Evidence Flashcards
Relevance
Evidence is relevant if it has any tendency to make a fact more or less probable than it would be without the evidence and it is a fact of consequence in determining the matter.
403 Balancing
A court may exclude relevant evidence if its probative value is substantially outweighed by one or more of the following dangers: unfair prejudice, confusion of the issue, misleading the jury, waste of time, undue delay, or presentation of cumulative evidence
Liability Insurance
Evidence of liability insurance, despite being relevant, is inadmissible under public policy to prove negligence or fault. This is because we do not want to discourage people from getting liability insurance. However, it is admissible to show (1) ownership/control when disputed, (2) to impeach, or (3) when it is so coupled with an admission.
Subsequent Remedial Measures
Subsequent remedial measures, despite being relevant, are inadmissible under the federal rules of evidence to prove (1) negligence, (2) culpable conduct, (3) a defect, or (4) the need for a warning. This is because we do not want to discourage people from taking these measures. However, they may be admissible to show (1) ownership/control, (2) feasibility to remedy or warn, and (3) destruction of evidence.
Compromise/Settlement Offers and Negotiations
Settlement offers and negotiations, despite being relevant, are inadmissible to show the validity or amount of a disputed claim or to impeach on the basis of contradiction or prior inconsistent statement. This is because we do not want to discourage people from settling, which might clog up the courts. Any statements or conduct made during these negotiations and discussions are also inadmissible. They may be admissible, however, to impeach by bias.
Offers to Pay or Payments of Medical Expenses
Offers to pay or payments of medical expenses, although relevant, are inadmissible to show liability. This is because this is often a humanitarian instinct. However, any statements made in connection with the offers are admissible, unless excluded by another rule.
Plea Deals, Negotiations, Withdrawn Offers
Plea deals and negotiations, although relevant, are inadmissible for any reason. However, an actual guilty plea may be admissible against the defendant in subsequent related proceedings.
Defendant’s Character of Pertinent Trait
When the defendant opens the door to their good character concerning a pertinent trait, either by reputation or opinion evidence, then the prosecutor may introduce reputation or opinion evidence of their bad character for the same pertinent trait. Additionally, the prosecutor can inquire into their specific instances of misconduct on cross as well, but they cannot present extrinsic evidence.
Victim’s Character of Pertinent Trait
When the defendant introduces opinion of reputation evidence as to the victim’s bad character for a pertinent trait, then this opens the door for the prosecutor to then introduce evidence of the defendant’s bad character and the victim’s good character as to that trait.
Victim’s Character in a Homicide + Self-Defense case
When the defendant introduces any evidence that the victim was the first aggressor, not just character evidence, then this opens the door for the prosecutor to present evidence as to the victim’s good character for peacefulness.
Victim’s Sexual Character in Rape
In a civil or criminal action involving the rape of a victim, the victim’s character concerning sexual behaviors is generally inadmissible.
However, in criminal cases, specific instances of conduct may be introduced to show (1) consent, (2) source of semen, and (3) source of injury.
In civil cases, it may be introduced if the probative value substantially outweighs the prejudicial harm to the victim.
Character in Civil Cases
Generally, evidence showing that a person acted in conformity with their character on a certain date is inadmissible. However, if the character is an essential element of the claim or defense, then it will be admissible. These include: defamation, negligent hiring and entrustment, or child custody cases.
Non-Character Reasons
Evidence may be admitted if it is for a non-propensity reason if it sufficient evidence to support a jury finding, such as: intent, knowledge, opportunity, plan, identity, motive, preparation, absence of mistake, or lack of accident. These are subject to 403. In criminal cases, the prosecutor must give reasonable notice, in writing before trial, of the evidence and its non-propensity reason.
Witness is General
In order to testify, a witness must be competent, which is presumed, and they must have personal knowledge and take oath or affirmation.
Lay Witness Opinion Testimony
A lay witness opinion must be (1) rationally based on the witness’s perception, (2) helpful to understanding or making a determination, and (3) not based on scientific, technical, or specialized knowledge.
Qualifying an Expert
In order to qualify as an expert witness, there must be a showing of expertise based on (1) specialized knowledge, (2) skill, (3) training, (4) experience, or (5) education.
Expert Opinion Testimony
Expert opinion testimony must be (1) based on a subject matter of scientific, technical or specialized knowledge, (2) based on sufficient facts or data, (3) based on reliable principles and methods, and (4) reliably apply the principles and methods to the facts of the case.
(2) Based on Sufficient Facts or Data
This can be based on things the expert has personal knowledge on, learned in the court room, or things reasonably and regularly relied upon by expert’s in the field.
(3) Reliable Principles and Methods
Under Daubert, reliable principles and methods are those that are (1) subject to testing, (2) have a known rate of error, (3) generally accepted, (4) subject to peer review and publication.
Ultimate Issue
An expert can generally testify as to the ultimate issue in a case; however, they cannot testify as to the ultimate issue of defendant’s state of mind in a criminal case.
Authentication (Documentary Evidence)
Documentary evidence is authenticated by proof that the evidence is what the proponent claims it to be. This proof needs to be evidence sufficient to support a jury finding of genuineness.
Ways to authenticate include:
(1) opponent admitting or stipulation
(2) eyewitness testimony of anyone who say it executed or heard it acknowledged
(3) handwriting verification by lay person familiar before trial started, expert comparison, or jury comparison
(4) the document is ancient – 20 years old, in nonsuspicous condition, and found where expected to be
(5) reply to a communication sent by the alleged author
(6) witness says photo or video is a fair and accurate representation based on familiarity
(7) if no witness for photo or video, then showing camera works and the photo or video came from it
(8) x-ray showing that the machine works, the process is accurate, the operator is qualified, and chain of custody to show no tampering
(9) anyone heard the voice at any time can ID it
(10) any party to a call can testify that (i) the recognize the voice, (ii) the speaker had knowledge of facts only the person would have, (iii) they called the specific person’s number and a person picked up saying they were them, or (iv) called a business and someone answered and talked about relevant business matters
Authentication (Real Evidence)
Real evidence is authenticated by proof that the evidence is what the proponent claims it to be. This proof needs to be evidence sufficient to support a jury finding of genuineness. This is either done through (1) testimony as to recognition, or (2) a substantially unbroken chain of custody. The condition needs to be substantially the same at trial.
Hearsay in General
Hearsay is an out of court statement, other than one made by the declarant in the current proceeding, offers to prove the truth of the matter asserted.
Non-hearsay
Hearsay does not include verbal acts or legally operative facts, statements to show effect on the listener, circumstantial evidence of declarant’s state of mind – consider is it being offered for the truth
Hearsay Exemptions
Non-hearsay by the rules:
(1) prior inconsistent statements under oath
(2) statement made or adopted by and opposing party in the action (consider vicarious or adopted by silence)
(3) prior consistent statements offer to (i) rebut that the witness was lying or exaggerating based on a motive and the statement was made before the onset of the alleged motive, or (ii) rehabilitate a witness on some other ground, such as after they were attacked for inconsistency or character for truthfulness
(4) the statement was made to identify a person as the witness had earlier perceived
Determining Unavailability
(1) privilege, (2) lack of memory , (3) illness or death, (4) absent and outside of court’s reach, or (5) refusal to testify
Where Federal Rules of Evidence Don’t Apply
Grand Jury Proceeding, Preliminary Questions for the Court about Admissibility, Sentencing, Extradition, Warrant Hearings, Bail, and Probation.
Defendant’s Propensity Exceptions
Evidence of a Defendant’s other acts of sexual assault or child molestation are admissible in civil and criminal cases where the defendant is accused of committing sexual assault or child molestation. This must be disclosed to the defendant 15 days before trial.
Self-Authenticating Documents
(1) Public Documents with Seal (Domestic/Foreign)
(2) official publications
(3) certified copies of records on file in public office
(4) newspapers or periodicals
(5) trade inspections or labels
(6) notarized documents
(7) commercial papers
(8) certified business, electronic, or data records with reasonable written notice to adverse party and opportunity to inspect
Judge’s Discretion to Limit the Use of Real Evidence
The judge can limit the use of real evidence if (1) it would be a physical inconvenience to bring it in, (2) it is indecent or impropriety, or (3) undue prejudice would result.
Best Evidence Rule
To prove the contents of a writing, recording or photo, the original must be produced if the terms or contents are material. This applies when the writing/recording is (1) legally operative or dispositive instrument, or (2) the witness’s knowledge is based on reading or seeing it. The original does not need to be produced if the witness has personal knowledge.
