Evidence Flashcards
How is evidence relevant?
Evidence is relevant if it has any tendency to make a material fact more probable or less probable than would be the case without the evidence.
Examples of relevant evidence
Evidence tending to show:
1) motive
2) opportunity
3) know how
4) prior violence
5) proximity
6) character
is relevant
IF something is relevant, is it admissible?
All relevant is admissible UNLESS some specific exclusionary rule applies OR the court makes a discretionary determination that the probative value of the evidence IS substantially outweighed the evidence’s negative effects.
How does prejudice go against admissibility?
Prejudice must be unfair in order to count against admissibility.
Prejudice is unfair when?
It is caused by the illegitimate use of the evidence
Types of Policy Based Exclusions
1) Liability Insurance
2) Subsequent Remedial Measures
3) Settlements and Offers to Compromise Disputed Civil Claims
4) Offer to pay hospital or medical expenses
5) plea bargaining in criminal case
Evidence of Liability Insurance
Evidence that a person has, or does not have, liability insurance is INADMISSIBLE to PROVE THE PERSON’S FAULT/ABSENCE OF FAULT
Evidence of insurance may be admissible for some other relevant purpose.
When can insurance be admissible?
If controverted (disputed): Can admit
- To prove ownership
- To prove control over an instrumentality
- To prove location
- *Must be disputed. It won’t be admissible if ownership/control/location is agreed upon.
To impeach a witness
Limiting Instructions
Should be given to the jury when evidence is admissible for one purpose but not for another. The judge should instruct the jury to consider the evidence only for the permissible purpose.
Subsequent Remedial Measures by a party
Inadmissible for purpose of suggesting that by taking the subsequent remedial measure, the party admits negligence, culpable conduct, product defect, or need for warning.
Admissible for some other relevant purpose such as proof of ownership/control or feasibility of safer condition if either is disputed. (The door must first be opened by a dispute of ownership/control/feasibility)
Subsequent remedial measures by TP
Exclusionary rule doesn’t apply.
Subsequent Remedial Measures Products Liability Cases
Federal Rule: Inadmissible
Ga: Admissible
Settlements and Offers to Compromise Civil Claims
Inadmissible in all cases if evidence if used to prove liability or weakness of party’s case.
Statements of Fact made during settlements/negotiations
Statements of Fact made in a disputed Civil Claim = Generally inadmissible in all cases for all purposes including impeachment.
Statements of Face made in disputed civil claim by Govt. Agency in course of its regulatory, investigatory or enforcement authority = admissible in a related CRIMINAL case on issues of guilt or impeachment.
**Only applies if the claim = disputed at time of settlement either as to validity of the claim or amt. of damages
Offer to Pay Hospital/Medical Expenses Evidence
Evidence of an offer to pay = Inadmissible to prove liability.
But statements by the party admitting fault or other relevant facts = admissible
Apology Statutes
GA: Statements made by a medical professional expressing sorrow, regret, error, fault are inadmissible against the D in a med mal. case to prove negligence.
NO multistate rule on this
Evidence of Plea Bargaining In Criminal Cases
The following is inadmissible:
1) offer to plead guilty- can’t be used in criminal case or in subsequent civil case based on same facts
2) withdrawn guilty plea- can’t be used in criminal case or in subsequent civil case based on same facts
3) plea of no lo- can’t be used in subsequent civil case based on same facts
4) statements of fact made during any plea discussions
Is a guilty plea admissible in a subsequent civil case?
Yes a party admission.
Verdict = inadmissible unless an exception applies
Are tickets admissible in civil cases?
No, traffic tickets are not admissible.
What is character evidence?
Refers to a person’s propensity or disposition to act a certain way
Evidence of a person’s character?
Inadmissible to prove that the person acted in conformity with his character on a particular occasion.
Exceptions to the inadmissibility of character evidence
Character can be admissible when:
1) person’s character = essential element in the case
2) accused’s good character was offered by the D, D’s bad character can be offered as rebuttal
3) pertinent character trait of the victim
4) character of a witness for untruthfulness, character truthfulness in rebuttal
Three ways to present evidence of someone’s character?
1) Character witness testifies to the person’s reputation
2) Character witness testifies to his opinion about the person
3) Character witness provides specific instances
When is a person’s character essential element in the case?
It is essential to the charge, claim, or defense if the trier of fact MUST consider the character issues in deciding the case.
Can do this by reputation, opinion or specific instances.
Rare
Examples:
1) defense of truth in libel action
2) custody battle: who is a better parent?
3) entrapment defense
4) wrongful death action: decedent = loving/caring spouse
D’s character for reckless driving in PI case = INADMISSIBLE
Character of the Accused
Evidence of accused character to prove conformity NOT admissible during P’s case.
D may introduce evidence of pertinent character trait during D’s case but this opens the door for rebuttal by P.
Solely D’s choice to put on character evidence.
Method used to establish character of accused/rebuttal
On direct, character witness is limited to reputation/opinion
**NO specific instances of conduct
GA: specifically allows a D to take the stand and testify to his own specific instances of conduct of a pertinent character trait
Character Evidence of Accused–Prosecution Rebuttal
If D opens the door to his good character, P can rebut
1) by CX witness using specific instances/acts that rebut the character trait D has raised (P must have good faith basis)
or
2) can CX D about specific instances/act that rebut the character trait D has raised (P must have good faith basis)
or
3) by calling its own character witness, limited to reputation/opinion to rebut D’s witnesses
Evidence of Victim’s Character by the Accused
Accused may offer pertinent character trait of victim
Mostly seen in self defense: evidence offered to show victim conform to conduct by being first aggressor
Limited to reputation/opinion testimony. NO specific instances.
Evidence of Victim’s Character in Rebuttal
May CX using specific instances of conduct
May call its own character witness to testify to victim’s character for peacefulness
If D offers evidence of victim’s violent character, D has opened the door for P to prove D’s character of violence
Homicide Case: If D offers evidence that vic was first aggressor then P can offer evidence of victim’s character for peacefulness
Evidence of Victim’s Character for Sexual Misconduct
Rape Shield Law: both crim/civil case: Where D = alleged to have engaged in sexual misconduct, evidence of victim’s sexual propensity (by reputation/opinion) or specific instances of victim’s sexual conduct/attitudes = INADMISSIBLE
Applies to both prosecution and defense
-Prosecution can’t offer evidence that victim does approve of marriage outside of marriage.
Exceptions to Rape Shield Law
1) If P presents evidence that victim has certain physical/psychological conditions that corroborate rape charge, D may offer evidence that someone other than D was source of the those physical/psychological conditions
(e. g. source of semen, STD)
2) If D admits sexual contact but claims consent, D may offer evidence of prior, consensual sex with victim. (ONLY applies to consensual sex between victim and D)
Evidence of D’s other crimes, wrongs or caters offered for NON character purposes
Not admissible during the prosecution’s case if the only purpose is to suggest that b/c D has done bad things in the past, D is more likely to have committed the crime at trial.
Evidence may be admitted, however, if it shows:
1) Motive
2) intent
3) Knowledge
4) identity
5) plan or scheme
6) absence of mistake or accident
7) opportunity
Evidence that are intrinsic to the events in question are admissible notwithstanding character rules.
Can be offered by D
Method of proof for other crimes/acts evidence
-any evidence that proves crime occurs and shows its non-character
Other crimes/act = NOT character –> Prosecution may present during case in chief
Fed rule: Upon D request, prosecution must give pretrial notice of intent to introduce this evidence . Judge determines admissibility and possible need of limiting instruction
GA: Prosecution must give pretrial notice of intent.
Evidence of other sexual misconduct to show propensity in sex crime prosecution or in civil action
Cases alleging sexual assault or child molestation, prior similar sexual misconduct of the accused = admissible as part of prosecution/plaintiff case in chief for any relevant purpose including propensity to commit sex crimes.
Character evidence rule in civil cases
Inadmissible to prove conduct in conformity
Similar Occurrence Evidence in Civil Cases
Inadmissible if only offered to prove that a party acted similarly on a prior occasion to how the party acted on the occasion in question.
But if offered for another purpose = admissible subject to limiting instruction.
Similar injuries/losses caused by a thing, not a person, = admissible if relevant. Relevance is determined by the substantially similar test.
Evidence of Custom/Standard of care in civil case
Evidence of how others in the same trade/industry have acted in the recent past may be admitted as evidence as to how a party should have acted–this provides the standard of care
Habit/Routine Practice Evidence in Civil Cases
admissible as evidence of how the person acted
What is a habit?
1) Simple response. No complex behaviors
2) Automatic response. No deliberation
3) Repetitive Response to a particular set of circumstances.
4) Invariable response. Ofter or usually do not apply.
