Evidence Flashcards
Where do the Federal Rules of Evidence not apply?
Court’s determination of a preliminary question of fact relating to admissibility, grand jury proceedings, other miscellaneous proceedings.
What is relevance?
Evidence is relevant if it has any tendency to make the existence of any fact of consequence to the determination of the action more probable or less probable than it would be without the evidence (it must be material and probative).
All relevant evidence is admissible unless it is kept out by a specific exclusionary rule of evidence or the judge uses Rule 403 discretion to keep it out.
Rule 403
The judge has broad discretion under Rule 403 to exclude relevant evidence if its probative value is substantially outweighed by its danger (including prejudice, confusion of issues, misleading the jury, undue delay, waste of time, unnecessary cumulative evidence).
The Rule 403 standard favors admissibility because the consideration must substantially outweigh the probative value.
What are examples of relevant similar occurrences that might be admissible as evidence?
-Plaintiff’s accident history (prior false claims or same bodily injury, but not to show carelessness)
-Similar accidents or injuries caused by same event or condition
-Previous similar acts admissible to prove intent
-Sales of similar property to prove value
-Rebutting claim of impossibility
-Causation
-Habit and business routine evidence
-Industry custom as evidence of standard of care
What is habit?
A person’s regular response to a specific set of circumstances. Habit is admissible as circumstantial evidence that the person or organization acted in accordance with the habit on the occasion at issue in the case.
Is evidence of liability insurance admissible?
Not admissible to show whether the party acted negligently or otherwise wrongfully
Admissible for other relevant purposes, such as proving ownership or control (IF DISPUTED), impeaching a witness (usually to show bias), inextricably tied to admission of liability
Public Policy Argument: We want people to insure their property, but we don’t want them to be found liable because of the insurance.
Is evidence of subsequent remedial measures admissible?
Not admissible to prove negligence, culpable conduct, a defect in a product or its design, or a need for a warning or instruction.
Admissible for other relevant purposes, such as proving ownership or control (IF DISPUTED), rebutting claim that a precaution was not feasible, or proving that the opposing party destroyed evidence.
Public Policy: We want to encourage people to make repairs and modifications to dangerous conditions.
Is evidence of a compromise (settlement) or offer to compromise a civil claim admissible?
Not admissible in any case to prove or disprove the validity or amount of a disputed claim or to impeach a witness by prior inconsistent statement or contradiction. Conduct and statements made in the course of these negotiations are also inadmissible for such purposes.
*ONLY APPLIES if there is a claim or indication that there will be a claim and a dispute as to validity or amount.
Are payments of and offers to pay medical expenses admissible?
Inadmissible to prove liability, but accompanying admissions of fact accompanying such offers are admissible (different from offers to settle).
Policy: These are humanitarian/charitable acts that should be encouraged.
What are the three methods of proving character?
Specific acts, opinion, reputation
In a criminal case, when can the parties offer evidence regarding the defendant’s character?
The defendant can offer reputation or opinion testimony as to a pertinent trait.
The prosecution cannot offer character evidence in their case in chief to show conduct in conformity. If the defendant opens the door, the prosecution can cross-examine character witnesses questions about the defendant’s specific acts to show lack of knowledge or call its own character witnesses to present reputation/opinion testimony about the defendant’s bad character for the trait in question. They cannot introduce extrinsic evidence of the misconduct.
In a criminal case, when can the parties offer evidence about the victim’s character?
The defendant may introduce reputation or opinion evidence of a bad character trait of the alleged victim when relevant to show the defendant’s innocence. Typically relevant when defendant claims self-defense (i.e. claiming victim was first aggressor).
After the defendant has opened the door, the prosecution may rebut with reputation or opinion evidence of the victim’s good character for the same trait OR the defendant’s bad character for the same trait.
The prosecution may initiate and offer evidence of a victim’s good character for peacefulness in a homicide case where the defendant pleads self-defense.
Is evidence to prove sexual behavior/disposition of the victim admissible?
Generally inadmissible in any civil or criminal proceeding involving alleged sexual misconduct.
In criminal cases, specific instances are admissible to prove that someone other than the defendant is the source of injury/physical evidence OR to prove consent.
In civil cases, evidence of the victim’s sexual behavior is admissible if it is not excluded by any other rule and its probative value substantially outweighs the danger of harm to the victim and unfair prejudice to any party (reverse 403 rule). Generally inadmissible to prove conduct in conformity.
In what instances is character an essential element of a claim or defense?
-Defamation where truth is a defense (plaintiff’s character)
-Negligent hiring or negligent entrustment (hired/entrusted person’s character)
-Child custody issues (parents’ character)
All forms of character evidence are admissible in these instances
When is evidence of a person’s other crimes, wrongs, or acts generally admissible?
Not to prove conformity/propensity - only if independently relevant to some issue other than character or propensity to commit the crime charged. MIMIC:
Motive
Intent
Mistake (absence of)
Identity
Common plan or scheme (committing one crime in prep for another)
There must be sufficient evidence to support a jury finding that the defendant committed the other misconduct, and it must pass the Rule 403 standard
Notice requirement in criminal cases - in writing, before trial, articulates non-propensity purpose.
Is defendant’s similar misconduct in sex-crime cases admissible?
Yes. It is admissible for any purpose, including propensity, in civil and criminal cases where the defendant is accused of committing an act of sexual assault or child molestation.
What is the general standard for authentication of a writing?
The writing must be authenticated by proof that shows that the writing is what the proponent claims it is. The proof must be sufficient to support a jury finding of genuineness.
Documents can be authenticated by opponent’s admission, eyewitness testimony, or handwriting verification (from someone who was familiar with the handwriting before litigation, expert, or fact-finder comparison), ancient documents rule, reply letter doctrine.
What is the ancient documents rule for authentication?
Document can be authenticated by evidence that it:
-Is at least 20 years old
-Is in a condition that creates no suspicion as to authenticity AND
-Was found in a place where such a writing would likely be kept.
How is the standard of authentication for handwriting and voice identification different?
Handwriting must be authenticated by someone who was familiar with the handwriting before the litigation. A voice can be identified by anyone who has heard the voice at any time.
What is the best evidence rule, and when does it apply?
To prove the content of a writing, recording, or photograph, the original writing must be produced if the terms of the writing are material.
Applies if:
-The writing is a legally operative or dispositive instrument
-Where the knowledge of a witness concerning a fact results from having read it in the writing (does not apply if witness has personal knowledge of facts)
There are exceptions, including voluminous records, certified public records, etc.
How does the FRE treat duplicates versus originals?
Duplicates are exact copies of originals made by mechanical means. They are admissible to the same extent as originals unless circumstances make it unfair to admit the duplicate or a genuine question is raised as to the authenticity of the original.
When might secondary evidence of the contents of a writing be admissible?
If there is a valid excuse to not produce the original, including if:
-the original was lost or destroyed (unless in bad faith)
-the original cannot be obtained by available judicial process
-the original is in the possession of an adversary who fails to produce it
What are the requirements for witnesses to testify?
They must be competent, so they must (1) have personal knowledge of the matter and (2) give an oath or affirmation to testify truthfully.
Some exceptions: children are case-by-case, judge and jurors can’t testify in case where they are participating, etc.
What is a Dead Man Act?
A statute that provides in a civil case, an interested person is incompetent to testify to a personal transaction or communication with a deceased, when such testimony is offered against the representative or successors in interest of the deceased.
There is NO Dead Man Act in the FRE, but it may apply under state law–the question would have to specifically mention it.
What is the difference between refreshing recollection and recorded recollection?
Refreshed Recollection:
-Any writing may be used to refresh a witness’s memory
-Witness cannot read from writing while testifying
-No hearsay problem because writing is not offered into evidence
Recorded Recollection:
-Only a record that meets foundational requirements qualifies
-Record is read into evidence but not received as exhibit
-Hearsay exception
What are the requirements to admit expert testimony?
-Subject matter must be one where scientific, technical, or other specialized knowledge would assist the trier of fact
-the opinion must be based on sufficient facts or data
-the opinion must be the product of reliable principles and methods
-the expert must have reliably applied the principles and methods to the facts of the case.
