Evidence Flashcards
Background Info
Presentation of Evidence & Witness Testimony order
Presentation of Evidence
* P case-in-chief → D case-in-chief → P rebuttal
* sometimes it will be important where you are in the presentation of evidence, in terms of admissibility
Witness Testimony Order
* For each witness: Direct Examination by Proponent → Cross by Opponent → Redirect by Proponent
* because there are certain things that you can do on cross that cannot do on direct
FRE 103
Rulings on Evidence
Objection!
you can preserve an objection for appeal only if the error affects a substantial right of the party and if:
1. the ruling is admitted
* you must timely object and state the reason
- the ruling excludes
* a party informs the court of its substance by an offer of proof
Sometimes it is so obvious, saying objection is enough and you dont need to state reason
What does it mean to [affects a substantial right] of the party = Aka the HARMLESS ERROR RULE
* Must affect a ‘substantial right’ i.e., have caused harm, or have impacted case outcome
* you are entitled to a fair trial not an error free trial
Offer of proof?
* If were my expert were allowed to testify, he would say X
Relevance
Rule Statement
Evidence is relevant if it has any tendency to make a fact of consequence more or less probable than the fact would be without the evidence
* All relevant evidence is admissible unless a rule says otherwise.
* Irrelevant evidence is not admissible.
you gotta pick:
* say whether it is more probable or less probable
Relevance
Application
Evidence → Fact of Consequence → Element/Witness Credibility
* A Fact of Consequence is a fact that goes to a legal element, meaning it is going to impact the outcome or a fact that goes to witness credibility
403
Rule Statement
CUM NUW
The court may exclude relevant evidence if its probative value is substantially outweighed by one or more of the following danger(s):
* Confusing the Issues
* Unfair Prejudice
* Misleads the jury
* Needlessly Cumulative
* Undue Delay
* Wastes Time
General balancing test
* Balance the evidence’s probative value against the possible dangers (to accuracy or efficiency) of admission
* Dangers 1-3 = accuracy of the fact finding process
* Dangers 4-6 = the progression of trial
403
in General
- open the door?
- Mitigation?
- 403 error?
Opponent of the evidence may “open the door”
* For example, character evidence may have an improper use; however, when it meets an exception, you are opening the door and thus taking away the danger
Mitigating unfair prejudice = Emotional response; improper use
* Redact
* Limiting Instruction
403 error
* 403 error will be reviewed under a ~highly deferential~ abuse-of-discretion standard
403
Probative Value?
How persuasive is the evidence on a fact of consequence?
Strength of inferences between item of evidence and FOC (generalizations underlying the inferences)
* Primary measure of probative value
* Is it a generalization that most people believe (i.e. gravity) or is it something more like “rich people drive nicer cars than poor people”?
Certainty of starting point → how certain and unambiguous the piece of evidence / witness is
* Length of chain of inferences does not determine how certain
* This is NOT witness credibility, this is for the fact finder to decide
Need: Does it go to a……
* Central Issue? Is the factual issue that this evidence goes to, does it go to a central factual issue?
* Disputed issue?
* Little/no other available evidence on this point → what else could be offered on this point? Must it be this piece of evidence? Do you really need it?
example of central issue
* Ex: In an unpaid wages case, pay rate would be central
Need can include: telling a believable, compelling story (old chief)
403
Dangers
1 - 3 = accuracy of the fact finding process
Unfair Prejudice → Two types
* Emotional Response → Evidence about a party can trigger a response (positive or negative) that will interfere with logical fact finding (i.e. emotions, prejudice, undue sympathy, consciousness of guilt) or
* Improper use → the danger of the jury using evidence properly even if there is a valid purpose for the evidence goes against other evidence rules (i.e. impermissible character evidence like previous prison sentence)
Confusing the issues → When the jury gets distracted by a collateral issue; too much focus from something far away from the central dispute
* Does it take away from the central question? Are we going to end up with a mini trial on x issue?
Misleads the jury → Risk that the evidence will cause the jury to draw a mistaken inference
* Jury likely to draw mistaken inference or to overvalue the offered evidence
403
Dangers
4 - 6 = the progression of trial
(4) Undue Delay, (5) Waste of Time, & (6) Needlessly Cumulative
* Evidence would unnecessarily prolong the trial, evidence is repetitive, or the evidence adds little to no new information
Examples
* The prosecution calls a medical examiner to testify about the victim’s cause of death. Then the prosecution calls another medical examiner to corroborate the first witnesses conclusion
* A court preventing a defendant from calling 8 character witnesses who will testify to the same thing
105
Limiting Instruction
If the court admits evidence that is admissible for [one] purpose – but not for another purpose
* the court, on timely request, must restrict the evidence to its proper scope and instruct the jury accordingly
Opponent of the evidence needs to object if they want the limiting instruction
you’ll note that the court should instruct the jury to use the evidence only as evidence of X, not y.
* this is what you will say
* ToR 1 is good; ToR 2 is bad!
Standards of Review
ESSF
Evidence Sufficient to Support a Finding
A reasonable jury could find by the preponderance of the evidence that X
104(a)
Preliminary Fact Questions
- Foundational Questions
- 104(b)
When the admission of an item of evidence depends upon establishing a “foundation fact” or element,” the judge is not bound by FRE
* Judge’s standard = preponderance of evidence (>50%)
104(b) Relevance That Depends on a Fact.
* When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist.
Example
* P wants to put on Witness to testify that on the evening of the accident Witness was at a restaurant and overheard a woman saying, “I cannot believe I hit little Paul. I should definitely stop drinking on the job.”
* We have a missing fact, who is the woman. Thus, you must prove the woman = bus driver
* You have to put on ESSF that the speaker was the driver
Foundation
Personal Knowledge
if the “piece of evidence” comes from witness testimony
The proponent of a witness must put on ESSF that the witness perceived with their 5 senses what they are testifying to.
A witness’s own testimony describing that they saw/heard.etc. will suffice.
Note → even if you have brain damage and no memory, you still have personal knowledge that you do not remember
Example
* Witness claimed to see incident from slim crack in cell door; judge reviewed diagrams of prison cells and found it was impossible for witness to have observed from there
Foundation
Competency
ORAT
if the “piece of evidence” comes from witness testimony
Witnesses are presumed to be competent unless there is reason to
doubt one or more testimonial qualities
- capacity to observe,
- ability to remember,
- ability to relate information accurately,
- ability to tell the truth.
ORAT
If nothing leads you to question it, just say no facts lead to questioning competence
Foundation
Rule
If the piece of evidence is an exhibit
Any physical or documentary evidence must be properly
authenticated. Proponent must produce by ESSF to support a finding that the item is what the proponent claims it is.
Proponent needs to get a witness with knowledge to show ESSF that the exhibit is what it is purported to be (low bar).
* extrinsic evidence
Some exhibits may also be self authenticating = When the item is so likely to be genuine, you don’t have to call a witness with knowledge
* newspapers, certified copies of public records (sealed)
After, the other side can object to admission to evidence via contrary evidence or argue foundation evidence is not ESSF.
Best Evidence Rule
summary?
trying to prove the CONTENTS of an exhibit
* BER is only triggered when someone is either testifying about the contents of a writing/recording/photograph or putting on some other evidence of the content of the writing/recording/photograph
* If it just exists and is being offered – no BER
Is it implicated?
- Examples of when you know BER is implicated: The photo showed,” “The recording contained,” “The voicemail told me”
Original or duplicable (mechanically, electronically, digitally created copy, not a handwritten copy) is required UNLESS they have a good reason (not in bad faith) as to why they can’t and they can’t use the judicial system to get it (i.e. via a subpoena).
- If original or duplicate was lost in good faith and not obtainable by judicial process → SECONDARY EVIDENCE IS ADMISSIBLE (i.e., witness can testify to the writing’s contents or can recreate the contents)
Summary of voluminous writings allowed as long as other side is given fair opportunity to review underlying docs
examples:
* texts
* showing route you took on an apple watch (from practice exams)
* offering a contract
* when you use notes (i.e a medical record) and then offer them to prove TMA
* scuba company came in and said we had a contract, this is what it said, I saw her sign it, here’s what the terms were, I don’t have the original or the duplicate
* If the expert is testifying about the content of their report, like “I wrote a report about plaintiff’s injuries and here is what my report said”
* Copyright case → Amateur comic writer sues George Lucas saying you stole some of my Star Wars design. Amateur did not have his original magazine so he did a re-sketch. BER is now implicated and the analysis is necessary.
Character evidence
General rule/definition
(a)(1) & (b)(1)
- Is it Character evidence or is it 404(b)(2)? Habit? or EE? figure this out in ToR -> (a single piece of evidence can be both Character evidence and non-character)
- If it is, does an exception apply?
- IF yes, is it in the proper form?
Evidence of a person’s character is generally not admissible to show that they acted in accordance with that character on a particular occasion
* (b)(1) = specific acts but same = In the past year, I saw D run 3 stop signs and speed 10 mph over = this will fail anyway unless essential element
evidence of a person’s character offered to prove conduct in accordance therewith
Character evidence
when character = essential element
NOT CHARACTER EVIDENCE
If character is an EE of a charge, claim or defense, all types of Character evidence admissible unless there are 403 issues.
- opinion
- reputation
- PSA
- libel
- defamation
Character evidence
Habit
NOT CHARACTER EVIDENCE
Evidence of a habit to prove conduct in accordance with that habit is admissible.
Habit = less of a moral tendency; routine practices that are almost
involuntary (3x is not a habit)
Character evidence
404(b)(2)
NOT CHARACTER EVIDENCE
when a PSA is offered to prove something other than character
Articulate the non-char purpose
* do this in your relevance analysis
put on ESSF that the PSA happened
prep for 403 objection
* do not do full blown 403 analysis
* you are going to say the danger of the jury using this as character evid (improper use) that X substantially does or does not outweigh the probative value that X
If you are the prosecution, you have to provide notice
Rule
* Past act offered to prove something other than character evidence is admissible
Non-Character Theories Of Relevance
MOPP-KIIA
Motive
* PSA admissible because it motivated the charged crime.
* Failing warehouse arson guy with a lot of debt example
Opportunity
* Commission of a crime sometimes requires a particular opportunity, such as access to a protected place or to special tools. To prove that the D had the opportunity to commit a crime like this, the prosecutor may offer evidence that the D enjoyed access to the protected place or special tools on another occasion.
Plan/Preparation
* PSA of getting supplies
Knowledge
* Relevant to show they knew how to do the crime.
* Breaking into a safe
Identity (subset includes M.O)
* that it wasn’t someone else, but the defendant, who likely did the thing
* Police officer stealing from johns example
Intent
* Evidence of PSA can be admissible to prove that a D possessed the intent necessary to commit a crime
* Son killing father by running him over but wife says son tried to poision him before example.
Absence of mistake/lack of accident
* D will claim mistake, but some PSA will show that it is unlikely that it was a mistake
* Very similar to intent motive and knowledge
Res Gestae
* “Evidence needed to complete the story”
* we need to offer the PSA to show the crime even happened
Consciouness of guilt
Character evidence
Exception
Criminal Case only
Mercy Rule, open the door, homicide case
* Memory tool = the prosecution always gets to rebut whatever the other side puts on
Mercy Rule
* a defendant may offer evidence of the defendant’s pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it
* As a defendant, I can offer evidence of my pertinent trait
* And if the character evidence is admitted, the prosecutor may offer pertinent evidence to rebut it
Create Reasonable Doubt
* a defendant may offer evidence of an alleged victim’s pertinent trait
and if admitted, the prosecutor may:
* offer evidence to rebut it; and
* offer evidence of the defendant’s same trait (fight fire with fire)
Homicide
* the prosecutor may offer evidence of the alleged victim’s trait of peacefulness to rebut evidence that the victim was the first aggressor
pertinent = relevant to that specific crime being charged
Character evidence
if in a exception, is it in the proper form?
Exception
do this even if you think no exception
Opinion and Reputation is OK
NO PSA unless cross-examination
* So you can ask about specific instances that are relevant to the character trait that the character witness just testified to! INQUIRE
* has to be in good faith
* cross-examiner has to live with the witness’s answer
The purpose for allowing that inquiry is to test the character witnesses basis of knowledge or their judgment.
* if you did not know, then you obviously do not know much
* If you did know and you still say X, then we do not trust your judgment
all together
Sexual Assault-Specific Character Evidence Exceptions
Exception in Criminal/Civil?
If a criminal defendant is accused of sexual assault, their other sexual assaults are admissible to prove character
* SA PSA –> D has sexually violent char –> D committed this SA = ALLOWED
* Notice requirement
* 403 still available
* ESSF
(a) Victim’s sexual behavior or predisposition
* cannot use victim’s other sexual behavior OR sexual predisposition
exception to (a)
* criminal = Can only use other sexual behavior or sexual predisposition to prove—> (1) Someone other than D is source of physical evidence and (2) If proving consent, can show previous sexual history w/ this D
- civil = reverse 403 = OSB/P admitted only if probative value substantially outweighs prejudicial impact
Policy Rules
SCOPE?
- Subsequent Remedial Measures
- Compromise
- Offers to Pay Medical and Similar Expenses
- Pleas, Plea Discussions, and Related Statements
- Existence of Liability Insurance or Lack Thereof
Subsequent Remedial Measures
When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove fault/culpability/defect/need for warning
* But the court may admit this evidence for another purpose, such as impeachment or — if disputed — proving ownership, control, or the feasibility of precautionary measures.
Measure?
* Acts that would have made an injury or harm less likely to occur
Feasibility?
* When the defense is “I could not make this safer”
Example
* D repairing a staircase can be evidence that D has control of the property
Multiple ToR
* 403 available
* 105 limiting instruction for the improper use of like fault
Compromise
Offers to compromise, and statements made during negotiation, are not admissible to prove/disprove validity of claim or amount owed. Also not admissible to impeach by a PIS or a contradiction
The court may admit this evidence for another purpose.
* Such as proving a witness’s bias or prejudice, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.
Offers to Pay Medical and Similar Expense
Evidence of furnishing, promising to pay, or offering to pay medical, hospital, or similar expenses resulting from an injury is not admissible to prove liability for the injury.
* but the statements that accompany them are admissible (piecemeal it)
Example
* Acknowledgement of fault that comes with the offer to pay is admissible
Pleas, Plea Discussions, and Related Statements
In a civil or criminal case, evidence of the following is not admissible against the D who made the plea or participated in the plea discussions:
* a guilty plea that was later withdrawn
* statements made while negotiating that guilty plea
Existence of Liability Insurance or Lack Thereof
Evid that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully.
* But the court may admit this evidence for another purpose such as proving a witness’s bias or prejudice or proving agency, ownership, or control
Impeachment
5 types Impeachment
basic concepts
(1) Show a witness’s character for untruthfulness
* Reputation or opinion; intrinsic [608]
* Criminal convictions [609]
(2) Show that W made a prior inconsistent statement [613]
(3) Witness bias
(4) Contradict a witness’s testimony through other evidence.. or common sense/knowledge
(5) Attack testimonial qualities
* Ability to observe
* Ability to remember
* Ability to relate accurately
* Understanding of duty to tell truth
- You can impeach any witness because credibility is always an issue
- You cannot bolster
Basics
Impeachment and Rehab
any party can impeach a W, including the proponent
Scope of Cross and Leading Q’s
You can impeach any witness because credibility is always an issue
* Impeach = attack witness’ credibility, show that their account is not reliable
* Rehabilitate = repair the attack on witness’ credibility
2 Main Rules on Rehab
* Cannot bolster = must wait until W is impeached
* Rehab evidence must respond to the type of impeachment (EX = to rehab PiS, you need Prior consistent statement)
Scope of Cross
* Scope of cross-examination is whatever was covered on direct examination plus credibility of the witness.
Leading Q’s
* A leading question is a question that suggests the answer and it’s allowed on cross or if there is something about the witness that makes them adversarial or hostile to you
Impeachment
Prior Inconsistent Statements
Judge decides whether it is truly inconsistent
Rule for Intrinsic Evidence:
* Intrinsic evidence of PIS admissible to impeach.
* No need to give advanced notice or disclose its contents, but upon request opposing counsel has the right to learn of the statement.
Rule for Extrinsic Evidence:
* Extrinsic evidence only allowed if it is a non-collateral issue and the witness HAS a chance to explain/deny
* Exception “when justice so requires.”
Starter Rule
* A witness may be impeached with their PIS
When witness is impeached with a prior inconsistent statement, you can rehab with a prior consistent statement
As justice requires?
* What if, through no fault of their own, Cafe’s counsel only learns of Lisa’s PIS (that the floor was dry) in the middle of trial, AFTER Lisa has been dismissed? Can P call Stewey to testify to the PIS?
Impeachment
A witness’s character for truthfulness or untruthfulness
impeaching a witness by showing that they have an untruthful character, showing that they are a liar by nature.
(a)
* A witness’s credibility may be attacked/supported by testimony about the witness’s character for truthfulness or untruthfulness
* With opinion or reputation
* Remember, no bolstering! (must wait until W is impeached & rehab with the same type of impeachment)
(b)(clause 1)
* Extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to attack/support the witness’s character for truthfulness
(b)(1) = intrinsic
* But the court may, on cross-examination, allow the specific instances to be inquired into IF they are PROBATIVE of the character for truthfulness/untruthfulness
* good faith basis
(b)(2) = extrinsic
* On cross exam, you can ask a witness (Extrinsic) about specific instances
* good faith basis
* the same kind of inquiry (if they know.. or dont know..) to test the basis of knowledge of the character witness as b(1) but not lisa
* are you aware, mr. brown (character witness after he said imo, Lisa is truthful [using a]), that Lisa cheated on her Bio Exam?
Once impeached reputation evidence can be offered - beware of bolstering
Is it not true, ms. simpson, that you cheated on your taxes – i plead 5th – allowed
Impeachment by Crim Conviction
Definitions
Felony
* Crime that is punishable by a year or more in prison or death
Crimen Falsi
* A crime that involves an element of untruthfulness
* Such as fraud
10 years
* If more than 10 years have passed since the witness’s conviction or release from confinement for it, whichever is later
* |——————————————|now
* Convicted
* Released
Released
* Means released from physical confinement
* Not when you are don with probation or parole
The theory of relevance
* If you have been convicted of a crime, you are more likely to lie in court when you’re testifying as a witness
Cannot use 403 in 609 because different variations built into it
Impeachment
Criminal Convictions
The issue with impeachable convictions is figuring out which balancing test to apply
- Confirm (c) or (d) does not apply
- Is conviction old? → (b)
- Is conviction for crimen falsi? → (a)(2)
- Is conviction a felony? → (a)(1)
- Is W a criminal D in this case? → (a)(1)(B)
If it is not a felony and not crimen falsi = exclude
Impeachment
Criminal Convictions [609]
609(a)
(a) → 10 years or less
(1) For a felony that is not a crimen falsi
(A) W is not Crim D → Admit subject to 403
(B) if W IS Crim D → admit conviction if probative value of evidence outweighs its prejudicial effect
(2) for a misd/felony crimen falsi → admit auto
(a)(1)(A), where not crim D, this means civil defendant!
