Evidence Flashcards
CHARACTER EVIDENCE
Victim’s sexual behavior
Evidence of victim’s other sexual behavior or predisposition is INADMISSIBLE in a criminal case, UNLESS:
- offererd to prove another person was the perpetrator;
- offered by the ∆ to prove consent or offered by prosecution with respect to the ∆;
- exclusion would violate ∆’s constitutional rights.
POLICY EXCLUSIONS
Compromise offers & negotiations
Public policy encourages settlements of disputes. As a result, compromise offers and negotiations are INADMISSIBLE when offered to:
- prove or disprove validity of amount of disputed claim; or,
- impeach by a prior inconsistent statement or contradiction.
For this exclusion to apply, both parties must intend to enter into such negotiations and there must have been an actual dispute. In criminal cases, the statement must be made to the prosecutor, not a government agency.
EXPERTS
Expert testimony
Expert testimony is ADMISSIBLE as substantive evidence (i.e., to prove a material fact or issue) if it is both:
* relevant: testimony will help trier of fact understand evidence or determine fact in issue; AND,
* reliable: testimony is based on sufficient facts and data and product of reliable principle and methods that expert reliably applied to the facts of the case.
HEARSAY EXCLUSIONS
Prior consistent statement
A declarant-witness’s prior consistent statement is EXCLUDED from the rule against hearsay if:
* It’s offered to rebut a charge of fabrication or improper influence and was made before a motive to fabricate arose; or,
* It is offered to rehabilitate witness’s credibility.
PRIVILEGES
Attorney-client privilege
Attorney-client communications are privileged when:
* made to obtain or provide legal assistance for the client; and,
* intended to be kept confidential.
Communication is confidential if circumstances indicate an intention of secrecy as to its contents between the client and attorney. If the client discloses it to a 3rd party, communication generally is not confidential and not protected by the attorney-client privilege.
Merely offering to share the privileged information does not waive the privilege.
The privilege extends to confidential communications between a client and the attorney’s agent if those communications are made in furtherance of the legal representation (e.g., consultant).
HEARSAY EXCEPTIONS
Then-existing state of mind
EXCEPTION to hearsay. e.g., motive, intent, plan
This can be admitted as substantive proof that the declarant later acted in accordance with that state of mind. Declarant’s memory or belief typically falls outside of this exception though.
HEARSAY EXCLUSION
Statement by party-opponent
EXCLUSION to hearsay.
e.g., letter to IRS written by the ∆ and offered against ∆ at trial is ADMISSIBLE.
A statement is not hearsay and is ADMISSIBLE if the statement is offered against an opposing party and is one the party manifested that it adopted or believed to be true.
Statement does not need to be a confession; instead, any relevant statement of an opposing party is admissible.
HEARSAY
Hearsay
Hearsay rule bars out of court statements that are offered to prove the truth of the matter asserted therein, but not those that are offered for some other purpose–e.g., to show statement’s effect on the listener.
Hearsay is defined as a statement (i.e., a person’s oral assertion, written assertion, or non-verbal conduct if the person intended it as an assertion). example: woman making a thumb’s up.
WITNESS
Judge as witness
A judge may never testify in a trial over which they are presiding–even when that testimony pertains to otherwise permissible evidence.
PRIVILEGES
Physician-patient privilege
Federal rules of privilege apply to claims arising under federal law. However, the physician-patient privilege is not recognized under federal law.
The physician-patient privilege, which was not recognized at common law, has been adopted by statute in most jurisdictions. In determining whether to honor the assertion of a privilege, courts must balance the public interest in nondisclosure against the need of the particular litigant for access to the privileged information, keeping in mind that the burden of persuasion rests on the party seeking to prevent disclosure. In most jurisdictions, patient communications or disclosures made for the purpose of medical diagnosis or treatment are privileged.
if facts state that privilege is recognized by state law and suit is in fed court via diversity:
If the physician-patient privilege is recognized by state law, it will apply in federal diversity suits, UNLESS:
* patient’s physical condition is at issue;
* patient-physician communication was part of a crime or tort;
* there is a dispute between the patient & physician; or,
* the patient contractually waived the privilege.
HEARSAY EXCEPTION
Statement made for medical diagnosis
EXCEPTION to hearsay. The following statements will be ADMISSIBLE:
* statements made for and reasonably pertinent to medical diagnosis and treatment; and,
* statements that describe the declarant’s medical history, past or present symptoms, or their inception or general cause.
FORM OF QUESTION
Leading questions
Leading questions are permissible on cross-examination.
EXPERTS
Expert testifying about reliability of treatise
Expert testimony that a treatise is a reliable authority lays a foundation for admitting the statement therein. The statements can then be used as a basis for the expert’s opinion AND as substantive evidence to help prove a material fact (e.g., the proper psychiatric standard of care).
POLICY EXCLUSIONS
Subsequent remedial measures
Evidence of subsequent remedial measures is INADMISSIBLE to prove negligence or other culpable conduct.
However, court may ALLOW evidence for other limited purposes:
* resolving a dispute about feasibility of precautionary measures;
* impeaching a witness; or,
* proving ownership or control.
MEE RULE:
FRE 407 excludes evidence of “measures” a defendant has taken taht would have made an earlier injury or hamr less likely to occur. Such evidence is inadmissible if offered to prove negligece or culpable conduct. The justification for Rule 407 is twofold. First, the probative value of any subsequent remedial meausre as an admission of fault is limited. Second, exclusion fosters a social policy of encouraging people to take steps in furtherance of added safety.
The general rule in both state and federal courts is that post-incident discipline constitutes a subsequent remedial meausre. More specifically, the termination of employees under similar circumstances is typically viewed as a subsequent remedial measure. For example, in Mahnke v. Washington Metropolitan Area Transit Authortiy, the court found evidence regarding a bus driver’s termination following an accident with a pedestrian inadmissible as a subsequent remedial measure.
Under Rule 407, evidence of subsequent remedial measures is admissible only if offered for another purpose, such as impeachment or–if disputed–proving ownership, control, or the feasibility of precautionary measures.
AUTHENTICATION
Best evidence rule (MBE)
The best evidence rule applies only when the contents of a recording, writing, or photograph are at issue–i.e., when:
* document is used to prove the happening of an event;
* document has a legal effect; or,
* the witness is testifying based on facts learned from the document.
This rule does NOT apply when a witness is testifying based on personal knowledge.
Under the best evidence rule, a duplicate is generally admissible to the same extent as the original writing–regardless of whether original is available.
IMPEACHMENT
Impeaching witness v. hearsay declarant
When a hearsay statement is admitted under any hearsay exception (or hearsay exclusion for statements made by an opposing party’s agent, employee, or coconspirator), the declarant’s credibility may be attached as through the declarant had testified (e.g., by introducing the declarant’s inconsistent statement). (treat this like you would impeach a witness on the stand).
It does not matter if the statement occurred after the hearsay statement OR declarant had no opportunity to explain.
WITNESSES
Exclusion of witnesses
A court must exclude a witness from the courtroom upon a party’s request–or may do so on the court’s own initiative, UNLESS, the witnesses are:
* parties or their designated representatives;
* persons whose presence is shown to be essential to a party’s presentation of its case; or,
* persons authorized by statute to be present.
APPEALS
Preserving evidentiary rules for appeal
To preserve a challenge to the exclusion of evidence for appeal, the party generally must make a timely offer of proof on the record, in the form of an oral or written explanation of the relevance and admissibility of the excluded evidence. No formal evidence is required.
The offer of proof is timely if it’s made within a reasonable time outside of the jury’s presence so the judge has an opportunity to correct the error.
AUTHENTICATION
Authenticating physical objects
Reproductions (e.g., models, drawings, photographs, maps) may be authenticated by the testimony of a witness with personal knowledge (ie., firsthand observations or experiences) that the reproduction accurately depicts what its proponent claims it does.
Example: police saw ∆ drop a plastic bag before running and he recovered bag from same area a few minutes after catching ∆. police officer has personal knowledge.
Remember, does not need to be authenticated by an expert!
For photographs, you can’t just have any photographer testify; it has to be someone with actual knowledge of what happened. It does not have to be the person who took the photos; just has to be someone with personal knowledge.
JURORS
Juror testimony
A juror is generally prohibited from testifying after trial about statements/incidents during deliberations, the effect of anything on a juror or juror’s vote, or any juror’s mental processes concerning the verdict.
Post-trial juror testimony is ADMISSIBLE if it concerns:
* extraneous prejudicial information brought to jury’s attention (e.g., juror learned from court clerk that ∆ had been accused of fraud in recent lawsuit);
* an outside influence improperly brought to bear on a juror; or,
* a mistake made in entering the verdict onto the verdict form.
HEARSAY
Hearsay within hearsay (double hearsay)
When one hearsay statement is contained in another hearsay statement, both statements are INADMISSIBLE unless both fall within an exclusion or exception to the hearsay rule.
CHARACTER EVIDENCE
Non-character purpose for admitting a crime or prior bad act
Evidence that a criminal ∆ committed similar crimes or bad acts is INADMISSIBLE character evidence when it’s offered for propensity purposes.
However, such evidence may be ADMISSIBLE for relevant, non-character purposes (MIAMI KOPP):
* motive: to show purpose for committing the crime;
* intent: to establish guilty mind or negate good faith;
* accident (lack of)
* mistake (absence of): to negate mistake or that this was an accident and prove this was a deliberate act;
* identity: to connect the ∆ to the crime with unique pattern of behavior (i.e., criminal signature);
* knowledge: to show knowledge of crime;
* opportunity: to show ∆ had opportunity to commit the crime
* preparation
* plan
HEARSAY EXCEPTION
Present sense impressions
Statements made by the declarant explaining or describing an event while or immediatley after the declarant perceived it are ADMISSIBLE.
HEARSAY EXCEPTION
Excited utterance
Statements relating to a objectively startling event, made while the declarant was subjectively under the stress of excitement that it caused are ADMISSIBLE.
CONSTITUTIONAL RIGHTS OF ACCUSED
Confrontation Clause
The Confrontation Clause gives a ∆ in a criminal case the right to be confronted by the witnesses against him. In Crawford, the Court held that the admission of an out of court “testimonial” statement violates a ∆’s right to confrontation if:
* the witness who made the statement is unavailable to testify at trial; and,
* defense has not had a prior opportunity to cross-examine the witness.
Example: witness was out of the country and could not be found. ∆ had no opportunity to cross-examine. posecutor tried to admit testimony of witness’s out of court statement but this violates CC.
CONSTITUTIONAL RIGHTS OF ACCUSED
Confrontation Clause: “not testimonial”
statements made during emergency
When witnesses make statements to the police under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assitance during an ongoing emergency, these statements are not testimonial. Additionally, the court cannot solely focus whether the threat to the first victim has been neutralized because the threat to first responders and the public may continue.
If facts are unclear about “ongoing emergency”, use rule statement below:
The Court will consider a range of factors to determine an “ongoing emergency”:
* nature of the dispute;
* scope of the potential harm to the victim;
* threat to additional identifiable victims;
* existence of a more generalized threat to the public;
* suspect’s choice of weapon; and,
* whether suspect remained “at large” or had been located (but not yet apprehended) by the police and/or any other “first responders.”
The question is whether, in light of all the circumstances, viewed objectively, the primary purpose of the conversation was to create an out of court substitute for trial testimony.
POLICY EXCLUSION
Plea discussions
Evidence of statements made during settlement or plea negotiations is generally INADMISSIBLE against a ∆. This includes a guilty plea that is later withdrawn.
CHARACTER EVIDENCE
Methods of proving character
When a person’s character is directly at issue (e.g., slander case), character evidence can be admitted through:
* reputation or opinion testimony; or,
* specific instances of conduct.
IMPEACHMENT
Impeaching with juvenile adjudication
A non-∆ witness’s juvenile adjudication is ADMISSIBLE to attack his character for truthfulness if:
* the adjudication is offered in a criminal case;
* an adult’s conviction for the same offense would be admissible to attack the witness’s credibility; and,
* admitting the evidence is necessary to fairly determine guilt or innocence.
IMPEACHMENT
impeaching witness with prior bad acts
Witnesses may be cross-examined about specific instances of prior bad acts probative of untruthfulness in order to attack the witness’s character for truthfulness. However, extrinsic evidence offered to prove the prior bad act is not admissible. This is because it would create too great a risk of confusing the jury and unduly delaying the trial.
A bad act can only be introduced through intrinsic evidence (i.e., evidence elicited during a witness’s own testimony, which is usually done on cross-examination).
CHARACTER EVIDENCE
Mercy Rule
Under the Mercy Rule, a witness’s reputation or opinion testimony about a criminal ∆’s good character can be impeached by:
* cross-examining the witness about a specific instance of conduct by the ∆; or,
* presenting opposing reputation or opinion testimony by another witness.
CHARACTER EVIDENCE
Habit
Evidence of a person’s habit is INADMISSIBLE to prove that the person acted in accordance with that habit on a particular occassion.
Habit focuses on a person’s regular response to a repeated specific situation (e..g, regularly using a turn signal) instead of a general trait (e.g., carefulness).
example: man’s 3 prior difficult arrests do not prove that he regularly resists arrest. NOT a habit.
MEE RULE:
The court may admit habit evidence regardless of whether it is corroborated or whether there was an eyewitness. Testimony involving habit evidence may be given by the person with this habit or by another person, but the person testifying must have personal knowledge. It is sometimes difficult for courts to distinguish habit evidence from character evidence. The problem is that, depending on the habit described, habit evidence can be similar to evidence of a person’s character or prior acts.
The FRE generally prohibit the use of evidence of a person’s character to prove that on a particular occasion the person acted in accordance with the character or trait.
The Rules likewise prohibit evidence of other acts when offered to prove a character trait and action in conformity with that trait. Because “habit” evidence can run afoul of the bans on character evidence and prior bad acts evidence, courts generally limit habit evidence to proof of relevant behaviors that are not just consistent but semi-automatic.
CHARACTER EVIDENCE
Specific instances of conduct
Specific instances of condcut may only be used when character is an essential element of a crime or defense.
example: defrauding federal agency is NOT a crime requiring character.
TESTIMONY
Refreshing witness’s recollection
A party may use any writing to refresh a witness’s memory when:
* witness once had personal knowledge of a matter but is now unable to recall it; and,
* the item will help the witness recall that matter.
PRIVILEGES
Attorney-client privilege for corporate clients
For corporate clients, federal law extends the attorney-client privilege to confidential communications from any employee that:
* concerned matters within the employee’s corporate duties; and,
* were made for the purpose of securing legal advice for the corporation.
AUTHENTICATION
Self-authenticating evidence
Some tangible evidence is self-authenticating and can be admitted without extrinsic evidence of authenticity–e.g,. trade inscriptions affixed in the course of business that indicates ownership, official publications issued by a public authority, newspapers, and periodicals.
CHARACTER EVIDENCE
When criminal ∆ calls a character witness to testify about pertinent trait
A criminal ∆ may call a character witness to testify about a character trait that is pertinent to the crime charged (i.e., offer relevant character trait to prove that ∆did not commit charged offense).
If the ∆ does so, the prosecution can rebut by:
* examining its own witness through reputation or opinion testimony; or,
* cross-examine the ∆’s witness about specific instances of conduct.
HEARSAY EXCLUSIONS
Prior identification
A witness’s prior statement that identifies a person as someone the witness perceived earlier is non-hearsay if the witness testifies and is subject to cross-examination about the statement.
If they do not testify and are not subject to rcross-examination, and someone else testifies to say what the witness stated, then it’s hearsay not within an exception.
Most courts have found that statements identifying a person after hearing the person’s voice qualify as statements of identification. Lay witness voice identification based on familiarity with a voice is typically admissible, unless it has been tainted by impermissible, suggestive questioning or investigative procedures. Expert testimony is not normally required.
EXPERTS
When expert relies on hearsay statement
Expert witness testimony may be based on a hearsay statement if the other experts in the field would reasonably rely on it (e.g., doctor’s letter).
But the statement itself (e.g., doctor’s letter) is INADMISSIBLE, unless:
* it is excluded or excepted from the hearsay rule; or,
* its probative value in helpign the jury evaluate the expert’s opinion substantially outweighs its prejudicial effect.
TESTIMONY
Recorded recollection
A past recollection may be read into evidence if:
* the witness once knew the recorded information but cannot recall it at trial;
* the witness made or adopted the record when the matter was fresh in her mind; and,
* the record accurately reflects the witness’s personal knowledge at the time.
Note, writing cannot be admitted as an exhibit. Only adverse party can do so.
PRIVILEGES
Exception to attorney-client privilege
Confidential attorney-client communications are privileged and therefore protected from disclosure, discovery, or admission. The client holds this privilege, so the attorney cannot dislcose (e.g., testify) the confidential communications unless the client waives the privilege.
However, this protection does not apply if the client was seeking legal advice in furtherance of an ongoing or future crime or fraud.
HEARSAY EXCEPTION
Statement against interest by unavailable declarant
A statement made by an unavailable witness is ADMISSIBLE if a reasonable person would not hav emade it if it were not true because the statement is contrary to the declarant’s pecuniary interest, tends to expose him to civil/criminal liability, or renders the claim invalid. This rule also requires corroboration.
HEARSAY EXCEPTION
Public records
Reports containing matters observed by law enforcement personnel and factual findings from a legally authorized investigation are ADMISSIBLE. However, this rule explicitly does not apply in criminal cases.
HEARSAY EXCLUSION
Co-conspirator statements
Co-conspirator statements are ADMISSIBLE if there is:
* proof of an extant conspiracy; and,
* proof that the statement was made during and in furtherance of the conspiracy.
Coconspirator statements CANNOT be admitted if the statement itself is the only evidence establishing the existence of the conspiracy or the declarant’s participation in it. There must be corroborating evidence.
CONSTITUTIONAL RIGHTS OF THE ACCUSED
Confrontation Clause: reports/affidavits as “testimonial”
The Supreme Court has concluded that affidavits containing the substance of analysis that analysts would be expected to provide at trial, making them functionally equivalent to testimony.
EXPERTS
Preliminary questions
Whether a witness meets the qualififications to offer expert opinion testimony is a preliminary question for the court–NOT the jury. The court is not bound by the rules of evidence when determining such questions.
CHARACTER EVIDENCE
Character evidence
Evidence of a person’s wrongs or other acts is INADMISSIBLE to prove that on a particular occasion a person acted in conformity with that particular character trait.
CHARACTER EVIDENCE
Criminal defendant character evidence
Character evidence of a criminal ∆ may be ADMISSIBLE only after a ∆ presents evidence of her own good character (e.g., evidence that she has a “peaceful” disposition) or evidence of the victim’s bad character (e.g., evidence that the victim has a “violent” disposition).
∆ must open the door
IMPEACHMENT
Impeachment by prior convictions
Evidence of prior convictions may be admitted for the purpose of attacking a witness’s character for truthfulness. There are two basic types of convictions that can be admitted for the purpose of impeachment:
Criminal convictions may be used to attack a witness’s character for truthfulness if the crime was punishable:
* by death; or,
* by imprisonment for more than 1 year (which generally correlates to “felonies”).
For any crime regardless of the punishment, the conviction evidence must be admitted if the court can readily determine that establishing the elements of the crime required proving–or the witness’s admitting–a dishonest act or false statement. (note, Rule 403 does not protect witness against admission of prior convictions involving dishonest).
Convictions > 10 years
There is a presumption that a conviction that is more than 10 years old, or where more than 10 years has passed since the witness’s release from confinement (whichever is later), should NOT be admitted, UNLESS:
* its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect; and,
* the proponent has provided the adverse party with reasonable written notice.
IMPEACHMENT
Impeachment by bias
Although impeachment by showing bias is not addressed by the FRE, it predates the creation of the Rules and has traditionally been widely permitted as a form of impeachment. In United States v. Abel, the Supreme Court held that bias has always been a legitimate and permissible form of impeachment.
HEARSAY EXCEPTION
Business records
Business records are excepted from hearsay if they were:
* made near the time of the recorded event;
* made by or based on information from one with personal knowledge; and,
* made and kept as a regular practice in the course of regular business activities.
PRIVILEGES
Federal common law psychotherapist privilege
Federal common law recognizes the psychotherapist-patient privilege. But, the privilege does NOT apply when:
* the communications resulted from a court-ordered exam;
* the case is a commitment proceeding against the patient; or,
* the patient’s mental condition is at issue.
HEARSAY EXCLUSION
Prior inconsistent statement
An out of court statement is ADMISSIBLE if the witness was subject to cross-examination and their prior statement:
* is inconsistent with their current testimony; and
* was made under penalty of perjury or identifies a witness perceived earlier.
Example: eyewitness identified ∆’s photograph as that of the robber during an interview at the police station but was unable to identify the ∆ as the robber while testifying at trial. As a result, the prosecution called an officer to testify regarding the witness’s earlier statement identifying ∆.
CONSTITUTIONAL RIGHTS OF THE ACCUSED
Confrontation Clause: “testimonial” statements
In Crawford, the Supreme Court noted that statements made to police officers in the course of an interrogation are often testimonial. The Court also suggested that statements that a witness reasonably believed would be used as part of a criminal prosecution are testimonial. In Davis, the Court held that statements made to the police to assist in the investigation and prosecution should be considered testimonial.
CONSTITUTIONAL RIGHTS OF THE ACCUSED
Confrontation Clause: not “testimonial”
Statements to the police under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency are nontestimonial. Davis.
The Court will consider a range of factors to determine an “ongoing emergency”:
IMPEACHMENT
Sex crimes
Sex crimes are generally not considered relevant to credibility.
RELEVANCE
Relevant evidence
Evidence is relevant if it has a tendency to make a fact more or less probable than it would be without the evidence. Relevant evidence is admissible, unless it is inadmissible pursuant to some other rule.
Jury instruction on judicially noticed fact
Judicial notice allows a court to recognize an adjudicative fact about the case or parties as true–without a formal presentation of evidence–if that fact is not subject to reasonable dispute.
A jury must accept a judicially noticed fact as conclusive in civil cases. But the jury is NOT required to do so in criminal cases.
IMPEACHMENT
who may impeach witness
Any party may impeach a witness–even the party who called the witness.
LAY WITNESS
Witness competency
It is presumed that a witness of any age is competent to testify so long as that testimony is:
* based on the witness’s personal knowledge; and,
* supported by an oath or affirmation to testify truthfully.
A witness is generally presumed to be competent to testify UNLESS the witness lacks the capacity to:
* recall and narrate her impressions of the occurrence at issue; or,
* understand the importance of telling the truth.
The ability to identify the ∆ as a person connected to the crime is not a requirement of a witness.
Rule 403/undue prejudice
Under Rule 403, a court may exclude relevant evidence if its probative value is substantially outweighed by undue prejudice. A court may consider the following factors:
* unfair prejudice;
* confusion of the issues;
* misleading the jury;
* waste of time or undue delay; and,
* needless presentation of cumulative evidence.
Example: Murder case–Though the victim’s disfigured face may prejudice the ∆, the victim’s testimony regarding the killer’s identity goes to the heart of the case of murder. Therefore, its high probative value outweighs the risk of unfair prejudice.
HEARSAY EXCEPTION
Residual hearsay exception
A hearsay statement is ADMISSIBLE under the residual or catchall exception if:
* the statement is supported by sufficient guarantees of trustworthiness;
* it is more probative on the point than any other evidence obtainable through reasonable efforts; and,
* the proponent gives the adverse party notice of the intent to offer the statement.
HEARSAY EXCEPTION
Statements of fact about family history
Statements of fact about personal or family history contained in a family record are excepted from the rule against hearsay, regardless of the declarant’s availability.
AUTHENTICATION
Ancient document
An ancient document can be authenticated by showing that the document:
* * is at least 20 years old when offered;
* is in a condition that creates no suspicion about its authenticity; and,
* was found in a place where it would likely be if it were authentic.
AUTHENTICATION
Chain of custody
Chain of custody must be used to authenticate physical evidence–as opposed to documentary evidence–that could be easily tampered with or is not readily identifiable (e.g., gun, knife, blood sample).
LAY OPINION
When will lay witness evidence be admissible
Under FRE 701, lay opinion testimony is ADMISSIBLE if it is:
* rationally based on the witness’s perception;
* helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and,
* not based on scientific, technical, or other specialized knowledge within the scope of the Rule.
Courts typically hold that witnesses with firsthand knowledge may offer lay opinion testimony where they have a reasonable basis–grounded either in experience or specialized knowledge–for arriving at the opinion expressed.
AUTHENTICATION
Best evidence rule (MEE)
Under the “best evidence” rule, when a party seeks to prove the contents of a writing, she must do so by producing the writing itself.
The federal version of the “best evidence” rule is contained in Rule 1002, which provides that an original writing is required in order to prove its content unless these rules provide otherwise. However, original writings are not always available or extant, so the Rules provide widely used exceptions to the “best evidence” rule.
First, under the Rules, a duplicate of a document is admissible to the same extent as the original unless a genuine question is raised about the original’s authenticity. Second, the Rules allow the contents of the writings to be proved by other evidence under certain circumstances. One circumstnace where other evidence is allowed is when all the originals are lost or destroyed, and not by the proponent acting in bad faith.
Miranda rights statements
Typically, a person
Public records authentication
A public record is self-authenticating ONLY IF it’s:
* certified as correct by a custodian or person authorized to do so;
* sealed and signed by a government entity; or,
* signed by an employee of the government entity whose signature is certified as genuine by another public officer.
If a public record does not meet one of the elements above (i.e., not authenticated), public records may be authenticated through evidence that the document:
* was recorded or filed in a public office as authorized by law; or,
* is from the office where the items of that kind are kept.
expert opinion on ultimate issue (e.g., when psychologist offers expert opinion that woman, who is claiming self-defense in a murder trial, feared for her life at time of killing)
An expert witness may offer an opinion on an ultimate issue EXCEPT when the opinion is offered in a criminal case and concerns whether the ∆ possessed the requisite mental state for a charged crime or asserted defense.
can a letter that an expert relies on to form her opinion be admitted into evidence?
If an expert opinion relies on otherwise inadmissible facts or data (e.g., the letter is barred by the hearsay rule), then that information may be disclosed to the jury ONLY IF the court determines that its probative value in helping the jury evaluate the expert’s opinion substantially outweighs its prejudicial effect.
doctrine of curative admissibility
The doctrine of curative admissibility allows otherwise inadmissible evidence to be admitted to rebut prejudicial evidence when:
* the evidence was improperly admitted through no fault of the prejudiced party;
* that party objected to and moved to strike the evidence; and,
* an instruction to disregard cannot remedy the prejudice.
example: on cross-examination, ∆’s attorney questioned detective about irregulatries in her investigative methods, which detective acknowledged. Before ∆’s attorney could ask another question, detective volunteered that she felt confident that ∆ was guilty because his sister, who was unavailable to testify, told numerous people in the community that the ∆ committed the robbery. Court told jury to disregard. As a result, ∆ may offer similar evidence to cure the prejudice caused by detective’s volunteered testimony.
Admissibility of expert testimony - can the opposing party question into specific instances that may affect expert’s qualification after expert has been deemed qualified by the court?
A court must determine whether a witness is qualified to testify as an expert. But a finding that the witness meets the requirements for expert testimony does not preclude the opposing party from inquiring into matters that might affect the weight of the witness’s testimony.
Example: structural engineer was qualified to testify as expert. on cross, prosecution asked engineer if it was true that she had failed 3 engineering classes while in graduate school. this is allowed because it goes to the weight to be given to the engineer’s testimony.
