Evidence Flashcards
Relevant Evidence
Evidence having ANY tendency to make the existence of any fact that is of consequence to the determination of the action more or less probably than it would be without the evidence.
Admissions
Statement of a party (oral/written assertion/conduct)
Used against them by their opponent
Can be anything (words, letters, documents)
EMISSION - anything that comes out of the mouth of a party is an admission. Doesn’t have to be “I shot her”
FRE 1002: Best Evidence Rule
To prove the contents of a writing (recording, photo, x-ray) the original must be produced UNLESS shown to be unavailable.
Applies where contents are in issue (ex. where the testimony is reliant on the writing, not on personal knowledge)
Privilege Against Self-Incrimination
Testimonial in nature - only applies ON THE STAND.
Preliminary Questions of Admissibility
Questions concerning qualification of a person to be a witness, existence of a privilege, or admissibility of evidence shall be determined by the COURT.
Burden of persuasion in civil action
Preponderance of the Evidence
Burden on PLAINTIFF
Burden of persuasion in criminal action
Beyond a reasonable doubt
Burden on PROSECUTION
Habit evidence
Evidence of the habit of a person, or the routine practice of an organization is admissible to prove conduct.
Do you need corroboration for habit evidence?
NOPE.
Subsequent remedial measures
Evidence of subsequent remedial measures is inadmissible to prove negligence.
EXCEPTIONS: ownership, control
Tender years exception to hearsay
NOT a thing under the Federal Rules of Evidence.
But some states have adopted it.
Exceptions to Subsequent Remedial Measures general rule
OWNERSHIP and CONTROL
Settlement Offers
Offers to settle claim in “dispute” are INADMISSIBLE.
Admissions are NOT severed (inadmissible)
Offers to pay medical bills
Offers to pay medical expenses of another are INADMISSIBLE
Admissions ARE severed (admissible)
Character Evidence in CRIMINAL cases - Character of the Defendant
D may OPEN THE DOOR with reputation or opinion evidence (not specific acts) of his good character to prove his innocence and the prosecution MAY SO REBUT.
D has to open the door first.
Character Evidence in Criminal Cases - Character of the Victim
Where evidence of a pertinent trait of character of the alleged victim is offered by the ACCUSED (D), the prosecution MAY REBUT the same way.
Again, the D has to introduce it first.
Character Evidence in CIVIL cases - types of cases where you use it (where it’s in issue) Big 4
Defamation
Negligent Hiring
Negligent Entrustment
Child Custody
Door does NOT need to be opened. So focus on cause of action
How to approach character in CRIMINAL
Door opened? (how’s it opened? with trait, or reputation/opinion)
Trait?
Reputation/opinion
How to approach character in CIVIL
Character in issue?? (typically not, unless one of the Big 4)
Big 4?? (Defamation, Negligent Hiring, Negligent Entrustment, Child Custody)
R, O, SA (reputation, opinion, specific acts) all come in.
4 Main ways to Impeach
- Bias/Prejudice - friend
- Sensory Defects
- Prior Inconsistent Statement - which time were you lying
- Character to Impeach
Bias/ Prejudice of a witness
Bias of a witness is ALWAYS considered RELEVANT
A witness can be impeached by showing that he has a reason for lying about or misrepresenting facts bc he is:
- biased in favor of a party
- prejudiced against a party, OR
- has in interest in the outcome
Collateral Matter Rule
Excludes irrelevant extrinsic evidence
DOES NOT APPLY WHEN DEALING WITH BIAS/PREJUDICE of a witness
Prior Inconsistent Statement - when can use for substance?
Admissible substantively in 3 cases: 1. If "sworn" under FRE 801(d)(1) 2. As an admission under FRE 801(d)(2) OR 3. If a Hearsay Exception applies
Usually, how do you use prior inconsistent statement?
Usually, for IMPEACHMENT.
But can use substantively if sworn under FRE 801(d)(1), an admission under FRE 801(d)(2), or if a hearsay exception applies
Sensory Defects
Any sensory or mental defect that might affect a witness’s capacity to observe, recall, or relate the events about which the witness has testified is admissible to impeach.
Like, photo showing that the police officer couldn’t possibly have seen the D from the position they were both in (was a building between them) so couldn’t have seen what he says he saw.
Prior Bad Act Impeachment
Reputation or opinion testimony about the witness involving TRUTHFULNESS. Narrow.
Questions regarding specific instances of conduct allowed on cross-examination. Have to bring in on cross, or it’s not coming in.
Convictions to Impeach
Felony conviction
Convictions involving dishonesty or false statement
IF INVOLVES DISHONESTY, WE DON’T CARE ABOUT 403
FRE 404(b) - Mimic Rule
Evidence of other crimes, wrongs, or acts is NOT admissible to prove the character of a person in order to show action in conformity therewith. It MAY, however, be admissible for other purposes:
M - Motive I - Intent M - Absence of Mistake/Knowledge I - Identity C - Common Plan or Scheme
10 Year Rule
To bring in conviction for crime involving dishonesty or false statement - needs to have completed sentence for the conviction in the last 10 years.
10 years start AFTER the release, or the conviction itself if didn’t serve any time.
What is NOT hearsay?
Admissions
Prior Consistent Statements
Prior Identifications
Hearsay exceptions
Present Sense Impression
Excited Utterance
Dying Declaration
Business Records
Consider 403 Balancing test
Approach to hearsay
- Isolate the statement
- Determine who is the declarant
- Purpose for which the evidence is being offered:
- for its truth = hearsay
- not for its truth = NOT hearsay - Apply the hearsay exceptions
Effect on listener - NOT hearsay
FRE 803(3) Circumstantial evidence offered to show: -Knowledge -Intent -Attitude -Belief of the declarant or of the listener
Effect on the listener - Hearsay EXCEPTION
Statement of then existing state of mind or physical condition
- Intent
- Design
- Plan
- Motive
Offered for its TRUTH
Statements Made for Medical Treatment or Diagnosis
Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or external source thereof insofar as REASONABLY PERTINENT TO DIAGNOSIS OR TREATMENT.
Think - would it help a lawyer or a doctor more? If lawyer, then not going to fall under this.
FRE 803(6) - Business Record
- Report or record concerning act or event
- made at or near the time
- by a person with knowledge
- kept in the regular course of business.
Need all 4
Past Recollection Recorded
A witness can read from a writing if:
- The witness once had personal knowledge of the writing
- Witness now forgets the writing and showing the writing to the witness does not jog his memory
- Writing was either made by the witness OR adopted by the witness
- Writing was made when the event was fresh in the witness’s memory, AND
- Witness can attest that, when made, the writing was accurate
Absence of Entry in a Business Record
Lack of a record to prove that a transaction or occurrence had not taken place, is admissible if it was the regular practice of the business to record such events if they had actually occurred.
FRE 803(2) - Excited Utterance
Statement relating to a startling event made while declarant was under the stress of excitement caused by the event.
FRE 804(b)(2) - Dying Declaration
- Statement MUST concern cause or circumstances of death
- Unavailable declarant
- Criminal homicide or any civil case
- Declarant’s belief of imminent death
If the declarant is AVAILABLE - then this isn’t going to come in.
Confrontation Clause
Requires that:
-in a criminal case
-where the declarant is unavailable:
“Testimonial” evidence is INADMISSIBLE unless the D is given a prior opportunity to cross-examine the declarant.
NOT for civil cases.
What is testimonial? (Confrontation Clause)
Testimonial - primary purpose of the interrogation is to establish or prove past events relevant to later prosecution (Hammon v. Indiana)
NOT Testimonial - Primary purpose is to obtain police assistance to meet an ongoing emergency (Davis v. Washington) - so can come in without cross-examination requirement.
FRE 804(b)(3) - Declaration Against Interest
Statement of an:
- Unavailable
- Non-party (generally)
- Against interest when made (penal, pecuniary or proprietary)
FRE 804(b)(1) - Former Testimoney
Testimony from the same or different proceeding or in a deposition
Unavailable declarant
Opportunity and similar motive to develop the testimony on direct, cross, or redirect
FRE 804(b)(4) - Statement of Pedigree
A statement concerning the declarant’s own relationship by blood, adoption, or marriage or other similar fact of personal or family history.
Still need an unavailable declarant for a statement under this exception to come in.
When are LEADING QUESTIONS Appropriate??
- On cross
- Hostile or adverse witness
- Questioning children
- Refreshing a witness
- Preliminary background matters
Spousal Privilege
Protects communications BEFORE and DURING marriage (impressions/observations)
Privilege LOST at divorce
ONLY in CRIMINAL
Who holds Spousal Privilege?
Common law
Party spouse
Federal Courts (majority)
Witness Spouse
Marital Privilege
Protects communications ONLY during marriage.
Privilege SURVIVES divorce.
BOTH CIVIL AND CRIMINAL.
Who holds Marital Privilege?
Both spouses
Attorney-Client Privilege
Communications between a client and her attorney are inadmissible
Rationale - by assuring confidentiality the privilege encourages clients to make “full and frank” disclosures to their attorneys, who are then better able to provide candid advice and effective representation.
Opinion testimony test
Lay witnesses MAY offer opinion testimony if:
- opinions must be based on first-hand knowledge or perception, AND
- helpful to the finder of fact
What do you generally need for FRE 804 exceptions??
THE DECLARANT NEEDS TO BE UNAVAILABLE.
Either dead, or invokes the 5th A, outside the reach of the jdx (in Borneo or something), etc.
Prior inconsistent statements can only be admitted to provide substantive evidence or prove the truth of the matter asserted in the statement IF they are sworn statements made under oath and subject to the penalty of perjury.
TRUE OR FALSE?
TRUE.
Are prior inconsistent statements admissible for impeachment purposes?
YES. They are not hearsay if used for the purpose of impeachment.
Are statements of a past bodily condition (made by a doctor) admissible?
YES. Rule 803(4) - a statement made “for the purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain or sensation” is admissible into evidence.
Extrinsic evidence of a witness’s prior inconsistent statement is only admissible if…
if the witness has an opportunity to explain or deny the prior inconsistent statement, and the adverse party has an opportunity to examine the witness about it.
So, if you fail to cross examine a witness about a statement, can’t then introduce evidence of prior inconsistent statement.
Can you admit a certificate of conviction?
YES: FRE 803(22) allows for an otherwise hearsay certificate of conviction if: 1) the conviction is for a felony offense, AND 2) it is necessary to prove an essential element in the civil case.
