Evidence Flashcards
Relevance
To be admissible, evidence must be both logically and legally relevant
Logical Relevance
evidence must be a fact of consequence that makes the action more or less probable.
Legal Relevance
relevant unless court determines that probative value is substantially outweighed by unfair prejudice, confusion of the issue, or a waste of time.
Conditional Relevance Categories
Liability Insurance - cannot show culpability, but can show ownership.
Subsequent Remedial Measures - cannot show culpability, but can show ownership.
Settlement Offers - inadmissible (CA + mediation inadmissible)
Offer to Pay Medical Expenses - only related statements admissible (CA all inadmissible)
CA - Expression of Sympathy - inadmissible also.
Reliability
to be admissible, evidence must be from a reliable source.
Competency to Testify
Testifying individual must have:
- Personal Knowledge (perceived thru W’s senses)
- Present Recollection
- Communication, and
- Sincerity
Testimonial Objections
ACC x2 LMU
- Argumentative
- Calls for narrative
- Compound
- Assumes facts not in evidence
- Conclusory
- Cumulative (asked and answered)
- Leading (non on direct, unless adverse W or W needs help)
- Misleading
- Unresponsive
Refreshed Recollection
If W STATES that they “Do not Remember/Recall” then can be shown documentation to refresh.
-Cannot read from document, and opposing counsel can ask to review document also.
Past Recollection Recorded
To ENTER DOCUMENT INTO EVIDENCE AND HAVE W READ from the document, must show following:
- Personal Knowledge of facts,
- Made or Adopted by W when FRESH IN MEMORY,
- Accurate when made, AND
- W CANNOT RECALL on their own.
Lay Witness Testimony
Allowed if W has personal knowledge, rationally related on their own perception, and opinion is helpful to jury.
Expert Witness Testimony
i. Qualified expert (credentials or experience)
ii. Opinion helpful to jury
iii. Believed in by W to reasonable degree
iv. Supported by proper factual basis
v. Based on proper theoretical principals –
FRE: reliable principles reliably applied (published, tested, etc)
CA: “generally accepted in field”
Authentication
All documents, writings, voices, and physical objects must be SUFFICIENT TO SUPPORT A FINDING.
- Handwriting (comparison, lay witness, expert, etc.)
- Ancient Documents found untouched (FRE - 20, CA - 30)
- Self-Authenticating Documents
- Public Records
- Photos
- Machine Generated Documents
Best Evidence Rule
To prove contents of a writing, original not needed unless due to fraudulent reasons. Duplicate allowed (handwritten allowed in CA)
Writing = documents, videos, xrays, audio recordings, disks, data
Character Evidence
Evidence that tends to show that a party’s conduct conformed to their character. This evidence is generally inadmissible in civil cases, and allowed in criminal cases ONLY if Defense opens the issue. Character can be shown by reputation or opinion, and in certain instances can be shown by specific acts.
Character Directly at Issue
if character is directly at issue, character evidence IS ALLOWED, EVEN IN CIVIL CASES.
-I.e. - Fraud, defamation, etc.
Independently Relevant Specific Acts of Misconduct
MIMIC - evidence of other crimes of misconduct are admissible if these acts are RELEVANT to SOME ISSUE OTHER THAN the defendant’s character or disposition. (SPECIFIC ACTS ONLY!!!)
- Motive
- Intent
- Mistake (absence of)
- Identity
- Common plan or scheme
Rape Shield and Sexual Assault
SPECIAL CATEGORY:
Criminal Cases - Specific Acts ONLY, and ONLY to show source of semen and/or prior sex with victim.
Civil Cases - R,O, and S admissible if probative values outweighs prejudice.
Habit
Evidence indicating that there is a regular response to a specific recurring circumstance. MUST BE SPECIFIC!!! Always admissible.
Character of Defendant (FRE)
Only admissible when Defendant opens trait by either:
1) offering good char. trait, or
2) accusing victim of trait (i.e. violence).
Rep. and Op. allowed on direct, S.A. also allowed on cross to show lack of knowledge (i.e., “did you know D did this?”).
Character of Defendant (CA)
Only admissible when Defendant opens trait by either:
1) offering good char. trait, or
2) accusing victim of trait (i.e. violence).
***CA allows S.A. of Def. to show same violent trait as victim.
Rep. and Op. allowed on direct, S.A. also allowed on cross to show lack of knowledge (i.e., “did you know D did this?”).