Evidence Flashcards
Relevance
Evidence must be relevant to be admissible. All relevant evidence is admissible unless excluded by law. Evidence is relevant if it has a tendency to make a fact more or less probable and the fact is of consequence in determining the action. Relevant evidence will not be admitted if its probative value is substantially outweighed by risk of prejudice, confusing the issues, or misleading the jury.
Policy exclusions
Subsequent remedial measures Compromise offers Settlement offers Liability insurance Offers to pay Rape shield
Character evidence: civil
Generally: inadmissible
Exceptions: negligent entrustment/hiring, defamation, child custody. Proved by ROS
Character evidence: criminal
D must open the door. D can offer RO, prosecutor can rebut with ROS.
MIMIC exceptions
D prior bad acts can be admissible to prove: motive, intent, lack of mistake, identity, or common scheme/plan.
Admissible in criminal and civil
Habit evidence
OK to prove that the person acted in accordance with the habit or routine. Courts generally limit habit to proof of relevant behaviors that are not just consistent, but semi-automatic.
Sexual misconduct of victim
Generally: inadmissible
Civil: if probative value substantially outweighs prejudicial effect
Impeachment by felony conviction
<10y: OK if probative value substantially outweighs prejudicial effect
> 10y: ^ AND notice
Hearsay exclusions
Non-assertive conduct Legally operative language Effect on listener State of mind (I am from Mars) Admissions by party opponent - adoptive admission, vicarious admission, co-conspirators Prior inconsistent statement Out-of-court identification Present recollection refreshed
Hearsay exceptions (declarant MUST be unavailable)
Former testimony
Dying declaration - ONLY homicide or civil
Statement against interest
Statement of personal or family history
Statement offered against party who made declarant unavailable
Present sense impression
Statement describing or explaining an event or condition that is made while or immediately after the declarant perceived it
Ancient documents
20+ years old
Excited utterance
Statement made about a startling event while declarant is under the stress of excitement that it caused
Recorded recollection
Witness once knew but now cannot recall well enough to testify. Recording was made when the matter was fresh in the witness’s memory.
Read to jury by offering party. Can only be received as an exhibit if offered by the adverse party
Past medical treatment or diagnosis: personal injury
Doctor-patient privilege is waived b/c you put the condition at issue
Then-existing state of mind
Statement of intent, motive, or plan can prove conforming conduct
Business records exception
(1) kept in the course of a regularly conducted activity, (2) making of the record was a regular practice, and (3) record was made at or near the time of the event by someone with knowledge
Government records: police reports
Can be used against criminal D only to introduce the activities, not what was observed or concluded by an officer.
NOTE: can still come in under the recorded recollection exception if officer is testifying and can’t remember
6A Confrontation Clause
Only applies to testimonial statements.
In determining whether a statement is testimonial, an objective analysis of the circumstances is key, and courts look to the primary purpose of the statement. Statements made under circumstances that would cause an objective witness to reasonably conclude that the statement would be available for use at a later trial (e.g., statements made during a custodial examination to an investigator, or in an affidavit) are testimonial. A statement made to police with the primary purpose of enabling police to help meet an ongoing emergency (e.g., during a 911 call) is not testimonial.
Expert witness admissibility analysis
- Qualified? Knowledge/skill/training + subject pertains to litigated issue
- Relevant?
- Reliable? Sufficient facts + reliable
Confrontation clause & hearsay usage
Use of hearsay by prosecutor violates D’s 6A rights, EVEN IF IT IS WITHIN AN EXCEPTION, if (1) the statement was testimonial, (2) the witness is unavailable, and (3) D hasn’t cross examined them.
EXCEPTION TO TESTIMONIAL: emergency or 911 call
Prior ID
“[a] statement . . . is not hearsay [when] [t]he declarant testifies and is subject to cross-examination about a prior statement, and the statement . . . identifies a person as someone the declarant perceived earlier
