Evidence Flashcards
When do federal rules of evidence NOT apply?
State law re: privilege in diversity cases
Preliminary questions of fact relating to admissibility, grand jury proceedings, and other misc proceedings (sentencing, arrest, etc.)
Relevance
Tendency to make fact of consequence more or less probable than w/o it
Admissibility of evidence that a person filed past similar claims/prior accidents
Inadmissible to show invalidity of present claim
Admissible to show P made previous similar false claims or that P’s condition is due to a prior accident
Admissibility of evidence of other accidents involving D
Only admissible if prior accidents/injuries caused by same event under similar circumstances to prove existence of dangerous condition, cause of injury, and notice
Admissibility of evidence of prior conduct
Admissible to prove motive/intent or habit (requires frequency of conduct and particularity of circumstances)
Public Policy Exceptions to Admission
Liability insurance – Presence/lack not admissible to show negligence
Subsequent remedial measures - not admissible to show negligence, culpability, defect, or need for warning
Civil settlements/negotiations (and conduct during) - not admissible to prove/disprove validity or amount in claim or impeach a witness
Plea discussions inadmissible against D who made plea/participated, but admissible in related litigation
Payments/Offers to Pay inadmissible to prove liability
Character Evidence - Defined
A person’s general propensity or disposition (typically witness testimony)
Character Evidence - Offered For
Prove a person’s character when character is an essential element of case (RARE)
Circumstantial evidence of how person probably acted (conformity)
Evidence of witness’s bad character for truthfulness (impeachment)
Character Evidence - Types of Evidence
Evidence of specific acts, opinion testimony of witness who knows them, or testimony re reputation in community
Character Evidence - Criminal Ds
Prosecutor cannot initiate, but D can introduce good evidence (and then P can rebut with evidence of bad character or cross D’s witness with “did you know’ qs to show witness’s lack of knowledge)
No specific acts/instances
Character Evidence - Criminal Victims
D may introduce rep/opinion evidence when relevant to show D’s innocence (self defense)
P can rebut with rep/opinion about victim’s good character for same trait or D’s bad character for same trait
Character Evidence - Sexual Assault Victims
Evidence offered to prove sexual behavior/disposition > inadmissible
Criminal exceptions: semen is from someone else or consent
Civil exceptions: R403 (favors inadmissibility)
Character Evidence - Civil Cases
Character inadmissible to prove conduct in conformity unless character is directly at issue (but habit evidence allowed)
Using Evidence of Misconduct for Non-Character Purposes
MIMICO
Motive, intent, absence of mistake, identity, common plan, or opportunity
Misconduct can be shown via any evidence (subject to 403) with reasonable notice to D
Character Evidence - D’s Misconduct in Sex-Crime Cases
Evidence of D’s other sex crimes admissible if D accused of committing it again
Relevant for any purpose and may include acts, but must give D notice 15 days before trial
Excluding Otherwise Relevant Evidence
Probative value substantially outweighed by unfair prejudice (403)
Liability insurance
Remedial measures
Settlement offers
Withdrawn guilty pleas
Offers to pay medical expenses
Writings - Authentication
Requires proof that writing is what proponent claims (support jury finding it genuine)
Writings - Authentication - Forms of Proof
Pleadings, stipulation, opponent’s admission, eyewitness testimony, handwriting verification (lay person, expert, or jury), ancient docs (20+ yrs), reply letter, photos/videos (accurate portrayal of relevant facts), Xray/electrocardiograms (validity of process + custodial chain)
Authentication - Oral Statements
Voice – anyone who has heard voice, including after litigation began
Telephone – party to call testifies that they recognized other voice, speaker had particular knowledge, they called that person’s number, or they called a business and talked with the person about business
Authentication - Self-Authenticating Documents
Public docs with a seal, official publications, certified records, newspapers, trade labels, notarized docs, commercial papers, business records, and data
Best Evidence Rule
If proving content of writing, the original must be produced if terms are material
Secondary evidence admissible only with a satisfactory excuse
Doesn’t apply if witness has personal knowledge of facts to be proved
Best Evidence Rule - Defining an Original
An original is the writing intended by author to have the same effect as original
Duplicates may be valid unless it is unfair or there are questions about authenticity
Best Evidence Rule - When Secondary Evidence is Admissible
Satisfactory explanation re nonproduction of OG
Valid: loss/destruction (not bad faith), cant be obtained through judicial process, possession of adversary who fails to produce
Best Evidence Rule - Exceptions
Summaries of huge records, certified public records, writing is collateral, testimony/written admission of opponent
Best Evidence Rule - Court vs Jury Decisions
Court determines admissibility of duplicates/oral testimony re contents of original
Jury determines existence of OG, whether doc is OG, and whether evidence is accurate reflection of OG
Real Evidence - Requirements for Use
Must be relevant AND authenticated (what proponent claims)
Real Evidence - Authentication
Authenticated via testimony of witness that they recognize it, or evidence of chain of possession (standard: sufficient to support jury finding)
Maps/models > faithful reproductions; demonstrations > conditions similar + no dramatization; exhibition of injuries > allowed unless 403; jury view of scene > trial judge discretion
Witnesses - Competence
Witness are generally presumed to be competent until contrary established
Must have evidence sufficient to support finding that witness has personal knowledge AND witness gives oath to testify truthfully
Witnesses - Competence - Children
Judge determines capacity/intelligence case-by-case
Witnesses - Competence - Insanity
May testify if understand must speak truth and can testify accurately
Witnesses - Competence - Others
Judge presiding MAY NOT testify
Jurors cannot testify before own jury or on matters re deliberation
Dead-Man Acts: Interested person cannot testify re personal transaction with deceased if offered against reps of deceased person
Witnesses - Form of Questioning - Leading Questions
Allowed only on cross (EXCEPTIONS: preliminary matters, help due to age/mental state, or witness is hostile/adverse party)
Witnesses - Form of Questioning - Scope of Cross
Scope of direct + reasonable inferences drawn, matters which test credibility
Witnesses - Using Documents to Aid - Refreshing Recollection
Witness may use any writing or object to refresh recollection
Requires: witness claim inability to remember
Doc is not offered into evidence, but witness just looks it over then testifies
Adverse party may have writing produced at trial, cross witness about writing, or introduce portions of writing into evidence
Witnesses - Form of Questioning - Improper Questions
Misleading, compound, argumentative, conclusionary, cumulative, harassing/embarrassing, speculation, or assume facts not in evidence
Witnesses - Using Documents to Aid - Past Recollection Recorded
Witness has insufficient memory even after consult of writing > record read into evidence with proper foundation
Record is read to the jury
Foundation requires: witness w/ insufficient recollection, witness had personal knowledge when made, record made by witness or at their direction, made when matter fresh in mind, record accurate reflection
Read into evidence and heard by jury, but not admitted into evidence unless offered by an adverse party
Witnesses - Opinion Testimony - Lay Opinions
Inadmissible unless: based on perception, helpful, w/o special knowledge
Witnesses - Opinion Testimony - Expert Opinions - Admissibility
Admissible if subject one where special knowledge would help, opinion is based on facts/data, opinion is from reliable methods, and opinion is reliable application of such methods to facts of case
Witnesses - Opinion Testimony - Expert Opinions - Proper Factual Basis
Personal, known at trial, or supplied
If facts would be inadmissible > must not disclose unless R403
Witnesses - Opinion Testimony - Expert Opinions - Daubert Factors Re Reliability
Testing of principal/method, rate of error, acceptance by experts in same discipline, peer review/publication
Witnesses - Opinion Testimony - Expert Opinions - Treatises
Treatises may be used to impeach experts or establish reliability
Witnesses - Opinion Testimony - Expert Opinions - Ultimate Issues
Expert generally permitted to render opinion re ultimate issue in case UNLESS criminal case where mental state is element of crime
Witnesses - Exclusion/Sequestration
Upon party request, judge must order witnesses excluded
Judge may not exclude party (or officer), person whose presence is essential to claim/defense, or person authorized to be there via statute
Witnesses - Impeachment
Witness may be impeached by any party, including party who called them
Party is not permitted to bolster a witness until they have been impeached
Witnesses - Impeachment Methods - Prior Inconsistent Statements
Statement inconsistent w/ present testimony
Extrinsic evidence requires proper foundation unless of opposing party, hearsay declarant, or as justice requires
Admissible only for impeachment purposes UNLESS statement was under oath + opportunity for cross
Witnesses - Impeachment Methods - Bias
Evidence that witness is biased/has interest > motive to lie
Foundation: must be asked about the facts that show bias/interest on cross
Witnesses - Impeachment Methods - Sensory Deficiencies
Showing (cross/extrinsic) that perception/recollection were impaired so they could not have perceived those facts (or had no knowledge to begin with)
No foundation requirement
Witnesses - Impeachment Methods - Contradiction
Cross: can try to make witness admit they lied/mistaken re a fact on direct
If witness admits: impeached by contradiction
If witness doesn’t, extrinsic evidence allowed unless fact is irrelevant
Witnesses - Impeachment Methods - Character for Untruthfulness - Op/Rep
Opinion/reputation evidence: allowed to suggest person does not tell truth; Character witnesses may testify re reputation or opinion, but not specific acts
Witnesses - Impeachment Methods - Character for Untruthfulness - Prior Convictions
Crimes involving dishonesty
Felony not involving dishonesty: criminal D > exclude if R403; civil D > admit unless 403
Remote convictions over 10+ years are inadmissible > can admit in extraordinary circumstances if R403 and notice
No foundation requirements
Conviction cant be used if pardoned (and based on rehab w/no relapse or innocence)
Witnesses - Impeachment Methods - Prior bad acts involving untruthfulness
Witness may be crossed re act of misconduct probative of truthfulness
Extrinsic evidence is NOT permitted, but can refer to consequences
May not inquire into arrests
Witnesses - Impeachment Methods - Hearsay Declarant
Can be attacked/supported by evidence admissible if they had testified
Party against whom statement is offered may call declarant & cross
Inconsistent statement of declarant may be offered into evidence
Witnesses - Impeachment Methods - Rehabilitation of Impeached Witness
Explanation on redirect
Rep/opinion of good character for truthfulness
Prior Consistent Statement (before alleged motive)
Hearsay - Defined
Statement made out of court offered to prove the truth asserted
Statement is an oral/written assertion or conduct intended as one
Excluded bc lack of opportunity for contemporaneous cross-examination and memory is faulty
Hearsay - Non Truth Purposes
Verbal acts/legally operative facts (“I heard David say, ‘I accept’”)
Show effect on reader (“I heard them tell the manager”)
Circumstantial evidence of state of mind (“I plan to work from home”)
Hearsay - Non-Hearsay Under Federal Rules (EXEMPTIONS)
Prior Statements of Testifying Witnesses
Statements by Opposing Party
Hearsay - Non-Hearsay Under Federal Rules - Prior Statement of Testifying Witness
Admissible if prior statement by testifying witness subject to cross AND is (1) prior identification, (2) inconsistent with testimony and under oath, or (3) statement rebuts charge of lying bc motive or rehabilitates impeached witness credibility
Hearsay - Non-Hearsay Under Federal Rules - Opposing Party Statement
Admissions of a party-opponent
Judicial statements: formal > cannot contradict; informal > explained at trial
Adoptive statements: party adopts statement, silence may count if reasonable person would deny (UNLESS POLICE ASKING)
Vicarious statements: attributable through relationship (spokespersons, agents/employees within scope and during relationship, partners, co-conspirators in furtherance)
Hearsay - Exceptions - Declarant Unavailable - Unavailability
Unavailable due to: death, privilege, refusal, doesn’t remember, absent
DOESN’T COUNT if proponent caused unavailability
Hearsay - Exceptions - Declarant Unavailable - List
Former Testimony
Statement Against Interest
Dying Declaration
Statement of Personal/Family History
Statement Offered Against Party Procuring Declarant’s Unavailability
Hearsay - Exceptions - Declarant Unavailable - Former Testimony
Testimony under oath in case AND party against whom it is offered had opportunity/motive to direct/cross/examine declarant
Hearsay - Exceptions - Declarant Unavailable - Statement Against Interest
Statement against a person’s monetary, property, or criminal interest such that a person wouldn’t have made unless believed true
Hearsay - Exceptions - Declarant Unavailable - Dying Declarations
Homicide or civil > if declarant believed death was imminent and statement was re cause/circumstances of impending death
Hearsay - Exceptions - Declarant Unavailable - Statement of Personal/Family History
Member of family/intimately associated AND based on personal knowledge of facts or family reputation
Hearsay - Exceptions - Declarant Unavailable - Statement Offered Against Party Procuring Declarant’s Unavailability
Statement of declarant always admissible
Hearsay - Exceptions - Declarant’s Availability Immaterial - List
Excited Utterance
Present Sense Impression
Present State of Mind
Statement Made for Medical Diagnosis/Treatment
Business Records
Official Records/Writings
Recorded Recollection
Learned Treatises
Ancient Docs
Documents Affecting Property Interests
Reputation
Family Records
Hearsay - Exceptions - Declarant’s Availability Immaterial - Excited Utterance
Out-of-court statements on startling events (under stress)
Hearsay - Exceptions - Declarant’s Availability Immaterial - Present Sense Impression
Statement describing/explaining event/condition made while or immediately after declarant perceives (no time to lie)
Hearsay - Exceptions - Declarant’s Availability Immaterial - Present State of Mind
Statement of then-present state of mind or experience
Motive, intent, plan / emotion, sensory, or condition
Hearsay - Exceptions - Declarant’s Availability Immaterial - Business Records
Made as a memo if business, made in course of business (business regularly does), made at/near time of event, and personal knowledge (of entrant or someone with duty to transmit info to entrant)
Hearsay - Exceptions - Declarant’s Availability Immaterial - Statement Made for Medical Diagnosis/Treatment
Describing medical history, symptoms, or cause (past or present) made for purposes of medical diagnosis or treatment
Hearsay - Exceptions - Declarant’s Availability Immaterial - Official Records/Writings
Records re activities of office, observations (not police)
Factual findings from legal investigation not admissible against criminal D
Judgements always admissible to prove entered (prior civil judgements and crim acquittals are excluded)
Hearsay - Exceptions - Declarant’s Availability Immaterial - Recorded Recollection
Only read into evidence, not admitted
Hearsay - Exceptions - Declarant’s Availability Immaterial - Learned Treatises
If treatise established as reliable authority and relied upon by expert
Hearsay - Exceptions - Declarant’s Availability Immaterial - Documents Affecting Property Interests
If statement is relevant to document’s purpose
DOESN’T APPLY if later dealings are inconsistent
Hearsay - Exceptions - Declarant’s Availability Immaterial - Catch All Exception
If statement is not covered, may be admitted if: possesses sufficient guarantees of trustworthiness (totality of circumstances + evidence) and is strictly necessary (more probative than anything else) + give notice to adversary
Notice includes substance and name of declarant
Hearsay - Won’t be Admitted Even with Exception
Offered against accused in criminal case, declarant is unavailable, statement was testimonial (sworn, to law enforcement in non-emergencies, affidavits), and accused can’t cross them pre-trial
Privileged Testimony
Permits person to refuse to disclose and prohibit others from disclosing
If under fed substantive law > fed common law; diversity > state law
Privileged Testimony - Waiver
Failure to claim, voluntary disclosure, or contractual provision waiving
Privileged Testimony - Attorney-Client
Confidential communication between atty & client during legal consult
Only client can waive it, atty claims on their behalf
Exceptions: crime/fraud, legal services at issue, breach of duty
Privileged Testimony - Attorney-Client - Work Product
Not privileged, but not subject to discovery unless necessary
Privileged Testimony - Spousal Immunity
Married person can’t be called to testify against spouse who is Defendant (or against spouse’s legal interest)
Must be valid marriage, privilege lasts during marriage
Privilege belongs to witness-spouse, who can choose to testify
NOT: for crime/fraud, legal actions, or crimes against witness spouse/child
Privileged Testimony - Confidential Marital Communications
Confidential communications during valid marriage are privileged
Either spouse can invoke & prevent other from disclosing
Marital relationship must have existed when communication was made
NOT: threats/abusive language, crime/fraud, legal actions, crime against
Privileged Testimony - Therapist/Social Worker/Clergy
Similar to atty-client
Must have intended communication to be confidential
No privilege if patient puts their mental condition at issue
Privileged Testimony - Governmental
Info not open to public may be privileged
Privileged Testimony - Physician/Patient
Only state privilege
Confidential if professional relationship for medical treatment, info was for purpose of diagnosis/treatment, and was necessary for that
Exceptions: physical condition at issue, sought to aid in wrongdoing, relevant for breach of duty, patient waived by contract
Procedural Questions - Burden of Production
Typically same as party w/ burden of pleading
Sufficient to made out a prima facie case
Procedural Questions - Burden of Persuasion
Proof required
Civil > preponderance; criminal > beyond reasonable doubt
Procedural Questions - Preliminary Questions - Jury
Prelim facts regarding whether evidence is relevant (authenticity, knowledge)
Procedural Questions - Preliminary Questions - Judge
Facts on competency/admissibility of evidence (competency, privilege, hearsay exceptions)
Judge can consider any non-privileged evidence even if not admissible
Procedural Questions - Judicial Notice of Fact
Recognition a fact is true w/o formal evidence
Because generally known OR accurately/readily determined
Conclusive in civil case, but not criminal
Procedural Questions - Presumptions
Rule that requires inference be drawn from facts (substitute for proof)
Shift burden of production to party against whom presumption operates
Examples: mail delivery, death if absent 7+ years, against suicide, legitimacy, sanity, driver as owner of car, proper performance of duties, continued existence, solvent, marriage, bailee’s negligence
Procedural Questions - Judicial Notice of Law
Federal and State Law, municipal, Congress, etc.
Procedural Questions - Rule of Completeness
When introducing party of statement, adverse party can require evidence of any other part (or related statements) that should be considered too (fairness)
Procedural Questions - Limited Availability
Evidence may only be admissible for specific purpose, so court can instruct jury
Limiting instruction if it would be sufficient
If limiting instruction insufficient, can exclude if 403
Procedural Questions - Rulings on Evidence
Appeal: Party may claim error if it affects substantive right of party; if evidence is admitted, party had to make timely motion
Court can take notice of plain error even if not properly preserved
Rule 403 Balancing Test
Court may exclude relevant evidence ONLY if probative value is substantially outweighed by danger of unfair prejudice, confusion of issues, misleading jury, undue delay, waste of time, repetitive evidence
Favors admission
Reverse Rule 403 Balancing Test
Court may admit relevant evidence ONLY IF probative value substantially outweighs danger of unfair prejudice, confusion of issues, misleading jury, undue delay, waste of time, repetitive evidence
Favors exclusion
