Evidence Flashcards
What is the relevance standard?
Evidence that has any tendency to make a fact more or less probable than it would without it. Admissible unless pursuant to another rule
When can a court exclude unfairly prejudicial evidence?
If evidence’s probative value is substantially outweighed by the danger of
- unfair prejudice
- confusing the issues
- misleading the jury
- undue delay
- wasting time, OR
- being needlessly cumulative
Subsequent remedial measures, admissible?
Not admissible to show liability or negligence OR in a strict liability case
Offers to settle or compromise, admissible?
Not admissible to prove culpability, if made AFTER a claim is filed or threatened
Offers to pay medical expenses, admissible?
Not admissible to prove negligence, BUT any related statements or factual admissions are admissible
Evidence of liability insurance, admissible?
Not admissible to prove culpability, BUT is admissible to show ownership and control
How is evidence authenticated?
All evidence needs to be authenticated before being admitted.
Physical evidence - through a witness testimony OR by evidence that shows it has been held in a substantially unbroken chain of custody
Voice recordings - by anyone who has heard the person speak (first hand or electronically) AND have identified the recorded person as the speaker
When can character evidence be offered?
Can ALWAYS be offered to prove character when character is the ultimate issue in the case (ie. defamation action)
It MAY be offered as circumstantial evidence of a person’s conduct on the occasion in question, but in specific circumstances.
Character evidence in criminal cases
Defendant can always introduce evidence of his own character.
Prosecution not allowed to present evidence of the defendant’s character UNLESS the defendant presents evidence of his own character first.
Can defendant offer evidence of the VICTIMS’s character?
Yes, through reputation and opinion evidence.
If defendant does this, prosecution can provide evidence that shows
- the defendant possses the same character trait (even out), OR
- the victim has a relevant good character trait (combat)
Character evidence in rape cases
Not admissible to prove a VICTIM’S sexual behavior or sexual predisposition
How is character evidence established?
Can be proven
- on direct examination by opinion or reputation, OR
- on cross examination by opinion, reputation, or specific acts
Specific bad acts, admissible?
Generally, not admissible to show a propensity to commit the act or crime at issue. Acts include prior convictions, wrongs or prior bad acts)
When CAN specific bad acts be admissible?
To prove (MIMIC)
- Motive
- Identity
- Mistake (absence of)
- Intent
- Common Plan
Habit or routine practice, admissible?
May be admitted to prove that on a particular occasion they acted in accordance with their habit or routine practice
On what grounds can a witness be impeached?
- Prior convictions (dealing with honesty)
- Specific instances of conduc
- Prior inconsistent statements
- Character for truthfulness
- sensory deficiencies
- bias
Impeachment: Prior Convictions
Felony or misdemeanor conviction involving dishonesty is ALWAYS admissible to impeach a witness UNLESS conviction was expunged
Felonies that do not involve honesty are admissible as long as its probative value is not substantially outweighed by its unfair prejudice. Felonies over 10 yrs old is inadmissible unless its probative value outweighs its unfair prejudice
Impeachment: Specific bad acts
Witness’ credibility may be attacked on cross-examination with specific instances of conduct ONLY IF the conduct is probative of the witness’s character for truthfulness
Impeachment: Prior Inconsistent statements
Admissible on cross examination and extrinsic evidence may be used IF it is relevant to a material issue at trial and the witness has an opportunity to explain or deny the statement
Impeachment: Character for truthfulness
W credibility may be attacked or supported by testimony about reputation or opinion on character for truthfulness. Only admissible AFTER the witness’s character for truthfulness has been attacked
Witness competency
Witness must have
- personal knowledge
- present recollection
- ability to communicate
- sincerity (to tell the truth)
Refreshing a witness’s recollection
Anything can be used to refresh a witness’s recollection when the witness once had personal knowledge of the matter, but is unable to recall it.
Only the opposing party is allowed to offer into evidence the item used to refresh the recollection
Expert witness testimony, admissible?
Remember “Hot Quiznos For Cold Penguins”
Admissible when
- Helpful to jury
- Qualified as an expert
- Factual basis
- Certainty: to a reasonable degree
- Principles: based on reliable principles that were applied
What is judicial notice?
Indisputable facts that are generally known in the community OR readily capable of verification by sources whose accuracy cannot reasonably be questioned
Effect of judicial notice on criminal cases
Relieves prosecution of its burden of proving the fact, but the jury can still consider it inconclusive
Effect of judicial notice on civil cases
Judicial notice is conclusive
Best Evidence Rule
Party must provide the original document (or reliable duplicate) when a witness:
- testifies to the contents of its writing OR
- testifies to knowledge gained solely from the writing
Hearsay: general rule
An out of court statement that is offered to prove the truth of the matter asserted. ONLY admissible if it falls under an exception.
Non hearsay: general rule
An out of court statement offered to prove something OTHER THAN THE TRUTH of the statement. ALWAYS admissible
Admission by party opponent
Non hearsay. Any statement offered against a party which is made by that party
Prior statement of identification
Non hearsay. Identification of person after perceiving him. Must be open to cross examination
Adoptive admission
Non hearsay. Person’s silence may constitute admission if he heard the statement and a reasonable person would have denied the statement
Vicarious admission
Non hearsay. Statements made by an agent in scope of their employment/relationship with principal.
Prior Consistent Statement under oath
Non hearsay. Admissible only if
- statements offered against party who was present in previous trial
- same issues are involved, AND
- opposing party had the same motive and opportunity to cross examine the witness in previous trial
Hearsay exception: Declarant Unavailable Requirement
Declarant deemed unavailable as a witness if:
- is exempted from testifying due to privilege
- refuses to testify despite court order
- testifies that he does not remember the subject matter
- cannot be present because of death or illness, OR
- is beyond reach of a court’s subpoena
Hearsay exception: Present Sense Impression
Statement describing an event made by declarant while observing the event or immediately thereafter
Hearsay exception: Excited Utterance
Statement concerning an exciting/startling event made while the declarant is still under the stress of the event. There can be a slight delay between the event and statement
Hearsay exception: Business Records
Admissible if it is:
- a record of events, conditions, opinions or diagnoses
- kept in the regular course of business
- made at or near the time of the matter described
Hearsay exception: Statements During Medical Treatement/Diagnosis
Statements made concerning a present or past physical state or a person are admissible ONLY IF they were made for medical diagnosis or treatment
Hearsay exception: State of Mind
Statement of declarant’s then-existing state of mind or emotional or physical condition is admissible to prove the declarant’s state of mind or conduct
Hearsay exception: Dying Declaration
Can ONLY be used in a civil case or criminal homicide case.
Declarant does not need to actually die, but statement made by one believing he is about to die and is describing cause or circumstance leading to injury
Hearsay exception: Statement Against Interest
Statement made against one’s own penal or pecuniary interest. Only if declarant is unavailable
Hearsay exception: Public records
Records describing:
- activity of office
- observations made by someone pursuant to his duties by law
- factual findings made during an investigation pursuant to authority granted by law
Hearsay exception: Past recollection recorded
Admissible if
- witness had personal knowledge of events at one time
- witness wrote the writing, ordered it to be written or adopted it
- made while events were still fresh in the mind of witness
- writing is accurate, AND
- witness can no longer remember
What is the confrontation clause?
Sixth amendment right for criminal defendants to confront witnesses against him (even if it falls within hearsay exception.
Violation of right when:
- the statement is “testimonial”
- declarant is unavailable to be cross examined
- defendant did not have an opportunity to cross examine declarant before trial
What statements are “testimonial” in nature
- Statements made to grand juries (and in other similar situations)
- Statements made to police whose primary purpose s to collect testimony to be used at a later trial
* Note: Statements made to police where primary purpose of questioning was to assist police in an ongoing emergency are NOT testimonial
Effect of Spousal Privilege
Witness in a valid marriage at time of trial may refuse to testify against his or her spouse ONLY in a criminal case.
Witness-spouse alone holds the privilege and privilege ends after divorce
Marital communications, confidential?
They are privileged and confidential if:
- made during the course of a valid marriage, AND
- were intended to be confidential
Privilege held by both spouses and applies even after divorce.
