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.
