Evidence Flashcards
Relevance
Evidence is relevant if it tends to make the existence of any fact of consequence to the outcome of the action more probable than it would be without the evidence.
Discretionary Exclusion of Relevant Evidence
A trial judge has broad discretion to exclude relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, undue delay, or waste of time [unfair surprise is not a valid ground upon which to exclude evidence].
Liability Insurance
Evidence of insurance against liability is not admissible to show negligence or ability to pay a substantial judgment. However, it may be admissible: (i) to prove ownership or control, (ii) to impeach, or (iii) as part of an admission.
Subsequent Remedial Measures
Evidence of repairs or other precautionary measures made following an injury is not admissible to prove negligence, culpable conduct, a defect in a product or its design, or a need for warning or instruction. However, it may be admissible to: (i) prove ownership or control, (ii) rebut a claim that the precaution was not feasible, or (iii) prove that the opposing party has destroyed evidence.
Settlement Offers and Withdrawn Guilty Pleas
Evidence of compromises or offers to compromise is not admissible to prove liability for, or invalidity of, a claim that is disputed as to validity or amount. Not even direct admissions of liability during compromise negotiations are admissible. Likewise, withdrawn guilty pleas and offers to plead guilty are inadmissible. [Remember, there must be some indication that a party is going to make a claim and that claim must be in dispute as to liability or amount.]
Offers to Pay Medical Expenses
Payment of or offers to pay the injured party_s medical expenses are inadmissible. However, unlike the situation with compromise negotiations, admissions of fact accompanying offers to pay medical expenses are admissible.
Independently Relevant Specific Acts of Misconduct
Evidence of other crimes or misconduct is admissible if these acts are releveant to some issue other than the defendant_s character or disposition to commit the crime or act charged. MIMIC Motive Intent Mistake (absence of) Identity Common plan or scheme
Facts Appropriate for Judicial Notice
Courts take judicial notice of indisputable facts that are either matters of common knowledge in the community or capable of verification by resort to easily accessible sources of unquestionable accuracy. A judicially noticed fact is conclusive in a civil case but not in a criminal case. In a criminal case, the jury is instructed that it may, but is not required to, accept as conclusive any judicially notice fact.
Authentication
As a general rule, a writing or any secondary evidence of its content will not be received in evidence unless the writing is authenticated by proof that shows that the writing is what the proponent claims it is. The proof must be sufficient to support a jury finding of genuineness
Handwriting Verifications
A writing may be authenticated by evidence of the genuineness of the handwriting of the maker. This evidence may be the opinion of a nonexpert with personal knowledge or an expert who has compared the writing samples. Genuineness may also be determined by the trier of fact through comparison of samples. A nonexpert cannot become familiar with the handwriting for the purposes of testifying.
The Best Evidence Rule
To prove the terms of a writing, the original writing must be produced if the terms of the writing are material. Secondary evidence of the writing is admissible only if the original is unavailable. Applies to two classes of situations, namely where (i) the writing is a legally operative or dispositive instrument; or (ii) the knowledge of a witness concerning a fact results from having read it in the document.
Parol Evidence Rule
If an agreement is reduced to writing with the intent that it embody the full and final expression of the bargain, that writing is the agreement and hence constitutes the only evidence of it. However, the rule does not apply in the following circumstances: (a) incomplete or ambiguous contract (b) reformation of contract (c) challenge to validity of contract
Four Basic Testimonial Attributes
Witnesses must possess to some degree four basic testimonial attributes: (1) the capacity to observe (2) the capacity to recollect (3) the capacity to communicate, and (4) the capacity to appreciate the obligation to speak truthfully
Federal Rules of Competency
(i) The witness must have personal knowledge of the matter about which he is to testify; and (ii) The witness must declare he will testify truthfully. If a witness requires an interpreter, the interpreter must be qualified and take an oath to make a true translation.
Competency of an Infant
The competency of an infant depends on the capacity and intelligence of the particular child as determined by the trial judge.
Competency of the Insane
An insane person may testify, provided he understands the obligation to speak truthfully and has the capacity to testify accurately.
Competency of Judges and Jurors
The presiding judge may not testify as a witness. Likewise, jurors are incompetent to testify before the jury in which they are sitting.
Competency of an Interested Person (Dead Man Acts)
Dead Man Acts provide that a party or person interested in the event is incompetent to testify to a personal transaction or communication with a deceased, when such testimony is offered against the representative or successors in interest of the deceased. A person is interested if he stands to gain or lose by the judgment or the judgment may be used for or against him in a subsequent action.
Leading Questions
Leading questions are generally improper on direct examination. However, they are permitted: (i) On cross-examination; (ii) To elicit preliminary or introductory matter; (iii) When the witness needs aid to respond because of loss of memory, immaturity, or physical or mental weakness; or (iv) When the witness is hostile.
Improper Questions and Answers
Questions that are misleading, compound, argumentative, conclusionary, cumulative, unduly harassing or embarrassing, call for a narrative answer or speculation, or assume facts not in evidence are improper and are not permitted. Answers that lack foundation and answers that are nonresponsive may be stricken.
Use of Memoranda by Witness
A witness cannot read her testimony from a prepared memorandum. However, a memorandum may be used in certain circumstances. [Any time you encounter an exam question in which a witness consults a writing, keep in mind the differences between refreshing and recorded recollection].
Present Recollection Revived _ Refreshing Recollection
A witness may use any writing or thing for the purpose of refreshing her present recollection. She usually may not read from the writing while she actually testifies because the writing is not authenticated and not in evidence.
Past Recollection Recorded _ Recorded Recollection
Where a witness states that she has insufficient recollection of an event to enable her to testify fully and accurately, even after she has consulted a writing given to her on the stand, the writing itself may be read into evidence if a proper foundation is laid. The foundation must include proof that: (1) the witness had personal knowledge, (2) the writing was made by or adopted by the witness, (3) the writing was timely made, (4) the writing is accurate, and (5) the witness has insufficient recollection to testify fully and accurately.
Inspection and Use on Cross-Examination
Whenever a witness has used a writing to refresh her memory on the stand, and adverse party is entitled to have the writing produced at trial, to cross-examine the witness thereon, and to introduce portions relating to the witness_s testimony into evidence.
General Rule of Inadmissibility of Opinion Testimony by Lay Witnesses
Opinions by lay witnesses are generally inadmissible. However, there are many cases where no better evidence can be obtained. In most jurisdictions and under the Federal Rules, opinion testimony by a lay witness is admissible when it is: (i) rationally based on the witness_s perception, (ii) helpful to a clear understanding of his testimony or helpful to the determination of a fact in issue, and (iii) not based on scientific, technical, or other specialized knowledge.
Situations Where Opinions of Lay Witnesses are Admissible
An opinion of a lay witness is generally admissible with respect to: (1) the general appearance or condition of a person; (2) the state of emotion of a person; (3) matters involving sense recognition; (4) voice or handwriting identification; (5) the speed of a moving object; (6) the value of his own services; (7) the rational or irrational nature of another_s conduct; (8) intoxication of another.
Opinion Testimony by Expert Witnesses
An expert may state an opinion or conclusion, provided: (i) The subject matter is one where scientific, technical, or other specialized knowledge would assist the trier of fact; (ii) The witness is qualified as an expert; (iii) The expert possesses reasonable probability regarding his opinion; and (iv) The opinion is supported by a proper factual basis. The expert_s opinion may be based on one or more of three possible source of information: (1) personal observation, (2) facts made known to the expert at trial, or (3) facts not known personally but supplied to him outside the court room and of a type reasonably relied upon by experts in his field.
Opinion on Ultimate Issues
Under the Federal Rules, an expert may render an opinion as to the ultimate issue in the case. However, in a criminal case in which the defendant_s mental state constitutes an element of the crime or defense, and expert may not, under the Federal Rules, state an opinion as to whether the accused did or did not have the mental state in issue.
Authoritative Texts and Treatises
An expert may be cross-examined concerning statements contained in any publication established as reliable authority either by the testimony of this expert or another expert, or by judicial notice. Under the Federal Rules, these texts and treatises can be used not only to impeach experts, but also as substantive evidence, subject to the following limitations: (1) an expert must be on the stand when an excerpt is read from a treatise; and (2) the relevant portion is read into evidence but is not received as an exhibit.
Restrictions on Scope of Cross-Examination
Cross-examination is generally limited to: (i) the scope of direct examination, including all reasonable inferences that may be drawn from it, and (ii) testing the credibility of the witness.
Collateral Matters
The cross-examiner is generally bound by the answers of the witness to questions concerning collateral matters. Thus, the response may not be refuted by extrinsic evidence. However, certain recognized matters of impeachment, such as bias, interest, or a conviction, may be developed by extrinsic evidence because they are sufficiently important. The trial court has considerable discretion in this area.
Accrediting or Bolstering
Generally, a party may not bolster or accredit the testimony of his witness until the witness has been impeached. However, in certain cases, a party may prove the witness made a timely complaint or a prior statement of identification. The prior identification may also serve as substantive evidence that the identification was correct.
Any Party May Impeach
Under the Federal Rules, a witness may be impeached by any party, including the party calling him. [When a question involves a party impeaching his own witness, be sure to avoid the following wrong answer choices reflecting the traditional rule, which prohibits impeaching your own witness unless the witness: (i) is an adverse party or identified with an adverse party; (ii) is hostile and affirmatively uncooperative; (iii) is one whom the party is required by law to call; or (iv) gives surprise testimony that is affirmatively harmful to the party calling him.
Impeachment Methods
A witness may be impeached either by cross-examination or by extrinsic evidence. Certain grounds for impeachment require that a foundation be laid during cross-examination before extrinsic evidence can be introduced. Other grounds allow impeachment to be accomplished only by cross-examination and not by extrinsic evidence.
Prior Inconsistent Statements
A party may show, by cross-examination or extrinsic evidence, that the witness has, on another occasion, made statements inconsistent with his present testimony. To prove the statement by extrinsic evidence, a proper foundation must be laid and the statement must be relevant to some issue in the case.
Foundation for Extrinsic Evidence of Prior Inconsistent Statements
Extrinsic evidence can be introduced to prove a prior inconsistent statement only if the witness is, at some point, given an opportunity to explain or deny the statement. The exception to the rule is that inconsistent statements by hearsay declarants may be used to impeach despite the lack of foundation. Under the Federal Rules, foundation requirements may be dispensed with where the interests of justice require.
Evidentiary Effect of Prior Inconsistent Statements
Usually, prior inconsistent statements are hearsay, admissible only for impeachment purposes. If, however, the statement was made under oath at a prior proceeding, it is admissible nonhearsay and may be admitted as substantive evidence of the facts stated.
Bias or Interest
Evidence that a witness is biased or has an interest in the outcome of a suit tends to show that the witness has a motive to lie. Before a witness can be impeached by extrinsic evidence of bias or interest, he must first be asked about the facts that show bias or interest on cross-examination.
Conviction of a Crime Involving Dishonesty
A witness may be impeached by proof of a conviction for any crime, felony, or misdemeanor, requiring an act of dishonesty or false statement. A pending review or appeal does not affect the use of a conviction for impeachment. The court has no discretion to bar impeachment by these crimes.
Conviction of a Felony Not Involving Dishonesty
A witness may also be impeached by a felony that does not involve dishonesty, but the court has discretion to exclude it if: (1) the witness being impeached is a criminal defendant, and the prosecution has not shown that the conviction_s probative value outweighs its prejudicial effect; or (2) in the case of all other witnesses, the court determines that the conviction_s probative value is substantially outweighed by its prejudicial effect.
Remote, Juvenile, and Constitutionally Defective Convictions Not Admissible
Generally, if more than 10 years have elapsed since the date of conviction or the date of release from confinement (whichever is later), the conviction is inadmissible. Juvenile convictions are similarly inadmissible. A conviction obtained in violation of the defendant_s constitutional rights is invalid for all purposes, including impeachment.
Effect of Pardon
A conviction may not be used to impeach a witness if the witness has been pardoned and (i) the pardon is based on innocence, or (ii) the person pardoned has not been convicted of a subsequent felony.
No Foundation Required for Extrinsic Evidence of a Conviction
A prior conviction may be shown by either direct or cross-examination of the witness or by introducing a record of judgment. No foundation is necessary.
Specific Instances of Misconduct _ Bad Acts
Under the Federal Rules, subject to discretionary control of the trial judge, a witness may be interrogated upon cross-examination with respect to an act of misconduct only if the act is probative of truthfulness. However, the cross-examiner must inquire in good faith. Extrinsic evidence of bad acts to prove misconduct are not permitted.
Opinion or Reputation Evidence for Truthfulness
A witness may be impeached by showing that he has a poor reputation for truthfulness. This may include evidence of reputation in business circles as well as in the community in which the witness resides. Under the Federal Rules, an impeaching witness may state his own opinion as to the character of a witness for truthfulness.
Sensory Deficiencies
A witness may be impeached by showing, either on cross-examination or by extrinsic evidence, that his faculties of perception and recollection were so impaired as to make it doubtful that he could have perceived those facts. A witness may also be impeached by showing that he had no knowledge of the facts to which he testified.
Contradictory Facts
Extrinsic evidence of facts that contradict a witness_s testimony may sometimes be admitted to suggest that a witness_s mistake or lie on one point indicates erroneous or false testimony as to the whole. Extrinsic evidence of contradictory facts to impeach is permitted where: (i) the witness_s testimony on a particular fact is a material issue in the case, (ii) the testimony on a particular fact is significant on the issue of credibility, or (iii) the witness volunteers testimony about a subject as to which the opposing party would otherwise be precluded from offering evidence. However, extrinsic evidence is not permitted to prove contradictory facts that are collateral.
Impeachment on Collateral Matters
Where a witness makes a statement not directly relevant to the issue on the case, the rule against impeachment on a collateral matter applies to bar his opponent from proving the statement untrue either by extrinsic evidence or by a prior inconsistent statement.
Impeachment of Hearsay Declarant
Under the Federal Rules, the credibility of someone who does not testify but whose out-of-court statement is introduced at trial may be attacked by evidence that would be admissible if the declarant had testified as a witness. The declarant need not be given the opportunity to explain or deny a prior inconsistent statement. In addition, the party against whom the out-of-court statement was offered may call the declarant as a witness and cross-examine him about the statement.
Rehabilitation of an Impeached Witness
A witness who has been impeached may be rehabilitated by: (i) Explanation on Redirect. The witness on redirect may explain or clarify facts brought out on cross-examination. (ii) Good Reputation for Truthfulness. When the witness_s character for truth and veracity has been attacked, other witnesses may be called to testify as to a reputation or opinion of truthfulness. (iii) Prior Consistent Statement. If the testimony of a witness has been attacked by an express or implied charge that the witness is lying or exaggerating because of some motive, a previous consistent statement is admissible to rebut this evidence.
General Objections
A sustained general objection (one that does not state the grounds of the objection) will be upheld on appeal if there was any ground for the objection. An overruled general objection will be upheld on appeal unless the evidence was not admissible under any circumstances for any purpose.
Specific Objections
A sustained specific objection, which states the reason for the objection, will be upheld on appeal only if the ground stated was correct or if the evidence excluded was not competent and could not be made so.
Opening the Door
One who introduces evidence on a particular subject thereby asserts its relevance and cannot complain if his adversary thereafter offers evidence on the same subject.
