Evidence Flashcards
When is evidence relevant?
If it has any tendency to make a material fact more or less likely than would be the case without the evidence.
When is relevant evidence admissible?
Always.
What is the exception to the general rule that all relevant evidence is admissible?
The court makes a discretionary determination that the probative value of the evidence is substantially outweighed by some countervailing pragmatic ground for exclusion.
What are the six types of pragmatic consideration that may bar admission of relevant evidence?
Danger of unfair prejudice; Confusion of: issues and misleading the jury; Waste of Time: undue delay, waste of time, and unduly cumulative.
What is the least likely reason to exclude evidence?
Unfair surprise.
What are the general basis for policy exclusion?
Balancing relevance with pragmatic considerations, and encouraging parties to take socially useful conduct, by promising them that their statements and actions won’t be used against them in court.
What is the rule for liability insurance?
Evidence that a person has or doesn’t have liability insurance is inadmissible for the purpose of proving fault or absence of fault.
What is the exception to the liability insurance rule?
May be admissible to show (1) proof of ownership or control, if that issue is disputed, or (2) impeachment of a W on the ground of bias.
Whether evidence is admissible often depends on what?
The purpose for which the evidence is offered.
What happens if evidence is admissible for one purpose but not another?
Judge should give the jury a limiting instruction.
What is impeachment?
Process of trying to show that a W should not be believed.
What is bias?
There is some relationship between the W and a party that could cause the W to lie. Evidence of a W’s bias is almost always admissible.
What are subsequent remedial measures?
Repairs and design or policy changes taken after an accident that might have prevented the accident or made it less likely.
What is the rule for subsequent remedial measures?
Not admissible to prove the D’s fault. Why? Encourage potential Ds to make their products and premises safe to enter.
What is the exception to the rule for subsequent remedial measures?
Admissible for some other relevant purpose such as proof of ownership, control, or feasibility of precautionary measures fi that issues is disputed and put at issue by D who says precautions were impossible.
What is the rule for settlements and attempted settlements of civil (or criminal) cases?
If there is a disputed civil claim, then evidence of settlement or offer to settle or statement of fact made during settlement talks is inadmissible if offered to prove either the liability or the amount of the claim. Why? To encourage settlements and frank settlement discussions.
What are the exceptions to the settlement rules?
If the civil claim is brought by govt, statement of fact by D during settlement negotiations in that civil case are admissible against that D at a later criminal trial; settlement evidence may be admissible if it is offered to impeach a W on the ground of bias.
What is the VA distinction for the settlement rule’s exception?
An express admission of liability is admissible even if it takes place during settlement negotiations.
When does the ban on settlement evidence apply?
Only if at the time of the discussion there is a claim and that claim is disputed by the other side.
What is the rule for offers to pay medical expenses?
Evidence that a party has paid or offered to pay an accident V’s medical expenses is not admissible to prove liability. Why? To encourage charity.
What is the limit for the rule about offers to pay medical expenses?
It does not include other statements made in connection with an offer to pay medical expenses. (No hearsay problem because statement by an opposing party.)
What is the rule for pleas and plea discussions in criminal cases?
Unsuccessful offers to plead guilty, withdrawn guilty pleas, pleas of no contest, and statements of fact made during plea discussions by D or defense counsel in a criminal prosecution aren’t admissible for any purpose against D either in the criminal case or a subsequent civil case.
What is the VA distinction related to nolo contendere pleas and related discussions?
Nolo plea in criminal proceeding allowed to be used as admission against party in civil litigation.
May a guilty plea that is not withdrawn be admitted against D in subsequent civil litigation?
Yes, if civil litigation is based on the same facts under the rule of party admissions. Why? Difficult to withdraw a plea unless process is unreliable.
What is character evidence?
A person’s general propensity or disposition. EX: honesty, peacefulness, or carefulness.
What are the four permissible purposes for offering character evidence?
Conforming conduct (prone to act in a certain way); impeachment or rehabilitation; other (prior bad act offered for a purpose other than propensity); essential element (trait is essential element of claim or defense).
What is the rule for admitting character evidence?
Not admissible to prove propensity; admissible for impeachment, to show veracity, for a non-propensity purpose, and when trait itself is an essential element.
What is the rule for D’s character evidence offered by D?
Evidence of D’s character is generally not admissible to prove propensity. Why? Fear jury will misuse the evidence and convict D not because he’s guilty but because he’s a bad person.
What are the exceptions to the rule for D’s character evidence offered by D?
D may introduce evidence of own pertinent traits of good/lawful character. If D does this, P may rebut with evidence of D’s bad character.
In what form may character evidence be offered?
When character evidence is admissible to prove propensity, the only proper methods are opinion or reputation, not allowed specific acts of conduct.
What is the VA distinction for the form in which character evidence may be offered?
Character evidence is admissible to prove conforming conduct by some person, the character W may only testify as to what they know about the person’s reputation. Opinion testimony not allowed.
What is the rule for D’s character offered by P to rebut D’s proffer of own character evidence?
If D opens the door by calling character Ws, the P may rebut by (1) calling own Ws to testify to D’s relevant bad character (opinion and reputation only) and (2) by cross-examining D’s character Ws by questioning their knowledge of specific acts by the D that are relevant to the character trait at issue.
If P chooses to cross-examine D’s character witnesses as to specific act knowledge, what is the proper purpose and limit?
Purpose to impeach W not to prove D’s conduct. P is not allowed to prove specific act, but must have good faith basis to believe that specific act took place before it may ask D’s character Ws about the act on cross.
What is the rule for V’s character in self-defense case?
A criminal D may offer evidence of V’s violent character to prove V was the first aggressor through opinion or reputation evidence.
How may P rebut D’s evidence regarding V’s character evidence in a self-defense case?
P may offer evidence of V’s peaceful character or D’s violent character.
What is the special rule for D’s knowledge of V’s character for violence?
D may offer ANY FORM OF evidence of own knowledge of V’s bad character for violence at the time of the alleged offense for the purpose of showing mental state or reasonable fear of danger. Why? Relevant to show D’s belief not V’s propensity.
What is the rape shield rule?
In a case involving alleged sexual misconduct, D ordinarily may not introduce evidence of V’s sexual history or V’s sexual predisposition.
What are the rationales of the rape shield rule?
Promiscuity evidence has low probative value and may discourage rape victims from coming forward.
What are the exceptions to the rape shield rule?
D may introduce evidence of V’s sexual activity w/ D but only if defense is consent, w/ others but only to prove that someone other than D was the source of injuries of other physical evidence, and evidence required to be admitted by D’s constitutional right under CC to prove alleged V may have some motive to lie.
What is the rule for character evidence in civil cases?
Not admissible to prove conforming conduct.
What is the exception to the rule for character evidence in civil cases?
Evidence of person’s character is admissible in civil action where such character is an essential element of a claim or defense. EX: negligent entrustment or defamation.
What is the rule for propensity evidence?
Inadmissible.
What is the exception to the rule for propensity evidence?
Habit of a person is admissible to infer how the person acted on the occasion at issue in the litigation.
What is habit evidence?
A repetitive response to a particular set of circumstances. Distinguishing characteristics are frequency of conduct (invariable) and regularity of response. Look for words like always, invariably, automatically, instinctively.
What is the business routine rule?
The regular practice of an organization is admissible to prove conduct on a particular occasion.
What is the rule for admitting D’s other crimes for non-character purpose?
D’s other crimes or specific bad acts are not admissible during P’s case in chief if the only purpose is to prove propensity i.e. because D’s bad character makes him more likely to have committed the crime charged.
What is the exception to admitting D’s other crimes for non-character purposes?
MIMIC. D’s other crimes or bad acts may be admissible if offered to show something specific about this crime for which he’s on trial.
What are the common non-character purposes i.e. MIMIC?
Motive, Intent, Mistake or accident, Identity, or Common scheme or plan.
How may MIMIC-purpose crimes be proven and what is the burden of proof?
Proof of conviction, or any other admissible evidence. P must produce sufficient evidence for a reasonable jury to conclude that D committed the prior act by a preponderance of the evidence. May use in criminal or civil evidence.
What are the other requirements for admitting MIMIC evidence?
Must pass Rule 403 balancing test, court must give a limiting instruction, and if D requests P must give pretrial notice of intent to use MIMIC evidence.
What is the rule for admitting other sexual misconduct to show propensity for sexual assaults?
In any case alleging sexual assault or child molestation, the prosecution or plaintiff may offer evidence of D’s prior similar acts for the purpose of proving D’s propensity. Whether D convicted doesn’t matter.
What is the rule for plaintiff’s accident history?
P’s history of accidents or lawsuits is inadmissible as it merely tends to show a propensity for being accident prone or careless or litigiousness. Exception: P’s prior accidents admissible to show another explanation for injuries.
What is the rule for similar accidents caused by the same event or condition?
Other similar accidents generally not admissible UNLESS other accidents involving the same instrumentality or condition, and occurring under substantially similar circumstances may be admitted to show dangerous condition, causation, or notice to D of defect.
What is the rule for experiments and tests?
Standard for admitting experiments and tests is that there must be substantial similarity between the experiment and the disputed fact.
What is the rule for intent in issue?
Prior similar occurrences may be relevant to draw an inference of intent from a person’s prior conduct.
What is the rule for comparable sales on issue of value?
The value of similar property is admissible as evidence of value of the property at issue.
What is the rule for industrial custom as standard of care?
Evidence as to how others in the same trade or industry have acted in the recent past may be admitted as some evidence as to how a party in the instant litigation should have acted as evidence of the prevailing standard of care.
What is judicial notice?
Recognition of a fact as true w/o formal presentation of evidence.
When may a court take judicial notice?
Indisputable facts i.e. (1) matters of common knowledge w/in the court’s territorial jurisdiction and (2) matters capable of ready determination by resort to reliable sources.
What are the procedural aspects of judicial notice?
Notice may be taken at any time, including on appeal. The effect of judicial notice: in a civil case, noticed facts are conclusive, but in criminal cases, jury may regard the fact as proved but doesn’t have to.
When there is a writing on the exam, what are the potential issues?
Authentication, best evidence, hearsay, and privilege.
What is the general rule for authentication?
Party seeking to introduce an exhibit must introduce sufficient evidence for a reasonable juror to conclude that the item is what that party claims it to be.
What is the process of authentication called?
Laying the foundation.
What is the authentication rule for writings?
If relevance of a writing depends upon its source or authorship, the party offering the document must prove the source or authorship to authenticate the writing.
What are the four ways to authenticate writings?
(1) Testimony by a W w/ knowledge; (2) proof of author’s handwriting; (3) ancient document rule; (4) solicited reply doctrine.
How can proof of author’s handwriting be given?
Lay opinion (acquired not in prep of litigation); expert W testimony; comparison of handwriting by jury.
What is the ancient document rule (w/ VA distinction)?
Infer authenticity if: (1) document is 20 years old (30 in VA); (2) is facially free of suspicion; (3) is found in tis natural location.
What is the solicited replay doctrine?
A document can be authenticated by evidence that it was received in response to a prior communication to the alleged author.
What are the self-authenticating documents that don’t require a foundation?
Official publications, certified copies of public or private documents on file in public office, newspapers or periodicals, trade inscriptions and labels, acknowledged documents, commercial paper, and certified business records.
What is the rule regarding certified business records?
Must be certified by qualified W who knows how it was prepared and that these documents were made in the regular COB at or about the time of the events.
How make photographs and recordings be authenticated as demonstrative evidence?
If purpose of photo is to illustrate a W’s testimony, it can be authenticated by W testifying, based on personal knowledge, that photo is an accurate depiction of the people or objects portrayed.
How can a photo be authenticated if it is the evidence itself?
Party offering photo must show camera was properly working, film was properly loaded and removed, and that the film has not been altered. Most effective way to do all of this is to show a chain of custody.
What is the best evidence rule?
If a party seeks to prove the contents of a writing, the party must either produce the writing or provide an excuse for absence. If court finds the excuse acceptable, the party may then use secondary evidence, such as oral testimony or a copy to prove the contents.
When does the best evidence rule apply?
Only when the party seeks to prove the contents of a writing, which arises in two principal situations (1) the writing is a legally operative, or (2) W is testifying to facts that she learned solely from reading about them in a writing.
What is the difference between an original writing and a duplicate writing?
The original includes the writing itself, any counterpart intended to have the same effect, and any negative of film or print from the negative. A duplicate is any counterpart produced by any mechanical means that accurately reproduced the original (such as a handwritten copy or oral testimony).
What is the rule for admitting duplicates?
Admissible to the same extent as an original unless there is a question about the authenticity of the original OR it would be unfair to admit the duplicate.
When will non-production of the original be excused?
Original is lost or cannot be found w/o due diligence; has been destroyed w/o bad faith; cannot be obtained w/ legal process. If the court is persuaded by a preponderance of evidence that the excuse has been established then secondary evidence is admissible.
What are the escapes from best evidence rule requirements?
Voluminous records can be presented through a summary or chart (provided originals would be admissible); certified copies of public records; and collateral documents. BER almost never violated on bar exam.
What is real evidence?
Actual physical evidence displayed to trier of fact.
