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Evidence Flashcards

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1
Q

FRE Do Not Apply

A

GJ, Ct determination of preliminary questions of reliability or other like warrants, sentencing, bail, probation

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2
Q

403

A
  • Probative value is substantially outweighed by the unfair prejudice
  • Other factors: confusion of the issues, misleading the jury, undue delay, waste of time, repetitive
  • Unfair surprise is not a valid ground for 403
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3
Q

Public Policy Exclusions

A

Liability Insurance, Subsequent Remedial Measures, Civil Settlements, Pleas, Medical Bills, WI: Expression of Sympathy of Fault by Healthcare Provider & Statement of Injured Person in PI

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4
Q

Liability Insurance

A
  • Evidence of insurance is not admissible to show the party acted negligently
  • Relevant for:
    1) To prove ownership or control
    2) To impeach a witness
    3) Admission of liability- e.g. if they say don’t worry my insurance will pay it off
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5
Q

Subsequent Remedial Measures

A
  • Not allowed to show culpability, negligence, defect in product or design, or need for warning
  • Admissible to show:
    1) Ownership or control
    2) Rebut a claim that a precaution was not feasible
    3) Prove opposing party destroyed evidence
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6
Q

Civil Settlements

A
  • Not allowed to show culpability, negligence, defect in product or design, or need for warning
  • Admissible to show:
    1) Ownership or control
    2) Rebut a claim that a precaution was not feasible
    3) Prove opposing party destroyed evidence
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7
Q

Plea Discussions

A
  • Not admissible: offers to plead guilty, withdrawn guilty pleas, pleas of nolo contendere, statement of fact made during plea discussions
  • Admissible: and actual guilty plea is admissible in related litigation
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8
Q

Offers to Pay Medical Bills

A
  • Inadmissible: to prove liability: I will pay your medical bills
  • Admissible: accompanying admissions of fact: I’m sorry I ran the red light
    *But if they say “I’ll pay your medical bills if you drop the case” that is considered a settlement negotiation and would not be admissible
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9
Q

Expression of sympathy of Fault by Health Care Provider

A
  • Wisconsin only
  • Civil: statement of conduct by healthcare that expresses an apology of fault is inadmissible if it occurred before the commencement of the lawsuit
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10
Q

Statement of Injured Person in Personal Injury Case

A
  • In personal injury suit any statement made or writing signed by the injured person within 72 hours of the injury or accident is inadmissible unless it would be admissible under
    1) Excited utterance
    2) Present sense impression
    3) Present state of mind
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11
Q

Character in Criminal Cases

A
  1. No propensity
  2. Defendant can introduce RELEVANT good character trait evidence NOT OF SPECIFIC ACTS
  3. Open Door: Prosecution can rebut with evidence of bad character – NOT SPECIFIC ACTS
  4. Prior Bad Acts/Crimes- never admissible to show propensity, but maybe to show another point- MIMIC
  5. If defendant testifies he automatically places his credibility for truthfulness in issue- prosecution can impeach
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12
Q

Specific Instances Allowed

A
  1. Cross-exam of D’s character witnesses
  2. Rape to show previous sexual behavior between the parties
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13
Q

Prosecution can initiate character

A

In homicide when D pleads self-defense can offer evidence of the victim’s peacefulness

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14
Q

Rape Character Admissibility

A
  • Inadmissible: generally to show sexual behavior or disposition
  • Criminal Admissible: Criminal case to show
    1) Source of semen
    2) Injury or
    3) Other physical evidence
    4) SPECIFIC INSTANCES of previous sexual behavior between the parties to show prior consent
  • Civil Exceptions: evidence of sexual behavior is admissible if it is not excluded by any other rule and its probative value substantially outweighs harm- Reverse 403- high bar
  • In civil or criminal: evidence of a defendant’s other sexual assault or molestation is admissible where the defendant is accused of the same act, *must give notice of 15 days
  • Can be used to show propensity to commit sex crimes
  • **WISCONSIN ONLY:
    CRIMINAL: prior experiences are generally inadmissible except to show
    1) Past conduct with the defendant
    2) Specific instances showing the source of injury or physical evidence or
    3) Prior untruthful allegations of sexual assault
    *Manner of dress at the time the crime occurred is inadmissible unless relevant to a contested issue at trial and its probative value substantially outweighs the danger of unfair prejudice- very tough to pass
    CIVIL: similar to federal rule but admissible is the
    1) Instances of consensual sexual conduct between the victim and the defendant and
    2) Instances of other sexual conduct that are probative of the actual cause of the victim’s injuries
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15
Q

Character Evidence Civil Cases

A
  1. Character evidence is inadmissible unless essential issue- no propensity
  2. Character cases: defamation, child custody, fraud, and negligent entrustment action
  3. Party testifies they place their credibility for truthfulness in issue- prosecution can impeach 
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16
Q

Authentication Factors

A
  1. Authentication
  2. Best Evidence Rule
  3. Hearsay
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17
Q

Handwriting v. Oral

A

Handwriting cannot be in anticipation of litigation except for expert- oral can be for the sole purpose of litigation

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18
Q

Ancient Documents

A

document can be authenticated by evidence that it is:
 20 years old at least when offered into evidence
 Is in condition that creates no suspicion to authenticity; and
 Was found in a place that writing would likely be kept
 Applies to all writings not just dispositive instruments like deeds and wills
 Hearsay exception: must be prepared before 1998, not 20 years

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19
Q

Witness Competency

A

Presumed comepetent, Federal: must have personal knowledge and give oath

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20
Q

Juror Competency

A

May not testify before matter they are residing in May testify to: outside prejudice or influence, mistake on verdict form or racial stereotypes

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21
Q

Dead man Act

A

Civil: interested person is incompetent to testify to transaction with deceased if they directly benefit- not in WI

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22
Q

Refreshing Recollection

A

May use, not read, not in evidence unless adverse party requests

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23
Q

Recorded Recollection

A

May use to read if refreshing does not work, must:
- personal knowledge
- insufficient recollection
- made or adopted record
- made when fresh
*Still not admitted unless adverse offers

24
Q

Opinion Testimony: Lay Witnesses

A

only admissible if rationally based on the perception of the witness, helpful to fact in issue, no specialized knowledge- can testify to appearance, emotions, speed, intoxication, value of own property- cannot give legal conclusions or whether they were an agent

25
Q

Opinion Testimony: Experts

A

. Qualification as expert: must possess special knowledge skill or training
. Proper factual basis: either on 1) personal observation; 2) facts made known the expert at trial, or 3) reasonably relied on other experts in the field (but cannot state what the other expert said, hearsay)
. Reasonable probability: regarding their opinion, mere guess is not enough
. Reliability: judge is gatekeeper, use Daubert Factors:
T: Testing of principle or methodology
R: Rate of error
A: Acceptance by experts in the same discipline
P: Peer review and publication

26
Q

Learned Treatises

A

impeach & substantive evidence- not in evidence, read in

27
Q

Impeachment: Specific Instances Allowed

A
  1. Prosecutor cross of d’s character witness
  2. Victim’s Character for non-propensity-to make actions reasonable
  3. Rape- previous sex between parties to show prior consent or source of semen, injury or evidence
  4. Wisconsin: rape also to show prior untruthful allegations of sexual assault
28
Q

Impeachment: Specific to Current Case

A

Admissible to substantive if under oath (not under oath in WI)
Extrinsic evidence can be used if they are given change to explain and cross to rehabilitate
Can show: bias or interest, sensory deficiencies, contradictory facts

29
Q

Impeachment: Untruthfulness Not Specific to Current Case

A

Opinion or Reputation cannot use specific instances
Conviction of a Crime: w/in 10 years crimes involving dishonesty or any felony
Bad Acts: probative of truthfulness, not extrinsic or arrests- can ask if they embezzled
Hearsay Declarant: can use evidence, do not need to be given opportunity to explain

30
Q

Impeachment: Rehabilitation

A
  1. Explain on Redirect
  2. Good Character for truthfulness: allowed to meet the attack e.g. if bad eyesight cannot bring for truth
  3. Prior Inconsistent Statement: can use if lying or exaggerating with motive (sleeping with driver) or impeached to rehabilitate
  4. Appealing Admission of Prior Conviction- can introduce themselves but fed: cannot raise on appeal if they raise, WI: can raise on appeal if they objected first
31
Q

Admissible Exempt Hearsay

A
  1. Statements of Opposing Party
  2. Prior Statements of Testifying Witness if previously under oath
  3. Vicarious Statements: agents, partners, co-conspirators if within scope
32
Q

Former Testimony: Unavailable Hearsay Exception

A
  • Admissible if:
    1) Testimony is given under oath
    2) Against whom the testimony is not being offered
    3) Civil: on the same subject matter
  • *Grand Jury proceedings do not provide cross examination
33
Q

Statements Against Interest: Unavailable Hearsay Exception

A
  • Unavailable
  • Admissible if against their pecuniary, proprietary or penal interest when made WI: also Social interest
  • Policy: they would have no reason to lie
  • Limitation on Penal Interest: CRIMINAL: statements that would subject the declarant to criminal liability must be corroborated
  • Statement is limited to the single remark not the entire statement, I sold the drugs and x runs the drug ring- I sold the drugs- ok, x runs the drug ring- not admissible
34
Q

Dying Declaration: Unavailable Hearsay Exception

A
  • Believed their death was imminent *need not actually die like the old CL
  • Statement concerned the cause or circumstances of their impending death
  • CRIMINAL: Can only be used in Homicide – if any other criminal crime not allowed
  • CL: declarant had to die and could only be used in Civil cases
  • ** WISCONSIN ONLY: Can be used in all types of criminal and civil cases- no homicide limitation
35
Q

Unavailable Hearsay Exceptions

A
  1. Former Testimony
  2. Statements against interest
  3. Dying Declaration
  4. Statements of Family History
  5. Hitman rule: statement offered against party procuring declarant’s unavailability
36
Q

Statements of Family History: Unavailable Hearsay Exception

A

Statement of an unavailable declarant concerning births marriages divorces relationships are admissible provided
1) the declarant was a member of the family and
2) the statements were based on their personal knowledge

37
Q

Hitman’s Rule: Unavailable Hearsay Exceptions

A

If motivation was to prevent the declarant from testifying, the statement is admissible

38
Q

Available Hearsay Exceptions

A
  1. Excited Utterances
  2. Presence Sense Impression
  3. Present State of Mind
  4. Medical Diagnosis
  5. Business Records
  6. Official Public Records
  7. Recorded Recollection
  8. Reports: Treatises, Ancient Documents, Property Interest, Reputation, Family Records, Market Reports
  9. WISCONSIN: Statements of Recent Perception
  10. Catch-all Exception
39
Q

Excited Utterances

A
  • Relating to a startling event
  • Made while under the stress of the excitement from the event
  • Policy: excitement suspends the capacity to fabricate
  • *Sometimes a failed dying declaration can be an excited utterance
40
Q

Present Sense Impression

A
  • Statement that describes or explains an event or condition
  • Made during or immediately after the event is perceived
  • *Difference from excited utterance- need not be startling event
  • On exam, if it could meet both do both analysis
41
Q

Present State of Mind

A
  • Statement of declarant’s then existing state of mind, including their motive, intent, or plan
  • Emotional, sensory or physical condition is admissible
  • Statements of intent are admissible
  • Policy: contemporaneous statement and the declarant has unique knowledge of their condition
  • Statement of memory or belief is not admissible
42
Q

Medical Diagonsis or Treatment

A
  • Statement describes medical history, past or present symptoms or their general cause if it was made for and reasonably pertinent to medical diagnosis or treatment *different from Medical help because that is only current symptoms
  • Does not have to be for your own condition, may be for family member
  • Usually made to hospital personnel, but not required
  • Policy: motivate people to be honest and accurate about medical assessments
  • Will not include statements that purely assign blame
  • Child abuse exception: many states recognize when child victim identifies their abuser
  • Doctor can be used that was only hired to testify
43
Q

Business Records

A
  • Writing mad as a memo of any act, event, condition, opinion, or diagnosis if the following elements are met:
    1) Business: including any business, organization, occupation, or nonprofit
    2) Entry made in regular course of business
    3) Business must regularly keep such records
    4) Made near the time of the event
    5) Personal knowledge of someone with a duty to transmit the information
  • Foundation: authenticity must be established by a sponsoring witness, custodian of records by either 1) testifying to elements or 2) certifying the records
  • Nonoccurrence of Matter: may be used to prove the nonoccurrence of matter if it was the regular practice to record
  • Lack of Trustworthiness: Court may exclude if the opponent makes a showing of untrustworthiness
  • **Watch for fact patterns involving police reports that contain statements from bystanders who are not part of the organization who generally are not under a business duty to convey the information. Although the report itself (the outer hearsay—the entrant’s assertion that the bystanders made these statements) may qualify as a business record, the bystanders’ statements within it (the inner hearsay) do not and will need to fall within some independent hearsay exception or exclusion (for example, statement by opposing party). On the other hand, if the report merely contains the entrant’s own observations, or statements of persons under a business duty to report the information, the entire report may be admissible under the business records exception.
44
Q

Official Records

A
  • Public Records and Reports: admissible that show 1) the activities of the agency 2) record matters observed (but not police observations in criminal cases) and 3) factual findings resulting from an investigation- e.g. FAA report on plane crash, but not against defendant in criminal case
    **Cannot be an outsider
  • Records of Vital Statistics: if reported to a public office in accordance with a legal duty
  • Statement Absent a Public Record: testimonial evidence that no record exists is admissible to prove that the matter was not recorded and did not occur.
    *Criminal Case: must notify defense at least 14 days before trial and no written objection within 7 days
  • Judgments: Certified copy is admissible proof that judgment has been entered but the facts proven depend on the case:
     Prior Criminal Conviction, Felony: conviction admissible in criminal or civil to prove any fact essential to the judgment – but in criminal may only use against defendant to prove essential facts and witnesses for impeachment
     Prior Criminal Acquittal: Excluded, bc the evidentiary standard is higher in a criminal case than civil so it would not be indicative
     Judgment in Prior Civil Case: Generally Excluded: standard of proof in criminal is higher but can be used for civil proceedings in certain statutory allowances like family history or boundaries of land
45
Q

Wisconsin: Statements of Recent Perception

A
  • Statement by an unavailable declarant is admissible if it narrates, describes, or explains and event or condition recently perceived by the declarant and meets the following conditions:
    1) It was made while the declarant’s recollection was clear
    2) In good faith
    3) Not made in response to a person investigating, litigating, or settling a claim
    4) And not made with the contemplation of pending litigation in which the declarant would be an interested party
  • Similar to present sense impression and excited utterances but is more flexible to the timing of the statement. Only most necessary and reliable statements are admitted
46
Q

Catch-all Exception

A
  • Must be trustworthy and court will consider 1) totality of the circumstances, 2) evidence that corroborates statement
  • Statement is strictly necessary- the most probative evidence possible
  • Reasonable notice of intent to offer: 1) substance of statement and 2) name of declarant
47
Q

Constitutional Issues

A

Confrontation Clause
- Will not be admitted against the accuse in a CRIMINAL case where:
 Statement is offered against the accused in a criminal case
 Declarant is unavailable
 Statement was testimonial in nature, and
 The accused has no opportunity to cross-examine the declarant prior
*Loses right if hitman rule is in effect

  • Testimonial: Primary purpose is to provide information for later prosecution 911: John just stabbed me and left & Forensic Analysis
  • Nontestimonial: to aid in ongoing emergency: 911: John is stabbing me, send help
    Due Process
  • Hearsay and other exclusionary rules cannot be applied where application would deprive the accused of their right to a fair trial or right to compulsory process
48
Q

Testimonial Privileges

A
  • Federal CL Privileges:
     Attorney Client
     Spousal Immunity & Marital Communications
     Psychotherapist/Social Worker
     Clergy
     Governmental
     Do not recognize other state privileges: physician accountant journalist
  • Waiver: privilege is waived by 1) failure to claim or 2) voluntary disclosure by the privilege holder or 3) contractual provision
    *Privilege is not waived if someone wrongfully discloses without the holder’s consent, waiver by one joint holder does not affect the right of the other to assert the privilege
49
Q

Attorney Client Privilege

A
  • Communications made during professional consultation are privileged
  • Applies to
     Confidential Communications- does not apply to underlying information, pre-existing docs, or physical evidence
     Between attorney and client, or representatives of either (corporations can be clients) ** WISCONSIN ONLY: Lawyer is a person authorized or reasonably believed by the client to be authorized in any state or nations
     Made during professional legal consultation
     Unless the privilege is waived or an exception is applicable
  • ** WISCONSIN ONLY: Any attorney representing another in a matter of common interest-co-defendant’s co-counsel- is also protected when made for the purpose of facilitating the legal services
  • **Exam: Communications between a client and a doctor during an examination made at the attorney’s request (this is usually done to help the attorney evaluate the extent of the client’s injuries). Be careful—the physician-patient privilege (infra) does not apply because no treat- ment is contemplated. However, the attorney-client privilege will apply to these communications between the client and a consulting doctor, as long as the doctor is not called as a testifying expert.
50
Q

Physician Privilege- State only

A
  • STATE privilege only
  • Privileged if:
    1) Professional relationship for medical treatment
    2) Information was acquired for the purpose of diagnosis or treatment, and
    3) Information was necessary for diagnosis or treatment- who is at fault is not privileged
  • Patient is the holder of the privilege
  • Exceptions: patient puts their physical condition in issue, was sought to aid in wrongdoing, dispute between patient and physician-med mal, patient agreed by contract to waive, federal case recognizing federal law
  • APPLIED IN DIVERSITY ACTIONS
51
Q

Psychotherapist & Social Worker Privilege

A
  • Federal Court recognition- use before physician
  • Operates same at physician
  • Exception: does not apply when patient puts their mental condition at issue- emotional injuries or insanity
52
Q

Wisconsin: Health Car Provider Privilege

A
  • Combined medical and mental health privilege that applies to physicians, psychologists, nurses, social workers, therapists, podiatrists, naturopathic doctors, and professional counselors
  • Exceptions:
     Condition is element of claim or defense
     In commitment, guardianship or protective services proceedings
     Court ordered examinations
     Homicide trials where disclosure relates to circumstances of the homicide
     Report of child abuse or neglect
     Threat of school violence
     Tests for intoxication
     Paternity proceedings
     Wound or burn reports
     Information obtained by an intake worker for juvenile matters
53
Q

Marital Privilege

A

Spousal Immunity
** WISCONSIN ONLY: Not Recognized- only recognize the confidential Marital Communications
- CRIMINAL ONLY
- Cannot be compelled to testify against other, but may do so voluntarily
- Witness spouse hold the immunity alone
- Claimed only during marriage, but covers information before and during

Confidential Marital Communications
- Criminal and Civil
- Made in reliance upon the intimacy of the marital relationship, not in front of others
- Both spouses hold privilege and can prevent the other form disclosing
- Privilege survives marriage, but only covers statements made during marriage
Exceptions to Both
- Communications in furtherance of joint crime or fraud
- Legal actions between spouses
- Crime is against the other spouse or children

54
Q

Other State Privileges

A

Clergy
Self-Incrimination
Governmental Privileges
Accountant
Journalist
WI Only: Advocate Victim, Political Vote, Trade Secrets

55
Q

Criminal Character

A
  1. No propensity
  2. Defendant can introduce RELEVANT good character trait evidence NOT OF SPECIFIC ACTS
  3. Open Door: Prosecution can rebut with evidence of bad character – NOT SPECIFIC ACTS
  4. Prior Bad Acts/Crimes- never admissible to show propensity, but maybe to show another point- MIMIC
  5. If defendant testifies he automatically places his credibility for truthfulness in issue- prosecution can impeach
56
Q

Civil Character

A
  1. Character evidence is inadmissible unless essential issue- no propensity
  2. Character cases: defamation, child custody, fraud, and negligent entrustment action
  3. Party testifies they place their credibility for truthfulness in issue- prosecution can impeach

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