EVIDENCE Flashcards
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 or less probable. It must be material and probative.
Rule 403
A trial judge has broad discretion to exclude relevant evidence if its probative value is substantially outweighed by the danger of one or more of the following considerations
- Danger of unfair prejudice
- Confusion of the issues
- Misleading the jury
- Undue delay
- Waste of time
- Needless presentation of cumulative evidence
Plaintiff’s Accident History - Prior False Claims or Same Bodily Injury
Evidence that a person has previously filed similar tort claims or has been involved in prior accidents is generally inadmissible to short the invalidty of the present claim. It may be admissible if it tends to show something other than carelessness
- evidence that P has made previous similar false claims is usually relevant to prove that the present case is likely to be false
- Evidence of prior accidents may be admissible to show where plaintiff’s damages are at issue that the plaintiff’s condition is attributable to the prior accident
Similar accidents or injuries by same event or condition
Generally, other accidents involving the defendant are inadmissible because they merely show the defendant’s general character for carelessness. However, evidence of prior accidents or injuries caused by same condition and occurring under substantially similar circumstances are admissible to prove
1. existence of a dangerous condition
2 that the dangerous condition was the cause of the present injury and
3. that the defendant had notice
Habit and Business Routine Evidence
Evidence of a person’s habit (or routine practice of organization) is admissible as circumstantial evidence that the person acted in accordance with the habit on the occasion at issues. Habit describes a persons regular response to a specific set of circumstances.
Liability Insurance
Evidence of a party’s insurance against liability is not admissible to show whether the party acted negligently or wrongfully. It may be admissible for other purposes such as
- to prove ownership or control, if disputed
- to impeach a witness or
- as part of an admission of liability, where reference to the insurance cannot be severed
Subsequent Remedial Measures
Evidence of repairs or other precautionary measures made following an injury is not admissible to prove negligence, culpable conduct, a defect in product or its design, or a need for a warning or instruction. It may be relevant to
- prove ownership or control, if disputed
- to rebut a claim that a precaution was not feasible, or
- to prove that the opposing party has destroyed evidence
Civil Settlements and Settlement Negotiations
Evidence of a compromise or an offer to compromise a civil claim is not admissible to
1. prove or disprove the validity or amount of a disputed claim or
2. to impeach a witness by prior inconsistent statement or contradiction
Settlement Negotiations (Disputed Claim Required)
The public policy exclusion for settlements and negotiations only kicks in if there was a claim or some indication that a party was going to make a claim. The claim must have been in dispute as to either (1) liability or (2) amount
Plea Discussions
The following are generally inadmissible in any criminal or civil case against the defendant who made the plea or participated int he discussions.
1. offers to plead guilty
2. withdrawn guilty pleas
3. actual pleas of nolo
4. statements of fact during any of the above discussions
An actual guilty plea (not withdrawn) is generally admissible in related litigation as a statement of an opposing party
Payments of and Offers to Pay Medical Expenses
Evidence that a party has paid or offered to pay an injured person’s medical expenses is inadmissible to prove liability. However, admissions of fact accompanying such payments are admissible.
Defendant’s character in criminal case
The prosecution cannot initiate evidence of the defendant’s bad character to show conformity. The defendant is permitted to introduce evidence of their own good character to show their innocence. If the defendant introduces evidence of their good character, then the prosecution can rebut with evidence of the defendant’s bad character.
How a Defendant Proves Character
A character witness for the defendant may testify as to the defendant’s good reputation for a pertinent trait and may give their personal opinion concerning that trait of the defendant.
Prosecutions Options - Cross Examination of Ds Character Witness and Rebuttal
The prosecution can cross examine Ds character witness and ask about specific act of the defendant to show the defendant’s bad character for the trait in question.
The prosecution also may call a character witness to provide reputation or opinion testimony about the defendants bad character for the trait.
Victims Character in Criminal Case - When D can Initiate - Prosecutions Rebuttal
Except in sexual assault cases, the defendant may introduce reputation or opinion evidence of a bad character trait of the alleged crime victim when it is relevant to show the defendant’s innocence. It becomes relevant when the defendant claim self defense and argues that the victim was the first aggressor. Once the D has introduce evidence of a victims character for a trait, the prosecution may rebut with reputation or opinion evidence of the victims good character for the same trait or the defendant’s bad character for the same trait.
When Prosecution Can Initiate - Rebutting Self Defense Claim in Homicide
If the defendant pleads self defense, evidence of any kind that the victim was the first aggressor, opens the door to evidence that the victim had a good character for peacefulness. The prosecutor may introduce this evidence regardless of whether the defendant has introduced character evidence of the victim’s violent propensity.
Rape Victims Past Behavior - Exceptions in Criminal Cases
Evidence to prove the sexual behavior or sexual disposition of the victim is generally inadmissible. In a criminal case, specific instances of the victim’s sexual behavior are admissible to prove that someone other than the defendant is the source of semen, injury, or other physical evidence. Specific instances of sexual behavior between the victim and the defendant are admissible by the prosecution for any reason and by the defendant to prove consent.
Rape Victims Past Behavior - Civil Cases
In a civil case, evidence of the alleged victim’s sexual behabior is admissible if 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.
Character Evidence in Civil Cases
Character evidence is generally inadmissible to prove conduct in conformity. It is admissible when proof of a person’s character is an essential element of a claim or defense. Generally limited to
-Defamation
-Negligent hiring or entrustment
-Child Custody Cases
MIMIC Evidence
Evidence of a person’s other crimes, wrongs, or acts is generally inadmissible. However, it is admissible if relevant to some issue other than their character or propensity to commit the crime. May include
Motive
Intent
Absence of mistake or accident
Identity
Common Plan or Scheme
** not comprehensive
May be proved by any evidence, such as, witness testimony, defendant’s criminal conviction, etc.
MIMIC evidence in criminal case
In a criminal case, the prosecutor must provide reasonable notice of any evidence of this type that the prosecutor intends to offer at trial.
Defendants Sexual Conduct
Evidence of a defendant’s other acts of sexual assault or child molestation is admissible in a criminal or civil case where the defendant is accused of committing an act of sexual assault or child molestation. Must disclose to defendant 15 days before trial.
Authenticating Photos and Videos
Photos and videos generally are admissible only if identified by a witness as a portrayal of certain facts relevant to the issue and verified by the witness as a fair and accurate representation of those facts.
Voice Identification
A voice can be identified by the opinion of anyone who has heard the voice at any time, including after litigation has begun and for the sole purpose of testifying.
General Conditions of Admissibility for Real Evidence
Real evidence must be relevant and meet the following requirements
1. Authentication by i) testimony of a witness that they recognize the object as what the proponent claims it is or ii) evidence that the object has been held in a substantially unbroken chain of possession.
2. If the condition of the object is significant, it must be shown to be in substantially the same condition.
Competency of Witnesses
Witnesses must pass tests of basic reliability to establish their competency to give testimony, but are generally presumed to be competent until the contrary is established. (i) There must be evidence sufficient to support that the witness has personal knowledge of the matter and (ii) witness must give oath or affirmation
Refreshing Recollection
A witness may use any writing or object for the purpose of refreshing their present recollection. They usually may not read from the writing while testifying. Whenever a witness has used a writing to refresh their memory while on the stand, and adverse party is entitled to (i) have the writing produced at trial (ii) cross examine about the writing and (iii) introduce portions of the writing relating to the witness’s testimony into evidence
Past Recollection Recorded
Where a witness states that they have insufficient recollection of an event to enable them to testify fully and accurately, even after they have consulted a memorandum or other record, the record itself may be read into evidence if a proper foundation is laid. The foundation must include proof that
1. the witness has insufficient recollection
2. the witness had personal knowledge of the facts when made
3. the record was made by witness or under their direction
4. the record was made when the matter was fresh and
5. the record accurately reflects the witness’s knowledge (satisfied if witness vouches for accuracy of the record)
Opinion Testimony by Law Witnesses
Opinion testimony is generally prohibited except in the cases where the courts are sure that it will be necessary or at least helpful. For a lay witness to give opinion testimony, the testimony must be (i) rationally based on the witness’s perception (ii) helpful to a clear understanding of the witness’s testimony or helpful to the determination of a fact in issue and (iii) not based on scientific, technical, or other specialized knowledge
