EVIDENCE Flashcards
Relevance
- Relevant evidence makes the fact at issue more likely than it would be without the evidence
- Must be both material (related to an issue in the case) and probative (have a tendency to prove or disprove a fact)
When is relevant evidence admissible?
- All evidence must be relevant: if evidence is irrelevant, it is inadmissible
- All relevant evidence is admissible unless excluded by a specific rule or if the court decides otherwise
When may a court exclude relevant evidence when no specific rule excludes it?
Probative value is substantially outweighed by the danger of:
1. Unfair prejudice
2. Confusing the issues
3. Misleading the jury
4. Undue delay
5. Wasting time
6. Needlessly cumulative
When is evidence unfairly prejudicial?
Unnecessary and might cause the jury to improperly sympathize with or dislike a party
Medical expenses exception
Evidence of offers made to pay medical expenses resulting from an injury is not admissible to prove liability
Plea negotiations exception
- Plea negotiations not admissible in civil or criminal cases
- Includes pleas, offers to plead guilty, and statements made in plea negotiations
Settlement offers and negotiations exception
Settlement offer is not admissible to prove the validity or value of a disputed claim, or as a prior inconsistent statement
Subsequent remedial measures exception
Evidence of changes made after an injury is not admissible to prove negligent, culpable conduct, defective product or design, or inadequate warning
Liability insurance exception
Evidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or wrongfully
Best evidence rule
When a writing, photograph, or recording is offered to prove its contents, the original is required and preferred over a copy or testimony unless the original is unavailable and the unavailability is not due to bad faith
Authentication
Party seeking to admit must show evidence that shows that the thing is what the party claims it is
How may real evidence be authenticated?
- Personal knowledge: testimony of a witnesses that recognizes and identifies the item
- Distinctive features or markings
- Chain of custody accounting for whereabouts in an unbroken chain
How are voice recordings authenticated?
Testimony of someone who has heard the person speak and identifies the speaker
When is the original writing, recording, or photograph not required under the best evidence rule?
When the original is unavailable:
1. All originals have been lost or destroyed without any bad faith from the proponent and after a diligent search,
2. Originals cannot be obtained by any available judicial process,
3. Original is in the possession of the opponent who had notice it would be at issue, or
4. Writing is not closely related to a controlling issue at the discretion of the court
Is character evidence admissible to show propensity?
No, evidence offered to show that on a particular occasion the purpose acted in accordance with their character is inadmissible
Is character evidence admissible to show that a witness is honest or dishonest?
- May only introduce credibility evidence through a witness offering reputation or opinion testimony
- Evidence of witness’s truthfulness only admissible once the witness’s credibility has been attacked
- May question a witness on cross-examination about specific acts of dishonesty if the act is probative of untruthfulness and there is a good faith basis for asking the question
- Must take witness’s answer as is and cannot inquire further or introduce extrinsic evidence
When are prior criminal convictions admissible to show propensity?
Admissible against witness unless the risk of prejudice substantially outweighs the probative value or the witness was pardoned or rehabilitated
Admissible against criminal defendant unless the risk of prejudice outweighs the probative value
May introduce criminal convictions for:
* Crimes involving dishonesty
* Felonies
* If there has been more than 10 years since conviction or release, evidence is only admissible if its probative value substantially outweighs its prejudicial effect and the proponent gives the adverse party reasonable notice
What are exceptions to the rule about character evidence and propensity in civil cases?
- May be used to show character if character is an actual issue in the case, e.g. whether a parent is violent in a custody case, carelessness in negligent entrustment case
- Plaintiff in child molestation or sexual assault case may introduce evidence of the defendant’s prior acts of that sort
What are exceptions to the rule about character evidence and propensity in criminal cases?
- Defendant may offer evidence of their own pertinent trait; prosecution may then use character evidence to rebut that pertinent trait
- Defendant may offer evidence of the victim’s pertinent trait; prosecution may then use character evidence to rebut the same trait in the victim or defendant
What are the rules if a defendant offers evidence of their own pertinent trait?
Defendant can only rely on reputation or opinion evidence, not specific acts
May the prosecution initiate the use of character evidence to show propensity?
No
Is evidence about a victim in a sexual misconduct case admissible in a criminal case?
Evidence that the victim engaged in other sexual acts and evidence of the victim’s sexual predisposition is generally inadmissible unless:
* Specific instances of the victim’s sexual behavior to prove defendant was not the source of injury or physical evidence
* Specific instances of the victim’s sexual behavior with the defendant to show consent
* Exclusion would violate defendant’s constitutional rights
Is evidence about a victim in a sexual misconduct case admissible in a civil case?
- Plaintiff or defendant can offer evidence if its probative value substantially outweighs the danger of harm to the victim
- Evidence of victim’s reputation only admissible if victim brings it up
When is evidence that the defendant committed another sexual assault admissible in a sexual misconduct case?
Always admissible in civil and criminal cases, even if the defendant was found not guilty of the assault
Is habit evidence admissible?
Evidence of individual’s habit or organization’s routine practice is admissible
Habit is a regular response to a repeated situation with these elements:
1. Specificity
2. Repetition
3. Duration
4. Semi-automatic or reflexive
Can a witness be impeached by prior inconsistent statements?
- May be done with any kind of statement
- May prove an inconsistent statement by extrinsic evidence so long as the witness is given the opportunity to explain or deny
May a witness’s ability to observe, remember, or relate facts accurately be attacked?
Yes, on cross-examination or with extrinsic evidence
Can hearsay declarants be impeached?
Once a hearsay statement is admitted, declarant’s credibility may be attacked or supported by any evidence that would be admissible if the declarant had testified as a witness
What is present recollection refreshed?
Document may be used to refresh a witness’s recollection if witness once had personal knowledge of the matter but is unable to recall while testifying
What is the process when a document is used to refresh present recollection?
- Witness looks at notes, puts notes aside, and testifies from present memory
- Document does not become evidence
- Opposing party is permitted to see the document and show it to the jury
What is the doctrine of judicial notice?
If fact is not subject to reasonable dispute:
* Court in civil case will instruct the jury to accept fact as conclusive
* Court in criminal case will instruct the jury that they may, but need not, accept the fact as proven
Which facts are not subject to reasonable dispute for judicial notice?
- Facts generally known in the community
- Facts derived from accurate and readily verified sources whose accuracy cannot be questioned
Examples: whether a city is north of another city, whether July 15, 2021 was a Tuesday
