Evidence Flashcards
What is Relevence
Evidence must be relevant in order to be admissible. Evidence is relevant if it is both;
1. Probative
a. evidence is probative if it has any tendency to make a fact more or less probable than it would be without the evidence
2. Material
a. evidence is material if it is a fact of consequence in determining the outcome of the action
Admissability of Character Evidence
In Civil cases character evidence is not admissible for propensity purposes unless
1. character is an essential element of the claim or defense; or
a. if character is an essential element of a claim or defense it may be shown by reputation opinion testimony or specific instances
2. the case is based on the defendant sexual misconduct
If the defendant opens the door by presenting evidence of positive character the prosecution may then introduce negative character evidence to rebut the defendant in two different ways;
1. the prosecution can call its own character witness
a. the witness is limited to reputation or opinion testimony (not specific instances of conduct)
2. the prosecution can cross examine the defendants character witness
a. on cross examination the prosecution can introduce evidence of specific instances as long as it relates to the same character trait in question.
Admissability of Character Evidence (Rape)
In cases involving rape evidence offered to prove a victim sexual behavior or predisposition is not admissible. However in civil cases involving sexual misconduct evidence offered to prove a victim sexual behavior or misconduct may be admissible if it is probative value substantially outweighs the danger of harm to the victim an unfair prejudice to any party.
Admissibility of Character Evidence (Specific Instances exceptions)
Specific Instances of conduct are generally not admissible to show propensity but are admissible to show: MIMIC
1. Motive (think about girl having a motive to lie about stepfather’s sexual advances because He grounded her) don’t
2. Intent
3. Absense of Mistake
4. Identiy
5. Common Plan of Shceme
Non- Hearsay
If an out of court statement is not offered to prove the truth of the matter asserted, the statement is not hearsay and is admissible. Common examples of statements that are not offered to prove the truth of the matter asserted include;
1. verbal acts of** independent legal significance**
2. statements offered to show the effect on the listener
3. statements offered to show the declarants** mental state** or state of mind;
4. and statements offered for impeachment purposes (1) bias, (2) character, (3) prior inconsistent statements, (4) contradiction, and (5) capacity.
“I Eat My Peaches”
Non-Hearsay Hearsay (Admissible)
The following are admissible non hearsay statements;
1. prior inconsistent statements
a. Declarant is testifying at trial and is subject to cross examination
b. statements were previously made under penalty of perjury
c. and the prior statements are inconsistent with present testimony being given at trial
i. If statements were not previously made under penalty of perjury they can be offered only for impeachment purposes.
2. Prior consistent statements are available to rebut a claim that the declarant is fabricating or has a recent motive to fabricate the statement in court if;
a. the declarant is testifying at trial in a subject to cross examination
b. and the prior consistent statement was made before the declarant had a motive to fabricate the statement
3. Prior statements of identification are admissible for substantive purposes if the declarant is testifying at trial and is subject to cross examination
4. Emotions by a party opponent are admissible as non hearsay.
a. Silence is considered an adoptive admission if the party heard and understood the statement and remained silent where reasonable person would have denied the statement
b. statements made by an authorized spokesperson an agent within the scope of and during the agency relationship our Co conspirators during and in furtherance of the conspiracy are considered vicarious admissions and are imputed on the party opponent.
Hearsay Exceptions (unavail)
Are probation revocation procedings admissbale evidence?
Yes, Rule 1101(d) states probation revocation proceedings are admissible.
Title Insurance Policies (Owner versus Lender)
A title insurance policy insures that a good record title of the property exists as of the policy estate and agrees to defend the record title if litigated.
The insurance can be taken out by either
1. the owner of the property or
2. the mortgage lender.
An owners policy protects only the person who owns the policy and does not run with the land to subsequent purchasers. In contrast a lenders policy follows any assignment of the mortgage loan.
If owner’s policy, then it does not run with land and ends with owner.
If lender’s policy, then it DOES run and assignee with have the policy when receiving interest in land.
Laymen Testimony Admissability
Opinions by lay witnesses are generally inadmissible. However, there are many cases where from the nature of the subject matter no better evidence can be obtained.
If no better evidence avail, then lay witness opinion testimony admissible.
Can a Witness testify about their knowledge
Witnesses can testify to any relevant matter about which they have personal knowledge, ie knowledge based on first hand observation or experience.
If Fact testimony
* Layman/ Expert: Personal Knowledge of fact
If Opinion testimoney
* Layman: Rational Perception, Clarifying, and not based on specified data
* Expert: Reasonble Certainty, Clarifying, based on reliable data
motion for new trial grounds
“VP Pen 28”
Within 28 days after entry of a final judgment a party can move for a new trial on several grounds:
* verdict not supported by clear weight of evidence
* Prejudicial trial error
* prejudicial misconduct by judge attorney party or juror
* excessive or inadequate damages
* newly discovered evidence
When can a declarent attatck and support statement about credabiltiy?
Once a hearsay statement has been admitted, dec may attatch and support statement to prove bias or motive.
Public Records
Public records may be authenticated through evidence that the document was recorded or filed in a public office as authorized by law or is from the office where the items of that kind are kept.
Authenticating documents
Required Disclosures Timeline
