Evidence Flashcards
Relevance
Evidence must be relevant to be admissible.
Evidence is relevant if it has any tendency to make a fact of consequence more or less probable.
Relevant evidence may be excluded if its probative value is substantially outweighed by 1) unfair prejudice, 2) confusing the issues, 3) misleading the jury, or 4) undue delay.
DIMP
Delay
Issues
Misleading
Prejudice
Prior Similar Occurrences
Prior similar occurrences involving facts outside of those involved in the present case are inadmissible except in the following circumstances:
- Plaintiff’s Accident/Claim History – admissible to show
a. Previous similar false claims
b. Injury occurred in prior accident - Similar Accidents/Injuries caused by same event/condition – admissible to show:
a. Existence of dangerous condition
b. Dangerous conditions caused injury
c. Defendant had notice of dangerous condition - Previous Similar Acts – admissible to prove intent
- Sales of Similar Property – to show value
- Prior occurrences – to rebut claim of impossibility
- To show Causation
- Habit
- Industry custom/standard
FIVE CuP PiNCH
False claims
Intent
Value
Existence
Custom/Standard
Possibility
Prior injury
Notice
Causation
Habit
Public Policy Exclusion
Some evidence is not admissible based on public policy considerations:
1. Liability Insurance to show fault,
a. but it is admissible to show ownership or control if it is at issue
2. Subsequent Remedial Measures to show culpability
a. But is is admissible to show ownership/control or
feasibility of a safer condition if at issue
3. Settlement of civil case or statements made during settlement discussions to show liability or impeach prior statement
a. But it may be admissible to show bias or dispute
validity or damages
4. Plea discussions in criminal cases including offers to plea, withdrawn pleas, no contest pleas, and facts discussed during negotiations
a. But guilty pleas not withdrawn are admissible in
subsequent litigation on same facts
5. Offer to pay medical expenses are inadmissible
a. But statements of fact are admissible
PRISM
Plea negotiations
Remedial measures
Insurance
Settlement negotiations
Medical expenses
Character Evidence - Criminal
The prosecution cannot not initiate evidence of bad character to show the defendant acted in conformity with that character trait. However, because the defendant’s life or liberty is at stake, he may admit reputation or opinion evidence showing his good character.
The prosecution can rebut the defendant’s character evidence by cross-examining the character witness about specific acts and it may call its own witnesses to provide reputation or opinion testimony about the trait in question.
Character Evidence - Civil
In civil cases, character evidence is generally inadmissible to prove conduct in conformity.
All forms of character evidence are admissible when character is an essential element of a claim or defense such as in defamation, negligent hiring/entrustment, or child custody cases.
Independently Relevant Character Evidence
Character evidence is admissible if it is independently relevant. Independently relevant evidence is that offered for non-character purposes (MIMIC). There must be sufficient evidence to support a jury finding that the defendant committed the other misconduct
M – Motive
I – Intent
M – Mistake absent
I – Identification
C – Common plan or scheme
Victim Character Evidence
In a self-defense case, a defendant may introduce reputation or opinion evidence of the victim’s violent character. In response, the prosecutor may offer reputation or opinion evidence of the victim’s good character for peacefulness and the defendant’s bad character for violence.
Evidence of a victim’s character may also be offered for a non-propensity purpose to prove the defendant’s state of mind. If the defendant knew at the time of the altercation that the victim had a violent reputation or committed violent acts in the past, evidence of such may be admitted to show the defendant acted reasonably in responding to victim’s aggression.
Rape Victim Character Evidence - Criminal
Sexual behavior or sexual disposition of the victim is generally inadmissible.
In a criminal case a victim’s sexual behavior is admissible to prove someone else was the source of the injury.
Previous interactions between defendant and victim are admissible by the prosecutor for any reason and by the defense to show consent.
Rape Victim Character Evidence - Civil
In a civil case, evidence of victim behavior is admissible if probative value substantially outweighs harm to the victim.
Defendant’s History of Sexual Misconduct
In a case alleging sexual assault or child molestation, prior specific sexual misconduct of the defendant is admissible as part of the case-in-chief including Defendant’s propensity for sex crimes
Witness Competency
A witness is presumed to be competent until proven otherwise. A witness must have:
1. Personal knowledge
2. Sworn oath
Dead-man statute (not in FRE, only address if prompted)
In a civil action an interested party is incompetent to testify in support of her own interest against the estate of a decedent about communications or transactions between the interested party and the decedent.
Leading Questions
Leading questions are permitted during cross-examination. They are only permitted on direct:
1. To elicit preliminary/introductory matter
2. When witness needs help based on memory loss, immaturity, or weakness; or
3. When witness is hostile or adverse
Juror inquiry into Verdict
A juror is generally prohibited from testifying about deliberations or anything that may have affected the vote. However a juror may testify as to:
1. Extraneous prejudicial information brought to jury’s attention
2. Outside influences on any juror
3. Mistakes on verdict form; or
4. Juror makes a clear statement he relied on racial stereotypes
Improper questions
Misleading, Compound, argumentative, conclusory, cumulative, unduly harassing or embarrassing, call for a narrative, assumes a fact not in evidence
Refreshing Recollection
If memory fails witness, he may be shown a writing to refresh his recollection. When recollection is refreshed, the opposing party may inspect the document, use it on cross, and enter it into evidence. If the writing does not refresh the witness’s memory, it can be read into evidence IF:
- Witness had personal knowledge at former time
- Document was made or adopted by the witness when it was fresh in his memory and
- Witness can vouch for accuracy when made or adopted
Lay Opinion Testimony
Opinions by lay witnesses are admissible only if it is:
1. Based on witness’s perception/personal knowledge
2. Helpful to the jury for deciding a fact
3. Not based on scientific, technical, or otherwise specialized knowledge that would require expert testimony
Expert Witness Testimony
For expert testimony to be admissible it must:
1. Be of scientific, technical, or specialized knowledge that will help the trier of fact
2. Be based on sufficient facts or data
3. The product of reliable principles or methods (Daubert Test)
4. Have reliably applied the principles and methods to the facts of the case
Daubert Test
The Daubert Test is used to determine whether an expert opinion is the product of reliable principles and methods. Courts have discretion in making this determination, but there are four principle Daubert factors the courts use:
TRAP
1. T – Testing. Whether the theory or methodology has been tested
2. R – Rate of Error. Its known potential error rate
3. A – Accepted. Whether it is generally accepted in the relevant field
4. P – Peer Review. Whether it is subject to peer review and publication
Qualifications of an Expert
To be qualified as an expert the witness must possess special knowledge, skill, experience, training, or education.
Lay/Expert Opinion and Ultimate Issue
Opinion testimony is permissible to address an ultimate issue in the case. However, where the defendant’s mental state is an element of the crime or defense, an expert may not state an opinion as whether the defendant had the required mental state.
