Evidence Flashcards
2 types of relevance
(1) logical relevance
(2) legal relevance
define logical relevance
Only relevant evidence is admissible. Evidence is relevant if has a tendency to make a fact at issue more or less probable.
define similar occurences
Evidence that similar happenings occurred or failed to occur are admissible if the events are substantially similar.
- Used to prove:
o Causation, prior false claims, similar accidents caused by the same condition, rebutting claim of impossibility, industrial custom
define habit
evidence of a person’s habit or organization’s routine practice are admissible to show that the person or organization acted in this way on a particular occasion. A habit is a regular response to a regular set of circumstances
o Note: Doing something all the time, often reflexive
what are the two types of legal relevance
(1) judicial discretion
(2) public policy
define legal relevance for judicial disrection
Under the FRE 403 balancing test, a judge may exclude evidence if the probative value is substantially outweighed by the risk of unfair prejudice, confusion of the issues, misleading the jury, or wasting the court’s time.
(evidence excluded per Rule 403 balancing test)
Relevant evidence is admissible unless any of the following provides otherwise:
the United States Constitution;
a federal statute;
these rules; or
other rules prescribed by the Supreme Court.
what is the header for evidence excluded on public policy grounds
relevant evidence can be excluded on public policy grounds
5 areas of public policy exclusions
(1) liability insurance
(2) subsequent remedial measures
(3) settlement offers
(4) offer to pay medical expenses
(5) plea discussions
what is the rule on liability insurance and the 3 exceptions
Liability insurance is not admissible to prove culpable conduct. Insurance may be admitted to:
- show ownership or control
- impeach (e.g., through a showing of bias)
- As part of an admission of liability if hard to sever the statement of having insurance from the admission (e.g., “Don’t worry, my insurance will cover it”)
what is the rule on subsequent remedial measures and the 3 exceptions
evidence of subsequent remedial measures is inadmissible to show culpable conduct but may be admitted to show
- ownership or control
- rebuttal to denial of feasibility of repair
- destruction of evidence by opposing party
what is the rule on civil settlements and the 2 areas it applies to and whether any statements can come in
Statements made during civil settlements are not admissible to prove the amount or validity of a claim or to impeach
as well, if any admissions are made, they are not admissible.
remember that there must be a disputed claim for this to apply!
The rule does not require exclusion if the evidence is offered for purposes other than proving or disproving the validity or amount of a disputed claim. For instance, evidence from settlement discussions can be used to prove a witness’s bias or prejudice, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.
what is the rule on offers to pay medical expenses
offers to pay medical expenses are not admissible to prove culpable conduct. statements of admission accompanying an offer may be severed and admitted.
Example: D visits P in hospital and says, “I’ll pay your medical bills, I shouldn’t have dropped that banana peel on the stairs.” The second part of sentence is admissible
what is the rule on plea discussions and the 2 exceptions
Plea discussions are not admissible to prove culpable conduct. This includes withdrawn guilty pleas, and no contest pleas, but does not extend to a guilty plea that actually went through to conviction. This also includes made during a court proceeding regarding the plea
(b) Exceptions. The court may admit a statement described in Rule 410(a)(3) or (4):
(1) in any proceeding in which another statement made during the same plea or plea discussions has been introduced, if in fairness the statements ought to be considered together; or
(2) in a criminal proceeding for perjury or false statement, if the defendant made the statement under oath, on the record, and with counsel present.
what are the 3 forms of character evidence
opinion testimony
reputation testimony
specific acts
o (1) Reputation testimony (“Mary has a reputation for honesty in our community”
o (2) Opinion testimony (“I think Mary is a honest person)
o (3) Specific Acts (see below, e.g., part of crime, or MIMIC)
What the 4 form rules for presentation of character evidence?
(1) Trial starts with door closed. D can open doors by calling his own character witness or testifying to his character.
(2) On direct, only reputation and opinion evidence is allowed. No questioning on specific acts is allowed.
(3) On cross, specific acts may be inquired into but no extrinsic evidence is allowed.
(4) After D opens the door, prosecution can now call her own character witnesses but is subject to the same rules.
What is the rule for character evidence in civil cases and the 4 exceptions where character evidence is admissible?
Generally character evidence in a civil trial is not allowed to prove propensity. However, the plaintiff may offer the character evidence where the defendant’s character is an essential element of the claim or defense, where similar acts of defendant’s sexual assault or child molestation case, to prove motive, intent, mistake or absence thereof, identify or plan, or for impeachment purposes.
What is the rule for criminal evidence in civil cases and the 4 exceptions where character evidence is admissible?
generally, character evidence in a criminal case is not admissible to prove propensity. however, the prosecutor may introduce character evidence:
(1) similar act of defendant in a sexual assault or child molestation case,
(2) to prove motive, intent, mistake or absence thereof, identity, or plan
(3) to impeach
(4) after defendant opens the door
NOTE on similar act of D in a sexual assault or child molestation case
If the prosecutor intends to offer this evidence, the prosecutor must disclose it to the defendant, including witnesses’ statements or a summary of the expected testimony. The prosecutor must do so at least 15 days before trial or at a later time that the court allows for good cause.
NOTE on Mimic
Notice in a Criminal Case. In a criminal case, the prosecutor must:
(A) provide reasonable notice of any such evidence that the prosecutor intends to offer at trial, so that the defendant has a fair opportunity to meet it;
(B) articulate in the notice the permitted purpose for which the prosecutor intends to offer the evidence and the reasoning that supports the purpose; and
(C) do so in writing before trial–or in any form during trial if the court, for good cause, excuses lack of pretrial notice.
what are the rules for after defendant opens the door in criminal case?
After the defendant opens the door in a criminal case, the prosecutor may rebut the defendant’s claim as to his honesty or as to his character for peacefulness by use of her own opinion or reputation witnesses, or by questioning on specific acts during cross.
if the defendant claims self defense, the prosecutor may show that the defendant is not peaceful, or the prosecutor can show that the victim is peaceful.
- (4) Rebuttal after D “opens the door” and presents evidence of his good character – either that he is honest or that he is peaceful, whichever is relevant to the case.
o Then, and only then, prosecution may present evidence of D’s bad character regarding the specific character trait mentioned by the D.
o Prosecution may do this by:
Calling their own character witnesses
Cross-examining D’s character witness and asking about specific instances
Example: D calls his own character witness who says D has a reputation for being non-violent. Prosecution on-cross asks, “have you heard that the defendant once attacked his teacher? Did you know he once kicked his friend?”
Note: The trait must be relevant to the crime.
Recall - prosecution can be first offer character propensity evidence in sexual assault or child molestation cases.
in a homicide case where defendant asserts self defense, what is the prosecutor allowed to do?
offer extrinsic evidence of victim’s trait for peacefulness
(this is an exception to the no extrinsic evidence rule). This is not possible in an assault case.
* Rule: Once D opens door to the victim, he also opens the door to himself.
general rule for victims in sexual assault cases?
for victims in sexual assault cases, the victim’s character is generally not admissible through specific acts
two exceptions in civil sexual assault case?
in civil case evidence specific acts may be inquired into to show third party source of injury or to show prior sexual acts were consensual
two exceptions in criminal sexual assault case?
in criminal case specific acts may be inquired into if
(1) 403 balancing test
(2) victim places own reputation as issue
If a party intends to offer evidence under Rule 412(b), the party must:
(A) file a motion that specifically describes the evidence and states the purpose for which it is to be offered;
(B) do so at least 14 days before trial unless the court, for good cause, sets a different time;
(C) serve the motion on all parties; and
(D) notify the victim or, when appropriate, the victim’s guardian or representative.
(2) Hearing. Before admitting evidence under this rule, the court must conduct an in camera hearing and give the victim and parties a right to attend and be heard. Unless the court orders otherwise, the motion, related materials, and the record of the hearing must be and remain sealed.
listen to exam tips on character
v. Exam Tips on Character
* When character is at issue, consider if it can be admitted for other purpose
* When character evidence is allowable for other purpose, do 403 balancing test to determine whether the probative value substantially outweighs the risk of unfair prejudice
- Exam Tip – Character Evidence Fact Triggers
o Prior conviction of any kind
o Evidence someone is a liar or a bad person
o Wrongful death or defamation where character is at issue
how is foundation laid?
Foundation is laid by having a witness with personal knowledge on the item testify in court.
Overall rule for authentication?
All tangible evidence must be authenticated by the proponent prior to it being offered into evidence. The proponent must demonstrate through sufficient evidence that the item is what it claims to be. A witness with personal knowledge can authenticate a document through their testimony
2 ways to authenticate physical evidence
witness testimony - she recognizes the evidence
chain of custody where proponent shows that the object was held in substantially unbroken condition (need not be perfect)
ways to authenticate writings and recordings
a. Admissions, eyewitness testimony, voice identification, handwriting verifications (expert or nonexpert with personal knowledge, or jury with sample comparisons), circumstantial evidence (e.g., postmark, address, etc.), on the basis that it was a reply letter
how to authenticate photos and videos
identified by a witness as being a fair and accurate representation
photographer need not testify
telephone conversations - 4 different ways to authenticate
(1) party to the call recognizes the speaker’s voice
(2) person on the call had knowledge of certain facts
(3) speaker answered phone and identified themselves
(4) speaker who answered business phone talked about business matters
3 requirements to authenticate an ancient document
(1) Document in non-suspicious condition;
(2) Document in place such a writing would be kept; AND
(3) Document at least 20 years old
Examples of self-authenticating documents
(1) Public documents with a seal
(2) Official publications
(3) Certified copies of public records
(4) Trade inscriptions and labels
(5) Notarized documents
(6) Commercial paper
(7) Business records
(8) Electronic records with certification
standard for authentication?
Court finds that there is proof sufficient to support a jury finding that the items are what they are claimed to be
It is not necessary that the court find that the evidence is what the
proponent claims, only that there is sufficient evidence from which the jury might ultimately
do so.
judge role - listen
The court makes the initial decision under Rule 104(a) whether the proponent has offered sufficient proof that a reasonable juror could find in favor of authenticity.1 If so, then, under Rule 104(b),2 the jury makes the ultimate determination as to whether the evidence is, in fact, what its proponent claims.3 “Importantly,” as the Fourth Circuit has observed, “the burden to authenticate under Rule 901 is not high . . . . [A] district court’s role is to serve as gatekeeper in assessing whether the proponent has offered a satisfactory foundation from which the jury could reasonably find that the evidence is authentic.”4“In performing its Rule 104 gate-keeping function, the trial court itself need not be persuaded that the proffered evidence is authentic.
- If multiple similar items (like 75 checks) judge only has to make preliminary finding of authenticity into a small number (e.g., 5)
v. EXAM TIP – Authentication Fact Triggers
* Phone call, especially if voice disguised or muffed
* Signed greeting card found by a third party
* Signature on letter
* Report of any kind
What is the Best Evidence Rule
Under the Best Evidence Rule, where the party is trying to prove the content of a writing, photograph, or recording, the original (or a mechanical duplicate) must be provided unless the proponent has good reason.
4 reasons deemed satisfactory for court to accept secondary source
(1) Original lost or destroyed at no fault of proponent
(2) Proponent gave notice to other side of need of document but opposing party did not produce
(3) Original cannot be procured through the judicial process
(4) Item collateral
b. Note: Look for legally operative instruments where fact does not exist independently from the writing or where witness’s knowledge based solely from reading a document
rule on duplicates and 2 instances were duplicate will not be accepted
Mechanical duplicates are allowed unless
(1) unfair to admit, or
(2) reasonable question as to authenticity
judge role in BER
judge decides whether BER is satisifed
jury rule in BER - 3 areas
jury decides
(1) Whether a writing ever existed
(2) Whether a writing is the original
(3) Whether other evidence accurately reflects its contents
rule on summary of voluminous writings as related to BER
in the case of voluminous writings, the entire document need not be shown to the jury, a witness can provide a summary, though opposing party can see the document and oppose its validity
rule for certified copy of public record and BER
certified copy of public record is sufficient and the original need not be produced under the best evidence rule
exam tips on documents
vii. EXAM TIP – Documents
* Whenever a document is being introduced into evidence, always analyze 5 issues
a. (1) Relevance
b. (2) Authentication
c. (3) BER
d. (4) Hearsay (watch for double hearsay)
e. (5) Any applicable hearsay exceptions
What are the 2 requirements for witness competency (not witness opinion)?
Witnesses are competent to testify if they have
(1) Personal knowledge; AND
(2) Take a sworn oath or affirmation to testify truthfully
- Note: All witnesses presumed competent until otherwise (no age)
Note: In federal diversity action case, state law governs the witness’s competency
Note: Witnesses are not automatically disqualified from testifying just because they have been convicted of a crime or have an interest in the case’s outcome.
Note: The presiding judge may not testify as a witness at the trial. A party need not object to preserve the issue.
What are the 3 requirements for lay opinion testimony?
Lay opinion testimony must
(1) Be based on personal knowledge;
(2) Be helpful to the trier of fact; AND
(3) Not be based on scientific or technical knowledge.
o Examples: Sense recognition (taste of drug), general appearance or condition of a person, state of emotion, speed, intoxication, sanity, voice/handwriting ID, property owner opinion on value of property
o Conclusion: The court property admitted the testimony.
4 requirements for expert witness testimony
(1) Helpful to the jury;
(2) Qualified as an expert in the field;
(3) Proper factual basis; AND
(4) Used reliable methods and applied them reliably
Four Daubert factors under reliability - fourth factor - used for scientific efforts - and four letter mnemonic
TEPA
(1) Testability
(2) Error rate
(3) Peer review
(4) Acceptance in scientific community
what is the rule on whether expert can give opinion on an ultimate issue
an expert can give an opinion on the ultimate issue except not for the intent nor mental state of the defendant
listen to notes on expert opinion
If evidence inadmissible, that information should not be shared with the jury unless judge allows under 403
An expert may give opinion testimony on direct examination without disclosing the basis of the opinion, unless the court orders otherwise. However, the expert may be required to disclose such information on cross-examination.
An expert’s opinion may be based on evidence introduced at the trial and communicated to the expert by counsel, usually in the form of a hypothetical question.
Dead Man Statute
A Dead Man Statute applies in state civil cases and prohibits a party from speaking about conversations with the deceased. This statute is not recognized in the FRE.
When are federal rules on privilege used versus state rules on privilege?
The common law — as interpreted by United States courts in the light of reason and experience — governs a claim of privilege unless any of the following provides otherwise:
- the United States Constitution;
- a federal statute; or
- rules prescribed by the Supreme Court.
- But in a civil diversity case, state law governs privilege
The FRE has no privilege mentioned in the FRE, so federal common law is used in federal question cases and in federal criminal court.
On the other hand, state rules apply in federal court when there is diversity jurisdiction, or when in state court.
Define Attorney Client Privilege
Confidential communications between a lawyer and client for the purposes of legal services are privileged, and the privilege survives death. The client is the holder of the privilege though the attorney can assert it on the client’s behalf.
3 exceptions to attorney client privilege
(1) client seeks attorney advice in furtherance of crime or fraud
(2) dispute between attorney and client
(3) 2 parties represented by same attorney and in subsequent litigation
Define confidential communications
Communications are confidential when they are not intended to be disclosed to a third party.
Note: Does not apply to physical evidence
Note: Attorney client privilege extends to work product
define waiver of attorney client privilege rule
Privilege is not waived if a party inadvertently sends documents to the other side so long as the holder of the privilege “promptly takes reasonable steps to rectify the error”
listen
(a) Disclosure Made in a Federal Proceeding or to a Federal Office or Agency; Scope of a Waiver. When the disclosure is made in a federal proceeding or to a federal office or agency and waives the attorney-client privilege or work-product protection, the waiver extends to an undisclosed communication or information in a federal or state proceeding only if:
(1) the waiver is intentional;
(2) the disclosed and undisclosed communications or information concern the same subject matter; and
(3) they ought in fairness to be considered together.
Disclosure Made in a State Proceeding. When the disclosure is made in a state proceeding and is not the subject of a state-court order concerning waiver, the disclosure does not operate as a waiver in a federal proceeding if the disclosure:
(1) would not be a waiver under this rule if it had been made in a federal proceeding; or
(2) is not a waiver under the law of the state where the disclosure occurred.
other privileges
Psychotherapist/social worker privilege
d. (4) Clergy-penitent privilege
e. (5) Governmental privilege
f. (6) Professional journalist
g. (7) Accountant client
2 types of marital privilege
(1) marital communications privilege
(2) spousal immunity privilege
5 requirements for marital communications privilege
(1) Civil or criminal case;
(2) Confidential communication;
(3) Made during marriage;
(4) Both spouses hold the privilege; AND
(5) Survives the marriage.
4 requirements for spousal immunity privilege
(1) Criminal case;
(2) Matters that occurred BEFORE or during marriage;
(3) Privilege belongs only to witness; AND
(4) Spouses married at time of trial.
3 exceptions where neither marital privilege applies
(1) Legal actions between the spouses
(2) Crimes against spouse or spouse’s children
(3) Joint crime or fraud
iv. Effect: Invoking the privilege makes the spouse unavailable in a hearsay analysis
Define self incrimination privilege
The Fifth Amendment provides that no person shall be compelled to be a witness against himself. The right applies in both civil and criminal cases.
Physician patient privilege - define all the rules
No federal physician client privilege (except for psychotherapists) exists.
In state courts, the privilege does exist. However, the information is not privileged if:
(1) Party puts physical condition at issue, OR
(2) Dispute between patient and doctor.
