Evidence

Question 1

Relevance

Answer 1

Evidence must be relevance to be admissible.
Relevant evidence is both probative and material.
Probative: has any tendency to make a fact more or less probable than it would’ve been without that evidence
Material: If it’s a fact of consequence in determining the outcome

Question 2

Character Evidence

Answer 2

Evidence of a person’s character or their specific character traits. 3 forms:

1. Reputation in the community
2. Opinion testimony
3. Specific instances

Question 3

Character Evidence in Civil Cases

Answer 3

NOT admissible for propensity purposes (to show someone had propensity to act in accordance with the alleged character trait) UNLESS
1. Character is an ESSENTIAL element of claim or defense
–Think: Defamation, negligent hiring, negligent entrustment, child custody, etc.
–If character is an essential element then it can be shown with reputation, opinion testimony or specific instances
2. If case is based on D’s sexual misconduct, evidence of D’s past sexual assault or child molestation is ok

Question 4

Character Evidence in Criminal Cases

Answer 4

Prosecution can’t introduce evidence of D’s bad character BUT D can open the door to present positive character evidence if it is

1. Pertinent to the crime charged
2. Done through reputation or opinion testimony

Once D opens the door with evidence of good character, P can introduce negative character evidence for the same trait by
1. Calling its own character witness
–Can only use reputation or opinion testimony (no specific acts)
2. Cross examining D’s character witness
–On cross-examination, P can use evidence of specific acts as long as they’re related to the same trait

Question 5

Evidence of Victim’s Character in Criminal Cases

Answer 5

Criminal D can introduce reputation or opinion testimony of V’s character if it’s relevant to one of the defenses assert. P can then rebut with evidence that
1. D has the same character trait
2. V has a relevant positive character trait
If this is done on cross-examination, P may use specific instances of conduct

Question 6

Character in Rape Cases

Answer 6

In rape cases, evidence to prove V’s sexual behavior or predisposition is NOT admissible

HOWEVER, in civil sexual misconduct cases, evidence of V’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

Question 7

Character in Homicide Cases

Answer 7

P may admit evidence of V’s character for non-violence in self-defense claims where D claims V was the aggressor

Question 8

MIMIC

Answer 8

Specific instances are conducts that generally aren’t admissible to show propensity are admissible to show MIMIC if

1. There’s sufficient evidence that would allow a jury to find that D committed the prior act
2. The probative value of the specific instances of conduct is NOT substantially outweighed by the danger of unfair prejudiced to the jury

Motive or opportunity
Intent
absence of Mistake
Identity or
Common Plan or scheme

Question 9

Hearsay

Answer 9

An out of court statement offered to prove the truth of the matter asserted.

Inadmissible unless there’s a valid hearsay exception

Question 10

Non-Hearsay Definition

Answer 10

Out of court statements that are NOT offered to prove the truth are the matter asserted are NOT hearsay and are admissible. Common examples of this are:

1. Verbal acts of independent legal significance (i.e. statement offered to prove the statement itself was made, without consideration of its truth ex. defamatory statements, threats, etc)
2. Statements offered to show the effect on the listener
3. Statements offered to show the declarant’s mental state or state of mind
4. Statements offered for impeachment purposes

Question 11

Admissible Non-Hearsay Categories

Answer 11

It's not hearsay when you're at the PICO (peak)
Prior inconsistent statements
prior statements of Identification
prior Consistent statements
Opposing Party Statements

1. Prior inconsistent statements can be admitted for substantive purposes if:
   –the declarant is testifying at trial and subject to cross-examination
   –the statements were previously made under oath
   –The prior statements are inconsistent with testimony currently being given at the present trial
2. Prior statements of identification (ex. lineups, photo arrays, etc.) are admissible for substantive purposes if the declarant is testifying at trial and is subject to cross-examination
3. Prior consistent statements are admissible to rebut a claim that the declarant is fabricating or has a recent motive to fabricate the statement if:
   –the declarant is testifying at trial and subject to cross-examination AND
   –the prior consistent statement was made before the declarant had a motive to fabricate the statement
4. Admissions by a party opponent
   –Adoptive admissions (silence = an adoptive admission when party heard and understood statement yet remained silence when a reasonable person would’ve denied the statement)
   –Vicarious admissions (statements made by an authorized spokesperson, agent (within the scope of and during the agency relationship), co-conspirators during and in furtherance of the conspiracy)

Question 12

Hearsay Exceptions – Unavailable Declarant

Answer 12

STD Forever

Statements against interest
(Former) Testimony
Dying Declarations

Forfeiture by wrongdoing

Question 13

Hearsay Exceptions – Declarant Availability Immaterial (i.e. we don’t care whether you’re available)

Answer 13

Please Pass This Stupid Exam
I.e. We don’t care whether you’re available just like I don’t care about evidence but Please Pass This Stupid Exam

Present sense impression
Public/business records
Treatment or diagnosis (medical)
State of mind
Excited Utterance

Note: Don’t forget about PR
Present Recollection Refreshed
Recorded Recollection (opposing counsel may allow the writing to be admitted into evidence for RR but NOT for PRR)

Question 14

6A Confrontation Clause

Answer 14

In a criminal case, you can confront your accuser (i.e. be present at trial and cross-examine P’s witnesses)

D’s Confrontation Clause Rights are violated if:
In a criminal action, a testimonial criminal action by an available declarant is used and D did NOT have the opportunity to cross-examine the declarant prior to trial

Note: It’s a bit murky if statements made to the police are testimonial. If the cop’s primary purpose was to collect evidence to be used in a future criminal prosecution, it’s testimonial. But if the cop’s purpose was to provide assistance in an ongoing emergency, it’s not testimonial. So you’ll want to consider the purpose!

Question 15

Evidence that’s excluded for public policy reasons

Answer 15

1. Subsequent Remedial Measures
   –Not admissible to show negligence, defective product or design, or culpable conduct
   –Admissible to show agency, ownership or control of property, or for impeachment purposes
2. Settlement Offers or Negotiations
   –Not admissible to prove a disputed claim, to prove an amount, or for impeachment purposes
3. Offers to Pay Medical Expenses
   –Not admissible to prove liability for the plaintiff’s injuries BUT conducts or statements accompanying the offer to pay are admissible (ex. factual admissions)
4. Guilty Pleas
   –Unless there’s a knowing and voluntary waiver from D, can’t admit withdrawn guilty pleas, no contest please, statements made while negotiating with prosecutors or during plea negotiations
   –BUT pleas and statements made during negotiations can be admissible if fairness dictates or for perjury hearings
5. Liability Insurance
   –Evidence regarding whether someone had liability insurance isn’t admissible to prove whether person acted negligently/wrongfully BUT can be admitted for other purposes (ex. proving witness’ bias or proving agency, ownership, or control)

Question 16

Habit Evidence

Answer 16

A person’s habit or an organization’s routine practices can be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice.

This evidence doesn’t need to be corroborated and you don’t need an eyewitness.

Question 17

Impeachment

Answer 17

Attack witness’ credibility through

1. Character for Truthfulness
   –Impeach via character evidence of the witnesses untruthfulness via reputation or opinion testimony
   –Evidence of truthful character can only be introduce one witness’ credibility has first been attacked
   –Witness’ credibility can be attacked with specific instances of conduct on cross-examination IF:
   a. The specific instance is about the witness’ truthfulness
   b. There’s a good faith belief in the prior misconduct, and
   c. The specific instance does NOT involve an arrest or consequence of an arrest
   –Generally extrinsic evidence of specific instances of conduct is NOT admissible
2. Prior Convictions
   –Evidence of felony or misdemeanor conviction involving dishonesty allowed (subject to 10-year restriction)
   –Evidence of prior felony that does NOT involve dishonesty IS admissible IF it is legally relevant
   –If more than 10-years has lapsed since conviction or release (whichever is later) of ANY crime, the party introducing the evidence must show that the probative value of the conviction substantially outweighs the danger of unfair prejudice (reverse legal relevance test)
   –Evidence of prior conviction is NOT admissible if the conviction was pardoned, annulled, or later found innocent
3. Prior Inconsistent Statements
   –Extrinsic evidence can only be introduced if witness is given opportunity to explain or deny the PINS BUT the extrinsic evidence can’t be used to attack witness’ credibility on an irrelevant/collateral matter
4. Sensory Competence
   –If you have a sensory deficiency that impacts your ability to perceive, recall or relate information of a relevant matter, we can impeach you
5. Attacking and Supporting the Declarant
   –When a hearsay statement has been admitted in evidence, the declarant’s credibility can be attacked, and then supported with any evidence that would have been admissible if declarant had been a witness.

Question 18

Best Evidence Rule

Answer 18

Applies when a witness relies on a document’s contents while testifying or when the document’s contents are at issue (common example: contracts).

Typically requires the original or a reliable duplicate be produced to prove its contents.

There are exceptions.
Ex. A party can introduce other evidence of the document’s content, such as through testimony when the party the original would’ve been offered against had control of the document, was put on notice that original would be a subject of proof at the trial, and failed to produce the original at trial.