Evidence Flashcards
Relevant Evidence
Relevant if evidence has a tendency to prove or disprove (probativeness) a fact of consequence to the determination of the action (materiality).
Particular piece of evidence is relevant if it makes the material fact more probably true or untrue than it would have been without that evidence.
Material Evidence
Evidence must relate to the time, event, or person involved in the present litigation to be material, and thus relevant. There are exceptions of course, such as evidencethat a person has previously filed a tort claim regarding injury to the same part of the body (which may be relevant to show the injury is not new) or evidence that shows habit (which may be used as circumstantial evidence to show that a person acted in accordance with her regular response to a specific situation).
Excluding Relevant Evidence
A trial judge has broad discretion to exclude relevant evidence if its probative value is substantially outweighed by the danger of any of the following: unfair prejudice, confusion of the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.
Character Evidence
Evidence of a person’s character may be offered as substantive evidence (not for impeachment, which is a separate topic that will be covered shortly) when character is the ultimate issue in the case or to serve as circumstantial evidence of how a person probably acted during the events at issue in the case.
Character Evidence in Criminal Cases
In a criminal case, the prosecution cannot introduce any evidence of the defendant’s bad character if the purpose of that evidence is to show that the defendant likely acted in conformity with that bad character.
However, the defendant is allowed to present evidence of his relevant good character traits, using character witnesses, to try to establish that he acted in conformity with the good character that was testified to and, therefore, that he did not commit the crime charged. He is limited to introducing reputation testimony (e.g., “Defendant has a good reputation for peacefulness in the community”) or opinion testimony (e.g., “In my opinion, Defendant is a peaceful person”) on direct examination.
If the defendant does do this, we say the defendant has “opened the door” to character evidence. This allows the prosecution to put their foot in that door and rebut with evidence of the defendant’s bad character. The prosecution can do this in two different ways. First, they can cross-examine the character witness regarding the basis for her testimony. Second, they can call their own witness to provide reputation or opinion testimony about the defendant’s bad character.
Character Evidence in Civil Cases
Character evidence is generally not admissible in civil cases unless a person’s character is the ultimate issue in the case, such as in defamation or negligent hiring cases.
Prior Acts Rule
Many people will refer to this as the “MIMIC” rule: You can use prior acts of misconduct when trying to establish motive, intent, mistake (absence of), identity, or common plan/scheme. So, if the defendant is charged with killing her husband with an antique gun, evidence that she stole the gun from a friend’s gun collection would be admissible (common plan/scheme).
Victim’s Character Evidence
The defense can also introduce reputation or opinion evidence of a bad character trait of the alleged crime’s victim when it is relevant to show the defendant’s innocence. An area where such evidence of a victim’s character is not admissible is in rape cases, due to “rape shield” legislation.
Witness Testimony
Each witness must: (1) have personal knowledge of the matter she is to testify about (i.e., the witness must have observed the matter and must have present recollection of it), and (2) declare that she will testify truthfully, by oath or affirmation.
Opinion Testimony by Lay Witnesses
Opinion testimony by lay witnesses is generally inadmissible, unless it is a situation where no better evidence can be obtained. In such an instance, opinion testimony is allowable if it is rationally based on the witness’s perception (e.g., what he heard or saw), it is helpful to either understand his testimony or determine a fact in the case, and it is not based on scientific, technical, or other specialized knowledge.
Opinion Testimony by Expert Witnesses
The expert may give an opinion if she has specialized knowledge, is qualified as an expert (by skill, education, training, etc.), possesses a reasonable probability regarding her opinion (i.e., it’s more than a guess), and if the opinion is supported by a proper factual basis. Because of the nature of what experts are called upon to testify about, they can be cross-examined with materials contained in scientific or technical publications that are considered reliable sources.
Documentary Evidence
Documentary evidence is a writing or other document the law treats like a writing, which can include things like photographs, X-rays, and recordings. As a general rule, a writing or any other evidence of its contents will not be received into evidence unless it is both relevant and has been authenticated by proof that shows the writing is what it claims to be.
Appropriate authentication may be done by having:
• A witness can testify to seeing a document executed.
• A lay witness who has personal knowledge of someone’s handwriting can give his
opinion as to whether a document is in that person’s writing.
• Some documents can be authenticated by proof that the document is over 20 years old, there is no suspicion it is not authentic, and it was found where such a document would be kept if authentic (e.g., a signed and witnessed will in a safe or a box with other important documents).
• Other documents can be self-authenticating, such as certified copies of public records or printed newspapers.
Best Evidence Rule
In proving the contents of a writing, the original writing must be produced if the terms of the writing are material. If the original is unavailable, secondary evidence (e.g., oral testimony) is admissible, but only after proper explanation of why the original cannot be produced. For example, it may not be persuasive that the original would be difficult to obtain, but it would be persuasive if the original was destroyed in a fire.
Real Evidence
Real evidence is the actual physical evidence (something you can see and inspect) that was present at the incident in question or helps explain the incident in question. In order to be admitted for consideration, the evidence must be both relevant and authenticated by the testimony of a witness that she recognizes the object as what you claim it to be (e.g., witness says that was the photo he took of the corner as the accident happened) or that the object has been held in a substantially unbroken chain of possession (e.g., a gun removed from a scene).
Real evidence also includes demonstrative evidence, which is evidence that is used to explain or understand real evidence. For example, it’s a map or diagram that helps the trier of fact understand the logistics of the crime scene, or a demonstration that shows the effect of a bodily injury.
Judicial Notice
Judicial notice is the recognition of a fact as true without a formal presentation of evidence. Some things are seen as so self-evident that we do not have to go through the time or effort of proving them to be true. One nuance here is in the conclusiveness of facts that are judicially noticed: A judicially noticed fact is conclusive in a civil case (the jury must accept the fact as true) but not in a criminal case (the jurors may accept it as true, but are not required to do so).
Testimonial Privileges
Testimonial privileges permit a person to refuse to disclose, or prohibit others from disclosing, certain types of confidential information in judicial proceedings. Some common privileges, both in practice and on the bar exam, are attorney-client, physician-patient, clergy-penitent, and the two marital privileges.
How privileges work is relatively straightforward. First, the privilege is personal to the holder, the party whose interest we are trying to protect. If the privilege is held by more than one person, each of those people can assert the privilege. Second, the communication must have been made in confidence. Note that most states will presume that a statement made in the course of a privileged relationship is privileged, even if someone eavesdropped and heard the statement. Privileges are not, however, absolute. A privilege can be waived if it is notclaimed by the holder or not objected to when the privileged testimony is offered, if the privileged content is voluntarily disclosed.
Hearsay
When talking about hearsay, what we are talking about is a witness on the stand (call her W for witness) testifying to a statement that someone (call her D for declarant) previously made. And the statement by D, as conveyed to the court by W, is being offered as substantive proof.
In approaching a hearsay question, the analysis becomes much more straightforward if you ask yourself two questions. First, is the statement being offered as proof of the matter asserted? If it is, it meets the definition of hearsay. If the statement is not offered to prove the truth of the matter asserted, but instead for one of the reasons that you will read about shortly (like to show the effect on the person hearing the statement), the statement is not excluded by the hearsay rule. Second, if the statement falls within the definition of hearsay, is it still going to be admissible because it falls under one of the recognized hearsay exclusions or exceptions?
Hearsay Exclusions
This means they are not hearsay at all.
These hearsay exclusions include:
• Prior inconsistent statements of a witness, if made under oath;
• Prior consistent statements of a witness, whether made under oath or not, to rebut a
charge that the witness is lying;
• A witness’s prior identification of a person that the witness earlier perceived; and
• Statements by an opposing party, which are also called admissions by a party-opponent (i.e., if a party made a statement, it can be offered against him by an opposing party). The rationale is that the party can hardly complain about not being able to cross-examine himself—i.e., he said it, he is stuck with it, and he can explain it at trial if he wishes.
Hearsay Exceptions If the Declarant is Unavailable
A declarant is unavailable if he can claim a testimonial privilege, he refuses to testify despite a court order compelling him to do so, he is absent or beyond the court’s reach, he claims he cannot remember anything, or he’s dead or incapable of testifying due to mental or physical incapacity.
- Former testimony
- Declarations against interest
- Dying declarations
Former Testimony Hearsay Exception
A statement given at a trial, hearing, or deposition is admissible if the party against whom the statement is offered was a party in that former action, the former action involved the same subject matter, the testimony was given under oath, and there was an opportunity for the party against whom the statement is offered to examine the declarant (direct, cross, or re-direct) in the prior action.
Declarations Against Interest Hearsay Exceptions
These statements may be admissible if they are against the declarant’s pecuniary (monetary), proprietary (ownership), or penal (subject to criminal prosecution) interest when they are made and a reasonable person would not have made the statement unless she believed that the statement was true.
Dying Declarations Hearsay Exceptions
Some statements are admissible if they are made with a belief that death is imminent and concern the cause or the circumstances surrounding the impending death. Note that this exception applies only in civil cases and criminal homicide cases, which means if you see someone charged with attempted murder you cannot have a dying declaration.
