Evidence Flashcards
Relevance
Evidence is relevant if it has any tendency to make a dact more or less proble and the fact is of consequence in determining the action.
Rule 403 Exclusion
The court may exclude relevant evidence if its probative value substantially outweighed by a danger of:
- unfair prejudice
- confusing the issue
- misleading the jury
- undue delay
- wasting time
- or being needlessly cumulative
Subsequent Remedial Measures
such evidence is NOT admissible to prove:
- negligence
- culpable conduct
- a defect in product or design OR
- need for a warning or instruction
But maybe admitted for impeachment, control, ownership, and feasibility.
Character Evidence
Characte evidence is NOT admissible to prove propensity (that a person acted in conformity with a character trait on a particular occasion)
- but allowed for when character is an issue (defamation)
Character Evidence: Criminal Cases for D and V
D’s character
- D can ALWAYS offer evidence to his own character
- Prosecution is NOT allowed to prove D acted in accordance with D’s character trait unless D opens the door.
V’s character (not involving rape)
- D can offer reputation or opinion evidence to show V’s character to show D’s innocence.
- IF D present evid of V’s character: ADA can offer V’s good character, or B’s bad character.
- in a homicide: ADA can only show V’s peacefulness only if D claims V aggressor
Character Evidence: Civil Cases
Character evid generally not admissible in a civil case but sex misconduct exception.
methods on direct: Opinion and Reputaion
methods on cross: Opinion, Reputation and specific bad acts.
Prior Bad Acts (MIMIC) + How to Offer
Generally NOT ADMISSIBLE to show propensity
- Admissible: (MIMIC) Motive, Identity, Absence of Mistake, Intent, Common Scheme or Plan.
To offer evid: MUST show:
- prior act was committed (by a preponderance) AND
- probative value substantially outweighs the danger of unfair prejudice.
Habit/ Routine Practice
Admissible to show that a person acted in accordance with their habit or routine practice (i.e. putting a seatbelt on)
Prior Convictions
Evidence of Prior Convictions may be admitted in certain instances:
- Felony/ Misdemeanor for Dishonesty: always admissible to impeach.
- Misdemeanors are not impeachable.
- Felonies admissible in civ and crim case if witness is not a crimD
- admissible if D is witness but only if probative valuse outweighs any prejudice effect.
- if 10 years passsed from conviction or release of jail whichever is later it’s not admissible unless probative valuse outweighs prejudicial effect AND there’s advance written notice.
Specific Instances of Conduct
A witness’ credibility may be attached on cross examination with specific instance of conduct (prior bad acts) if the conduct is probative of the witness’ character for truthfulness and untruthfulness.
Refreshing Recollection
Refreshing a witness’ recollection using a doc is permitted when the witness:
- had personal knowledge of the matter but
- is unable to recall it while testifying.
only opposing party may offer into evidence the item used to refresh.
Lay Witness Testimony
any person who gives testimoney in a case that’s not an expert
- competent to testify AND have personal knowledge.
May offer opinion if:
- based on perception
- establishes a fact or helps understand testimony ANd
- not based in Science tech or special knowledge.
HEARSAY
Hearsay is an out of court statement that is offered for the truth of the matter asserted.
Admissible only if it falls under an exception or exclusion.
Non- Hearsay Statements
If a statement is offered to prove something other than its truth, it’s not hearsay and is admissible.
- prior inconsistent statements
Hearsay Exclusions
- Statement by Party Opponent
- stmt offered against opposing part + made by party +adopted to be true
- Prior Statement by a Witness
- Declarant testifies + subject to cross + prior inconsistent statement given under oath or consistent statement to rebut or rehab.
- Co- conspirator Admission
- conspiracy existed+ stmt made during conspiracy + in futherance of conspiracy + proven by independent evidence
Hearsay Exceptions Requiring Unavailability
Unavailability is requirement for all
- Dying Declaration
- stmt under impending death + about the circumstances
- Statement Against Interest
- stmt against D’s penal interest + firsthand knowledge + RP would have made Declarant’s stmt and likely to be true.
- Former Testimony
- Person/ Family History
Hearsay: Where Availability is Immaterial (Exceptions)
- Present Sense impressions
- describing event made by declarant while observing the event OR immediately thereafter (few minutes max)
- Excited Utterance
- stmt relating to a startling event or condition + made while dec under stress or excitement under event.
- Present State of Mind
- then existing mind state (motive, intent, or plan) or emotion sensory but stmt of memory or belief not valid.
- Business Records
- record of event + kept in regular course of business + made near time of matter + made by person with knowledge + regular practice of business + op doesnt show lack of trustworthiness.
- Present Recollection Refreshing
- Past Recorded Recollection
- personal knowledge+ writing made by witness + made while event fresh + accurate + witness no longer remembers.
Right to confront (6th Am.)
Confrontation Clause gives a criminal defendant the right to confront witnesses against him.
violation: stmt is testimonial, declarant is unavailable and no cross
Physician Patient Privilege
Most States : recognize the privilege
- confidential patient communication
- made to a physician
- for the purpose of medical diagnosis or treatment
patient holds privilege but may be waived when med condition placed at issue.
Fed ct does not recognized
