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c) a guilty plea that is later withdrawn.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.
