Evidence Flashcards
List Public Policy Exceptions to Relevance
Liability Insurance
Subsequent Remedial Measure
Civil Settlements and Negotiations
Plea Discussion
Offers to Pay Medical Expenses
Liability Insurance
insurance or lack of insurance is inadmissible to prove negligence or wrongful conduct but can be admissible for another relevant purpose like impeachment or ownership if disputed
Subsequent Remedial Measures
evidence of repairs or precautionary measures made following an injury is inadmissible to prove negligence, culpable conduct, need for warning etc
ADMISSIBLE to rebut a claim that edit wasn’t feasible, to establish ownership/control or prove destruction
Civil Settlements and Negotiations
evidence of a compromise or offer to compromise a civil claim is inadmissible to prove/disprove validity or a claim or amount disputed AND inadmissible to impeach a witness by prior inconsistent statement
Admissible to impeach on bias
Plea Discussions
inadmissible in any criminal /civil case against D who made the plea
an actual guilty plea not withdrawn is generally admissible in the related litigation
Offer to Pay medical expenses
inadmissible to prove liability for injury, but admissions of fact accompanying the payment is admissible
Relevant Evidence Rule
if it has any tendency to make the existence of a fact of consequence any more or less probable than it would be without the evidence
All Relevant evidence is admissible unless
kept out by some evidence rule
OR
court uses rule 403 discretion to exclude
Rule 403 Exclusions
judge has discretion to exclude evidence if its probative value is substantially outweighed by any of the following:
(1) unfair prejudice)
(2) confusion of the issues
(3) misleading the jury
(4) undue delay
(5) waste of time
(6) cumulative
NOT unfair surprise
Character Evidence General Rule
may be offered as substantive evidence if:
(1) to prove a person’s character in the rare situation where character is directly an issue or element i the crime (defamation)
(2) to circumstantially prove how the person probably acted (character in conformity)
Witness Sequestration Rule
upon request, the judge MUST exclude witnesses from the court room and the judge may also exclude sua sponte
(limitations)
Limitation to Witness Sequestration Rule
judge must NOT exclude
(1) party or party’s designated representative
(2) person whose presence is essential
OR
(3) perso statutorily authorized to be present
What are the only times you can bring something in as substantive evidence
(1) Prior Inconsistent Statements: admitted as substantive evidence if prior statement was made under oath
(2) Learned Treatises are admissible as substantive proof if established as a reliable authority in the field AND the excerpt is relied upon by the expert OR brought to their attention on cross
(3) (technically) Present State of Mind: statements of memory CANNOT be used to establish the truth of the statement as perceived (so technically not admitted as substantive evidence)
What categories are definitionally NOT hearsay (baptized)
(1) prior statement of a testifying witness
(2) part opponent
(3) Prior Sworn Inconsistent Statement
(4) Prior Consistent Statement to Rehabilitate the Witness
What types of hearsay require unavailability
(1) former testimony
(2) statement against interest
(3) Dying Declaration
(4) Statement of Personal or Family History
What are the grounds for unavailability
(1) Death/Illness (Physical or Mental)
(2) Privilege (exempt from testifying)
(3) Refusal to testify despite court order
(4) inability to remember the subject matter
(5) Absent and their attendance cannot be procured by process
Confrontation Clause Backstop
even if there is an exception to hearsay that would get the statement in, do not admit it if:
(1) statement is offered against a criminal defendant
(2) declarant is unavailable
(3) D did not had an opportunity to cross examine the declarant about the statement
(4) AND the statement is testimonial
(a) sworn testimony, statement made to law enforcement, or certain documents
(b) primary purpose test: if to aid in an ongoing emergency, then it is not testimonial; if statement made to provide information for a later prosecution then testimonial
Excited Utterance Elements
(1) startling event
(2) still under the stress or excitement of that event
Present Sense Impression
(1) made immediately after the declarant perceived an event or condition
(2) describing or explaining the event or condition
Present State of Mind
(1) pain emotion or intent or sensory/physical condition
(2) but NOT memory or belief
Statements of Medical Treatment or Diagnosis
(1) made for medical diagnosis or treatment
(2)describing medical history, past or present sympoms, or their inception/general cause
Business Record Elements
(1) record of facts, conditions, events, opinions, or diagnosis
(2) made at or near the time of the occurrence
(3) by someone with personal knowledge or informed by someone with personal knowledge
(4) made and kept in the regular course of business
Former Testimony Elements
(1) given under oath in the same or different case
AND
(2) opportunity/motive to develop it
NOT substantive evidence
Statement Against Interest Elements
(1) statement made against pecuniary, proprietary, or penal interest
(2) when made
(3) that a reasonable person would only say if it were true
(4) personal knowledge of the facts
(5) AND be aware that what is being said is against interest at the time they’re making the statement
Note: if against penal interest then needs some corroboration
Dying Declaration Elements
(1) criminal homicide case OR in any civil case
(2) belief of imminent death
(3) statement concerns the cause or circumstances of their impending death
(4) based on personal knowledge
(5) unavailable (don’t have to die, just have to be unavailable)
traditional rule = you have to be dead
Family History Hearsay Exception Elements
(1) member of family or intimately associated with family
(2) AN based on personal knowledge of facts or reputation of the family
Lay Witness Testimony Admissibility
(1) rationally based on perception of the witness
(2) helpful to clear understanding of testimony or fact at issue
(3) requires no specialized skill or knowledge
Habit Evidence
Person’s response to a specific set of circumstances being offered to prove that person acted in conformity with that habit at the date in question
Impeachment
A witness’s credibility may be attacked by any party, including the party calling,
Defendant’s Character in Criminal Case
prosecution cannot initiate introduction of bad character evidence to show conduct in conformity
Victim’s Character in Criminal Case
D can offer evidence re victim’s character for the relevant trait when relevant to D’s innocence
P may rebut with (1) evidence of D’s own bad character for that trait OR (2) evidence of victim’s good character for that trait
Victim’s Character Evidence in Homicide Case
if D claims self defense then evidence of any kind (including eyewitness) that the victim was first aggressor opens the door to evidence of victim’s peacefulness
Victim’s Character Evidence in a Rape Case
generally inadmissible except
(1) criminal case to prove different source of injury or semen
(2) to establish consent based on victim’s previous interactions with D
Victim Character Evidence in Civil Rape Case
generally inadmissible under the probative value of the evidence substantially outweighs the prejudicial effect/harm to victim (reverse 403)
Non Character Purpose for Admission
M - Motive
I - Intent
M - Mistake (Absence of)
I - Identity (Modus Operandi)
C - Common Plan or Scheme
need sufficient evidence that D did commit the other misconduct subject to 403 balancing
Defendant Misconduct in Sex Crime Cases
admissible for any purpose including propensity in criminal or civil crime involving alleged sexual assault or child molestation
Authentication Rule
writing or secondary evidence of the content will not be received into evidence unless authenticated. (see methods of authenticating)
Methods of Authenticating (Generally)
(1) pleadings/stipulation
(2) opponent admission
(3) eyewitness testimony
(4) handwriting verification
(5) Ancient Documents from 1998
(6) Reply Letter Doctrine
(7) Photos and Videos
(8) X Ray
X-Ray Authentication
must be authenticated by process
(1) machine worked
(2) properly operated
(3) chain of custody to ensure no tampering
Photos and Videos
General: someone w personal knowledge of the scene (1) portrayal of certain facts relevant to issue and (2) verified as an accurate representation of the facts
Unintended camera : (1) it was working at the time and (2) photo/video was downloaded from that camera
Reply Letter Doctrine
evidence written in response to communication sent to alleged author
Ancient Documents 1998
(1) at least 20 years old when offered into evidence
(2) in a condition no suspicion re authenticity
(3) was found in a place such writing would be kept
Handwriting Verification
Lay Person - familiar with handwriting before litigation, no comparison, may testify re authenticity handwriting
Expert Opinion - comparison of handwriting
Jury - comparison of handwriting
Voice Identification
identified by
(1) any person who has heard the voice at any time (Even after the start of litigation)
Telephone Conversation
can be authenticated by any party to the call who testifies that:
(1) person recognizes voice
(2) speaker had knowledge of certain facts only they would have
(3) called certain number and they answered as that person/residence
(4) called business and talked w person who answered about relevant business
Self Authenticating Documents
(1) Domestic public documents w the seal
(2) official publications and government pamphlet
(3) Certified copies of public record or private files on record at public office
(4) newspapers and periodicals
(5) trade inscriptions/labels
(6) notarized/acknowledged docs
(7) commercial paper, including signatures and related documents
(8) Business records and electronically generated records w certification
The Best Evidence Rule
to prove the content of a writing, recording, or photograph, the original must be produced if the terms of the writing were material.
proving the contents of a writing where:
(1) the writing is legally operative (Creates rights or obligations)
(2) knowledge of witness from having read the writing/seen the thing
Best evidence rule Original
the writing itself or any counterpart (includes negative of picture or any printouts)
Real Evidence
must be authenticated and in substantially the same condition
Refreshing Recollection
after witness says they don’t remember, you can hand them memorandum to read over, then take it back and have them testify aloudR
Recorded Recollections
Gets read (not submitted) into evidence if:
(1) witness insufficient recollection to testify
(2) witness had personal knowledge of the facts in the record when made
(3) record was made by the witness or under their direction or adopted by witness
(4) record was made when the matter was fresh in witness’s mind AND
(5) record accurately reflects witness knowledge (witness vouches)
Expert Opinion - Admissible if
(1) Helpful
(2) Opinion Based on Sufficient Facts or Data
(3) Reliable Application of principles
(4) Witness qualified as an expert
Expert Testimony - Proper Factual Basis for Opinions
Facts based on own observation
Facts made known to expert at trial
Facts not known but personally supplied and reasonably relied upon
Reasonable Probability - Expert Opinion
Daubert Factors
T - Tested
R - Rate of Error
A - Accepted
P - Peer Reviewed
Prior Inconsistent Evidence
witness has on another occasion made statements inconsistent w present testimony.
Impeach if: (foundation + relevant)
(1) witness opportunity to explain or deny
(2) adverse party opportunity to examine witness
(see exceptions)
Substantive Evidence if: Under Oath
Prior Inconsistent Statements Foundation Exception
(1) party opponent
(2) hearsay declarant
(3) where justice requires
Bias Impeachment
Evidence that witness is biased, can permit extrinsic evidence even if witness admits the bias
Sensory Deficiencies
impeached by showing faculties of perception or recollection are faulty such that it’s doubtful they could’ve perceived what they claim to have perceived
Contradiction Impeachment
if witness admits a mistake or lie, they’re impeached
Extrinsic evidence only if major point
Spousal Testimonial Privilege
Criminal Cases Only
Prevents D spouse from testifying during marriage, even if the event took place before, witness spouse holds and waives the privilege
Confidential Marital Communications
- Civil OR Criminal
- During valid marriage, must exist when communication is made, nothing terminates re things said in marriage
either spouse can prevent the other from testifying - Threats/Abuse not protected
- statements made in presence of third party not privilege (except young children)
Physician-Patient Privilege
State Only
Professional relationship existed
the info acquired for purpose of diagnosis or treatment
EXCEPT patient puts physical condition in issue
Judicial Notice
the court recognizing a fact as true without formal presentation of evidence. can take notice of fact not subject to reasonable dispute because
(1) generally known within trial court’s jurisdiction
OR
(2) can be accurately and readily determined from sources that cannot reasonably be questioned (scientific facts and principles)
Judicial Notice Effect
Conclusive in civil but not criminal case
Civil Case: jury must accept as true
Criminal Case: jury told they may but don’t have to accept
