Evidence Flashcards
Admissibility of Character Evidence - Civil
General rule, evidence of character to prove the CONDUCT of a person in the litigated event is not admissible in a civil case.
- However, when proof of a person’s character, as a matter of SUBSTANTIVE LAW, is an essential of a CLAIM or DEFENSE in a civil action, character evidence is admissible because it is the best method of proving the issue.
1. Defamation
2. Child custody
3. Negligent entrustment
4. Negligent hiring/retention
** Under the FRE, ANY of the types of evidence (reputation, opinion, or specific acts) may be used
- If a litigant has some other purpose, and it is relevant, can come in.
** Character evidence - Criminal Case
Character evidence is INADMISSIBLE unless and until the DEFENDANT opens the door. The prosecution cannot initiate evidence of the defendant’s bad character.
- The prosecution may offer such evidence only after the accused has put his character in issue by either TAKING THE STAND (thus placing his credibility in issue) or offering evidence of his GOOD CHARACTER
1. DEFENDANT is allowed to present evidence of relevant, good character to establish he acted in conformity with good character and did not commit crime. - REPUTATION / OPINION on DIRECT
2. If the defendant does present evidence of good character, they have opened the door and the PROSECUTION can REBUT with bad character for that trait - REPUTATION / OPINION on DIRECT
* The prosecutor cannot introduce any evidence defendant’s bad character if the purpose is to show that he probably acted in conformity, committed crime
Evidence of prior crimes, bad acts - Criminal cases
- Any misconduct, including prior arrests, may be inquired about CROSS of a defendant’s CHARACTER WITNESS
- NO extrinsic evidence
- C.f. asking character witness if they are AWARE of defendant’s prior bad acts
- CANNOT IMPEACH with OWN ARRESTS! Arrest ≠ bad act
Evidence of the defendant’s other crimes or misconduct is inadmissible if offered solely to establish criminal disposition, i.e., evidence of prior crimes/bad acts are NEVER admissible to show they probably acted unlawfully again and committed the crime charged
- Can be admitted for OTHER PURPOSE - MIMIC (motive, intent, absence of mistake, identity, common plan/scheme), subject to Rule 403 (probative value, unfair prejudice)
** Extrinsic evidence of bad acts
Cannot be impeached with extrinsic evidence of bad acts! If the witness denies on cross, cannot offer evidence to refute.
When can extrinsic evidence come in?
IMPEACHMENT
- Evidence of bias/motive to misrepresent
- Bad reputation in community for truth/veracity
- Prior inconsistent statement
Why might evidence that falls under a hearsay exception not come in?
Under the Confrontation Clause, an accused has the right to be confronted by the witnesses against him. A hearsay statement will not be admitted, even if it falls within a hearsay exception, when (all of)
- The statement is offered against the accused in a CRIMINAL case
- Declarant is UNAVAILABLE
- The statement was TESTIMONIAL in nature
- If the primary purpose of police interrogation is to enable the police to help in an ongoing emergency, statements made in the course of the interrogation are non-testimonial
- When the primary purpose of the interrogation is to establish or prove past events potentially relevant to a later criminal prosecution, statements are testimonial
- AFFIDAVITS that summarize the findings of forensic analysis and have the effect of ACCUSING the defendant of criminal conduct are testimonial - the accused had no opportunity to CROSS-EXAMINE the declarant’s “testimonial” statement prior to trial
Accusations of prior sexual misconduct
Under the FRE, evidence of a defendant’s prior acts of sexual assault are admissible in a criminal case in which the defendant is accused of sexual assault, and may be considered on any matter to which it is relevant
- Not limited to impeachment purposes; it may be admitted as SUBSTANTIVE evidence
- Need not have resulted in criminal charges
- Specific acts can be used to show PROPENSITY to commit sex crimes! Only time this happens
Admissibility of a guilty plea
GUILTY PLEA itself is admissible. If made by an OPPOSING PARTY, a guilty plea is a statement by an opposing party and thus is admissible (non-hearsay)
- The statement is conclusive in a prosecution for that particular infraction, but if the plea is used in another proceeding, it is merely an EVIDENTIARY STATEMENT (i.e., it is not conclusive and can be EXPLAINED)
C.f. Statements made DURING plea negotiations. Withdrawn guilty pleas, pleas of nolo contendere, offers to plead guilty, and evidence of statements made in negotiating such pleas are NOT ADMISSIBLE in any proceeding against the defendant who made the plea or participated in the plea discussions
** Admissibility of a hospital record
Business records exception, possibly
Admissibility of business records
HEARSAY exception; a writing or record made as a memorandum or record of any act, transaction, occurrence, or event is admissible as PROOF of such act, transaction, occurrence, or event if
- It was made in the COURSE of a regularly conducted business activity
- If it was CUSTOMARY to make the type of entry involved (i.e., the entrant must have had a DUTY to make the entry).
- The business record must consist of matters within the PERSONAL knowledge of the ENTRANT/someone with a business DUTY to transmit such matters to the entrant
- The entry must have been made at or near the TIME of the transaction
- Authenticated
Admissibility of evidence about a victim’s character
- Once the DEFENDANT has introduced evidence of the alleged victim’s bad CHARACTER for a pertinent trait, the prosecution may COUNTER with reputation or opinion evidence of the victim’s good character for the same trait
- On CROSS-examination, the prosecution may inquire into relevant SPECIFIC INSTANCES OF CONDUCT
- Means of testing the accuracy of the hearing and reporting of a reputation witness, who relates what he has heard
- Means of testing the basis of an opinion expressed by the witness… - Evidence of victim’s CHARACTER can be introduced for non-propensity purposes
- Prove defendant’s state of mind, e.g., knew victim was violent and therefore acted reasonably in responding to victim’s aggression
- Can ask about SPECIFIC ACTS
Admissibility of evidence of prior convictions
IMPEACHMENT
1. Crime involving DISHONESTY/FALSE STATEMENT, can impeach witness in ANY case, MUST come in
- E.g., perjury
- A witness may be interrogated upon CROSS-examination with respect to an act of misconduct only if it is probative of TRUTHFULNESS
- If the witness denies the act, the cross-examiner cannot refute the answer by calling other witnesses or producing other evidence
2. SERIOUS CRIME (felony, +1 year), can be use, but judge has discretion, Rule 403.
** Cannot be TOO REMOTE: more than 10 years have elapsed since date of release from confinement for conviction (whichever is LATER)
** ARREST is insufficient.
SUBSTANTIVE evidence: convictions may be introduced to prove any fact essential to the case only if they are FELONY convictions
Admissibility of evidence of someone’s present state of mind
HEARSAY exception; a statement of a declarant’s then-existing state of mind is admissible when
- The declarant’s state of mind is DIRECTLY in issue and material to the controversy or -
- As a basis for a circumstantial inference that a particular declaration of intent was CARRIED OUT
- A declaration of intent to do something in the future is admissible as circumstantial evidence tending to show that the intent was carried out
Admissibility of Expert Testimony
Expert opinion testimony is called for when the subject matter is such that technical or other specialized knowledge will assist the jury in understanding the evidence or determining a fact in issue.
- E.g., specific injuries
Admissibility of Lay Opinions
Lay opinons are generally INADMISSIBLE, unles…
Where an event is likely to be perceived as a WHOLE impression, rather than as more specific components, opinions by lay witnesses are generally admitted.
- ADMISSIBLE under the FRE when (all of)
1. It is rationally based on the PERCEPTION of the witness - The witness must have had the opportunity to observe the event that forms the basis of her opinion
2. It is HELPFUL to a clear understanding of his testimony or to the determination of a fact in issue
3. Not based on scientific, technical, or other specialized knowledge - Eg., General appearance or condition of a person, “seemed senile,” “was unconscious”
Admissibility of learned treatises
Statements from an authoritative work will be admitted if called to the attention of an expert witness and established as reliable authority
- Portions of learned treatises to be read into evidence, but this exception applies only when the treatise is being used on DIRECT or CROSS-examination of an EXPERT witness.
Admissibility of public records
- Authentication: a public document that has been signed and certified is self-authenticating
- Hearsay exception: CMR!
Admissibility of statements regarding physical sensations
HEARSAY exception; declaration of present physical sensation. Statements of symptoms being experienced, including the existence of pain, are admissible under the FRE, even if not made to a doctor or other medical personnel.
Admissibility of statements to a physician retained for the sole purpose of testifying as an expert
Under the FRE, declarations of past physical condition made to a doctor employed to testify are admissible under the MEDICAL DIAGNOSIS/TREATMENT hearsay exception
- Making diagnosis for expert opinion
Admissible non-hearsay
- Prior inconsistent statement given by declarant under penalty of perjury
- Prior consistent statement offered to -
- Rebut a charge that witness is lying/exaggerating because of motive
- Rehabilitate a witness who has been impeached on some other ground besides general character for truth - Statement of identification of a person the witness perceived earlier
- Statement made or adopted by a party to the action or by a -
- Spokesperson authorized to speak on her behalf
- Agent concerning a matter within the scope of the agency
- Partner within the scope of partnership business
- Co-conspirator in furtherance of the conspiracy
- Privity in title (state courts only)
Authenticating handwriting
Handwriting can be authenticated by -
- A LAY witness who has PERSONAL knowledge of the handwriting of the supposed writer may state his opinion as to whether the document is in that person’s handwriting
- Must be familiar with handwriting BEFORE dispute arose/trial
- Cannot become familiar for purposes of trial!
- C.f. VOICE identification - Expert
- Comparison by trier of fact
NO requirement that the witness have seen the signature recently / more than once.
Authentication of oral statements
Where the identity of a speaker is important, the oral statements require authentication as to the identity of the speaker
- A voice, whether heard firsthand or through a tape recording, may be identified by the opinion of anyone who has heard the voice at any time
- As long as such a foundation is laid to show familiarity with the voice, a lay opinion as to the identity of the speaker is permissible
- C.f. handwriting verification, a person can become familiar with a voice AFTER litigation has begun and for the sole purpose of testifying
- Expert testimony is not required for identifying a voice on a tape recording
Bad reputation in community for truth/veracity
Method of impeachment; EXTRINSIC EVIDENCE allowed!
** Can a plaintiff offer evidence of good character
Only if their character is directly at issue
** Character evidence - criminal case
Although character evidence is generally inadmissible to prove a person acted in conformity with a particular trait, a criminal defendant may introduce eivdence of a relevant character trait to show his innocence
- Opinion / reputation
Dying declaration
HEARSAY exception; a statement made by a now-UNAVAILABLE declarant while believing her death was imminent that concerns the CAUSE or circumstances of what she believed to be her impending death is admissible.
- Need not actually die as a result of the circumstances giving rise to her belief of imminent death
- FRE: allows in both CIVIL cases and HOMICIDE prosecutions
- TRADITIONAL: just HOMICIDE, and declarant must have DIED. Attempted homicide ≠ sufficient)
** Victim must have FIRST HAND KNOWLEDGE that the defendant was responsible for their injury. Cannot be a mere SUSPICION about the cause of impending death
** N/A to ATTEMPTED homicide / attempts! Or other crimes
Dying Declaration v. Excited Utterance
Sometimes a failed dying declaration is an excited utterance
- Defendant was available
- Had some home of surviving
** Error in Jury Instruction
(C) is correct. Under Federal Rule of Civil Procedure 51(d)(2), a court may consider a plain error in the jury instructions that has not been preserved by an objection if the error affects a substantial right. This represents the only method to have the jury instruction reviewed. (A) is an incorrect statement of the law. Objection and preservation of the objection at trial is required. (B) is incorrect. Federal Rule of Civil Procedure 51 requires a proper objection on the record to preserve an objection to a jury instruction. Here, there was no objection on the record. (D) is an incorrect factual statement. Rule 51 specifically requires an objection on the record.
Evidence of specific acts of lying that that did not result in convictions but bear on truthfulness
Method of impeachment; can be brought up on CROSS.
- NO EXTRINSIC evidence
Excited utterance
HEARSAY exception; under the excited utterance exception, a declaration made by a declarant during or soon after a startling event is admissible if -
- It RELATES to the startling occurrence and
- Was made under the STRESS of excitement produced by the startling event
Excited Utterance v. Present Sense Impression
Often overlap, analyze both!
Excited utterance:
- Statement must RELATE to a startling event
- Statement must be made while still under the STRESS of excitement from the event
Present sense impression:
- Statement must DESCRIBE/explain an event/condition
- Statement must be made while or immediately after perceiving the event (strict)
** Exigent circumstances
(A) is correct. The Fourth Amendment prohibits unreasonable searches and seizures. As a general rule, warrantless searches and seizures in constitutionally protected areas are per se unreasonable absent an exception to the warrant requirement. Exigent circumstances are one such exception. If exigent circumstances exist, such as imminent destruction of evidence, the police may enter constitutionally protected premises without a warrant and seize the evidence to prevent its destruction. And this is true even if the exigency was created by the police-so long as it was not created in actual or threatened violation of the Fourth Amendment. Here, the exigency (the sounds of yelling and toilet flushing after police officers knocked on the door and asked for entry, suggesting that drugs were being destroyed) did not arise through a violation or threatened violation of the Fourth Amendment. Police officers may knock on a door to ask questions just like any member of society can-no warrant is required. Therefore, the officers could lawfully enter the motel room. For those reasons, (C) and (D) are incorrect. (B) is incorrect because the motel manager did not have actual or apparent authority to consent to the search of the occupied room. Overnight guests of a motel have a reasonable expectation of privacy in their room, which functions like a temporary residence. The officers could not reasonably assume the manager could authorize their entrance while the room was being occupied. In this case, the legal exception to the warrantless entry is the exigent circumstances, not consent.
Hearsay Analysis
- Is it hearsay?
- Does it meet an exception?
- Does it violate the Confrontation Clause?
Hearsay exceptions
Can be AVAILABLE -
- Present sense
- Excited utterance
- Current mental physical condition
- Medical diagnosis
- Recorded recollection
- Business records
UNAVAILABLE AT TRIAL -
- Former testimony
- Dying declaration
- Statements against interest
- Statement of personal/family history
- Statement offered against party procuring declarant’s unavailability (forfeiture by wrongdoing)
** Impeachment of a hearsay declarant
Generally, when a hearsay statement is admitted into evidence, the other party can impeach the CREDIBILITY of the DECLARANT with evidence that would be admissible had the declarant testified
Is former testimony admissible?
HEARSAY exception; the testimony of a now UNAVAILABLE witness given at another HEARING is admissible in a subsequent trial as long as there is a sufficient SIMILARITY of PARTIES and ISSUES so that the opportunity to develop testimony or cross-examine at the prior hearing was meaningful.
- ISSUES: the former testimony is admissible upon any trial of the same SUBJECT matter
- PARTIES
- The PARTY against whom the former testimony is offered must have had the opportunity to develop the testimony at the prior proceeding by direct, cross-, or redirect examination of the declarant.
- The party against whom the testimony is offered or, in civil cases, the party’s predecessor in interest (privity relationship) must have been a PARTY in the FORMER action
- GRAND JURY testimony of an unavailable declarant is INADMISSIBLE as former testimony against the accused at trial. This is because grand jury proceedings do not provide the opportunity for cross-examination.
Judicial Notice
Appropriate when a fact is INDISPUTABLE or can be VERIFIED through scientific principles.
1. Facts that are not subject to reasonable dispute because they are GENERALLY KNOWN within the territorial jurisdiction of the trial court.
- Facts need not be known everywhere as long as they
are known in the community where the court is sitting
- Need not actually reference verifying materials to judicially notice
- Can take notice at any time, whether or not requested by a party, regardless of whether a criminal or civil case is involved
2. Facts that are not generally known and accepted but are easily VERIFIED by resorting to easily accessible, well-established sources (i.e., facts capable of certain verification)
** Civil: conclusively established.
** Criminal: jury MAY take judicial notice fact as conclusive. Prosecutor’s burden of production presumptively met.
** Judicial notice may not be taken of a fact solely because it is personally known by the judge.
Most state courts will not take judicial notice of the law of a foreign country.
Kinds of Impeachment
- Prior inconsistent statement
- Bias/motive to misrepresent
- Prior conviction
- Specific acts of misconduct that bear on truthfulness, untruthfulness
- Bad reputation in community for truth / veracity
Marital privilege
Confidential marital COMMUNICATION (not something observed, etc.) made between spouses, during marriage
- Policy: preserve the intimacy and confidence of the marital relationship
- Available in CIVIL and CRIMINAL cases
- Does not apply before marriage, but does endure AFTER death/divorce.
- BOTH spouses are holders; ONE can render the OTHER incompetent from testimony!
** Non-hearsay
- Don’t meet definition of hearsay
- Verbal act
- Declarant’s insanity/knowledge
- Impeachment
- Impact on listener/reader - Hearsay EXCLUSIONS
- Statements of OPPOSING PARTY
- Certain statements by testifying witnesses subject to cross
- Prior INCONSISTENT statements made under OATH
- Prior ID’s
- Prior CONSISTENT statements that REHABILITATE
Present sense impression
HEARSAY exception; a present sense impression is a statement that describes or explains an event or condition, and is made WHILE or IMMEDIATELY AFTER the declarant PERCEIVES the event or condition
Prior bad acts
A witness may be IMPEACHED on cross-examination with a prior act of misconduct that is PROBATIVE of TRUTHFULNESS even if the misconduct did NOT result in a conviction.
- Within the discretion of the court
- The cross-examiner must act in good faith with some reasonable basis for believing that the witness may have committed the bad act inquired about
** Federal Rule 608(b) permits cross-examination concerning prior bad acts if, in the discretion of the court, they are probative of truthfulness
** Prior identifications
NON-HEARSAY; prior identifications are admissible but person who MADE prior ID must be PRESENT at trial and SUBJECT TO CROSS
- Sketch artist
- Picking someone out of a police lineup
Scope and form of expert testimony
May testify to facts known to him or made known to him at or before trial.
- Does not need to be a hypothetical question
Scope of Cross-Examination
The scope of cross-examination is generally limited to: (i) matters brought up on direct examination; and (ii) matters concerning the witness’s credibility (i.e., impeachment).
** Specific acts of misconduct
If probative of truthfulness, can be used for impeachment
