Evidence Flashcards
Logical Relevance
Probative. and material
Legal Relevance
Court may exclude evidence if its probative value is substantially outweighed by: unfair prej, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence
Subsequent remedial measures
Not admissible to prove negligence, defective product design or culpable conduct
Subsequent remedial measures admissible
to show agency, ownership, or control of property for impeachment purposes
compromise offers and settlement negotiations
Not admissible to: (1) prove or disprove the validity or amount of a disputed claim or (2) impeach a witness by prior inconsistent statement or contraction.
*Evidence of settlement is admissible to impeach a witness on the ground of bias
Offers to pay medical expenses
not admissible to prove liability for injuries. Conduct or statements accompanying the offer to pay are admissible (factual admissions accompanying an offer to pay are admissible)
Guilty Pleas
not admissible: withdrawn guilty pleas, no contest pleas, statements made while negotiating with prosecutors, and statements made during plea negotiations
when guilty pleas admissible
If fairness dictates or for perjury hearings
Liability insurance
not admissible to prove whether the person acted negligently or otherwise wrongfully, but may show bias, prejudice, proving agency, ownership, or control
character evidence
Character evidence is evidence of a person’s character or a person’s specific character trait. Three forms: reputation, opinion, specific instanves
Character evidence in civil cases
Not admissible for propensity purposes unless character is an essential element of a claim or defense OR the case is based on the defendant’s sexual misconduct
Character evidence in a criminal case
Prosecution CANNOT introduce evidence of a defendant’s bad character to prove that the defendant has the propensity to commit a crime
Character evidence in criminal case raised by D
D may open the door and present positive character evidence as long as it is pertinent to the crime charged and through reputation or opinion testimony
Prosecution rebutting D’s character evidence
Can rebut by calling its own character witness (who is limited to opinion or reputation testimony) or cross examining d’s character witness (Qs about specific instances allowed)
Evidence of victim’s character in criminal cases
A criminal defendant may introduce reputation or opinion testimony of the victim’s character if it is relevant to one of the defenses asserted. Prosecution may rebut with evidence that D has same character trait or victim has a relevant positive trait
Sexual Evidence in civil cases involving sexual misconduct
Evidence offered to prove a victim’s sexual behavior or misconduct may be admissible if its probative value substantially outweighs the danger or harm to the victim and unfair prejudice to any party
Character Evidence in Homicide Cases
Prosecution may admit evidence of a victim’s character for non-violence only if the defendant claims the victim was the aggressor
When specific instances of conduct are allowed - MIMIC
Specific instances of conduct are generally NOT admissible to show propensity, BUT are admissible to show: motive, intent, absent of mistake, identity, or common plan or preparation
MIMICS are allowed if:
(1) sufficient evidence to support a jury finding that the defendant committed the prior act AND the probative value of the specific instances of conduct is NOT substantially outweighed by the danger of unfair prejudice to the jury
Habit
may be admitted to prove that on a particular occasion, person acted in accordance. Court may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness
Impeachment for Character
A witness’s credibility may be attacked by introducing character evidence of the witness’s untruthfulness through reputation or opinion testimony. NO BOLSTERING. On cross, creds may be attacked with specific instances if (1) specific instance regards the truthfulness of the witness; (2) there is a good faith belief in the prior misconduct; AND (3) the specific instance does NOT involve an arrest or a consequence of an arrest
Extrinsic evidence and impeaching character
NOT admissible !!
Impeachment by Prior Conviction
felony or misdemeanor involving dishonest admissible (subject to ten year restriction), prior felony not involving dishonesty in if it is legally relevant
10 year limitation
If more than 10 years has elapsed since conviction or release (whichever is later) of ANY crime, the prior conviction is subject to a reverse legal relevance test. Party introducing has to show the probative value substantially outweighs danger of unfair prejudice
Evidence of prior conviction is not admissible if the conviction was:
pardoned, annulled, or later found innocent
Impeachment with PIC
A witness’s credibility may be attacked by introducing the witness’s prior inconsistent statements. Extrinsic evidence may only be introduced if the witness is given an opportunity to explain or deny the prior inconsistent statement. Extrinsic evidence of a prior inconsistent statement CANNOT be used to attack creds re a collateral matter
Impeaching for Sensory
may be attacked by showing witness has a deficiency in ability to perceive, recall, or relate information that is NOT collateral
Attacking a hearsay declarant’s credibility
When a hearsay statement has been admitted in evidence, the declarant’s credibility may be attacked, and then supported, by any evidence that would be admissible for those purposes if the declarant had testified as a witness. Court may admit evidence of the declarant’s inconsistent statement or conduct, regardless of when it occurred or whether the declarant had an opportunity to explain or deny it. If the party against whom the statement was admitted calls the declarant as a witness, the party may examine the declarant on the statement as if on cross
Lay witness testimony
allowed if rationally based on the witness’s perception, helpful to clearly understanding the witness’s testimony or to determining a fact in issue AND NOT based on scientific, technical, or other specialized knowledge
Expert testimony
may testify if qualified by possessing sufficient knowledge, skill, experience, training, or education. testimony will help the trier of fact understand the evidence, based on sufficient facts or data, testimony is product of reliable methods and the expert has reliably applied the principles and methods to the facts of the case
What can’t expert give opinion on
whether a criminal D had requisite mental state for the crime charged
spousal immunity
a witness in a valid marriage may refuse to testify against her spouse in ANY criminal proceeding (including grand jury). Witness spouse holds
confidential marital communications
communications between spouses are privileged if: made during the course of a valid marriage AND intended to be confidential
differences in spousal/marital comms
Marital comms held by both spouses, applies to both criminal and civil proceedings and extends beyond the end of the marriage
Atty-client privilege when client is a corp
some states limit to the control group members, under federal law, atty client priv extends to non-control group members if they are communicating to seek legal advice for the corp.
when does atty-client priv not apply
legal services sought to further crime or fraud, litigation involving a dispute between the atty and client, or co-clients are later adverse parties involved in civil litigation against each other
atty client priv and disclosure
intentional disclosure of confidential communications to a third party is a waiver, inadvertent disclosure does not waive if client took reasonable steps to prevent and rectify
Authentication broad statements
All tangible evidence must be authenticated. Tangible evidence is any evidence not presented as oral or verbal testimony. Authentication requires that a party show that the time being introduced as evidence is what the party claims it to be.
Authentication of physical evidence
witness testimony or chain of custody
Authentication of documentary evidence
stipulation, witness testimony, or handwriting verification
Handwriting verification
an expert witness or trier of fact can compare, or a non-expert witness with personal knowledge of the handwriting in question can verify the handwriting. non-expert cannot become familiar with the handwriting to prepare for litigation
oral statement authentication
may be authenticated by any person who has head the person’s voice through any means. It is irrelevant whether the voice was heard in preparation for litigation
Best evidence rule
A party MUST provide the original document or an accurate duplicate when: the contents of the document are at issue, OR the witness is relying on the document when testifying
NON-HEARSAY STATEMENTS
Verbal acts of independent legal significance, effect on the listener, declarant’s mental state or state of mind AND impeachment purposes
ADMISSIBLE NON-HEARSAY
Prior inconsistent statements are admissible for substantive purposes if: (1) declarant is testifying at trial and is subject to cross; (2) the statements were previously made under oath; and (3) prior statements are inconsistent. Not made under oath? Cool, can be used for impeachment.
Prior consistent statements are admissible to rebut a claim of fabrication if declarant is testifying and subject to cross and the prior consistent statement was made before the declarant had motive to fabricate
Prior statements of identification admissible for substantive purposes if declarant is testifying at trial and subject to cross
Admissions by a party opponent when: (1) adoptive admissions; (2) vicarious admissions
HEARSAY WHEN D UNAVAILABLE
dying declaration, statement against interest, former testimony, forfeiture by wrongdoing
Former testimony hearsay exception
admissible if declarant unavailable, statement was prior testimony given at a trial hearing or deposition AND opposing party had an opportunity or similar motive to develop the testimony through cross or direct (so grand jury does NOT qualify)
Dying Declaration
Civil and homicide only: (1) d unavailable; (2) believed her death was imminent and (3) pertains to cause or circumstances of death
Statement against interest
(1) d unavail (2) against pecuniary, penal, or proprietary interest; and (3) a reasonable person would not have said it unless he believed it to be true
Present Sense
Statement made by the declarant in which she describes an event as it takes place or immediately thereafter
Excited utterance
Concerns a startling event made by the declarant when the declarant is under the stress of the event
State of Mind
A statement of a declarant’s then existing state of mind or emotional, sensory, or physical condition is admissible to prove the declarant’s state of mind or conduct.
Medical Treatment
statement of person’s past or present condition is admissible so long as it is made for the purpose of medical diagnosis or treatment
Recorded recollection
The record may be read into evidence if the witness cannot recall events or information provided that: (1) the record is about a matter the witness once had personal knowledge of; (2) the record was made or adopted by the witness when the matter was fresh in the witness’s mind; (3) the record accurately reflects the witness’ personal knowledge AND (4) the witness can no longer recall the events or information well enough to testify, even after reviewing the writing while on the stand. ONLY OPPOSING COUNSEL CAN DECIDE TO ENTER IT AS AN EXHIBIT
Present Recollection Refreshed
Allows a witness to glance at almost any item to refresh memory on the stand. Item taken away and NOT admitted into evidence
Business Records
A business record is admissible as a valid exception to the hearsay rule if the record is: (1) kept in the course of regularly conducted business AND (2) made by a person with knowledge of the matter at or near the time of the matter’s occurence
Confrontation Clause
The Confrontation Clause guarantees a person accused of a crime the right to confront witnesses against him in a criminal action.
Confrontation Clause 2
The use of an out of court statement (even if it falls under a valid hearsay exception or testimonial privilege) violates the defendant’s constitutional rights if: (1) proceeding is criminal action; (2) statement is testimonial; (3) declarant unavailable to be cross examined and (4) defendant did NOT have an opportunity to cross-examine the declarant at a proceeding prior to trial
7 ways to impeach
prior inconsistent statement, bias, conviction of a crime, bad acts, reputation or opinion for untruthfulness, sensory deficiencies, contradiction
