Evidence Flashcards
EXAM! Evidence Q approach:
1) Underline cause of action - civil or criminal?
2) Situate proceeding - direct? cross? redirect?
3) Then ask: what is the purpose for which evidence being offered - substantive? impeachment?
4) Then ask: why is this piece of evidence relevant?
When do FRE NOT apply?
FRE don’t apply in:
1) court preliminary determinations re. questions of fact (i.e. qualification of a person to be a witness; the existence of a privilege; or the admissibility of evidence)
2) grand jury proceedings
3) proceedings involving sentencing, extradition, bail and probation
Definition of relevance?
Evidence is relevant if it has any tendency to make any fact of consequence to the determination of the outcome more or less probable than it would otherwise be.
Relevant evidence is: MATERIAL (“of consequence”) + PROBATIVE (“any” tendency to make the proposition more or less likely)
Admissibility of evidence - irrelevant evidence?
Irrelevant evidence is always inadmissible
Admissibility of relevant evidence?
All relevant evidence is admissible UNLESS:
1) it’s kept out by an exclusionary rule OR
2) it’s probative value is substantially outweighed by unfair prejudice, confusion of the issues, misleading the jury, undue delay, waste of time, repetitive evidence.
EXAM! Unfair surprise is not a valid ground to exclude evidence.
Timing/admissibility of evidence?
If evidence involves some time, event, or person OTHER than that involved in the present case, it is generally INADMISSIBLE.
EXCEPTIONS:
1) P’s prior accident history - may be admissible if it tends to show something other than carelessness (i.e., evidence of similar previous false claims; evidence of previous injury to same body part).
2) Similar accidents or injuries cased by the same event or condition and occurring under substantially similar circumstances is admissible to prove: the existence of a dangerous condition; that the dangerous condition was the cause of the present injury, and that D had notice of the dangerous condition (if accident occurred before P’s accident).
* NB: absence of similar complaints admissible to show D’s lack of knowledge.
3) previous similar acts admissible to prove intent/motive
4) sales of similar property around the same time admissible to prove property value
5) rebutting a claim of impossibility
6) causation
7) habit/business routine evidence - consider (1) frequency of conduct; and (2) particularity of circumstances
8) industry custom as evidence of standard of care
EXAM! Ask yourself - why is evidence being admitted? for what purpose?
When is judicial notice appropriate?
Appropriate when a fact is indisputable or can be verified through specific scientific principles. Court may take JN of facts that are: (1) generally known in the court’s jurisdiction or (2) facts which are capable of accurate and ready determination.
What is the court’s effect on a judicially noticed fact?
Criminal case: judge will tell jury that they MAY but are not required to take a JN fact as conclusive.
Civil case: jury must take JN fact as conclusive
HEARSAY definition/strategy
An out of court statement offered for the truth of the matter asserted.
1) Isolate the statement
2) determine who Dec is that made statement
3) Party or non party? if party - admission. Non-party - purpose for admission?
Refreshing recollection
Anything can be used to refresh recollection - a writing or asking a leading question!
Opposing counsel allowed to see the doc used to refresh, conduct cross, AND introduce relevant portions of that doc into evidence.
Information Sources Permitted in Expert Testimony?
information received from ANY SOURCE is allowed, provided that it is the kind of info reasonably relied on by other experts in the field. (Can be inadmissible evidence)
Expert vs. lay witnesses
Lay witness - may testify to ANYTHING that is rationally based in W’s perception. Must be a percipient eye witness. No legal conclusions permitted however.
Experts - may base their opinions on personal observation, authoritative text, or facts which are reasonably relied upon by other experts in the field. Personal knowledge is NOT required in order to testify. May testify to facts known to him or made known to him at or before trial.
Character Evidence - Criminal Case! 5 RULES
GENERALLY, character evidence is inadmissible UNLESS and UNTIL D opens the door. Three types allowed - ROSA (Rep, opin, specific acts).
1) NO propensity evidence: Pros cannot intro any evidence of D’s bad character if the purpose is to show D acted in accordance therewith.
2) D ALLOWED to present evidence of relevant good trait to establish he acted in conformity with that trait.
3) if D presents evidence of good trait, D OPENED DOOR. Pros may rebut to show evidence of bad character.
4) Evidence of prior crimes NEVER admissible to show that they acted unlawfully again. HOWEVER - MIMIC reasons allowed (motive, identity, absence of mistake, intent, common plan or scheme) - subject to R403; Pros may use MIMIC evidence in its case in chief.
5) if D testifies, AUTOMATICALLY places truthfulness/untruthfulness at issue. Pros may introduce evidence to establish that D is a liar.
Character Evidence - Civil Case! 3 RULES
GENERALLY, character evidence is inadmissible UNLESS it is directly in issue, or it is an essential element of P’s claim or defense.
1) NO propensity evidence - you cannot introduce any evidence of a character trait of a party to show that they acted in conformity therewith during the event that gave rise to the litigation.
2) If litigant has other purpose for introducing character evid/it’s relevant, then general rule will not keep it out (e.g., directly in issue, essential element of P’s claim or defense - most tested: defamation, child custody cases, negligent entrustment, hiring and retention)
3) if a party testifies, AUTOMATICALLY places character for truth at issue.
Evidence of Victim’s Character
INADMISSIBLE for propensity.
BUT may be offered for a non-propensity purpose - to prove D’s state of mind at the time of altercation (e.g., D knew at the time of fight that V had a violent rep or had committed violent acts in the past).
Definition of Habit evidence?
Habit is a repeated response to a particular stimulus/set of circumstances. Habit evidence will be admissible to show a person always does something and probably did that same thing again.
Fact pattern trigger words: invariably, automatically, always, repetitively, regularly, customarily, habitually.
When is bolstering allowed?
Not allowed UNLESS/UNTIL W has been impeached (becomes rehabilitation)
BUT if any other reason for introducing good character evidence (i.e., in issue), permissible.
Impeachment! 5 TYPES
1) prior inconsistent statement (ONLY impeachment evidence; not substantive UNLESS given under oath as part of another proceeding - then Subst. & Impeach.)
2) use of bias/motive to misrepresent (material! extrin. evidence allowed here but must first be asked about facts showing bias on cross)
3) use of a prior conviction (if crime of dishonesty - comes in. if serious crime (felony with punishment more than 1/yr), use to impeach if passes R403 BUT cannot be too remote (more than 10 years)) [no juvenile convictions; no constitutional defective convictions]
4) specific acts of misconduct bearing on un/truthfulness (specific acts of lying which didn’t result in convictions can be asked about on cross but NO extrinsic evidence.)
5) bad rep in the community for truth (extrinsic evidence allowed - i.e., may ask W about D’s prior arrests.)
6) sensory deficiencies!
NB: cannot use evidence of W’s own prior ARRESTS against W –> counts as prior bad acts/inadmissible.
Collateral matter rule
if W testifies on a collateral matter/nothing to do with case, opposing counsel not allowed to introduce extrinsic evidence if sole purpose is to prove W is wrong re. this minor point (PURPOSE: WASTE OF TIME).
Non-hearsay?
Statements that do not meet def of hearsay – e.g., verbal acts or legally operative facts (words of K or defamation); verbal statements to show Dec’s insanity OR knowledge; statements to show effect on listener or reader (proving notice in a negligence case); statements offered for impeachment.
Hearsay Exemptions! Not hearsay
Statements of an opposing party/admissions (judicial statements; adoptive statements - silence, vicarious statements - agents, employees, authorized spokesperson if within scope of employment/agency AND made during existence of r/ship, partners, co-conspirators)
certain prior statements of Ws subject to cross;
prior inconsistent statements made under oath;
prior identifications;
prior consistent statements that rehab a W
Hearsay exceptions! (when declarant is not a party)
W can be EITHER AVAIL or UNAVAIL:
Present sense impression;
excited utterance (look for exclamation points!);
statements re. mental/physical condition;
statements re. medical diagnosis or treatment;
recorded recollection;
business records (record must have been made in ordinary course of biz and biz must regularly keep such records);
public records and reports (but NOT police observations in crim cases)
ancient docs (must be prepared before Jan 1, 1998)
W MUST BE UNAVAIL at trial:
Former testimony;
Dying declarations (homicide OR any civil case, NOT attempted murder)
statements against interest;
statements of personal/family history
statements offered against party procuring Dec’s unavailability (party’s motivation MUST have been preventing them from testifying)
When is a W/Declarant unavailable?
PRISM P - privilege R - refusal to testify I - incapacity or death S - subpoena (failure to comply) M - memory (lack of)
Adoptive statements by a party opponent
if at any time a party hears an accusation and fails to protest and the judge determines that a reasonable person would have protested, then both the accusation and the silence are considered an adoptive statement of a party opponent.
Evidence of subsequent remedial measures (SRM)
Inadmissible to show negligence, culpable conduct, design defect or need for a warning.
SRM will be admitted to show ownership/control, feasibility of a precautionary measure, or to impeach credibility.
Laying a foundation
Before an OBJECT is admissible, proponent must present additional evidence to help establish that the evidence is what the proponent claims it is – have to lay a foundation.
What is the Best Evidence Rule?
(Usually wrong answer on MBE)
Applies when you are trying to prove the contents of a writing, recording or photograph. It is a preference for the original - must be produced as the best evidence at trial or shown to be unavailable if the terms of the writing are material. Secondary evidence of the writing is permitted by only after showing the original is unavailable.
Spousal Privileges: Confidential Communications Privilege
Applies in CRIMINAL AND CIVIL.
Protects confidential comms made between the spouses during marriage. Does not protect comms made prior to/after marriage.
BOTH SPOUSES HOLD this privilege - privilege survives death/divorce.
Spousal Privilege - Testimonial Priv
Applies in CRIM CASE ONLY.
Protects/blocks adverse testimony based on knowledge/comms, observations, or impressions made before/during marriage so long as the parties are married at the time of trial.
WITNESS SPOUSE = HOLDER.
Priv lost upon death/divorce.
D’s prior similar acts of sexual assault admissible
ONLY EXCEPTION TO NO PROPENSITY USE RULE.
ADMISSIBLE in a CRIMINAL CASE in which D is charged with sexual assault/may be considered on any matter of relevance.
Public Policy exclusions
SRMs
Authentication of Writings and Spoken Statements
Generally, writing/evidence of its content will not be admissible unless authenticated by proof that writing is what proponent says it is. Proof = sufficient to support a jury finding of genuineness.
Methods of Authentication (writings)
Parties may admit genuineness by the pleadings, by stipulation, or by other evidence:
1) opponent’s admission
2) eyewitness testimony (anyone who saw doc executed or heard it acknowledged)
3) handwriting verifications (lay witness with familiarity in the normal course of affairs; expert who has compared writing to samples; jury’s comparison to samples).
4) ancient documents (at least 20 years old; condition that creates no sus as to authenticity; found in place likely to be kept)
5) reply letter doctrine (authenticated by evidence that it was written in response to a communication sent to alleged author).
6) photos and videos (admit only if ID’d by W as a portrayal of certain relevant facts & verified by W as a fair and accurate representation of those facts - do not need to call photog/videog. W familiar with scene, object, person is ok).
* NB: if camera unattended, may be admitted if properly operating at relevant time and that media was downloaded/developed from that camera).
7) xray/ECG - need to show chain of custody; process is accurate; machine was working; operator was qualified.
Compare authentication of writings with oral statements
For authentication of oral statements only admissible if said by a particular person: need to authenticate identity of speaker!
1) voice authentication - can be ID’d by opinion of anyone who heard voice at any time
2) phone convo - any party who testifies (1) they recognized the voice; (2) speaker had knowledge of certain facts that only a particular person would have; (3) they called a particular person’s number and a voice answered as that person or persons residence; or (4) they called a biz and talked with a person answering the phone about matters relevant to the biz.
Self-authenticating documents
Writings that prove themselves:
- domestic public documents bearing a seal/similar foreign public documents
- official publications
- certified copies of pub records or private records on file in a public office
- newspapers and periodicals
- trade inscriptions and labels
- acknowledged (notarized) docs
- commercial paper
- biz records, ESI if certified and proponent gives reasonable notice to adverse party
When does the best evidence rule apply? doesn’t apply?
Applies in 2 situations:
- where writing is legally operative or dispositive instrument OR
- where the knowledge of a W concerning a fact results from having read it
Does NOT apply when W has personal knowledge of the fact to be proved, even if the fact happens to also be recorded in a writing
BER: originals vs. duplicates
original - writing itself or any counterpart (film negative/print out of email)
duplicate - exact copy by mechanical means (admissible to same extent of originals unless: circumstances make it unfair or genuine question as to authenticity).
handwritten copies are NOT duplicates - they are secondary evidence admissible ONLY if original/dup unavailable.
Exceptions to BER
Summaries of voluminous records - can submit summaries, charts, etc.
Certified public records
Writing is collateral to litigation
Testimony/admission of an opponent
Real evidence
Actual physical evidence - must be relevant/authenticated
WITNESSES - competency
Generally, presumed to be competent until the contrary is established
Competency under FRE:
- W has personal knowledge of matter they’re testifying about
- W must give oath/affirmation to testify truthfully
Modern Modifications to CL Disqualifications:
- Children - competency depends on capacity/intelligence of child (judge decides)
- Insanity - insane person may testify if they understand they have to speak truthfully and have capacity
- Judge /jurors cannot testify before jury in which they are sitting
EXAM! Watch for comms b/w dr and client during exam at attorney’s request.
- NO patient-phys privilege bc no treatment contemplated!
- ATTORNEY-CLIENT PRIV WILL APPLY to comms as long as dr is not called as a testifying W.
EXAM! Priv is not waived when someone wrongfully discloses info without the priv holder’s consent. Similarly, waiver by one joint holder does not affect the right of the other holder to assert the priv.
EXAM! learned treatises are admissible only if introduced in the context of expert testimony
EXAM! biz records often present hearsay within hearsay problem! make sure all statements can come in.
EXAM! Distinguish federal rule and traditional rule for dying declarations
Traditional rule - (1) required Dec actually die; and (2) could not be used in civil cases.
When juror may testify:
- extraneously prejudicial info was improperly brought to jury’s attn
- outside influence
- mistake on verdict form
- juror made clear statement of racial animus to convict a criminal def
Dead Man Acts
Civil case! interested person is incompetent to testify to a personal transaction or communication with deceased, when such testimony is offered against the representative or successors in interest of the deceased.
Interested means stand to gain/lose from judgment or judgment could be used against them in a subsequent action.
Leading questions
Generally allowed only on CROSS.
However, MAY be allowed on direct:
- to elicit prelim/intro matter
- W needs help responding bc of memory loss/immaturity/phys/mental weakness
- W is hostile/adverse/ or W affiliated with adverse party
Scope of cross examination
Generally limited to scope of direct; matters that test credibility of W
Refreshing recollection - PRESENT recollection revived
W may use any writing or object for the purpose of refreshing their present recollection. May not read from it while testifying because writing is NOT in evidence.
Whenever W has used a writing to refresh their memory on the stand, adverse party entitled to:
- have the writing produced at trial
- cross examine W about writing
- introduce portions of writing into evidence
If W refreshed before taking the stand, adverse party entitled to above only if court decides justice requires.
In a CRIM case if pros fails to produce writing, judge MUST STRIKE W’s testimony and if justice requires, declare mistrial.
Recorded recollection - PAST recollection recorded
when W states they have insufficient memory of event to testify fully even AFTER consulting a memo/record given to them on the stand, record itself may be READ INTO EVIDENCE if proper foundation is laid. Foundation must include proof that:
- W has insufficient recollection
- W had personal knowledge
- Record made or adopted by W
- Record made when matter was fresh
- Record accurately reflects W’s knowledge/W vouches for accuracy of record
EXAM! Recorded Recollection cannot be admitted into evidence as an exhibit unless offered by adverse party.
Opinion testimony generally
Generally, prohibit admissibility of opinion evidence except in cases where courts are sure that it will be necessary or at least helpful.
Opinion testimony by lay witnesses
Generally inadmissible. Admissible when: (1) rationally based on W’s perception; (2) helpful; (3) not specialized knowledge
E.g., allowed re:
- general appearance/condition of a person
- state of emotion of a person
- matters involving sense recognition
- voice/handwriting ID
- speed of a moving object
- value of W’s own services/property
- rational/irrational nature of another’s conduct
- person’s intoxication
Not allowed re: AGENCY r/ship or CONTRACT existed bc legal conclusions.
Experts
For expert testimony to be admissible:
- subject matter must be one where scientific/technical/specialized knowledge would assist trier of fact
- opinion must be based on sufficient fact/data
- opinion must be product of reliable principles/methods
- expert must have reliably applied principles and methods to the facts of the case
Qualification - must be qualified as expert = have specialized knowledge/training/skill/edu.
Property factual basis:
- personal observation
- facts made known to EW at/before trial
- facts of a type reasonably relied upon by other experts.
Judge is trapper/gatekeeper for expert testimony- DAUBERT factors
TRAP - 4 daubert factors courts use to determine reliability of experts' principles/methods: T- testing of principle/methodology R - rate of error A - acceptance by experts in same field P - peer review
Impeachment/discrediting a W
ANY party may impeach
EXAM! re. impeachment - avoid these wrong answers reflecting the old common law rule which prohibited impeaching your own W unless the W:
1) is an adverse party or identified with an adverse party
2) is hostile and affirmatively uncooperative
3) is one whom the party is required by law to call or
4) gives surprise testimony that is affirmatively harmful to the party calling them
EXAM! A W’s present lack of memory of a fact is generally NOT inconsistent with a prior statement relating that fact. On the other hand, if the W remember the fact on the stand, but didn’t remember the fact in the prior statement, the earlier lack of memory is generally considered inconsistent.
excited utterance
Statement made while under stress of excitement of startling event
present sense impression
statement made concurrently with perception of event described
present state of mind
statement of then-existing state of mind, emotion, sensation (usually introduced to show intent. Admissible when state of mind is a material issue/show Dec’s subsequent acts).
present bodily condition
spontaneous declaration of physical symptoms
statement for medical diagnosis or treatment
statement of PAST OR PRESENT physical condition or the cause of the condition made for the purpose of diagnosis or treatment.
recorded recollection
record by W who cannot now remember the facts, made while the facts were fresh in her mind
business record (or lack thereof)
Record made in the regular course of business, consisting of matters within the personal knowledge of one with a business duty to transmit. Lack of such a record may be used to show nonoccurence of event.
public records and reports/absence thereof; records of vital statistics.
Records and reports of public agencies regarding their activities, and records of births, deaths, marriages etc. Absence of public record is admissible to show nonexistence of matter.
Judgments
A copy of a judgment of a prior felony conviction is admissible to prove any fact essential to the judgment. In a criminal case, may be used for this purpose only against the accused.
Ancient documents
Statements in authenticated docs prepared before Jan 1, 1998.
Documents affecting property interests
Statements in a doc affecting an interest in a property (e.g., deed, will).
Learned treatises
Statements from authoritative works admitted if called to attention of expert W and established as reliable authority
Reputation
Rep evidence concerning a person’s character, a person’s personal/family history, land boundaries, or community’s general history.
Family records
Statements of a fact found in family bibles, jewelry engravings, tombstones, etc.
Market reports
Market reports and public complications generally relied on by the public or persons of a particular occupation.
Catch all/residual exception
Catch all has 3 conditions:
(1) hearsay statement must possess sufficient guarantees of trustworthiness - court must consider (1) totality of circumstances; (2) any evidence that corroborates the statement.
(2) statement must be strictly necessary;
(3) proponent must give reasonable notice to the adversary party as to their intent to offer the statement including substance of statement and name of declarant
Confrontation Clause & Hearsay
Hearsay will not be admitted even if meets an exception where:
- statement is offered against accused in crim case;
- dec is unavailable;
- statement was testimonial in nature;*
- accused had no opp to cross dec prior to trial
- Testimonial statement: sworn statement at a prior proceeding; or statements to law enforcement & certain docs.
- Statement to law enforcement - depends on primary purpose
- -> (1) aiding in ongoing emergency = not testimonial
- -> (2) providing info for later prosecution = testimonial (EXCEPT: child abuse victim statements to teachers)
- Affidavits or Written Reports of Forensic Analysis = testimonial / cannot be admitted unless D had opp to cross Dec prior to evidence intro
EXAM: Privileges Application
FED COURT - arising under fed substantive law - privileges are governing by federal common law
FED COURT - diversity jurisdiction - court must apply privilege law of governing law state
Fed Common Law Privs
- Attorney Client priv
- Spousal (testimonial and confidential. comms)
- Psychotherapist/social worker-client priv
- clergy-penitent priv
- govt priv
Confidentiality for privileges
Comm must be shown or presumed to have been made in confidence (not intended to be disclosed to TPs)
Priv waiver
Waived by:
- failure to claim;
- voluntary disclosure of priv matter;
- contractual provision waiving in advance of the right to claim a priv
Priv based on confidential comms is not destroyed because it was overheard by someone whose presence is unknown to parties. In the absence of negligence, even the eavesdropper would be prohibited from testifying.
Attorney client priv
Comms made between an attorney and a client during professional consultation are privileged from disclosure (unless waived or exception applies).
Client must be seeking legal services.
Corporations are clients and statements made by corporate officials/employees are protected if employees were authorized or directed by the corp to make the statements.
Priv applies to communications ONLY. Does not apply to underlying info, pre-existing docs, or physical evidence.
Applies indefinitely.
No atty client priv when:
- atty’s services were sought to aid in the planning or commission of a crime/fraud
- client put legal services at issue
- dispute between atty and client
- issue between parties claiming through the same deceased client
Attorney’s Work Product
NOT subject to discovery except in cases of necessity
Physician patient privilege (state priv only - may apply in diversity actions)
Most states have adopted a physician/patient priv. Confidential info privileged if:
- professional r/ship b/w physician and patient for the purposes of medical treatment
- info was acquired for purpose of diagnosis or treatment
- info was necessary for diagnosis or treatment
Priv belongs to the patient
Main exceptions:
- patient puts their physical condition in issue
- physician’s assistance sought to aid wrongdoing
- dispute between physician/patient
- patient agreed by contract to waive priv
- fed case applying fed law of priv
Psychotherapist/social worker-patient priv
Fed courts recognize comms priv between psychotherapist or licensed social worker and their patient/client.
no priv where patient puts their mental condition at issue
clergy-penitent privilege
federal court and many states
similar to atty client priv
must be made to clergy in capacity as a spiritual advisor
burden of production
party who has burden of pleading usually has the burden of producing/going forward with evidence to make out prima facie case.
burden of persuasion
civil cases: preponderance of the evidence
criminal cases: beyond a reasonable doubt
limiting instruction
when evidence is admissible for one purpose but not another, court MUST, UPON TIMELY REQUEST, restrict the evidence to its proper scope and instruct the jury accordingly - “limiting instruction”
