Evidence Flashcards
Exceptions when fed courts apply state law
-privilege law in diversity cases
When do federal rules not apply>
Apply in all fed court proceedings except:
- Preliminary fact determinations relating to admissibility by judge
- Grand jury proceedings
- Other misc. proceedings (sentencing, extradition, vail, warrant, probation, prelim examination in criminal)
For evidence to be relevant, it must be:
- Material: relevant and significant to issues in the case
- Probative: some ability of the evidence to prove something
-(just need to shift the probabilities slightly)
General rule of admissibility
irrelevant evidence is ALWAYS inadmissible
all relevant evidence is admissible EXCEPT:
-kept out by some evidence rule, or
-court uses Rule 403 discretion to exclude it
Rule 403
even if evidence is relevant a judge can decide not to allow it if it could cause more harm than good (balancing test)
- Unfair prejudice
- Confusion of issues
- Misleading jury
- Undue delay
- Waste of time
- Repetitive evidence
Prior similar occurences?
Generally Inadmissible
May be admissible to show something other than carelessness:
-evidence that person has made previous false claims
-prior accidents involving same body part when causation at issue
Similar accidents or injuries caused by same event or condition?
Generally inadmissible UNLESS evidence of prior accidents/injuries caused by the same event or condition and occurring under SUBSTANTIALLY SIMILAR CIRCUMSTANCES is admissible to prove:
- existence of a dangerous condition,
- that the dangerous condition was the cause of the present injury, and
3, the defendant had notice of the dangerous condition
-lack of complaints can show that the D lacked knowledge of the danger
Previous similar acts admissible to prove intent
admissible to prove the party’s present motive/intent in the current case
(in a sex discrimination case, can show that the other party hired no other women)
Rebut a claim of impossibility
similar occurrences admissible to rebut claim that occurrence at issue was not impossible (D’s claim that car won’t go over 50 mph can be rebutted by showing occasions where it has gone over 50 mph)
Habit and Business Routine Evidence (Character Evidence)
Evidence of a person’s habit is admissible to show that the person acted in accordance with the habit on the occasion. 2 defining characteristics of habit:
1. frequency of conduct and
2. particularity of circumstances
NOT character evidence
-describes someone’s general disposition or propensity w/ respect to general traits
Evidence excluded for public policy reasons: liability insurace
Inadmissible to prove negligence/wrongful conduct.
However may be admissible for:
1. prove ownership/control if disputed
2. to impeach a witness
3, part of an admission of liability (“don’t worry y insurance will pay it off”)
Evidence excluded for public policy reasons: subsequent remedial measures
Evidence of repairs or other precautionary measures made following an injury is inadmissible to prove negligence, culpable conduct, defect, or need for warning or instruction UNLESS:
- prove ownership/conduct if disputed
- to rebut a claim that a precaution was not feasible
- to prove that the opposing party has destroyed evidence
Evidence excluded for public policy reasons: civil settlements and settlement negotiations and exception
evidence of a settlement or an offer to settle a civil claim is not admissible to:
- prove validity or amount of a disputed claim
- impeach by prior inconsistent statement/contradiction (impeachment w/ bias permitted)
EXCEPTION: conduct/statements in civil negotiation w/ government admissible in criminal case
Whats all the evidence that may be excluded for policy reasons?
- liability insurance
- subsequent remedial measures
- settlement offers/negotiations
- offers to pay and payment of medical expenses
- withdrawn guilty pleas and offers to plead guilty (always inadmissible: offers to plead guilty, withdrawn guilty please, no-contest pleas, statements in plea discussions)
When does the public policy exclusion for settlements and negotiations only kick in?
If there was a claim or some indication that a party was going to make a claim. ALSO the claim must have be in dispute as to either:
- Validity OR
- Amount
What does character evidence refer to and when may it be offered?
A person’s general propensity or disposition (e.g. honesty, fair, anger).
It may be offered as substantive evidence (to prove a fact at issue in the case) for:
- to prove persons character when directly in issue (RARE) OR
-character is an essential element
2.Prove how person probably acted (conduct in conformity/propensity evidence)
- Truthfulness may be offered for impeachment
CANT BRING UP PAST EVENTS
Methods of proving character
- specific acts
- opinion testimony of a witness who knows the person
- reputation testimony, (gen. reputation in community)
Defendant’s character in a criminal case
Prosecution can’t initiate evidence of D’s character, but the D can. But once he does, the prosecution can rebut with character evidence
character witness cab testify for Ds good reputation for a pertinent trait and can give their personal opinion
Victim’s character in a criminal case
-When can D initiate
character evidence is inadmissible to show that the
defendant had propensity to commit the crime at issue. That includes evidence that the defendant had committed a similar act or crime in the past. However,
this evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.
-Except in sexual assault cases, D may introduce reputation/opinion evidence of a bad character trait of victim when its relevant to show D’s innocence (usually violence to support self-defense claim)
Victim’s character in HOMICIDE case, initiated by prosecution
if D claims self-defense evidence of any kind that victim was first aggressor, it opens doors to evidence of victim’s good character for peacefulness
ONLY WHEN D BRINGS IN A CHARACTER WITNESS, unless victim is dead
Victim’s character In sexual assault cases
Generally inadmissible except
in criminal cases: to prove different source of injury or physical evidence (that semen, injury, etc. is NOT defendants) or to show consent between victim and defendant is admissible if its not excluded by any other rules
In civil cases: evidence of victims sexual behavior when not excluded by any other rules and PROBATIVE VALUE SUBSTANTIALLY OUTWEIGHS UNFAIR PREJUDICE
Character evidence in civil cases
character evidence is inadmissible, unless:
CHARACTER IN ISSUE: when a person’s character itself is a central issue in the case (defamation, employment, custody.
-Exception is sexual violence, when evidence of prior acts of sexual violence are allowed.
IMPEACHMENT: to challenge credibility of a witness to show they are not trustworthy or lied
HABIT EVIDENCE: to demonstrate a person’s routine practice, which is a consistent response to a SPECIFIC SITUATION, not just general character
When permitted then: may come in as opinion, reputation, and specific acts, whether on direct or cross.
MIMIC character evidence
exceptions to the general prohibition against using evidence of a person’s prior bad acts solely to prove that the person has a propensity to commit the crime currently being tried. These exceptions are:
Motive (reason to commit crime)
Intent
Mistake (or absence of mistake) (was act deliberate or accidental)
Identity (identity of perp)
Common plan or scheme
These exceptions allow the prosecution (or sometimes the defense) to introduce evidence of prior acts not to show that the person is bad or has a bad character, but rather to establish specific relevant facts that are important to the case at hand.
When can P bring in character evidence?
- sex cases
- when D has offered evidence about victim’s character, P can rebut but it must be for the same trait
-cross-examine D’s character witness by asking specific acts of the defendants that show the D’s bad character, (“Have you heard” or “did you know”)
*limited to inquiry can’t bring in extrinsic evidence - P can rebut with evidence for a pertinent character trait once D brings in character evidence about their own conduct
- If a D in a homicide case is alleging self defense, P can bring in evidence about victim’s peacefulness
On direct examination how may character evidence be brought in?
presented only as opinion or reputation evidence?
On cross examination how may character evidence be brought in?
s opinion, reputation, or through specific acts, but no
extrinsic evidence is permitted. That means that it only comes in through the
testimony of the witness, not through evidence of the act at issue.
How to evaluate a character evidence issue?
- Where
-Where is the case being heard, criminal/civil? - What
-What sort of evidence is being offered? Is it evidence of a past conviction? Is it a non-criminal wrongful act? - Why
-Why is it coming in? To show propensity? To show motive, plan, or intent? To impeach credibility? - Who
-Against whom? If P is bringing it in, did D already open the door? Or does it fall into an exception where P does not need to wait for D to initiate? - When
-When is it coming in? On direct or cross? - How
-How is it being offered? As an opinion? As
reputation evidence? As evidence of a specific Instance? Is it being brought in through extrinsic evidence?
In a civil case, when character is directly in issue, that character may be proved by evidence in the form of:
Reputation, opinion, specific acts
In order for a defendant’s prior misconduct to be admissible for some relevant non-character purpose (motive, intent, etc.), there must be:
Sufficient evidence to support a jury finding that the defendant committed the prior misconduct
Prior misconduct evidence is inadmissible if the danger of unfair prejudice __________ the probative value.
Substantially outweighs
Authentication of writings and spoken statements
a writing or any secondary evidence of its content will not be allowed unless the writing is authenticated by proof. Proof must be sufficient to support jury finding of genuineness
Ways in which authentication methods are allowed
Methods Allowed:
1. Opponent’s admission
2. Eyewitness Testimony
3. Handwriting verification by expert, witness, fact finders comparison
4. ancient documents
5. Reply letter doctrine (response to a communication sent to author)
6. photographs and videos (identified by witness, doesn’t need photographer)
7. xrays, etc. (can’t be verified by witness, must show machine and process was working correctly)
Ancient Documents
-20 years old,
-was found in a place where such a writing would be kept,
-non sus condition
Authentication of oral statements
- Voice identification
-Anyone who knows - Telephone
Telephone conversation voice authentication
-anyone who testifies that
(1) they recognize the voice;
(2) speaker had knowledge of certain facts only that person would know;
(3) called a particular persons number and a voice answered as that person OR
(4) called a business and talked about biz matters
Best evidence rule definition
Under the Best Evidence Rule, a party must provide the original document, or a reliable duplicate, when a witness,
(a) testifies to the contents of the writing; or
(b) testifies to knowledge gained
solely from a writing.
It’s important to note that the Best Evidence Rule applies
to any writing, recording, or photograph.
When does the best evidence rule apply?
- where writing creates rights and obligations
- where witness’s knowledge results from having seen the writing
How do we know a duplicate is reliable?
A reliable duplicate is one that accurately reproduces the
original document, such as a photocopy. However, it’s important to note that
handwritten copies are not admissible under the Federal Rules of Evidence.
Exceptions to best evidence rule
When an original doc or reliable duplicate is not required to prove their content if:
- all the originals are lost/destroyed and not through bad faith of the offering party
- original can’t be obtained by judicial process
- not produced after proper notice was given to the party in control & against whom it would be offered against; OR
- it’s not closely related to the controlling issue
If any of these exceptions apply, witness can testify about contents
Competency requirements for witnesses
personal knowledge
oat or affirmation to testify truthfully
*interpreter needs to be qualified and take an oath
Modern modifications of CL disqualifications
Children: case-by-case
Insane: allowed if they understand obligation and can tell truth
Judges and jurors: not allowed (presiding judge) unless exception fo rpast verdict
Jurors-inquiry into past verdict or indictment
Jurors generally not allowed to testify about deliberations or matters affecting vote but may testify as to:
- extraneous prejudicial info
- outside influence
- mistake in verdict form
- another juror’s clear statement that they relied on racial stereotypes
Dead mans act
in STATE CIVIL cases, some states
typically interested person not allowed to testify against decedent’s estate/successors about any personal transaction or communication w/ the deceased
no federal rule, only applies when fed cases use state law under Erie
Leading Questions
generally only allowed on cross not direct. court will only allow on direct if:
- preliminary or introductory matters
- witness needs help responding
- witness is hostile, adverse party or affiliated w/ adverse party
When can documents be used to aid oral testimony?
- refreshing recollection
(can’t read from the writing)
-but adverse party can have (1) writing produced, (2) cross-examine witness with it, (3) introduce portions into evidence
General scope of cross
- scope of direct and
- matters that test witness’ credibility (impeachment)
