Evidence Flashcards
What is the Federal Rule Regarding Evidence?
Evidence is admissible if it is relevant and not unduly prejudicial, confusing, or a waste of time.
GA follows the same general rules.
Excluding Relevant Evidence
If the probative value of relevant evidence is substantially outweighed by the risk of unfair prejudice, misleading the jury, confusion, wasting time, or needlessly cumulative evidence, the evidence will be excluded.
What is the Federal Rule Regarding Hearsay?
Hearsay is generally inadmissible unless an exception applies.
Georgia recognizes all federal hearsay exceptions but also has additional exceptions:
Child Hearsay Exception: Allows hearsay statements of children under 16 in abuse cases if the court finds sufficient guarantees of trustworthiness.
Medical Diagnosis Exception: Broader than the federal rule; Georgia allows statements made by anyone (not just the patient) if made for medical diagnosis or treatment.
Also: -Georgia law includes exceptions for business records, dying declarations, and spontaneous statements.
Character Evidence
Character evidence is inadmissible to prove conduct, except in limited circumstances (e.g., criminal defendant’s pertinent trait).
Georgia is more permissive in criminal cases, allowing character evidence of the victim in certain circumstances, including violent crime cases, to show the victim was the aggressor.
Impeachment
A witness’s credibility can be impeached with prior convictions for crimes involving dishonesty or felonies if not too remote in time.
Georgia allows impeachment by prior convictions without the federal balancing test but limits impeachment for juvenile offenses.
Opinions by Experts
Expert testimony is admissible if it is reliable and relevant under the Daubert standard.
Georgia follows the Daubert standard but adds that experts must base opinions on facts or data admissible in court (e.g., not hearsay).
What is the Daubert Standard?
Under the Daubert Standard, judges act as “gatekeepers” to evaluate whether the methodology and principles underlying an expert’s testimony are scientifically valid and applicable to the facts of the case. The following factors are typically considered:
Testability: Can the theory or technique be tested? Has it been tested?
Peer Review: Has the theory or technique been subjected to peer review and publication?
Error Rate: Is there a known or potential error rate associated with the method?
Standards and Controls: Are there established standards governing the technique’s operation?
General Acceptance: Is the theory or technique widely accepted within the relevant scientific community?
What is spousal privilege?
Protects confidential communications made during a marriage.
Georgia does not recognize a spousal communication privilege in criminal cases, though spouses may refuse to testify in some circumstances.
Attorney/Client Privilege
Attorney-client privilege in Georgia extends to communications with corporate officers acting within their roles.
Spoliation Doctrine
In Georgia, spoliation of evidence can lead to adverse inferences against the party responsible for its destruction.
Parties are required to take reasonable steps to preserve evidence in anticipation of litigation.
Where spoliation (destruction or loss of evidence) is proven, a rebuttable presumption is raised that the evidence lost was favorable to the other party.
Spoliation can only occur after the owner of the property is aware of a potential lawsuit.
The owner has the right to deal with their property as they see fit unless there is a potential lawsuit.
Remedies for Spoliation
The trial court can dismiss the case.
The trial court can prevent expert witnesses from testifying about the evidence.
The trial court can charge the jury that the evidence would have been harmful to the party who destroyed it.
Relevance
Relevance is the first hurdle to admissibility. Irrelevant evidence is
inadmissible.
Evidence is relevant if it has any tendancy to make a fact more or less probable than it would be without the evidence.
Excluding Relevant Evidence
If the probative value of relevant evidence is substantially outweighed by the risk of unfair prejudice, misleading the jury, confusion, wasting time, or needlessly cumulative evidence, the evidence will be excluded.
Hearsay
Hearsay is a statement made by a human declarant outside of the courtroom which is being offered to prove the truth of the matter asserted. Hearsay is inadmissible unless an exception applies. A “statement” for the purpose of hearsay is any intentional oral or written assertion. “Outside of court” for the purpose of hearsay means any statement made outside of the current proceedings.
Nonhearsay/Evidence not offered for the truth of the matter asserted
CELVIS
If the evidence is being offered to prove Capacity, the Effect on the listener motive, intent, etc.), a Legally operative fact, a Verbal act, to Impeach a witness, or to prove State of mind, it is not hearsay, and thus admissible.
Admissible when offered to establish motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake.
Statements by a Party Opponent
Statements by a party opponent are exempt from the rules of hearsay and therefore may be admissible.
Includes any statement by a named party, an adoptive admission by words/conduct/silence (as long as the party heard and understood the statement they are adopting as their own), an authorized admission by the party’s agent, an employee admission (if made within the scope and furtherance of employment), or a co-conspirator’s statement (if made in furtherance of the conspiracy).
Hearsay exceptions when the declarant’s unavailability is immaterial
- Present sense impression.
- Excited utterance.
- Then-existing mental/physical/emotional condition.
- Statement for purpose of medical diagnosis or treatment.
- Past recollection recorded.
- Business records/records of regularly conducted activity.
- Public records.
- Ancient Documents.
- Learned treatises.
Hearsay exceptions when the declarant is unavailable
- Former testimony in the same or related proceeding.
- Dying declaration (don’t have to be actually dead).
- Statement against pecuniary, proprietary, or penal interest.
- Statement of personal history.
- Statement that wrongfully caused the declarant’s unavailability.
Declarant’s Unavailability
PRISM —
Privilege,
Refusal,
Incapacity,
Subpoena, or
Memory.
Habit Evidence
Evidence of a person’s habit is relevant and admissible to prove that conduct was in conformity with that habit. The habit must be so frequent that it borders on reflexive.
Character evidence of other crimes, wrongs, or acts
This kind of evidence may be admissible NOT for a propensity purpose, but instead to prove MIMIC — Motive, Intent, lack of Mistake, Identity, or a Common scheme or plan.
Character Evidence General Rule
Character evidence is evidence of a person’s propensity or disposition to behave within a certain character trait, such as honesty, peacefulness, or violence. In general, character evidence is not admissible to show that one acted in accordance with that character trait, however, there are exceptions.
Character Evidence Exceptions in a Civil Trial
Character evidence is only admissible in civil cases in which character is an essential element of the case.
Character is an essential element in DNICE cases — Defamation, Negligent entrustment/hiring/supervision, Immigration, Child custody, Entrapment.
Can only be introduced in the form or reputation, opinion, or specific acts.
Character Evidence Exceptions in a Criminal Trial
Character evidence is inadmissible in the prosecution’s case in chief, however, the ∆ can “open the door” by introducing evidence of their own good character. Then, the prosecution can rebut with their own character evidence for the same trait.
A ∆ may also offer character evidence of a victim’s violent character, in which case the prosecution can rebut with evidence of the victim’s good character for the victim, and bad character of the ∆.
Evidence must be introduced in the form of reputation or opinion on direct examination, or specific acts during cross-examination.
Character Evidence of Prior Sexual Conduct
The general rule is the rape shield law, which excludes evidence of a victim’s sexual behavior/history/predisposition.
In civil cases, evidence of prior sexual behavior is admissible if the probative value is greater than the potential of harm to the victim or unfair prejudice to any party.
In criminal cases, evidence is admissible to show consent or the source of semen/injury.
Public Policy Exclusions of Relevant Evidence
Otherwise relevant evidence may be excluded due to public policy, including evidence of:
1. Subsequent remedial measures,
2. Compromises or offers to settle,
3. Payment of medical bills,
4. Pleas or plea discussions (if made directly with the prosecutor), or
5. The existence of liability insurance.
However, some of these might be admissible to show ownership, control, to impeach, or the feasibility of precautions.
Relevance Balancing Test
The court will conduct a comprehensive analysis of various factors in considering whether the evidence’s probative value is substantially outweighed by the risk of unfair prejudice.
To determine the probative value, a court will consider how persuasive the evidence is, how material the fact to be proven is, and if there are other ways to prove that fact.
To determine how damaging the unfair prejudice may be, the court will consider if a limiting instruction can be given, the likelihood of damage, and the severity of the damage.
Expert Opinions in Civil Cases
Georgia courts apply the Daubert test to determine if an expert’s testimony/opinion is valid.
The court will consider TAPES — whether their theory has been Tested, if it has general Acceptance in the field, if there has been Peer review of the theory, if there is a low/high rate of Error, and the existence and adherence to Standards in the field.
What can expert witnesses base their opinions on?
Personal knowledge, facts presented during trial (hypotheticals), and/or facts presented before trial.
Expert Opinion’s on an Ultimate Issue
Experts may give their opinion on an ultimate issue, but it cannot be stated as a legal conclusion. For example, an expert may say “the victim was strangled,” but not “the ∆ strangled the victim”.
Seven Methods of Impeachment
- Prior inconsistent statements.
- Bias, motive, or interest.
- Conviction of a crime.
- Specific instances of bad acts.
- Reputation or opinion for untruthfulness.
- Sensory deficiencies.
- Contradiction.
Collateral Matter Rule
A collateral matter is evidence solely related to the creditability of a witness. Extrinsic evidence is inadmissible to prove a collateral matter.
Prior Convictions to Impeach a Witness
If the ∆ is the witness, evidence of a prior conviction is admissible to impeach a witness if it is a felony (a crime punishable by death or at least one year in prison), or a >10 year old conviction in which dishonesty had to be proven as an element, as long as the probative value is greater than the prejudicial effect.
If the witness is not the ∆, the prior conviction is only admissible if the danger of unfair prejudice does not substantially outweigh the probative value.
10 Year Rule for Impeachment by a Prior Conviction
If more than 10 years have passed since either conviction or release from confinement, evidence of said prior conviction is inadmissible unless its probative value substantially outweighs its prejudicial effect.
6th Amendment Confrontation Clause
Under the 6th Amendment, ∆’s have the right to confront witnesses against them.
In a criminal case in which the declarant is unavailable, their testimonial statements will be inadmissible if the ∆ has not had the chance to cross-examine/”confront” the witness. (Not testimonial if made to address an ongoing emergency)
Some public policy exceptions may apply, such as witness protection or age.
Marital Communications Privilege
Applies in both civil and criminal cases, but only to communications made during the marriage.
The privilege is held by the communicating spouse, who may prevent the other spouse from testifying.
Does not apply to crimes or intentional torts committed against one another or their children, divorce proceedings, or joint participation in a crime.
