Evidence Flashcards
Relevant
tends to make the existence of any fact of consequence to the outcome more or less probable
Discretionary Exclusion
judge had BROAD discretion to exclude relevant evidence if its probative value is SUBSTANTIALLY OUTWEIGHED by the danger of UNFAIR PREJUDICE (confusion of issues, mislead jury, undue delay, waste of time)
Public Policy Exclusion -Both CIVIL and CRIMINAL
- existence of liability insurance coverage or amount (unless to impeach a witness, factual dispute, cause of action against insurer)
- Plea of guilty or nolo contendere later withdrawn or set aside
- Polygraph
Public Policy Exclusion -CRIMINAL only
contacting or retaining attorney unless within crime-fraud exception to attorney-client privilege
Public Policy Exclusion - CIVIL only
- Subsequent remedial measures
- compromises or offers
- offer to pay medical or similar expenses
- amount paid in settlement (except failure to maker settlement)
- workers comp claim
- Previous plea of nolo contendere
character evidence - 3 concerns
- purpose for which evidence of character is offered
- method to be used to prove character
- kind of case (civil or crim)
Purpose for offer of character evidence
may be offered:
1. serve as circ evidence of how a person probably acted during the event at issue in case
2. persons character is an ultimate issue in the case; OR
3. impeach the credibility of a witness
Means of Proving Character
- testimony of a character witness as to general reputation in the community; OR
- RARELY by evidence of specific acts
Evidence of Character in Civil Case
Generally not admissible in civil cases
rare “directly in issue” reputation testimony and specific acts evidence are admissible to prove character
Character Evidence - Accused in criminal case
prosecution cannot initiate, defendant can
ONLY reputation testimony allowed by defendant (no opinion or specific acts)
Prosecution can rebut with cross or own character witnesses
Victim’s Character
D’s initiative - hostile demonstration or overt act
- Reputation testimony about pertinent trait; OR
- Evidence of prior threats
DOMESTIC VIOLENCE EXCEPTION: D pleads self defense, they were living together, history of behavior between the two
Prosecution may rebut
Homicide Vic Character
Victim character of peacefulness allowed regardless if D opens the door
Sexual Assault Character
past behavior of victim inadmissible
Human Trafficking Character
Past behavior is inadmissible
Specific Acts of Misconduct
Generally inadmissible if offered solely to establish criminal disposition or bad character
If independently relevant to some issue other than D’s character or disposition to commit crime charged
M.I.M.I.C. (prior acts admissible)
Motive
Intent
Mistake (absence of)
Identity
Common Plan or Scheme
Similar Acts
Sexual Crimes
Domestic Abuse/Children
Certain Civil (DA, fam vio, sex abuse)
Judicial Notice of Fact
recognition of a fact as true w/o formal presentation of evidence
common knowledge or capable of verification
conclusive in civil not in crim
Judicial Notice of Law - Mandatory or Permissive
must take notice of fed and state law and official reg of forum state and fed
may take muni ords and private acts or resolutions of congress or the state legislature
foreign countries maybe
Authentication
admitted only if it is authenticated by proof showing evidence is what the proponent claims
Physical Evidence -Authentication
identified as to what it claims by
1. testimony of witness
2. object has been held in a substantially unbroken chain of possession
Doc Evidence (authentication)
- admissions
- eyewitness test
3 handwriting verifications - Ancient Documents
- Reply letter doctrine
- Photographs
- X-rays
Oral Statements - Authentication
Voice id
telephone
self-authenticating Docs
certain documents prove themselves
bears seal
cert public docs
newpapers
commercial paper and docs
labor reports
certified copies of original docs
Best Evidence Rule
originally writing must be produced
duplicates are inadmissible if:
1. authenticity of original is challenged
2. unfairness would result
3. original is testament for probate
Competency of Witnesses
presumed to be competent until contrary presented
- must have personal knowledge
- declare he will truthfully testify
Leading Questions
permitted:
1. Cross
2. necessary to develop witness’s testimony
3. examining an expert
4. witness is hostile, adverse party, ided with adverse party, or unable or unwilling to respond
Improper Questions and Answers
?s - cant be answered w/o making unintended admission
answers - lack foundation/no knowledge
Use of memoranda by witness
cannot read testimony from prepared memo
exception
1. refresh recollection
2. past recollection
3. inspection and use on cross
Opinions by Law Witnesses
admissible with respect to:
1. appearance
2. state of emotion
3. senses
4. voice/handwriting
5. speed of object
ETC
Opinion by Expert
- subject matter is scientific, technical or specialized
- Qualified
- Reasonable probability
- proper factual basis
Cross-Examination
LA allows wide open cross
not limited to matters brought up on direct
Credibility-impeachment
casting of adverse reflection on the veracity of the witness
may not be attacked until witness has been sworn and cant be supported until attacked
Types of Impeachments
Prior inconsistent statement
bias, corruption, or interest
Conviction of crime (any crime any time in criminal cases to impeach for credibility)
Civil Case - past conviction impeachment
- felony
- dishonest or false statement crimes
NOT ADMISSIBLE if over 10 years old
Impeachment of Hearsay Declarant
nontestifying may be attacked if evidence would be admissible if they were testifying
Hearsay
Statement made out of court offered to prove the truth of the matter asserted
Statements that are NOT hearsay
- prior statement by Witness
- Admission by Party-Opponent
- Things said and done
Hearsay Exceptions - Declarant Unavailable
- Exempt for privilege
- refuses to testify
- does not remember
- death or illness
- absent
Declarant Unavailable - Former Testimony
- party against whom testimony is offered was party in former action
- same subject matter
- had opportunity to examine witness
Declarant Unavailable - Statement Against Interest
made against the declarant’s interests when made
Declarant Unavailable - Dying Declaration
- believed death was imminent
- cause or circumstance relating to death
Declarant Unavailable - Personal Family history
made before controversy
Declarant Unavailable - Sex Assualt by Child Declarant
under 12 years old
Declarant Unavailable - Stmts offered against party procuring unavailability
against person who killed witness
Declarant Unavailable - Catch All (civil only)
- statement possesses circumstantial guarantees of trustworthiness
- proponent made reasonable effort to adduce other evidence
- notice was given to other side
Hearsay Exception - Availability Immaterial
- Present state of mind
- excited utterances
- present sense impressions
- Declarations of physical condition
- Business Records
- past recollection recorded
- Official records and writings
- Ancient Docs
- Treatises
- Reputation
- Family Records
- Market Reports
