Evidence Flashcards
Relevance
Relevancy: Evidence is relevant if it is:
1. Probative: The evidence must have “any” tendency to make a proposition more or less likely than it would without the evidence; and
2. Material: The proposition is of “of consequence” in determining the action
All relevant evidence is admissible if it passes 403 balancing test.
Rule 403 Balancing Test: A trial judge has broad discretion to exclude relevant evidence if its probative value is substantially outweighed by:
1. Unfair Prejudice
Danger the jury will decide the case on an emotional basis
2. Confusing the issues
- The evidence creates a side issue
3. Misleading the Jury
- There is a danger that the jury will give undue weight to the evidence
4. Undue Delay/Wasting Time/Needlessly Presenting Cumulative Evidence
Public Policy Exclusion’s
Offer to settle: An offer to settle is not admissible to prove the validity of a disputed claim. Statements of Facts are not admissible
The following are generally inadmissible in any criminal or civil case against the defendant who made the plea or participated in the discussion:
1. Offers to plead guilty
2. Withdrawn guilty pleas
3. Actual pleas of nolo contendere(no contest)
4. Statements of fact made during any of the above plea discussions
Exam Tip: An actual guilty plea(not withdrawn) is generally admissible in related litigation as a statement of an opposing party,
Offer to pay medical expenses: An offer to pay medical expenses is not admissible to prove liability or the existence of an injury. Statements of facts are admissible
Subsequent Remedial Measures: Evidence of repairs or other precautionary measures made following an injury is not admissible to prove negligence, culpable conduct, a defect in a product or its design, or a need for a warning or instruction.
However it may be admissible for some other relevant purpose, such as:
1. To prove ownership or control, if disputed
2. To rebut a claim that a precaution was not feasible; or
3. To prove that the opposing party has destroyed evidence
Insurance: The existence of an insurance policy is not admissible to prove liability, but may be used to prove agency, ownership or control, or impeachment.
Character Evidence
FRE 404: Character evidence in the form of opinion or reputation is inadmissible.
Character Evidence: Evidence of a persons character is typically offered to show that the person acted in conformity with that character on a particular occasion.
FRE 404(a) Criminal Exceptions:
1. The defendant may offer evidence of a pertinent trait of his good character
2. The defendant may offer evidence of a pertinent trait of the victim.
3. In a homicide case, the prosecutor may offer evidence of the alleged victims trait of peacefulness to rebut evidence that the victim was the first aggressor.
FRE 404(a) Civil Or Criminal Exception:
Either side may offer character evidence of a witness’s character for truthfulness and veracity.
- When character is directly in issue, all forms of character evidence(reputation, opinion, and specific acts) are admissible
Rule 404 (b) Character Evidence is inadmissible if it involves crimes or wrongs to show that the party acted in conformity with it on a particular occasion
Exception Rule 404(b): Character evidence is admissible if it involves crimes, wrongs, or acts to show: Motive, intent, absence of mistake, identity, common scheme or plan
FRE 405(a): Allows reputation or opinion evidence in all cases where Character Evidence is allowed.
FRE 405(b): Allows specific instances of conduct evidence only when:
1. The character trait is an essential element of the charge, claim or defense
2. On cross examination in all cases where character evidence is allowed.
FRE 406: Evidence of a person habit may be admitted to prove that, on a particular occasion, the person acted in accordance with the habit.
- Habit must be repetitive to a point where it is almost automatic.
FRE 412 blocks the following evidence in any civil or criminal case involving sexual misconduct:
1, Evidence offered to prove the victim engaged in other sexual behavior
2. Evidence offered to prove the victims sexual predisposition
412(b) 3 exceptions in criminal cases:
1. Past sexual behavior with persons other than the accused was the source of physical evidence
2. Prior sexual behavior between the victim and the accused to prove consent or if offered by the prosecution
3. Evidence whose exclusion would violate the defendants constitutional rights
412(b) Civil Trial Exceptions: “Reverse 403 Balancing Test” The court may admit evidence to prove a victims sexual behavior or predisposition if its probative value substantially outweighs the danger of harm to any victim and unfair prejudice to any party.
Authentication
FRE 901 Laying A Foundation: An item of evidence is authenticated when there is sufficient evidence to support a finding that the item is what the proponent claims it to be.
There are four general methods of authentications:
1. Direct testimony- To testify based on his knowledge, that the item is what the proponent claims it to be.
2. Chain of custody
3. Expert comparison
4. Distinctive characteristics
Specific Authentication Methods 901
1. Opponents Admission: Party for whom the writing is offered against admits the writings authenticity or acted upon it as authentic
- Eyewitness Testimony: A writing can be authenticated by testimony of anyone who saw it executed or heard it acknowledged
- Handwriting: A writing can be authenticated by evidence that the makers handwriting is genuine. The evidence may be in the form of:
- The opinion of a lay witness who has familiarity with the alleged writers handwriting in the course of normal affairs
- The opinion of an expert who has compared the writing to samples of the alleged writers handwriting
- The fact finders comparison of the writing to samples of the alleged writers handwriting
- Ancient Documents: A document can be authenticated by evidence that it:
- Is at least 20 years when offered into evidence
- Is in a condition that created no suspicion as to its authenticity; and
- Was found in a place where such a writing would likely be kept
- Reply Letter Doctrine: A writing can be authenticated by evidence that it was written in response to a communication sent to the alleged author
- Photographs and Videos: Generally, photographs and videos are admissible only if identified by a witness as a portrayal of certain facts relevant to the issue and verified by the witness as a fair and accurate representation of those facts.
- X-Rays: Must be shown that the process used is accurate, the machine was in working order, and the operator was qualified to operate it.
A custodial chain is also must be established to ensure that the X-ray has not been tampered with - Voice Identification: A voice can be identified by the opinion of anyone who has heard the voice at any time, including after litigation has begun.
- Telephone Conversations: Statements made during a telephone conversation can be authenticated by any party to the call who testifies that:
- They recognized the other parties voice
- The speaker had knowledge of certain facts that only a particular person would have;
- They called a particular persons number and a voice answered as that person or that persons residence; or
- They called a business and talked with the person answer the phone about matters relevant to the business.
Self-Authenticating Methods
1. Domestic public documents bearing a seal, and similar foreign public documents
2. Official publications
3. Certified copies of public records or private records on file in a public office
4. Newspapers and periodicals
5. Trade inscriptions and labels
6. Acknowledged (notarized) documents
7. Commercial paper and related documents
8. Business records, electronically generated records, and data copied from an electronic device, if the records are certified and the proponent gives the adverse party reasonable written notice and an opportunity for inspection
Best Evidence Rule
Best Evidence Rule 1002: An original writing, recording, or photograph is required in order to prove its content.
Rule 1001: For any electronically stored items, a printout or other reasonable output will be considered original as long as it accurately reflects the information.
Offered to Prove Its Content: If the writing, recording or photograph is offered for any other purpose, such as to prove its existence or delivery, the best evidence rule will not apply.
Rule 1003: Allows for reliable duplicates to be admissible under the best evidence rule unless a genuine question is raised about the originals authenticity.
Rule 1006: A summary, chart, calculation may also be admissible under the best evidence rule, if the original is voluminous or otherwise unable to be conveniently examined in court.
Rule 1006: The proponent of the item must make the original or duplicate available for examination or copying by other parties at a reasonable time and place.
Rule 1007: Opposing parties testimony, deposition, or written statement, may be used to prove the contents of a writing, recording, or photograph, even if the opponent cant account for the original.
Rule 1007: A witness may prove the contents of a writing, recording, or photograph, if the witness has independent knowledge of the content that was not gained solely from the writing recording or photograph
Exceptions To Best Evidence Rule Permits Secondary Evidence If:
1. All of the originals have been lost or destroyed as long as the proponent did not act in bad faith
2. The original cannot be obtained from a third person by any available judicial process.
3. The opposing party has control of the original, and was put on notice that the original would be the subject of proof and fails to produce the original at the trial or hearing
4. The writing, recording, or photograph is not closely related to the controlling issue.
Lay Witness/Expert Witness
General rule: A witness must have knowledge of the matter she testifies about.
A lay witness must have personal knowledge.
Lay Witnesses: Opinion by lay witnesses are generally inadmissible
Lay opinions must meet three requirements to be admissible:
1.Must help the fact finder clearly understand the witnesses testimony and determining a fact in issue,
2. Must be rationally based on the witnesses perception
3. Must not be based on scientific, technical or other specialized knowledge.
Expert Witness: An expert witness is someone with specialized knowledge, skill, experience, training, or education
Expert Testimony is only admissible if:
1. The expert witness’s scientific, technical, or other specialized knowledge must help the fact finder understand the evidence to determine a fact in issue.
2. Expert testimony must be based on sufficient facts or data
3. The expert testimony must be the product of reliable principles and methods
4. The expert witness must reliably apply relevant principles and methods to the facts of the case, arriving at the same conclusion that other experts in the same field would likely reach.
A mere guess or speculation is not sufficient
Reliability(Daubert Test): Federal courts have discretion to determine reliability but use 4 factors under the Daubert Test(TRAP):
A. Testing of principle or methodology
B. Rate of error
C. Acceptance by experts in the same discipline
D. Peer review and publication
Learned Treatises: A relevant excerpt from a treatise, periodical, or pamphlet may be used during expert testimony.
Learned treatises may be used as substantive evidence subject to the following limitations:
1. The treatise must be established as reliable authority by: (1) the testimony of the expert on the stand; (2) the testimony of another expert; or (3) judicial notice
2. The excerpt must be used in the context of expert testimony
3. The excerpt is read into evidence but cannot be received as an exhibit
Impeachment
General rule: any party may impeach a witness (even the party that called the witness)
Prior Inconsistent Statements:
A party may show, that the witness has, on another occasion, made statements inconsistent with their present testimony
Extrinsic Evidence:
To prove the statement by extrinsic evidence, a proper foundation must be laid and the statement must be relevant to some issue in the case
Extrinsic evidence can be introduced to prove a prior inconsistent statement only if, at some point:
1. The witness is given an opportunity to explain or deny the statement; and
2. The adverse party is given an opportunity to examine the witness about the statement
Bias and interest: Evidence that a witness is biased or has an interest in the outcome of the case tends to show that the witness has a motive to lie
Foundation For Extrinsic Evidence: Before a witness can be impeached by extrinsic evidence of bias or interest they must first be asked about the facts that show bias or interest on cross-examination
Sensory Deficiencies: A witness may be impeached by showing that their faculties of perception and recollection were so impaired as to make it doubtful that they could have perceived those facts
Contradiction: If the witness made a mistake in her testimony or lied during direct examination, she may be contradicted.
Extrinsic evidence can be used if she doesn’t admit her mistake.
Reputation or Opinion: A witness can be impeached with reputation or opinion evidence of their own bad character for truthfulness, to suggest that they were not telling the truth while on the stand.
The witness cannot testify to specific instances of conduct. (Extrinsic evidence is permitted because the witness is extrinsic evidence.)
Bad acts: Questioning about acts that are probative of truthfulness or untruthfulness (e.g., filing a false tax return) is permitted. Extrinsic evidence is not permitted.
Conviction of a crime:
Types of Crimes: There are only certain types of crimes that may be used:
1. Dishonesty or False Statement Crimes: A witness may be impeached for any crime, felony or misdemeanor, requiring an act of dishonesty or false statement.
The court has no discretion to bar impeachment by these crimes
- Felonies No Involving Dishonest Or False Statement: A witness may also be impeached by a felony that does not involve dishonesty or false statement
However, the court has discretion to exclude these convictions.
Test: The balancing test depends on whether the witness is the defendant in a criminal case or someone else:
A. Criminal Defendant: If the witness is a criminal defendant, the court will exclude the conviction if the prosecution has not shown that its probative value outweighs its prejudicial effect
B. Other Witnesses: For all other witnesses, the court will exclude the conviction if it determines that its probative value is substantially outweighed by its prejudicial effect.
10 Year Rule: If more than 10 years have elapsed since the date of the conviction or the date of release from confinement(whichever is later) the conviction is inadmissible
Foundation: No foundation required for extrinsic evidence
Hearsay
Hearsay:
1. An out of court statement by a declarant;
2. Repeated in court by a witness;
3. To prove the truth of the matter asserted
The declarant of the statement is a person who is
not a witness at the proceeding, or if the declarant is a
witness, the witness uttered the statement when the
witness was not testifying in the proceeding.
A statement of the declarant may be written or
oral, or non-verbal, provided the verbal or
non-verbal conduct is intended as an assertion.
- Non Hearsay Purposes
There are 6 non hearsay purposes:
1. Impeachment- Out of court statement may be repeated if it is used only to impeach the testimony of a declarant testifying as a witness.
- Verbal Acts- Words alone have an operative effect under substantive legal principles.
- Verbal Objects- Logos
- Proof of Effect On Hearer/Listener- A statement offered to show that the statement had some effect on the hearer or reader, but not for the truth of the matter stated.
- Circumstantial Evidence of State of Mind- A declaration of intent to do something in the future is admissible as circumstantial evidence tending to show that the intent was carried out
- Circumstantial Evidence of Memory or Belief- These statements are not hearsay if admitted for a specific purpose not if offered to prove the truth of the matter assert
8 Not Hearsay Exceptions
There are 9 Not Hearsay Exceptions:
The first 3 are when the declarant testifies and is subject to cross examination about a prior statement and the statement is a:
1. Prior Inconsistent Statements: 1. Declarant is in now cross-examinable about the prior statement; 2. The statement must be inconsistent with the witness’s present testimony; 3. The prior statement must have been made under oath in a trial, deposition, or other proceeding.
- Prior Consistent Statements: 1. Declarant is now cross-examinable about the statement; 2. The statement must be consistent with the witness’s prior testimony; 3. The statement must be offered to rebut a charge of recent fabrication, or rehabilitate a witness who was impeached.
- Prior Statement’s of Identification: 1. The declarant-witness is now cross-examinable regarding the statement; and 2. The prior statement identified a person that the declarant-witness perceived earlier.
The other 5 occur when the statement is offered against an opposing party:
1. Statements By A Party Opponent: A statement is not hearsay if it is offered against the party who made the statement.
- Opposing Party’s Adoption Of The Statements Of Another: Such statements are not hearsay because they are reliable in that the party likely would deny the statements if they are not true.
- Statements by Agents or Employees- Statements made within the scope of their employment
- Statements of Co-Conspirators- Statements made by the partys co-conspirators during and in furtherance of the conspiracy is exempted from the hearsay definition if the statement is offered against the party. Conspiracy does not need to be formally charged.
- Admissions By Speaking Agents- Rental/Leasing: The person was authorized to speak about the subject matter on the party’s behalf
7 Hearsay Exceptions
- Present Sense Impression: 1. Describes an event or condition and 2. Is made while or immediately after the declarant perceives the event or condition.
- Excited Utterances: 1. A statement that relates to a startling event or condition; 2. Is made while the declarant is still under the stress of the excitement.
- Then Existing Mental, Physical, or Emotional Condition:
- Statements Made For Medical Diagnosis or Treatment: 1. Statement made for and reasonably pertinent to medical diagnosis or treatment; and 2. Describing medical history or past or present symptoms and sensations including their inception or general cause
- Past Recollection Recorded: 1. Is regarding a matter that the witness once knew about but can no longer recall well enough to testify fully and accurately; 2. Was made or adopted by the witness while the matter was still fresh in the witness memory; 3. and Accurately reflects the witness’s knowledge.
- Business Records: 1. The record must be made or transmitted by someone with knowledge near the time of the activity; 2. The record must be kept in the course of regularly conducted business activities; 3. The act of making the record must have been a regular practice.
- Public Records: A public record must fall into three categories: 1. Address the public office activities; 2. Address a matter observed by a public official while under a legal duty to report the matter; 3. Factual findings from a legally authorized investigation may be admitted in a civil case or against the government in a criminal case.
5 Declarant Unavailable Hearsay Exceptions
- Former Testimony: 1.The former testimony was given at trial, hearing or lawful deposition; and 2. Is offered against a party who had a similar motive to develop it by examination.
- Dying Declarations: 1. The statement must be offered in a homicide or civil case; 2. The declarant must have been under the belief that their death was imminent; and 3. The statement was about the cause or circumstances of the declarants imminent death.
- Statements Against Interest: The statement must be so against the declarants interest at the time that a reasonable person in that position would have made the statement only if he believed it to be true.
- Statements of Personal or Family History: 1. Statements about another person; 2. So long as the declarant was related to the person by blood, adoption, or marriage or that was so intimately associated with the persons family that the declarants information is likely to be accurate.
- Forfeiture By Wrongdoing: A hearsay statement may be admissible if offered against a party that wrongfully caused the declarants unavailability with the intention of preventing the declarant from testifying as a witness at trial.
Privileges
Attorney-Client Privilege: Communications between an attorney and client, made during professional consultation, are privileged from disclosure
The privilege applies to:
1. Confidential communications
2. Between attorney and client(or reps of either)
3. Made for the purpose of seeking legal advice
Exceptions: There is no privilege:
1. If the attorney’s services were sought to aid in the planning or commission of something the client should have known was a crime or fraud
2. Where the client has put the legal services at issue in the case
3. For a communication relevant to an issue of breach of duty in a dispute between the attorney and client
4. Regarding a communication relevant to an issue between parties claiming through the same deceased client
Attorney Work Product: Although documents prepared by an attorney for their own use in a case are not protected by the privilege, they are not subject to discovery except in cases of necessity
There are two distinct spousal privileges:
1. Spousal Immunity
When the privilege of spousal immunity is invoked, a married person whose spouse is a defendant in a criminal case may not be called as a witness by the prosecution
Moreover, a married person may not be compelled to testify against the legal interest of their spouse in any criminal proceeding, regardless of whether the spouse is a defendant.
There must be a valid marriage for the privilege to apply, and the privilege lasts only during the marriage(even if the events at issue took place before the marriage)
Witness Spouse hold privilege. This means that the witness spouse cannot be compelled to testify, but may choose to do so
- Confidential Marital Communications Privilege
In any civil or criminal case, confidential communications between spouses during a valid marriage are privileged.
Either spouse can refuse to disclose the communication or prevent any other person from doing so
For this privilege to apply, the marital relationship must exist when the communication is made.
Divorce will not terminate this privilege, but communications after divorce are not privileged
Confidential: Private communications between spouses are generally presumed to be confidential
However, the communication must be made in reliance upon the intimacy of the marital relationship
Thus, threats and abusive language are not privileged.
Exceptions: Neither privilege applies in the following situations:
1. Communications or acts in furtherance of a future joint crime or fraud
2. In legal actions between spouses
3. In cases where a spouse is charged with a crime against the testifying spouse or either spouses children
Phsycotherapist/Social Worker-Patient Privilege
Federal courts recognize a privilege for confidential communications between a psychotherapist (psychiatrist or psychologist) or licensed social worker and their patient/client.
Physician-Patient Privilege(State Privilege Only)
Confidential information acquired by a physician is privileged if:
1. There was a professional relationship between the physician and patient for the purposes of medical treatment;
2. The information was acquired for the purposes of diagnosis or treatment; and
3. The information was necessary for diagnosis or treatment
Non-medical information such as details of who was at fault in an accident is not privileged
The privilege belongs to the patient
Exceptions: The Physician-Patient privilege does not apply if:
1. The patient puts their physical condition in issue (such as a personal injury case)
2. The physicians assistance was sought to aid wrongdoing( such as helping patient commit a crime)
3. The communication is relevant to an issue of breach of duty in a dispute between the physician and patient (medical malpractice)
4. The patient agreed by contract(insurance policy) to waive the privilege
5. It is a federal case applying the federal law or privilege
Confrontation Clause
If a statement is:
1. Testimonial,
2. The declarant is unavailable, and
3. The defendant did not have the opportunity to cross-examine the declarant, then admission of the statement will violate the defendant’s right to confrontation.
Note: a statement is not “testimonial” if the primary purpose of the statement is to address an ongoing emergency
Burdens of Proof/Judicial Notice
The burden of proof encompasses:
1. The Burden of Production
The party who has the burden of pleading usually has the burden of producing or going forward with evidence sufficient to make out a prima facie case.
Once the party has satisfied the burden of production, it is incumbent on the other side to come forward with evidence to rebut the accepted evidence
2.. The Burden of Persuasion(proof)
After the parties have sustained their burden of production of evidence, the question is whether the party with the burden of persuasion has satisfied it.
The burden of persuasion in civil cases is usually by a preponderance of the evidence(more probably true than not true), although some civil cases(such as fraud or an oral contract to make a will) requires proof by clear and convincing evidence(high probability.
The burden of persuasion for criminal cases is beyond a reasonable doubt
Judicial Notice. Court may only take notice of adjudicative facts
An adjudicative fact is any fact that is relevant to the disputed manners in the case.
There are two types of adjudicative facts.
1. Facts that are not subject to reasonable dispute because they are generally known within the courts jurisdiction.
2. Facts that are not subject to reasonable dispute because they can be accurately and readily determined from sources whose accuracy cannot be reasonably questioned.
Facts are not subject to reasonable dispute when they can be accurately and readily determined from sources whose accuracy cannot be reasonably questioned
Criminal Trial: Avoids any potential violation by requiring a court in criminal cases to instruct the jury that it may not accept a noticed fact as conclusive.
Criminal Appeal Rule: Another guideline established by the courts forbids judicial notice in criminal appeals.
