Evidence

Question 1

Evidence must be relevant for it to be admissible. It is relevant when

Answer 1

It is relevant if it tends to prove or disprove a material fact. In other words, more probable or less probable that it would be without the evidence

Question 2

A trial judge has a broad discretion to exclude relevant evidence if its probative value is

Answer 2

Rule 403 SOUP substantially outweighed by unfair prejudice such as evidence U-CUM – unfair prejudice, confusing, undue delay, misleading for the jury.

Question 3

Unfair prejudice examples

Answer 3

U-CUM – unfair prejudice, confusing, undue delay, misleading for the jury.

Question 4

If document being presented. Needs first to lay a foundation! It must

Answer 4

Authernticate

Question 5

Authentication requirement

Answer 5

• Writings: W. needs to have known before trial
• Voice: can be any time, before or after trial

Question 6

Evidence that may be excluded for policy reasons even if it is relevant:

Answer 6

SPOILS
- Settlement offers or negotiations
- Withdrawn guilty Pleas
- Offers to pay and payment of medical expenses
- Liability Insurance
- Subsequential remedial measures

Question 7

Is someone testifying?
Wait! Can I confront the witness? Confrontation clause:

Answer 7

Under the Confrontation Clause, a hearsay statement will not be admitted (even if it falls within a hearsay exception) where W is CUNT – Criminal case, unavailability of declarant, no opportunity to cross, testimonial.

Question 8

Steps to analyze hearsay:

Answer 8

1. Relevancy
2. Is the matter Civil or Criminal? Who is the declarant?
3. Direct or cross examination? Cannot impeach own witness if character was not questioned.
4. What is the purpose? Is it to show the truth?

Question 9

Check if it is NON-hearsay
Is it offered to prove the Truth of the matter asserted?
If No. Admitted. if

Answer 9

The person LIED! legally operative facts, independent verbal acts, effect on listener or reader, declarant’s state of mind.

Question 10

If testimony is to prove the truth, then check non-hearsay exception:

Answer 10

AMICA!
Asserted Truth?
Made by party of the action,
Identify a person,
Consistent statement of witness to rehabilitate (or rebut a charge that W. is lying) or inconsistent with prior testimony,
Adopted by the party or agent.

Question 11

Maybe still accepted if witness is unavailable

witness unavailability reqs. and hearsay

Answer 11

Is witness unavailable – PRISM? Privilege, Refusal Incapacity, Subpoena, Memory (lack) if she had STD – Statement against interest, testimony (former), Dying declaration.

Question 12

Still accepting? Does not matter if W. is not testifying

Hearsay exceptions

Answer 12

Evidence Sucks But Present Me Please
Excited Utterance, State of mind (usually to show intent), Business Records, Present sense impression, Medical Diagnosis, Public records.

Question 13

Recorded recollection

Answer 13

WANT-PK: *Writing made by W or at W’s direction *Accurate and reliable *Necessary to augment memory *Timely- made when fresh *Personal Knowledge. Testifying!

Question 14

Business records

Answer 14

TREAT-PK: *Timely- made at or near time of event *Regular course of business *Event or condition (record of) *Authentication *Trustworthiness -made under circ indicating *Personal Knowledge.

Question 15

Recollection Refreshed

Answer 15

any writing or photo, cannot read while testifying – not offered into evidence. – only if testifying!

Question 16

The evidence was accepted but I can still fight, and I still have witness to say the truth (probative of truthfulness)! I can

Answer 16

Impeach

Question 17

Impeachment methods

Answer 17

I Can’t Believe This Son (of a) Bitch
Inconsistent statement (only for impeachment not substantive proof unless if it was given under oath), another one is contradiction, does not need to be in a stat. under oath.
Bias or motive to misrepresent (always admissible and we allow extrinsic evidence if the witness denies it, after laying a foundation).
Truthfulness - Specific acts of misconduct which bear truthfulness or not - maybe be inquired into cross-exam only, for impeachment purposes, the judge has discretion to allow it or not. No extrinsic allowed if the witness denies the act.
Sensory Deficiencies
Bad Acts

cannot impeach your witness if not questd her character for truth-bolste

Question 18

I can still disprove you telling them about your character wait… Criminal case?

Answer 18

Only if D. opened the door. Except in sexual assault cases. Federal Rule 413 provides that evidence of a defendant’s prior acts of sexual assault is admissible in a criminal case in which the defendant is accused of sexual assault. If opens – relevant character at issue only. Limited to reputation and opinion only. NOT specific acts.

Question 19

Yay! Now I can get you- Character evidence not for propensity, here we go. May be admissible to prove another point in the case…

Answer 19

MIMIC - Motive, Intent, Mistake (absence of), Identity and Common plan or scheme.

Question 20

I can still disprove you telling them about your character wait… Civil case?

Answer 20

Inadmissible unless it is direct at issue or is an essential element of the plaintiff’s case or defense. Character is an element at issue (defamation, self-defense, child custody). If the litigant has other purpose for the introduction of the evidence then the rule will not keep it out. It can be approved. MIMIC.