Evidence Flashcards
1
Q
Relevance
A
Evidence must be relevant to be admissible. Relevant if:
- Probative of (making more or less likely)
- A material fact
2
Q
FRE 403
A
- A judge may use their discretion to exclude evidence if the probative value is significantly outweighed by danger of:
- Unfair prejudice
- Confusion of the evidence
- Misleading the jury
- Undue delay/waste of time, or
- Needless presentation of cumulative evidence
3
Q
Public policy exclusions
A
- Subsequent remedial measures
- Settlement offers or negotiations
- Offers to pay medical expenses
- Plea negotiations
- Liability insurance
- Sexual conduct
4
Q
Subsequent remedial measures
A
- Evidence that D took precaution after injury occurred
-
Inadmissible to show:
- Liability
- Fault
- Defect in product
-
Admissible to show:
- Impeachment
- Feasibility of repair
- Ownership/control (if in dispute)
5
Q
Settlement offers/negotiations
A
- Evidence that D took precaution after injury occurred
-
Inadmissible to show:
- Liability
- Validity of claim
- Amount of a claim
- Impeachment by prior inconsistent statement
-
Admissible to show:
- Impeachment by bias
6
Q
Offers to pay medical expenses
A
-
Inadmissible to show:
- Liability for injuries
- BUT: Statements or conduct accompanying the offer may be admissible
7
Q
Plea negotiations
A
- Not admissible (too prejudicial)
-
Includes:
- Withdrawn guilty please
- Nolo contendere please
- Offers to plead guilty
- Statements made while negotiating a plea
8
Q
Past sexual conduct of the victim
A
-
Criminal cases: generally not admissible in cases involving sexual misconduct. Exceptions:
- Show that D was/was not the source of physical evidence (bruises, semen)
- Show V’s past sexual conduct with D to show consent
- Other circumstances in which exclusion would violate D’s due process
-
Civil cases: generally not admissible, unless probative value substantially outweighs harm to V/prejudice to a party
- Evidence of reputation is admissible only if V brings it up.
9
Q
Past sexual conduct of defendant
A
In either a criminal or civil case in which a defendant is accused of committing an act of sexual assault/child molestation, evidence that the defendant committed any other sexual assault or child molestation is admissible to prove any relevant matter.
Note: c.f. character evidence/specific bad acts.
10
Q
Character evidence (civil case)
A
Inadmissible to prove conduct in conformity with that character trait
- Except if character is an essential element of the claim or defense (e.g., defamation)
- Except if proving past sexual assault in a sexual assault case
But prior bad acts may be admissible for non-character purpose
11
Q
Character evidence (criminal case)
A
-
Character of defendant inadmissible to prove propensity
- Except D may “open the door” by introduce reputation or opinion evidence of her good character
- Prosecution may rebut D’s evidence with character evidence about the same trait
-
Character of victim (V): D may introduce reputation or opinion to prove a defense
- Prosecution may rebut with reputation, opinion or specific acts evidence
- Prior sexual conduct of V is admissible to show that someone else is the source of physical evidence OR to prior relationship → consent
12
Q
Prior bad acts
A
“MIMIC” evidence resembles character evidence but is admissible to show purposes other than propensity:
- Motive
- Intent
- Absence of Mistake
- Identity (or signature modus operandi)
- Common plan
13
Q
Causes of action/defenses where character is at issue
A
- Defamation (defend by truth of defamatory statement)
- Negligent hiring
- Negligent entrustment
- Child custody (fitness to parent)
- Self defense (reasonable belief of deadly harm)
- Entrapment (D did not have predisposition to commit crime; rebuttable by P)
14
Q
Habit evidence
A
A semi-automatic response to a specific and frequent situation. May resemble character evidence, but is admissible:
- For an organization, a habit is a routine practice of the org.
- Look for multiple past occurrences, language like “always,” “every day,” “frequently,” “instinctively”
15
Q
Impeachment by prior conviction
A
Consider both timing and type.
-
Timing:
- Within 10 years: admissible
- > 10 years: probative value must significantly outweigh prejudice and proponent must give adverse party advance notice
-
Type (subject to 10 year restriction):
- Crimes involving dishonesty: admissible
- Other misdemeanor: not admissible
-
Other felony (punishable by > 1 year in prison):
- Of a witness: admissible
- Of criminal D: only admissible if P shows that probative value outweighs prejudice to D
Note: For any “admissible,” note that 403 balancing will always apply.
16
Q
Methods of impeachment of a witness
A
- Dishonest character or prior criminal conviction
- Prior inconsistent statements
- Bias
- Sensory deficiency
17
Q
Requirements for tangible evidence
A
Tangible evidence: documents and physical objects (c.f. testimony evidence)
- Authentication
- Best evidence rule
- Parol evidence rule
18
Q
Authentication
A
Establishing that the item is genuine and what the proponent claims it to be. Generally requires W’s firsthand knowledge or familiarity
-
Physical objects includes weapons, injury, models, photos, X-rays, incident scene, demos. Authenticate by
- Testimony
- Distinctive characteristics, or
- Chain of custody
-
Documents: authenticate by
- Stipulation
- Testimony, or
- Handwriting verification by comparing to another genuine item or by lay opinion
- Self-authenticating documents include certified/public/official records, periodicals, ancient documents (20+ years old)
- Oral statements: authenticate identity of the speaker by testimony
19
Q
Best evidence rule
A
When attempting to prove the contents of a writing, recording, or photograph, the original document or a reliable duplicate must be produced.
-
Exceptions: The original is not required if it is unobtainable, lost or destroyed, opposing party refuses to produce it, or it regards a collateral matter.
- Exception does not apply if lost or destroyed by the proponent in bad faith
- Copies of public records must be certified
- Alternative proof: allowed for public records, voluminous records and party admission
Note: does not apply if merely proving the existence of a document.
20
Q
Parol evidence rule
A
Bars extrinsic evidence of prior or contemporaneous statements that contradict the written agreement (if integrated agreement).
- Integrated writing: intended as final expression of the parties’ agreement; partial okay
- Extrinsic evidence allowed to attack validity or explain terms
21
Q
Refreshed recollections
A
-
Present recollection refreshed:
- Testifying witness can refresh memory by looking at any evidence
- Document itself is offered into evidence)
-
Past recollection recorded:
- Testifying witness once had personal knowledge of…
- But now cannot recall well enough (refreshing attempted and fails)
- Was made or adopted by W when the matter was fresh in memory, and
- Accurately reflects W’s knowledge
- Testimony admissible by hearsay exception
- Document not admitted unless adversary introduces to evidence file
- Testifying witness once had personal knowledge of…
22
Q
Opinion testimony
A
-
By a lay witness: generally not allowed, unless:
- To prove common sense impressions e.g., appearance, intoxication, speed, handwriting
- If based on W’s perception and helpful to clarify understanding of the issue
-
Expert: allowed if scientific, technical, or specialized testimony will help the trier of fact, and:
- Qualified by knowledge, skill, training, experience, or education
- Based on sufficient facts or data personally observed or made aware of (need not be admissible)
- Product of reliable methods reasonably relied on by experts in the field
- Applied the methods and principles reliably to the facts and
- Reasonably certain in her opinion (probably true, no guessing).
- May embrace ultimate issue but not criminal defendant’s mental state
23
Q
Reliability factors (expert testimony)
A
- Generally accepted in relevant scientific community,
- Peer reviewed (capable of retesting),
- Published,
- Low error rate
24
Q
Evidentiary privileges
A
- Spousal
- Immunity
- Marital communications
- Attorney-Client
- Physician-Patient
- Psychotherapist-Patient
- Self-incrimination
- Miscellaneous (by states—e.g., clergy, accountant, etc.)
25
Q
Attorney - Client Privilege
A
-
Protects: confidential communication between client and attorney made with purpose to seek legal advice
- Confidential: client made reasonable efforts to keep communication private; ot made in the presence of unecessary parties
- Communication: underlying facts/evidence aren’t covered
- Term: indefinite, unless waived by client.
- Belongs to: client, but attorney may invoke privilege on client’s behalf.
-
Exceptions:
- Furthers what client should have known was a crime or fraud,
- Disputes between former joint clients
- Dispute between attorney and client
26
Q
Spousal privileges
A
-
Marital communications
- Protects: communications made between spouses
- Term: survives the marriage
-
Belongs to: both spouses
- Spouse can refuse to reveal confidential communications
- Spouse can also prevent the other from revealing the communications
-
Spousal Immunity
- Prevents: spouse from being compelled to testify against spouse in a criminal case
- Term: Applies during the marriage, but can cover communications about events that precede marriage
- Belongs to: witness spouse
-
Neither privilege applies when:
- One spouse is suing the other
- One spouse is charged with a crime against spouse or either spouse’s children
27
Q
Physician - Patient Privilege
A
- Protects: communications made to medical professional for the purposes of diagnosis or treatment
- Belongs to: patient, but medical professional may invoke privilege on patient’s behalf if patient cannot
-
Exceptions:
- Patient puts his condition at issue (e.g., personal injury suit, dispute between physician and patient)
- Disclosure is important to prevent future injury to a person,
- Patient sought to aid planning of crime/tort
- Patient waived by contract
Note: only applies in some states, assume N/A for MBE unless otherwise stated
28
Q
Pyschotherapist - Patient Privilege
A
- Protects: statements made to psychotherapist/licensed social worker
- Belongs to: patient, but therapist may invoke privilege on patient’s behalf if patient cannot
-
Exceptions:
- Result of court order
- Mental condition at issue
- Commitment proceeding
29
Q
Hearsay
A
An out-of-court statement offered for the truth of the matter asserted; inadmissible unless it meets an exception
-
Not hearsay:
- Prior statements of declarant-witness (consistent, inconsistent, or of identification)
- Prior statements of opposing party, including judicial, adoptive, vicarious, or co-conspirator admissions
30
Q
Hearsay exceptions requiring unavailable declarant
A
- Former testimony under oath, provided that opposing party had opportunity and motive to cross-examination
-
Dying declaration
- Statement must be related to cause or circumstances of death
- Declarant need not actually die
- Homicide and civil cases only
-
Statement against interest at the time statement was made
- Statement pertains to collateral matter: admissible
- Statement would subject declarant to criminal liability, need corroborating circumstances of trustworthiness
- Statement of personal or family history
31
Q
Forfeiture against wrongdoing:
A
Applies to hearsay exceptions that require D to be unavailable
- If party engages in wrongdoing for the purposes of making declarant unavailable AND
- Declarant becomes unavailable as a result, then
- Party cannot claim the declarant is unavailable, AND
- The door is open to use anything the declarant said against the party.
32
Q
Unavailable declarant
A
- Applies when declarant is (“PRISM”):
- Exempted from testifying due to privilege
- Refuses to testify
- Incapacity or deceased
- Someplace else and cannot be subpoenaed
- Inadequate memory of subject matter
- Not considered unavailable if party caused unavailability for purposes of preventing testimony
- Unavailability alone will not make any of declarant’s statements admissible; hearsay exception must still apply
33
Q
Hearsay exceptions that do not require an unavailable declarant
A
- Excited utterance—statement about a startling event made while under stress of event
- Present sense impression—statement describing event made during or immediately after
- Statement of present mental/physical condition to prove conduct in conformity; no past state of mind or memories and no statements as to cause of physical condition
-
Statement made for purpose of medical treatment or diagnosis
- Need not be made to medical personnel to qualify; statements about cause okay
- Need not be made by patient; statement of close relation favored for reliability
- Might still be barred by physician-patient privilege
- Recorded recollection—record used to refresh the W; may be admitted into evidence
-
Business records—kept in regular course and made during regular practice of business, near or at the time of the event by one with knowledge;
- Not if made in anticipation of lawsuit
- Medical records qualify if they relate to diagnosis/treatment but not if about liability
- Police reports qualify but hearsay statements therein must meet their own exception
-
Public records about the agency activities, observations by one with a duty to report or findings from a legal investigation; not admissible for use against a criminal defendant
- Absence of record also admissible
