Evidence Flashcards
Relevance
Any tendancy to make a material fact more or less probable
All relevant evidence admissible unless a specific exclusionary rule applies or the court makes a discretionary determination that its probative value is outweighed by:
- Matter of Accuracy
- Unfair Prejudice
- Confusion of Issues
- Misleading the Jury
- Matter of Efficiency
- Undue delay
- Waste of Time
- Unduly cumulative
Evidence of Similar Occurances
- Plaintiff’s Accident History
- Generally, inadmissible character evidence.
- EXCEPTION: accidents under substantially similar circumstances or with the same instrumentality can be admitted to show:
- Existence of dangerous condition;
- Causation of the accident; or
- Prior Notice to Defendent
- Intent - evidence of similar occurances may be admissible to show intent
-
Habit - admissible to show how person acted on occasion at issue, to determine whether there is a habit, consider:
- frequency of the conduct and
- particularity of the conduct
Policy-Based Exclusions
Not admissible to prove culpability (but may be admissible for other purposes):
- evidence of liability insurance (not admissible to show fault or to prove defective design in products liability case)
- evidence of subsequent remedial measures (inadmissible to show fault)
-
Settlement negotiations (everything involved is excluded; but dispute must have commenced)
- Exception: statements made during settlement with government regulatory agency are admissible in a later criminal case
- Offers to pay medical expenses to prove liability (but, related statements still admissible)
Because we want people to do these things.
Methods of Proving Character Evidence
- Specific Acts
- Opinion
- Reputation
Not all are always admissible
Character Evidence of Defendant’s Character to Prove Conduct in Criminal Cases
- Defendant MUST OPEN DOOR FIRST (unless sexual assault/child molestation)
- If D presents evidence of defendant’s or a witness’s charater:
- opens door for evidence of D’s relevant trait
- Methods Allowed
- Cross: ANY method (including specific acts)
- Direct Exam: Reputation/Opinion ONLY
Character Evidence in Civil Cases
- Character Evidence is inadmissible to prove conduct (except where civil claim is based on sexual assault or child molestation, then defendant’s prior acts are admissible)
-
Admissible if Character is in Issue, then can be proven with any method
- Defamation; negligent entrustment; child custody; loss of consortium
MIMIC
Motive, Intent, Mistake (absence of), Identity, or Common Scheme or Plan
Specific Instances can be used to prove anything other than character
Authentication
Every item of non-testimonial evidence must be authenticated, meaning proving that it is what it claims to be.
Non-unique items can be authenticated by demonestrating the chain of custody.
Best Evidence Rule
Applies only where evidence is offered to prove the contents of writing.
Then, originals or duplicates of the writing (the best evidence) are generally required.
Excuse/Exceptions:
- lost or cannot be found with due diligence
- destroyed without bad faith
- cannot be obtained with legal process
Competency: who can testify?
- Personal Knowledge (Perception)
- Present Recollection (Memory)
- Communication
- Sincerty (Oath/Affirmation to tell the truth)
Refreshing Recollection v. Recorded Recollection
- Anything can be used to refresh (but witness must be able to look at it, and then testify without it; and, it can be reviewed and offered into evidence by opposing counsel)
- writing not put into evidence
- Recorded Recollection (a hearsay exception)
- __Witness once had a personal knowledge of the facts
- Document prepared/adopted by witness when fresh in witness’s mind
- Document was accurate when made
- Witness has insufficient recollection to testify as to the matters in the document
Expert Testimony
- testimony must be helpful
- expert must be qualified
- witness must be reasonably certain
- opinion must be supported by facts
- based on reliable principles
- need not show general acceptance, just peer reviewed and published, tested, low error rate, and reasonable level of acceptance;
Learned Treatise Hearsay Exception
LT is admissible to prove anthing stated therein if it is an accepted authority in the field
Prior Consistent Statement (and later inconsistent statement)
Prior consistent statement is not hearsay if it occured before a later bribe or inconsistent statement and is admissible for any purpose
Impeachment by Prior Inconsistent Statement
Impeachment by Prior Inconsistent Statement:
- admissible only for impeachment unless given under oath (not hearsay) (then can be substantive evidence as well)
Impeachment by Prior Felony Conviction
-
Automatically admissible if it involves dishonesty and is less than 10 years old
- Otherwise, admissible only on balance by the court
Impeachment by Misdeamonor Conviction
- Involving dishonesty
- admissible if less than 10 years old,
- irf older than 10 years, admissible on balance by court
- If not involving dishonesty then inadmissible
Impeachment by Specific Instances of Conduct/Bad Acts
AND
Evidence of Witness’s character for Truthfulness
- Specific Instances:
-
FRE:
- Witness can be asked on cross about SIC/Bad Acts that bear on character for truthfulness (nothing else)
-
FRE:
- Opinion/Reputation evidence on witness’s truthfulness is admissible
Privileges
- FRE recognizes attorney-client; spousal; pyschotherapist-patient; and social worker-client. Note, there is no doctor-patient privilege
Spousal Privileges
-
Spousal Testimonial Privilege
- Permits witness to refuse to testify against spouse in a criminal case; applies to things even before marriage; witness-spouse owns the privilege
-
Spousal Confidential Communication Privilege
- Protects confidential communicaton made during marriage; Spouse can prevent witness-spouse from testifying
Hearsay (Definition)
Out of court statement offered to prove the truth of the matter asserted
Hearsay Exemptions
Not Hearsay
-
Opposing Party Statement (Party Admission)
- Statement by party, or its agent, offered by a party opponent
- FRE: Agent’s statement must be within the scope of employment
- Statement by party, or its agent, offered by a party opponent
- Prior Inconsistent Statement given under oath
- Prior Consistent Statement prior to bribe or inconsistent statement
- Statement of Identification made after perceiveing the person
Former Testimony Exception
Testimony given in an earlier proceeding is admissible if
- the party against whom it is now offered had a opportunity and similar motive to develop testimony during the earlier proceeding; AND
- Declarant is Unavailable
Declaration Against Interest Exception
Hearsay is admissible if, at the time it was made, it was against the financial interest of the declarant or would have subjected the declarant to criminal liability
Declarant must be unavailable
Dying Declaration Exception
Hearsay statement by one believing he is about to die and describing circumstances leading to impending death is admissible in civil cases or a homicide prosecution.
Declarant Must be Unavailable
Excited Utterance Exception
Hearsay statement relating to startling event or condition is admissible when made while declarant was still under stress of excitement caused by event or condition.
Declarant need not be unavailable.
Present Sense Impression Exception
Hearsay statement is admissible if describing or explaining an event or condition made while declarant was perceiving the event or condition or immediately thereafter.
No need to show declarant unavailable.
Exception for Declaration of Then Existing Physical or Mental Condition
Hearsay statement of declarant’s then existing physical or mental condition is admissible to show the condition or state of mind.
No need to show declarant unavailable.
Exception for Statement of Past or Present Mental or Phyisical Condition made for Medical Diagnosis or Treatment
Hearsay statement regarding past or present medical condition made for pertinent medical diagnosis or treatment is admissible (but only those pertinent statements).
No need to show declarant unavailable.
Business Records Exception
Hearsay is admissible if it is (1) a record, (2) kept in the regularly conducted business activity (3) made at or near time of the matters described (4) by a person with knowledge of the facts in the at record, (5) it was regular practice of business to make such a record.
No need to show the declarant unavailable.
Public Records Exception
Hearsay record of a public office is admissible if:
- record descibes matters observed pursuant to duty imposed by law (but not police reports in criminal cases); OR
- record contains factual findings resulting from investigation made pursuant to authority granted by law
No need to show declarant unavailable.
Confrontation Clause
Even if hearsay law does not make the evidence inadmissible, the CC might make it inadmissible if an out of court statement is used against the defendant in a criminal case.
CC claws excludes out-of-court statement if declarant does not testify at trial, is now unavailable, the statement is testimonial, and defendant had no chance to cross examine when the statement was made.
Statements made to police during investigation are testimonial; statements made in dealing with an ongoing emergency are not
Judicial Notice
Court can take judicial notice if facts are (1) generally known, or (2) capable of accurate and ready determination
In a criminal case a jury may, but is not required to accept a judicially noticed facts; in a civil case, judicially noticed facts are conclusive.
