Evidence Flashcards
What is Relevance for Evidence purposes?
Evidence is relevant if it has ANY TENDENCY to make the existence of any FACT OF CONSEQUENCE to the determination of an action (materiality) MORE OR LESS PROBABLE than it would be without the evidence (probative).
Besides specific exclusionary rules, what discretion do courts have to exclude relevant evidence?
A trial judge has broad discretion to exclude relevant evidence if its PROBATIVE VALUE is SUBSTANTIALLY outweighed by the danger of one or more of the following considerations:
- Danger of unfair prejudice (there is a danger that the jury will decide the case on an emotional basis)
- Confusion of the issues (the evidence creates a side issue)
- Misleading the jury (there is a danger that the jury will give undue weight to the evidence) (EX: expert testimony)
- Undue delay
- Waste of time
- Needless presentation of cumulative (repetitive) evidence
NOTE: Balancing probative value VS. the above pragmatic considerations above. If the latter substantially outweigh the former, then it’s inadmissible (but it’s in favor of admissibility).
NOTE: unfair surprise is NOT a valid ground upon which to exclude relevant evidence.
When may unfair surprise be used as a grounds for excluding evidence?
Unfair surprise is NOT a valid ground upon which to exclude relevant evidence, idiot.
What is the rule of evidence regarding Similar Occurrences that might be used in the present trial?
As a general rule, if evidence involves some time, event, or person other than that involved in the present case, it is inadmissible. The rationale is that the evidence often does not survive the Rule 403 balancing test; in other words, the relevance is weak to begin with and the probative value is substantially outweighed by pragmatic considerations (for example, the dangers of confusing the issues, misleading the jury, or wasting time).
Despite the general rule, some recurring situations have produced concrete rules that may allow prior similar occurrences to be admitted. The following are examples of relevant similar occurrences:
- Plaintiff’s Accident History
- Similar Accidents or Injuries Caused by Same Event or Condition
- Previous Similar Acts Admissible to Prove Intent
- Sales of Similar Property
- Rebutting a Claim of Impossibility
- Causation
- Habit and/or Business Routine Evidence
- Industry Custom as Evidence of Standard of Care
What is the rule for admissibility of a Plaintiff’s Accident History?
Evidence that a person has previously filed similar tort claims or has been involved in prior accidents is generally inadmissible to show the invalidity of the present claim; all it demonstrates is that the person is litigious or accident-prone.
However, such evidence may be admissible if it tends to show something other than carelessness of the plaintiff. EX:
- Evidence that a plaintiff has made previous similar false claims is usually relevant to prove that the present claim is likely to be false.
- Evidence of prior accidents may be admissible where the cause of the plaintiff’s damages is at issue. If the plaintiff previously injured the same part of their body, the evidence may be admitted to show that the plaintiff’s condition is attributable (in whole or in part) to the prior injury rather than the current accident.
- Habit and/or Business Routine Evidence
What is the rule for admissibility of Similar Accidents or Injuries Caused by Same Event or Condition?
Generally, other accidents involving the defendant are inadmissible because they merely show the defendant’s general character for carelessness.
However, evidence of prior accidents or injuries caused by the same event or condition and occurring under substantially similar circumstances is admissible to prove:
(1) the EXISTENCE of a DANGEROUS CONDITION,
(2) that the dangerous condition was the CAUSE of the present injury, and/or
(3) that the defendant had NOTICE of the dangerous condition (if the other accident occurred before the plaintiff’s accident).
What is the rule for admissibility for the Absence of Similar Accidents?
Many courts are reluctant to admit evidence of the absence of similar accidents to show absence of negligence or lack of a defect. However, evidence of the absence of complaints is admissible to show the defendant’s lack of knowledge of the danger.
What is the rule for admissibility of Previous Similar Acts to Prove Intent?
Similar conduct previously committed by a party may be admissible to prove the party’s present motive or intent in the current case.
What is the rule for admissibility for Sales of Similar Property?
Evidence of sales of similar personal or real property around the same time period is admissible TO PROVE THE PROPERTY’S VALUE. However, prices quoted in mere offers to purchase generally aren’t admissible.
What is the rule for admissibility of evidence of prior occurrences for Rebutting a Claim of Impossibility?
The requirement that prior occurrences be similar to the litigated act may be relaxed when used to rebut a claim of impossibility (for example, the defendant’s claim that the car will not go above 50 miles per hour can be rebutted by showing occasions when the car went more than 50 miles per hour).
What is the rule for admissibility for proving complex Causation scenarios?
Complicated issues of causation may be established by evidence concerning other times, events, or persons (EX: damage to nearby homes caused by D’s blasting is relevant to prove D’s blasting damaged P’s home).
What is the rule for admissibility of Habit and/or Business Routine Evidence?
Evidence of a person’s habit (or evidence of the routine practice of an organization) is admissible as circumstantial evidence that the person (or organization) acted in accordance with the habit on the occasion at issue in the case. Habit describes a person’s regular response to a specific set of circumstances. Thus, there are 2 defining characteristics of habit: (1) frequency of conduct and (2) particularity of circumstances.
- Watch for key words such as “always,” “invariably,” “instinctively,” and “automatically” in a question’s fact pattern. These words may indicate habit.
What is the rule for admissibility for Industry Custom as Evidence of Standard of Care?
Evidence as to how others in the same trade or industry have acted in the recent past may be offered as evidence of the appropriate standard of care (to show how the party in the current case should have acted). However, industry custom isn’t conclusive on this point; for example, an entire industry may be acting negligently.
What is the rule for admissibility of Liability Insurance?
Evidence of a party’s insurance against liability (or lack thereof) is not admissible to show whether the party acted negligently or otherwise wrongfully (fault or absence of fault). However, it may be admissible for other relevant purposes, such as:
- To prove ownership or control, if disputed;
- To impeach a witness (usually to show their bias); or
- As part of an admission of liability, where the reference to insurance coverage cannot be severed without lessening its probative value as an admission of liability (EX: “Don’t worry, my insurance will pay it off”).
What is the rule for admissibility of Subsequent Remedial Measures?
Evidence of repairs or other precautionary measures made following an injury is not admissible to prove negligence, culpable conduct, a defect in a product or its design, or a need for a warning or instruction. However, it may be admissible for some other relevant purpose, such as:
- To prove ownership or control, if disputed;
- To rebut a claim that a precaution was not feasible; or
- To prove that the opposing party has destroyed evidence.
What is the rule for admissibility of Civil Settlements and Settlement Negotiations?
Evidence of a compromise (settlement) or an offer to compromise a civil claim is not admissible in any case to: (1) prove or disprove the validity or amount of a disputed claim, or (2) impeach a witness by prior inconsistent statement or contradiction. Conduct or statements made in the course of negotiating a compromise—including direct admissions of liability—are also inadmissible for these purposes.
- NOTE: Evidence of a settlement is admissible to impeach a witness on the ground of bias.
- The public policy exclusion for settlements and negotiations only kicks in if there was a claim or some indication that a party was going to make a claim (although the party need not have actually filed suit). Furthermore, the claim must have been in dispute as to either (1) liability (validity of the claim) OR (2) amount.
What exceptions apply to the inadmissibility rule of Civil Settlements and Settlement Negotiations?
Civil Dispute with Government Authority: Under the Federal Rules, conduct or statements made during compromise negotiations regarding a civil dispute with a governmental regulatory, investigative, or enforcement authority are not excluded when offered in a criminal case (EX: a defendant’s admissions of fact during settlement negotiations with a securities enforcement agency would be admissible against the defendant in a related criminal trial).
What is the rule for admissibility of Plea Discussions?
The following are generally inadmissible in any criminal or civil case against the defendant who made the plea or participated in the discussions: (1) Offers to plead guilty; (2) Withdrawn guilty pleas; (3) Actual pleas of nolo contendere (“no contest”); or (4) Statements of fact made during any of the above plea discussions.
- NOTE An actual guilty plea (not withdrawn) is generally admissible
in related litigation as a statement of an opposing party.
What is the rule for admissibility of Payments of and Offers to Pay Medical Expenses?
Evidence that a party has paid or offered to pay an injured person’s medical, hospital, or similar expenses is inadmissible to prove liability for the injury.
However, unlike the situation with settlement negotiations, admissions of fact accompanying such payments and offers are admissible.
- NOTE: “I’ll pay your medical expenses if you drop the case” is a settlement offer!
What is Character Evidence?
Character evidence refers to a person’s general propensity or disposition (EX: for honesty, fairness, peacefulness, violence).
When can Character Evidence be offered at trial to prove a fact at issue?
Character evidence might be offered as substantive evidence (to prove a fact at issue in the case) for the following purposes: (1) To prove a person’s character in the rare situation where their character is directly in issue in the case (meaning, an essential element of a claim or defense); or (2) To serve as circumstantial evidence of how a person probably acted during the events of the case. This is also known as “conduct in conformity with character” or “propensity” evidence. This purpose is PERMITTED ONLY IN A FEW SITUATIONS.
What are the methods of proving character?
Depending on the purpose of the offer and the nature of the case, some or all of the following methods of proving character may be allowed:
- Evidence of the person’s specific acts;
- Opinion testimony of a witness who knows the person; and
- Testimony as to the person’s general reputation in the community.
What are the rules regarding a defendant’s character in a criminal case?
The prosecution cannot initiate evidence of the defendant’s bad character (reputation or opinion) to show conduct in conformity (propensity).
However, because the defendant’s life or liberty is at stake, the defendant is permitted to introduce evidence of their own RELEVANT GOOD CHARACTER TRAIT(S) (in the form of reputation or opinion testimony) to show their innocence. If the defendant introduces evidence of their good character, then the prosecution can rebut with evidence (reputation or opinion) of the defendant’s bad character.
- A character witness for the defendant may testify as to the defendant’s good reputation for a pertinent trait and may give their personal opinion concerning that trait of the defendant.
What may evidence of prior misconduct (bad acts) or crimes be used for?
Not propensity to do misconduct, but yes for motive, intent, mistake (or absence of mistake), identity, or a common plan or scheme (MIMIC).
What are the prosecution’s options when the defendant has offered evidence of his good character?
Once the defendant opens the door by introducing character evidence, the prosecution can take either or both of the following actions: (1) The prosecution can cross-examine the defendant’s character witness regarding the basis for their testimony by asking “Have you heard?” or “Did you know?” questions about specific acts of the defendant that show the defendant’s bad character for the trait in question. The permitted purpose of the cross-examination is to show the character witness’s lack of knowledge, not to prove the defendant’s bad character; (2) The prosecution can call its own character witnesses to provide reputation or opinion testimony about the defendant’s bad character for the trait in question.
- Prosecution may not introduce any extrinsic evidence of misconduct.
When and how may the defendant bring evidence of a Victim’s character?
(Except in sexual assault cases) The defendant may introduce reputation or opinion evidence of a bad character trait of the alleged crime victim when it is relevant to show the defendant’s innocence.
Although a victim’s character usually has no bearing on the defendant’s innocence, it becomes relevant when the defendant claims self-defense and argues that the victim was the first aggressor.
What may the prosecution do when the defense brings evidence of a Victim’s character?
Once the defendant has introduced evidence of a victim’s bad character for a pertinent trait (usually violence), the prosecution may rebut with reputation or opinion evidence of: (1) The victim’s good character for the same trait, or (2) The defendant’s bad character for the same trait.
What is the special character evidence homicide case rule?
In a homicide case in which the defendant pleads self-defense, evidence of any kind (not just character evidence) that the victim was the first aggressor (EX: eyewitness testimony that the victim struck first) opens the door to evidence that the victim had a good character for peacefulness. The prosecution can introduce this evidence regardless of whether the defendant has introduced character evidence of the victim’s generally violent propensity.
What are the special rape victims evidentiary rules?
In any civil or criminal proceeding involving alleged sexual misconduct, evidence offered to prove the sexual behavior or sexual disposition of the victim is generally inadmissible.
In a CRIMINAL case:
(1) Specific instances of a victim’s sexual behavior are admissible to prove that SOMEONE OTHER THAN D is the source of semen, injury, or other PHYSICAL EVIDENCE.
(2) Specific instances of sexual behavior between the victim and the defendant are admissible by the prosecution for any reason and by the defense to prove CONSENT.
In a CIVIL case:
- Evidence of the alleged victim’s sexual behavior is admissible if it is not excluded by any other rule and its probative value substantially outweighs the danger of harm to the victim and of unfair prejudice to any party (favors excluding the evidence).
- Evidence of an alleged victim’s reputation is admissible only if it has been placed in controversy by the victim.
What is the general rule for character evidence in civil cases?
In civil cases, character evidence is generally inadmissible to prove conduct in conformity; meaning, it cannot be offered to prove how a person probably acted during the events of the current case. This is true regardless of which party seeks to offer the evidence.
[Rare] When proof of a person’s character, as a matter of substantive law, is an essential element of a claim or defense, it is said that character is “directly in issue.” This is rare, and for bar exam purposes is generally limited to:
- Defamation cases where truth is a defense (plaintiff’s character is at issue);
- Negligent hiring or entrustment cases (hired/entrusted person’s character is at issue); and
- Child custody cases (parents’ character is at issue)
When character is directly in issue, all forms of character evidence (reputation, opinion, and specific acts) are admissible.
What is the rule for admissibility of unrelated misconduct?
Evidence of a person’s other crimes, wrongs, or acts is generally inadmissible if offered solely to prove conduct in conformity/propensity. In other words, the evidence can’t be offered just to suggest that because the defendant tends to do bad things, they are more likely to have committed the charged crime.
Evidence of a person’s other crimes, wrongs, or acts is admissible if relevant to some issue other than their character or propensity to commit the crime charged (or the alleged act in civil cases). In other words, if a defendant’s other misconduct shows something specific about the charged crime—something more than just bad character— evidence of that misconduct may be admissible as bearing on guilt. Such evidence is usually offered in criminal cases, but it can also be used in civil cases (such as in tort actions for fraud and assault).
Non-character purposes for offering the evidence may include motive (for example, burning a building to hide embezzlement), intent (to show guilty knowledge or lack of good faith), absence of mistake or accident, identity (for example, “signature” crimes/modus operandi), or common plan or scheme (usually, committing one crime to prepare for another).
[MIMIC] Motive; Intent; Mistake (Absence of); Identity; Common scheme or plan.
^ not comprehensive/
What is the rule for admissibility of character evidence indicating propensity to commit sex crimes?
Evidence of a defendant’s other acts of sexual assault or child molestation is admissible in a criminal or civil case where the defendant is accused of committing an act of sexual assault or child molestation. The party intending to offer this evidence must disclose it to the defendant 15 days before trial (or later with good cause).
What are the main issues involved when a writing is involved in an evidentiary matter?
Authenticity, Best Evidence Rule, and Hearsay.
What is the general rule for authentication of writings?
As a general rule, a writing or any secondary evidence of its content will not be received in evidence unless the writing is authenticated by proof that shows that the writing is what the proponent claims it is. The proof must be sufficient to support a jury finding of genuineness (a reasonable juror could conclude that the writing is genuine).
What are examples of Authentication?
- Opponent’s Admission: A writing can be authenticated by evidence that the party against whom it is offered has either admitted its authenticity or acted upon it as authentic.
- Eyewitness testimony of someone with knowledge: A writing can be authenticated by testimony of anyone who saw it executed or heard it acknowledged. The testimony can be from anyone; it doesn’t have to be from a subscribing witness unless required by statute.
- Lay Opinion on Handwriting (if Lay Witness has pre-existing familiarity with the handwriting):
- Expert Opinion on Handwriting: expert who has compared the writing to samples of the alleged writer’s handwriting.
- Jury: The jury as factfinder can make the determination.
- Ancient Documents: A document can be authenticated by evidence that it (1) Is at least 20 years old when offered into evidence; (2) Is in a condition that creates no suspicion as to authenticity; and (3) Was found in a place where such a writing would likely be kept.
- Reply Letter Doctrine: A writing can be authenticated by evidence that it was written in response to a communication sent to the alleged author.
- Photographs and Videos: Generally, photographs and videos are admissible only if identified by a witness as a portrayal of certain facts relevant to the issue and verified by the witness as a fair and accurate representation of those facts. Ordinarily, it is not necessary to call the photographer to authenticate the photograph or video; a witness familiar with the scene, object, or person is sufficient.
- X-Ray Pictures, Electrocardiograms, Etc.: Unlike photographs, an X-ray cannot be authenticated by testimony of a witness that it is a correct representation of the facts. It must be shown that the process used is accurate, the machine was in working order, and the operator was qualified to operate it. Finally, a custodial chain must be established to assure that the X-ray has not been tampered with.
What is the general rule for authentication of Oral Statements?
When a statement is admissible only if said by a particular person (EX: as a statement by an opposing party), authentication as to the identity of the speaker is required.
What is the Authentication rule for Voice Authentication?
A voice can be identified by the opinion of anyone who has heard the voice at any time, including after litigation has begun and for the sole purpose of testifying.
What is the Authentication rule for Telephone Conversations?
Statements made during a telephone conversation can be authenticated by any party to the call who testifies that: (1) they recognized the other party’s voice; (2) the speaker had knowledge of certain facts that only a particular person would have; (3) they called a particular person’s number and a voice answered as that person or that person’s residence; or (4) they called a business and talked with the person answering the phone about matters relevant to the business.
What are Self-Authenticating documents? Examples?
Certain writings are said to “prove themselves.” Extrinsic evidence of authenticity is not required for the following:
- Domestic public documents bearing a seal, and similar official foreign public documents;
- Official publications (EX: government pamphlet);
- Certified copies of public records or private records on file in a public office;
- Newspapers and periodicals;
- Trade inscriptions and labels;
- Acknowledged (notarized) documents;
- Commercial paper (including signatures thereon) and related documents; and
- Business records, electronically generated records, and data copied from an electronic device, if the records are certified and the proponent gives the adverse party reasonable written notice and an opportunity for inspection.
What is the Best Evidence Rule?
This rule is more accurately called the “original document rule.” To prove the content of a writing, recording, or photograph (defined broadly to include videos, X-rays, and any tangible collection of data; we’ll use “writing” as shorthand going forward), the original writing MUST BE PRODUCED if the terms of the writing are material. Secondary evidence of the writing, such as oral testimony, is admissible only if the proponent provides a satisfactory excuse for the original’s absence. The key inquiries are: (1) What does it mean to “prove the contents” of a writing? (2) What is an “original?” (3) What are the exceptions to the best evidence rule?
In what situations does the Best Evidence Rule usually apply?
(1) Where the writing is legally operative or dispositive (EX: contract, will, etc.)
(2) Where the knowledge of a witness concerning a fact results from having read it in the writing (EX: witness is the only one who watched a videotape of the event)
What is an Original for evidence purposes?
An Original is the writing itself or any counterpart that is intended by the person executing it to have the same effect as an original.
This includes the negative of a photograph or any print of it, or the printout or other readable output of electronically stored information.
What is a Duplicate for evidence purposes? To what extent are they admissible?
A Duplicate is an exact copy of an original made by mechanical means (EX: a photocopy or carbon copy).
Duplicates are admissible to the same extent as originals, unless: (1) the circumstances make it unfair to admit the duplicate (EX: it’s a bad copy), or (2) a genuine question is raised about the authenticity of the original.
When may Secondary Evidence be offered as evidence of the contents of a writing?
If the proponent cannot produce the original writing (or an admissible duplicate) in court, they may offer secondary evidence of its contents (such as handwritten copies, notes, or oral testimony) if a satisfactory explanation is given for the non-production of the original.
What are Valid Excuses for the non-production of an original writing?
Valid excuses justifying the admissibility of secondary evidence include:
- Loss or destruction of the original, unless the proponent lost or destroyed the original in bad faith.
- The original cannot be obtained by any available judicial process. Usually, this means that it is in possession of a third party outside the jurisdiction and cannot be obtained despite a reasonable effort.
- The original is in the possession of an adversary who, after due notice, fails to produce the original.
What are the Exceptions to the Best Evidence Rule?
- The original is lost or destroyed (unavailable through no fault of the proponent).
- Summaries of Voluminous Records: When it would be inconvenient to examine a voluminous collection of records in court, the proponent may present their contents in the form of a chart or summary. However, the proponent must make the originals or duplicates available for inspection or copying, and the court may order the proponent to produce the records in court.
- Certified Public Records: The rule does not apply to copies of public records that are certified as correct or testified to as correct.
- Writing Is Collateral to Litigated Issue: The rule does not apply where the writing is of minor importance (that is, collateral) to the matter in controversy.
- Testimony or Written Admission of Opponent: Where the opponent (meaning, the party against whom the writing is being offered) has given testimony, a deposition, or a written admission about the writing’s contents, the proponent may use this evidence and need not give an excuse for non-production of the original.
What kinds of duplicates is it the duty of the jury (not the judge) to make decisions of admissibility for?
Ordinarily, it is for the court to make determinations of fact regarding admissibility of duplicates, other copies, and oral testimony as to the contents of an original.
However, the Federal Rules reserve the following questions of preliminary fact for the jury:
- Whether the original ever existed;
- Whether a writing produced at trial is an original; and
- Whether the evidence offered correctly reflects the contents of the original
What is Real Evidence? What are the requirements for its introduction?
Real evidence is actual physical evidence addressed directly to the trier of fact. Real evidence may be direct, circumstantial, original, or prepared (demonstrative).
Real evidence must be RELEVANT and meet the following requirements:
- The object must be IDENTIFIED AS WHAT THE PROPONENT CLAIMS IT TO BE,
either by: (1) Testimony of a witness that they recognize the object as what the proponent claims it is (EX: witness testifies that a gun is the one found at the crime scene); or (2) Evidence that the object has been held in a substantially unbroken chain of possession (EX: blood taken for blood-alcohol test).
- IF the CONDITION of the object is SIGNIFICANT, it must be shown to be in SUBSTANTIALLY the SAME CONDITION at trial.
What are some types of Real Evidence?
- Reproductions and Explanatory Real Evidence (Relevant photographs, diagrams, maps, or other reproductions are generally admissible. Items used entirely for explanatory purposes are permitted at a trial, but are usually not admitted into evidence (meaning, they are not given to the jury during its deliberations).)
- Maps, Charts, Models, Etc. (Maps, charts, models, etc., are usually admissible for the purpose of illustrating testimony, but must be authenticated by testimonial evidence that they are faithful reproductions of the object or thing depicted.)
- Courtroom Demonstrations (The court, in its discretion, may permit experiments or demonstrations to be performed in the courtroom. An experiment must be performed under conditions that are substantially similar to those attending the original event. Demonstrations of bodily injury may not be allowed where the demonstrations would unduly traumatize the injury)
- Exhibition of Injuries (Exhibition of injuries in a personal injury or criminal case is generally permitted, but remember that the court has discretion to exclude this evidence for unfair prejudice)
- Jury View of the Scene (The trial court has discretion to permit the jury to view places at issue in the case. The need for the view and changes in the condition of the premises following the events at issue in the case are relevant considerations here)
