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
Best evidence - questions reserved for jury
- whether the original ever existed
- whether a writing is an original
- whether the evidence correctly reflects the contents of the original
Real evidence
Can be direct, circumstantial, original, demonstrative performed under conditions that are substantially similar
authenticate by testimony of someone who recognizes, or evidence of substantially unbroken chain of possession
Witness competency
Presumed to be competent unless contrary established
must have personal knowledge, must give oath or affirmation
exceptions
- presiding judge and jurors cannot testify as a witness
Juror testimony
Extraneous prejudicial info
outside influence
mistake on verdict form
clear statement of reliance on racial stereotypes or animus
dead man acts
in a civil case, an interest person cannot testify to a personal transaction or communication with a deceased when such testimony is offered against the representative or successors in interest of deceased
- interest if stand to gain or lose by the judgment or if used for or against them in subsequent action
DO NOT ASSUME DEAD MAN ACT
Leading questions
question suggests desired answer
generally only allowed on cross
allowed on direct if
- to elicit prelim or intro matter
- witness needs help responding because loss of memory, immaturity, or physical/mental weakness
- witness is hostile, adverse party, or affiliated with adverse party
Refreshing recollection
Proponent cannot admit into evidence
Adverse party options
- have writing produced
- cross witness about writing
- intro into evidence
in crim case - if prosecution fails to produce - must strike and may ahve to mistrial
Past recollection recorded
Read into evidence, adverse party can admit as exhibit
requirements
- insufficient recollection
- had personal knowledge when record was made
- record made by witness or adopted
- made when matter was fresh
- accurately reflects knowledge at time made or adopted
Opinion by lay witnes
admissible if
- baed on perception
- helpful to clear understanding
- no based on specialized knowledge
Opinion by expert
requirements
- subject matter scientific, technical, or other specialized knowledge would assist trier of fact
- opinion based on sufficient facts or data
- opinion is product of reliable principles and methods
- expert’s opinion reflects a reliable application of principles and methods to the facts
must be qualified based on special knowledge, skill, experience, training, or education
factual basis
- personal observation
- facts made known at rial
- facts supplied outside of tril, reasonably relied on by other experts in field
Reliability of expert
TRAP
Testing of principles and methods
rate of error
acceptance by experts in same discipline
peer review and publication
Use of learned treatises
during expert testimony
- to impeach
- as substantive evidence
- must estab as reliable authority bu testimony of expert on stand, other expert, or judicial notice
- must be used in context of expert testimony
- read into evidence but not an exhibit
Opinion on ultimate issue
Can render opinion on ultimate issue
exception - Crim case in which D’s mental state is an element- expert cannot state an opinion on mental state
Exclusion and sequestration of witnesses
upon party’s request - MUST order witness exclusion
cannot exclude
- a party or designated officer or employee of party
- a person whose presence is essential to the presentation of a party’s claim or defense
- a person statutorily authorized to be present
Impeachment methods
prior inconsistent statement
- cross or extrinsic
- foundation - opportunity to explain or deny and adverse party opportunity to examine- unless opposing party, hearsay declarant, where justice requires
bias
- extrinsic or cross
- foundation - first asked about facts of bias on cross
sensory deficiencies
- cross or extrinsic
- at time of event or testimony - no foundation
contradictory facts
- cross and extrinsic if not collateral
Character for untruthfulness
- character witness
- proof of conviction
- Bad acts involving truthfulness - NO EXTRINSIC EVIDENCE
Exception to rule against bolstering
can offer evidence that witness made a timely complaint or prior statment of identification
Prior convictions for impeachment
Any crime involving dishonesty
- no discretion
Felony not involving dishonesty
- D - exclude unless probative value outweighs prejudice
- any other witness - admit unless pv substantially outweighed by prejudice
- convictions more than 10 years since date of conviction or date of release, whichever is later - generally inadmissible unless pv subs outweighs prejudice and written notice
Impeachment on collateral matter
cannot use extrinsic evidence of prior inconsistent statement
Non-hearsay purposes
- Verbal acts or legally operative facts
- effect on the listener - notice
- circumstantial evidence of state of mind
Hearsay exclusions/exemptions
Prior inconsistent statements
- under oath
- subject to cross
prior consistent statement
- rebut charge of lying and before motive or to rehabilitate on some other ground such as lack of perception
- subject to cross
Prior statement of identification
- subject to cross
Statement by a party opponent
- judicial and extrajudcial statements
- adoptive statements including silence if head and understood, capable of denying, and reasonable person would have denied
- vicarious statements
Former testimony
Unavailable
- same party or predecessor in interest
- given under oath
- opportunity or similar motive to develop testimony
Statement against interest
unavailable
- against pecuniary, proprietary, or penal interest when made
- personal knowledge and aware that it was against interest
Limitation
- in criminal case - statement against penal interest needs to be corrobrated
Dying declaration
unavailable
- homicide or civil
- believed death was imminent
- concerned cause or circumstances of death based on personal knowledge
Statements of personal or family history
unavailable
- concerning family relationship
- member of the family of intimately associated
- personal knowledge of facts or family’s reputations
Statement offered against party procuring declarant’s unavailability
unavailable
- intentionally procured unavailability to prevent from testifying
Excited utterance
relating to startling event
made while under the stress of the excitement from the event
Present sense impression
describes or explains an event and made while or immediately after perceiving the event
Then existing state of mind
present state of mind including emotions, sensory, or physical conditions
not backwards looking
includes statements of intent
Statement for the purpose of medical diagnosis or treatment
medical history, past or present symptoms, and general cause of inception to get medical diagnosis or treatment
Business records
Record made in the regular course of business and business regularly keeps such record, made near the time of the event, personal knowledge and duty to report
foundation
- custodian of record
- testify or certify in writing that meets elements
public records
-activities of office or agency
- matters observed
- factual findings
made within scope of duty and at/near time of event
- law enforcement records not admissible against D in crim case
Ancient documents
hearsay exception for authenticated document prepared before Jan 1, 1998
Confrontation clause
Not admissible if
Statement offered against accused in criminal case
declarant unavailable
statement testimonial
no opportunity to cross
Testimonial
Primary purpose is to establish or prove past events potentially relevant to a later criminal proceeding
Federal common law privileges
attorney client
spousal immunity
marital communications
psychotherapist/social worker client
clergy-penitent
governmental
Privilege considerations
Can only be asserted by holder
must be confidential - not destroyed by eavesdroppers if not negligent
comment on claim of privilege not allowed
waived by failure to claim, voluntary disclosure, or contractual waiver
Attorney client privilege
confidential communications
between attorney and client
during professional legal consultation
includes communications between client and doctor during exam upon attorney’s request as long as not called as testifying witness
exceptions
- services sought to aid in planning or commission of crime or fraud
- client put legal services at issue
- dispute between attorney and client
State privilege - physician patient
purpose of medical treatment relationship
info acquire for purposes of diagnosis or treatment
info necessary for diagnosis or treatment
psychotherapist privilege
confidential
pcupose was to facilitate professional services
Spousal testimonial privilege/spousal immunity
CRIM ONLY
spouse D- may not be called as witness while married
Confidential communications privilege
civil or criminal
confidential communications between spouses during marriage are privileged
either spouse can refuse to disclose and prevent the other from disclosing
Marriage privilege excpetions
in furtherance of joint crime
legal action between spouses
spouse charged with crime against other spouse or children
Preliminary facts decision
Jury - relevancy, screened by judge
Judge - competency
