evidence Flashcards
FRE 411 liability insurance
evidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or wrongfully
when may court admit liability insurance as evidence under FRE 411
may admit this evidence for another purpose such as proving a W’s bias or prejudice or proving agency, ownership, or control
FRE 403 excluding relevant evidence for prejudice, confusion, waste of time, or other reasons
court may exclude relevant evidence if PV is SUBSTANTIALLY OUTWEIGHED by a dnager of 1or+ of the following
- unfair prejudice
- confusing the issues
- misleading the jury
- undue delay
- wasting time
- needlessly presenting cumulative evidence
if PV = low & cost = high
argue that cost substantially outweighs PV and vice versa
if PV & costs are EQUAL
admit, presumption for admission
direct evidence
- make credibility determination
- if accepted as genuine or believed to be true, necessarily establishes the point trying to be proved
circumstantial evidence
- evidence about which you have to draw inferences to reach conclusion
- conclusion does not necessarily follow from underlying premises, though they at least support evidence
circumstantial evidence requirements
- have to believe W &
2. have to infer what W is telling us
relevance v. weight
- weight = how much emphasis do we give to the evidence
- how convincing is it to the jury
relevance v. sufficiency
sufficiency = whether evidence as a whole meets the standard of proof
probative value
- evidence tending to prove existence of evidence is than that fact would be w/out evidence
- doesn’t have to be “more probable than not”
FRE 402 general admissibility of relevant evidence
relevant evidence is admissible unless any of the following provides otherwise
- US constitution
- federal statute
- these rules OR
- other rules prescribed by SC
what facts of consequence in litigation (materiality)
- what the substantive law requires you to prove in order to win
- elements of the offense/defense
- evidence doesn’t necessarily have to prove the fact, may instead prove a link in chain, link a motive by inference by proving intent
Old Chief balancing test
balance the degrees of PV and unfair prejudice for the evidence in questions and for alternative, relative evidence
FRE 103 preserving a claim of error
requires that objections to evidence be
- timely &
- state the specific ground, unless it was apparent from the context
when the court sustains an objection to evidence a party wishes to offer, the party MUST…
place on the record an indication of what the evidence would have been in order to determine whether any error “affects a substantial right of the party”
court “acting on its own motion”
court has authority to act if a party fails to object to testimony that would be inadmissible if an objection were brought
FRE 103(e) plain error
permits the appellate court to take notice of a plain error affecting a substantial right, even if the claim of error was not properly preserved
standard for FRE 403 excluding relevant evidence for prejudice, confusion, waste of time, or other reasons
requires appellate court to abuse of discretion standard for reviewing alleged error
character is generally “in issue” and admissible in the following civil actions:
1) defamation
2) fraud or deceit
3) negligent entrustment
4) tortious assault and battery when the ∆ claims he acted in self defense
when is it permissible to lead a W?
- on CE (desirable)
- on DE if W is having difficulty remembering the facts
does FRE 602 need for personal knowledge require that personal knowledge be established before the W testifies to the fact?
no, if W testifies and it is later shown that the “sufficient to support a finding” requirement has not been met, the court may strike the testmony
what may be used to refresh a W’s recollection?
there are no evidentiary rules that limit the use of a document (or anything else) to refresh a W’s recollection
what is prohibited testimony under FRE 606(b)(1) juror’s competency as a W?
- evidence of drunkenness, drug use and dealing, jurors falling asleep are not proper subjects of juror testimony
under 104(a) what do judges decide?
admissibility
- gatekeeper for conditional relevance
- PV, whether an expert is an expert, relevancy
4 hearsay dangers
- ambiguity
- sincerity
- false memory
- inaccurate perception
character
something internal to a person that tells us something about the person’s morality
if a prosecutor seeks to CE a character W by inquiring about whether the W has hear about an event inconsistent with the W’s character testimony, the prosecutor must…
show the court that it has a good faith belief that the event actually occurred
accepted methods for showing unavailability
PRIMA Privilege Refusal Inability because of death or illness Memory lapse Absence
declarant/witness prior inconsistent statement exemption from hearsay
1) W must now be CE about the prior statement
- must only be CE about the statement not the event giving rise to the statement
2) statement must be inconsistent w/ present testimony
- lack of memory
- not as in great detail
- specific statements inconsistent w/ general statements
3) must have been made during a prior proceeding or deposition
- generally agency or preliminary hearing
declarant/witness prior consistent statement exemption from hearsay
1) D testifying & available for cross
2) out-of-court statement consistent with testimony
3) offered to rebut charge of recent fabrication or improper influence or motive
4) Tome requirement that the statement was made pre-motive
declarant/witness prior identification exemption from hearsay
1) D testifying & available for corss
2) statement 1 of prior ID of a person after person perceived
3) no right to counsel violation
4) identical testifying W and D (generally not)
admission of party opponent exemption from hearsay - personal admission
1) statement of party personally
2) offered against the party-opponent
admission of party opponent exemption from hearsay - adoptive admission
1) statement of 3rd party
2) adopted affirmatively or negatively by party opponent
- affirmatively: someone walks up and says “you were right” & you nod
- negatively: someone yells “you killed him” and you are silent
3) offered against the party opponent
admission of party opponent exemption from hearsay - vicarious, authorized speaker admission
1) statement by a person authorized by party opponent to speak
2) authorization for that person to speak
3) offered against the party opponent
admission of party opponent exemption from hearsay - vicarious, agent servant admission
1) fact of agency or employment
2) statement by an agent or servant (employee) of a party opponent
3) concerning a matter w/in scope of agency or employment
4) made during the existence of the agency or employment
5) offered against the party opponent
admission of party opponent exemption from hearsay - co-conspirator admission
1) fact of conspiracy
2) statement by co-conspirator of party opponent
3) in furtherance of the conspiracy
4) made during the course of the conspiracy
5) offered against the party opponent
excited utterance exception
1) starting event or condition
2) observed by the speaker (personal knowledge)
3) causing excitement
4) statement made while speaker excited
5) statement relating to startling event
present sense impression exception
1) event or condition
2) observed by the speaker
3) statement describing or explaining event or condition
4) statement made while speaker perceiving event or condition or immediately thereafter
- generally not a particularly shocking or exciting event
present state of body exception
1) description of physical condition
2) made by the person experiencing the condition
3) while he or she is experiencing the condition
- statement reasonably relied on for treatment
- need not have been made to physician
- statements made to ambulance drivers, hospital workers, or members of family may be included
present state of mind exception
1) description of a state of mind
2) made by the person experiencing the state of mind
3) while he or she is experiencing the state of mind
business records exception
1) document reflecting acts, events, conditions, opinions, or diagnoses
2) made at or near the time of the act, event
3) by a person w/knowledge of the act or event 4) document kept in the course of regularly conducted business activity
5) document regularly made as part of that business activity
public records exception - 3 categories
1) descriptions of agency activities
2) observations of matters on which agencies other than law enforcement agencies are bound to report
3) investigative factfinding offered in a civil proceeding or against the government in a criminal case
learned treatise exception
1) W acknowledgment that the treatise is reliable authority in the field
2) read the treatise in, cannot be offered in evidence in printed form
former testimony exception
1) unavailable D
2) testimony under oath
3) party against whom offered had opportunity to develop testimony
4) party against whom offered had similar motive to develop testimony
dying declarations exception
1) unavailable D, usually by death but not always
2) homicide cases and civil cases only
3) statement has to be made while D believed his death was “imminent”
4) statement has to be made about the cause or circumstances of the death
declarations against interest
1) unavailable D
2) statement against D’s interest
- subjecting to civil or criminal liability
- contrary to pecuniary or proprietary interest
- blowing his own claim against somebody else
3) against interest at time of making
4) reasonable man would not have made unless true
5) not a 3rd party confession offered by a criminal ∆ unless corroborated
past recollection recorded exception
1) W who at one time had personal knowledge of events
2) W who today has insufficient memory of events to testify fully or accurately
3) memorandum or record reflecting the events
4) shown to have been made or adopted by W
5) shown to have been made or adopted by W at time when matter fresh in memory
W MUST BE AVAILABLE
is admission by party opponent a hearsay exception?
NO, it is non-hearsay
probative value
evidence has to make the existence of a fact more probable or less probable than it would be without the evidence
circumstantial v. direct evidence
- direct evidence which is believed as true necessarily establishes the point for which it is offered
- circumstantial requires an inference to be made
statistical evidence
judges will often not admit statistical evidence because it alone is not enough to establish a verdict
test for “truth of the matter asserted”
is the statement relevant even if false
verbal act
the very speaking of the words has a legal significance regardless of whether the person told the truth
in civil cases, is evidence of character to prove the conduct of a person in the litigated event admissible?
no - the slight probative value of character is outweighed by the dangers of prejudice and distracts the jury from the main issue
when is character evidence admissible in civil case?
only when proof of a person’s character, as a matter of substantive law, is an essential element of a claim or defense
to testify as an expert a person must have
special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates
- must possess reasonable certainty or probability regarding his opinion
when is proof of specific instances of conduct admissible?
when character is directly in issue
judicial notice
both manifest (fact that is capable of certain verification by resort to easily accessible sources of unquestionable accuracy) and notorious (facts of common knowledge in the community) facts are appropriate for judicial notice under FRE and notice of these facts must be taken if so requested by a party
when can a person not invoke the physician-patient privilege?
when that person has put his physical condition in issue, i.e. suing for personal injuries
spousal immunity
prohibits the prosecution from compelling one spouse to testify against the other in a criminal proceeding
privilege for confidential marital communications
protects communications (expressions intended to convey a message) between spouses made in reliance on the intimacy of the marital relationship
best evidence rule
applies when a party is attempting to prove the contents of a writing, recording, or photograph
proper foundation to lay to admit a photo
photo must be identified by a W as a portrayal of certain facts relevant to the issue, & verified by a witness as a correct representation of those facts
lay opinion testimony admissible when…
1) rationally based on the perception of the W
2) helpful to a clear understanding of his testimony or to the determination of a fact in issue
3) it is not based on scientific, technical or other specialized knowledge
a duplicate is admissible to the same extent as an original unless…
1) a genuine question is raised as to the authenticity of the original or
2) it would be unfair to admit the duplicate in lieu of the original
Frye standard for admissibility of scientific evidence
admissible where the device or principle from which the deduction is made is sufficiently established to have gained general acceptance in the particular field
evidence of subsequent remedial measures/repair is generally inadmissible against public policy but is admitted for limited purpose of…
showing ownership or control
first hand/personal knowledge
requires witness actually see the event
jury determines…
how much, if any, PV or weight to accord to the admitted evidence as well as issues of credibility
judge determines…
preliminary questions concerning the qualification of a W, existence of a privilege, admissibility of evidence
