Evidence Flashcards
Character evidence is
Documentary evidence or testimony offered to prove that a person acted in conformity with a particular character trait
Character evidence is inadmissible when
Offered to prove propensity (with certain exceptions)
Impeachment evidence is
Evidence that proves the witness is not credible for some reason or another
Hearsay is
Any statement made outside the court proceeding that is being offered to prove the content of the statement
Most commonly made objections
OPRAH Original Writing Rule Privilege Relevancy Authentication Hearsay
Definition of hearsay “statement”
- oral or written assertion
- conduct intended as an assertion
Has to be a human statement, not one by an animal or a machine
Hearsay: difference between assertive and nonassertive conduct
Assertive conduct is conduct intended as a substitute for words.
When it is offered for its truth, such a statement can be hearsay (nod, wink, smirk)
Nonassertive conduct is conduct NOT intended as a statement or assertion (fleeing, staggering)
It is not hearsay because it is not a statement
Adoptive Admission by Silence elements
- a party hears and understands an accusation against him
- the party is capable of denying it
- A reasonable person would have denied the accusation if it was untrue
Admission by party-opponent
- statement is by or attributable to a party
- personal knowledge of facts NOT required
- statement need NOT have been against interest when made
- declarant need NOT be unavailable
Declarations Against Interest
- declarant need NOT be a party
- personal knowledge of facts required
- statement must have been against interest when made
- declarant MUST be unavailable
6A right to confront applies in
Criminal cases only
Present sense impression
A statement that describes or explains an event or condition, made while the declarant is perceiving the event or condition or immediately thereafter
No time to lie!
“unexcited utterance”
3 forms of character evidence
- reputation testimony
- opinion testimony
- specific acts
Character evidence in CIVIL cases
- INADMISSIBLE to prove the person acted in conformity with the trait
- exception: ADMISSIBLE when character is “in issue” (essential element of a cause of action, claim or defense) (all three forms admissible)
Civil causes of action where character is in issue
Defamation (as to P) Child custody (as to parents) Negligent entrustment (as to trustee) Negligent hiring (as to ee)
4 main impeachment methods
- bias
- sensory defects
- prior inconsistent statements (PINS)
- character
Bias material or collateral?
Always material, never collateral
The collateral matter rule (extrinsic evidence on collateral matters is inadmissible to impeach) never applies to bias
Prior inconsistent statements
Usually admissible only to impeach
Extrinsic evidence may be introduced if a foundation is laid (witness given opportunity to explain or deny the statement)
If the PINS is sworn (under oath at trial, depo, or other proceeding) or falls within another hearsay exemption or exception, it is also admissible as substantive evidence AND to impeach
If a party makes a PINS, that is an admission, don’t need to worry about PINS rules, admissible substantively and to impeach as hearsay exception
Character impeachment – 4 methods
- reputation or opinion testimony
- bad act impeachment
- felony convictions
- conviction of crimes involving dishonesty or false statement
Bad act impeachment requirements
- in the form of a question
- on cross-exam
- inquires into prior unconvicted acts of misconduct bearing on truthfulness
May NOT be proven by extrinsic evidence
Felony conviction for impeachment requirements
- felony not involving dishonesty/false statement
- 10-year time limit
- court has discretion to exclude (balancing test)
Conviction involving dishonesty/false statement for impeachment requirements
- any crime involving dishonesty or false statement
2. automatically admissible (no balancing test, unless more than 10 years old)
Excited Utterance elements
- statement that relates to a startling event
- made while the declarant was under the stress of the excitement
- excitement must have been caused by the startling event
- personal knowledge by the declarant is required
Dying Declaration elements
(CUBA)
Concern: statement must concern the cause or circumstances of death
Unavailable: declarant must be unavailable
Belief: declarant must have believed that death was imminent
Any: dying declaration may arise in any civil case or criminal homicide case