Evidence Flashcards
Probative Value & Relevancy
Priority: High
To be admissible, evidence must be relevant. It is relevant if it has any tendancy to make a fact more or less probable and the fact is of consequence to determining the action.
Relevant evidence may be excluded if the probative value is substantially outweighed by the danger of:
1. unfair prejudice
2. confusing the issues
3. misleading the jury
4. undue delay
5. wasting time
6. beign needlessly cumulative
Unfair Prejudice = evidence is unnecessary adn might casue the jurity to improperly sympathize with or dislike a party. May limit the scope of the use of the evidence if exclusion is not appropriate.
Subsequent Remedial Measures
Priority: High
An action taken that would have made the earlier injury or harm less likely to occur is not admissable to prove:
1. negligence;
2. culpable conduct;
3. a defect in teh product or design; or
4. need for warning or instruction
However, it may be used to for other purposes such as impeachment, or to show ownership, control, or feasability.
Character Evidence
Priority: High
The evidence of one’s character is generally not admissable to show propensity unless:
1. A defendant introduces his own character; then prosecutors can introduce contraditory character
2. A defendant introduces character of a victim to prove innocence (except in rape); then prosecutors may introduce victim’s character that contradicts the defendant’s assertions
3. A prosecutor may introduce a victim’s character of peacefullness if the defendant claims self defense
4. Victim’s sexual behavior may be used in a civil case if victim put the issue in controversy and probative value outweighs harm to victim or unfair prejudice.
5. A defendant may introduce a victim’s sexual behavior to prove consent or if exclusion would violate the defendant’s consitutional rights.
6. A prosecutor may introduce a victim’s sexual behavior for any reason
Character evidence may be admissable for any non-propensity purpose, such as when character is an ultimate issue in a case.
- Character evidence may be proven by direct examination, opinion testimony, specific acts, or reputation evidence.
Prior Bad Acts
Priority: High
Evidence of one’s prior bad acts may not be admissable to prove propensity to commit the current act.
Prior bad acts may be introduced to show non-propensity purposes, such as motive, identity, absence of mistake or accident, intent, a modus operandi, opportunity, or preparation if:
1. there is a preponderance of the evidence that the prior bad act was committed
2. probative value substantially outweighs the danger of unfair prejudice
Habit or Routine Practice
Priority: High
Evidence of a person’s habit or an organization’s routine practice may be admitted to prove that on a particular occasion a party acted in accordance with the habit or routine practice.
- Habit = a regular reponse to a repeated stimulation that is specific, regularly repeated over a long period of time, and is semi-automatic or reflexive.
Impeachment: Prior Convictions
Priority: High
A prior conviction involving dishonesty is always admissable to impeach a witness.
Misdemeanors not involving dishonesty (such as simple larceny) are not admissable to impeach. Felonies not involving dishonesty are admissable if:
1. it is a civil case where the witness is not a criminal defendant
2. in a criminal case where the witness is the defednat and the probative value outweighs the prejudicial effect
Convictions over 10 years old since release from confinement or conviction may be used only if the probative value substantially outweighs the prejudicial effect and the proponent provides notice of the intent to use.
Impeachment: Specific Instances of Conduct
Priority: High
Prior specific instances of conduct (i.e. bad acts) may only be used during cross-examination if the conduct is probative of the witnesses character for truthfulness or untruthfullness. Extrinsic evidence is never admissiable to attack or support such instances of the witness’ credibility, even if he/she lies about it.
Refreshed Recollection
Priority: High
Using a document to refresh a witness’ recollection is permitted when:
1. the witness had prior first-hand knowledge;
2. the witenss is unable to recall the matter while testifying
The document cannot be introduced into evidence unless it is admissable under some other grounds.
- Opposing party must have opportunity to have the document produced at the hearing, inspect it, and cross-examine the witness about it.
Lay Witness Testimony and Opinion
Priority: High
All witnesses during a hearing/trial are presumed competent to testify to matters that they have personal knowledge, and their testimony should be admitted unless there are reasonable grounds to exclude it. However, a lay witness may only offer an opinion if:
1. it is rationally based on the witness’ perception
2. helpful to clearly understand the testimony or determine a factual issue
3. not based on scientific, technical, or other specialized knowledge
Expert Witness Testimony and Opinion
Priority: High
All expert witness testimony is admissable when:
1. the witness is qualified as an expert
2. the testimony is helpful to the trier of fact
3. the testimony is based on sifficient facts or data
4. the testimony is based on reliable principles and methods
5. expert has reasonably applies the principles and methods to the facts in this case
Hearsay
Priority: High
Hearsay is any out-of-court statement offered for the truth of the matter asserted. Hearsay is not admissable unless it falls within an exception.
If an out-of-court statement is offered to prove something other than the truth of the statement, then it is admissable as non-hearsay.
Hearsay Exception: Statements by Party Opponents
Priority: High
Any statement offered against an opposing party that was made by:
1. the party
2. a person authoirzed by the party to make a statement on the subject
3. the party’s agent or employee on a matter within the scope of the relationship
4. made by a party’s co-conspirator in furtherance of the consipiracy
Additionally, statements adopted by the party and believed to be true may be accepted, and silence can presume consent if a reasonable person would have objected.
Hearsay Exception: Prior Statements by a Witness
Priority: High
Prior statements from a witness may be deemed non-hearsay when the witness is testifying and subject to cross-examination and the prior statement is:
1. inconsistent with the testimony and offered under the penalty of purjury (i.e. deposition)
2. identifies a person the declarant precieved earlier (i.e. I heard him before)
3. consistent with the testimony and used to reubut a charge of lying or rehabilitate credibility when attacked on another ground.
Hearsay Exception: Present Sence Impression
Priority: High
A present sense impression is non-hearsay when the statement is made while observing the event or immediately (within a few minutes) thereafter.
Hearsay Exception: Exited Utterance
Priority: High
An excited utterance is non-hearsay when the statement is made in response to a startling event or condition while the declarant is under the stress and excitement of that event/condition.
- There can be a slight delay, but the facts should show the event as continuing without time to cool down.
