Evidence Flashcards
Preliminary hearings must be conducted outside the presence of the jury when
(1) the issue is the admissibility of a confession,
(2) the defendant in a criminal case is a witness
(3) the interests of justice so require
Evidentiary rulings can be reversed only if
(1) A substantial right of the party has been affected, and
(2) The judge was notified of the mistake at trial and given a chance to correct it
(notification to court via objection or by offer of proof)
Limited Admissibility (rule 105) states
Evidence may be admissible for one purpose but not for another, and upon request of the objecting party limiting instructions may be given to the jury
Rule of Completeness (rule 106) states
If a party introduces part of a written statement, the opposing party may introduce other portions of that statement necessary to put admitted portion into perspective (even if other portions might have been inadmissible) - happens immediately
If Fairness requires, may introduce any other writing or recorded statement
Judicial Notice
Court’s acceptance of a fact (not subject to reasonable dispute) as true without require formal proof
Civil cases - instruct jury it must
Criminal cases - instruct jury it may
Exceptions which allow leading questions on direct examination
(1) to elicit preliminary background information
(2) witness is having trouble communicating due to age or infirmity
(3) when a hostile witness is called
Present recollection refreshed is
when witness has trouble remembering, they are shown a document or thing which helps jog their memory, and then puts note to the side and testifies from present memory
Cross-examination is limited to
the subject of direct
Types of improper questions
(1) Asked and answered (repetitive)
(2) Assume facts not in evidence
(3) Misleading
(4) Argumentative (rhetorical)
(5) Compound
(6) Calls for speculation or conclusion
(7) Non-responsive
(8) Outside scope of direct
Rebuttable presumptions shift
the burden of production on a particular issue, but not the burden of persuasion (e.g. mailing of letter)
Evidence is relevant if
it makes a material fact in issue more or less probable (likely) than it would be without the evidence
Relevant evidence may be excluded if (rule 403)
there’s risk its prejudicial impact substantially outweighs the probative value
(confusion of issues, unfair prejudice, misleading jury, waste of time)
Character evidence cannot be used
to prove trait to prove conformity with that trait to prove guilt
Admissible character evidence may be offered through
reputation or opinion testimony
Character evidence may be introduced if
character is an essential element in the case (generally only in civil cases)
Note: look for claims involving defamation, negligent hiring, entrustment, or child custody
Character evidence may always be introduced to
impeach a witness
Character evidence to prove propensity in civil cases is ONLY allowed in cases involving
child molestation or sexual assault (P may introduce evidence of D’s prior acts of the sort)
In criminal cases, defendants may introduce character evidence if
it is a pertinent trait
If a defendant offers character evidence re: self
the prosecutor is free to rebut by attacking D’s character and may cross-examine D’s character witnesses with questions about specific acts
(opening the door)
Character witnesses for D are limited to
reputation and opinion testimony
A defendant may introduce evidence of a victim’s character if
it is a pertinent trait of a victim’s character and used in an affirmative defense (e.g. P was violent person, self-defense)
IF done: door opened, prosecution may introduce evidence of the SAME trait in D
Evidence of specific prior acts may be introduced if related to
(1) Pertinent trait if an essential issue
(2) MIMIKCOP
(3) Rebut insanity defense / entrapment / prove consciousness of guilt
(4) Habit (routine practice, includes organization)
(5) Bias
(6) Witness’ trait for truthfulness
MIMIKCOP
Motive
Intent
Mistake/Accident -or absence thereof
Identity
Knowledge
Common Plan
Opportunity
Preparation
A witness is competent if they have
personal knowledge of the matter about which they are going to testify and is willing to take an oath to tell the truth
Note: Children are competent to testify if they have personal knowledge and understand the difference between truth and falsehood
A juror may not serve as a witness or testify after a trial as to the validity of a verdict or indictment unless
(1) Extraneous, prejudicial information was improperly brought to the jury’s attention
(2) An outside influence was improperly brought to bear on a juror
(3) A clerical or technical error was made entering in the verdict
(4) A juror made clear statements that he relied on racial stereotypes of animus in conviction
3 basic ways to impeach a witness
(1) Show witness is dishonest / bad character for truthfulness
(2) Bias
(3) Sensory competence (i.e. mistaken in some way)
Specific acts regarding a character witness’ dishonesty may only be introduced if
(1) On cross-examination
(2) It is probative of truthfulness
(3) A attorney takes the witness’ answer
(4) There’s a reasonable / good faith basis for asking
Note: CANNOT introduce EE to prove
Criminal convictions may be introduced to attack a character witness if
(1) Crime involved dishonesty or false statement
For Felonies:
(1) Allow unless risk of prejudice substantially outweighs probative value
(2) For criminal defendant: probative value outweighs prejudicial effect
Felonies over 10-years
(1) Admissible only if probative value of conviction substantially outweighs risk of prejudice and reasonable advanced notice is given
NOTE: A pardoned conviction may not be introduced
A witness may be rehabilitated by
(1) Giving witness a chance to clarify and explain
(2) Introducing prior consistent statement
(3) Introducing character witness for trait of truthfulness (only after truthfulness of witness is attacked)
Lay witness testimony are admissible with respect to
Common sense impressions (e.g. appearance, intoxication, speed)
and must be based on:
(1) the perception of the witness, and
(2) Helpful to a clear understanding of the witness’ testimony or determination of a fact in the case
Note: Lay witnesses’ testimony CANNOT be specialized, scientific, or technical
Expert witnesses may offer testimony (opinions or conclusions) if
based on specialized, scientific or technical information
Gathered from
(1) Personal observation
(2) Evidence presented at trial, or
(3) Information reasonably relied upon by experts in that particular field
Think: (1) sufficient fact or data, (2) product of reliable principles and methods, (3) expert’s opinion reflects a reliable application of the principles and methods
To admit expert testimony, must prove reliability of testimony by a preponderance of the evidence
Expert witnesses may testify to
the ultimate issue of a case but not the requisite mental state for a criminal defendant
How may Real Evidence be authenticated?
(1) Personal knowledge (witness testimony)
(2) Distinctive features or markings
(3) Chain of custody
How may Documentary Evidence be authenticated?
(1) Stipulation of the parties
(2) Eyewitness testimony combined with distinctive features
(3) Ancient documents (20 yrs old, condition unlikely to create suspicion, found in typical place)
(4) Handwriting verification (expert or jury comparison, or lay witness who knew handwriting from before)
(5) Reply letter doctrine
(6) Self-authenticating document (e.g. notarized copies, government seals, trade inscriptions)
Telephone conversations may be authenticated if
(1) Caller recognized speaker’s voice
(2) Speaker knew facts only a particular person would know
(3) Caller dialed number believed to be speaker’s and the speaker identified self
Best Evidence rule can aptly be expressed as
no describing documents instead of showing them
(applicable when the contents of a document are at issue)
Exceptions to best evidence rule (document types)
(1) Document is unavailable (lost, destroyed, cannot be obtained, non-introducing party had control of original and knew it would be issue at trial)
(2) Public records (certified copy ok)
(3) Voluminous writings (present in form of chart or summary)
(4) Admission by a party
Under best evidence, duplicates may be produced if there is
No genuine question about the authenticity of the original or fairness so requires
Attorney-Client privilege protects
Confidential communication between attorney and client for purposes of securing legal advice
Communication will be confidential if
(1) Reasonable steps are taken to keep communication confidential, and
(2) Communication is not made in presence of unnecessary third parties
Waiver of attorney client privilege may be done through
(1) Failure to assert privilege in timely manner
(2) Voluntarily disclose the information
(3) Express waiver
(4) Failure to take precautions by the lawyer
Communication made by an employee of a corporation is privileged if
Made regarding matters within the scope of employment for purposes of seeking legal advice
Exceptions to attorney-client privilege
(1) Further crime or fraud (knew or should have known)
(2) Disputes between lawyer and client
Patient-Physician privilege (and exceptions)
Statements made by patient to doctor for the purpose of obtaining medical treatment
Exceptions: information was for reasons other than treatment, made for illegal purpose, dispute exists between doctor and patient, patient waived
Psychotherapist-Patient privilege (and exceptions)
Same as patient-doctor
Exceptions:
(1) Court ordered exam
(2) Taken as part of commitment proceeding
(3) Mental condition is at issue in case
5th amendment protection against self-incrimination prevents
a witness from being required to give incriminating testimony against self (applies only to people, and to current statements)
If NO risk of criminal trouble, no privilege
Confidential Marital Communications protects
Communications between spouses in confidence during marriage
Held by both spouses (refuse to reveal / prevent other from revealing)
Survives termination of marriage
Note: waived if one spouse voluntarily reveals communication to third party
Spousal Immunity protects
Spouse from being compelled to testify in a criminal case against the other spouse (can be waived only by witness spouse)
Covers anything before or during marriage
Does not survive termination of marriage
Exceptions to spousal privileges
(1) Spouse is suing other spouse
(2) Spouse is charged with crime against other spouse or children of either of them
Liability (or validity of claim) may not be proved by evidence of
(1) Liability insurance
(2) Subsequent remedial measures (except if for other purpose like ownership, control, feasibility)
(3) Settlement Offers or Negotiations (except if for other purpose like showing bias)
(4) Offers to pay medical expenses
(5) Plea negotiations (may be waived by D)
Note: settlement offers includes offers to AVOID the claim in addition to settling it
Victim’s past sexual behavior is
not admissible in a criminal proceeding involving sexual misconduct (Rape Shield)
Exceptions to Rape Shield
Criminal Case:
(1) Show defendant was not source of physical evidence (it was other D)
(2) Past sexual conduct shows consent
Civil Case:
(1) Probative value substantially outweighs danger of harm and unfair prejudice
(2) Victim opens door and offers evidence of reputation
What is Hearsay?
Out of court statement offered to prove the truth of the matter asserted
ASK: are we using the hearsay declarant like a witness? If no, not hearsay
What is not-hearsay?
(1) Not offered to prove the truth of the matter asserted
(2) Impeachment by prior inconsistent statement
(3) Rehabilitation by prior consistent statement
(4) Verbal Act (e.g. making contract)
(5) Effect on the listener
(6) Proving mental state / knowledge
Exemption to hearsay - declaring at a previous time (form of NON-hearsay)
(1) Prior inconsistent statement (under oath, at proceeding)
(2) Prior consistent statement (rehabilitate credibility attack)
(3) Prior statements of identification (declarant must testify and be subject to c-x)
Exemption to hearsay - party opponent (form of NON-hearsay)
(1) Said by opposing party
(2) Adoptive admission
(3) Authorized agent (vicarious)
(4) Employee (within scope)
(5) Co-conspirators (during and in furtherance of conspiracy)
Elements of adoptive admission by silence
(1) Heard and understood the statement
(2) Had the ability to respond
(3) Reasonable person similarly situated would have denied statement
A hearsay declarant is unavailable if they are
(1) dead
(2) sick
(3) gone
(4) refuses
(5) forgetful/lacks memory
(6) privileged
Former testimony hearsay exception requires
(1) Former testimony was given under oath at prior proceeding
(2) The party against whom hearsay is offered has the opportunity and similar motive to c-x
Dying declaration
(1) Genuine belief declarant is dying
(2) Belief death is imminent
(3) Statement relates to the cause or circumstances of death
Note: Only applicable in homicide or civil cases
Elements of a statement against interest hearsay exception
(1) At time made, statement was against declarant’s pecuniary, proprietary, civil, or penal interest
(2) Reasonable person would not have made the statement unless it was true
Note: Statements that would subject a declarant to criminal liability (e.g. third party claiming to be guilty) are not admissible UNLESS ALSO corroborated by circumstances that clearly indicate trustworthiness of statement
Forfeiture by Misconduct / Wrongdoing means
a party engaged in wrongdoing and procured unavailability of a hearsay declarant
party therefore cannot claim declarant unavailable, and door is open to use anything declarant said against the party
Present sense impression hearsay exception
Statement made while declarant was perceiving the event (or immediately thereafter)
Excited utterance hearsay exception
Statement relating to a startling event or condition while the declarant is still under the stress or excitement caused by the event or condition
State of Mind hearsay exception
Statement of a declarant’s then existing physical, mental or emotional condition admissible to prove the existence of the condition
Statement of intent can be used to prove action in conformity with the intent
Statements made for purposes of medical diagnosis and treatment include
Description of declarant’s medical history (past or present symptoms) or even cause of an injury if pertinent to treatment or diagnosis is admissible as hearsay exception
Past Recollection Recorded hearsay exception elements
(1) Record concerns a matter about which the witness once had knowledge
(2) Record was prepared or adopted by the witness when the matter was fresh
(3) Record accurately reflects the witness’ knowledge
(4) Witness testifies he has insufficient memory of the event
NOTE: Witness may read to the jury but record may not be introduced as evidence unless done so by adverse party
Business records hearsay exception
Any record or writing made in the course of a regularly conducted business activity
Made:
(1) at or near the time of the event it records
(2) By the person with knowledge of the event, and
(3) As part of a regular practice of the business
E.g. medical records.
Made in anticipation of litigation does not count
Courts have discretion to exclude for lack of trustworthiness
Public records hearsay exception
Certain records of public agencies and administrators not excluded for lack of trustworthiness
May include: Activities, observations, factual findings (conclusions)
Law enforcement may only include activities (we want cop to testify and c-x)
Learned treatises hearsay exception
May be used to impeach witness or as substantive evidence so long as reliable authority
Judgement of previous conviction hearsay exception
admissible to prove any fact that was essential to the judgement (ONLY for criminal judgements - not civil)
Testimonial statements may be introduced (hearsay exception) if
(1) The declarant is now unavailable, and
(2) The defendant had a prior opportunity to cross-examine the declarant
A statement is likely to be testimonial if
Made with primary purpose of ascertaining past criminal conduct (establish facts potentially relevant to a later criminal prosecution)
Statements made during emergencies for purpose of getting help are not testimonial
Remedial measures taken prior to an injury are
not subject to the remedial-measure exclusion
Note: subsequent remedial measures must be taken AFTER an injury occurs
Judgements of acquittal are
inadmissible hearsay
Qualifications of a witness are determined by
the judge and is not subject to hearsay limitations
(Remember, judge decides preliminary questions)
Felonies over 10 years old may be introduced if
(1) the probative value substantially outweighs the prejudicial impact, and
(2) the proponent gives reasonable notice of intent to use it
Evidence of a juvenile conviction is
never admissible in a civil case to attack a witness’s character for truthfulness (OK in criminal case)
AND
never admissible in a criminal case against a defendant-witness
An arrest alone does not qualify
as a bad act that is admissible to attack a witness’s character for truthfulness (must be convicted)
Real or physical evidence is not subject to
the best evidence rule
Authenticating an item of evidence that is a physical representation of something that could not otherwise be seen requires proof that
(1) the process for creating the evidence was accurate
(2) the machine that produced the evidence was working properly, and
(3) the operator of the machine was qualified to operate it.
Think MRI
Admissibility of evidence is decided by
the judge and ANY relevant evidence may be considered (even if inadmissible hearsay) but not privileged information
Compromise offers (and acceptances), as well as conduct or statements made during compromise negotiations, are generally inadmissible to
(1) prove or disprove the validity or amount of a disputed claim or
(2) impeach by a prior inconsistent statement or contradiction.
The physician-patient privilege may be waived if
the patient puts their physical condition at issue in a personal injury lawsuit
Examples of family records excepted from hearsay
(1) Family Bible
(2) Genealogy
(3) Family Chart
(4) Engraving on ring / urn
(5) Inscription on portrait
(6) Engraving on burial marker
Under the federal inadvertent-waiver rule, an inadvertent disclosure of protected information does not waive the attorney-client privilege or the attorney work-product doctrine if
(1) the disclosure was in a federal proceeding or to a federal agency and
(2) the privilege holder attempted to prevent disclosure and promptly tried to rectify the error.
Evidence of liability insurance or the lack thereof is inadmissible to prove negligence or wrongdoing, but may be admitted for another purpose such as
to impeach a witness with evidence of self-interest, bias, or prejudice.
Statements in a learned treatise, periodical, or pamphlet are excepted from the rule against hearsay when
(1) the publication is established as a reliable authority by a party’s expert or judicial notice and
(2) the statements are called to the attention of or relied on by an expert witness during examination
(Note: Only relevant parts of treatise may be included, not the entire treatise)
Hearsay Exclusions v. Hearsay Exceptions
Exclusions:
-Declarant Witness (prior inconsistent, prior consistent for rehabilitation, prior identification)
-Party Opponent
Exceptions:
-Unavailable declarant
-Present sense impression, state of mind, excited utterance
Questions are
not hearsay (not an assertion)
When a party raises a significant new matter on cross-examination of a witness, the court must
allow the redirect examination by the opposing party to address that matter
The Statement against Interest hearsay exception is only applicable when
the declarant is unavailable to testify at the present trial
Evidence of a defendant’s good acts (specific good acts) is not admissible unless
character is an ESSENTIAL element in the crime charged
If relevant, may introduce reputation / opinion testimony
If a witness refreshes their memory with a writing WHILE testifying, the opposing party
must be allowed to inspect it, c-x the witness on it and introduce any relevant portion into evidence
If a witness refreshes their memory with a writing BEFORE testifying, the opposing party
MAY be allowed to inspect / c-x about it and introduce into evidence if justice so requires (at Ct.’s discretion)
To introduce a treatise into evidence, it must be
offered during the examination of a qualified expert
To authenticate a letter or note under the reply letter doctrine, the party introducing the writing must show
(1) the document was written in response to an earlier communication and
(2) the contents make it unlikely that it was written by someone other than the recipient of the earlier communication.
Answers to interrogatories are
non-hearsay party admissions (and when such an answer incorporates a document, the contents of the document are considered adopted by the answering party)
Testimony given under a grant of immunity is
coerced and therefore involuntary
The age of a conviction is assessed by
the date of the conviction or the release from confinement - whichever is later
If there exists a rebuttable presumption and no contrary evidence is produced, the judge
should instruct the jury that it must apply the presumption
Jurors may not testify after trail about
(1) Any statement made or incident occurred during jury deliberations
(2) the effect of anything upon the juror’s or another juror’s vote, OR
(3) any juror’s mental process concerning the verdict
(Note, prejudicial or improper influence may be testified to)
Extrinsic evidence of the prior inconsistent statement used to impeach a witness’s credibility may be admitted only if
the witness is given an opportunity to explain or deny the statement and the opposing party is given the opportunity to examine the witness about it.
Note: This is NOT mandated if justice so requires
Erroneous instructions given to a jury may warrant a reversal on appeal if the appellate court applies
the plain error doctrine
Attorney client privilege doesn’t protect disclosure of client identity unless that would
also reveal confidential attorney-client communication
A witness may be impeached with evidence that contradicts his own testimony by either
intrinsic (testimony elicited on c-x) or extrinsic (elicited from any other source) evidence
If an attorney representing co-defendants makes a timely motion for appointment of separate counsel based on a potential conflict of interest, the trial judge must either
(1) grant the motion or
(2) at least conduct a hearing to determine whether appointment of separate counsel is warranted under the circumstances
Note: Failure of the judge to do so requires AUTOMATIC reversal of a subsequent conviction
Attack on truthfulness and attack on credibility differ in that
reputation / opinion evidence of truthfulness may be used to rebut an attack on a witness’s character for truthfulness, but NOT on an attack of a witness’s credibility
All attorney-expert communications are privileged unless they
(1) relate to the expert’s compensation, OR
(2) identify facts, data, or assumptions provided by the attorney that the expert considered or relied on in forming their opinion
Unavailable declarant? PRISM
Privilege
Refusal
Incapacity
Someplace else
Memory lacking
The FRE, excluding privilege, does not apply in
(1) Preliminary-question determinations
(2) Grand Jury Proceedings
(3) Search / Arrest warrant determinations
(4) Preliminary examinations in criminal case
(5) Extradition or rendition proceedings
(6) Bail and other release hearings
(7) Sentencing hearings
(8) Probation / parole revocation hearings
A party’s own attorney (generally) may not ask leading questions, even on
cross-examination
Insurance, while inadmissible to prove negligence or wrongdoing, may be introduced to prove
motive
The prosecution must provide reasonable notice of the general nature of such evidence that the prosecution intends to offer at trial, but the defense is
not required to give the prosecution the same notice
The residuary catch all hearsay exception is applicable when
(1) the statement is supported by sufficient guarantees of trustworthiness
(2) statement is more probative on the point than any other evidence obtainable through reasonable efforts (could someone else provide this same info) , and
(3) the proponent gives the adverse party notice of the intent to offer
When an expert who created a testimonial report is unavailable, the Confrontation Clause prohibits
the introduction of the report via a “surrogate” expert
