOT admissible for propensity purposes (i.e., evidence of someone’s character cannot be introduced to show that they have the propensity to act in accordance with the alleged character trait), UNLESS:
- Character is an essential element of a claim or defense (e.g., defamation, negligent hiring, negligent entrustment, child custody, etc.); OR
- The case is based on the defendant’s sexual misconduct.
HIGH
CHARACTER IS AN ESSENTIAL ELEMENT OF THE CLAIM OR DEFENSE IN A CIVIL CASE
If character is an essential element of a claim or defense in a civil case (e.g., defamation, negligent hiring, negligent entrustment, child custody, etc.), character evidence is admissible for propensity purposes.
It may be shown by reputation, opinion testimony, or specific instances of conduct.
HIGH
CIVIL CASES BASED ON THE DEFENDANT’S SEXUAL MISCONDUCT
If a civil case is based on the defendant’s sexual misconduct, character evidence is admissible for propensity purposes. The defendant’s propensity for sexual misconduct may be shown by evidence of a past sexual assault by the defendant.
HIGH
APPLICATION OF CHARACTER EVIDENCE IN CRIMINAL CASES
In criminal cases, the prosecution CANNOT introduce evidence of a defendant’s bad character to prove that the defendant has the propensity to have committed the crime in question. However, the defendant may “open the door” and present positive character evidence so long as it is:
- pertinent to the crime charged; and
- through reputation or opinion testimony (not specific instances of conduct).
If the defendant opens the door by presenting evidence of positive character, the prosecution may then introduce negative character evidence (must relate to the same character trait in question) to rebut the defendant in two different ways. The prosecution can:
- Call its own character witness (the witness is limited to reputation) or opinion testimony (not specific instances of conduct); OR
- Cross-examine the defendant’s character witness (on cross-examination, the prosecution can introduce evidence of specific instances so long as it relates to the same character trait in question).
HIGH
PRESENTING CHARACTER EVIDENCE OF A VICTIM
A criminal defendant may introduce reputation or opinion testimony of the victim’s character if it is relevant to one of the defenses asserted (with an exception for cases involving rape). If the defendant does so, the prosecution may rebut by presenting evidence that:
- The defendant possesses the same character trait; OR
- The victim possesses a relevant positive character trait.
HIGH
EVIDENCE OFFERED TO PROVE A VICTIM’S SEXUAL BEHAVIOR
In criminal cases involving rape, evidence offered to prove a victim’s sexual behavior or predisposition is NOT admissible. However, in civil cases involving sexual misconduct, evidence offered to prove a victim’s sexual behavior or misconduct may be admissible if its probative value substantially outweighs the danger of harm to the victim and unfair prejudice to any party.
HIGH
M.I.M.I.C.
Specific instances of conduct are generally NOT admissible to show propensity, but are admissible to show (M.I.M.I.C.):
- Motive or opportunity,
- Intent,
- Absence of Mistake,
- Identity, or
- Common plan or preparation.
Specific instances of conduct are admissible for MIMIC purposes if:
- There is sufficient evidence to support a jury finding that the defendant committed the prior act (i.e., cannot “fish” for prior acts without proof); AND
- The probative value of the specific instances of conduct is NOT substantially outweighed by the danger of unfair prejudice to the jury.
MED
HABIT AND ROUTINE PRACTICES
Evidence of a person’s habit (e.g., putting on a seatbelt) or an organization’s routine practice (e.g., filing certain paperwork) may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice.
The court may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness. Habit and routine practices are more specific than character evidence (look for buzz words like “always” or “every time” to signal a habit or routine practice).
MED
IMPEACHMENT BY CHARACTER EVIDENCE OF UNTRUTHFULNESS
A witness’s credibility may be attacked by introducing character evidence of the witness’s untruthfulness through reputation or opinion testimony.
A witness’s credibility CANNOT be bolstered [evidence of truthful character may not be introduced until credibility has first been attacked].
On cross-examination, a witness’s credibility may be attacked with specific instances of conduct, provided that:
- The specific instance regards the truthfulness of the witness;
- There is a good faith belief in the prior misconduct; AND
- The specific instance does NOT involve an arrest or a consequence of an arrest.
MED
IMPEACHMENT BY PRIOR CONVICTIONS
Evidence of a prior felony or misdemeanor conviction involving dishonesty is usually always admissible to attack a witness’s credibility [subject to the 10-year restriction].
Evidence of a prior felony [crime is punishable by death or imprisonment for more than 1 year] that does NOT involve dishonesty is admissible if it is legally relevant [i.e., probative value is not substantially outweighed by the danger of unfair prejudice].
However, if more than 10 years has elapsed since conviction or release [whichever is later] of ANY crime, the prior conviction is subject to a reverse legal relevance test. The party introducing the evidence must show that the probative value of the conviction substantially outweighs the danger of unfair prejudice.
Evidence of a prior conviction is NOT admissible if the conviction was:
(1) Pardoned;
(2) Annulled; OR
(3) Later found innocent
LOW
IMPEACHMENT BY PRIOR INCONSISTENT STATEMENTS
A witness’s credibility may be attacked by introducing the witness’s prior inconsistent statements. Extrinsic evidence may only be introduced if the witness is given an opportunity to explain or deny the prior inconsistent statement.
However, extrinsic evidence of a prior inconsistent statement CANNOT be used to attack the witness’s credibility regarding a collateral matter (i.e., an irrelevant matter).
LOW
IMPEACHMENT BY SENSORY COMPETENCE
A witness’s credibility may be attacked by showing that the witness has a deficiency in her ability to perceive, recall, or relate information (e.g., vision loss, memory loss, etc.) that is NOT collateral (i.e., must be a relevant matter).
LOW
IMPEACHMENT OF A HEARSAY DECLARANT
When a hearsay statement has been admitted in evidence, the declarant’s credibility may be attacked, and then supported, by any evidence that would be admissible for those purposes if the declarant had testified as a witness.
The court may admit evidence of the declarant’s inconsistent statement or conduct, regardless of when it occurred or whether the declarant had an opportunity to explain or deny it. If the party against whom the statement was admitted calls the declarant as a witness, the party may examine the declarant on the statement as if on cross-examination.
