Evidence Flashcards
Logical Relevance, FRE 401
Evidence is relevant if it has a tendency to make a fact more or less probable than it would be
without the evidence and the fact is of consequence in determining the action.
Legal Relevance, FRE 403 (Exclusion of Logically Relevant Evidence)
Relevant evidence may be excluded if its probative value is substantially outweighed by the
danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time,
or needlessly presenting cumulative evidence.
Character Evidence—Civil Case
In a civil case, character evidence is not admissible to prove that a person acted in accordance with that character or trait on a particular occasion.
However, character evidence (reputation, opinion, and specific acts) is admissible when character is an essential element of a claim or defense, such as: defamation, negligent hiring or entrustment, and child custody.
Character Evidence—Criminal Case - Defendants Character
Defendant’s Character
A defendant may introduce evidence of his own good character (reputation or opinion) to show that it is inconsistent with the crime charged.
Note 2: Reputation evidence refers to the defendant’s reputation in the community at large, not just his friends. Opinion evidence refers to the testifying witness’s personal opinion of the defendant, not the opinions of others.
Character Evidence Criminal-Defendant’s “opens the door” effect
If the defendant “opens the door”, the prosecution may:
• Call a witness to rebut and attack the defendant’s claims of good character with reputation or opinion based evidence, or
• Cross-examine the defendant’s character witness and ask about the defendant’s reputation, opinion, or specific bad acts by the defendant
Note 3: The prosecution can only “ask” about specific bad acts, it cannot enter
extrinsic evidence.
Criminal Character Evidence - Victim’s Character
A defendant may introduce reputation or opinion evidence of the victim’s character trait if it is relevant to the defense asserted (for example, if the defendant is charged with assault and battery and claims self-defense, he can introduce evidence that the victim has a violent character).
Criminal Character Evidence - Victim’s Character - If defendant “opens the door” effect
If the defendant “opens the door,” the prosecution may:
• Introduce rebuttal (reputation or opinion) evidence of the victim’s character trait, or
• Attack the defendant’s character regarding the same trait that the defendant attacked of the victim
Exam Tip 2: If the facts involve a criminal case, read carefully to see if the defendant has “opened the door” by presenting evidence about his character or the victim’s character, which would then allow the prosecution to rebut this with evidence attacking defendant or rehabilitating victim.
Character Evidence : Specific Bad Acts, FRE 404(b) (MIMIC)
Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the
character.
However, evidence of prior bad acts may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. This is sometimes referred to as the MIMIC rule, which refers to Motive, Intent, absence of Mistake, Identity, or Common plan. Modus operandi can be used as identity evidence.
Exam Tip 3: If a specific bad act is introduced as evidence, consider arguments for any non-character uses of the evidence.
Habit Evidence, FRE 406
Evidence of a person’s habit or an organization’s routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. The court may admit this evidence regardless of whether it is corroborated or
whether there was an eyewitness.
Character Evidence : Sex-Offense Cases, FRE 412, and exception
In civil or criminal cases involving alleged sexual misconduct, evidence of the victim’s sexual conduct or predisposition is generally barred.
Exception: In a civil case, the court may admit evidence offered to prove a victim’s sexual behavior or sexual predisposition if its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party.
Witness Competence, FRE 601, what must a non-expert witness have
A non-expert witness must have personal knowledge of a matter in order to testify about it
Witness lay Opinion, FRE 701, when are they allowed
A lay opinion is admissible if it is rationally based on the witness’s perception, helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and not based on scientific, technical, or other specialized knowledge.
Exam Tip 4: Lay witnesses are qualified to give testimony about the speed of a vehicle—this has been tested on past essay exams.
Expert Testimony, FRE 703, what must the subject matter cover, what must they be qualified about, etc
o The subject matter of expert testimony must be scientific, technical or some other specialized knowledge that will help a trier of fact understand evidence or determine a fact at issue that focuses on the relevance of testimony.
o A witness must be qualified as an expert by knowledge, skill, experience, training or education.
o The testimony must be based on sufficient facts or data and the product of reliable principles and methods.
o Finally, the witness must apply these principles and methods reliably to facts of the case.
Present Recollection Refreshed, FRE 612, and admissibility of it as evidence
A witness may examine any item to refresh his present recollection, and his testimony must be based on his refreshed recollection (he may not read from the refreshing document itself).
The item itself is not entered into evidence unless the adverse party introduces it into evidence.
Note 4: When the item used to refresh a witness’s recollection is a document, the adverse party is entitled to have the document produced, to inspect the document, to cross-examine the witness about it, and to introduce any relevant portion of the document into evidence.
Past Recollection Recorded, FRE 803
A memorandum or record about a matter the witness once had knowledge of but now has insufficient recollection of to testify that was made or adopted by the witness when it was fresh in the witness’s memory and is accurate may be read into evidence under the recorded recollection hearsay exception.
Note 5: The memo or record itself may be admitted into evidence if the adverse party introduces it into evidence.
Impeachment: Opinion/Reputation
Opinion/reputation testimony from another witness, FRE 608
Note 6: Evidence of truthful character is admissible only after the witness’s character for truthfulness has been attacked.
Impeachment: Specific instances of conduct, FRE 608
Generally (see below for Criminal Conviction exception), extrinsic (outside) evidence is not admissible to show specific instances of witness’s conduct relating to truthfulness.
However, on cross-examination, a witness can be asked about specific instances of his conduct to attack or support the witness’s credibility.
Exception to specific instances of conduct rule: Criminal convictions, FRE 609
Extrinsic evidence of a criminal conviction for crimes involving dishonesty/false statements (e.g., perjury or fraud) must be admitted.
Extrinsic evidence of a criminal conviction for a crime not involving dishonesty/false statement (e.g., assault) if the crime was punishable by death or imprisonment for more than one year (a felony):
• If the conviction is being used in a civil or criminal case against a witness who is not a defendant, the evidence is admissible subject to a Rule 403 analysis (i.e., is the
probative value substantially outweighed by the danger of unfair prejudice or other factors) to determine admissibility.
• If the conviction is being used in a criminal case against a witness who is the defendant, the evidence will be admissible only if the probative value outweighs the
prejudicial effect to the defendant.
10-year rule: If more than 10 years has passed since the conviction or release (whichever is later), the evidence of the conviction will only be admissible if the probative value substantially outweighs the prejudicial effect and the proponent gives reasonable notice of the intent to use it.
Impeachment: Prior inconsistent statements, FRE 613
A witness’s prior statement that is inconsistent with the witness’s current testimony is admissible to impeach the witness.
Extrinsic evidence of the prior statement can be admissible for purposes of impeachment.
Impeachment :Bias or interest
Extrinsic evidence is admissible to show that the witness is biased and may not be testifying truthfully is admissible.
Impeachment: Sensory competence
Extrinsic evidence showing that a witness is physically or mentally impaired and is therefore not a credible witness is admissible.
o Impeachment of a hearsay declarant, FRE 806
If a hearsay statement is admitted into evidence, the declarant who made the original statement can be impeached as if the declarants/he was a testifying witness.
Impeachment: Rehabilitation of a witness
If a witness is impeached, the witness may be rehabilitated by the introduction of rebuttal evidence, including:
- Explanation or clarification during redirect examination;
- Reputation or opinion evidence about the witness’s character for truthfulness; or
- A prior consistent statement.
Tangible Evidence: Authentication, FRE 901–02
All tangible evidence must be authenticated. To authenticate an item, the proponent must produce sufficient evidence to support a finding that the thing is what its proponent claims it is.
Exam Tip 6: Look for facts indicating that the authenticity of the evidence could be in question, for example handwriting or the sound of a person’s voice may be in dispute. A lay person can testify about the authenticity of handwriting and a person’s voice if they have prior knowledge.
Best Evidence Rule, FRE 1001–08
The best evidence rule requires that the original document or a reliable duplicate be produced in order to prove the contents of a writing, recording, or photograph, including electronic documents, X-rays, and videos. This rule applies only when the contents of the document are at issue or a witness is relying on the contents of the document when testifying.
Privileges: Spousal Testimonial Privilege
The testifying spouse can assert the privilege and refuse to testify against another spouse; it only applies if there is a valid marriage in existence.
Confidential Marital Communications
Both spouses can assert the privilege and prevent the other spouse from testifying about confidential communications made during the marriage. This privilege continues even if the marriage has ended (marriage ends upon divorce).
Note 7: If a spouse breaks confidentiality and discloses information to a third party, the spouse may not be able to assert this privilege.
Subsequent Remedial Measures, FRE 407
Evidence of subsequent remedial measures taken by the defendant that would have made an earlier injury or harm less likely to occur are admissible for purposes such as
impeachment or to show ownership or control, but not to show negligence.
Settlement Offers and Statements Made During Negotiations, FRE 408
Settlement offers and statements made during settlement negotiations are excluded. The settlement offer must be made in response to a disputed claim. If there is no disputed claim and a settlement offer is made, it is not barred.
Offers to Pay Medical Expenses, FRE 409
Offers to pay medical expenses are inadmissible to prove liability.
Evidence of Liability Insurance, FRE 411
Evidence of liability insurance is not admissible to show liability, but is admissible to prove agency, ownership, control, or the witness’s bias or prejudice.
Hearsay, FRE 801(c)
Hearsay is an out-of-court statement that is offered to prove the truth of the matter asserted. If offered to prove something other than the truth of the matter asserted, then the statement is not hearsay.
Hearsay: Assertive Conduct
Assertive conduct is treated as a statement and is subject to the hearsay rules. Assertive conduct such as gesturing (e.g., nodding one’s head to indicate “yes”) or pointing a finger in a direction to indicate a direction of travel (e.g., right, left, or forward) will be treated as a statement. Laughing or crying may or may not be assertive conduct, depending on the circumstances.
Non-Hearsay Use for other than truth of matter being asserted
If a statement is used to show something other than the truth of the matter asserted, it will not be hearsay. For example, a statement can be used to show the effect on the listener or reader, or as circumstantial evidence of the declarant’s state of mind.
Exam Tip 8: An example of a non-hearsay use of evidence is a mechanic telling a defendant that his car’s brakes are bad. The non-hearsay use of this statement is to show the effect on the listener—it has the effect of putting the listener-defendant on notice that he has bad brakes.
Exam Tip 9: Before discussing hearsay exceptions, look for any non-hearsay uses of the evidence and discuss them. Then, even if you find a non-hearsay use for the evidence, proceed to discuss the hearsay exceptions that might
apply.
Double Hearsay, FRE 805
Hearsay within hearsay is not excluded by the rule against hearsay if each part of the combined
statements conforms with an exception to the rule.
Exam Tip 10:Read the facts carefully and look for items of evidence that
contain two layers of hearsay. For example, a written police report containing a
statement made by a witness to a car crash would present two levels of
hearsay. The written police report is hearsay and contained within it is the
statement made by the witness, which is also hearsay. In order to admit the
report and the statement within it, both levels of hearsay must be admissible.
the Non-Hearsay Exceptions to consider, FRE 801(d)
a. Prior statements
Prior inconsistent statements
Prior consistent statements
Prior statements of identification
b. Opposing party’s statement
Party opponent—anything the party opponent says is admissible, it does not have to be against her interest
Adoptive admission
Vicarious statements—look for statements made by an employee that can be attributed to an employer
Hearsay Exceptions - Declarant MUST be unavailable, just the list
1) Former testimony
2) Dying declaration
3) Statement against interest—not the same as an opposing party’s statement! This applies to any declarant who is unavailable to testify that makes a statement against her
(criminal or civil) interest
4) Statement of personal or family history
5) Statement against party that caused declarant’s unavailability
Declarant’s availability as a witness immaterial, FRE 803, just list
1) Present sense impression
2) Excited utterance
3) Statement of mental, emotional, or physical condition
4) Statement made for medical diagnosis/treatment
5) Recorded recollection (witness no longer able to testify)
6) Business records
7) Public records
8) Learned treatises
9) Judgment of previous conviction
Constitutional Limitations—The Sixth Amendment Confrontation Clause and Hearsay Statements, and when are they violated with hearsay statements
The Sixth Amendment Confrontation Clause gives a defendant in a criminal case the right to be confronted by the witnesses against him.
The admission of out of court “testimonial” statements (such as hearsay statements) violates a defendant’s right to confrontation if
(i) the witness is unavailable to testify at ta trial and
(ii) the defenses has not had a prior opportunity to cross-examine the witness.
“Testimonial” definition for Confrontation Clause
Statements made to police officers in the course of an interrogation are generally testimonial. However, when the primary purpose of the questioning is to enable police
assistance to meet an ongoing emergency, the statements are not testimonial. If the emergency is over, the statements made during interrogation are testimonial.
Note 8: If the statements are admitted for a non-truth purpose (declarant’s state of mind), the Confrontation Clause does not bar them.
Non-hearsay from prior statements of a trial witness
Prior statements of a trial witness: (Tip: the declarant must be testifying at trial for these to apply.)
1) Prior statement of identification
2) Prior inconsistent statement (made under oath at a formal trial, hearing, or deposition and the
declarant is at trial subject to cross-examination concerning the statement)
3) Prior consistent statement used to rebut a charge of recent fabrication of improper motive/influence
Determining Non-hearsay, the one’s that aren’t hearsay themselves, not the mimic thing
To prove it was said (nonhearsay)
Verbal act or legally operative words (e.g., defamation, words that show contract formation, etc.)
State of mind (e.g., “I’m the Queen of England” to show declarant is crazy)
Effect on listener or reader (Tip: this is usually offered to prove motive or intent.)
Non Hearsay, Opposing party’s statement
Opposing party’s statement (Tip: Don’t make this harder than it is. If a party says something, it can be used against them without a hearsay issue.)
1) Any statement made by the opposing party that is offered against that party
2) Adoptive admissions (statements a person adopts through silence)
3) Agent/employee statements made by the agent/employee offered against the principal during the
existence of the relationship and concerning a matter within the scope of the agency/employment
4) Statements by co-conspirators made during the course of and in furtherance of the conspiracy
HEARSAY EXCEPTION - What is an unavailable declarant
Declarant must be unavailable (i.e., invokes a privilege, is absent from the jurisdiction, is ill or dead, lacks memory, or refuses to testify)
HEARSAY EXCEPTIONS - Declarant must be unavailable (List and all of them explained, but will be piecemealed)
- Forfeiture by wrongdoing (witness tampering): a party engages in wrongdoing for the purpose of making a witness unavailable for trial.
- Former testimony: declarant is unavailable and had given testimony at a former proceeding or deposition, and it is admitted against a party or someone in privity who had the
motive and opportunity to develop the statement. - Statement against interest: declarant is unavailable and made a statement he knew was against his interest at the time the statement was made.
- Dying declaration: Declarant is unavailable, the statement was made while he believed death was impending, it concerns the cause or circumstances of death, and
it is used in a homicide or civil case. Tip: memorize these elements! - Statement of personal or family history (e.g., birthdate and marriage date)
Forfeiture by wrongdoing
Hearsay Exception
(witness tampering): a party engages in wrongdoing for the
purpose of making a witness unavailable for trial.
Declarant must be unavailable (
Former testimony Hearsay Exception
HEARSAY EXCEPTION
declarant is unavailable and had given testimony at a former proceeding or deposition, and it is admitted against a party or someone in privity who had the motive and opportunity to develop the statement.
Hearsay Exception: Statement against interest
declarant is unavailable and made a statement he knew was against his interest at the time the statement was made.
Hearsay Exception Dying declaration:
1) Declarant is unavailable,
2) the statement was made while he believed death was
3) impending,
4) it concerns the cause or circumstances of death,
5) and it is used in a homicide or civil case.
Tip: memorize these elements!
Statement of personal or family history
Declarant must be unavailable
e.g., birthdate and marriage date
HEARSAY EXCEPTION Present sense impression:
Declarant may be available or unavailabl
declarant describes or explains event as it is happening or immediately thereafte
HEARSAY EXCEPTIONS Excited utterance
Declarant may be available or unavailable
there is a startling event, the declarant makes a statement while under the stress of
excitement, and the statement relates to the event.
HEARSAY EXCEPTIONS Then-existing mental, emotional, or physical condition:
Declarant may be available or unavailablE
declarant states his then-existing feelings,
physical conditions, or intent.
HEARSAY EXCEPTIONS Statement for medical treatment or diagnosis
Declarant may be available or unavailable
declarant makes a statement about past or present
symptoms or the cause(s) to get diagnosed or treated.
HEARSAY EXCEPTIONS
Recorded recollection: a
Declarant may be available or unavailablE
a witness has insufficient recollection of the event, but he had personal knowledge
of the event at a former time, made or adopted a statement while the event was fresh in his memory, and can
vouch for the accuracy of the statement when made or adopted
HEARSAY EXCEPTION. Business records
Declarant may be available or unavailable
a record made in the regular course of business at or about the time the event occurred that
contains information observed by employees of the business (or an independent hearsay exception exists).
HEARSAY EXCEPTIONS: Public records, Learned treatises, Catchall” exception
Declarant may be available or unavailablE
- Public records (made by an agency, but not police reports in criminal cases)
- Learned treatises (read into evidence if an expert is on the stand)
- “Catchall” exception (for trustworthy statements)
- Others (reputation about character, familial relations, etc.)
Refreshing recollection
INTRODUCTION OF EVIDENCE
Refreshing recollection: if a witness’s memory fails him, he may be shown a document or
record to jog his memory.
Competency of witnesses
Competency of witnesses: every witness is generally presumed to be competent regardless
of religious beliefs, bias, etc.
Judicial notice ON INTRODUCTION OF EVIDENCE
the court may judicially notice a fact that is not subject to reasonable dispute because it is generally known within the jurisdiction or it can be accurately and readily determined from sources whose accuracy cannot be questioned.
Roles of judge and jury in introducing evidence, what are their respective roles
The judge decides if evidence is admissible. The jury decides issues of authentication and credibility.
INTRODUCTION OF EVIDENCE : Limited admissibility:
Sometimes evidence is admissible for one purpose and not another.
In such a case, a court may give a limiting instruction to the jury.
What is a presumption in evidence?
A “presumption” means that a certain fact is assumed to be true unless the other side provides evidence to the contrary.
In a civil case, a presumption can shift the burden of proof to the party against whom the presumption is directed.
But the burden of persuasion is not affected and it remains on the party who had it originally.
Limitations on Scope of examination in cross examinations, and scope of direct examinations
Scope of examination:
Cross-examination (i.e., the questioning of a witness by an opponent) should only cover matters within the scope of direct examination and matters affecting credibility.
Leading questions (i.e., those that suggest an answer, like “isn’t it true that…”) are permitted on cross-examination.
They are only allowed on direct examination:
(a) to develop preliminary matters (e.g., name and address), (b) for young or forgetful witnesses,
or (c) for hostile witnesses or the adverse party.
The court exercises reasonable control over
the mode and order of questioning witnesses
When can relevant evidence be excluded?
Relevant evidence is admissible but may be excluded
if the probative value is substantially outweighed by a danger of unfair prejudice,
confusing the issues,
misleading the jury,
undue delay,
wasting time, or
needlessly presenting cumulative evidence.
Real, demonstrative, and experimental evidence are permissible in the judge’s discretion.
Is a duplicate of a writing, recording, or photograph ok for evidence?
An original writing, recording, or photograph is generally required, but a duplicate is admissible to the same extent as an original
unless it is unfair to admit it or there is a genuine question about authenticity.
The best-evidence rule
One only needs to present documentary evidence when one wants to prove the contents of a writing. This means that the writing is:
(1) a legally operative document (e.g., a will, contract, etc.), or
(2) the witness learned about the event solely from the writing or record and has no independent knowledge of the event.
Tip: this is often the wrong answer
choice on the MBE.
Are Summaries of data or calculations allowed?
A party may use a summary, chart, or calculation if records are voluminous.
However, the proponent must allow the other parties to examine or copy the originals or duplicates and the court may order them to be produced.
Completeness rule in evidence
When a party introduces part of a writing or transaction, the other party can ask that the rest of it be introduced as well if, in fairness, the rest ought to be considered contemporaneously with it.
By introducing the writing or transaction, the party initially offering the evidence has waived any objections based on hearsay, competency, etc
IMPEACHMENT:
PRIOR INCONSISTENT STATEMENTS
What it is, Is extrinsic Evidence permitted, and is conformation of the witness permitted/required?
If a party makes a prior statement that is inconsistent with her testimony at trial, it may be used for impeachment. Tip: it may also be used as “substantive evidence”
(i.e., the truth of the matter asserted) if it falls within a hearsay exception or exclusion (e.g., prior inconsistent statement or an opposing party’s statement).
Extrinsic evidence may be used only if the witness is given an opportunity to explain or deny the statement at some point. This does not apply if the witness is the opposing party, not in court at all, or if the interests of justice require.
Confrontation: Permitted
IMPEACHMENT:
Bias
What it is, Is extrinsic Evidence permitted, and is conformation of the witness permitted/required?
If a witness is a family member, friend, enemy of a party, paid by the party, granted immunity, or if other circumstances show bias, then that can be used to suggest the witness has motive to lie.
Extrinsic evidence may be used only if the witness is asked about the
facts that suggest bias and the witness denies those facts.
Confrontation: Required
IMPEACHMENT:
CONVICTION OF A CRIME
What it is, Is extrinsic Evidence permitted, and is conformation of the witness permitted/required?
There are two categories of convictions that are allowed into evidence under the federal rules:
(1) felony or misdemeanor convictions where the prosecution is required to prove an act of dishonesty or false statement as part of the crime—these are
automatically admitted, and
(2) felony convictions that meet a balancing test that
weighs the probative value and prejudice.
Extrinsic evidence (the conviction) is permitted.
Note: if more than 10 years have passed since the witness’s
conviction or release from confinement for it, whichever is
later, evidence of the conviction is generally not admissible.
Permitted
IMPEACHMENT:
SPECIFIC INSTANCES OF MISCONDUCT
What it is, Is extrinsic Evidence permitted, and is conformation of the witness permitted/required?
If a witness engaged in a “bad act” that is probative of truthfulness (e.g., lying and cheating) he may be questioned about it on the stand.
Extrinsic evidence is not permitted!
If the witness denies the misconduct, evidence is not admissible to prove that it occurred.
Required (getting the witness to admit it is the only way
to prove the act)
IMPEACHMENT:
SENSORY DEFICIENCIES
What it is, Is extrinsic Evidence permitted, and is conformation of the witness permitted/required?
Anything that concerns the witness’s perception or memory (e.g., if the witness is deaf, blind, has a bad memory, etc.)
can be used to suggest the witness is mistaken.
Extrinsic evidence is permitted.
Permitted
IMPEACHMENT:
CONTRADICTION
What it is, Is extrinsic Evidence permitted, and is conformation of the witness permitted/required?
witness may be impeached during cross-examination if she made a mistake or lied about anything she said during direct examination.
If the witness won’t admit her mistake, extrinsic evidence may be used as long as the fact at issue is not a collateral (irrelevant) fact.
Required (one must confront the witness prior to offering extrinsic evidence
IMPEACHMENT:
REPUTATION OR OPINION FOR TRUTHFULNESS
What it is, Is extrinsic Evidence permitted, and is conformation of the witness permitted/required?
A party may call its own character witness to testify that the witness in question has a bad reputation for truthfulness or, in the character witness’s opinion, that the witness is not truthful.
The witness is extrinsic evidence.
Permitted
Character evidence: What it is and Civil vs Criminal Cases
character evidence is generally inadmissible to prove that someone acted in accordance
with his character.
►In civil cases, it is only admissible in cases
regarding negligent entrustment or hiring,
defamation, and child custody. It can be proven by
(ROS) reputation, opinion, and specific acts.
► In criminal cases, the defendant must open the door
and can use (RO) reputation or opinion evidence. The
prosecution can use (ROS) reputation, opinion, and
specific acts.
MIMIC
CHARACTER EVIDENCE
A defendant’s prior bad acts may be admissible to
prove (MIMIC): motive, intent, lack of mistake, identity,
common scheme or plan.
Tip: MIMIC can be used in criminal and civil cases
Character Evidence and Self-defense cases
A criminal defendant may offer evidence of the victim’s violent character using (RO) reputation or opinion evidence.
The prosecution may rebut by introducing (RO) reputation or opinion evidence of the victim’s or defendant’s character.
Character Evidence: Prior sexual misconduct of a defendant
If a defendant is accused of a sexual assault or child molestation, the court may admit evidence that the defendant committed any other sexual assault or child molestation.
The evidence may be considered on any matter to which it’s relevant, including that he acted in accordance with his
character.
Tip: remember that only specific acts can be offered.
Character Evidence: Prior sexual misconduct of a victim, Criminal Vs Civil Case
►In a criminal case, specific instances can be offered to
prove the source of semen, injury, or other physical
evidence; consent; or when excluding it would violate the
defendant’s constitutional rights.
►In a civil case, evidence is not admissible unless the
probative value substantially outweighs the danger of harm
or unfair prejudice. The court may admit reputation evidence only if the victim places it in controversy.
Expert Witness qualification:
a witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify if it is helpful to the trier of fact and based on sufficient facts or data.
What can an expert rely on when making expert based testimony?
Expert bases of testimony: an expert may base an opinion
on
(1) personal knowledge,
(2) facts that are in the record and made known to the expert by a hypothetical or testimony at trial, or
(3) facts not in the record if they are the kind of facts other experts would reasonably rely on.
Ultimate issue rule, what is the limit of what an expert can opine on.
An expert opinion may embrace an ultimate issue.
But, in a criminal case, an expert witness must not state whether the defendant had the requisite mens rea.
When is a lay witness’s opinion allowed, and their knowledge requirement
A lay witness’s opinion is admissible if it is rationally based on the witness’s perception;
helpful to determining a fact; and not based on scientific, technical, or
other specialized knowledge.
A lay witness must have personal knowledge.
Exclusion of witnesses, Can witnesses be excluded?
At a party’s request a court must order a nonparty witness to be excluded.
However, a court cannot authorize excluding a party, a person whose presence is essential to the claim or defense, or someone authorized to be present.
Authentication of evidence
Authentication: the proponent must produce evidence
sufficient to support a finding that the item is what the
proponent claims it is.
Authenticating Handwriting
Handwriting: to authenticate handwriting, one may use
(1) a lay witness who was familiar with the handwriting
before the litigation,
(2) an expert witness, or
(3) the trier of fact (e.g., the jury may compare the handwriting with an authenticated specimen).
Authenticating a Voice
anyone can authenticate a voice—including a lay
person—even if the person acquired familiarity with the
voice solely for the purpose of litigation.
Authenticating a photograph
Photograph: Anyone who has personal knowledge of the
scene in the photograph may authenticate it. Tip: the
photographer is not necessary to authenticate a
photograph!
Privledge and work product: Spousal immunity, Confidential communications:, Attorney-client privilege, Psychotherapist-patient privilege, Work-product doctrine
Spousal immunity: (1) it applies in a criminal trial, (2) it is held by the witness spouse, and (3) the parties must be married at the time of trial.
Confidential communications: (1) it applies in a civil or criminal trial, (2) it is held by both spouses, (3) the communication was confidential, and (4) it was made during the marriage.
Attorney-client privilege: the privilege applies to confidential communications between an attorney and client (or either’s agent) or prospective client made for the purpose of obtaining legal advice.
Psychotherapist-patient privilege: confidential
communications between a patient and a doctor for
the purpose of diagnosis or treatment are protected.
Work-product doctrine: material prepared for litigation may not be discovered absent a showing of a
“substantial need” and “undue hardship.
Insurance Coverage Exclusion of evidence
nsurance coverage is inadmissible to prove
negligence but may be used for other purposes (e.g., to
show agency, ownership, control, or bias)
Exclusion of Subsequent remedial measures in evidence
Subsequent remedial measures are inadmissible to
show negligence or guilt but may be used for
impeachment, to show ownership or control, or to
show feasibility of precautionary measures if disputed.
Offer for settlement and offer to pay medical bills, policy evidence exclusion
An offer to settle a disputed claim and statements
made during negotiations are inadmissible.
An offer to pay medical bills is inadmissible to
prove liability.
When is a guilty plea inadmissible in evidence
A guilty plea is admissible.
But, an offer to plead guilty,
a guilty plea later withdrawn,
a no contest plea, and
statements made during negotiations that did not result in a guilty plea are inadmissible.
