Evidence Flashcards
Allgemein
Ratio legis behind evidence
Grds. keep unreliable evidence away from the jury. We don’t want them getting tripped up by crafty lawyers, so we just don’t let them see it. Keep it away!
Bsp 1. If a person cannot authenticate the record then it’s not reliable. If they can’t tell us that these are the same phone records, then we don’t want them
Bsp. 2 For example, hearsay is typically unreliable. People lie all the time and words get mixed up like a game of telephone.
Ausn. But an excited utterance is fairly reliable because it was said in the heat of passion- and therefore a person is less likely to lie about it. So even though hearsay is unreliable, statements made in the heat of passion typically are reliable (according to the drafters).
Übersicht Evidence
- Relevance
- Preliminary Facts
- Character Evidence
- Hearsay
- Testimonial Evidence
- Privileges
- 6th Amendment Confrontation Clause
- Proposition 8
1. Relevance
Für jedes item of evidence feststellen:
I. Logical relevance: if it tends to prove/disprove a material fact (CA: a material fact in dispute)
II. Legal relevance: FRE 403 (CEC 352): balance probative value v risk of prejudice, judge has broad discretion (e.g. gory imagery)
III. Exclusion for public policy: aber evidence may still be admissible of other purposes (prove ownership/control, impeachment, admission, rebutting non-feasibility, bias)
- Subsequent remedial measure: Evidence of repair or precautions inadmissible to show culpability. Can use to show ownership or control or destruction of evidence, or to rebut claim that precautions were impossible
- Settlement offers or negotiation (FRE 408): Inadmissible to prove liability for, or invalidity of, a claim at actual dispute as to validity or amount of liability. Must exclude all contextual statements attached to offer
- Offers to pay medical expenses (FRE 409) are inadmissible, accompanying admissions may be admissible
- Withdrawn guilty pleas: Inadmissible as too prejudicial, minimal PV (but can waive inadmissibility)
- Liability insurance (“I have insurance”) or lack of: Can’t use to show culpability. Can use to show ownership or control, to impeach, or as part of admission
- [CA] Expression of sympathy relating to accident V inadmissible in civil cases, other admissions severable
- [CA] Mediation statements and writings inadmissible in discovery or proceedings (can waive)
2. Preliminary Facts
Grundsätzliche Regeln
- Judge is not limited by evidence rules when determining preliminary facts (e.g., competency) except privileges
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Authentication: Real or written evidence requires proof to support a jury finding that it is what the proponent claims
Grds. Authentication generally requires witness’s first-hand knowledge or familiarity. Preponderance not needed
- Self-authenticating docs: certified public and business records, trade inscriptions ([CA] N/A), official pubs -
Best evidence rule ([CA] secondary evidence rule): To prove the content of a writing or other tangible collection of data relevant to proving some material fact, the original must be introduced if available. Can still be hearsay
a) Applies where content is to be proven or testimony depends on the document (e.g., K, will, deed, X-ray)
b) Duplicates ([CA] handwriting included) are admissible to the same extent, unless (1) genuineness is at issue (one party contests authenticity), or (2) would be unfair in the circumstances to admit the duplicate in lieu
c) Original NOT required if: lost or destroyed (unless by opponent bad faith), opponent fails to produce,collateral matter, subpoena ineffective, independent source (personal knowledge), inscribed chattel -
Competency of witness: W must (1) have personal knowledge of the matter and (2) affirm/swear to testify truthfully
a) Judge and jurors are not considered competent to testify at trial
b) [CA] W must also understand the duty to tell the truth. Judge and jurors may testify if no objection - Conditional relevancy: If relevance depends on a particular fact finding by the jury, the court will admit the evidence after the judge first makes a threshold (and final) determination that a reasonably jury could find the necessary fact
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Judicial notice is a court’s recognition of fact (or law) as true w/o presentation of evidence. Court may take notice of generally known or readily determined facts, on its own or if a party requests it and supplies necessary information
- Noticed facts are conclusive in civil cases. Jury may or may not accept in crim ([CA] civil or crim) cases - Rule of completeness: If a party introduces part of a writing or recorded statement (even if inadmissible hearsay), the other party may require introduction of any other part in fairness (as long as not barred by, e.g., double hearsay)
3. Character Evidence
Möglich? (Achtung: “guter Charakter”-Beweis anfällig für probative value v unfair prejudice Probleme, allgemein sehr kritisch)
Grds. character evidence is generally inadmissible to prove conduct in conformity therewith
Arten von character evidence:
1. reputation
2. opinion of W
3. specific acts
Ausn. 1: defendant opens the door of alleges self-defense in homicide
a) Δ opens the door to say Δ is of good pertinent character (W’s testimony puts Δ character in issue)
b) Δ opens the door to say V is of bad pertinent character (except sexual in rape cases) to show Δ’s innocence
[CA] Π can rebut only after Δ’s evidence of V’s violent character (narrower than FRE)
c) Only then may Π rebut w/ Δ’s bad char (of same trait) or V’s good char w/ sp (x-exam) or rep/op (own W)
[CA] Domestic or elder cases: Π can initiate showing Δ’s acts of domestic violence or elder abuse
RF: rep/op on direct exam, sp on x-exam (CA: rep/op/sp on direct or x-exam
Ausn. 2: Other purposes – Δ’s MotiveIntentMistake(absence of)Identity)CommonPlan (=MIMIC) (FRE 404(b)) or prior act of sexual assault (413–415) – sp
Ausn. 3: Defense or cause of action where character is an element at issue – rep/op/sp
a)Defamation (B said A is a thief). Defenses: reputation testimony, truth (A is indeed a thief)
b) Negligent hiring (bring up all traffic offenses of employee)
c) Negligent entrustment (loan car to someone, should have known not a good idea to lend it)
d) Child custody (fitness as parent)
e) Self-defense: Survivor’s reasonable belief of imminent deadly harm
f) Entrapment: Δ had no predisposition commit the crime – but raises predisposition element for Π to rebut
Ausn. 4: Habit evidence is freely admissible as character evidence - /sp
- bit is a semi-automatic response to a specific and frequent situation.
- for an organization, a habit is a routine practice of the org.
- Look for 2+ occurrences, “always,” “every day,” “frequently,” “instinctively
4. Hearsay
Möglich?
Grds. out-of-court statement [out of this court] made by the declarant (oral/written/assertive conduct) offered to prove the truth of the matter asserted. It is inadmissible upon proper objection unless an exemption/exception applies (multiple hearsay X said Y said Z admissible only if each level of hearsay is admissible)
Achtung: Es ist kein hearsay, wenn OOC für bestimmten Zweck gesagt wurde (e.g. K terms)
Ausnahmen:
A. Non-hearsay exemptions: dann schon kein hearsay (CA: fall under “exceptions”)
B. Hearsay exceptions: hearsay but admissible
4. Hearsay
A. Non-hearsay exemptions: dann schon kein hearsay (CA: fall under “exceptions”)
1. Prior inconsistent statements: To admit a prior statement inconsistent with declarant’s in-court testimony, declarant must be available, and the prior statement must have been given under oath ([CA] oath N/A)
2. Prior consistent statements offered to rebut a charge that W has motive to lie/exaggerate. Declarant must testify at trial + be subject to x-exam + statement made before the alleged motive to lie or exaggerate arose
3. Prior statements identifying a person after perceiving him – must be available to testify at trial
4. Admissions by party: Statements by opponent (cannot bring own) acknowledging a fact relevant to the case. Statement need not be against declarant’s interest when made, may be opinion or based on hearsay
a) Adoptive admissions (conduct, or silence where the party understood the accusatory statement + capable of denying + reasonable person would have, if untrue, denied under the same
circumstances, e.g., not in police presence—suspect in custody has no duty to speak)
b) Vicarious admissions
(1) Co-parties: Party admissions are NOT admissible against co-Π/Δ
(2) Authorized: Statement of a person expressly/impliedly authorized by party to speak on its
behalf is admissible against the party
(3) Agents: Statement by an agent (e.g., employee) within scope of agency, made during
existence of relationship, is admissible against principal
(4) Co-conspirators: Statement of any conspirator is admissible against all members of the
conspiracy if it was in furtherance of the conspiracy (look for confrontation clause issue)
4. Hearsay
B. Hearsay exceptions: hearsay but admissible Fallgruppe A
A. If declarant unavailable (via PRISM: privilege, refusal, incapacity, someplace else, memory lacking)
1. Statements against interest (pecuniary, penal, proprietary, [CA] social) when made. The declarant must have had personal knowledge of the facts and awareness that it was against his interest
a) Collateral matter (evidence solely affecting the credibility of a witness) is admissible
b) [FRE] Against criminal liability, need corroborating circumstances of trustworthiness
2. Former testimony: Testimony that is now offered against a former party in former action, or a predecessor in interest (civil cases), who had an opportunity to x-exam W at prior/preliminary
hearing (including deposition but not grand jury) + similar motive to develop W’s testimony
3. Dying declarations (FRE: homicide or civil actions only. CA: all civil or criminal cases)
a) Declarant must have believed death was imminent (actual death not needed) + statement
concerns cause or circumstances of what he believed to be his imminent death
b) [CA] Declarant must actually be dead + statement concerns what did cause the death
4. Pedigree/family: Statements concerning personal or family relationship closely associated with W
5. Forfeiture by wrongdoing: Statements offered against a party who deliberately caused a
declarant’s unavailability (e.g., Δ might arrange for a key witness to be murdered)
- [CA] Applicable only where declarant was killed or kidnapped by person statement is offered against. Requires C&C evidence (more than standard FRE preponderance)
6. [CA] Past physical or mental condition (including statement of intention) at issue if it is at issue
7. [CA] Threat of physical harm: Statement that describes or explains infliction or threat of physical njury on declarant is admissible if (1) made at or near time of infliction or threat, (2) circumstances indicate trustworthiness, (3) in writing, recorded, made to police or medical personnel
4. Hearsay
B. Hearsay exceptions: hearsay but admissible Fallgruppe B
B. If declarant is available or unavailable (availability is immaterial)
1. Excited utterance ([CA] spontaneous statement): Statement made w/o reflection which relates to ([CA] narrates, describes, or explains) a startling event while under excitement of startling event
2. Present sense impression: Statement of what was perceived at time of event or immediately after [CA] Contemporaneous statement explains own conduct made while engaged in conduct
3. Then-existing state of mind (forward-looking intent), emotion, sensation, physical condition
a) When state of mind is directly at issue or to infer subsequent acts carrying out intent
b) Statements of memory or belief inadmissible to prove its truth (except declarant’s will)
4. Declarations of physical condition: Portion of statement imputing fault not admissible if unrelated
a) Present bodily condition made spontaneously admissible even if not made to a physician
b) Past bodily condition admissible only if made to medical personnel for diagnosis,
treatment, or testimony. [CA] Admissible only by child-abuse or child-neglect victim
under 12 made to medical personnel for medical diagnosis or treatment
5. Business records: Records of acts, conditions, events, transactions, opinions, or diagnoses made at or near the time of event with personal knowledge of matters during regular course of business. Entrant must have had a business duty to make the entry (e.g., not crime witnesses)
a) [CA] CEC does not cover opinions or diagnoses (but courts admit them if simple)
b) Requires authentication of record via custodian testimony or written certification
c) Excludes reports prepared for litigation, or by outsider (unless via a different exception)
d) Absence of entry in records: Negative purposes allowed to prove nonoccurrence of matter if it was regular practice to record all such matters, if witness is familiar + diligent search
e) Discretion to exclude if source of information or circumstances indicate lack of trustworthiness (those prepared in anticipation of litigation)
6. Present recollection revived: Testifying witness can refresh memory by looking at any item of evidence (no hearsay problem because the item itself is not necessarily offered into evidence)
7. Past recollection recorded: A record that is on a matter (1) testifying witness once had personal knowledge of but now cannot recall well enough (refreshing attempted and fails), (2) was made or adopted by W when the matter was fresh in memory, and (3) accurately reflects W’s knowledge
8. Public records: A record of public office made w/in scope of duty of public employee, admissible if it sets out a) activities of office, b) matter observed pursuant to duty (NOT if police observations in crim case), or c) factual findings from investigation (in civil case or against gov’t in crim case)
- [CA] Admissible if made within scope of duty of public employee, made at or near time of event, and trustworthy source of information
- A police record not qualifying as a business record may be admitted under this exception
- Absence of public records: Custodian may testify that diligent search failed to find a record to show that the matter was not recorded or did not occur
- Prior judgments: Prior felony judgment admissible to prove a fact essential to judgment
9. Ancient documents: Statements in 20YO+ document are admissible and self-authenticating ([CA] 30YO+)
10. Family records: Statements of fact concerning personal or family history found in family keepsakes
11. Learned treatises: Statements from reliable authorities ([CA] only facts of general notoriety and interest)
12. Catch-all: Trustworthy + necessary in interests of justice (probative, material) + notice to adversary
5. Testimonial Evidence & Impeachment
Schritte
- Testimony (Art)
- Impeachment (Anzweiflung der Glaubwürdigkeit)
- Examination (Art)
5. Testimonial Evidence & Impeachment
- Testimony
A. Lay witness testimony: Opinion testimony or inferences by lay witness is admissible only if:
1. rationally based on W’s perception (personal knowledge, 5 senses)
2. helpful for clear understanding of W’s testimony or [FRE] determining a fact in issue, and
3. [FRE] not based on scientific, technical, or other specialized knowledge (unless grossly apparent)
B. Expert witness testimony: Opinion or conclusion is admissible only if:
1. Specialized knowledge helpful to jury
2. qualified as expert,
3. reasonable certainty of opinion,
4. based on proper facts or data,
5. based on reliable principles and methods.
Reliability factors: a) Generally accepted in relevant scientific community, b) peer reviewed
(capable of retesting), c) published, d) low error rate, e) generally accepted in relevant field ([CA] only consider (5))
RF: Expert witness may testify as to an ultimate issue (Fallentscheidend, Bsp.: who is at fault bei accident), aber: May not state an opinion as to criminal Δ’s mental state that is an element of crime or defense, or conclusory legal opinions
5. Testimonial Evidence & Impeachment
- Impeachment
A. Durch wen? durch any party, including his own
B. Arten der Anzweiflung (e.g. Q: Were you convicted of armed robbery in 2012? Defense: Objection, prior criminal acts are irrelevant character evidence under Rule 404.
Prosecutor: We are offering this as impeachment evidence under Rule 609), ergo: welche Sachen sind zu Zwecken von impeachment ausnahmsweise zulässig?
1. Geltendmachung von Prior inconsistent statements
a) Vorhalten von eigenen widersprüchlichen Aussagen von W (intrinsic evidence): erlaubt
b) Vorhalten von anderen Aussagen (extrinsic evidence, insb hearsay), die im WIderspruch zu W stehen: Admissible if W is given opportunity to explain/deny statement + adverse pt is given opportunity to examine W. Non-collateral only
2. Geltendmachung von Prior bad acts:
a) Federal: intrinsic: Cross-exam (ct has discretion to allow), extrinsic: Never admissible (must take W’s answer)
b) [CA] Not admissible, except in criminal cases (Prop 8) for acts of moral turpitude ( broad “readiness to do evil” standard) , via cross-examination and extrinsic evidence, subject to balancing of PV and UP
3. Geltendmachung von Poor reputation or opinion for truthfulness: call another witness erlaubt
4. Geltendmachung von Prior convictions (Felonies (if PV > UP), Any crime involving dishonesty, Other crimes within judge’s discretion):
- [FRE] Evidence of criminal Δ’s conviction, up to 10 yrs old unless PV»_space; UP (FRE 609)
- [FRE] Evidence of a previous judgment of felony conviction is also a hearsay exception to
prove any fact essential to the judgment (FRE 803(22)(C), see Prior judgments above)
- [CA] Only felonies and criminal misdemeanors involving moral turpitude are
admissible under Prop 8, subject to PV/UP balancing
5. Geltendmachung von Bias, motive to lie, defective senses: Anything (involving, e.g., friend; parent; revenge; lack of perception, memory, knowledge)
C. Rehabilitation: Show of W’s truthfulness. Impeached W may be rehabilitated on redirect or by EE: W may explain original response; another W may testify to rep or op for truthfulness; pt may show prior consistent statement (only to defeat charge of fabrication) made before time of alleged motive to lie or exaggerate
5. Testimonial Evidence & Impeachment
- Examination of witnesses
Allgemein: The judge (the court) may reasonably control the examination of witnesses and presentation of evidence to effectively ascertain the truth, avoid waste of time, and prevent harassment of witnesses, The judge may call W upon his own initiative and interrogate any W who testify, as long as no partisanship
Verbotene Fragen: Leading questions (suggesting the answer, e.g., “Isn’t that correct?”)
Grds. are not allowed on direct examination,
Ausn.
1. hostile (antagonistic, unwilling) witnesses,
2. opposing witnesses,
3. child witnesses,
4. solicit background information (“You’re licensed, right?”), or
5. refresh recollection (auch: showing a document)
Grds. Allowed on x-exam, BUT x-exams are limited to (1) matters brought out on direct exam and inferences naturally drawn therefrom and (2) matters affecting the credibility of the witness
und (3) Adverse W generally cannot be asked a leading question by his own attorney on x-exam
Other bases for objection to form of question:
a) nonresponsive (answer to different Q or no answer, may be stricken by motion to strike),
b) Q/A requiring speculation,
c) compound question (more than 1 at a time)
d) loaded question (assumes facts—answer requires unintended admission: “Have you stopped beating your wife?”),
e) argumentative (prompts W to draw legal conclusion)
f) calling for a narrative (asks for story, not facts)
6. Privileges
Welche gibt es?
1. Attorney-client privilege: Communication between client and atty (or representative assisting w legal services, e.g., physician examining client) intended by client to be confidential and with purpose to seek legal advice is privileged (may refuse to disclose) indefinitely, even after death, unless waived by client ([CA] ends when estate distributed).
- Atty may invoke privilege on client’s behalf.
- Voluntary disclosure waives privilege to disclosed material
- EXCEPTIONS: (1) Comm furthers what client should have known was a crime or fraud, (2) between former joint clients, (3) dispute between atty and client, (4) [CA] reasonably necessary to prevent death or serious bodily harm
2. Spousal testimonial privilege: Privilege not to testify against spouse (Must be married at time of testimony) in criminal cases ([CA] applies to civil/crim), held by witness
3. Marital communications privilege: Privilege not to disclose private communication between spouses (civil/crim), Held by both. Covers confidential spousal comm’n from during marriage. Waived by known eavesdroppers
EXCEPTIONS to both spousal testimonial and marital communication privileges: (1) suits against each other, (2) crime against a spouse or either spouse’s child (3) joint furtherance of future crime or fraud (spouses are co-Δ)
4. Psychotherapist-patient privilege: Confidential medical comm’n between professional and patient made w/ purpose of diagnosis or treatment. Patient holds privilege, but doctor may claim privilege on patient’s behalf if patient cannot
- EXCEPTIONS: (1) patient puts his condition at issue (e.g., personal injury suit), (2) important to prevent injury to a person, sought to aid planning of crime or tort
5. Physician-patient privilege: Same as above. This is state created, so presume not applicable on MBE
