Evidence Flashcards
“relevant” evidence
Evidence is relevant if it tends to make a fact of consequence of the case more or less probable than it would be without the evidence.
relevant evidence can be excluded if “Pro SOUP”
It’s probative value is substantially outweighed by the danger of unfair prejudice
Character Evidence in CRIMINAL cases: Rule for Defendant
- Defendant: can introduce evidence of her own pertinent good character. Reputation and Opinion only. Has to be from the person who has the opinion or reputation or made about the community as a whole. *Then P can either cross this witness with reputation and opinion and specific incidences. OR may call own witness to testify about the trait in question - reputation and opinion only
- *Note P can’t address D’s character until D opens the door (except limited exception of sex assault/child molestation – and only evidence of the same)
- *Direct - reputation and opinion
- *Cross - reputation and opinion and specific instances
Character Evidence in CRIMINAL cases: Rule for Plaintiff
- P can only introduce evidence of D’s character if D offers evidence of victim’s character (homicide/self defense) or in sex assault/child molestation
(1) If D offers evidence of victim’s character - P can offer evidence that D has same character trait - *Direct - reputation and opinion
- *Cross - reputation and opinion and specific instances
(2) sex assault/child molestation - can offer evidence of D’s prior similar acts of sex assault/child mol
Self-Authenticating documents
NON-FLIPS
N - newspapers
O - official publications or records of state/fed govt
N - notarized docs (except wills)
F - foreign records (w/ US embassy certification)
L - labels, tagged, trademarked products
I - negotiable instruments and commercial paper
P - copies of public docs (certified by clerk/court)
S - docs with govt seal
Ancient Documents - requirements for being self-authenticating
- non-suspicious condition
- was in a place would likely be if authentic
- in existence for 20 years or more
Original Document Rule
When contents of the document are IN DISPUTE then original must be produced.
Copies are ok as long as authenticity isn’t disputed. Does not need to be satisfied with a minor, uncontested, collateral issue.
Original Document Rule - Exception
Original doesn’t have to be produced if its absence can be explained by A-DOPE.
A - contents judicially ADMITTED
D - it was DESTROYED or lost
O - its outside court’s subpoena jurisdiction
P - its a PUBLIC record so certified copy ok
E - original is under EXCLUSIVE possession of opposing party
Prior Recorded Recollection - admissible?
Once testifying witness acknowledges its accuracy, its contents can be read into evidence. Actual record not admitted into evidence but it can be by opposing party.
Expert Testimony on novel scientific procedures, principles, theories - Frye Test vs. Daubert Test
- Frye Test - only allowed if it has gained “general acceptance”
- Daubert Test (majority and federal) - ok if not generally accepted, judge just needs to consider CRAPE (confirmed by testing, reviewed by peers, widely accepted in profession, published, confirmed rate of error)
Leading Questions - generally only permitted on cross-examination but are allowed on direct in these circumstances:
When the witness is HAIRY
H - HOSTILE, unwilling, or bias
A - an ADVERSE party
I - witness IDENTIFIED or associated w/ the adverse party
R - witness unable to RECALL facts, need to refresh rec
Y - witness very YOUNG or old w/ a communication prob
**also ok to bring out pedigree
Prior bad acts of D - generally inadmissible by P to show character. Exceptions -
- Sexual Assault/Child Molestation cases - evidence of these prior instances ok
- MIMIC - motive, intent, mistake, identity, common plan or scheme
- *note - prior bad act always subject to Pro SOUP balancing
IMPEACHMENT - Methods
CRIB PIC C - CONTRADICTION R - bad REPUTATION for truthfulness I - prior vicious IMMORAL criminal (VIC) acts (Bad Acts) that bear on truthfulness B - BIAS P - PRIOR inconsistent statement I - INFLUENCE of drug/alcohol C - prior CRIMES
IMPEACHMENT by prior VIC acts (bad acts) that bear on truthfulness
- no extrinsic evidence allowed (even if W denies)
* can’t speak to arrest, indictment
IMPEACHMENT by prior convictions
- felonies and misdemeanors bearing on fraud/deceit - always in!
- other misdemeanors - NO
- other felonies - maybe. If against D then govt needs to show probative value outweighs unfair prejudice first. If against regular W, then YES but judge can exclude if probative value does not outweigh unfair prejudice.
* *if any of the above are more than 10 years old then not admissible unless judge weights and notice given to adverse party (10 years from conviction or release from jail, whatever is later)
