Evidence Flashcards
Evidence must be _______ in order to be admissible.
Relevant
Evidence is relevant if it is both _________ and ________.
Probative and Material
What is probative evidence?
Evidence that has any tendency to make a fact more or less probable than it would be without the evidence.
Evidence is material if _______.
It is a fact of consequence in determining the outcome of the action.
Relevant evidence may be excluded if __________.
It’s probative value is substantially outweighed by a danger of 1) unfair prejudice; 2) confusing the issues; 3) misleading the jury; 4) undue delay; 5) wasting time; or 6) needlessly presenting cumulative evidence
Irrelevant evidence is ALWAYS
Inadmissible
Relevant evidence is admissible UNLESS
1) it is kept out by some evidence rule; or
2) court uses Rule 403 discretion to exclude it.
Rule 403 states that a Judge has discretion to exclude evidence if it’s probative value is substantially outweighed by what considerations?
1) unfair prejudice -jury will decide case on emotional basis
2) confusion of issues -evidence creates a side issue other than the one the jury is deciding
3) misleading jury -jury gives it undue weight ex: expert testimony
4) undue delay
5) waste of time
6) cumulative evidence
Subsequent remedial measures are _____.
Acts taken after a harm or injury that are likely to prevent future harm or injury.
Evidence of Subsequent Remedial Measures may be admissible for:
1) impeachment purposes,
2) to show ownership or control, or
3) to show feasibility of precautionary measures.
What limited instances might Plaintiff’s other lawsuits or accidents be admissible?
To show something other than carelessness such as:
1) prior false claims to prove present claim is false, or
2) prior accidents involving same body part when causation is at issue.
Offers to compromise and settlement statements are admissible to prove _________.
1) bias/prejudice of the witness,
2) negating a contention of undue delay, or
3) proving obstruction of a criminal matter
Offers to compromise and statements made during settlement negotiations are not admissible to prove ________.
Validity or amount of a DISPUTED claim or to impeach by prior inconsistent statements.
Similar accidents caused by same event of conditions are admissible to prove _________.
1) Existence of a dangerous condition
2) Causation
3) The defendant had notice of the condition
Offers to pay medical expenses are NOT admissible to prove _______.
Liability for the plaintiff’s injuries. However, any conduct or statements accompanying an offer to pay ARE admissible. (E.g., factual admission accompanying an offer to pay).
Prior similar occurrences/conduct are _________ to prove present motive or intent.
Admissible
Absent a knowing and voluntary waiver from the defendant, the following are NOT admissible against the defendant:
1) withdrawn guilty pleas
2) no contest pleas
3) statements made while negotiating with prosecutors
4) statements made during plea negotiations
Pleas and statements made during negotiations are admissible only if _______.
Fairness dictates or for perjury hearings
Sales of comparable property are admissible to _______.
Establish the property’s value.
Offers are not sales, and thus, are not admissible.
Evidence of similar occurrences is ________ to rebut a claim that the occurrence at issue was not possible.
Admissible
Habit and Business Routine evidence is admissible as ______
Circumstantial evidence that the person or organization acted in accordance with habit on occasion.
The defining characteristics of Habit evidence are ________.
1) frequency of the conduct, and
2) the particularity of the circumstances in which it occurs
Liability insurance is NOT admissible to prove
Whether the person acted negligently or otherwise wrongfully.
Liability insurance may be admissible to prove
a witness’s bias or prejudice or proving agency, ownership, or control
Industrial custom evidence may be admissible to show
The appropriate standard of care
Character evidence is
Evidence of one’s disposition in respect to general traits
_______, ________, and _________ are acceptable forms of character evidence.
1) reputation in the community
2) opinion testimony
3) specific instances (only admissible on cross examination UNLESS character is an essential element of a charge, claim, or defense)
In Civil cases, character evidence is generally NOT admissible for ________.
Propensity purposes. (Evidence of someone’s character cannot be introduced to show that they have the propensity to act in accordance with the alleged character trait.)
There are some exceptions.
Subsequent Remedial Measures is inadmissible to prove _________.
negligence, defective product or design, or culpable conduct.
Civil settlements and settlement negotiations are admissible to _________.
impeach a witness on the grounds of bias.
Conduct or statements in ______________ with government/regulatory authority are admissible in _________.
civil settlements and settlement negotiations; related criminal trials.
An actual guilty plea that is NOT withdrawn is _______ in related litigation as a statement of an opposing party.
generally admissible
I’ll pay your medical expenses if you drop the case is _______.
a settlement offer and the more restrictive rule about settlement negotiations applies. Thus, the statement is inadmissible.
In civil cases, character evidence is admissible for propensity purposes when ______.
1.) Character is an essential element of the claim or defense (defamation, negligent entrustment, child custody, etc.)
2.) The case is based on the defendant’s sexual misconduct
In criminal cases, the prosecution cannot introduce evidence of a defendant’s _________.
bad character to prove that the defendant has the propensity to commit the crime in question.
In criminal cases, the defendant may present positive character evidence as long as it is ______.
1) pertinent to the crime charged; AND
2) through reputation or opinion evidence (NOT specific instances of conduct)
When the defendant opens the door by presenting positive character evidence, the prosecution may then introduce negative character evidence (must relate to the same character trait in question) to rebut the defendant in two different ways:
1) Can call its own character witness who is limited to reputation and opinion testimony.
2) Cross-examine the defendant’s character witness by asking about specific instances, reputation and opinion testimony (Have you heard? Did you know?)
A criminal defendant may introduce reputation or opinion testimony of the victim’s character if it is _______.
relevant to one of the defenses asserted.
If the defendant introduce reputation or opinion testimony of the victim’s character, the prosecution may rebut by presenting evidence of:
1) the defendant’s bad character for the same trait
2) the victim’s good character for the same trait
In criminal cases, the Court may admit evidence of specific instances of a victim’s sexual behavior if offered _____.
1) to prove the Defendant was not involved in the sex crime
2) as evidence of sexual relations between Defendant and victim if offered by Defendant to prove consent, or offered by the prosecution for any reason
3)evidence whose exclusion would violate the Defendant’s constitutional rights
Victim’s past behavior is generally inadmissible, except:
In criminal cases to prove different source of injury or physical evidence or to show consent between victim and defendant
Specific instances of conduct are generally NOT admissible to show propensity, but are admissible to show:
1) Motive or opportunity
2) Intent
3) (absence of) Mistake
4) Identity
5) Common plan or scheme
Specific instances of conduct are admissible for MIMIC purposes if:
1) there is sufficient evidence to support a jury finding that the defendant committed the prior act; AND
2) the probative value of the specific instances of conduct is NOT substantially outweighed by the danger of unfair prejudice to the jury
In criminal cases, the prosecutor must
provide reasonable notice, in writing and in advance of trial, of any MIMIC evidence that she intends to offer at trial.
What is the Best Evidence Rule?
A party must provide original documentation or an accurate duplicate when:
1) the contents are at issue; OR
2) the witness is relying on the document when testifying
When must original documentation or an accurate duplicate be provided?
When the contents of the document are at issue or when the witness is relying on the document when testifying
All tangible evidence must be
authenticated
Tangible evidence is
any evidence that is not presented as oral or verbal testimony
Authentication requires that a party
show that the item being introduced as evidence is what the party claims it to be
physical evidence may be authenticated through
1) witness testimony; OR
2) chain of custody
documentary evidence may be authenticated through
1) stipulation (both parties agree)
2) witness testimony; OR
3) handwriting verification
In order for witness testimony to authenticate physical evidence, the witness must
have personal knowledge and familiarity with the object
Who can verify handwriting by comparing the writing in question with another writing that has been proven to be genuine?
An expert witness or trier of fact
A non-expert witness may verify handwriting if
she has personal knowledge of the handwriting in question. She cannot become familiar with the handwriting in order to prepare for litigation.
What documents are self-authenticating and do NOT require extrinsic proof of authenticity?
1) public documents bearing a seal
2) certified copies of public records
3) official publications issued by a public authority
4) newspapers and periodicals
5) notarized documents
6) commercial paper
7) trade inscriptions; AND
8) records of regularly conducted business activity certified by a custodian of the records
