Evidence Flashcards
Where evidence rules apply
(a) criminal, (b) civil, (c) federal courts
- NOT: grand jury proceedings
General rules
No leading questions on direct
Cross may not exceed scope of direct
Hearing outside presence of jury: (a) confession, (b) D criminal defendant and requests it, (c) justice requires
Foundation
showing evidence is what party says it is
Relevance
evidence helps the fact finder
Expert witness
doesn’t need personal knowledge, just: (1) specialized knowledge on issue, (2) based on sufficient facts/data from case, (3) reliable principles, (4) reliably applied principles
Lay witness
(1) Personal knowledge
Lay opinion: (1) witness perception, (2) helpful to jury, (3) not scientific
Competency
Witness ability to testify (1) truthfully, (2) accurately
Witnesses are presumed competent
Chain of custody
Physical history of a piece of evidence from the time of its creation to the time of its presentation in court
P must show chain of custody is “substantially” unbroken
Refresh recollection
(1) witness once knew something, (2) can no longer recall, (3) item will help refresh
Impeachment
Questioning or discrediting witness credibility
By testifying, witness puts credibility at issue
Any party may impeach witness, but party can only rehabilitate after credibility has been attacked
(a) prior inconsistent statement (b) bias, (c) prior conviction (d) prior bad acts regarding truthfulness, (e) inability to recall/perceive (f) character witness to attack reputation for truthfulness
NOTE:
- Extrinsic evidence can only be used for methods showing specific instances of untruthfulness, whereas for method showing general character for untruthfulness no extrinsic evidence may be used
Impeachment: Prior inconsistent statement
If under oath: (a) impeachment AND, (b) substantive evidence
If NOT under oath: (a) impeachment only
Standard of proof: The inconsistency between the witness’s prior statement and current testimony must have a reasonable bearing on the witness’s credibility.
Impeachment: Prior conviction
(a) punishable by more than 1 year in jail, (b) crime involved dishonest act
NOTE:
- if D denies, then its admissible evidence in addition to impeachment
- only applies to convictions, not arrests or indictments
- if admitted as prior felony conviction court must also do 403 balancing test, BUT if admitted as prior dishonesty crime no 403 balancing test
- if 10 years have passed since conviction, then modified 403 balancing test (probative value must substantially outweigh unfair prejudice) ((normally its probative value is substantially outweighed by unfair prejudice)
Character evidence
Person’s mental and moral qualities
Not admissible to show D acted in conformity with that character, BUT: (a)(i) Criminal D trait pertinent to trial, (ii) D places it at issue, (b) impeach, (c) motive, ((d) plan, (e) preparation, (f) plan (h) intent (j) opportunity (k) (i) D offers against victim (ii) pertinent to trial (but not sexual disposition
- if D uses, state can rebut
- State must give (1) reasonable notice, (2) give reason why admitted, (3) notice in writing
If essential element of crime, can use character evidence in any way
how used:
- direct: reputation/opinion, NOT specific instances, UNLESS proves element of underlying charge
- cross: (a) reputation/opinion AND, (b) specific instances BUT: (i) can’t use extrinsic evidence, and (ii) must have good faith basis
habit evidence
automatic response to repeated non-variable situation, not character evidence and is admissible to show D acted in conformity with that habit on certain occasion
- proved with (a) opinion, or (b) specific instances of conduct
- burden of proof: preponderance of evidence evidence shows the habit
Relevance
(1) any tendency (2) material fact more or less probable
Rule 403
exclude if (1) probative value (2) substantially outweighed by unfair prejudice, confusion, mislead, delay, cumulative, etc.
BUT: opposite presumption (exclude unless probative substantially outweighs prejudice for: (a) D’s prior felony conviction, (b) conviction more than 10 years old, (c) inadmissible expert opinion, (d) victim’s sexual behavior in civil case
Hearsay
(1) out of court, (2) statement, (3) offered for truth of matter asserted
NOT HEARSAY:
(a) (1) testifying witness’ prior (2) inconsistent statement, (3) given under penalty of perjury
(b) (1) testifying witnesses prior (2) consistent statement, (3) offered to rebut assertion that it was made up or to rehabilitate
(c) (1) testifying witness prior (2) identification of a person
(d) (1) statement by party opponent,
(e) statement by another that party opponent has explicitly/implicitly adopted
(f) statement by party opponent’s co-conspirator in furtherance of conspiracy
(g) party opponent’s employee within scope of employee relationship
Hearsay Exceptions declarant unavailability doesn’t matter
(a) present sense impression,
(b) excited utterance,
(c) current personal state of mind/mental/emotional/physical condition, BUT NOT memory
(d) medical diagnosis,
(e) recorded recollection (1) once knew cant recall, (2) made when fresh, (3) accurately reflects memory
(e) business record, (1) made when fresh, (2) regular course of business NOT anticipation of litigation, (3) custodian, (4) not untrustworthy
(f) public record/absence, (i) activity of office, OR (ii) public official while under legal duty to report (EXCEPT POLICE in CRIM CASE), OR (iii) findings resulting form legally authorized investigation
(g) learned treatises
Exceptions declarant unavailability required
Unavailable means: (a) privilege exempt from testifying, (b) refuses, (c) lack of memory, (d) dead (e) long term disability, (f) absent and can’t be located by reasonable measure
- NOTE: not unavailable if moving party caused unavailability
FDIHW
(a) former testimony (1) trail/hearing/deposition, (2) prior opportunity/similar motive to cross examine/ develop testimony
(b) dying declaration (subjective belief impending death) (ONLY civil case/homicide prosecution)
(c) statement against interest
(d) statement of personal/family history
(e) statement against party who intentionally caused declarant’s unavailability
807 hearsay catchall exception
(1) circumstantial guarantees of trustworthiness, (2) evidence of material fact, (3) more probative than any other evidence of this point, (4) serve evidence rules general purposes and interests of justice (5) notice given to its introduction
Hearsay within hearsay
Hearsay statement referring to another hearsay statement
Admissible if each individual hearsay statement is admissible
Judicial notice of facts
(a) generally known, or (b) reliable sources that easily and accurately determine
Authentication
Party needs to make minimal prima facie showing evidence is what the party claims it to be
UNLESS: self authenticating
- Categories: gov documents sealed or signed and certified, foreign gov document, certified public records, notarized docs, certified business records, newspapers, trademarks
Settlement negotiations/Medical expenses/Subsequent remedial measures
(a) settlement offers/acceptances/negotiations to prove validity/liability amount regarding an actual dispute
(b) offer to pay medical expenses to prove liability, and
(c) subsequent remedial measures to prove liability
- BUT: may be admissible for other purpose besides validity/liability, (ex: to prove bias)
