Evidence Flashcards
What makes evidence logically relevant?
Evidence is relevant if:
- tendency to make a fact more or less probable than it would be without the evidence AND
- that fact is of consequence in determining the action (CLEARLY UNDERSTAND)
How is relevant evidence excluded?
403: probative value substantially outweighed by a danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulate evidence.
What is the balancing rule from 403?
Evidence, even if relevant, will be excluded if the danger of unfair prejudice substantially outweighs its probative value
A jurisdiction defines receiving stolen property as (i) receiving control of stolen property, (ii) with the knowledge that the property is stolen, and (iii) with the intent to permanently deprive the owner of the property. A defendant, charged with receiving stolen property after the police found a stolen television in his home, denied that he knew it was stolen. On cross-examination, the prosecutor asked the defendant, “Didn’t you also previously buy a stolen stereo from the same man who sold you this television?” The defendant’s attorney immediately objected.
What is the strongest basis for the defense attorney’s objection?
The probative value of the prosecutor’s question is substantially outweighed by the danger of unfair prejudice.
what is the mercy rule and what are its boundaries?
Criminal D may bring evidence that character is inconsistent with the crime charged (peacefulness vs battery)
But only reputation or opinion, NOT specific incidents (because then we get a collateral trial about that incident)
Limits of the mercy rule
May only introduce evidence re: reputation (general community) or opinion (one person’s opinion) but CANNOT say why, cannot bring up specific incident (because no trials over some collateral matter!)
What is reputation testimony?
reputation testimony – testimony by someone sufficiently familiar with the defendant’s reputation among associates or in the community
What is opinion testimony?
opinion testimony – testimony sharing an opinion on the defendant’s character that is based on personal knowledge and familiarity with the defendant
What effect does it have when a victim’s lawyers brings evidence that the V did not have a character trait (like violent)?
Then it opens the door to the defense introducing evidence regarding the same trait in the defendant
What does Rule 404 say about a criminal defendant’s use of his own character evidence?
May introduce evidence that character is inconsistent with crime charged, but not via specific incidents, only reputation or opinion.
What does 404 say about a criminal D who introduces evidence of V’s character?
May do so if it is relevant’s to D’s asserted defense. Like: V had a violent tendency too.
What does 608 say about when a witness’ truthfulness has been questioned?
W’s character for truthfulness can be rehabilitated only after it has been attached. Opinion or reputation testimony is allowed.
What can prosecution do after D has called a witness who testifies to D’s peaceful etc. character?
Prosecution may XE the W re: a specific act that D committed that relates to the trait OR
Call another witness to provide reputation or opinion testimony about the D’s corresponding bad trait (“no he is not peaceful!!! He’s violent!”)
Can a L “go fishing” with a witness on a hunch about D’s or W’s past bad behavior?
No hunche! L must act in good faith re: past bad acts, no questions based on hunches. That’s trickery.
When may a witness be impeached with a conviction other than for dishonesty?
Under FRE 609, a witness may be impeached by attacking his/her character for truthfulness with evidence that the witness has been convicted of a felony in the last 10 years. But when the witness is a criminal defendant, such evidence is admissible only if the court finds that the probative value of the conviction outweighs its prejudicial effects
When may evidence of a crim D’s prior bad acts be admitted?
Not for propensity, but is admissible IF
- relevant
- noncharacter: MIMIC
- like all evidence: subject to 403
recite the 403 test
when can it be used
, a court may exclude relevant evidence if its probative value is substantially outweighed by certain dangers such as unfair prejudice
CAN be used on ALL EVIDENCE even if otherwise admissible
Under what circumstances may any witness be impeached with evidence of a prior conviction?
If the conviction was for a crime of dishonesty and occurred within the last 10 years. Then the 403 test does not apply.
What are valid bases to challenge a witness’s competence to testify?
- jugdge or juror cannot testify
- age, mental impairment, intox IF NOT able to recall and narrate the occurrence and appreciates the importance of truth
What must a court evaluate re: admissibility if a child is called to restful
Every person, including a child, is generally presumed competent to be a witness until proven otherwise. But if a child’s competency is questioned, then the court must evaluate the child’s:
intelligence
ability to differentiate between truth and falsehood and
understanding of the importance of telling the truth.
If the child is unable to understand the requirement to tell the truth, the child is incompetent to be a witness.
How to authenticate Ancient Document and data compilations
- At least 20 years old when offered
- condition creates no suspicion about authenticity AND
- was in place where authentic document would likely be
How to authenticate public record
Must show: Record was recorded or filed in public office as authorized by law or in office where that type of item is kept
How to authenticate a reply letter
- Document written in response to communication AND
- contents make it unlikely response was written by someone other than recipient of first communication
How to authenticate handwriting
- Comparison – expert witness or trier of fact compares authenticated against disputed handwriting (or fingerprints, hair, cloth fibers) or
- Non-expert opinion – witness with personal knowledge of authentic handwriting not acquired for litigation gives opinion on disputed handwriting
Self-athuetnticatinig documents
- Public documents with official’s signature & authorized by official or seal
- Certified copies of public records & records of regularly conducted activities
- Newspapers, periodicals & official publications
- Documents with trade inscription
- Acknowledged documents
- Commercial papers, including signature & related documents
When must an item of evidence be authenticated?
Prior to submission at evidence. This can be done in the trial, like asking Officer Reyes to say this is his body cam, then asking to submit.
To what sort of document does the Best Evidence Rule apply?
When proving the contents of a doc which a witness relies upon or whose contents are at issue. If undisputed, photocopy is fine.
Under the Best Evidence Rule, in what way can other evidence be used to prove the contents of a contested document?
- ORIGINAL LOST. originals lost or destroyed (not by proponent’s bad faith); not attainable by judicial process; opponent had original, knew it was required & failed to produce OR content not closely related to controlling issue.
ADMISSION. opposing party in testimony, depo, written stmt confirms contents of doc
PUBLIC RECORD: certf. copy, copy w/ comparison testimony, other evidence if above is not easily obtainable.
What is the Best Evidence Rule and when does it apply?
“no describing documents instead of showing them to us, at least if it really makes a difference, unless you really need to, and duplicates are usually fine”
“document” include film, x-ray, photo, writing
Limits testimony about what was in a document: Show us the document (or a reliable copy)!
Duplicates (mechanized, accurate) are fine unless there is some Q about reliability of copy or reason we need original
Rule is only implicated in two narrow situations:
- when a witness is relying on the document while testifying, or
- when the contents of the document are at issue (e.g., a written agreement in a breach-of-contract dispute, a will in a probate action).
When is evidence of a remedial measure inadmissible?
If it was done AFTER the cause of action incident occurred and is being used to prove negligence or other culpable conduct, product defect, need for warning or instruction.
IS admissible to prove that precautionary measures feasible, person did think they owned the danger sidewalk, or to impeach witness
Does evidence generated by a dog or automated machine fall under the hearsay exception?
No, though it is admissible, it does not fall under the exception because it’s not a person’s assertion and therefore is not hearsay.
The must a remedial measure be undertaken to be excluded?
Evidence of a remedial measure is inadmissible if it was undertaken by the defendant after the plaintiff was injured. A remedial measure undertaken before the plaintiff was injured is not subject to exclusion.
When is a statement by an unavailable declarant-witness admissible?
OOC stmt admissible as substantive evidence if (1) the declarant testifies and is subject to cross-examination at trial and (2) the declarant’s statement satisfies any of the following criteria:
- it is INCONSISTENT with the declarant’s testimony and was given under penalty of perjury at a trial, hearing, deposition, or other proceeding
- it is CONSISTENT with the declarant’s testimony and offered to (1) rebut an allegation that the declarant recently fabricated that testimony or has testified due to recent improper influence or (2) rehabilitate the declarant’s credibility when attacked on other grounds or
it identifies a person as someone the declarant perceived earlier.
What is the hearsay exception for a judgment of a previous conviction?
May introduce judgment of a previous conviction if:
- entered after trial or guilty plea
- felony (punishable by >11y ordeaht)
- admitted to prove any fact essential to judgment ANNNNS
- judgment was against D, when offered by prosecutor in crime case for purpose other than impeachment
May a defendant introduce their acquittal in a criminal trial as evidence of innocence of that crime in a later trial?
there is no exception for judgments of acquittal because they do not establish innocence—they merely establish that the prosecution failed to meet its burden of proof.
Is a photocopy considered a reliable duplicate under the BER?
yep sure is
What is a prior inconsistent statement?
a past statement that is contrary to a witness’s present testimony.
Is a prior inconsistent statement admissible to prove the truth of the matter in the statement (i.e. as substantive evidence?
Generally not admissible because it is hearsay, UNLESS (not hearsay) IF
- stmt given under penalty of perjury at a proceeding AND
- delcarant of statement testifies and is subject to XE at current trial
When may a witness (not D) be questioned about his plea deal related to the case?
A witness can be impeached (i.e., discredited) with evidence of self-interest or bias that may motivate the witness to testify falsely—e.g., benefits received in exchange for testimony. Since such evidence bears on the witness’s credibility, it can be raised on cross-examination or introduced extrinsically through other sources
Does a jury ever decide whether evidence is admissible?
No, that takes away the whole point, dumbass–and admissibility is a question of law.
What happens when a factual question (was the witness excited when he exclaimed) that must be decided when it decides what is admissible?
The judge decides both the question of fact and the issue of admissibility
Does the rules of evidence apply to arguments over admissibility?
No, they don’t–infinite regress. That’s why we holding ev. hearings outside the presence of the jury.
Who decides whether a witness is credible and how seriously their testimony should be taken?
credibility and weight of testimony are jury questions
Can you appeal a case based on an evidentiary mistake?
- If you preserve the error by objecting a trial, give judge a chance to fix: objection or offer of proof works
(unless plain error, obvious on face, prevent miscarriage of justice–rare) - ALSO mistake must not be harmless error–must change outcome
What does Rule 105 say about admitting evidence that has both legitimate and illegitimate use?
You can request the judge give the jury a limiting instruction on using the evidence in a certain way only. (if it works against you)
What does Rule 106 say about completeness?
If opponent introduces part of written statement, you may introduce other parts if necessary to give balanced view of the document. Can so it right then, don’t have to wait until your case. Can introduce the rest even if otherwise would be inadmissible.
What is the judicial notice doctrine?
Judge can tell jury that an adjudicative fact they’d otherwise have to decide is a given.
When there is no reasonable dispute over the fact:
“That year July 4th was a Friday” don’t need to have a witness show a calendar
“Austin is west of Houston”
Civil “you are instructed to find that SFO is further south than Oakland”
Criminal: can never direct a jury to find anything. Can say “may find that NY is north of DC”
what is an offer of proof?
It’s the term for an objection made to exclude evidence that the court is including.
Mya the court call and question witnesses?
yes, but then everyone gets to XE them
And every party can object outside of hearing of jury
Can you repeat a question of a witness?
Only if they have not already answered it
Will a witness be excluded from the courtroom?
If you request it and
they don’t have a right to be there (like a crime victim, party, or witness essential to the presentation of the case, like investigating police officer)
Two parts of burden of proof
- burden of production: enough evidence to get to a jury
- burden of persuasion: convincing the jury that your case it right)
What does a presumption do?
Shifts the burden of production to a different party
but NOT the burden of persuasion
EX: prove someone got a letter. They can just refuse to answer
So we say: P1 says they mailed, photo of stamp, correct mail
P2 then has burden of production to show they did not– can’t just stonewall. If can’t judge may tell jury to presume the letter arrived because P2 could not show anything to the contrary.
What is the presumption when someone seems to have destroyed evidence?
Presume the evidence would have been adverse to you
What is an irrebuttable presumption?
It’s not like burden of production etc.–
Irrebuttable presumption is just a rule of law, often created by statute
regular burden-shifting of presumption is of rebuttable presumptions–“we will assume A unless defendant can show something otherwise” “okay now he showed us otherwise so prosecution has to show something different”
Is 403 titled in favor of admission or exclusion?
Tilted in favor of admission of evidence. Evidence to be admitted unless there is very low probative value compared to a substantial risk of problems: confusion, delay, unfair prejudice, etc.
Not used a lot! Sometimes used with cumulative evidence. “We have lots of evidence he was in NYC on the day, we don’t need to hear he may have been at a furry convention”
104b–if gonna be clear to jury if evidence is relevant or not based on another fact, what?
Let the jury decide–they can ignore the evidence if the other judgment makes it not relevant
Character evidence rule encourages or discourages character evidence to show action in conformity with the crime? “Believe he murdered the V because he’s a murderer” “he drove careflfessly because he’s a careless man”
Character evidence rule generally prohibits evidence admitted to show that the D has a character to do a certain crime.
“bank robbers gonna rob banks”
WHY?
-too prejudicial, not that probative (sometimes people stop), we aren’t sure how well character evidence works)
Character evidence is considered to have low probative value and be highly prejudicial. A douchey person isn’t necessarily a cimrinal. Etc.
WITH EXCEPTIONS. –narrow. only prove through reputation and opinion testimony
How do you prove a character trait, in the exceptions to the ban on character evidence?
-reputation (general in community)
-opinion (general opinion about you from one person, up to “is he a violent man”)
CANNOT USE SPECIFIC EXAMPLES because we don’t want a collateral trial
DIFFERENT: if character is an issue in the case, like defamation or child custody, so not about propensity (in rare civil cases, not criminal)
When can you make a propensity argument?
- CIVIL. Almost never do propensity in civil cases (unless char trait is relevant in case, like defamation)
a. sex crimes and child abuse: prosecutor or civil P can introduce evidence of prior acts
b. R608 truthfulness propensity - CRIMINAL cases can sometimes.
a. General, Pros not allowed to introduce trait of D (he has 5 theft convictions)
b. Mercy rule: Crim D can introduce his own trait in defense: he cannot be guilty of battery, he is super chill. He can’t have embezzled, he’s super honest, talk to all these people. Criminal Ds get extra latitude. D cannot bring specific acts, just opinion. HOWEVER Pros. can XE witness and then ASK about specific incidents, but can’t say anything other than yes or no. “are you aware that D hit hit mom 2 years ago?” “Yes” not arguing. Do not have to prove, but have to have good faith about the incidents. No side trials.
BUT THIS OPENS THE DOOR, the prosecution then can rebut the evidence D introduced: D is violent! Here’s a witness! His opinion is this is a violent man! But can’t do incidents UNLESS in XE on D’s witness where he can ask about specific incidents from the past.
c. D may introduce evidence of pertinent character trait on part of V. (Happens when arguing that purported victim started it, etc.) “This V is very violent!” Rare that the character of the victim is relevant.
If D goes after the victim:
i. Prosecutor can introduce evidence that V is not violent. Only reputation, no specific acts.
ii. Can ALSO bring evidence that D has same trait that he accused victim of having. (no specific acts)
608 (404 points to this): character for truthfulness to impeach a witness who is being untruthful (yes, it’s a propensity argument, ONLY allowed for a LIARRRRR)
When can bring evidence of past crimes or wrongs?
when it’s another use than propensity: MIMIC
Motive. You killed A because he knew you used to beat B?
Intent. not conduct
Mistake (absence of it): makes no sense that this happened a million times, could not be mistake
Identity: M.O. if you have a certain way of acting that shows it’s you. Like here is your weird speech patter you used that last time you killed someone.
Common scheme or plan
When you want this, court uses 403 test
If they allow it in, can ask for a 105 limiting instruction
What is the different between propensity evidence (restricted) and habit evidence?
Habit evidence is routine, automatic, specific. Not “he is violent” but yes “he takes the same route to work every morning”
Distinguish; how specific and focused is the evidence?
Habit evidence is…
a person’s particular routine reaction to a specific set of circumstances
admissible to prove CONFORMING conduct
can include organizations habits
is at least sometimes admissible in criminal trial
MIMIC evidence can get it evidence of _____________
prior bad acts
who can testify?
- anyone with personal knowledge of something relevant to case
- is willing to swear to tell the truth (and can understand what truth means, competency)
(comes states have special rules, like min age)
(some states have deadman’s statute: limit ability to testify re: event w/ dead person)
