Evidence Flashcards
Lay Witness
Personal Knowledge/Perceptions; no conclusions; oath to testify truthfully
Lay opinions are allowed if rationally based on the witness’s perception; helpful to the trier of face; and are not based on scientific, technical, or other specialized knowledge
Cannot be a Witness
Judge or Juror (exc. - jurors may testify for the limited purpose of identifying improper outside influence, improper extraneous prejudicial info, or error on the verdict form)
Child Witness
regardless of age, can testify if can tell the difference b/w truth & lie
Expert Witness
Admit (lay foundation for topic they are testifying about by showing experience, edu, publications on that topic); can use outside material to give expert opinion; can give legal conclusions (except.: criminal cases – no expert legal conclusions re mental state about an element [e.g., intent] of a crime/defense)
knowledge, skill, experience, education, or training
if expert opinion relies on otherwise inadmissible facts or date, then the info may be disclosed to the jury if probative value in helping jury evaluate expert opinion substantially outweighs prejudicial effect
can pose hypos to experts, but cannot omit undisputed material facts
Court Control of Witnesses
Reasonable control to make sure Ws are examined to tell the truth, to stop wasting time, or to avoid embarrassing W
Daubert Standard
Admissibility of Expert Witness
Testimony must be product of reliable principles and methods. To determine reliability:
1.) expert’s theory is peer reviewed and published in scientific
2.) whether the theory is tested and subject to retesting
3.) the known or expected rate of error
4.) the existence and maintenance of standards and controls used
5.) whether is subject to a reasonable level of acceptance in the scientific community
Leading Questions
Not allowed on direct (except: hostile witness, an adverse party, a shy/young witness, jog a witness’s memory, lay a foundation, necessary to develop testimony); allowed on cross
Refreshing Recollection
Use any doc/pic to refresh W’s memory. NOT read into evidence.
can use literally anything. “campbell’s chicken noodle soup.”
while testifying, adversary has right to inspect the item, cross-examine, and admit pertinent portions into evidence
Excluding Witnesses
W1 cannot be in the courtroom to hear what the other Ws are testifying about (except: W1 is a party, statute allows it, if needed to properly present case (essential))
judge’s own discretion; mandatory at the request of either party
Roles
Judge = Qs of law & decisions of admissibility; Jury = Qs of fact & decisions re weight of evidence/facts
Objections
Evidence is admitted; must be timely & include grounds of making objection
Offer of Proof
Evidence is excluded; must offer why should be admitted to reserve appeal
Burden of Production
1st P must prove each element of crime/claimif P proves, then D must prove each element of defense
Burden of Persuasion
on P; Civil = PoE (51%); Criminal: BRD
Presumption
Once P meets burden of production, judge finds rebuttable presumption D is guilty/liable
Jury – may accept (D puts on defense), must accept (D does NOT put on defense), conclusive presumption (no contrary evidence bc cannot be debated [e.g., a statute])
Impeachment
Witness
W on stand [inc. D if on stand]; attacking W’s credibility (PIS, bias, or defect)
-Bias - intrinsic or extrinsic evidence
-PIS/Contradiction/Lie – 2 statements; can bring intrinsic & extrinsic evidence (inc. other W)
-CHARACTER FOR TRUTHFULNESS (form of evidence only apply here)
(1) Reputation or Opinion Testimony
(2) Prior Bad Act –> ONLY RELATES TO HONESTY/TRUTHFULNESS + INTRINSIC EVIDENCE
(3) Prior Convictions – Felony –> No, unless w/in last 10 years & passes balancing test); Crime of Untruthfulness –>Yes regardless if felony or misdemeanor = allowed intrinsic & extrinsic evidence
Impeachment & Collateral Matters
No impeachment on irrelevant matter
Impeachment & Substantive Evidence
(1) When a statement is a hearsay exception
(2) a question that impeaches a witness may also be used as substantive evidence if the question concerns a material fact or issue
Relevant
Tendency to make a fact more or less probable (probative) AND fact is of consequence to the outcome of the case (material); all relevant evidence admissible
Inadmissible Relevant Evidence
Unfair prejudice (lie detector test); mislead jury; confuse any issues; cause delays; waste time
Authentication
Evidence is what it claims to be (document, object, writing, voice recording, pictures, charts)
Proving authenticity – direct testimony ID object; special marking/distinctive; testimony by someone with personal knowledge who is familiar with the evidence [most common]), establishing a chain of custody (substantially unbroken history of custodians); comparison against authenticated specimen by expert or jury; x-ray images & electrocardiograms & infrared cameras (just need to show reliable)
Self-Authenticating – nature of doc authenticates itself (official, notarized, newspaper, seal on it)
Character Evidence
Defendant; dealing with bad things D did in past (could be P in civil). Not admissible bc too prejudicial
* Exceptions –
Civil: when character is at issue (defamation/libel/slander; child custody; negligent entrustment; misrepresentation or fraud) Opinion, Reputation, & Specific Acts allowed
sexual assault & child molestation–> specific acts allowed
Criminal:
(1) When D opens door with evidence of good character for peacefulness (for violent crimes) or honest/truthfulness (for dishonest crimes) Reputation or Opinion allowed [P can rebut this evidence w bad evidence that negates same trait Reputation or Opinion allowed ];
can only use specific instances of conduct when character is an essential element of the crime or the defense
(2) MIMIC Exception – circumstantial evidence to show motive, intent, mistake/absence of mistake, ID, or common plan or scheme. Other - to show knowledge of crime, opportunity to commit crime, consciousness of guilt
(3) If D is claiming self-defense, D can show victim was the aggressor
(4) If D is accused of child molestation or sexual assault, P can show evidence of other e.g., of child molestation by D
Habit Evidence
Routine practice; done all the time. Allowed against someone to show they do x all the time (but not liability)
routine practice of a business – allowed to show they acted in conformance w its habit
don’t need evidence to corroborate and don’t need eyewitnesses
Hearsay
NOT admissible. Out of court statement offered to prove the truth of the matter asserted. Can be nonverbal conduct if it is intended asa communicative assertion. silence can be treated as a statement if it is intended to make an assertion.
Not offered TOMA – Words of offer/acceptance; libel or slander; verbal acts that show motive or notice; effect on the listener; declarant’s state of mind; reputation; impeachment
Non-Hearsay
(1) Admissions (OP statement of guilt) –> Vicarious; Adoptive (silence when reasonable person would react/object);
2-4 = admissible if W subject to cross-examine
(2) Prior Consistent Statement (used to refute charge that something made up or improper motive or rehabilitate witness. must have been made before the motive to fabricate arose);
(3) Prior Sworn Inconsistent Statement;
(4) Prior ID
2-4 exceptions = declarant must testify & be subject to cross-examination
Unavailability Exceptions
Declarant must be unavailable (e.g., missing, coma, w protection program, dead, plead the 5th, etc.)
Vicarious Admission
Explicit authorization
employee or agent (statement by an agent/employee concerning a transaction w/in the scope of the agent/employee relationship and made during the existence of the relationship)
co-conspirator admissions
Effect on the Listener
Heard or read a statement and was thus put on notice of some info, obtained certain knowledge, had a certain emotion, or behaved reasonably or unreasonably
Declarant’s State of Mind
Not admitted for TOMA, but to show that the declarant believed the facts to be true. Generally, this typically arises when the info provides a motive or explanation for a subsequent act. (1) Knowledge of facts or (2) insanity or mental state (e.g., feeling fear)
Dying Declaration
Unavailability Exceptions.
(1) declarant unavailable (doesn’t have to be dead); (2) believes death is imminent; (3) say why they are dying; (4) applies in a homicide or civil case
Statement Against Interest
Unavailability Exceptions. Not an admission.
(1) declarant unavailable; (2) declarant is a non-party; (3) declarant makes a statement that makes them look liable or guilty about something it LOOKS like an admission (but is not bc they are a non-party)
if offered in criminal case and exposes declarant to criminal liability–> must be corroborated to indicate trustworthiness
Former Testimony
(1) declarant unavailable;
(2) party against whom former testimony is being offered must have been a party in the former case;
(3) former case is about the same subject matter as the current case;
(4) former testimony was made under oath;
(5) they had the opportunity and/or motive to examine (develop testimony) or cross-examine the W [so not grand jury proceeding]
Hearsay Exceptions
(1) Present Sense Impression
(2) Excited Utterance
(3) Then-Existing Mental, Emotional, or Physical Statement of Mind
(4) Business Record
(5) Statement for Medical Diagnosis or Treatment
(6) Recorded Recollection
(7) Public Record Exception
(8) Learned Treatise
(9) Ancient Document
(10) Catch-All Exception
Present Sense Impression
no emotion like a reporter. Time is crucial. (1) statement made (2) while observing (or immediately thereafter) (3) fact/circumstance
Excited Utterance
time is crucial. statement made while under stress. Like a PSI but excited
Then-Existing Mental, Emotional, or Physical Statement of Mind
statements that go to a person’s motive/intent/plan (planning, traveling, going somewhere, love/hate) or physical condition (in pain, suffering)
DOES NOT APPLY TO STATEMENT OF MEMORY OR BELIEF (exc. past statements regarding wills are admissible)
Business Record
record made during ordinary course of business (done all the time, everyday no matter what)
- Business Activity
- Regular Practice
- Personal knowledge (Firsthand knowledge by the original supplier of info, can be diff than recorder + business duty to report)
- Timeliness
EXCEPTION - BR in anticipation of litigation
Statement for Medical Diagnosis or Treatment
statement related to past or present symptoms, medical history, inception/general cause of symptoms relating to diagnosis or treatment (but not statements of fault)
Recorded Recollection
W once knew about this document (wrote it or adopted it around time when matter was still fresh in mind) but cannot remember. W can verify accuracy of document. You can put it in front of them. This is READ into evidence. Averse party may offer the document as an exhibit.
Public Record Exception
Record/statement of a public office or agency showing activities of the office (inc. judgments and prior convictions)
observations of a person under a duty to report observed in the line of duty at or near the time (e.g., a police officer. exc. cannot use in prosecution)
investigative reports (e.g., police report exc. cannot use in prosecution)
-Absence of Business Record or Public Record - Admissible
Learned Treatise
(1) A treatise relied on by/called to the attention of an expert W during examination; (2) Publication is established as a reasonably reliable authority by a party’s expert or by judicial notice
Can only be read passages into evidence. Jury cannot see the actual treatise.
Ancient Document
Document is more than 20 years old & is authenticated (no signs of tampering)
Catch-All Exception
- trustworthy
- material fact
- statement is more probative on the point than any other evidence obtainable through reasonable efforts
- interests of justice served
- notice given to opposing side
Right to Confront Witnesses
confrontation clause comes into play if declarant is unavailable. Admissibility will turn on whether the statement was testimonial or not.
If made to police during an emergency–> Not testimonial = admissible.
Testimonial = primarily for use in criminal investigation or prosecution = inadmissible UNLESS (1) declarant unavailable and (2) D had prior opportunity to cross-examine declarant
Demonstrative or Physical Evidence
Admissible. e.g., a scar, a limp
Testimonial Statement
Made during non-emergency situations where the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution (e.g., police interrogations, preliminary hearings, and grand jury proceedings)
Hearsay Upon Hearsay
NOT admissible. 2 statements (A told B, who then told C). gen business records or public records
Non-testimonial statements examples
Business records, statements by a co-conspirator during the conspiracy, statements made to police in an ongoing emergency, excited utterances, PSIs, state of mind statements, dying declarations
Attorney-Client Privilege
C holds privilege forever, even if C fires A, unless waived voluntarily. (1) A-C relationship (C believes A is his A), (2) anyone providing legal services on behalf of attorney for case, (3) reasonable expectation of privacy.
Includes A’s Work Product (except: work done only for attorney himself [e.g., fee statement])
Except – (1) go to A for advice to commit future crime or (2) if dispute b/w A & C, dispute is not privileged (3) jointly represented clients in subsequent litigation between those clients
FEDERAL LAW + CORPORATE CLIENTS
confidential communications privileged from employee that
(1) concerned matters w/in employee’s corporate duties and
(2) made for the purpose of securing legal advice for the corporation
Applies to attorney’s agent (e.g., consultant)
Doctor-Patient Privilege
Statements made to Dr. about treatment/diagnosis. Other people can be present in room if to help Dr (nurse, etc.) or patient (mom)
Except – (1) When patient puts his condition at issue or (2) Dispute b/w D-P
NOT A PRIVILEGE WHERE FEDERAL LAW APPLIES
Husband-Wife Privilege
Communications – Privilege survives divorce. Both hold privilege. Elements (1) Confidential talks b/w H & W; (2) Applies in criminal & civil cases; (3) statement must have been made when legally married; (4) Either spouse can refuse to disclose the info or prevent the other from disclosing; (5) both parties must waive privilege.
——-> includes both words and acts intended to communicate. it does not include acts observed during the marriage that were not intended to convey a meaning to the spouse
Testimonial – Spouse takes stand against other. Witness spouse holds privilege. (1) Criminal case; (2) One spouse called to testify against the other; (3) legally married during time of trial; (4) covers anything said before or during marriage; (5) privilege ends at divorce
Except for both – (1) statements about future crimes (“Bonnie-Clyde”) or (2) any statements re child or spousal abuse
Judicial Notice
Judge can take JN of any evidence not subject to dispute/opinion (e.g., day of the week). (1) notorious- generally known w/in community where court sitting OR (2) manifest - accurately and readily determinable from sources whose accuracy cannot be reasonably questioned (Well-established)
(1) J may take JN by himself,
(2) J must take JN if one party requests it;
(3) J must take JN if it’s federal or state law;
(4) J may take JN of foreign law or municipal ordinances.
Impact on Jury – Civil Case–> Jury MUST accept that fact as conclusive; Criminal Case –> Jury MAY accept that fact as conclusive
Can take JN on appeal as long as it is not unfair to the opposing party and does not disrupt the fact finder’s authority
Subsequent Remedial Measures
Evidence that you fixed something after the accident to prove liability. NOT admissible for liability bc it violates PP. Admissible to show:
- ownership or control
- rebut “unfeasibility”
- impeachment
collateral admission = ALLOWED
Liability Insurance
Evidence of existence of liability insurance to show negligence. NOT admissible for liability. Admissible to show
- ownership and control
- bias
- impeachment
Collateral admission = ALLOWED
Offer to Settle/Compromise
NOT admissible bc it violates public policy. Want to encourage people to settle. There must be a dispute [lawsuit, lawyers].
EXCEPTION - (1) witness bias, (2) negating contention of undue delay, (3) effort to obstruct a criminal investigation/prosecution (will settle civil suit with $$ on condition to not testify in criminal trial)
Collateral Admission = INADMISSIBLE ENTIRELY= Statements that include offer to settle PLUS admission = entire statement is inadmissible.
Offer to Pay Medical Expenses
NOT admissible bc it violates public policy. Admissible for any other purpose than liability. Statements that include offer to pay me PLUS admission = offer to pay me thrown out; admission admissible.
COLLATERAL ADMISSION ALLOWED
Plea Statements during Negotiation
NOT admissible (except – if it is coupled with another admissible statement and it would be fair)
Past Sexual Conduct of the Victim in a Sex Crime
NOT admissible. Evidence to show that the victim was engaged in other sexual behavior or their sexual predisposition. Don’t want to blame the victim
- Except
Criminal Cases: (1) shows consent; (2) protects constitutional rights of Defendant; (3) if physical evidence could come from someone else other than D
Civil Case: only if judge determines that probative value outweighs any prejudicial effect
Best Evidence Rule
BER APPLIES when a party is trying to prove the contents of a writing
BER DOES NOT APPLY when witness can testify from personal knowledge about the fact to be proved and that personal knowledge exists independent of the writing
Original (or reliable duplicate) of writing, recording, or photograph must be produced to prove its content (content at issue)
content at issue:
(1) document is used to prove happening of an event (e.g., video of bank robbery)
(2) document has a legal effect (e.g., audiotape of oral K) OR
(3) W is testifying based on facts learned from the document (e.g., x ray image). If need document to prove what W is testifying about & no alternative proof. If alternative proof exists, BER doesn’t apply
EXCEPTIONS:
- All originals lost or destroyed by means other than proponent acting in bad faith
-OG cannot be obtained by judicial process
- (1) D had control of OG; (2) D put on notice that OG would be subject of proof at trial; (3) D failed to produce OG at trial
- writing, recording, or photograph not closely related to controlling issue [collateral]
-admission by party (testimony, deposition, written statement)
-public record
Completeness Rule
Admitting only portion of document–>Must admit full document to show nothing taken out of context
Family Record
HEARSAY EXCEPTION Statement of fact about personal or family history contained in a family record
Psychotherapist-Patient Privilege
(1) Confidential Communication b/w therapist/social worker & patient is protected if made during the course of diagnosis or treatment of mental/emotional condition (Except: mental condition at issue, communication made during court-ordered mental exam, communication introduced at involuntary commitment proceeding)
(2) Patient holds privilege & psychotherapist must assert in patient’s absence
Records & statements affecting property interest
HEARSAY EXCEPTION
records - kept in public office that affects property interest
statement - statement in documents affecting property interest admissible if (1) the matter stated is relevant to document’s purpose + (2) later dealings w property do not contradict truth of statement
Doctrine of Curative Admissibility
Otherwise inadmissible evidence (e.g., hearsay) may be admitted to rebut prejudicial evidence that has already been improperly admitted. Only available when:
-prejudicial evidence was improperly admitted through no fault of the party prejudiced by the evidence
- prejudiced party objected to and moved to strike the prejudicial evidence
- an instruction to disregard that evidence is insufficient to remedy the prejudice caused by its improper admission
Privileges
apply in all proceedings including grand jury
fed privilege rules apply in federal court
state privilege rules apply in fed court diversity jx
Impeachment (Second W testifying against 1st re PIS)
PIS admissible as impeachment (NOT substantive unless hearsay exception)
can have second W testify about PIS if impeached witness has the opportunity to explain or deny and the adverse party can examine the W about the inconsistent statement (i.e., as long as first W can be recalled)
Impeachment using pardons
cannot be impeached w conviction if subject of a pardon, annulment, or certificate of rehabilitation based on a finding of innocence or a finding of rehab w no subsequent felony convictions
Jury Testimony
(1) extraneous prejudicial info brought to jury’s attention
(2) outside influence improperly brought to bear on a juror
(3) a mistake in entering the verdict into the verdict form
Good Character Evidence (Criminal)
may offer evidence of good character if:
-an essential element to the charged crime or defense - must be proven for conviction/defense (reputation, opinion, SIC)
-Pertinent element - relevant but not crucial (opinion/reputation)
Sequence and scope of witness examination
- Direct - any relevant matter presented by qualified witness
- Cross - Limited to scope of direct & witness’s credibility (court may broaden scope)
- Redirect - Limited to significant new matters raised on cross (court may broaden scope)
- Recross - Limited to significant new matters raised on redirect (court may broaden scope)
Common Law Privileges
Attorney - Client (+ work product)
Spousal (communications/testimonial)
psychotherapist - patient
religious
attorney-client privilege for corporate client
confidential communication is privileged if:
- made by employee for express purpose of securing legal advice AND
- related to employee’s specific corporate duties
non-hearsay
dog’s bark, automatically generated timestamp fax, printout from computerized telephone-tracing equipment, data generated by forensic lab’s diagnostic machine
Establishing a Chain of Custody for Authentication
substantially unbroken history of the item’s condition, location, and custodians from when it was acquired to when it was presented in court
Preliminary Questions re: Admissibility
Must be conducted outside the presence of the jury if:
- involves admissibility of a confession
- a defendant in a criminal case is a witness and so requests or
- justice so requires
