Evidence Flashcards
When federal rules do not apply
1) court’s determination of a preliminary question of fact relating to admissibility
2) grand jury proceedings
3) misc. proceedings - sentencing, extradition, issuing an arrest or search warrant, prelim examination in crim case, bail, probation
Relevance
Any tendency to make the existence of any fact of consequence more or less probable that it would be without the evidence
- Material
- Probative
403 test
admissible unless probative value is substantially outweighed by danger
- unfair prejudice
- confusion of the issues
- misleading the jury
- undue delay
- waste of time
- needless presentation of cumulative evidence
admissibility of P’s accident history
only admissible to show
- previous similar false claims to present claim is likely to be false
- where cause of P’s damages is at issue - injury to same part of body
Admissibility of similar accidence
substantially similar circumstances - can prove
- existence of dangerous condition
- the condition was the cause
- d’s notice
Absence can show d’s lack of knowledge
Habit
regular response to a specific set of circumstances
- frequency and particularity
Industry custom as standard of care
evidence as to how others in the same trade or industry have acted in recent past can by used to show standard of care - not conclusive
Public policy exclusions list
- Liability insurance
- subsequent remedial measures
- civil settlements and settlement negotiations
- plea discussions
- payments and offers to pay medical expenses
Liability insurance - public policy
not admissible to show party acted negligently or wrongfully
is admissible:
- prove ownership or control if disputed
- impeach/show bias
- as part of an admission of liability
Subsequent remedial measures - public policy
evidence of repairs or other precautionary measures made FOLLOWING an injury - not admissible to prove
- negligence
- culpable conduct
- defect
- need for warning
is admissible
- to prove ownership or control if in dispute
- to rebut claim that precaution was not feasible
- prove opposing party destroyed evidence
Civil settlements and settlement negotiations - public policy
not admissible to
- prove or disprove the validity or amount of a disputed claim
- impeach on prior inconsistent statement or contradiction
is admissible
- impeach on bias
Requirements
- claim or indication that party was going to make a claim
- dispute to liability or amount
Exception
- civil dispute with governmental regulatory, investigative, or enforcement authority admissible in criminal case
Plea discussions - public policy
inadmissible in criminal or civil case
- offers to plead guilty
- withdrawn guilty pleas
- actual please of nolo contendere
- statement of fact made during the plea discussion
Payments of and offers to pay medical expenses - public policy
Inadmissible to prove liability
accompanying admissions of fact are admissible
Methods of proving character
specific acts
- only on cross or if character at issue
opinion
reputation
Character evidence in criminal case
D evidence of good character
- Prosecution rebut with evidence of bad character
D evidence of victim’s bad character
- prosecution rebut with evidence of victim’s good character or D’s bad character
Prosecution evidence of victim’s peacefulness in homicide case
Rape victim’s past behavior
Generally inadmissible
criminal case exceptions
- prove someone other than D is source of semen, injury, or other physical evidence
- consent
- constitution requires
Civil case exceptions
- admissible if probative value substantially outweighs danger (reverse 403)
Cases where character is at issue
essential element of claim or defense
- defamation case where truth is defense
- negligent hiring or entrustment
- child custody case
Character evidence
Character evidence is inadmissible to show propensity but is admissible for non-propensity purposes
OKMIMIC
- opportunity
- knowledge
- motive
- identity
- absence if mistake
- intent
- common plan or scheme
need sufficient evidence to support a jury finding that D committed the other misconduct
must give notice of use in crim case, in writing before trial unless good cause
Defendants similar misonduct in sex-crime cases
evidence of D’s other acts of SA or child molestation is admissible in criminal or civil case for SA or child molestation for any purpose
notice 15 days before trial or good cause
Three potential issues when faced with a writing
1) authentication
2) best evidence
3) hearsay
authentication of writings and spoken statements
Writing or secondary evidence of its content must be authenticated with proof that shows the writing is what the proponent claims it to be
sufficient to support a jury finding of genuineness
Methods of authenticating writings and spoken statements
-Admit by pleadings or stipulation
- Opponent’s admission - admitted or acted upon it as authentic
-eyewitness testimony of someone who saw it executed or heard it acknowledged
- handwriting verification
—opinion of laywitness who is familiar in course of normal affairs
— expert who has compared the writing
—- factfinder comparison - ancient documents - atleast 20 yo, condition creates no suspicion, found in place where such writing would likely be kept
- reply letter doctrine - written in response to a communication sent to author
- videos and photos - identified by witness as fair and accurate representation of facts
— unattended camera = proper operation - xrays, ekg, etc - process was accurate, machine working, operator qualified, chain of custody
Authentication of oral statements
if admissible only if said by particular person - auth identity of speaker
- voice - opinion of anyone who has heard at any time
- telephone convo - party to the call
1) recognize the voice
2) speaker had knowledge of certain facts that only a particular person would ahve
3) called a particular person’s number a a voice answered as that person or residence
4) OR called a business and talked with a person about matters relevant to that business
Self authenticating
- domestic public docs bearing seal, and similar foreign public docs
- official publications
- certified copies of public records or private records on file at public office
- newspaper and periodicals
- trade inscriptions and labels
- acknowledged (notarized) documents
- commercial paper and related docs
- business records, electronically generated records, and data coped from electronic device, if certified and reasonable written notice and opportunity for inspection
Best evidence rule / Original document rule
to prove the content of a writing, recording, or photograph, the original writing must be produced if the terms of the writing are material
unless satisfactory excuse for original’s absence
When best evidence rule applies
Where writing is a legally operative instrument - the writing creates rights and obligations
where the knowledge of a witness results from having read the writing
does not apply when witness has personal knowledge of facts
Original v duplicate
Both are admissible to the same extent unless unfair to admit duplicate or question of duplicate authenticity
original
- writing itself and any counterparts intended to have the same effect as original
- negatives
- print out or other readable output of electronically stored information
duplicate
- exact copy made by mechanical means - photocopy
Exception to best evidence rule
- summaries of voluminous records
- certified public records
- writing is collateral to litigated issue
- testimony or written admission of opponent about writing’s contents
