Evidence Flashcards
Relevance
Evidence is relevant if:
1) it has any tendency to make a fact more or less probable than it would be without it; AND
2) the fact is of consequence in determining the action.
Rule 403 Exclusions
The court may EXCLUDE relevant evidence if its probative value is substantially outweighed by a danger of:
a) unfair prejudice;
b) confusing the issues;
c) misleading the jury;
d) undue delay;
e) wasting time; OR
f) being needlessly cumulative.
Subsequent Remedial Measures
Such evidence is NOT admissible to prove:
a) negligence;
b) culpable conduct;
c) a defect in a product or design; OR
d) a need for a warning or instruction.
*BUT, such evidence may be admitted for other purposes (impeachment, control, ownership, feasibility).
Compromise/Settlement Offers & Negotiations
Statements and offers made during settlement negotiations are NOT admissible to:
a) prove the validity or amount of a disputed claim; OR
b) impeach by a prior inconsistent statement.
Pleas & Plea Negotiations
The following are NOT admissible in a subsequent civil or criminal case:
a) statements made during plea discussions;
b) a nolo contendere plea (D doesn’t admit or dispute the charge); OR
c) a guilty plea that is later withdrawn.
Paying or Offering to Pay Medical Expenses
NOT admissible to prove liability, BUT any related statements or factual admissions are admissible.
Liability Insurance
NOT admissible to prove culpability, BUT admissible for other purposes (i.e. ownership, control, agency).
Authentication of Evidence
All evidence MUST be authenticated before being admitted.
− Physical Evidence → through witness testimony or by evidence that shows it has been held in a substantially unbroken chain of custody.
− Voice Recordings→by anyone who has heard the person speak and identified the recorded person as the speaker.
Best Evidence Rule
The original writing, recording, or photograph is required to prove its content UNLESS:
a) it’s a reliable duplicate (a photocopy);
b) all the originals are lost or destroyed, and not by the offering party acting in bad faith;
c) an original cannot be obtained by judicial process;
d) it was not produced after proper notice was given to the party in control and against whom it would be offered against; OR
e) it’s not closely related to a controlling issue.
Character Evidence (criminal and civil)
Generally, character evidence is NOT admissible to prove propensity (that a person acted in conformity with a character trait on a particular occasion).
− BUT, character evidence is generally ALLOWED for non-propensity purposes (i.e. when character is an ultimate issue in the case (defamation).
Evidence of Defendant’s Character in Criminal Cases
Defendant may always introduce evidence of his own character.
The prosecution is NOT allowed to present evidence of the defendant’s character to prove propensity UNLESS the defendant first presents evidence of his own character (the defendant “opens the door”).
D may introduce evidence of pertinent good character.
Method- D may call W to testify to D’s good character based on reputation or opinion (but not specific instances).
Criminal Cases Victim’s character (not involving rape):
− D can offer reputation and opinion evidence to show victim’s character and/or show D’s innocence.
− If D presents evidence of victim’s character,
Prosecution can offer evidence of:
(a) victim’s good character (for the same trait); or
(b) D’s bad character (for the same trait).
Criminal Cases Victim’s character (involving rape / sex offenses)
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;
(b) Prior acts of consensual intercourse between victim and D.
(c) if its exclusion violates D’s constitutional rights.
Civil Cases Victim’s character (alleged sexual misconduct)
− Victim’s sexual behavior/predisposition is admissible
REPUTATION-
1) P puts her reputation at issue in some way; and
2) its probative value substantially outweighs the danger of
(1) Unfair prejudice; AND
(2) Harm to any victim.
OPINION AND SPECIFIC INSTANCES-
its probative value substantially outweighs the danger of
(1) Unfair prejudice; AND
(2) Harm to any victim.
Methods of Proving Character
− Direct examination→opinion, reputation
− Cross-examination→opinion, reputation, specific acts.
Prior Bad Acts (crimes, wrongs, acts)
Generally NOT admissible to show propensity
EXCEPT FOR
Sexual Assault / Child Molestation Exception – prior bad acts of sex crimes are ADMISSIBLE if D is accused of such conduct.
Is admissible for non-propensity purposes→Motive, Identity, Absence of Mistake/Accident, Intent, Common Plan or Scheme, Opportunity, or Preparation.
To offer such evidence, the proponent MUST show that:
1) the prior act was committed; AND
2) the probative value substantially outweighs the danger of unfair prejudice.
Habit / Routine Practice
Admissible to show that a person (or organization) acted in accordance with their habit or routine practice.
− Habit = a regular response to a repeated situation.
Prior Inconsistent Statements
Admissible to impeach a witness.
Extrinsic Evidence is admissible ONLY IF:
1) Relevant to a material issue at trial (one other than the witness’s credibility); AND
2) Proper foundation is shown (witness is first given an opportunity to explain or deny the statement and an adverse party is given an opportunity to examine the witness about it).
Prior Convictions
Evidence of prior convictions may be admitted in certain instances.
Prior Felony / Misdemeanor involving Dishonesty→ ALWAYS admissible to impeach.
− Theft crimes are not crimes of dishonesty.
Other Misdemeanors→NOT admissible to impeach.
Felonies that DO NOT involve Dishonesty:
− Civil & Criminal Cases→Admissible if witness is not a criminal defendant (subject to Rule 403 exclusions).
− Criminal Cases (only)→Admissible if D is the witness but only if the probative value outweighs any prejudicial effect.
10-Year Exception
If 10-years have passed (from conviction or release from jail – whichever is later), the conviction is NOT admissible unless:
1) its probative value outweighs its prejudicial effect; AND
2) the proponent provides reasonable written notice to the adverse party.
Pardon / Annulled Exception→Evidence of a conviction is NOT admissible if it’s been pardoned or annulled based on a finding of innocence.
Felony = a crime punishable by: (a) death; OR (b) imprisonment over 1-year.
Witness Credibility Using Specific Instances of Conduct on Cross
A witness’s credibility may be attacked on cross-examination with specific instances of conduct (prior bad acts) ONLY IF the conduct is probative of the witness’s character for truthfulness or untruthfulness.
Witness’s Character for Truthfulness after attack
A witness’s credibility may be attacked or supported by:
a) Reputation testimony about the witness’s character for truthfulness / untruthfulness; OR
b) Opinion testimony.
*BUT, evidence of the witness’s truthful character is admissible ONLY AFTER ATTACKED.
Ability to Observe, Remember, or Relate Facts
A witness’s ability to observe, remember, or relate facts accurately may be attacked on impeachment.
− Extrinsic evidence is admissible for this purpose.
A witness’s bias, motive, partiality, or corruption
is ALWAYS relevant for impeachment.
Refreshing Recollection
Refreshing a witness’s recollection using a document is permitted when the witness:
1) once had personal knowledge of the matter, but
2) is unable to recall it while testifying.
Only the opposing party may offer into evidence the item used to refresh.
Judicial Notice
A court may take judicial notice of indisputable facts:
a) commonly known in the community; OR
b) readily capable of verification and that cannot be reasonably questioned.
Civil Cases→court must instruct jury to accept the noticed fact as conclusive (the fact is dispositive).
Criminal Cases→court must instruct jury that it may or may not accept the noticed fact as conclusive.
Lay Witness Testimony
Is any person who gives testimony in a case that is not called as an expert.
Testimony is admissible if the witness:
1) is competent to testify (competency is presumed unless rebutted); AND
2) has personal knowledge of the matter.
Lay witness may offer an opinion ONLY IF it’s
1) rationally based on perception;
2) helpful to clearly understand the testimony or determine a fact (not a legal conclusion); AND
3) not based on scientific, technical, or other specialized knowledge.
Expert Witness Testimony
Expert testimony is permitted when:
1) witness is qualified as an expert;
2) opinion is helpful to the jury;
3) witness believes in the opinion to a reasonable degree of certainty;
4) opinion is supported by sufficient facts or data; AND
5) opinion is based on reliable principles and methods that were reliably applied.
Expert Witness Reliability
→ is based on:
(1) publication and peer review,
(2) error rate,
(3) testability, AND
(4) if it’s generally accepted in the field.
Hearsay
(1) out of court statement,
(2) that is offered to prove the truth of the matter asserted.
− Admissible ONLY IF it falls under an exception or exclusion.
Statement = a person’s oral or written assertion.
− A nonverbal act is a statement if it’s intended as an assertion.
Multiple Hearsay
Each level of hearsay MUST fall within an exception or exclusion to be admissible.
Non-Hearsay
If a statement is offered to prove something other than the truth of the statement, it’s not hearsay and is ADMISSIBLE.
Common Non-Hearsay Statements:
1) Verbal acts of independent legal significance.
2) To show the effect on the listener.
3) Prior inconsistent statement used to impeach.
4) Circumstantial evidence of the speaker’s state of mind.
Statements by a Party Opponent
A statement by a party opponent is:
1) Any statement offered against an opposing party, AND
2) That is:
a) made by the party (or their representative);
b) adopted or believed to be true by the party (silence may be sufficient);
c) made by an authorized person;
d) made by an agent/employee of the party acting within their scope; OR
e) made by a co-conspirator.
Prior Statements by a Witness
A prior statement by a declarant-witness is deemed non-hearsay if:
1) Declarant testifies;
2) Declarant is subject to cross-examination about the prior statement; AND
3) The prior statement:
a) was inconsistent with prior-testimony and given under oath in a prior court proceeding or deposition;
b) declarant identifies a person as someone they perceived earlier; OR
c) is consistent with prior testimony and is offered to either
(i) rebut that the declarant is lying, or
(ii) to rehabilitate declarant’s credibility.
Co-Conspirator Admission
A statement by a co- conspirator is admissible when offered against another co-conspirator if:
1) Conspiracy existed between the declarant & defendant;
2) Statement was made during the conspiracy;
3) Statement was in furtherance of the conspiracy; AND
4) The conspiracy is proven by independent evidence (outside the statements themselves).
Present Sense Impression
Is a statement describing an event made by the declarant:
a) while observing the event; OR
b) immediately thereafter.
*A few minutes after the event is ok.
Excited Utterance
Is a statement relating to:
1) a startling event or condition,
2) made while the declarant was under the stress of excitement that the event/condition caused.
*A slight delay between the event and statement is ok.
Business Records
Admissible if it’s:
(1) a record of events, conditions, opinions, diagnoses,
(2) kept in the regular course of business,
(3) made at or near the time of the matter described,
(4) made by a person with knowledge,
(5) is the regular practice of the business, AND
(6) the opponent party does not show a lack of trustworthiness.
Statements Made for Medical Diagnosis/Treatment
Not excluded by the hearsay rule when the statement:
1) is made for (and reasonably pertinent to) medical diagnosis or treatment; AND
2) describes medical history or symptoms (past or present).
*Statements that are not relevant to medical diagnosis or treatment DO NOT fall within this hearsay exception.
Statements of Mental, Emotional, or Physical Condition
Admissible when the statement is of declarant’s:
a) then-existing state of mind (motive, intent, or plan); OR
b) emotional, sensory, or physical condition.
*BUT, statements of memory or belief are NOT admissible unless it relates to the validity or terms of the declarant’s will.
Dying Declaration
Elements to be admissible:
1) Declarant is unavailable;
2) Statement made under a sense of impending death; AND
3) Statement was about the circumstances or cause that put the declarant in the position of impending death.
*ONLY ALLOWED in civil cases & criminal homicide cases.
Declarant Unavailable Requirement
Deemed unavailable if the witness:
a) is exempt due to privilege;
b) refuses to testify despite a court order;
c) does not remember;
d) cannot be present due to death or illness; OR
e) is beyond the reach of a court’s subpoena and cannot be procured by reasonable means.
Statement Against Interest
Admissible if:
1) it’s a statement against the declarant’s penal, proprietary, or pecuniary interest when made;
2) declarant has firsthand knowledge;
3) a reasonable person in the declarant’s position would have made the statement only if they believed it to be true; AND
4) declarant is unavailable.
*Criminal cases→it must be supported by corroborating circumstances that clearly indicate its trustworthiness.
Public Records
The following records are admissible:
a) a record describing policies and practices of a public office;
b) observations made by someone in accordance with his duties by law (but excludes police reports in criminal case); OR
c) factual findings from a legally authorized investigation (but only in civil cases or against the government in a criminal case).
*BUT, such records will NOT be admitted if the opponent party shows a lack of trustworthiness.
Past Recollection Recorded
Is a record made on a matter the witness once knew about, but now cannot recall well enough to testify fully and accurately.
Is admissible if:
1) witness had personal knowledge at one time;
2) writing was made or adopted by the witness;
3) it was made while the event was still fresh in the witness’s mind;
4) is accurate; AND
5) witness can no longer remember the event.
*The record may be read into evidence, BUT it can only be received as an exhibit if offered by an adverse party.
Right to Confront Witnesses (6th Amend.)
The Confrontation Clause gives a criminal defendant the right to confront witnesses against him.
The use of an out-of-court statement (even if within a hearsay exception) violates the 6th Amend. when:
1) The statement is testimonial;
2) Declarant is unavailable to be cross-examined at trial; AND
3) D did not have an opportunity to cross examine the declarant before trial.
Testimonial
Statements made to:
a) Grand juries;
b) Affidavit or Certified Report with forensic lab results; OR
c) The police whose primary purpose (when viewed objectively) was to collect testimony to be used at a later trial.
Ongoing Emergency
*A statement to assist the police in an ongoing emergency is NOT testimonial.
Existence of an ongoing emergency determined by:
(1) nature of the dispute;
(2) potential harm to the victim;
(3) threat to additional identifiable victims;
(4) generalized threat to the public;
(5) type of weapon; and
(6) whether suspect is at large or located, but not apprehended.
Spousal Immunity
A witness-spouse in a valid marriage MAY refuse to testify against their spouse in a criminal case.
− Only the witness-spouse holds this privilege – but privilege ends after divorce.
*Spousal immunity DOES NOT apply in civil cases.
Confidential Marital Communications
Communications between spouses are privileged if:
1) made during the course of a valid marriage; AND
2) were intended to be confidential.
*Either spouse may assert the privilege, and it applies after divorce.
*Privilege applies in BOTH civil and criminal cases.
Spousal Privileges DO NOT apply
a) in cases between the spouses; OR
b) when a spouse commits a crime against the other spouse or their children.
Attorney-Client Privilege
Protects confidential communications between and attorney and client if:
1) intended to be confidential; AND
2) made to facilitate legal services.
The client holds the privilege and may waive it by disclosing info to a third-party (but it’s not waived through inadvertent disclosure).
Attorney-Client Privilege DOES NOT apply when
a) legal services are sought to further a crime or fraud;
b) a litigation is related to a breach of duty between the attorney and client; OR
c) joint clients are later involved in civil litigation against each other.
Attorney Work Product Doctrine
Protects from disclosure all materials prepared by an attorney (or his agents) in anticipation of or during litigation.
Exception→If a party shows:
(1) a substantial need exists; AND
(2) a substantial equivalent cannot be obtained without undue hardship.
Physician-Patient Privilege
Most States→recognize the privilege if
(1) it’s a confidential patient communication,
(2) made to a physician,
(3) for the purpose of medical diagnosis or treatment.
− The patient holds the privilege, BUT it may be waived when a medical condition is placed in issue (i.e. personal injury lawsuit).
Federal Courts→DO NOT recognize the privilege. − However, state law governs privilege for civil cases in federal court on a claim/defense when state law supplies the rule of decision.
Psychotherapist-Patient Privilege
ALL states recognize the privilege, which protects:
1) confidential patient communications,
2) made to a psychotherapist (psychologist, psychiatrist, or social worker),
3) for the purpose of psychological treatment.
*The patient holds the privilege and may waive it.
Psychotherapist-Patient Privilege
Exceptions – include:
▪ Court-ordered examinations.
▪ Civil commitment proceedings to determine if hospitalization is required.
▪ When the condition is placed “in issue” by the patient.
▪ The dangerous-patient exception – the therapist has a duty to warn when he knows (or should know) that the patient poses a serious threat of violence to foreseeable victims.
Criminal Cases 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).
