Evidence Flashcards
Judicial Notice
Appropriate when the fact is indisputable, or it can be verified through scientific principles.
Effect?
- Criminal: judge tells the jury that they may, but are not required, to accept the fact as having been proven
- Civil: is conclusively established, jury can’t reach a different decision w/r/t that fact
Documents used to refresh recollection
1) Anything can be used to refresh the recollection of a witness.
2) If you use a document to refresh recollection, you must make that document available to opposing party. She gets absolute right to introduce as E.
Character Evidence Inquiry - Generally
1) What is the purpose?
- Character directly in issue
- Character as circumstantial E of person’s conduct
- Character to impeach credibility of W
2) What method? Specific acts, opinion, or reputation
3) Type of Case? Civil or criminal
4) What trait of character?
Character Evidence - Criminal Case
1) Prosecutor cannot present any E of D’s bad character, if purpose is to show that he probably acted in conformity with that bad character and committed the crime charged.
2) D is allowed to present E (reputation or opinion) of relevant good character traits to try to establish that he acted in conformity with his good character, and did not commit the crime.
3) If D uses Rule #2, she has opened the door on this issue. Prosecutor can introduce E (reputation or opinion) of D’s bad character. Can also cross-examine good character witness about knowledge of specific bad acts.
4) E of prior bad acts may be admissible by Prosecutor to show MIAMI POP Knowledge (motive, intent, absence of mistake/accident, identity, plan, opportunity, preparation, knowledge), unless Rule 403 balancing.
5) If the D testifies, he automatically places his character trait of truthfulness at issue in that case. Prosecutor can rebut.
Character Evidence - Civil Case
1) You can’t introduce any character E to show propensity, and conformity in this case.
2) If litigant has some other purpose to introduce character E, rule #1 won’t keep it out (e.g., negligent entrustment case, defamation case). MIAMI POP Knowledge
3) Any method of proof may be used
4) If a party testifies, they automatically place their character trait of truthfulness at issue in that case.
Impeachment - Prior Inconsistent Statements
- During cross, or through extrinsic E
- If extrinsic: a) inadmissible if minor point; b) W must be given an opportunity to comment on the PIS (before or after)
Impeachment - Bias
- During cross, or through extrinsic E
- Foundation must first be laid by inquiry of the target W
Impeachment - Prior Criminal Convictions
Categories
1) Any prior conviction involving dishonesty or false statement can always be used
2) Any other felony can be used unless the judge finds it is too prejudicial
- Guideline is convictions within 10 years
During cross, or through extrinsic E
Impeachment - Prior Bad Acts
E of specific acts of misconduct that did not result in a conviction, but reflect unfavorably on W’s truthfulness
ONLY during cross
Impeachment - Contradiction
1) On cross, can always get the W to contradict himself. Even on minor points.
2) Extrinsic E will not be allowed on minor, unimportant points in the testimony.
Impeachment - Generally
1) Prior Inconsistent Statements
2) Bias
3) Prior Criminal Convictions
4) Prior Bad Acts
5) Reputation for Untruthfulness
6) Contradiction
Rehabilitation of Witness
Can present good reputation (opinion) If impeachment was for:
1) Bad reputation for truthfulness
2) Prior crimes
3) Prior bad acts
Cam present prior consistent statement to rebut express or implied charge of recent fabrication or improper influence
Hearsay - Generally
Process:
1 ) Is it hearsay under the general rule?
2) Is it nonhearsay by statute?
3) Is there an exception?
Definition: An out of court statement offered for the truth of the matter asserted.
Not offered for truth of matter asserted:
1) Verbal acts or legally operative facts
2) To show effect on person who heard or read
3) To show state of mind (capacity)
Nonhearsay even if offered for truth of the matter asserted (all involve parties/witnesses in the case):
1) admission by a party
2) PIS of a W if given under oath at a legal proceeding
3) prior identification made by a W in the current case
4) prior consistent statement to rebut charge of fabrication
Hearsay - Exceptions
Doesn’t matter whether speaker is available to testify or not
1) Present sense impression
2) Excited utterance
3) Statement showing the state of mind or physical condition of the speaker (statement about future intent)
4) Statements made for purposes of medical treatment/diagnosis
5) Recorded recollection
6) Business records
Cannot use unless the person that made the statement is unavailable to testify
7) Former testimony
8) Dying declarations
9) Statements against interest
Hearsay - Admissions (statement by a party opponent)
Admissible nonhearsay
1) Basic: Statement by a party to the action, offered by the opposing party and relevant
2) By employee: If stated within the scope of employment
3) By silence: If judge decides a reasonable person would have protested, then it is admissible as an admission by silence.
Spousal Privileges
1) Spousal Immunity: In a criminal case, a spouse cannot be forced to testify against the spouse.
2) Confidential Marital Communications: In any case, spouse can refuse to disclose, or keep a spouse from disclosing, confidential communications made during the marriage.
- Broad: Applies to civil/criminal
- Broad: Nontestifying spouse can bar
- Narrow: Only applies to confidential communications made during the marriage
401/403 Relevance Balancing
Logical Relevance - Any E that has a tendency to make a material fact more or less probable
But probative value may be substantially outweighed by:
- unfair prejudice
- confusion of the issues
- misleading the jury
- undue delay
- wasting time
- needlessly presenting cumulative E
Plaintiff’s Prior Accidents or Claims
Generally not admissible, except:
1) To show common plan or scheme of fraud; OR
2) where prior claims of accident are relevant on issue of damage to P
Authentication of Writings
Sufficient evidence to justify a jury finding of genuineness
Direct Evidence
- Admission
- Eyewitness testimony
- Handwriting proof
Circumstantial Evidence
- Ancient Document Rule (20 years)
- Solicited Reply Doctrine
Self-authenticating
- Certified copies of public or business records
- Official publications
- Newspapers
- Trade Inscriptions or Labels
- Acknowledged Documents
- Signatures on Certain Commercial Documents
Best Evidence Rule
Want to prove the content of a writing? Must either 1) produce the original; or 2) account for the absence
Applies to
- Legally operative documents
- Witness’s knowledge comes from a document
Does not apply to
- Facts independent of the writing
- Collateral documents
- Public records (copies are okay)
- Voluminous documents (can be summarized)
- Duplicates
Witness Competency
Perception, Memory, Communication, Sincerity
Dead Man Acts
Objectionable Questions
Narrative, Misleading, Compound, Argumentative
Leading (except cross-examine, preliminary matters, difficulty eliciting testimony, examining adverse party)
Recorded Recollection
W’s own writing can be used in place of W’s testimony. If foundation is proper, writing can be read into evidence
Foundation
1) W had personal knowledge at one time
2) Writing made by W, under supervision of W, or adopted by W
3) Timely made, when matter was fresh in W’s memory
4) Reliability
5) Necessity
Expert Opinion
Requirements
1) Subject matter must be appropriate for expert testimony
- Methodology must be reliable
- Opinion must be relevant
2) W must be qualified as an expert
3) Expert should possess reasonable certainty or probability regarding the opinion
4) Opinion must be supported by proper factual basis
- Facts within personal knowledge; OR
- Facts supplied to expert, in court, by evidence; OR
- Facts of the type that experts in that field would reasonably rely upon
Attorney-Client Privilege
Elements
1) Attorney and Client
2) Confidential communication
3) Professional legal relationship (intent to establish, mostly legal advice)
Exceptions
- Future crime or fraud
- Communication at issue
- Disputes between the parties
- Joint client exception
Physician/Psychiatrist Patient Privilege
1) Patient must be seeking treatment
2) Info acquired must be confidential and necessary to facilitate professional treatment
Waived if patient sues or defends by putting physical or mental condition at issue
State Law in Federal Court
1) presumptions and burdens of proof
2) competency of witnesses
3) privileges
