Evidence Flashcards
Requirements for a witness to be competent
To be a competent witness, the witness must have
* personal knowledge of the matter, and
* be willing and able to testify truthfully.
When is evidence generally admissible?
Evidence is generally admissible if it is relevant! unless a rule excludes it.
Evidence is relevant if it is:
1) Material - relates to an issue in the case.
2) Probative - has any tendency to make the proposition more or less likely.
What are the four major reasons why relevant evidence may nevertheless be inadmissible.
The four major reasons relevant evidence would be inadmissibility are
* Failing the Rule 403 balancing test
* Inadmissible because of public policy grounds
* Evidence of prior similar occurrence without an exception
* Hearsay without an exception
What is the Rule 403 balancing test?
Relevant evidence may be considered inadmissible if its probative value is substantially outweighed by the danger of:
* Unfair prejudice (emotional)
* Confusion of the issues
* Misleading the jury
* Undue delay
* Waste of time
* Unnecessary repetition of evidence
What kinds of evidence of prior similar circumstances may nevertheless be admissible.
Evidence of prior similar occurrences may be admissible if involves:
* Plaintiff making previous similar false claims
* Plaintiff had a previous injury to relevant body part
* Previous similar accidents or injuries caused by the relevant event or condition.
* Sales of similar property
* Facts rebutting a claim of impossibility
* Complex causation
* Habit or business routine (distinguish from character)
* Industry custom as evidence of standard of care
What 5 kinds of relevant evidence are inadmissible on public policy grounds?
- Liability Insurance/Ownership - Inadmissible to prove negligence/wrongful conduct
- Subsequent (after harm) Remedial Measures (repairs etc.) - Inadmissible to prove negligence, culpable conduct, defect, or need for warning or instruction.
- Civil Settlements and Negotiations - Inadmissible to prove the validity or amount of claim.
- Plea Discussions (not actual plea)
- Payments of Offers to Pay Medical Expenses - Inadmissible to prove liability (but accompanying admissions are admissible)
What is Hearsay?
- Hearsay is a statement made by a declarant, other than while testifying at the current trial or hearing, offered in evidence to prove the truth of the matter asserted.
- hearsay is not admissible unless it comes within an exception
- The declarant is the one who is alleged to have made the original statement.
- look out for hearsay within hearsay - you must have an exception for both the inner and outer hearsay to be admissible.
common non-truth purposes for offering statements into evidence
- Statements offered to show their effect on the listener or reader (for example, to prove notice in a negligence case)
- Statements offered as circumstantial evidence of declarant’s state of mind (for example, when a party is trying to prove someone’s insanity or knowledge/notice).
- Verbal acts or legally operative facts (such as words of contract or defamatory words)
What is Non Hearsay?
Non Hearsay meets the basic definition of hearsay (that is, out-of-court statement offered for the truth of the matter asserted), but has been specifically designated as “not hearsay” under the Federal Rules and is therefore admissible
What evidence is meets the definition of hearsay but is admissible because it is considered “Non-Hearsay”?
Note: These may all be brought in for the truth of the matter asserted as substantive evidence.
A) Prior Statements of a Currently Testifying Witness subject to cross examination (witness must be present)
* 1) Prior Identification: The prior statement is one of identification of a person as someone the witness perceived earlier.
* 2) Prior Inconsistent statements given under oath: The prior statement is inconsistent with the declarant’s in-court testimony and was given under oath at a prior proceeding (such as a deposition, but including a grand jury)
* 3) Prior Consistent statements offered to rebut or rehabilitate: The prior statement is consistent with the declarant’s in-court testimony AND is used to rebut charge that the witness is lying or exaggerating or rehabilitate a witness whose credibility has been impeached.
B) Statements by or Attributable to Opposing Party (admission)
What is a hearsay exception?
- These statements are hearsay, but are nevertheless admissible because they are considered to be especially necessary or reliable.
- They may be brought in for the truth of the matter asserted as substantive evidence.
What are the hearsay exceptions that require the declarant to be unavailable
1) Prior testimony of a third party given under oath – requires opposing party had opportunity and similar motive to examine the testimony. (Statements made in depositions for current case are OK.)
2) Statements made against the declarant’s self interest
3) Dying Declarations (Statements Under Belief of Impending Death - requires actual death in criminal cases - homicide only)
4) Statements on Declarants’ Personal or Family History
5) Statements Offered Against a Party who caused the Declarant’s Unavailability
When is a declarant considered unavailable?
A declarant is considered unavailable in the following five circumstances:
* Privilege: Are exempt from testifying because of privilege;
* Refusal: Refuse to testify concerning the statement despite a court order;
* Incapacity: Are unable to testify due to death or physical or mental illness;
* Supoena: Are absent (beyond the reach of the court’s subpoena), and the proponent is unable to procure their attendance or testimony by process or other reasonable means.
* Memory: Testify that they do not remember the subject matter;
What are the hearsay exceptions where the declarant may be available or unavailable? (except in a criminal case in which a statement offered against a defendant must be present)
- Excited Utterance – statement made while the declarant was under stress of excitement from event.
- Present Sense impression – statement made right after event.
- Past physical, emotional, mental condition – includes declarants plans and motives but NOT belief or memory.
- Statements Made For Medical Diagnosis Or Treatment - does not extend to other material in the statement
- Regular Business Records - see additional rules
- Public records – see additional rules. BUT not including police observations in criminal cases
- Prior judicial judgements – Certified copy of a judgment. Felony convictions admitted, misdemeanors not.
- Past Recollection Recorded at time of event – when witness cannot recall. The record can only be read into evidence; it cannot be admitted as an exhibit UNLESS offered by an adverse party
- Learned Treaties – only if established by an expert in testimony or on examination.
- Ancient documents (prepared before 1998)
- Documents affecting property interests.
- Reputation
- Market Reports
What are the requirements for the admissibility of Business Records as a hearsay exception?
Record of act, event, condition, opinion, or diagnosis is admissible if:
1) Made in the regular course of business,
2) The business regularly keeps such records,
3) The record was made near time of event
4) Consists of matters within personal knowledge of third-party entrant or someone with a duty to transmit such matters to the entrant
5) authenticated by a sponsoring witness in writing or testimony.
* Business records often present a multiple hearsay problem - statements of outsiders contained must have an independent hearsay exception to be admissible. If not, those statements will be excluded even if the rest of the record is admitted.
* Can be used to prove non-occurrence
* Opponent may make a showing that the circumstances of the record indicate a lack of trustworthiness.
What are the requirements for the admissibility of Public Records as a hearsay exception?
- Public records must have been made by and within the scope of the duty of the public employee, and it must have been made at or near the time of the event,
- BUT not including police observations in criminal cases
Hearsay and the sixth amendment Confrontation Clause
Under the Confrontation Clause, a hearsay statement will not be admitted (even if it falls within a hearsay exception) where all of the following are true:
* Its is offered against criminal defendant.
* Declarant is unavailable
* Accused had no opportunity to cross-examine declarant about statement, and
* The Statement is testimonial.
The Catch All Exception to Hearsay
For a hearsay statement that is not covered by a specific exception to be admitted, the Federal Rules provide a catch-all exception, which imposes the following conditions:
* Hearsay statement must be trustworthy (totality of the circumstances, corroboration)
* Strictly Necessary (more probative that other available evidence)
* Reasonable Notice TO Adversary (on substance and name of declarant).
What is Impeachent?
- First of all: This is totally separate from substantive evidence
- Impeachment refers to discrediting a witness. When evidence is admissible only to impeach, it is not being offered as substantive evidence, but to show that the witness can’t be trusted.
- Any party may impeach a witness.
- Some grounds for impeachment require Foundation
