Evidence Flashcards
Specific Acts (think non-criminal acts) admissible for Character Evidence
Civil - if element of cause of action, then specific acts are allowed
Criminal - Only if element of cause of action.
If defendant opens the door and puts on a character witness, you can cross-examine about specific acts.
Unless MIMIC, then specific acts may be admissible because they are not propensity.
Recorded Recollection Hearsay Exception
(1) record is on a matter witness once knew about
(2) Witness made the record when it was fresh in her memory
(3) Record accurately reflects the witness’s knowledge
(4) witness testifies that she cannot recall the event well enough to testify fully, even after consulting record on stand
RESULT: Witness can read the record to the jury from the stand. Cannot introduce record into evidence, though.
Contrast with Refreshing a Witness’s recollection, in which the witness CANNOT read to the jury
Burden of proof for evidence admissibiliy
When relevance is conditional on a fact, the court must examine all of the evidence and decide whether a jury could reasonably find the conditional fact by a preponderance of the evidence
Preserving evidentiary arguments on appeal
If ADMITTED, but you want it excluded, must make an OBJECTION
If EXCLUDED, but you want it admitted, must make an OFFER OF PROOF (made outside presence of jury)
Must be brought unless plain error
Completeness rule
If one party introduces part of a writing, the opponent may get admission of the ENTIRE document, even if they are otherwise inadmissible.
BUT, it is only necessary if it must give context to the writing.
Destruction of evidence giving rise to presumption that it was unfavorable (elements)
(1) destruction was intentional
(2) material was relevant to the issue
(3) the alleged victim acted with due diligence concerning the evidence.
When can a lay witness (non-expert) give opinion testimony?
opinion is (1) rationally based on the perception of the witness; and (2) helpful to a clear understanding of the witness’s testimony.
Cannot be based on scientific, technical testimony
Admissibility of habit testimony
Admissible of person’s habit or routine is admissible to prove the person acted in conformity with that habit or routine.
Common fact patterns say “always” “routinely” or “never”
Hearsay Exceptions (when declarant is UNAVAILABLE)
- former testimony
- dying declaration
- statement against interest
- statement of personal or family history
- statement offered against a party that wrongfully caused unavailability of declarant
Deadman’s Statute
Does not apply in criminal case
In civil cases, a party with a financial interest in the outcome of the case cannot testify about communications with a decedent who’s estate is a party to the case.
Admissibility of victim’s good character (by prosecution)
(1) when defendant introduces evidence of victim’s bad character
(2) when defendant is claiming victim was first aggressor, prosecution can introduce evidence of victim’s character for peacefulness
Evidence of defendant’s prior sexual convictions
If defendant is on trial for any sexual crime, the prosecution can introduce evidence of any other sexual assault committed by defendant.
What witnesses CANNOT be excluded from the courtroom?
(1) a party (not an entity)
(2) the agent of an entity, if designated as the representative
(3) any person who is essential to the party’s presentation of its case
(4) person whose presence is permitted by statute (victim)
Impeachment of witnesses by using CONVICTIONS
(1) crimes involving dishonesty or false statement
(2) Felonies (punishable by death or more than 1 year)
——–If non-criminal defendant, admissible unless prejudice substantially outweighs probative value. presumed admissible. Same 403 analysis
——–If criminal defendant, admissible only if probative value outweighs prejudicial effect. presumed inadmissible, reverse 403
(3) Old convictions (greater than 10 years) only admissible if probative value substantially outweighs prejudicial effect. Must give notice
(4) pardoned for convictions not admissible, BUT convictions pending appeal ARE admissible
(5) juvenile convictions - cannot be used against defendant. Can be used against non-party only if adult conviction would be admissible and used in criminal trial. Can never be used in in civil trial.
Confrontation Clause Rule
Typically, out of court testimonial statements are not allowed, UNLESS
1 - declarant is now unavailable; and
2 - defendant had a prior opportunity to cross examine that person.
Business records hearsay exception
1 - record was kept of a regularly completed activity of the organization
2 - The making of the record itself was a regularly completed activity; and
3 - record was made at or near the time by someone with knowledge
Present sense impression vs. excited utterance
Both exceptions to hearsay
PSI - statement made while or immediately after event describing the event (narrating)
EU - statement about a startling event made while the declarant is under the stress or excitement of it
Best evidence rule
limits ability to present evidence of contents of documents (recording, writing, or photograph. not real or physical evidence) when its contents are at issue, meaning:
1 - document is used as proof of event
2 - document has actual legal effect (K or will)
3 - witness is testifying based on facts known only from document
Must present actual document.
Copy is OK if (1) there is no genuine dispute as to its authenticity; or (2) circumstances make it unfair to admit.
When is evidence relevant
1 - it has a tendency to make a fact more or less probable than it would be without the evidence; and
2 - the fact is of consequence in the action
Rape shield law
evidence of a victim’s sexual behavior/predisposition is generally inadmissible in any proceeding involving sexual misconduct
If criminal, to show person other than D was the source, or to show consent.
If civil, reverse 403 (probative value substantially outweighs prejudice).
