Evidence Flashcards
Admissible
allowed to be presented at trial
Evidence is relevant if (2)
- it has any tendency to make a fact more or less probable than it would be without it AND 2. the fact is of consequence in determining the action
The court may exclude relevant evidence if its
probative value is substantially outweighed by a danger of unfair prejudice, misleading the jury, confusing the issues, undue delay, wasting time
Evidence of subsequent remedial measures is not admissible to prove (4)
- negligence
b) culpable conduct
c) a defect n a product or design
d) a need for a warning or instruction
Evidence of subsequent remedial measures is admissible to prove (4)
- impeachment
- control
- ownership4.
- feasibility
Statements and offers made during settlement negotiations are NOT admissible to (2)
- prove or disprove the validity or amount of a disputed claim OR
- impeach by a prior inconsistent statement or contradiction
Statements and offers made during settlement negotiations are admissible to prove (3)
- witness bias/prejudice
- negating a contention of undue delay
- proving obstruction of justice
Plea Negotiations: The following are NOT admissible against a D in a subsequent civil or criminal case (4)
- statements made during plea discussions
- a nolo contendere plea (D doesn’t admit to a dispute or charge)
- later withdrawn guilty plea
- statements made during an above 2 or 3 proceeding
Paying/offering to pay medical expenses are not admissible to prove liability for injury, but…..are admissible
related statements or factual admissions
Evidence of insurance or lack thereof is not admissible to prove culpability but it is admissible for other purposes (5)
witness bias/prejudice, agency, ownership, control, motive
How may physical evidence be authenticated (2)
through witness testimony or by evidenced that shows it has been held in a substantially unbroken chain of custody
Voice recordings may be authenticated by (2)
anyone who has heard the person speak and identified the recorded person as the speaker
Exceptions to the best evidence rule: the original writing, recording, or photograph is required to prove its content UNLESS (5)
- its a reliable duplicate (a photocopy)
- all the originals are lost or destroyed and not by the offering party acting in bad faith
- an original cannot be obtained by judicial process
- it was not produced after proper notice was given to the party in control and against whom it would be offered against, OR
- it’s not closely related to a controlling issue
Character evidence is generally not admissible to prove
propensity (that a person acted in conformity with a character trait on a particular occasion)
BUT, character evidence is generally allowed for (2)
- non-propensity purposes or when character is in issue— it’s an essential element or ultimate issue of a charge, claim, or defense (e.g. defamation, negligent entrustment)
In criminal cases, if a D’s character may offer evidence of their own character trait, the prosecution cannot offer character evidence of D unless D
first offers admissible evidence for that character trait (D “opens the door”)
Prosecution may introduce D’s prior acts of _______ or ______ when D is accused of such conduct
sexual assault/child molestation
In a non sex-offense case, a D may offer evidence of victim’s character (to establish a defense or show D’s innocence). If D presents such evidence, prosecution may offer evidence of (2)
victim’s good character (for the same trait) or D’s bad character (for the same trait)
In a homicide case, the prosecution may offer evidence of victim’s peacefulness only if
D claims victim was the first aggressor (self-defense)
Evidence is not admissible to prove a victim’s sexual behavior or predisposition except when (3)
- evidence of victim’s sexual behavior if offered to prove D was not involved in the sex crime (not the source of semen)
- evidence of sexual relations between D and victim either to prove consent (if offered by D) or for any reason (if offered by prosecution) OR
- if its exclusion violates D’s constitutional rights
In civil cases, character evidence to prove propensity is not/admissible
not admissible
In civil sex-offense cases, evidence of a victim’s sexual behavior or predisposition is admissible only if its probative value substantially outweighs the danger of (2)
harm to any victim AND unfair prejudice to any party
Specific acts or instances are only allowed (2)
- on cross of a character witness 2. if character in issue
Prior bad acts are admissible for non-propensity purposes (7)
motive, identity, absence of mistake/accident, intent, common plan or scheme, opportunity, or preparation
To offer such evidence of prior bad acts, the proponent must show that (3)
- the prior act was committed (by preponderance of evidence)
- the probative value substantially outweighs the danger of unfair prejudice AND
- proper notice in criminal cases (at least 15 days notice unless good cause shown)
Habit/routine practice
behavior that’s specific, repeated, and reflexive, that is admissible to show that a person (or organization) acted in accordance with their habit or routine practice
Impeachment
attack witness’s credibility at trial
Prior inconsistent statements are admissible to impeach a witness. Need not ____ contacts of the statement to witness during examination, but must _____ to adverse party’s attorney upon request
show
Extrinsic evidence is admissible only if 2
relevant to material issue at trial (one other than witness’s credibility) AND proper foundation is shown (witness is first given an opportunity to explain or deny the statement and an adverse party is given an opportunity to examine a witness about it )
*****Does not apply when extrinsic evidence offered against party opponent
Evidence of a prior felony or misdemeanor involving dishonest are always admissible to
impeach
Other misdemeanors are not/admissible to impeach
not admissible
In civil and criminal cases, felonies that do not involve dishonesty are admissible if
witness is not a criminal defendant
In criminal cases, felonies that do not involve dishonesty are admissible if D is the witness but only if
probative value outweighs any prejudicial effect
10 year exception
If ten years have passed (from conviction or release from jail, whichever is later), the conviction is not admissible unless its probative value outweighs its prejudicial effect and the proponent provides reasonable written notice to the adverse party
A felony is a crime punishable by (2)
death or imprisonment over a year
A witness’s credibility may be attacked on cross with specific instances of conduct (Prior bad acts) ONLY IF the
conduct is probative of the witness’s character for truthfulness or untruthfulness
_____ evidence is never admissible to attack or support the instances of a witness’s credibility
extrinsic
a witness’s credibility may be attacked or supported by (2)
- reputation testimony about the witness’s character for truthfulness/untruthfulness OR opinion testimony
Evidence of the witness’s truthful character is only admissible
after attacked
A witness’s ability to observe, remember, or relate facts accurately may be attacked on impeachment. Is extrinsic evidence admissible for this purpose?
Yes
A witness’s _____, ____, _______, or _______ are ALWAYS admissible for impeachment
bias, motive, partiality, or corruption
Evidence (including hearsay) is admissible to impeach regardless of when/whether declarant had an opportunity to
explain or deny it
Refreshing a witness’s recollection using a document is permitted when the witness
- once had personal knowledge of the matter but
- is unable to recall it while testifying
Only the _____ _____ may offer into evidence the item used to refresh (unless it’s admissible on other grounds )
opposing party
A court may take judicial notice of indisputable facts (2)
- commonly known in the community OR
- readily capable of verification and that cannot be reasonably questioned
In civil cases, a court must instruct the jury to accept the judicially noticed fact as _______
conclusive
In criminal cases, the court must instruct the jury that it——-the noticed fact as conclusive
may or may not accept
Lay witness testimony is admissible if the witness is (2)
- competent to testify AND
- has personal knowledge of the matter
Lay witness may offer opinion only if it’s (3)
- rationally based on perception
- helpful to clearly understand the testimony or determine a fact (not a legal conclusion) AND
- not based on scientific, technical, or other specialized knowledge
Expert testimony is permitted when
- witness is qualified as an expert
- testimony is helpful to the trier of fact
- testimony is based on sufficient facts and data
- testimony is based on reliable principles and methods AND
- witness has reasonably applied the principles/methods to the facts of the case
Hearsay is
an out of court statement offered to prove the truth of the matter asserted
Statement
A person’s oral or written assertion. Can include nonverbal acts if they are intended as assertions
Multiple hearsay
each level of hearsay must fall within an exception or exclusion to be admissible
Non-hearsay
If a statement is offered to prove something other than the truth of the statement, it’s not hearsay and is admissible
Hearsay exceptions: Statements by a party opponent
Any statement offered against an opposing party AND the is made by the party, adopted or believed to be true by the party (silence may be sufficient), made by an authorized person, made by an agent/employee of the party acting within their scope, OR made by a co-conspirator
A prior statement by a declarant-witness is deemed non-hearsay if
- declarant testified
- declarant is subject to cross examination about the prior statement AND
- prior statement was inconsistent with prior testimony and given under oath in prior court proceeding/declarant identifies a person as someone they perceived earlier OR is consistent with prior testimony and is offered either to rebut that the declarant is lying or to rehabilitate declarant’s credibility
Hearsay exceptions: Co-Conspirator admission. Admissible when offered against another co-conspirator if (4)
- conspiracy existed between the declarant and defendant
- statement was made during the conspiracy
- statement was made in furtherance of the conspiracy AND
- the conspiracy is proven by independent evidence (outside of the statements themselves)
Hearsay exceptions: Present sense impression. A statement describing an event made by the declarant (2)
- while observing the event OR 2. immediately thereafter
Hearsay exceptions: excited utterance. A statement related to (2)
- a startling event or condition
- made while the declarant was under the stress of excitement that the event/condition occurred
Hearsay exceptions: Business records. (6)
- record of events, conditions, opinions, diagnoses
- kept in the regular course of business
- made at or near the time of the matter described
- made by a person with knowledge
- is the regular practice of the business AND
- the opponent party does not show a lack of trustworthiness
Hearsay exceptions: Statements made for medical diagnosis/treatment. Not excluded by the hearsay rule when the statement (2)
- is made for (and reasonably pertinent to) medical diagnosis or treatment AND 2. describes medical history or symptoms (past or presence)
Hearsay exceptions: Statements of mental, emotional, or physical condition. Admissible when the statements of declarant’s (2)
a) then-existing state of mind (motive, intent, or plan) OR
b) emotional, sensory, or physical condition
Hearsay exception: Dying declaration. Elements to be admissible
declarant is unavailable, statement made under a sense of impending death, and statement was about the circumstances of cause that put the declarant in the position of impending death
Dying declarations are only allowed in what two types of cases
civil cases and criminal homicide
Declarant is deemed unavailable if witness (5)
- is exempt due to privilege
- refuses to testify despite a court order
- does not remember
- cannot be present due to death or illness OR
- is beyond the reach of a court’s subpoena and cannot be procured by reasonable means
Hearsay exception: statement against interest
admissible if:
1. it’s a statement against the declarant’s penal, proprietary, or pecuniary interest when made;
2. declarant has firsthand knowledge
3. a reasonable person in the declarant’s position would have made the statement only if they believed it to be true AND
4. declarant is unavailable
Hearsay exception: public records (3)
- a record describing policies and practices of a public office
- observations made by someone in accordance with his duties of law (but excludes police reports in criminal case) OR
- factual findings from a legally authorized investigation (but only in civil cases or against the gov in a criminal case)
Public records will NOT be admitted if the opponent party shows a lack of _______
trustworthiness
Hearsay Exceptions: Past Recollection recorded
A record made on a matter the witness once knew about and now cannot recall well enough to testify fully and accurately
Past recollection recorded is admissible if (5)
- witness had personal knowledge at the time
- writing was made or adopted by the witness
- it was made while the event was still fresh in the witness’s mind
- is accurate
- AND witness can no longer remember the event
A past recollection recorded may be read into evidence BUT it can only be received as an exhibit if
offered by an adverse party
The 6th A confrontation clause gives a criminal D the right to
confront witnesses against him
The use of an out-of-court statement, even if within a hearsay exception, violates the 6th A when:
- the statement is testimonial
- declarant is unavailable to be cross-examined at trial and
- D did not have an opportunity to cross declarant before trial
Testimonial = statements made to: (3)
- grand juries
- affidavit or certified report with forensic lab results
- the police whose primary purpose was to collect testimony to be used at a later trial
T/F A statement to assist police in an ongoing emergency is not testimonial
true
Spousal immunity
a witness-spouse in a valid marriage may refuse to testify against their spouse in a criminal case
Spousal immunity…..apply in civil cases
does not
Spousal immunity ends
after divorce
Confidential marriage communications
Communications between spouses are privileged if made during the course of a valid marriage and were intended to be confidential
Confidential marital communications privilege applies in which type of cases
criminal and civil
Spousal privileges DO NOT apply (2)
- in cases between the spouses or
- when a spouse commits a crime against the other spouse or their children
Attorney client privilege protects confidential communications between the attorney and client if (2)
intended to be confidential and made to facilitate legal services
Attorney-client privilege DOES NOT apply when (3)
- legal services are sought to further a crime or fraud
- a litigation is related to a breach of duty between the attorney and client OR
- joint clients are later involved in civil litigation against each other
Attorney work product doctrine
protects from disclosure all materials prepared by an attorney (or his agents) in anticipation of or during litigation
Exception to attorney work product doctrine
if a party shows a substantial need exists and a substantial equivalent cannot be obtained without undue hardhsip
Physician-patient privilege
Most states recognize the privilege if its a confidential patient communication, made to a physician, for the purpose of medical diagnosis or treatment
The patient holds the physician-patient privilege, but it may be waived when
a medical condition is placed at issue (i.e. personal injury lawsuit)
Do federal courts recognize the physician-patient privilege?
No
State law governs privilege for _____ cases in federal court on a claim/defense when state law supplies the rule of decision (i.e. a ______ action)
state; diversity
Psychotherapist-patient privilege
all states recognize this privilege, which protects:
1. confidential patient communications
2. made to a psychotherapist
3. for the purpose of psychological treatment
Exceptions to psychotherapist privilege (4)
- court-ordered examinations
- civil commitment proceedings to determine if hospitalization is required
- when the condition is placed in issue by the patient
- the dangerous patient exception–the therapist has a duty to warn when he knows or should know that the patient poses a serious threat of violence to foreseeable victims
Statements in a publication (eg a learned treatise) may be read into evidence if they are 1) called to the attention of, or relied upon, by an expert witness during examination and 2) the publication is established as a reliable authority by any other party’s expert or by judicial notice. However, the publication itself may not be
offered as an exhibit
Interrogatories may only be served on
nonparties
All attorney-expert communications are privileged unless they
- relate to the expert’s compensation or 2. identify facts, date, or assumptions provided by the attorney that the expert considered or relied on in forming his/her opinions
