Evidence Flashcards
Rule 403
excludes evidence if the probative value is substantially outweighed by
1. Unfair prejudice;
2. Confusion of the issues;
3. Misleading the jury;
4. Undue delay/waste of time; or
5. Needless presentation of cumulative evidence
Subsequent remedial measures
Inadmissible
- to prove liability, fault, or that product was defective
Admissible
-to impeach, show feasibility of repair, or prove ownership/control if in dispute
Compromise offers or negotiations
inadmissible to prove
liability
Amount of offer
or to impeach;
includes conduct or statements made in conjunction with the offer
Offers to pay medical expenses
inadmissible
-to prove liability;
admissible
-conduct or statements
-made in conjunction with the offer are admissible
Plea negotiations
no contest, withdrawn guilty pleas and statements made
while negotiating plea bargain are inadmissible;
unless another statement was already admitted and fairness requires
Liability insurance
whether or not one is insured is inadmissible to prove liability/fault;
admissible to show agency, ownership/control, or witness bias (impeachment)
Sexual conduct of victim
evidence of sexual behavior of the victim (V) is generally inadmissible
* Criminal case:
Except to prove consent
or another party is source of the evidence
* Civil case:
Except if probative value substantially outweighs harm to
V/prejudice to a party
Sexual conduct of Defendant
admissible in sexual assault/molestation case
unless barred by rule 403
CHARACTER EVIDENCE(Civil case)
inadmissible to prove conduct in conformity with the character trait
◦ Exceptions
-character is an essential element to a claim or defense
(e.g., defamation)
-proving past sexual assault/molestation in a sexual
assault/molestation case
-show plaintiff’s character for violence as proof of defendant’s
reasonableness in self-defense claim in assault or battery action
-Prior bad acts
-only admissible for (MIMIC)
motive, intent, absence of mistake, identity, common plan
Character evidence (Criminal case)
Character of defendant inadmissible to prove propensity
Exceptions
♦ D may introduce reputation or opinion evidence of her good
character
♦ Prosecution may rebut D’s evidence with character evidence about
the same trait
Character of victim
♦reputation or opinion of victim character is admissible to prove a defense
♦ Prosecution may rebut with reputation, opinion or specific acts
Specific (bad) acts
♦inadmissible if to prove conforming conduct (propensity)
♦ Admissible if to show motive, intent, absence of mistake, identity,
common plan(MIMIC), if prosecutor gives notice;
♦ Admissible as character evidence if essential element of the crime
or defense
impeachment crime 10 years OR LESS of confinement or release
- Criminal defendant probative value outweighs prejudicial effect
- other witness
subject to 403
impeach with crime of dishonesty or false statement
♦ dishonesty or false statement Always allowed(misdemeanor or felony)
No dishonesty or false statement must be punishable by death or over 1 year
impeach with crimes over 10 years
◦ if >10 years, probative value must substantially outweigh prejudice
+ give notice
Authentication and self authentication
Physical evidence must be authenticated by sufficient evidence that it is what it proports to be
-physical objects
- documents
-oral statements
— must authenticate identity of speaker
self authenticating records(certified public official records)
Impeachment
may attack witness Character for untruthfulness with reputation or opinion
-Can inquire about specific acts on cross but extrinsic evidence not allowed
if W denies act must accept their answer
Habit
admissible to prove conforming conduct with a particular habit;
habit is a consistent repeated response to a specific situation (more specific than character)
Judicial Notice
fact is not subject to reasonable dispute because:
o Generally known within the community, or
o Can be accurately and readily determined from reliable sources
Civil: Must ACCEPT
Criminal: May accept
Best Evidence Rule
When attempting to prove the contents of a writing, recording, or photograph
* The original document or a reliable duplicate must be produced
if original is unobtainable, lost or destroyed, or
opposing party refuses to produce it,
or it regards a collateral matter
Best Evidence Rule Alternative proof(summaries )
allowed for public records, voluminous records and party admission
must make original documents available at a reasonable time and place
Court may choose to require proponent to produce originals
Parole evidence rule
Extrinsic evidence cant contradict if integrated
extrinsic evidence allowed to attack validity of terms or explain terms
Partial integration—contains some but not all agreed upon terms
• Extrinsic evidence that adds to writing admissible
• Evidence that contradicts not admissible
witness competence and impeachment
personal knowledge plus oath to testify truthfully
- any party may impeach a witness
Prior inconsistent statement
Prior Inconsistent Statements inconsistent with testimony
* Extrinsic evidence only admissible if W given opportunity to explain or deny,
unless witness unavailable or opposing party
impeaching a hearsay declarant, if statement qualifies as an
opposing party statement, or
if justice so requires ( statement discovered after W unavailable)
* statement made under oath at a prior event (e.g., hearing), it
might be admissible for substance/truth and not limited to
impeachment purposes
Methods of impeaching witness
Character or criminal record
prior inconsistent statement
Bias—always relevant to show W has motive to lie, (majority) after laying a foundation
4. Sensory deficiency—show W is physically or mentally impaired or circumstances interfered
5. Hearsay declarant—okay to impeach as if on the stand; no opportunity to explain required
rehabilitation
can rebut impeachment through prior consistent statement or evidence of good character
truthfulness only if character for honesty was attacked
Present recollection refreshed
may show witness document but witness must testify without it from memory
document not admissible but other side may inspect
past recollection recorded
Hearsay exception
1witness once had knowledge
made record while fresh in their mind
accurately reflects witness knowledge
2but now has insufficient recollection of to testify even after reading it:
may be read into evidence, but received as an exhibit only
if offered by an adverse party
Lay opinion testimony
—generally not allowed, unless:
* To prove common sense impressions e.g., appearance, intoxication, speed, handwriting
* based on W’s perception and helpful to clarify understanding of the issue
Expert witness
allowed if scientific, technical, or specialized testimony will help the trier of fact, and:
* Qualified by knowledge, skill, training, experience, or education;
* Based on sufficient facts or data personally observed or made aware of;
* Product of reliable methods reasonably relied on by experts in the field;
* Applied the methods and principles reliably to the facts; and
* Reasonably certain in her opinion (probably true, no guessing).
* May embrace ultimate issue but not criminal defendant’s mental state
Spousal immunity
spouses may not be required to testify against each other in criminal case
* Witness spouse is the holder (majority) and may choose to testify
* Applies to events before or during marriage; expires upon divorce or annulment
2. Marital communication during marriage protected in civil or criminal cases
* Both spouses hold the privilege (majority); only communicating spouse holds (minority)
* Applies to communications during marriage; does not expire
3. Exception: Spouses suing each other or when the crime charged is against the spouse/child
attorney client privilege
—protects communications made during or when seeking the relationship
1. Client is the holder; only the client (or e.g., a guardian) can waive; lasts indefinitely, even after
client dies
2. Attorney’s work product is protected
3. Exception if services sought for future crime/fraud or if client in dispute with attorney
PHYSICIAN-PATIENT privilege
protects statements made for purpose of obtaining medical treatment
(based on state law; does not apply to cases brought in federal court where state law does not
apply)
1. Patient is the holder; if attorney requests the consultation, limited to treatment
2. Exceptions:
* Information revealed does not relate to treatment;
* Patient’s physical condition at issue;
* Made as part of crime or tort;
* A dispute exists between physician and patient; or
* Patient waived by contract.
PSYCHOTHERAPIST-PATIENT privilege
protects statements made to psychotherapist/licensed social
worker
1. Patient is the holder
2. Exceptions—if result of court order, mental condition at issue or at commitment proceeding
unknown eavesdropping
Eavesdropper does not destroy the privilege but some courts allow eavesdropper to testify
