Evidence

Question 1

Logical Relevance

Answer 1

Evidence is relevant if it tends to make the existence of any fact of consequence more or less probable than it would be without the evidence.

Question 2

Discretionary Exclusion of Relevant Evidence

Answer 2

A court may exclude relevant evidence if its probative value is substantially outweighed by its danger of unfair prejudice, confusion of issues, misleading the jury, undue delay, or waste of time.

Often arises with evidence that is:

-Emotionally disturbing;

-Repetitive or confusing;

-Admissible for one purpose but inadmissible for another (excluded to avoid risk of jury using evidence for improper purpose.

Balancing Test- for courts to exclude, probative value must be substantially outweighed by the danger of unfair prejudice.

Exceptions- impeachment evidence based on convictions for crimes involving false statements is not subject to discretionary exclusion.

Question 3

Subsequent Remedial Measures

Answer 3

Evidence of repairs or other remedial measures taken after an injury is inadmissible to prove fault, defect, or inadequate warning.

-Remedial measures evidence is admissible to rebut a defense that there was no feasible precaution.

Question 4

Liability Insurance

Answer 4

Evidence of liability insurance is not admissible to prove fault or a party’s ability to pay damages.

-Evidence of insurance is admissible to prove anything else (ownership, control, etc.).

Question 5

Settlements, offers to settle, & plea bargaining

Answer 5

Civil cases- compromises, settlement offers, and related statements (including factual admissions) are inadmissible to prove liability or fault (does not include statements made before the claim or threat of litigation was asserted).

Criminal cases- pleas, offer to settle, and related statements (including factual admissions) are inadmissible to prove guilt.

Question 6

Payment or offers to pay for medical expenses

Answer 6

Inadmissible when offered to prove liability for injuries.

-Related statements, including factual admissions, are admissible (distinguish this from settlement offers).

-Offers to pay medical expenses in exchange for liability release are inadmissible (considered a settlement offer).

Question 7

Similar Occurrences

Answer 7

Evidence of prior similar occurrences concerning the time, event, or person in the present controversy is often inadmissible as irrelevant or due to unfair risk of prejudice (however, similar occurrences may be relevant for non-propensity purposes.

Similar occurrences may be admissible to prove:

1) Causation;
2) Prior accidents demonstrating: a) a pattern of fraudulent claims; b) pre-existing conditions.
3) Intent or absence of mistake;
4) To rebut a defense of impossibility;
5) Value (similar transactions can establish value);
6) Industry custom (to prove standard of care).

Question 8

Habit

Answer 8

A person’s habit may be relevant and admissible to show that the person acted in conformity with that habit on a given occasion.

-Conduct must be highly specific and frequently repeated (a person’s regular response to a specific set of circumstances).

-Look for regular, instinctive, habitual conduct.

(Evidence that a person habitually goes down a particular stairwell two steps at a time could be admissible as circumstantial evidence that she did so at the time n question).

Question 9

Character Evidence in Civil Cases

Answer 9

Evidence of a person’s character is generally inadmissible to prove they acted in conformity with that character on a given occasion.

Exceptions:

-Character at Issue- character evidence is admissible if character is an essential element of a claim or defense (defamation, child custody disputes).

Character can be proved through opinion, reputation, or specific instances of conduct.

-Prior acts of sexual assault or child molestation in cases for similar claims- in cases arising from sexual assault or child molestation, D’s prior acts of sexual assault or molestation are admissible to prove D’s conduct in the present case.

Question 10

Evidence of Defendant’s Character in Criminal Cases

Answer 10

In criminal cases, D may introduce evidence of her good character, which the prosecution may rebut; with limited exceptions, P may not first introduce evidence of D’s character.

DEFENSE- may introduce evidence of pertinent good character.

-Must be pertinent to the charged crime (D’s reputation for peacefulness is irrelevant to a forgery charge).

Method- D may call W to testify to D’s good character based on reputation or opinion (but not specific instances).

P’s Rebuttal- Once D “opens the door,” P may rebut by:

Cross Examination of D’s character W (including knowledge of specific instances of D’s misconduct or prior arrests.
Calling W to testify to D’s bad character (limited to D’s character for the trait in question).

PROSECUTION- may not initiate introduction of character evidence about D (Cannot “open the door”) except:

Sexual Assault/child molestation- P can offer evidence of D’s other acts of sexual assault or child molestation;
If D first offers evidence of victim’s character- P can offer evidence that D has the same character trait.

Direct- reputation and opinion evidence is admissible; evidence of specific instances is inadmissible.

Cross- Reputation, opinion, and specific instances are admissible.

Question 11

Rape Shield

Answer 11

In sexual assault cases ­­(both criminal and civil) special rules limit D’s ability to present evidence of victim’s character.

CIVIL CASES- reputation, opinion, and specific instances of victim’s character are admissible if:

Probative value substantially outweighs unfair prejudice; AND
In the case of reputation evidence, P puts her reputation at issue in some way.
(2-pronged standard).

CRIMINAL CASES-

-Reputation and opinion evidence of victim is inadmissible.

-Evidence offered to prove sexual behavior or disposition of victim is inadmissible.

Exceptions- Specific instances of victim’s sexual behavior is admissible to show:

a) A third party is the source of injury or DNA evidence; or
b) Prior acts of consensual intercourse between victim and D.

Procedure- parties must disclose intent to offer evidence, describe its purpose, and notify the victim 14 days before trial.

Question 12

Specific Instances of Defendant’s Bad Conduct

Answer 12

Prior acts evidence is admissible to prove:

1) Motive;
2) Intent;
3) Mistake (absence of mistake, knowledge);
4) Identity (extremely similar or unique prior act); and
5) Common plan or scheme.

Question 13

Impeachment Approach and Overview

Answer 13

Impeachment casts an adverse reflection on the veracity of a W’s testimony (any party may impeach any W).

Methods of Impeachment:

1) Contradiction;
2) Prior Inconsistent Statement (PIS);
3) Bias or Interest;
4) Sensory deficiencies;
5) Reputation and/or opinion for untruthfulness;
6) Prior acts of misconduct (extrinsic evidence is prohibited);
7) Prior Criminal Conviction.

Question 14

Collateral Matters and Extrinsic Evidence

Answer 14

Extrinsic Evidence- any evidence other than W’s testimony at the current proceeding (includes evidence of prior inconsistent statements made out of court).

Collateral Matter- a fact not material to issues in the case (says nothing about W’s credibility; only used to contradict W).

(W1 testifies he was headed to the store when he saw D commit murder; defense cannot call W2 to testify that W1 was really headed to see his mistress (this is collateral, not material, to the issue of what W1 saw).

Impeachment by Contradiction

Any evidence may be used to show a W has made contradictory statements on material issues.

Question 15

Impeachment by Prior Inconsistent Statement

Answer 15

Establishing PIS- may be established through cross examination or extrinsic evidence (inadmissible if the PIS relates to a collateral matter).

Foundation Requirement- W must have an opportunity to explain or deny the statement.

PIS & Hearsay- If PIS is hearsay, it is admissible for impeachment purposes but inadmissible as substantial evidence (to prove the truth of the matter asserted).

Question 16

Competency

Answer 16

Testifying witnesses must be competent, meaning they must satisfy requirements of basic reliability (witnesses are generally presumed to be competent).

Competency Qualifications:

1) Personal Knowledge- W’s testimony must be based on her own perceptions;
2) Memory- W must have the ability to remember;
3) Communication- W must be able to relay her perceptions, either directly or through an interpreter;
4) Sincerity- W must take an oath or affirm to tell the truth.
(Diminution of any of the above capacities usually goes only to the weight of testimony given).

Question 17

Present Recollection Refreshed

Answer 17

-Use of documents to refresh W’s memory during testimony.

-Anything can be used to refresh W’s memory.

-W cannot read aloud from a document, but can look at it briefly, then continue testimony unassisted.

-Opponent may inspect and offer into evidence anything used to refresh W’s memory.

-Document is not read into evidence.

Question 18

Recorded Recollection

Answer 18

-Contents of a document W previously wrote or adopted is read into evidence.

Requirements:

1) W once had personal knowledge of facts compromising the recorded recollection;
2) Document was written or adopted by W;
3) W wrote or adopted the document when its contents were fresh in W’s memory;
4) W’s memory is insufficient to testify at trial as to the document’s contents (present recollection refreshed was ineffective); and
5) Document was accurate at the time it was made.

Question 19

Lay Opinions

Answer 19

Testimony in the form of opinion is inadmissible unless W qualifies to give either lay or expert opinion.

Requirements for admissibility of lay opinions:

1) Opinion is rationally based on W’s perception;
2) Opinion is helpful to the trier of fact;
3) Not based on scientific, technical, or other specialized knowledge.

(Speed of a car, emotional state of an individual, voice or handwriting recognition, sense recognition, intoxication).

Question 20

Expert Opinions

Answer 20

Experts may provide opinions on facts or issues in the case.

Requirements for admissibility:

1) Helpful;
2) Qualified;
3) Reasonable certainty;
4) Proper factual basis;
5) Reliable principals reasonably relied upon.
(May not render an opinion on D’s mental state in a criminal trial if it is an element of a crime or defense).

Question 21

Attorney-Client Privilege

Answer 21

To be protected, a communication must be:

1) Intended to be confidential; and
2) Made to facilitate legal services.

Exceptions where privilege does not apply:

1) Crime or Fraud;
2) Attorney defending a malpractice claim.

Question 22

Physician-Patient Privilege

Answer 22

To be protected, communication must be:

1) Made for purposes of obtaining diagnosis or treatment;
2) Pertinent to a diagnosis or treatment; and
3) Intended by the patient to be confidential.

Privilege does not apply to:

1) Patient’s condition is a legal issue (personal injury);
2) Physician’s services were sought to aid in crime, tort, or to escape capture; or
3) Dispute between doctor and patient (malpractice).

Question 23

Psychotherapist/Social worker-patient privilege

Answer 23

1) Client intends the communication to be confidential; and
2) Communication is made to facilitate therapy or social work.

Question 24

Spousal Testimonial Privilege (Criminal cases only)

Answer 24

A person whose spouse is a D in a criminal case cannot be:

a) Called as a witness by the prosecution, nor
b) Compelled to testify against his spouse in a criminal proceeding.
Only the W-spouse may invoke the privilege.

Privilege can only be invoked during marriage.

Question 25

Marital Communications Privilege (civil and criminal)

Answer 25

-Confidential communications made during marriage are privileged in any later proceeding.

-Either spouse may invoke the privilege.

-A spouse can lose the privilege if he breaks confidentiality (shares with a third party). Other spouse retains the privilege.

Privilege does not apply to:

1) Suits between spouses;
2) Suits in which one spouse is charged with a crime or tort against children;
3) Suits in which spouses are co-defendants.

Question 26

Authentication

Answer 26

Every item of physical evidence must be authenticated (the proponent must show that the evidence is what he claims it is.

May be proved by any means that serve to establish authenticity.

Self-authenticating evidence- writings that contain identifying information do not need separate authentication (deeds, notarized documents, newspapers).

Question 27

Authentication Issues

Answer 27

Ancient Documents- automatically authenticated if:

1) 20 or more years old;
2) Does not present any irregularities on its face; and
3) Found in a place of natural custody.

Photos- must have personal knowledge to authenticate.

Voice- whether heard firsthand or through a recording, a voice may be identified by anyone who heard the voice at any time.

Non-unique items- item facially indistinguishable from others of its kind (bag of white powder, generic syringe). Proponent must establish “chain of custody” (will be admissible absent large breaks in chain).

Question 28

List of Hearsay Exceptions

Answer 28

Declarant unavailability is required:

1) Former testimony exception;
2) Statements against interest;
3) Dying declarations;
4) Statements of personal or family history;
5) Statements offered against party procuring declarant’s availability.

Declarant unavailability is immaterial:

1) Present state of mind;
2) Excited Utterances;
3) Present sense impressions;
4) Physical condition (for medical diagnosis or treatment);
5) Past Recollection recorded;
6) Business records;
7) Public Records or reports;
8) Judgments and prior convictions;
9) Ancient documents;
10) Documents affecting property interests;
11) Learned treatises;
12) Family records;
13) Market reports.

Question 29

Declarant Unavailability

Answer 29

“Unavailability” refers to the declarant’s testimony (declarant can be in court, but her testimony is “unavailable” because she asserts a valid privilege.

A declarant is unavailable if:

a) Privilege;
b) Death or physical/mental sickness;
c) Refusal to testify despite a court order;
d) Lack of memory;
e) Absent (beyond reach of court’s subpoena power and the statement’s proponent has not been able to procure attendance or testimony).

Question 30

Former Testimony

Answer 30

Testimony given by a person in an earlier proceeding or deposition may be admissible.

Requirements:

1) Declarant is currently unavailable;
2) Declarant’s prior testimony was given under oath; and
3) Party against whom testimony is now offered is either:
a) A party in the previous action and had an opportunity to cross-examine declarant (motive for cross-examining declarant in former hearing must be similar to the current motive);
b) A predecessor in interest of a party in the previous action, in which there was an opportunity to cross-examine declarant and a similar motive for doing so.

Question 31

Statements Against Interest

Answer 31

A hearsay statement is admissible if, at the time it was made, it was against the pecuniary or legal interests of the declarant.

Requirements:

1) Declarant is currently unavailable;
2) Statement was contrary to declarant’s pecuniary, proprietary, or penal interest when made;
3) A reasonable person would not have made the statement unless he believed it to be true.

Question 32

Party-opponent admissions

Answer 32

A party-opponent admission is a statement of a party or a vicarious statement attributable to that party (no requirement that the statement is against declarant’s interest).

A statement against interest is any statement against the declarant’s interest at the time it was made (no requirement that the declarant is a party in the proceeding).

Question 33

Dying Declarations

Answer 33

Only available in civil cases and homicide cases.

Requirements:

1) Declarant is currently unavailable;
2) The out-of-court statement was made under the belief of impending death; and
3) The statement was made regarding the cause or circumstances surrounding the belief of impending death.

Question 34

Present Sense Impression

Answer 34

Requirements:

1) Describes or explains an event or condition; and
2) Is made contemporaneously with the event or immediately thereafter.

(Timing is key. The statement must be made while, or immediately after, the declarant perceives the condition or event described in the statement.

Question 35

Excited Utterance

Answer 35

Requirements:

1) Relates to a startling or exciting event or condition; and
2) Was made while the declarant was under the stress or excitement of the event.

(Declarant’s emotional state is key. Declarant must be under such excitement or stress that one would not normally have an opportunity to fabricate the statement).

Question 36

Statement of Past Physical Condition for Diagnosis/Treatment

Answer 36

Requirements:

1) Statement must be made to medical personnel; and
2) Statement must be pertinent to assisting in the diagnosis or treatment of a condition.
(Related statements, such as an admission, about an injury causing event are usually inadmissible).

(Statement by declarant to an emergency room doctor that she was shot will be admissible, but the identity of the shooter will not, as it is not pertinent to treatment).

Question 37

Business Records

Answer 37

1) A record or transaction made or recorded by a business;
2) Made in the regular course of business;
3) Made at or near the time of the matters described;
4) Made by an employee with personal knowledge of the facts recorded; and
5) Authenticated or certified in writing.

(Police reports or other investigative reports in criminal cases are inadmissible as business records or public records).

Question 38

Public Records

Answer 38

Public office or agency records are admissible if the record:

1) Describes the activities of a public office or agency;
2) Describes either:
a) Matters observed pursuant to a duty imposed by law, or
b) Factual findings resulting from an investigation made pursuant to authority granted by law.
3) Is made within the author’s scope of duty; and
4) Is made at or near the time of the event.

Question 39

Judgments and Prior Convictions

Answer 39

Certified copies of judgments are admissible in both civil and criminal cases to prove any fact essential to the judgment.

Prior convictions are inadmissible in criminal cases against non-D’s unless used for impeachment.