Evidence Flashcards
Relevance
Evidence is relevant if it has any tendency to make a material fact more probable or less probable than would be the case without that evidence.
Pragmatic considerations for the exclusion of evidence (6)
(1) Danger of unfair prejudice
(2) Confusing the issues
(3) Misleading the jury
(4) Undue delay
(5) Waste of time
(6) Overly cumulative
Civil cases where character is an essential element (3)
(1) Tort of negligent hiring or entrustment
(2) Tort of defamation
(3) Child custody
Non-character purposes of prior crimes/bad acts (5)
(1) Motive
(2) Intent
(3) Absence of mistake
(4) Identity
(5) Common scheme or plan
Best evidence rule
A party who seeks to prove the contents of a writing must either produce the original writing or provide an acceptable excuse for its absence. If the court finds the excuse is acceptable, the party may then use secondary evidence (oral testimony or a copy).
Dead Man’s Statute
Some states have this. Typically provides that, in a civil action, an interested witness is incompetent to testify against the estate of a decedent concerning a transaction or communication between the interested witness and decedent.
Past Recollection Recorded (5)
Requires:
(1) Showing writing to witness fails to jog memory
(2) Witness had personal knowledge at former time
(3) Writing was either made by witness, or adopted by witness
(4) Making or adoption occurred while the event was still fresh in the witness’s memory
(5) Witness can vouch for the accuracy of writing when made or adopted
Daubert factors (4)
(1) Testing of principles/methods
(2) Rate of error
(3) Acceptance by other experts in the same discipline
(4) Peer review and publication
Attorney-Client Privilege
Applies to (1) confidential communications (2) between attorney and client or representative of either (3) made during legal consultation.
Forfeiture by Wrongdoing
Hearsay is admissible if court finds by preponderance that defendant’s wrongdoing was designed to prevent the witness from testifying.
Dying Declaration
Statement made under belief of impending and certain death by a now-unavailable declarant concerning the cause or surrounding circumstances of the declarant’s death.
Business Records (5)
(1) Records of a business of any time
(2) Made in the regular course of business
(3) The business routinely keeps such records
(4) Made contemporaneously
(5) Content consists of information observed by employees of the business or a statement that falls within an independent hearsay exception
Public Records (3)
Records of a public office or agency setting forth:
(1) activities of the office or agency OR
(2) matters observed pursuant to a duty imposed by law
(3) findings of fact or opinion resulting from an investigation authorized by law (but not police reports prepared for prosecutorial purposes in criminal cases)
Lay Witness Opinion Testimony (3)
Admissible if (1) rationally based on witness’s perception; (2) helpful to a clear understanding of his testimony or helpful to the determination of a fact in issue; and (3) not based on scientific, technical, or other specialized knowledge.
Impeaching by extrinsic evidence of prior inconsistent statements (2)
(1) witness is at some point given an opportunity to explain or deny the statement and (2) adverse party is given an opportunity to examine the witness.
