Evidence Flashcards
Evidence must be relevant for it to be admissible. It is relevant when
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
A trial judge has a broad discretion to exclude relevant evidence if its probative value is
Rule 403 SOUP substantially outweighed by unfair prejudice such as evidence U-CUM – unfair prejudice, confusing, undue delay, misleading for the jury.
Unfair prejudice examples
U-CUM – unfair prejudice, confusing, undue delay, misleading for the jury.
If document being presented. Needs first to lay a foundation! It must
Authenticate, if self-authenticating ok. if not, stardard of authenticationr, by pleadinsg or stipulation, or evidence.
Authentication requirement
- Writings: W. needs to have known before trial
- Voice: can be any time, before or after trial
Evidence that may be excluded for policy reasons even if it is relevant:
SPOILS
- Settlement offers or negotiations
- Withdrawn guilty Pleas
- Offers to pay and payment of medical expenses
- Liability Insurance
- Subsequential remedial measures
Is someone testifying?
Wait! Can I confront the witness? Confrontation clause:
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.
Steps to analyze hearsay:
- Relevancy
- Is the matter Civil or Criminal? Who is the declarant?
- Direct or cross examination? Cannot impeach own witness if character was not questioned.
- What is the purpose? Is it to show the truth?
Check if it is NON-hearsay
Is it offered to prove the Truth of the matter asserted?
If No. Admitted. if
The person LIED! legally operative facts, independent verbal acts, effect on listener or reader, declarant’s state of mind.
If testimony is to prove the truth, then check non-hearsay exception:
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.
Maybe still accepted if witness is unavailable
witness unavailability reqs. and hearsay
Is witness unavailable – PRISM? Privilege, Refusal Incapacity, Subpoena, Memory (lack) if she had STD – Statement against interest, testimony (former), Dying declaration.
Still accepting? Does not matter if W. is not testifying
Hearsay exceptions
Evidence Sucks But Present Me Please
Excited Utterance, State of mind (usually to show intent), Business Records, Present sense impression, Medical Diagnosis, Public records.
Recorded recollection
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!
Business records
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.
Recollection Refreshed
any writing or photo, cannot read while testifying – not offered into evidence. – only if testifying!
The evidence was accepted but I can still fight, and I still have witness to say the truth (probative of truthfulness)! I can
Impeach
Impeachment methods
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
I can still disprove you telling them about your character wait… Criminal case?
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.
Yay! Now I can get you- Character evidence not for propensity, here we go. May be admissible to prove another point in the case…
MIMIC - Motive, Intent, Mistake (absence of), Identity and Common plan or scheme.
I can still disprove you telling them about your character wait… Civil case?
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.
what are the privileges federal courts recognize?
attorney
spousal immunity
marital communications
psychoterapits/social worker
Clergy-penitent
governmental privilege
Excited Utterance
Statement made while under stress of excitement of startling event.
Present state of mind
statement of then-existing state of mind, emotion or sensation. (usually introduced to establish intent)
Business records
- made in regular course of business
- matters within the personal knowledge of the entrant or
- someone with business duty to transmit.
records must be produced in order to prove their contents
Present sense impression
statement made concurrently with perception of event described
statement for medical diagnosis or treatment
statement of past or present physical condition, or the cause of condition pertinent to diagnosis or treatment.
Public records
records and reports of public agencies
Learned Treatises
admitted if called to attention of expert witness and established as reliable authority.
cannot receive as exhibit w/out expert involved
Dying declaration reqs.
the statement of the plaintiff was (i)made at a time when she believed that her death was imminent and (ii) related to what would have been the cause of death.
Dead man act
bar an interested person from testifying in a civil case about a communication with a decedent, if offered against his representative. Not recognized by federal rules; but will apply in federal cases where state laws applies.
