Evidence Flashcards
What governs evidence rules?
Federal Rules of Evidence
Evidence may be admitted if it is…
Relevant
What is Relevant Evidence?
Evidence that proves or disproves a material fact.
Direct Evidence
Evidence that involves no inferences
Circumstantial Evidence
Evidence that is indirect and relies on inference
Limited Admisibiltiy
Court can limit evidence for one purpose but not another.
Can a court exclude evidence?
Yes - if the probative value of the evidence with respect to its legitimate purpose would be substantially outweighed by danger of unfair prejudice.
Relevance Analysis
(1) Is evidence relevant?
- After saying yes, it is relevant evidence but it is otherwise thrown out under a theory below.
(2) Is the probative value of the evidence substantially outweighed by…?
- unfair prejudice, confusion of issues, misleading jury,undue delay, waster of time.
- unfair surprise NOT ALLOWED
(3) Should it be excluded for public policy reasons? (Probably inadmissible if yes)
Then evidence is admissible, provided hearsay, best evidence rules do not apply.
What elements make evidence relevant?
Must relate to time, event, or person in controversy
Exception to Relevance - Previous Occurance
Previous similar occurrences may be relevant even though it doesn’t relate in time, event or person in controversy
What are some previous occurrence exceptions to relevance?
(1) Causation concerning other time, event persons
(2) Prior false claims
(3) Previous Similar accidents or injuries
(4) Previous Similar Acts
(5) Rebutting Impossibility
(6) Sales of Similar Property
(7) Habit
(8) Business Routine
(9) Industry Custom
Previous Similar Occurrence to Show Relevance: Previous Similar Accidents or Injuries
Admissible to prove:
(1) Existence of dangerous condition
(2) D had knowledge of the dangerous condition
(3) Dangerous condition cause of the injury
Previous Similar Occurrence to Show Relevance: Habit
Admit evidence of person’s regular response, instinctiveness, automatic trait or habit to a specific set of circumstances.
Note - habit is specific, character is general
Situations where Relevant evidence should be excluded because probative value of the evidence substantially outweighed by…
unfair prejudice, confusion of issues, misleading jury,undue delay, waster of time.
unfair surprise NOT ALLOWED
Public policy reasons for excluding relevant evidence
(1) Liability insurance
(2) Subsequent remedial measures
(3) Settlement offers or negotiations
(4) Withdrawn guilty pleas
(5) Offers to pay medical expenses
Liability insurance
Inadmissible: to prove negligence
Admissible: to prove ownership or control/liability
Subsequent Remedial Measures
Inadmissible: to prove negligence, defect in design, need for warning
Admissible: to prove ownership or control, rebut claim that precautions were impossible to prove
Settlement Offers
Inadmissible: to prove or disprove validity or amount of disputed claim
Admissible: for all other purposes
Withdrawn guilty pleas
Inadmissible: For nearly all purposes
Admissible: Not admissible
Offers to pay medical bills
Inadmissible: To prove culpable conduct
Admissible: For all other purposes - Admissions of fact accompanying offers to pay medical expenses admissible.
Character Evidence
Admissible to (1) prove character when it is the ultimate issue in the case or (2) serve as circumstantial evidence of how a person probably acted.
Ways or presenting character evidence
(1) Evidence of specific acts
(2) Opinion testimony of a witness who knows the person
(3) General reputation in the community
When is character evidence admissible?
Civil: not admissible unless directly at issue (ex. defamation)
Criminal: Admissible once defendant opens the door and present evidence on his character in either REPUTATION or OPINION. Then D can
(1) cross examine D and show all three (rep, op, specfic acts), OR
(2) Bring up witness and bring up reputation OR opnion only, NO SPECIFIC ACTS
Presenting Character Evidence of Victim
Can be done - D may introduce reputation or opinion evidence of victims bad character when it is relevant to show D’s innocence. Then P may introduce evidence of victim’s good character for the same trait or D’s bad character for the same trait.
Rape Cases
Criminal: Victim’s sexual behavior outside of defendant not admissible - except to prove that someone else is the source of the semen.
Civil: Victim’s sexual behavior admissible if not prejudicial. Reputation admissible if victim puts it in controversy.
Homicide Cases
If D pleads self defense, evidence of any kind that victim was first aggressor opens door to evidence that victim had good character for peacefulness.
Specific Acts of Misconduct THAT CAN COME IN
Specific acts of misconduct generally cannot come in to prove criminal disposition of D, except for the following which show other purposes:
Admissible to prove:
(1) Motive
(2) Intent
(3) Mistake (absence of)
(4) Identity
(5) Common plan or scheme
Requirements to admit MIMIC acts
(1) Sufficient evidence that D committed prior act
(2) Probative value not substantially outweighed by danger of unfair prejudice
Judicial Notice
Recognition of a fact as true without formal presentation of evidence:
- Indisputable facts that are common knowledge in the community (notorious facts) - Indisputable facts that are capable of verification by resort to easily accessible sources (manifest facts)(ex. almanac)
Judicial Notice Civil vs. Criminal case
Civil: Fact is conclusive
Criminal: Jury not required to accept as conclusive the fact
Judicial Notice of laws
Must take notice of federal/state law/regs - may take notice of municipal ordinances and private acts of federal/state entity.
Real Evidence
Demonstrative evidence directed to trier of fact - MUST BE AUTHENTICATED - and if it can be easily tampered with must show chain of custody
Can also use balancing test to determine if it should be hauled into court room (massive physical evidence).
Documentary Evidence
Must be relevant, and writings must also be authenticated (sufficient for jury to find it genuine)
How to admit: Writing
(1) Party against whom it is offered admitted its authenticity or acted upon it as authetnic
(2) Eyewitness testimony
(3) Handwriting Verifications
- nonexpert with personal knowledge of handwriting
- expert who has compared writings
- trier of fact through comparison samples
How to admit: Ancient Document
(1) Is at least 20 years old
(2) Condition to be free of suspicion
(3) Found in place where such writing would be kept
How to admit: Photographs
Admissible only if identified by a witness as a portrayal of certain facts relevant to the issue.
If a camera with no operator - show that camera was properly operating
How to admit: Xrays
(1) Process was accurate
(2) Machine in working order
(3) Operator qualified to operate
(4) Custodial chain established
How to admit: Oral Statements
(1) Identify the speaker
If telephone:
(1) recognized other party’s voice
(2) speaker had knowledge of certain facts that only a particular person would have
(3) called a particular person’s number and a voice answered as that person or person’s residence
(4) called a business and spoke with person with knowledge of the business
How to admit: Self-authetnicating documents
No need to do anything else - they prove themselves:
(1) Public docs with seals - domestic/foreign
(2) Certified copies of public records
(3) Official publications
(4) Newspapers/periodicals
(5) Trade inscriptions
(6) Acknowledged docs
(7) Commercial papers
(8) Certified business records
Best Evidence Rule
Original writing must be produced if terms of writing are material - if no original then secondary evidence admissible.
When does Best Evidence Rule Apply?
(1) Writing is a legally operative or dispositive instrument
(2) Knowledge of a witness concerning facts from having read the document
Duplicate versus secondary evidence
Duplicate is an exact copy of an original - and admissible unless authenticity challenged.
Secondary evidence - handwritten copies, notes, oral testimony - only admissible if original or duplicate unavailable
Parol Evidence Rule
Agreement reduced to writing and it becomes the only evidence of it - prior bargaining precluded (does not preclude subsequent bargaining).
When does parol evidence rule not apply?
(1) Incomplete or ambiguous contract
(2) Reformation of Contract
(3) Challenge to validity of contract
Basic tetimonial attributes
(1) Capacity to observe
(2) Recollect
(3) Communicate
(4) Appreciate the obligation to speak truthfully
Qualifications for witness testimony
(1) personal knowledge
(2) declare he will testify truthfully
Qualifications of infant person
Depends on capacity and intelligence of the paticular child as determined by the judge
Qualifications for insane person
Can testify if he understands the obligations to speak truthfully and has capacity to testify accurately
Qualifications of judge and jury
May not testify as witness
Leading Questions are…
prohibited, unless
(1) cross-examination
(2) elicit introductory matter
(3) witness needs aid because loss of memory, immaturity, or physical/mental weakness
(4) Hostile witness
Witness memory - Refereshing Recollection
Witness can use any writing or thing for purpose of refreshing her present recollection. Cannot read from the writing.
Witness memory - Recored Recollection
Witness cannot recollect even after consulting a writing or thing. Then, only writing or thing can be used if it meets the foundation requirements:
(1) Witness had personal knowledge of the facts in the writing
(2) Writing was made by witness and adopted by witness
(3) Writing was timely made
(4) Writing is accurate
(5) Witness has insufficient recollection to testify
Opinion Testimony
Prohibited unless where it is necessary or helpful based on courts decision
Opinion by lay witness
Inadmissible, except when:
(1) rationally based on witness perception
(2) helpful to understand testimony or fact at issue
(3) not based on scientific, technical or other specialized knowledge.
Common admissible lay witness opinion testimony
(1) General appearances
(2) State of emotion (rational and irrational actions)
(3) Sense recognition (that was heavy)
(4) Voice/handwriting identification
(5) Speed of object
(6) Value of own services
(7) Intoxication
Opinion by expert witness
Admissible, provided
(1) SPECIALIZED KNOWLEDGE
(2) QUALIFIED
(3) REASONABLE PROBABILITY OF OPINION
(4) FACT SUPPORT
- Facts made known at trial
- Personal observation
- Facts not known personally but relied upon by experts in a particular field.
Limits on expert witness opinion
In criminal case - cannot give opinion on if accused’s mental state
Cross exam - can cross examine a witness concerning statements in any publication established as a reliable authority when
(1) expert on the stand
(2) Read into evidence
THEN can be used to impeach AND as substantive evidence
Cross Exam Limitations
Limited to
(1) scope of direct examination, including all reasonable inferences, and
(2) testing credibility of witness
Impeachment Definition
Casting an adverse reaction on the veracity of the witness
Accrediting or Bolstering
Can’t do it - unless witness was impeached
Impeachment - Prior Inconsistent Statements
Witness made a prior inconsistent statement. Impeach by cross-examination or extrinsic. CANNOT BE ON A COLLATERAL MATTER.
(1) Give witness opportunity to explain or deny
(2) If made under oath - can come in to impeach AND substantive proof
Impeachment - Bias
Witness has an interest in the outcome of the event. Introduce extrinsic evidence or cross exam. Witness must be asked about facts showing bias or interest before extrinsic evidence admitted.
Impeachment - Proof of Crime - Involving crime of dishonesty
(1) ANY CRIME (misdmeanor/felony) of dishonesty
(2) must be a conviction
(3) Trial court has no discretion to disallow
(4) 10 year limit from CONVICTION or DATE of release
judge can allow more than 10 years
Impeachment - Proof of Crime - Involving crimes other than dishonesty
(1) ONLY felonies
(2) Any felony
(3) Trial court has discretion to dissalow
(4) 10 year limit from CONVICTION or DATE of release
judge can allow it to be more thna 10 years
Impeachment - Bad Acts
Can inquire on probative of truthfulness - but must act in good faith and no extrinsic evidence allowed
Impeachment - Reputation for Truthfulness
Allowed
Impeachment - Sensory Deficiencies
Allowed
Impeachment - Contradictory Facts
(1) Material issue in the case
(2) Fact is significant on issue of credibility
(3) Witness volunteers testimony about a subject which opposing party would otherwise be precluded from offering as evidence
Impeachment - Collateral matter
If not relevant to the issue in the case, no impeachment allowed
Impeachment - Hearsay Declarant
Can impeach them if out of court statement introduced just as if they were there.
Rehabilitation
Impeached witness may be rehabilitated by (1) explanation on redirect, (2) Good reputation for truthfulness, (3) Prior Consistent Statements
Objection
Object before answer. No objection is considered a waiver of what would otherwise be inadmissible evidence.
Opening the Door
One who introduces evidence thereby asserts its relevance and cannot complain if adversary introduces offers other evidence on same topic
Rule of Comleteness
If introduced a part - opposing party can request the rest be introduced in fairness
Attorney-Client Privilege
Confidential communication made between attorney and client during professional consultation
Attorney-Client Privilege Where Attorney Represents both Parties
(1) Cannot claim privilege between the parties
(2) Either or both parties can claim privilege for suit with third person
Attorney-Client Privilege Does Not Apply when..
(1) Services sought to plan a crime or fraud
(2) Communication between parties claiming through the same deceased client;
(3) Breach of duty issue by attorney and dispute between client
Limitations on Attorney-Client Privilege
(1) Voluntary disclosure - only applies to disclosed material (does not apply if it was an innocent mistake).
Physician-Patient Privilege
(1) Professional relationship exists
(2) Info acquired while attending patient in course of treatment
(3) Info necessary for treatment
Physician-Patient Privilege does not apply when.
(1) Physical condition at issue
(2) Sought to aid wrongdoing
(3) Dispute between physician and patient
(4) Patient agreed by contract
(5) Fed case applying fed law
Psychotherapist/Social Worker - Patient Privilege
Clergy Privilege
Operates the same way as attorney-client privilege
Marriage Privilege - Spousal Immunity
(1) Married person whose spouse is a D in criminal case may not be called as a witness.
(2) Married person may not be compelled to testify against spouse in criminal proceeding.
MUST HAVE VALID MARRIAGE AND ONLY LASTS DURING THE MARRIAGE. ONLY BELONGS TO WITNESS SPOUSE AND CANNOT PREVENT WAIVER BY OTHER SPOUSE
Marriage Privilege - Confidential Marital Communications
Any civil or criminal case - confidential communications between spouses privileged.
ONLY APPLIES TO STATEMENTS MADE IN MARRIAGE BUT LASTS FOREVER EVEN AFTER DIVORCE. BELONGS TO BOTH SPOUSES AND CAN PREVENT WAIVER BY OTHER SPOUSE
Hearsay Definition
Out of court statement offered for the truth of the matter asserted.
When is hearsay admissible?
Only admissible if hearsay exception applies or no objection by opposing party.
Hearsay: What is a statement?
Oral or written assertion
Nonverbal conduct.
NOT HEARSAY AT ALL: What out-of-court statements are not hearsay because they are not offered for their truth?
(1) Verbal acts or legally operative facts
(2) Statements offered to show effect on listener
(3) Circumstantial evidence of declarant’s state of mind.
HEARSAY BUT FED RULES SAY THEY ARE NONHEARSAY: What statements meet the common law definition of hearsay but the Fed Rules say they are nonhearsay?
(1) Prior Statements by Witness
(2) Statements by an Opposing Party
(3) Vicarious admissions
Inconsistent Prior Statements
In court testimony different than other testimony given under penalty of perjury.
If not made under penalty or perjury - only for impeachment. If made under penalty or perjury - impeachment and substantive purposes.
Consistent Prior Statements
(1) offered to rebut witness is lying/exaggerating because of motive
(2) rehabilitate witness whose been impeached
Statements by opposing party: Judicial admission
Formal judicial admission admissible (not informal like evidentiary)
Statements by opposing party: Silence
Treated as admission (unless with police) if:
(1) party heard and understood the statement
(2) physically and mentally capable of denying
(3) Reasonable person would have denied
Hearsay Exception Definition
It is considered hearsay but the court allows it in anyway for public policy reasons.
Hearsay Exception 1: Unavailability
(1) Exempt from testifying because of privilege
(2) Refuses to testify despite court order
(3) Doesn’t remember
(4) Death/physical/mental illness
(5) Cannot be found
Hearsay Exception 2: Former Testimony
Testimony of a now unavailable witness allowed if
(1) Party against whom testimony offered was a party in the former case
(2) Same subject matter
(3) Given under oath
(4) Party against whom offered had an opportunity at the prior proceeding had opportunity to cross
Hearsay Exception 3: Statements Against Interest
May be made if now unavailable witness made the statement and it was against their interest. Criminal case requires corroborating circumstances indicating trustworthiness of statement.
Statements are only against declarant - not if the statement also implicates other parties.
Hearsay Exception 4: Dying Declaration
Admissible if unavailable witness:
(1) Declarant believed his death was imminent
(2) Statement concerned the cause or circumstances of what he believed to be his death.
ONLY available in prosectuion of homicide or civil action
Hearsay Exception 5: Statements of Personal or Family History
Admissible if unavailable witness:
(1) Declarant is a member of the family in question or intimately associated with it; and
(2) Statement based on declarant’s personal knowledge
Hearsay Exception 6: Statements Offered Against Party Procuring Declarant’s Unavailability
Admissible if unavailability of witness has engaged in wrongdoing that intentionally procured the declarant’s unavailability.
Hearsay Exception 7: Present State of Mind
Statement of declarant’s then existing state of mind, emotion, sensation, physical condition (not memory or belief) when it is at issue.
Hearsay Exception 8: Excited Utterances
Statement relating to a startling event before having time to reflect on it.
Hearsay Exception 9: Present Sense Impressions
Statement made concurrently with the sense impression of an event
Hearsay Exception 10: Declarations of Physical Condition
Statement of present bodily condition admissible - past statement now allowed.
Hearsay Exception 11: Business Records
Statement made in the regular course of business and personal knowledge of the declarant, made near the time of the transaction, and authenticated.
Hearsay Exception 12: Past Recollection Recorded
If witness memory cannot be revivied, party may introduce memo witness made near the time of the event BY READING IT ONLY.
Hearsay Exception 13: Official Records
Records of office or agency. Must have been made by public employee at or near the time of the event (ex. Police reports - officer’s statement admissible but not other hearsay in the police report).
Not admissible against the D in a criminal case.
Hearsay Exception 14: Records of Vital Statistics
Admissible if reported to a public office.
Hearsay Exception 15: Absence of Record
Statement of custodian of public records that she has searched and failed to find a record is admissible to prove that the matter was not recorded.
Hearsay Exception 16: Judgments
Always admissible to prove it was entered.
(1) Prior Criminal Conviction - felony (not misdemeanor) admissible in crim or civil to prove fact essential to judgment
(2) For crim - can only use against accused and impeachment purposes against anyone else
(3) Civil and acquittal - inadmissible
Hearsay Exception 17: Ancient Documents
Authenticated document 20 years old or more and any document affecting an interest in property
Hearsay Exception 18: Learned Treatises
(1) Relied upon by an expert witness, and
(2) Established as reliable by testimony, judicial notice, other expert.
Hearsay Exception 19: Reputation
Admissible as to (1) character, (2) family history, (3) land boundaries, (4) community’s general history.
Hearsay Exception 20: Market Reports/Family Records
Admissible.
Hearsay Exception 21: Catchall
(1) Hearsay statement trustworthy
(2) Statement strictly necessary
(3) Notice given to adverse party as to the nature of the statement
Hearsay Criminal Constitutional Issue
Hearsay statement not admitted when
(1) Offered against the accused in a criminal case
(2) Declarant is unavailable
(3) Testimonial in nature
(4) No opportunity to cross examine
What does “Testimonial” mean in relation to hearsay criminal constitutional issue?
Nontestimonial - enable police to help in an ongoing emergency.
Testimonial - establish or prove past events which may be potentially relevant in a future criminal trial.
Testimonial - affidavits, written reports, forensic analysis.
Preliminary Facts Decided by Jury
Agency
Authenticity of a document
Credibility of a witness
Personal knowledge
Preliminary Facts Decided by a Judge
Any relevant evidence even though not otherwise admissible under the rules of evidence. Hearsay exceptions Privileges Expert Testimony Mental Competence
Statements that are not hearsay under fed rules
(1) Prior statements by witnesses
(2) Admissions by party-opponent
(3) Vicarious admissions
who gives a shit about availability declarant
Heresay exceptions - Declarant Unavailable
(1) Former testimony
(2) Statements against interest
(3) Dying Declarations
(4) Statements of Personal or Family history
(5) Party procured declarants unavailability
Hearsay exceptions - Who cares about declarant
(1) Present state of mind
(2) Excited utterance
(3) Presence sense impression
(4) Declarations of Physical condition
(5) Biz records
(6) Past rec recorded
(7) Official records and writings
(8) Ancient docs
(9) Treaties/Reputation/Family records/market reports
