Evidence Flashcards
Threshold evidentiary admission standard
Relevant, competent (does not violate exclusionary rule) is admissible
What is relevant evidence?
Evidence that tends to prove any fact of consequence to the action
standard for excluding evidence entirely that has some limited admissibility
Probative value of the evidence with respect to its legitimate purpose would be substantially outweighed by danger of unfair prejudice with respect to its incompetent purpose
4 steps to determining admissibility of evidence
- Relevance
- Proper foundation (competency of the witness, authenticity of the evidence, reliability of test been established)
- Evidence in the proper form?
- Any exclusionary rules prevent admission?
Exceptions that evidence must relate to time, event, or person in controversy (6).
- complicated issues of causation, e.g., damage that happened by D’s blasting previous times relevant to this time
- Prior false claims or same bodily injury ONLY as evidence that P has made previous similar false claims and the present claim is likely to be false or condition is attributable to prior injury.
- Knowledge of existence of dangerous condition
- Similar actions to prove intent (prior discrimination admissible to show motive for current exclusion of minorities)
- Rebutting claim of impossibility
- HABIT
Standard for trial judge to exclude relevant evidence
if probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, undue delay, waste or time, or needless presentation of cumulative evidence
Public policy reasons for excluding relevant evidence
- Liability insurance is not admissible to show negligence OR the ability to pay
- Evidence of repairs of other precautionary measures made following an injury are NOT admissible to prove negligence, culpable conduct, a defect in product or design, or the need for warning or instruction.
- Settlement offers are not admissible to prove or disprove the validity or amount of a disputed claim or to impeach a witness by prior inconsistent statement or contradiction
- offers to pay medical treatment
- Withdrawn quite pleas generally inadmissible in any proceeding against D who made the withdrawn plea or participated in plea discussions
When might evidence of subsequence remedial measures be admitted?
- prove ownership or control; 2. rebut a claim that the precautions was not feasible; 3. prove that the opposing party has destroyed the evidence
When may character evidence be offered as substantive, rather than impeachment, evidence (2)?
- When it is the ultimate issue in a case
- to serve ass circumstantial evidence of how a person probably acted.
What are the three means of proving character?
- Evidence of specific acts
- Opinion testimony of a witness who knows the person
- Testimony about the person’s general reputation in the communiity
Is character evidence generally admissible in civil cases?
No. unless character is directly at issue, e.g., defamation case, evidence of character offered by either party to prove conduct of person is not admissible.
When can character evidence about the accusesd be introduced in a criminal case?
Only when the accused initiates it. P cannot offer evidence of bad character to prove they committed the crime, but D can offer it to show innocence.
how can D present character evidence?
A witness testifies to the defendant’s good reputation for the trait in question OR may give his personal opinion concerning the trait of the D.
How does the P rebut D’s character evidence?
Once D opens the door, then P can 1) Cross examine the character witness regarding the basis of his testimony, including whether he knows of particular instances of misconduct. NO EXTRINSIC EVIDENCE MAY BE OFFERED,THOOUGH. P stuck with character witnesss’s testimony.
2) call their own character witnesss to testify to bad reputation or give opinion about D’s character.
When can victim’s character evidence be offered inn criminal car?
Except in sexual assault cases, D may introduce reputation or opinion evidence of bad character trying of the alleged crime victim when relevant to show D’s innocence, e.g., when D claims self-defense and argues victim was first aggressor.
How can prosecution count D’s offer of bad character evidence against victim?
Either introduce reputation or opinion evidence of the victim’s good character for the same trait OR the Defendant’s bad character for the same trait.
When is rape victim’s past behavior admissible?
Generally not admissible in civil or criminal proceedings.
Exception in criminal cases: prove someone other than D is source of physical evidence, semen, injury. Also specific instances of sex between D and V are admissible by prosecution for any reason and D to prove consent.
Exception in civil cases: if not excluded by other rule and probative value substantially outweighs the danger of harm to the victim and of unfair prejudice to any party then evidence of alleged victim’s sexual behavior is admissible. Evidence of victim’s reputation admissible only if it has been placed in controversy by the victim
Homicide cases – victim’s character to rebut self-defense claim
In a homicide caes in which D pleads self-defense, evidence of any kind that the victim was the first aggressor opens the door to evidence that victim had good character for peacefulness, regardless of whether D has opened door to character evidence general.
When are specific acts of misconduct on the part of D admissible?
When they are relevant to some other issue other than D’s character or disposition to commit the crime. Issues include:
1. Motive
2. Intent
3. Absence of mistake
4. Identity
5. Common plan or scheme
ALSO in child molestation cases, D’s prior acts of sexual assault or child moestation are admissible in a criminal or civil case when D is accused of committing the same act.
What is judicial notice?
Recognition of a fact as true without formal presentation of the evidence. Facts that are either common knowledge in the community OR capable of verification by resort to easily accessible sources of unquestionable accuracy.
Are judicially noticed facts conclusive in a case?
Yes in a civil case, no in a criminal case. In a criminal case, jury is instructed that it may but need not accept as conclusive any judicially noticed fact.
Judicial notice of law – mandatory v. permissive
Judges MUST take judicial notice of federal and state law and official regulations of the forum state and the federal government. May take notice of municipal ordinances and private acts or resolutions of Congress or local state legislature or laws of foreign countries.
How is real evidence authenticated?
- either by testimony of a witness that she recognizes the object as what the P claims it to be or
- evidence that the object has been held in a substantially unbroken chain of possession, e.g., blood taken for blood-alcohol test.
How are writings authenticated?
- Admission – party against whom it is offered either admitted its authenticity or acted upon it as authentic
- Eye witness testimony – someone who saw it executed or heard it acknowledged
- handwriting verification either by the opinion of a non expert with personal knowledge or the alleged writer’s handwriting or the opinion of an expert who has compared the writing to samples of the maker’s handwriting. Genuineness may ALSO be determined by the trier of fact by comparison of samples.
- Ancient documents – at least twenty years old, in such a condition to be free from suspicion as to authenticity, and was found in a place where such writing is likely to be kept
- reply letter – written in response to a communication sent to the claimed author.
How are photographs authenticated?
identified by a witness as a portrayal of certain facts relevant to the issue and verified by the witness as a correct representation of those facts
How are x-rays authenticated?
Someone has to testify that the process used was accurate, the machine was in working order, and the operator was qualified to operate it.
What are important self-authenticating documents
domestic public documents bearing a seal, certified copies of public records, official publications, newspapers and periodicals, trade inscriptions, acknowledged documents, commercial paper and related documents, business records, if the records are certified and the proponent gives the adverses part reasonable notice and opportunity for inspection.
What is the best evidence rule?
Requires the original writing be produced if the terms of the writing are material. Secondary evidence of the writing, e.g., testimony, is admissible only if the original is unavailable.
Are duplicates admitted under the best evidence rule?
Yes, photocopies are admissible and have the same effect as the original unless the authenticity of the original is challenged.
Dead man acts
Not in federal rules, but in state rules and will apply in federal diversity cases under Erie doctrine: party interested in the event is incompetent to testify to a personal transaction or communication with a diseased, when such testimony is offered against the representative or successors in interest of the deceased.
Present recollection revised rule
Witness can use anything for the purpose of refreshing her present recollection. Doesn’t read from it, because point is that recollection is revived. Writing is NOT IN EVIDENCE
