Evidence Flashcards
When can you use specific incidents of conduct as character evidence? (excluding prior convictions)
(1) In criminal cases: MIMIC (Motive, Intent, absence of Mistake, Identity, Common plan) (π must give advance notice)
(2) in civil cases, when an element of a claim or defense
(3) to x-exam a character witness (not admissible)
children as witnesses
court decided competency weighing:
(a) Intelligence
(b) Ability to distinguish between truth and falsehood. (c) Understanding importance of telling the truth
dead man statutes
A party that has a financial interest in a civil case is
prohibited from testifying about a communication or transaction with a dead person whose estate is a party to that suit, and the alleged communication is adverse to the estate. Not federal law.
When can you use prior convictions?
(i) crimes involving dishonesty –> automatically admissible (subject to 10 year limit)
(ii) other crimes
- -> ONLY if punishable by >1 year (subject to 10 year limit)
- ->if crim ∆, if prob val. outweighs prej.
Juvenile Convictions
Juvenile Convictions not admissible against crim ∆, otherwise only if (a) offered in crim case, (b) Would be admissible if an adult conviction would be admissible; and
(c) Admitting evidence is necessary for fair determination of guilt or innocence
convictions older than 10 years
If more than 10 years has elapsed since conviction or release (whichever is later), conviction is admissible ONLY if
(1) the party offering the evidence shows that probative value of the conviction SUBSTANTIALLY OUTWEIGHS the risk of unfair prejudice; AND
(2) Proponent gives reasonable notice of the intent to use the evidence to opposing counsel
Qualification of Experts
1) Witness is qualified by possessing knowledge, skill, experience, training, or education
2) Testimony is based on sufficient facts or data
3) Testimony is the product of reliable principles and methods (reasonably relied upon by experts in the field, although underlying data need not be admissible);
4) Witness applied those principles and methods to the facts of the case
Experts & Ultimate Issues
CAN give an opinion on an ultimate issue
CANNOT give an opinion on whether a criminal defendant had the requisite mental state for the crime charged
Authenticating Evidence
(a) personal knowledge
(b) distinctive characteristics
(c) chain of custody
(d) Reproductions: testimony of witness w/ personal knowledge of original
(e) x-rays & electrocardiograms:
- accurate process
- machine was working properly
- qualified operator AND
- chain of custody
Ancient Documents
(1) >20 years old
(2) In a condition that is unlikely to create suspicion about its authenticity; AND
(3) Found in a place it would likely be found.
Public Records
Recorded or filed in a public office as authorized by law; OR The document is from the office where items of that kind are kept.
Reply Letter Doctrine
Written response to an original communication; AND
Unlikely it was forged by someone else
Authenticating statements in phone conversation
i. He recognized the speaker’s voice;
ii. The speaker knew facts that only a particular person would have known;
iii. The caller dialed the number that was believed to be the speaker’s and the speaker identified himself upon answering; or
iv. The caller dialed a business and spoke to the person about regular business.
When does the Best Evidence rule apply?
The contents of a writing are at issue; OR A witness is relying on the document when testifying.
Best Evidence Rule exceptions
(1) A duplicate is admissible if produced accurately UNLESS (i) A genuine question of authenticity of the original arises; or (ii) unfair to admit the duplicate (e.g., a partial copy)
(2) Original Unavailable - Original Not Required and Duplicate Will Suffice
(i) All originals lost or destroyed
(ii) Original could not be obtained through any judicial process
(iii) Party against whom it is being offered is in control of it and fails to produce it when they
had notice the writing was needed at trial; OR
(iv) collateral matter
(3) Copies of Public Records: Must be certified OR If non-certified, there must be testimony by someone who saw the original
(4) Summaries or a Chart of an Original: Allowed if proponent makes originals or duplicates available for copy and examination OR By court order
(5) Admission by a Party Opponent
Inadmissible criminal pleas
The following are inadmissible against the defendant:
-Withdrawn guilty pleas
-Pleas of nolo contendere (no contest)
-Statements made while negotiating with the D.A.
-Statements made during plea bargaining proceedings
BUT admissible at perjury hearings
Not Hearsay
- legally operative fact
- effect on the listener
- show declarant’s state of mind
- impeachment
- prior inconsistent statements (or consistent if used to rebut)
- opposing party statement
Adoptive Admission (party opponent)
• The party was present and heard and understood the statement;
• The party had the ability and opportunity to
deny it; and
• A reasonable person who is similarly situated would
have denied the statement.
Hearsay Exceptions: Only if Declarant Unavailable
(1) Former Testimony
(2) Dying Declarations
(3) Statement against Interest (if criminal, need corroboration)
(4) Statement of Personal or Family History
(5) Forfeiture against wrongdoing
Declarant Unavailable if…
(1) Exempt on the grounds of immunity (e.g., spousal immunity)
(2) Refuses to testify, despite a court order
(3) Lacks memory of the subject matter of the statement
(4) Unable to testify due to death, infirmity, or physical or mental incapacity
(5) Absent and cannot be subpoenaed or otherwise made to appear
Hearsay Exceptions: Unavailability Irrelevant
(1) present sense impression
(2) excited utterance
(3) statements of present mental, emotional, or physical condition
(4) statements made for diagnosis or treatment
(5) recorded recollection
(6) business records
(7) public records
(8) learned treatise
(9) prior conviction
residual hearsay exception
1) Equivalent circumstantial guarantees of trustworthiness
2) It is offered as evidence of a material fact
3) It is more probative on the point than any other evidence on the point and
4) Admitting the hearsay statement will best serve the purpose of the FRE and the interests of justice.
When is a subsequent remedial measure admissible?
(1) impeachment (only to superlatives or if says hasn’t been changed since accident)
(2) to prove ownership, control, or feasibility of precautionary measures (if disputed)
(3) to defeat claim of Contrutory Negligence/Comparative Negagence
recorded recollection exception reqs
- The record is about a matter the witness once knew about
- The record was made or adopted by the witness when the matter was fresh in his mind;
- The record accurately reflects the witness’s knowledge; AND
- The witness now cannot recall the events well enough to testify, even after consulting the writing while on the stand.
(proponent may only read into evidence; opponent can admit)
