Evidence Flashcards
Rule 105
limited admissibility
Rule 106
rule of completeness
Rule 401 - test for relevant evidence
evidence is relevant if it
(a) has any tendency to make a fact more or less probable than it would be without the evidence; and
(b) the fact is of consequence in determining the action
Rule 403 - test for exclusion of relevant evidence
court may exclude relevant evidence if its PROBATIVE VALUE is SUBSTANTIALLY OUTWEIGHED by a danger of unfair prejudice, confusing issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence
A rebuttable presumption shifts___, but not___, to the opposing party. Under the “bursting bubble” approach followed by the Federal Rules in a civil case, a presumption “bursts” (i.e., no longer has a preclusive effect) after the introduction of sufficient evidence by the opposing party to sustain a contrary finding.
burden of production; but not the burden of persuasion
what does the bursting bubble approach to presumption describe?
FR in civil case - presumption “bursts” / no longer applies / has preclusive effect after introduction of sufficient evidence by opposing party to sustain contrary finding (i.e. burden of production was met by party at disad by presumption)
when is evidence of habit admissible?
habit may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice
when can impeachment be conducted through extrinsic evidence?
- witness has opp to explain or deny & opposing party has opposed to q witness about statement, or
- justice so requires
permissible uses for admitting evidence of other crime, wrong, or act
motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident
when can evidence of a person’s character or character trait be proven through specific instances of conduct?
- on cross examination of a character witness (who testified about opinion or reputation)
- when person’s character or character trait is essential element of charge, claim, or defense
- spec instances of sex assault victim’s sexual behavior to prove someone other than D was source of physical evidence
- spec instances of vic sex behavior if to prove consent or offered by prosecutor
when can other evidence be used if original or reliable duplicate of document is not available?
- originals lost or destroyed (not by proponent’s bad faith)
- originals not attainable by judicial process
- opponent had original, knew it was required and failed to produce, or
- content not closely related to controlling issue
best evidence rule
generally requires that original recording, writing, or photograph be produced to prove its contents
apple when witness is testifying based off acts learned from doc - vs. personal knowledge
real or physical evidence not subject to it
post trial juror testimony is admissible if it addresses…
- extraneous prejudicial information brought to jury’s attention
- outside influence improperly brought to bear on a juror, or
- a mistake made in entering verdict on verdict form
a juror is generally prohibited from testifying after trial about jury deliberations, including…
- any statement made/ incident that occurred duty jury deliberations
- effect of anything upon that jurors or another juror’s vote
- any juror’s mental processes concerning verdict
when does the hearsay exception for recorded recollection allow a record to be read into evidence?
- concerns a matter that witness once knew but cannot recall
- was made or adopted by the witness when matter was fresh in her mind and
- accurately reflects the witness’s personal knowledge at the time it was made
when can the hearsay exception for recorded recollection allow a record to be received as an exhibit?
only if offered on cross by adverse party to witness
when can impeachment of a witness’s character for untruthfulness be shown through extrinsic evidence?
reputation or opinion testimony; OR
if specific instances of conduct, only for conviction for felony or crime of dishonesty
if a witness was convicted of a crime/released >10 years ago, when can that conviction be used as impeachment?
must be a felony or crime of dishonesty, and
still presumed inadmissible unless
- probative value substantially outweighs prejudicial effect, and
- reasonable notice given
when is a crime of dishonesty admissible for impeachment of a witness?
if convicted or released <10 years ago, admissible
otherwise, inadmissible unless PV > PE and reasonable notice
when is a duplicate admissible?
duplicate is admissible to the same extent as the original and w/o the need to explain the unavailability of the original, unless
1. genuine q raised about original’s authenticity, or
2. circumstances make it unfair to admit the duplicate
when is a felony admissible as impeachment against a witness?
if witness crim D: inadmissible unless PV > PE
if not crim D, admissible unless PE substantially > PV
standard for expert witness qualification
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in opinion if more likely than not that (i) testimony is based on sufficient facts or data, (ii) testimony is the product of reliable principles and methods, and (iii) expert’s opinion reflects a reliable application of the principles and methods to the facts of the case
standard for opinion testimony for lay witness
To be admissible, a lay witness’s opinion must be (i) rationally based on the perception of the witness; and (ii) helpful to a clear understanding of the witness’s testimony or the determination of a fact in issue
generally only allowed to testify regarding common sense impressions
business record exception
excepted from the hearsay rule if the record was (i) kept in the course of a regularly conducted activity, (ii) made as a regular practice for that activity, and (iii) made at or near the time of the act or event by someone with knowledge.
hearsay exceptions only applying 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 the declarant’s availability
hearsay exceptions not requiring unavailability
- excited utterance
- present sense impression
- statement of present mental / physical condition
- statement made for purpose of medical treatment or diagnosis
- recorded recollection
- business record exception
- public records
- catch-all
documents constituting self-authenticating evidence
- public documents with official’s signature and certification by 2nd official/seal
- certified copies of public records / of regularly conducted activities
- newspapers, periodicals, official publications
- docs with trade inscription
- acknowledged docs
- commercial paper w signature and related docs
difference between what the offering party may admit under the recorded recollection exception vs. opposing party
offering party may read/enter into evidence a record that meets the exception’s requirements (witness once knew but can no longer recall; made/adopted record when fresh in mind; accurately reflects wit knowledge)
only opposing party can offer as exhibit
difference between treatment of refreshed recollection materials vs. recorded recollection
both require that witness knew but can no longer recall fact, but only recorded recollection (permitting introduction into evidence by the offering party) requires further that 1. wit made or adopted record while fresh in mind and 2. record accurately reflects wit’s knowledge
when is evidence of a victim’s sexual behavior/predisposition admissible in a civil proceeding involving sexual misconduct?
only admissible if court determines that the probative value of the evidence substantially outweighs the danger of harm to the victim and unfair prejudice to any party
when is a hearsay statement by a company’s employee admissible against the company for its truth?
- the employee is authorized to make such a statement, or
- it is made about a matter within the scope of the employee-employer relationship and during the relationship
when can a criminal defendant offer evidence of his own character?
- good character, if that trait is pertinent to the crime charged, and
- truthful character that was attacked after the defendant testified at trial
when are offers to pay medical expenses admissible?
- not admissible to prove liability for injury
- conduct or statements not part of the offer to pay medical expenses are admissible even if made contemporaneously with offer
requirements for statement against interest (to be admissible)
declarant unavailable, and statement
1. is contrary to declarant’s proprietary or pecuniary interest,
2. tends to invalidate the declarant’s claim against another, or
3. exposes declarant to civil or criminal liability
what are the two main examples of purposes for which evidence of liability insurance is admissible?
- to impeach witness with evidence of self-interest, bias, or prejudice
- to prove agency, ownership, or control
judicial notice requirements
must be fact not subject to reasonable dispute that is either
1. generally known within the territorial jx of the trial court, or
2. capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned
judicial notice standard in a criminal case
judicial notice recommends a conclusion to the jury wrt the issue but does not conclusively bind the jury
judicial notice standard in a civil case
judicial notice conclusively establishes facts for the purposes of the litigation
