Evidence Flashcards
PRESENTATION OF EVIDENCE
TOPICS:
Witnesses
Judge & Jury
Objections & Offers of Proof
Burden of Persuasion & Production
Impeachment
Lay Witnesses
(1) Who can be a lay witness
(2) What can/cannot lay witnesses testify about?
- Anyone, including children, can be a lay witness (except judge or jury)
- Can testify as to knowledge/perception, but not expert opinions.
Expert Witnesses
(1) What must the lawyer do?
(2) Is outside evidence permissible?
(3) What can/cannot expert witnesses testify about?
1) Must lay foundation/qualify expert
2) Expert can use outside evidence
3) Expert can give opinion on conclusions; Expert cannot give opinion on mental state of defendant if element of crmie
Control of Witnesses
The Court can take steps to keep “reasonable control”
Leading Questions
(1) When are they not allowed?
(2) When are they allowed
(1) Not allowed on Direct
(2) Allowed:
- Cross Exam
- Hostile witness
- Adverse party,
- Shy witness/child
- Jog memory
- Lay foundation
Refreshing Memory/Recollection
(1) What can you show?
(2) Can it be read into evidence?
(1) May show anything to a witness
(2) Cannot be read into evidence
Judge & Jury
(1) What does the Judge handle?
(2) What does the jury handle
(1) Judge: rules of law + admissibility
vs
(2) Jury: questions of fact + weight of evidence
Objections and Offers of Proof
(1) What is an Objection to Admission?
(2) What is an Offer of Proof?
(1) Objection to admission: must be timely and lawyer states grounds for objection
(2) Offer of proof: evidence was actually excluded and lawyer preserves for appeal
Burden of Persuasion & Production
(1) What is the Burden of Production?
(2) What is the Burden of Persuasion?
(1) Burden of Persuasion: P must prove each element
vs
(2) Burden of Production:
- Civil: Preponderance
- Criminal: BaRD
Presumptions
(1) What is a presumption?
(2) What is a rebuttable presumption?
(3) What is a conclusive presumption?
(1) Presumption: A conclusion a judge must come to once a party meets its burden
(2) Rebuttable Presumption:
* If prsmpt WAS rebutted - Jury MAY conclude
- If prsmpt NOT rebutted - Jury MUST conclude
(3) Conclusive Presumption: Jury MUST conclude
Character vs Impeachment
Character Evidence:
1) WHO is Character Evidence about?
2) WHAT is Character Evidence
3) Is Character Evidence generally admissible?
Impeachment:
4) WHO is Impeachment about?
5) WHAT is Impeachment about?
6) Is Impeachment generally admissible?
Character Evidence:
1) Character evidence is about the DEFENDANT.
2) Character evidence is about bad things D did in the past.
3) Character evidence is generally NOT ADMISSIBLE.
Impeachment:
1) Impeachment is about WITNESS ON THE STAND (including the Defendant, if he takes the stand).
2) Impeachment is about attacking W’s CREDIBILITY.
3) Impeachment evidence is GENERALLY ADMISSIBLE.
Impeachment
When may you impeach by:
(1) Prior Felony Convictions?
(2) Prior F or M Convictions regarding Honesty/Truthfulness?
(3) Prior NON-Convictions (Bad Acts)?
(1) You may impeach by Prior Felony CONVICTION if it occurred within 10 years and passes balancing test.
(2) You may ALWAYS impeach by Prior F or M CONVICTION regarding honesty/truthfulness, and it may be proved by rep/op/acts.
(3) You may ONLY impeach by prior NON-Conviction (Bad Acts) if it relates to honesty/truthfulness, and you may NOT use extrinsic evidence
When may a statement be used as Impeachment AND Substantive Evidence?
ONLY if (1) admissible impeachment AND (2) not hearsay.
RELEVANCY & EXCLUDING RELEVANT EVIDENCE
TOPICS:
Relevant Evidence
Authentication
Character Evidence
Habit Evidence
Relevant Evidence
(1) What makes evidence relevant?
(2) When may relevant evidence nonetheless be excluded?
(1) Any tendency to make a fact more or less probable. Generally admissible.
(2) Unfairly prejudicial, misleading or confusing, causes delay.
Authentication
(1) What must be shown?
(2) How do you authenticate?
(3) What evidence is self-authenticating?
(1) Must show “the evidence is what it purports to be”
(2) By direct testimony, by special markings, by testimony with PERSONAL KNOWLEDGE
(3) Official/Notarized Documents, NEWSPAPERS, Seals
Character Evidence
What is Character Evidence?
Character evidence: bad things DEFENDANT did in the past. Generally NOT admissible, too prejudicial.
Character Evidence
Character ADMISSIBLE in CIVIL CASES When?
(1) _______________; (1), (2), (3), (4)
(2)
If ADMISSIBLE, how may it be proved?
(1) When at issue; (1) Defamation, (2) Child Custody, (3) Negligent Entrustment, (4) Misrep/Fraud
(2) To show MIMIC (not propensity)
Motive
Intent
Mistake (absence of)
Identification
Common Plan or Scheme
Character Evidence
When is Character Evidence NEVER admissible:
(1) in CIVIL cases?
(2) in CRIMINAL cases?
(1) Civil: When character evidence is NOT at issue AND it is not used to show MIMIC
(2) Criminal: before Defendant OPENS THE DOOR
Character Evidence
(1) Self-Defense Claim
(2) Prior Sexual Acts
(1) D can show P was INITIAL AGGRESSOR
(2) P can bring in OTHER INSTANCES of these acts
Habit Evidence
(1) What is Habit Evidence?
(2) How can you prove habit?
(1) AKA “Routine Practice”
Must be done ALL the time
(2) ONLY though opinion/acts. Habit CANNOT be proved through REPUTATION.
Attorney/Client Privilege
1) There must be a RELATIONSHIP
2) Applies to ANYONE who works for the attorney
3) Lasts FOREVER
4) Communication must be CONFIDENTIAL
5) Privilege is held by the CLIENT
Work Product
Generally protected by Attorney/Client Privilege
EXCEPTIONS to Attorney/Client Privilege
Getting advice on how to commit a crime
Dispute between Attorney & Client
Doctor/Patient Privilege
Statements ABOUT treatment or diagnosis
Others can be present to assist doctor (nurse) or patient (mom)
EXCEPTIONS to Doctor/Patient Privilege
1) Patient puts his condition at issue
2) Dispute between Doctor & Patient
Spousal COMMUNICATION Privilege
Protects confidential information disclosed during marriage. Have to have been married.
Survives divorce.
Applies to all cases.
EITHER Spouse may exert it.
BOTH Spouses must waive.
Spousal TESTIMONY Privilege
Prevents a spouse from testifying.
Applies ONLY to CRIMINAL cases.
Must be married a trial for it to apply.
ENDS upon divorce.
Witness-Spouse holds the privilege (their choice).
EXCEPTIONS to BOTH Spousal Privileges
Statements about FUTURE crimes
Statements about child/spouse abuse
Judicial Notice
(1) What is judicial notice?
(2) When MUST a judge take judicial notice?
(3) When MAY a judge take judicial notice?
1) Stuff that is not subjected to dispute
2) if a party request him to do so
3) At any time
Judicial Notice of Law
(1) What law MUST the judge take judicial notice of?
(2) What law MAY the judge take judicial notice of
1) Federal or state law
2) Foreign law or municipal ordinance
Judicial Notice of Jury Instructions
1) Civil
2) Criminal
1) Jury MUST accept as conclusive
2) Jury MAY accept as conclusive
PRIVILEGES AND OOTHER POLICY EXCLUSIONS
Public Policy Exclusions
Subsequent Remedial Measures
Evidence that something was fixed after an accident.
NOT ADMISSIBLE to show negligence.
Public Policy Exclusions
EXCEPTION to Subsequent Remedial Measures
Admissible to show OWNERSHIP or CONTROL
Public Policy Exclusions
Liability Insurance
NOT admissible to show negligence.
MAY be admissible to show bias.
Public Policy Exclusions
Compromise/Settlement Offer
NOT admissible. But there must be a LEGAL DISPUTE for the privilege to exist (not an offer to pay $10k after a car accident).
Public Policy Exclusions
Compromise/Settlement Offer COUPLED WITH an ADMISSION
It does not matter. The WHOLE statement is inadmissible.
Public Policy Exclusions
Offer to Pay Medical Expenses
NOT admissible.
Public Policy Exclusions
Offer to Pay Medical Expenses COUPLED WITH an ADMISSION
Severed –> the ADMISSION is ADMISSIBLE.
Public Policy Exclusions
Plea Negotiation Statements
Almost always NOT admissible.
Only admissible if COUPLED WITH an admissible statement and FAIR
Public Policy Exclusions
Past Sexual Conduct of Victmi
Not admissible, unless
Criminal Case + consent, protects constitutional rights, or the source of any physical evidence
Civil Case + ONLY if probative>prej
WRITINGS, RECORDINGS, AND PHOTOGRAPHS
Best Evidence Rule
What is it?
What is the exception?
The Best Evidence is the original.
The Best Evidence Rule does not apply to objects.
Exception to BER –> original item is lost or destroyed, you may use a copy if it AUTHENTICATED (no evidence of tampering)
Best Evidence Rule
When does it apply?
(1) To prove the contents of a document
(2) To prove the testimony being given
Rule of Completeness
What is it?
When admitting a portion, the whole document may be admitted for fairness (so long as it is relevant).
