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)
