Evidence Flashcards
Relevance
Evidence is relevant if it tends to make a material fact more or less probable than would be the case without the evidence.
In CA, same but in addition the Fact of Consequence for which the evidence is being admitted must also be in dispute.
Excluding Relevant Evidence
If an evidence’s probative value is substantially outweighed by the prejudice it will cause, the evidence should be excluded.
Relevance of Prior Similar Occurrences
Always look to the purpose for which the evidence is being offered.
Ex: If prior accident history is being offered it is usually inadmissible because it is mere character evidence, unless it is submitted for causation.
Ex: if prior accidents involved the same instrumentality or condition, it may be admissible to show D had notice, to show causation, or to show the existence of a dangerous condition.
Ex: prior similar conduct by D might prove intent.
Ex: industrial custom/practice may indicate ordinary standard of care.
Habit
Habit of a person (or routine of a business organization) is a repetitive response to a particular set of circumstances. It is frequent, particular, and near-automatic.
Ex: D regularly violates traffic laws - mere character evidence (inadmissible).
Policy Exclusions from Relevant Evidence
- Liability Insurance
- Subsequent Remedial Measures
- Settlements of Disputed Civil Claims
- Nolo contendere (“no contest”) plea, withdrawn guilty plea, and statements of fact during plea negotiations
- Offer to pay hospital or medical expenses
IN CA, alterations to above exceptions:
(1) subsequent repairs admissible for design defect strict liability case
(2) any admissions of fact along with the expression of sympathy are also inadmissible (unlike fed rule)
(3) Prop 8 in CA makes plea situation unclear BUT note could still be excluded for unfair prejudice.
Exclusion of Liability Insurance
Liability Insurance cannot be offered to prove fault, but can be offered to prove ownership/control, or for impeachment (give limiting instruction).
Exclusion of Subsequent Remedial Measures
Subsequent Remedial Measures (post-accident repairs, design changes, etc.) cannot be offered to prove fault, but can be offered to prove ownership/control, or feasibility of safer condition.
BUT IN CA, in a strict products liability action for a manufacturing defect, post-accident changes ARE ADMISSIBLE TO PROVE FAULT, on the theory that such changes will be made regardless and they do not need to be excluded for policy.
Exclusion of Settlements, Settlement Offers, and Statements of Fact in Settlement
Settlements of Disputed Civil Claims cannot offer evidence of settlement, offer to settle, or statements of fact made during negotiation to 1) prove fault OR 2) impeach as a prior inconsistent statement.
BUT 3) can impeach for BIAS.
Also there is 4) an “Enron exception,” where statements of fact made in settlement with a state regulatory agency can be admitted in subsequent criminal trial.
NOTE: the exclusionary rule only applies if at the time of the discussion, a claim has been asserted (does not have to be formal, just some accusation) and it is disputed either as to the validity of the claim or the amount of damages.
-Hypo: A and B in a car crash.
Ex: B says before A says anything, “I will settle for $100k if you don’t sue.” Not excluded.
Ex2: A makes claim, B says, “It is my fault, I owe you $100k but I can’t pay it, will you take $50k?” Not excluded, no dispute.
Ex3: A makes claim, B says, “It’s my fault, but I don’t owe you $100k.” Excluded - this is settlement negotiation.
Exclusion of Plea Bargaining in Criminal Cases
The following are INADMISSIBLE:
- an offer to plead guilty
- a withdrawn guilty plea.
- plea of nolo contendere (no contest)
BUT, the guilty plea itself is admissible.
In CA, may be subject to Prop 8 (all relevant criminal evidence admissible) but note this may create unfair prejudice.
Exclusion of Offer to Pay Hospital or Medical Expenses
An offer to pay hospital/medical expenses is excluded to encourage charity.
However statements made “around” this event ARE admissible (unlike settlement negotiation)..
In CA, statements made “around” the event are inadmissible.
Character evidence (general rule)
IN CALIFORNIA, Character evidence usually CAN be admitted to prove that D acted in conformity with his character on a particular occasion.
Unless specifically noted, admissible character evidence comes in the form of reputation or opinion evidence. IN CA SPECIFIC ACTS ARE ALSO OKAY
Character Evidence in Civil Cases:
Character evidence can only be admitted IF:
1) the character of the D is directly in issue (defamation, fraud, negligent entrustment)
2) can be admitted (not to prove propensity) if under a MIMIC exception (for prior bad acts)
3) if a party testifies, they automatically put their character for truth in issue (impeachment)
4) On MBE, Sexual Assault Exception: prior specific acts of sexual assault and child molestation admissible in case in chief to prove propensity (‘once rapist, always rapist’). BUT NOT IN CA.
Character Evidence in Criminal Cases:
1) Prosecution cannot submit character evidence to prove D’s propensity to commit the crime in its case in chief.
- Sexual Assault Exception: in Fed AND CA law, PRIOR SPECIFIC ACTS of sexual assault and child molestation are admissible in case-in-chief to prove propensity
2) In FED only, when evidence of V’s character has been presented, evidence of D’s character for the same trait can be presented.
3. In CA only, when evidence of V’s propensity for violence had been presented, evidence of D’s propensity for violence can be presented.
(4) In CA only, when D is accused of domestic violence P can show D has committed DV in the past.
(5) D can present evidence of good character to prove propensity, through reputation or opinion evidence.
(6) Once D has ‘opened the door,’ prosecution can rebut with evidence of bad character.
- Can cross-ex D’s character witnesses with prior specific acts, but then must ‘take the answer’ (no extrinsic evidence of specific acts). IN CA NO PRIOR SPECIFIC ACTS to prove character in civil cases; in crim cases subject to Prop 8 relevance and balancing so maybe admissible.
- Can present reputation and opinion evidence.
(7) If D testifies, it automatically places his character for truthfulness in issue.
Victim’s Character in Criminal Cases (general rule)
Except in a rape case, D can introduce reputation or opinion evidence of a bad character trait of the V when relevant to show D’s innocence.
MIMIC
Prior bad acts (including convictions) are admissible if they are relevant to some issue other than the propensity of the D.
MIMIC:
- Motive
- Intent
- absence of Mistake
- Identity (of D)
- Common scheme/plan (modus operandi)
Judicial Notice
The recognition of a fact as true without formal presentation of evidence.
Courts take judicial knowledge of indisputable facts that are either:
1) matters of common knowledge in the community (notorious facts)
2) or capable of verification by resort to easily accessible sources of unquestionable accuracy (manifest facts)
Judicial notice may be taken at any time, whether or not requested.
Judicial notice is conclusive in a civil case but not in a criminal case.
Authentication of Real Evidence
The process of identifying “real evidence” (physical evidence) as what the proponent claims it to be, by:
1) Testimony of a witness that she recognizes it as what proponent claims it is, or
2) Evidence that object has been held in a substantially unbroken chain of possession
Reproductions and Explanatory Real Evidence
Diagrams, maps, etc. that are physical but not strictly ‘of’ the crime (were created later, etc.) are admissible. However, items used ENTIRELY for explanatory purposes are permitted at trial but not usually admitted into evidence (not given to jury during its deliberations).
Maps, charts, models, etc. are admissible to illustrate testimony but must be authenticated (usually by testimony that they are faithful reproductions).
IN NY, neither the polygraph nor voice stress analyzers are admissible.
