Evidence Flashcards
Exception to general rule that opinions by lay witnesses are inadmissible:
Opinion by lay witness admissible if:
- rationally based on perception of witness;
- helpful to a clear understanding of the testimony or to determination of a fact in issue;
- not based on scientific, technical, or other specialized knowledge
Character Evidence in Civil Case
Describes a person’s disposition and is generally irrelevant in a civil case, unless character is directly in issue
Habit Evidence
Habit describes a persons regular response to a specific set of circumstances
If relevant, evidence of habit is admissible to prove that the conduct of a person was in conformity with that habit
Evidence is Relevant
Relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence
Rule 403
Court may exclude relevant evidence if it’s probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, waste of time, or misleading the jury.
Methods of Proving Character Evidence
- Reputation
- Opinion (W testifies about personal opinion)
- Specific Acts
Purposes for Offering Character Evidence
- Conformity/Propensity
- Impeachment
- Any other purpose
Character Evidence being offered to prove conformity/propensity
Generally inadmissible to show the person acted that way during events of this case
Exceptions:
1. Criminal D may introduce evidence of OWN GOOD CHARACTER for a PERTINENT trait to show they wouldn’t commit a crime (reputation/opinion)
- Criminal D may introduce evidence of victim’s bad character for pertinent trait to show he is innocent (reputation/opinion)
Exception 1: When criminal D introduces evidence of own good character for a pertinent trait to show they wouldn’t commit a crime, what can prosecution do?
Once D opens the door, the prosecution can rebut:
- Call own character W to provide reputation/opinion testimony about D’s bad character
- Cross-examine D’s character witness; may inquire about D’s b ad acts relevant to the trait
Exception 2: When Criminal D offers evidence of a victim’s bad character for pertinent trait
Look for crime where D is charged with a violent crime AND is claiming self-defense
The victim’s character for violence is relevant to defendant’s innocence
Character Evidence Used to Impeach
Involves casting an adverse reflection on the truthfulness of the Witness
*cannot be used to impeach BEFORE there is anything to impeach
Common Impeachment Methods:
1. Prior consistent statements
2. Bias
3. Prior criminal convictions
4. Prior bad acts
5. Character for untruthfulness
6. Inability to perceive/lack of knowledge
7. Contradiction
Main issues w/ impeachment:
- Is extrinsic evidence admissible?
- If admissible, must a foundation be laid?
Impeachment with Prior Criminal Convictions
- Crimes involving dishonesty/false statement (always admissible)
- Felonies (as long as not more than 10 years) unless judge finds they are too prejudicial
*No foundation requirement for admitting conviction of certification
*Pay attention to facts: evidence cannot be used for impeachment purposes before there is an anything to impeach
Impeachment by Prior Inconsistent Statement
- Always can ask about it on the stand
- Only can present extrinsic evidence if major issue to the case
To introduce extrinsic evidence, counsel must give W opportunity to admit/deny the prior statement
Impeachment with Prior Bad Acts
- W may be impeached on cross w/ specific acts of misconduct involving untruthfulness
(no extrinsic evidence allowed) - Can only ask about the bad act (NOT any consequences of it = arrest)
No extrinsic evidence allowed (have to take word as it is)
Reputation/Opinion Evidence of Untruthfulness
- Impeached W has bad reputation in their community for truthfulness (reputation)
- Character W is personally familiar with impeached witness’s bad character for truthfulness (opinion)
Impeachment by Sensory Deficiencies / Ability to Perceive
- Shown on cross or extrinsic
- W unable to perceive the things he testified about/lacks knowledge of the facts at issue
Impeachment by Contradictory Facts
- Evidence that contradicts witness’s testimony on one point, to cast doubt on witness’s testimony as a whole
- If major point –> extrinsic evidence generally allowed
- If minor point –> cross-examination only
Crimes, wrongs, acts generally inadmissible unless offered to prove:
MIMIC
Motive;
Intent;
Mistake;
Identity;
Common plan/scheme
*evidence of D’s other acts of sexual assault/child molestation is admissible in criminal and civil case where D accused of committing sexual assault/child molestation
Witness Competency
Presumed to be competent unless established to contrary
Sufficient evidence to support finding that witness has personal knowledge of matter they are going to testify about
Children = depends on capacity/intelligence
Insane person = May testify provided that they understand obligation to speak truthfully and have capacity to testify accurately
Refreshing Memory vs. Recorded Recollection
Refreshing memory can occur at any time with any evidence; doesn’t need to be admitted into evidence
Only use recorded recollections if the witness’s memory still not refreshed after seeing the evidence –> then the record itself can be read into evidence if proper foundation laid
Proper Foundation
- W has insufficient recollection to testify accurately/truthfully
- W had personal knowledge of facts in the record when record was made;
- Record was made by the W under their direction or adopted by W;
- Record was made when the matter was fresh in the W’s mind;
- Record accurately reflects W’s knowledge
Opinion Testimony by Lay Witness
Generally inadmissible, unless:
- Rationally based on W’s perception;
- Helpful to clear understanding or determining fact in issue;
- Not based on scientific, technical, or specialized knowledge
Expert Witness Testimony
Proponent must demonstrate to court that:
- Subject matter is now where scientific, technical, or other specialized knowledge would assist trier of fact
- Opinion based on sufficient facts/data
- Opinion is the product of reliable principles and methods;
- Expert’s opinion reflects reliable application of the principles/methods to the fact of the case
Reliability of Expert Testimony = Daubert Factors
TRAP
- Testing rate of principle/methodology
- Rate of error
- Acceptance by experts in the same discipline
- Peer review and publication
Expert Testimony Can be Based on 3 sources of information:
- Experts own personal observation;
- Facts made known to expert at trial;
- Facts not known personally but supplies to the expert outside the courtroom and of a type reasonably relied upon by other experts in the field (don’t need to be admissible in evidence)
*generally able to testify on ultimate issue, unless criminal D and the defendants mental state constitutes element of crime/defense (expert may not state opinion as to whether the accused did/did not have mental state in issue)
Hearsay
Out of court statement made by the declarant, testifying at the current trial or hearing, offered in evidence to prove the truth of the matter asserted
*must always come from a PERSON
Common non-truth purposes = not hearsay
- Words of contract/legally operative facts
- Statements offered to show effect on listener
- Statements offered as circumstantial evidence of declarant’s state of mind
- Statements offered to impeach
Opposing Party Statement or “Admission”
Statement by/attributable to a party, now being offered against that person (cannot be party’s own statement)
- Silence considered when it would be reasonable to deny
- Vicarious admissions included where the statement made by another person, but attributable to the party because of the relationship between them (employer/employee)
- Guilty pleas in prior cases
Items that are designated NON-HEARSAY = removed from hearsay definition
- Statement by opposing party
- Testifying W’s prior inconsistent statement
- Testifying W’s prior consistent statement that rehabilitates the witness
- Testifying W’s prior statement of identification
*declarant must be on the stand for 2, 3, and 4)
Correct answer choices in Opposing Party Statement/Admissions Questions Could be Stated as Follows:
“Admissible as an admission by a party”
“Admissible as a statement by a party opponent”
“Admissible nonhearsay”
Testifying Witnesses Prior Inconsistent Statement Can be Used to Impeach AND as Substantive Evidence When:
- Statement given under oath at legal proceeding
- A statement that falls within another exclusion/within one of the hearsay exceptions
*must be on the stand
Prior Consistent Statements
Occurs when W is accused on lying on the stand because of recent bias/motive
Prior consistent statement is NOT hearsay if it was made BEFORE the bias/motive arose
Prior Statement of Identification
When a W on the stand previously identified a person and is testifying about that previous identification
Exceptions to Hearsay WHEN DECLARANT IS UNAVAILABLE
- Dying Declarations
- Former Testimony
- Statements Against Interest
Former Testimony Exception
- Unavailable
- Testimony was given under oath, hearing or deposition in same or different case;
- Party against whom testimony being offered had opportunity and similar motive to develop the declarants testimony
often facts will have all requirements, except for one; like the declarant being available WATCH OUT –> if prior inconsistent statement could still come in as impeachment
Dying Declarations
only available in CIVIL or HOMICIDE case
- Declarant unavailable
- Declarant believes death was imminent and statement concerns the cause/circumstance of what the declarant believed to be their impending death
(cannot be mere speculation/must be based on first hand knowledge)
*if fails under dying declaration, always consider excited utterance
“get away with murder” –> might not be enough for imminent death
Statements Against Interest
- Statement of unavailable W may be admissible if it was against that person’s pecuniary (money/property/penal/criminal) interest when made –> reasonable people wouldn’t lie about things that make them look bad
- Must have personal knowledge
- Must have been against their interest when the statement was made
Usually will be:
- criminal D offers someone else’s confession to the crime
- When govt. tries to admit evidence to convict
- if in criminal case –> MUST be corroborated
Hearsay Exceptions Available Regardless of Declarants Availability
- Present Sense Impression
- Excited utterance
- Present state of mind/physical condition
- Statements for purposes of medical diagnosis/treatment
- Business Records
(most common) there are more in outline
Present Sense Impression
Statement that describes/explains an event or condition and is made while or immediately after the declarant perceives the event or condition
timing important
*can include present physical sensation/pain/symptoms even if not made to doctor
Excited Utterance
Verbs of excitement, phrases indicating excitement, and !!!
- Made while under the stress of excitement of the event;
- Doesn’t have to be right away, just under “stress”
- Sometimes failed dying declarations will succeed as excited utterances
Present State of Mind/Physical Condition
Statement of declarant’s then-existing present state of mind
Motive, intent, plan
Intent to engage in future behavior can be used to prove that declarant actually engaged in that behavior
- CANNOT be about past physical condition
Statements Made For Medical Diagnosis/Treatment
- Describes a person’s medical history, past or present symptoms or inception/general cause
- Can go back in time
- Cannot identify perpetrator/explain what happened through this exception UNLESS it’s a child abuse victim identifying their abuser through treatment
Business Records/Records of Regularly Conducted Business Activity
Any writing or record made as a memo of any act, event, condition, opinion, or diagnosis is admissible if the following elements are met:
- Entry made in regular course of business;
- Business must regularly keep such records;
- Entry made near time of event;
- Business record must consist of matters within PERSONAL knowledge of the entrant (cannot be statement by a third party to the organization)
*almost anything can qualify as a Business
*often pose hearsay within hearsay issues
Authentication of Real Proof/Documents
Before something can be admitted, it must be authenticated.
General standard for authentication: Evidence sufficient to support a finding that the item is what the proponent claims it is (often right answer)
Hearsay within Hearsay
Admissible if BOTH outer hearsay statement AND inner statement fall within an exception to the hearsay rule
Confrontation Clause and Hearsay
Hearsay statement will NOT be admitted when:
- statement being offered against the accused in a criminal case;
- declarant is unavailable
- statement was “testimonial” in nature;
- accused had no opportunity to cross-examine the declarant’s testimonial statement prior to trial
Testimonial statements
sworn testimony, grand jury, prior trial, preliminary hearing
statements to police officers depend on primary purpose
- if to aid in ongoing emergency –> NOT testimonial
- if to prove information for later prosecution –> testimonial
Spousal Immunity Privilege
only applicable to criminal case
- Married person whose spouse is a defendant in a criminal case may not be called as a witness by the prosecution
- Must be a valid marriage for privilege to apply and privilege lasts ONLY during the marriage
- Matters if spouses were married AT TIME OF TRIAL
- Witness-spouse can choose to testify (don’t need both spouses to agree, just testifying spouse)
Confidential Marital Communications Privilege
applicable in civil OR criminal cases
- Confidential communications between spouses during a valid marriage are privileged
- EITHER spouse can invoke/refuse to disclose to prevent other spouse from doing so
- Marital relationship must exist when communication is made
- Statements made in front of a third party = NOT privileged
Other privileges
- Attorney-client = confidential communications between attorney and client made during professional legal consultation, unless privilege is waived or exception applies
- Psychotherapist/social worker
- Clergy-penitent privilege: if penitent made communication to the clergy member as spiritual advisor
- State based privilege (doesn’t apply at federal level)
- physician/patient
- accounant-client
- professional journalist
Spousal Immunity/Marital Communications Do NOT Apply In These Situations
- Communications or acts in furtherance of a future joint crime/fraud;
- In legal actions between the spouses;
- In cases where a spouse is charged w/ a crime against the testifying spouse or either spouse’s children
Judicial Notice
Recognition of a fact as true without formal presentation of evidence
- facts not subject to reasonable dispute
Party must formally request that notice be taken and provide court with necessary information; can occur at any stage of proceeding
In civil case –> judicially noticed fact is conclusive
In criminal case –> jury is instructed that it may, but is not required to, accept the judicially noticed fact as conclusive
