Evidence Flashcards
Completeness rule
For partial introduction of evidence, adverse party may compel introduction of omitted portion to help explain admitted evidence
Limited admissibility
Evidence may be admissible for one purpose and not for another; court must restrict evidence to its proper scope
Judicial notice
Adjudicative facts (typically decided by jury) – subject to judicial notice if fact is not subject to reasonable dispute because
- Generally known within the community, or
- Can be accurately and readily determined from reliable sources
Conclusive in civil cases but not necessarily in criminal ones
Leading questions
Suggest answer within question
- Direct – not permitted unless hostile witness, needed to develop witness’s testimony, or witness struggles with communication
- Cross – no restrictions on using leading questions
Improper questions
- Compound – requires answers to multiple questions
- Assumes facts not in evidence
- Argumentative – intended to provoke rather than elicit factual response
- Calls for conclusion/opinion
- Repetitive
- Lack of foundation
Exclusion of witnesses
Party’s request or court’s initiative – court must exclude witnesses from the courtroom so that they do not hear the testimony of other witnesses, unless authorized by statute
Burden of proof
Production – legally sufficient evidence for each element of claim such that reasonable trier of fact could infer alleged fact has been proven
- Rebuttable – shifts burden to opposing party
Persuasion
- Civil – preponderance of evidence
- Criminal – beyond reasonable doubt
Relevance
Generally, all relevant evidence is admissible unless excluded by rule, law, or constitutional provision
- Relevant = probative (make fact more or less probable) + material (fact is of consequence in determining action)
IL DIS: broadened to caselaw
Rule 403
If probative value is substantially outweighed by danger of unfair prejudice, then evidence is not excluded
Curative admission of irrelevant evidence
Admitted when necessary to rebut previously admitted inadmissible evidence to remove unfair prejudice
Character evidence – civil cases
- Inadmissible to prove person acted in accordance with character on particular occasion
- Admissible when character is essential element of claim/defense (e.g., defamation, negligent hiring, child custody)
Character evidence – criminal cases/D’s character
By prosecution – not permitted to introduce evidence of D’s bad character to prove D has propensity to commit crimes so likely to have committed crime in question
By defense – permitted to introduce evidence of good character as being inconsistent with crime charged if pertinent
- Must be in form of reputation/opinion testimony
Once defendant “opens the door” (with evidence of either his good character of victim’s bad character), prosecution can attack D’s character
Character evidence – criminal cases/victim’s character
By defense – D may introduce reputation/opinion evidence when relevant to defense asserted
IL DIS: D arguing self-defense in homicide/battery case may prove victim’s violent character with specific instances but there must be conflicting evidence as to whether victim was aggressor
By prosecution – can offer rebuttal evidence of victim’s good character when D has introduced evidence of victim’s bad character
Methods of proving character
When admissible, may be proven by testimony about person’s reputation or witness opinion
MIMIC evidence
Evidence of specific acts may be introduced for any other purpose except to prove D committed the charged crime because D had propensity to commit crimes (i.e., for some non-propensity purpose) (e.g., motive, intent, absence of mistake, identity, or common plan)
Specific acts as character evidence
Civil – when character evidence is essential element, can be proven by specific acts or opinion/reputation testimony
Criminal – when character evidence is essential element, D may offer specific acts inconsistent with element
Cross-examination – witness can be asked about specific acts committed by person witness is testifying about
Habit evidence
A particular person’s routine reaction to specific set of circumstances
- Admissible to prove acted in accordance with habit on particular occasion
Witnesses
- Non-experts must have personal knowledge of matter in order to testify
- Child – can testify if able to differentiate truth from falsehood
BOLSTERING: a party cannot bolster a witness’s statement by providing consistent testimony from the same witness on direct-examination unless that witness’s credibility has been impeached
Dead Man’s statutes
Protect decedent’s estate from parties with financial interest in estate; predecessors in interest or those directly affected financially may be disqualified
NOT applicable in criminal cases
Impeachment
Challenge to witness’s testimony can be based on character for untruthfulness, bias, ability to perceive/testify accurately, contradictory prior statement, or another witness
- FRE forbids the use of extrinsic evidence to impeach a witness
Witness’s character for truthfulness
Evidence of truthful character only admissible after witness’s truthful character directly attacked
Specific instances only OK on cross-examination if probative of another witness about whose character the witness has testified
- BUT, when witness denies specific act, extrinsic evidence not admissible to attack his character for truthfulness (except for criminal convictions)
Criminal conviction
Crimes involving dishonesty/false statement can be used to impeach any witness for any conviction
Conviction NOT involving dishonesty/false statement – admissible to impeach witness only if crime is punishable by death or imprisonment > 1 year
- If witness is criminal D, admissible if probative value outweighs prejudicial effect (stricter standard)
- Other witnesses – generally admissible
Conviction > 10 years ago – admissible if probative value substantially outweighs prejudicial effect
IL DIS: no convictions more than 10 years old may be admitted
Conviction not admissible if subject to a pardon, annulment, or other action
Juvenile adjudication not admissible to impeach D; may impeach other witnesses if adult conviction would be admissible
Prior inconsistent statements
Can be used to impeach if inconsistent with material part of witness’s testimony
Extrinsic evidence only admissible if witness has chance to explain/deny and opposing party can examine
Bias or interest
Can be used to impeach witness because relevant to credibility
Sensory competence
Can be impeached for deficiency in capacities to perceive, recall, or relate information
Impeachment of hearsay declarant
Credibility of declarant can be attacked by any evidence admissible as if declarant had testified as witness
Rehabilitation of a witness
- Explain/clarify on redirect examination
- Offer prior consistent statement to rebut express/implied charge that witness lied due to improper motive/influence
Present recollection refreshed
Witness may examine any item to refresh witness’s present recollection; testimony must be based on refreshed recollection, not item
Qualified expert
- Qualified as expert by knowledge, skill, experience, training, or education
- Testimony based on sufficient facts/data
- Testimony product of reliable principles and methods
- Witness applied principles/methods reliably to facts of case, and
- Reasonable degree of certainty
Expert may state an opinion on ultimate issue as long as not about whether D had requisite mental state
Authentication
All tangible evidence must be authenticated with sufficient evidence to support finding that the thing is what its proponent claims it is
Best evidence rule
Original must be produced to prove contents of writing when contents are at issue or witness is relying on contents when testifying
- Duplicate reliable unless genuine question as to authenticity of original
Spousal privilege
Spousal immunity – married person cannot be compelled to testify against spouse in any criminal proceeding regardless of who D is
- Applies to testimony about events before/during; expires upon divorce
IL DIS: does not recognize spousal immunity
Confidential communications – communication during marriage is privileged when made in reliance on sanctity of marriage
- Begins with marriage and continues indefinitely
Attorney-client privilege
Confidential communication between client and attorney (or their agents) for the purpose of seeking legal advice of representation
- Pre-existing documents handed over to an attorney are not covered under the attorney-client privilege
Exceptions
- Crime/fraud
- Dispute between client and attorney or former co-clients
Work product – not communication but protected unless substantial need + inability to obtain by other means without due hardship
IL DIS: work-product doctrine only protects opinion work product, defined as matters that disclose an attorney’s theories, mental impressions, or litigation plans
Physician-patient privilege
Statement privileged so long as made for purpose of obtaining medical treatment
Exceptions
- Patient’s physical condition at issue
- Statement is part of crime
- Dispute between patient and physician
- FQ case
Subsequent remedial measures
Not admissible to prove negligence, culpable conduct, defective product/design, or need for warning/instruction
Admissible for other purposes such as impeachment or ownership/control
Compromise offers and negotiations
Inadmissible by either party to prove/disprove validity or amount of disputed claim or for impeachment
Admissible to prove bias or prejudice
Evidence of payment, offers, or promise to pay medical expenses
Not admissible to prove L for injury, but statements that accompany payment, offer, or promise to pay are admissible
Plea negotiation
Withdrawn guilty pleas, pleas of no contest, and statements made while negotiating plea bargain or during plea proceeding are inadmissible
Liability insurance
Inadmissible to prove whether person acted negligently or wrongfully
Admissible to prove agency, ownership/control, or witness’s bias/prejudice
Hearsay
Out-of-court statement offered to prove the truth of the matter asserted
Hearsay exclusion – prior statements
Declarant must testify at present trial to be admissible
- Prior inconsistent statement – made at prior proceeding to both impeach declarant’s credibility and as substantive evidence
IL DIS: only applies in criminal cases - Prior consistent statements – admissible to rebut express/implied charge that declarant fabricated or acted with improper motive but must have been made before witness had reason to fabricate
IL DIS: does not allow as non-hearsay - Prior statement of ID – after perceiving that person; even if witness has no memory of ID
Hearsay exclusions – opposing party’s statement
Made by party to current litigation; admissible without personal knowledge and can be in form of an opinion; need not have been against the party’s interest at the time that it was made
- Personal admission
- Adoptive admission
- Vicarious statements
Hearsay exclusions – co-conspirator admissions
Statements made by co-conspirator are admissible against that party opponent for truth of matter asserted; must show that
- Conspiracy existed;
- Declarant was member of conspiracy;
- Party opponent was member of conspiracy;
- Statement was made during course of conspiracy; and
- Statement itself was meant to promote or further ends or goals of conspiracy
Hearsay exceptions – declarant unavailable
- Former testimony – if opposing part had opportunity and similar motive to develop testimony
- Dying declaration – declarant believes death is imminent and statement pertains to cause/circumstances
- Only in homicide prosecutions and civil cases
- Need not die
IL DIS: only applies in homicide prosecutions - Statement against interest – against declarant’s proprietary/pecuniary interest at time made and reasonable person would not have made statement unless it was true
- Statement of personal/family history – birth, adoption, marriage, divorce, or other similar fact
- Statement against party that caused declarant’s unavailability
Hearsay exceptions –declarant’s availability as witness is immaterial
- Present sense impression – made while/immediately after declarant perceived event
IL DIS: no present sense impression - Excited utterance – while under stress/excitement that startling event caused
- Statement of mental, emotional, or physical condition – statement of then-existing SOM (present intent, motive, plan)
- Statement made for medical diagnosis/treatment – describing medical history or symptoms if made for purpose of diagnosis or treatment
- Recorded recollection – witness once knew; made when matter was fresh; accurately reflects knowledge; and witness states that cannot recall even after consulting record
- Business records – record must b kept in course of regularly conducted business activity; making of record was regular practice; and record was made at or near time by someone with knowledge
- Public records – statement of public office/agency
- BUT, not police in criminal cases - Learned treatises – must be reliable; not admissible
Residual exception
Catch-all exception for statement that is not otherwise covered by FRE
IL DIS: does not have this exception
