Evidence Flashcards
The Federal Rules of Evidence are applicable in all criminal and civil proceedings, except:
(1) Preliminary fact determinations by the judge; (2) Grand jury proceedings; (3) Other miscellaneous proceedings (sentencing, extradition, bail hearings, probation, etc.)
Relevance asks…
Whether the evidence has any tendency to make the existence of a consequential fact more or less probable.
Material (proposition must be of consequence) + probative (makes fact more or less likely)
What evidence is admissible under the FRE?
All relevant evidence is admissible, unless: (1) excluded by specific rule; or (2) court excludes by its discretion under FRE 403 balancing.
Relevance is a low bar to overcome – this is why most FRE are exclusionary rules.
What is the FRE 403 balancing test?
The judge has the power to exclude relevant evidence if its probative value is substantially outweighed by risk of:
- (1) unfair prejudice (jury will decide case on emotional basis)
- (2) confusion of issues (evidence creates a side issue)
- (3) misleading the jury (danger jury will give undue weight to the evidence)
- (4) undue consumption of time (delay, waste of time, cumulative evidence)
Is “unfair surprise” a valid ground for excluding relevant evidence?
No. FRE 403 allows for considerations of unfair prejudice, confusion of issues, misleading the jury, and undue time consumption. Unfair surprise is not a valid consideration.
What is evidence of a prior similar occurrence? Is evidence of prior similar occurrences admissible?
Evidence of a prior similar occurrence – involves some time, place, or person other than those in the present case.
Generally not admissible. Probative value weak, risk factors outweigh easily.
What are the exceptions to the general rule that prior similar occurrences are inadmissible?
(1) Plaintiff’s accident history – prior false claims; same bodily injury
(2) Similar accidents or injuries caused by same event/condition – under “substantially similar circumstances;” to show: existence of dangerous condition, causation, notice. _Absence of similar accident_s – admissible only to show lack of knowledge.
(3) Previous similar acts admissible to prove intent
(4) Sales of similar property – around same time, to prove property’s value (mere offers not admissible)
(5) To rebut a claim of impossibility – ex: to prove car can go 50mph, show instances where it did
(6) To show causation – ex: damage to nearby homes caused by X, so damage to P’s house also caused by X
(7) Habit or routine business practice – to prove person or organization acted in accordance
(8) Industry custom as evidence of standard of care – to show how party in present case should have acted; not conclusive (entire industry may be acting negligently)
Why do we have public policy exclusions? What are they?
Public policy exclusions render relevant evidence inadmissible because society favors the behavior involved. Don’t want to dissuade people from these behaviors.
(1) Limited liability insurance
(2) Subsequent remedial measures
(3) Civil settlements and settlement negotiations
(4) Plea discussions
(5) Payments or offers to pay medical expenses
Is evidence of liability insurance admissible?
Inadmissible to prove: negligence or other wrongful action.
Admissible to prove: (1) ownership or control; (2) impeachment (usually bias); (3) as part of an admission of liability (where reference to insurance coverage cannot be severed)
Is evidence of subsequent remedial measures admissible?
Subsequent remedial measures include evidence of repairs or other precautionary measures taken after an injury.
Inadmissible to prove: negligence, culpable conduct, defect
Admissible to prove: (1) ownership or control; (2) rebut claim that precaution or repair was not feasible; (3) prove opposing party has destroyed evidence
Is evidence of civil settlements and negotiations admissible?
Evidence of a compromise or settlement, or offer to compromise, covers all conduct and statements involved, including direct admissions of liability.
Inadmissible: (1) to prove or disprove the validity or amount of a disputed claim; (2) to impeach by prior inconsistent statement (bias okay).
*Note: Disputed claim requirement – there must be a claim, or some indication that a claim would be made, and it must actually be in dispute as to liability or amount.
Limited exception – civil negotiations with the government (or regulatory authority) are not excluded when offered in a criminal case.
Are plea discussions admissible?
Plea discussions include: offers to plead guilty, statements in plea discussions, withdrawn guilty pleas, and no-contest pleas.
These are inadmissible.
Note: An actual guilty plea, that is not withdrawn, is admissible as a party admission.
Are payments or offers to pay medical expenses admissible?
This evidence is inadmissible to prove liability.
- Note:* No disputed claim requirement – there need not be a claim or impending claim to exclude this evidence.
- Note:* Accompanying statements of fact are admissible. Unless, the offer to pay medical expenses is also a settlement offer (then, more restrictive rule for settlement negotiations applies).
What is character evidence?
Evidence that refers to a person’s general propensity or disposition (ex: for honesty, fairness, peacefulness, violence).
What are the three methods of introducing character evidence?
(1) Reputation testimony
(2) Opinion testimony
(3) Specific acts (most restricted)
What rules govern character evidence in a criminal case?
Defendant’s character:
(1) D may introduce evidence of his own good character in case-in-chief – reputation or opinion evidence
(2) P may introduce evidence of D’s character when: (i) D “opens the door” – reputation, opinion, or specific acts (cross-examination of D’s witnesses only); (ii) non-propensity use (MIMIC); (iii) sexual assault or child molestation case
Victim’s character: (opinion and reputation evidence only)
(1) D may introduce if relevant to his innocence (i.e. self-defense case; sexual assault exception)
(2) P may rebut with: (i) evidence of defendant’s bad character for same trait; or (ii) evidence of victim’s good character for same trait.
Special rule: In homicide cases, where D pleads self-defense, evidence of any kind (not just character) showing that victim was initial aggressor “opens door” to introduce good victim character evidence.
What rules govern character evidence in civil cases?
In civil cases, character evidence is generally not permitted.
Exceptions include:
(1) Where character is directly at issue – an essential element of claim or defense (ex: defamation, negligent hiring or entrustment, child custody)
(2) Similar specific acts in sexual assault or child molestation case
(3) Non-propensity uses (MIMIC)
What rules govern character evidence in a sexual assault case?
Evidence of the victim’s past sexual behavior is generally inadmissible.
Criminal exceptions:
(1) Proof that someone other than D is source of semen, injury, or other physical evidence
(2) Prior instances between victim and D to prove consent
Civil exceptions:
(1) If probative value substantially outweighs danger of harm to victim.
What are admissible non-propensity uses for character evidence? (also called “independently relevant”)
“MIMIC”
Motive – ex: burning a building to hide embezzlement
Intent – to show guilty knowledge or lack of good faith
Mistake (absence of)
Identity – “signature” crimes, modus operandi
Common plan or scheme – committing one crime to prepare for another
What is real evidence? What does it require?
Real evidence – actual physical evidence addressed directly to the trier of fact.
Real evidence requires:
(1) Authentication – sufficient to support jury finding of genuineness. Methods: (i) witness testimony recognizing object as what proponent claims it is; or (ii) chain of custody.
(2) Condition of object – must be in substantially same condition at trial as it was at relevant time.
What are the four types of real evidence?
(1) Direct – offered to prove facts about the object as an end in itself; ex: evidence of permanent injury shown by the injury itself
(2) Circumstantial – facts about object proved as the basis for an inference that other facts are true; ex: race of the child same as the alleged father, offered in paternity case
(3) Original – has some connection with transaction in question at trial; ex: alleged murder weapon
(4) Prepared – also called “demonstrative”; ex: sketches, models, jury view of scene (must illustrate, or conform to, substantially similar conditions as original event)
What is the evidentiary standard for authentication?
Must have proof showing the item is what a proponent claims, sufficient to support a jury finding of genuineness.
What are the methods of authentication for writings or recordings?
(1) Opponent’s admission – party against whom it is offered has admitted its authenticity, or acted upon it as if it were authentic
(2) Eyewitness testimony – someone who saw it executed or heard it acknowledged
(3) Handwriting verifications – (1) opinion of a lay witness familiar with writer’s handwriting in normal course of affairs (not for purpose of testifying); (2) opinion of expert who has compared samples; (3) finding of the jury upon comparison to samples
(4) Ancient documents – at least 20 years old, condition creates no suspicion as to authenticity, found in place where writing would likely be kept (Note: Different from hearsay AD exception, applies before 1998)
(5) Reply letter doctrine – evidence it was written in response to a communication sent to alleged author
(6) Photographs and videos – only if identified by witness as portrayal of facts relevant to the issue, and verified as fair and accurate representation of those facts (personal knowledge). Unattended camera – if operating properly and proof footage obtained from that camera.
(7) X-Rays, Electrocardiograms, etc. – cannot be authenticated by witness testimony; must be shown that process was accurate, machine working, operator qualified, and chain-of-custody established.
What are the methods of authenticating oral statements?
(1) Voice identification – opinion of anyone who has heard the voice at any time, including after litigation has begun and for sole purpose of testifying
(2) Telephone conversations – any party to the call who testifies they: (1) recognized speaker’s voice; (2) speaker had knowledge of certain facts; (3) speaker answered phone number and identified themselves or their residence; (4) speaker who answered business’s phone spoke on business matters
What are self-authenticating documents? Examples?
Some writings “prove themselves” without extrinsic evidence of authenticity.
Examples: newspapers and periodicals; notarized documents; official publications; domestic public documents with seal; etc.
What is the Best Evidence Rule?
To prove the content of a writing, recording, or photograph, the original must be produced if its terms are material.
This only applies where: (1) the writing is a legally operative or dispositive instrument (the writing itself creates rights and obligations); or (2) a witness’s knowledge of a fact comes from the writing (no personal knowledge otherwise).
Original – writing itself, or counterpart intended to have same effect; includes negative of photographs, printouts of electronic information. Duplicate – exact copy of original made by mechanical means.
*Duplicates are admissible to same extent as originals, unless: (1) circumstances make it unfair; or (2) genuine questions as to authenticity of original.
Secondary evidence allowed if the original is unavailable for some reason other than serious misconduct of proponent (ex: loss or destruction, cannot be obtained by judicial process, possession by adversary who does not produce upon notice).
If valid excuse, no “Second-Best Evidence” Rule – can prove contents by any type of secondary evidence.
What are the exceptions to the Best Evidence Rule?
(1) Summaries of voluminous records – may present summary or chart (must still make originals available for inspection or copying)
(2) Certified public records
(3) Writing is collateral (minor importance) to litigated issue
(4) Testimony or written admission of opponent
Competency of witnesses
The FRE presumes witnesses to be competent. Subject to two requirements: (1) Personal knowledge of subject matter; and (2) Sworn oath or affirmation.
No automatic disqualifications based on age (case-by-case) or insanity (if understand obligation, and have capacity to, tell the truth).
Are judges and jurors competent witnesses?
Not with regard to the present case.
Jurors are also prohibited from testifying in the future about what occurred during deliberations, or anything that may have affected a juror’s vote.
Note: With regard to i_nquiry into verdict or indictment_, jurors may testify to: (1) extraneous prejudicial information improperly brought to jury’s attention; (2) outside influence; (3) mistake in verdict form; (4) clear statement that a juror relied on racial stereotypes or animus to convict criminal defendant.
Dead Man Statutes
Not recognized by the federal rules → only by state statutes (may be applied under Erie doctrine).
DMS – bar an interested person from testifying in a civil case as to a communication with a deceased, if that testimony is offered against a representative of the deceased.
“Interested” if party stands to gain or lose by the judgment, or judgment may be used against them in subsequent action.
Leading questions
*Judge ultimately has discretion to control questioning
LQs – questions that suggest the desired answer. Generally allowed only on cross-examination, not direct.
Exceptions:
(1) To elicit preliminary or introductory matters
(2) Witness needs help responding (loss of memory, immaturity, physical or mental weakness)
(3) Witness is hostile, an adverse party, or affiliated with adverse party
Scope of cross-examination
Usually limited to: (1) scope of direct examination (including all reasonable inferences that may be drawn); (2) matters that test credibility of the witness
Can a witness use documents to aid oral testimony?
General rule: Witness cannot read from a prepared memorandum; must testify on basis of current recollection.
Exceptions: (1) Refreshing Recollection; and (2) Recorded Recollection.
Refreshing Recollection: Witness may use any writing or object to refresh recollection on the stand, but may not read from the writing while testifying (not authenticated, not on evidence).
Adverse party entitled to: Have the writing produced at trial; cross-examine witness about the writing; introduce portions of the writing relevant to witness’s testimony into evidence.
Recorded Recollection: If witness has insufficient recollection, even after attempt to refresh, the record itself may be read into evidence if a proper foundation is laid.
Foundation must include proof that: Witness has insufficient recollection; witness had personal knowledge when record made; record made by witness, or under their direction, or adopted by W; record made when matter fresh in W’s mind; W vouches for accuracy.
Note: Record may be read into evidence and heard by jury, but cannot be admitted as exhibit unless offered by adverse party.
Opinion testimony by lay witnesses
Generally inadmissible.
Admissible only where no better evidence can be obtained, and: (1) rationally based on witness’s perception; (2) helpful to jury; and (3) not based on scientific or technical knowledge.
Ex: General appearance or condition of a person, state of emotion, speed of moving object, intoxication, rational or irrational nature of another’s conduct.
Not admissible: Legal conclusions – opinions as to whether someone acted as an agent, or whether a contract was made.
Opinion testimony by expert witnesses
(1) Is subject matter one where expert testimony would assist trier of fact? (relevant and reliable)
Court is the gatekeeper on reliability – Daubert test (TRAP): (1) Testing of principle or methodology; (2) Rate of error; (3) Acceptance by experts in same discipline; (4) Peer review and publication.
(2) Is expert qualified on subject? Special knowledge, skill, experience, training, or education.
(3) Does expert possess reasonable probability regarding opinion? Not mere guess or speculation.
(4) Is opinion supported by proper factual basis?
Acceptable bases include: personal observation, facts made known at trial, facts supplied outside courtroom of a type reasonably relied upon by experts in the field (need not be admissible; need not disclose on direct examination)
Note: In a criminal case, where defendant’s mental state constitutes an element of the crime or defense, expert may not state an opinion as to whether accused possessed that mental state.
Learned treatises
Relevant excerpt can be used during expert testimony; may be used to impeach, or to provide substantive evidence.
Limitations:
(1) Treatise must be established as reliable authority by: (i) testimony of expert on the stand; (ii) testimony of another expert; or (iii) judicial notice.
(2) Must be used in the context of expert testimony.
(3) Can be read into evidence but not received as an exhibit
Exclusion of witnesses
Upon a party’s request, judge must order witnesses excluded from the courtroom. Judge can also do sua sponte.
A judge may not exclude: (1) a party, or a designated officer or employee of party; (2) a person whose presence is essential to presentation of a party’s claim or defense; (3) a person statutorily authorized to be present.
