Evidence Flashcards
Impeach by specific instance of misconduct
A witness may be impeached on X by inquiry into specific instance of misconduct probative of dishonesty. If denied, the witness may not be impeached by extrinsic evidence of prior acts.
Impeachment by extrinsic evidence of specific misconduct
A witness may not be impeached by extrinsic evidence of specific misconduct, including real evidence and calling other witnesses.
Can a document used to refresh recollection be offered?
If a witness uses a document to refresh their recollection, the adverse party may offer the document into evidence.
Hearsay
Hearsay is an out of court statement used to prove the truth of the matter asserted. A statement is oral, written, or nonverbal conduct intended to make a communicative assertion. A statement is out of court when it is not made during the proceeding in which it is offered. A statement is offered for the truth of the matter asserted when the truth of statement and thus the credibility of the declarant is important. Hearsay is inadmissible unless it falls within an exception or an exclusion.
Exceptions because theres sufficient reliabiliy
A statement made about a startling event while the declarant is under the stress of excitement that it caused does not constitute hearsay. The event must shock or excite the declarant and the statement must relate to that event. Duration between event and statement is not as relevant as to whether or not the declarant is still under stress.
A statement describing or explaining an event or condition made while or immediately after the declarant perceived it is excepted from the hearsay rule.
A statement of present intent, motive, or plan may be admissible to prove conduct in comformity with that state of mind.
A statement describing past or present symptoms excepted if made for medicial diagnosis or treatment. A statement describing the cause or source of condition is admissible if reasonably pertinent to diagnosis or treatment. The statement need not be made to a physician nor by the patient.
A business record is not hearsay if the record was made as part of a regularly conducted activity during the normal course of business, the making was a regular practice, and the record was made at or near the time by someone with knowledge. Someone must be available to testify as to the standards of recordkeeping in the organization, and opponent must not be able to show that the document gives rise to untrustworthiness. Courts often will look into whether the record appears to be self-serving, and they often will be more skeptical when the records are less regular or made in anticipation of litigation.
Under the recorded recollection exception to hearsay, evidence may be allowed into the record on a matter the witness once knew about but not is unable to recall well enough to testify fully. The record must have been made when the matter was fresh in the witness’ memory. A written document admitted as a recorded recollection may be read to the jury, but may not be received as an exhibit unless offered by the adverse party.
Unavailable
A declarant is unavailable if they refuse to testify, their testimony is subject to a privilege, they cannot be present because of death or illness, or has been unable to be located despite reasonable efforts.
If a declarant is unavailable, former testimony offered under oath where the party whom the testimony is offered against had an opportunity or similar motive to cross examine the declarant.
In a prosecution for homicide or in a civil case, a statement that the unavailable declarant, while believing death to be imminent, made about its cause or circumstances. They need not actually die.
If a declarant is unavailable, statements against interest are excepted from the hearsay rule. Statements against interest for this purpose are defined as those which a reasonable person in the declarant’s position would have made only if they believed it to be true because it was (i) so contrary to the declarant’s proprietary or pecuniary interest; (ii) had so great a tendency to invalidate the declarant’s claim against someone else; or (iii). to expose the declarant to civil or criminal liability. If offered in a criminal case as a statement that may exposed the declarant to criminal liability, the statement must also be supported by corroborating circumstances that clearly indicate its trustworthiness.
A statement offered against a party that wrongfully caused — or acquiesced in wrongfully causing — the declarant’s unavailability as a witness, and did so intending that result, is excepted from the hearsay rule.
Facts of personal or family history, even though the declarant had no way of acquiring personal knowledge about that fact are excepted from the rule. Alternatively, a statement about another person if the declarant was related to the person by blood, adoption, or marriage or was so intimately associated with the person’s family that the declarant’s information is likely to be accurate is excepted. Some facts of personal or family history include birth, adoption, marriage, ancestry, legimitacy, and divorce.
Testimonial
The Sixth Amendment requires a criminal defendant to be able to confront their accuser trhough the Confrontation Clause. The Confrontation Clause requires that testimonial hearsay statements may only be admitted if the declarant is unavailable and the defendant has a prior opportunity to cross examine the declarant. Courts must analyze this objectively rather than subjectively. A statement with the primary purpose of ascertaining past criminal conduct or one which the declarant knows will be used in criminal proceedings is testimonial. A statement made to assist in an ongoing emergency is not. The communication must relate to a factual assertion or disclose information.
Exceptions because probably no reason to lie
A statement of the declarant’s then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition is admissible hearsay. This generally does not include a statement of memory or belief to prove the fact therein unless it relates to the validity or terms of the declarant’s will.
A statement offered to prove the effect on the listener is not hearsay.
Evidence of a person’s habit is admissible to show accordance with habit on a particular occasion. A habit is a person’s routine in response to a specific set of circumstances. Courts generally limit habit evidence to relevant behaviors that are semi-automatic.
Non-hearsay
A statement made by a party-opponent is not hearsay. Rather, the statement is an admission. A statement is not hearsay if the statement is offered against a party and is a statement of which the party has manifested an adoption or belief in its truth. This can be through express or implied conduct.
A statement may be adopted if it was made by a person whom the party authorized to make a statement on the subject; the party’s agent or employee on a matter within the scope of that relationship and while it existed; or by the party’s coconspirator during and in furtherance of the conspiracy. Also, a statement may be adopted through silence if the declarant is aware of the statement and is such that an innocent declarant would be induced to respond.
A declarant-witness who is testifying and available for cross’ prior statement is non-hearsay if the statement is inconsistent with their current testimony and was made under oath at a prior hearing, trial, or deposition. Further, a prior consistent statement of a testiftying declarant-witness is available to rebut a charge of lying, bias, motive, or other rehabilitative purposes
Similarly, a previous out-of-court identification of a testifying declarant-witness made after perceiving the person is nonhearsay. It does not matter whether the witness has present memory of the prior identification.
Character evidence
is not admissible for propensity purposes. Evidence is offered for propensity purposes when offered only to show that defendant has a character trait was thus more likely to act in accordance with that trait on a particular occaision.
Evidence of a defendant’s prior bad acts is admissible for non-propensity purposes such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.
A criminal defendant may offer evidence of their own pertinent trait or the victim’s bad character. If so, opens the door to allow the prosecution to rebut that evidence. In homicide cases, the prosecution may also offer evidence of the victim’s peaceful nature to rebut an allegation they were the first aggressor.
Relevance
Evidence must be relevant to be admissible. Notwithstanding other rules, all relevant evidence is admissible. Evidence is relevant if it tends to make a fact of consequence more or less probable.
Witnesses
A lay witness is generally not permitted to testify as to his opinion, except with respect to common-sense impressions. To be admissible, the opinion must be (i) rationally based on the witness’s perception, and (ii) helpful to a clear understanding of the witness’s testimony or a fact in issue.
An expert witness may testify as to his opinion, provided: (i) the witness is qualified as an expert by knowledge, skill, experience, training, or education; (ii) the testimony is based on sufficient facts or data; (iii) the testimony is the product of reliable principles and methods; and (iv) the witness applied the principles and methods reliably to the facts of the case.
Impeachment
Witnesses may be impeached by convictions for crimes involving fraud or dishonesty. A conviction involves fraud or dishonesty if the elements require proof or admission of an act of dishonesty or false statement. In criminal cases, where the witness is the defendant, only prior convictions for felony offenses where the probative value outweighs the prejudice must be permitted for impeachment purposes. Generally, the conviction must have occurred within the last ten years. If more, the probative value must substantially outweigh prejudicial effect. The proponent must also give the adverse party reasonable written notice.
Policy
When a party takes remedial measures that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct. The evidence may be offered to prove possession or control if disputed.
Compromise offers made by any party are not admissible to prove the validity of a disputed claim, nor are they admissible for impeachment by prior inconsistent statement or contradiction.
Evidence of the payment, offer to pay, or promise to pay medical or similar expenses resulting from an injury is not admissible to prove liability for the injury. Unlike compromise offers, the validity or amount of a claim need not be in dispute. However, factual statements made in connection are admissible.
Generally, pursuant to the “rape shield” rule, evidence to prove the sexual behavior or predisposition of an alleged victim of sexual assault is not admissible in either civil or criminal proceedings. However, in a civil case, evidence offered to prove an alleged victim’s sexual behavior or predisposition is admissible if its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party.
Statements made during the course of an unsuccessful guilty plea bargaining process, withdrawn guilty plea, or plea of nolo contendore, are not admissible. The declarant must have had a reasonable belief they were participating in a guilty plea with a prosecuting authority.
