Evidence Flashcards
What is hearsay?
An out-of-court statement offered to prove the truth of the matter asserted
A statement is either an (1) oral or written assertion, or (2) nonverbal conduct considered an assertion (i.e. nod of the head)
Ask: does it matter whether the declarant is telling the truth? If not, then it is not hearsay
What type of statements are not hearsay?
Verbal acts or legally operative facts (e.g. words of contract, defamatory words)
Statements offered to show their effect on the listener or reader (e.g. to prove notice in negligence cases)
Statements offered as circumstantial evidence of a declarant’s state of mind (e.g. evidence of insanity or knowledge)
What statements qualify as nonhearsay (hearsay exclusions)?
Prior statement by a witness
- Prior consistent statement
- Prior inconsistent statement
- Statement of identification
Admission by party-opponent
- Admission
- Adoptive admission
- Vicarious admission
What are the rules for a prior statement by a witness?
A prior statement by a testifying witness who is subject to cross-examination is not hearsay for prior inconsistent statements; prior consistent statements; statements of identification
Remember these hearsay exclusions apply to statements of testifying witnesses only; they do not apply to nontestifying declarants.
What are the rules for a prior inconsistent statement by a testifying witness?
The prior statement is inconsistent with the declarant’s in-court testimony and was given under penalty of perjury in a prior proceeding
A witness’s prior inconsistent statement made at a deposition is not hearsay because the statement was made under oath. Prior inconsistent statements made under penalty of perjury at a prior trial or proceeding, or in a deposition, are not hearsay under the Federal Rules.
A testifying witness’s prior inconsistent statement made at a deposition is not hearsay because the statement was made under penalty of perjury. Prior inconsistent statements made under oath at a prior trial or proceeding, or in a deposition, are considered nonhearsay under the Federal Rules as long as the declarant is testifying and subject to cross-examination
What are the rules for a prior consistent statement by a testifying witness?
The prior statement is consistent with the declarant’s in-court testimony and is (1) offered to rebut a charge that the witness is lying or exaggerating because of some motive (and the statement was made before any motive to lie or exaggerate arose), or (2) offered to rehabilitate a witness whose credibility has been impeached on some other ground (other than a general attack on the witness’s character for truthfulness), such as an inconsistency or sensory deficiency
A witness’s prior consistent statement is not hearsay if offered to rebut a charge that the witness is lying for a particular motive. This is regardless of whether it was made under penalty of perjury.
What is the rule for prior statement of identification made by the testifying witness?
The prior statement is one of identification of a person as someone the witness perceived earlier, even if the witness cannot remember the identification
What is a statement of an opposing party?
A statement by an opposing party/an admission of a party opponent
A statement that need not be against the declarant’s interest when made, and may even be in the form of an opinion.
Includes adoptive admissions and vicarious admissions
When is a statement an adoptive admission?
An adoptive admission is a statement from another that is expressly or impliedly adopted by the party opponent
- If a reasonable party would have responded, and the party opponent remains silent, his silence may be considered an implied admission. Silence is treated as an admission only if:
- The party heard and understood the statement
- The party was physically and mentally capable of denying the statement, and
- A reasonable person would have denied the accusation
Silence in the face of police accusations in a criminal case is almost never considered an admission of a crime
When is a statement a vicarious admission?
When a statement is made by an authorized spokesperson, an agent of a principal, a partner in matters concerning the partnership, a co-conspirator, joint tenants
Statements of co-parties are inadmissible
Before admitting a vicarious admission, the court must make a preliminary determination of the declarant’s relationship with the party against whom the statement is offered. The court must consider the contents of the statement; the statement alone is not sufficient to establish the required relationship
What hearsay exceptions apply when the declarant is unavailable?
Former testimony
Statements against interest
Dying declarations
Statements of personal or family history
Statements offered against a party procuring declarant’s unavailability
When is a declarant unavailable?
When he:
- Is exempt from testifying because of privilege,
- Refuses to testify concerning the statement despite a court order
- Testifies that he does not remember the subject matter
- Is unable to testify due to death or physical or mental illness, or
- Is absent (beyond the reach of the court’s subpoena), and the proponent is unable to procure his attendance by reasonable means
What is a statement against interest?
A statement against the declarant’s pecuniary, proprietary, or penal interest when made
(i) The statement must have been against pecuniary, proprietary, or penal interest when made, such that a reasonable person in the declarant’s position would have made it only if she believed it to be true.(ii) Declarant must have had personal knowledge of the facts.(iii) Declarant must have been aware that the statement is against her interest and she must have had no motive to misrepresent when she made the statement.(iv) Declarant must be unavailable as a witness.
What is former testimony?
Statement made under oath at same or at other proceeding at which the party against whom it is offered had motive and opportunity to develop testimony
For the former testimony exception to apply there must be a sufficient “identity of parties.” The requirement of identity of parties does not mean that parties in the current case on both sides of the controversies must be the same as in the prior case. It requires only that the party against whom the testimony is offered or, in civil cases, the party’s predecessor in interest was a party in the former action. The former testimony must have been given under oath or sworn affirmation. The former testimony is admissible upon any trial in the same or another action of the same subject matter. The cause of action in both proceedings need not be identical; only the “subject matter” of the testimony needs to be the same. The party against whom the former testimony is offered (or a predecessor in civil cases) must have had the opportunity to develop the testimony at the prior proceeding by direct, cross, or redirect examination of the declarant. Thus, defendant must have been able to question the declarant about the statement in the prior case.
What is a dying declaration?
Statement made while declarant believed death was imminent, concerning the cause of circumstances of the impending death
the exception for dying declarations is available only in civil actions and homicide prosecutions.
For the dying declaration exception to apply, the declaration cannot merely concern any subject; rather, it must concern the cause or circumstances of what the declarant believed to be his impending death. The exception is not strictly limited to identification of the perpetrator of the declarant’s injuries. It applies to the cause or circumstances, which could be more than just who did it, e.g., it could be how he was mortally wounded even if he did not know by whom.
What is a statement of personal or family history?
Statement of personal or family history (e.g. birth, death, marriage) made by a family member or one intimately associated with the family
What is a statement offered against party procuring declarant’s unavailability?
Statement of unavailable declarant offered against the party who intentionally procured declarant’s unavailability
What is the present state of mind exception?
A statement of then-existing state of mind, emotion, sensation, or physical condition (usually introduced to establish intent. Admissible when state of mind is a material issues or to show subsequent acts of declarant).
Declarations of existing state of mind are admissible (i) when declarant’s state of mind is directly in issue, or (ii) if they are declarations of intent offered to show subsequent acts of the declarant.
What is an excited utterance?
Statement made while under stress of excitement of startling event
Must be made while still under stress of the event (before declarant has time to reflect on the event)
What is a present sense impression?
Statement made concurrently with perception of event described
The event need not be startling
Must be made while or immediately after perceiving the event
What is a statement for medical diagnosis or treatment?
Statement of past or present physical condition, or the cause of the condition, made for the purpose of diagnosis or treatment
Usually a declarant describing her own condition, or usually statements made to medical personnel
Declarations of past physical conditions made to a doctor employed to testify are admissible
Statements of fault or wrongdoing connected with medical diagnosis are inadmissible (i.e. “I was stabbed with a knife; my roommate did it” - the first portion of the statement is admissible but the second portion is inadmissible)
Declarations of past physical condition are admissible only if made to assist in diagnosing or treating the condition. It is not enough to make such a declaration for any reason at all (e.g., complaining to a friend). There is no requirement that a declaration of past bodily condition be made in an emergency situation. A declaration made at a routine office visit could be admissible if made to assist in diagnosing or treating the condition.
What is a business record?
A writing made in the regular course of business, consisting of matters within the personal knowledge of one with a business duty to make or transmit information.
Lack of such writing may be used to show the nonoccurrence of an event
The Federal Rules have dealt with the problem of records prepared “in anticipation of litigation” by granting the trial court discretion to exclude any business record if the opponent shows that the source of information or other circumstances indicate the record lacks trustworthiness.
Also, the record must consist of matters within the personal knowledge of the entrant or within the personal knowledge of someone with a business duty to transmit such matters to the entrant
What are public records and reports/records of vital statistics?
Records and reports of public agencies regarding their activities and records of births, deaths, marriages, etc. Absence of public record is admissible to show nonexistence of a matter
What are judgments?
Copies of a judgment of a prior felony conviction is admissible in civil or criminal court to prove any fact essential to the judgment. In a criminal case, it may be used for this purpose only against the accused
However, prior acquittals are not admissible under the public records exception.
The Federal Rules specifically provide that judgments of felony convictions are admissible as exceptions to the hearsay rule in both criminal and civil actions to prove any fact essential to the judgment. Note, however, that the rules barring character evidence still apply.
What are ancient documents?
Statements in authenticated documents prepared before January 1, 1998
What are documents affecting property interests?
Statements in a document affecting an interest in property (i.e. a deed, will)
What are learned treatises?
Statements from authoritative works admitted if called to attention of expert witness and established as reliable authority
Or established as reliable authority by judicial notice.
What are reputation statements?
Reputation evidence concerning a person’s character, personal or family history, or land boundaries, or a community’s general history
What are family records?
Statements of fact found in family Bibles, jewelry, engravings, tombstones, etc.
What are market reports?
Market reports and public compilations generally relied on by the public or persons of a particular occupation
What is the residual “catch all” exception?
(1) The statement possesses circumstantial guarantees of trustworthiness,
(2) The statement be strictly necessary, and
(3) Notice be given to the adverse party of the nature of the statement
When does the Confrontation Clause bar statement to be admitted?
(1) The statement is offered against the accused in a criminal case,
(2) The declarant is unavailable,
(3) The statement was “testimonial” in nature, and
(4) The accused had no opportunity to cross-examine the declarant’s testimonial statement prior to trial
What is a testimonial statement?
Statements made in the course of police investigation
- Testimonial - when the primary purpose of the interrogation is to establish or prove past events potentially relevant to a later criminal investigation (e.g. statements to police describing a crime after it has concluded)
- Nontestimonial - statements made to enable the police to help in an ongoing emergency (e.g. 911 call during ongoing crime)
Affidavits or written reports of forensic analysis
- Testimonial - reports that summarize the findings of forensic analysis and have the effect of accusing a targeted individual of criminal conduct (e.g. fingerprint test results)
- Inadmissible unless the defendant previously had an opportunity to cross-examine the author of the report
Who has the burden of producing evidence?
The party who has the burden of pleading usually has the burden of producing evidence sufficient to make a prima facie case
- Prima facie - create a fact question of the issue for the trier of fact
Once the party has satisfied the burden of going forward with evidence, it is incumbent upon the other side to come forward with evidence to rebut the accepted evidence
Who has the burden of persuasion (proof)
The party who has the burden of persuasion also has the burden of proof
- After the party has met the burden of persuasion, the question becomes whether the party satisfied its burden of proof
For civil cases, the burden is usually by a preponderance of the evidence (more probable than not)
Some civil cases require clear and convincing evidence
For criminal cases, the burden is beyond a reasonable doubt
What is a presumption?
A rule that requires that a particular inference be drawn from an ascertained set of facts.
The effect of a presumption is it shifts the burden of production to the party against whom the presumption operates (a rebuttable presumption)
It does not shift the burden of persuasion
A presumption is overcome or destroyed when the adversary produces some evidence contradicting the presumed fact (rebutting the presumption)
When is opinion testimony admissible by a lay witness?
General appearance or condition of a person
State of emotion
Sense recognition
Voice or handwriting identification
Speed of moving objects
Value of his own services
Rational or irrational nature of another’s conduct
Intoxication of another
What are the general rules for a witness to testify on a matter?
(1) The witness has personal knowledge of the matter, and
(2) The witness declares he will testify truthfully
What is a present recollection refreshed?
Any writing may be used to refresh a witness’s memory (a photograph may also be used)
The witness cannot read from the writing while testifying
There is no hearsay problem because the writing is not introduced into evidence
What is a past recollection recorded?
Introduction of a writing that meets the following foundational requirements:
- The witness had personal knowledge of the facts in the writing
- The writing was made by the witness or under her direction, or adopted by the witness
- The writing was timely made when the matter was fresh in the witness’s mind
- The writing accurately reflects the witness’s knowledge
- The witness has insufficient recollection to testify fully and accurately
The writing is read into evidence
- But is not received as an exhibit for admission into evidence unless introduced by the adverse party
This is hearsay but falls within a hearsay exception
What is spousal immunity?
One spouse cannot be compelled to testify against the other spouse in any criminal proceeding
Only the witness-spouse may invoke spousal immunity (i.e. the party-spouse cannot prevent the witness spouse from testifying)
The privilege can be claimed only during marriage, but covers information learned before and during marriage
What are confidential marital communications?
Communications made in reliance upon the intimacy of the marital relationship are privileged. The privilege applies in both civil and criminal proceedings
Both spouses have the privilege not to disclose, and to prevent the other from disclosing, a confidential marital communication
The privilege survives the marriage, but covers only statements made during the marriage
When is evidence relevant?
Probativeness: If it has any tendency to make the existence of any fact of consequence more probable or less probable than it would be without the evidence
Is the evidence probative of a material issue
Is the probative value substantially outweighed by the danger of unfair prejudice, confusion, or misleading the jury
Unfair surprise is not a valid ground for excluding evidence
What is character evidence?
Evidence submitted for the purpose of proving that a person acted in a particular way on a particular occasion based on the character or disposition of that person
When is character evidence admissible?
May be offered as substantive evidence to (1) prove character when it is the ultimate issue in the case, or (2) serve as circumstantial evidence of how a person probably acted
What types of character evidence are admissible?
Evidence of specific acts
Opinion testimony of a witness who knows the person, and
Testimony as to the person’s general reputation in the community
What are the rules for admission of character evidence in a criminal case?
The prosecution cannot initiate evidence of bad character of the defendant merely to show the defendant is more likely to have committed the crime (cannot be used to show propensity)
The accused may introduce evidence of her good character to show innocence of the alleged crime (open the door)
- But the prosecution may rebut evidence of the accused’s good character
How can the accused prove character?
A witness for the defendant may testify as to the defendant’s good reputation for the trait in question and may give personal opinions concerning that trait
If the defendant takes the stand, he does not put his character at issue
Instead, he puts his credibility at issue (i.e. the prosecution is limited to impeachment evidence)
How does the prosecution rebut defendant’s character evidence?
Cross examining the character witness regarding the basis of the testimony, including if he knows or has heard of specific instances of the defendant’s conduct
- The prosecution may not introduce any extrinsic evidence
Calling its own witness to testify to the defendant’s bad reputation or give their opinion of the defendant’s character
What are the rules for introducing character evidence of the victim?
The defendant may introduce evidence of the victim’s reputation or opinion evidence of a bad character trait when relevant to show the defendant’s innocence
- Never admissible in sexual assault cases
Often becomes relevant when the defendant claims self-defense to show the victim was the aggressor
The prosecution may then rebut with reputation or opinion evidence of (1) the victim’s good character or (2) the defendant’s bad character for the same trait
What are the rules for character evidence for rape victims?
Evidence to prove sexual behavior or sexual misconduct is generally inadmissible
May be admissible to show someone other than defendant is the source of semen, injury, or other physical evidence
Specific instances of sexual behavior between the victim and the accused are admissible by the prosecution for any reason and by the defense to prove consent
In civil cases, it may be admissible if probative value substantially outweighs unfair prejudice or danger of harm to the victim
What are the rules for victim’s character of peacefulness in a homicide case
In a homicide case where the defendant pleads self-defense, evidence that the victim was the first aggressor opens the door to evidence that the victim had good character for peacefulness
- Can be introduced regardless whether the defendant introduced character evidence of the victim’s generally violent propensity
Is character evidence admissible in civil cases?
Generally no
Exception when character is directly at issue (e.g. defamation)
Is character evidence admissible in civil cases?
Evidence that describes a person’s regular response to a specific set of circumstances
When are specific acts of misconduct admissible?
Inadmissible to show propensity, criminal disposition, or bad character
May be admissible if relevant to show issues other than character or disposition (“MIMIC”)
- Motive
- Intent
- Mistake (absence of mistake)
- Identity
- Common plan or scheme
Probative value must not be substantially outweighed by the danger of unfair prejudice
When are prior acts of sexual assault or child molestation admissible?
In a civil or criminal case where the defendant is accused of committing an act of sexual assault or child molestation
What types of evidence are excluded for public policy reasons?
Liability insurance
Subsequent remedial measures
Settlement offers or negotiations
Withdrawn guilty pleas or offers to plead guilty
Offers to pay or payment of medical expenses
What are the rules for inadmissibility of liability insurance?
Evidence of liability insurance or lack thereof is inadmissible to show negligence or ability to pay
It may be admissible (1) to prove ownership or control, (2) to impeach, or (3) as part of an admission of liability
What are the rules for subsequent remedial measures?
Evidence of repairs or other precautionary measures is inadmissible to prove negligence, culpable conduct, defects, or a need for warning or instruction.
It may be admissible to (1) prove ownership or control, (2) rebut a claim that the precaution was not feasible, or (3) prove that the opposing party has destroyed evidence
What are the rules for settlement offers?
Evidence of compromises or offers to compromise is inadmissible to prove or disprove the validity or amount of a disputed claim, or to impeach a witness by prior inconsistent statements.
Conduct or statements made in the course of negotiating a compromise, including direct admissions of liability, are also inadmissible
There must be some indication that the party is going to make a claim for the rule to apply
What is the rule for offers to pay medical expenses?
Payment of or offers to pay the injured party’s medical expenses are inadmissible.
However, admissions of facts accompanying offers to pay medical expenses are admissible
Be careful that the offer is not an offer to compromise, which would be an inadmissible settlement offer (i.e. I will pay your medical expenses if you drop the case is inadmissible)
What is the rule for withdrawn guilty pleas?
Withdrawn guilty pleas, pleas of nolo contendere, offers to plead guilty, and statements made in negotiating such pleas are generally inadmissible in any proceeding
What are the jury instructions for judicial notice?
Civil - a judicially noticed fact is conclusive
Criminal - the jury is instructed that it may, but is not required, to accept the judicially noticed fact as conclusive
What is the meaning of impeachment?
Casting of an adverse reflection on the veracity of the witness
Generally, a party may not bolster or accredit the testimony of his witness until the witness has been impeached
What are the methods of impeachment?
Cross examination - eliciting facts from a witness that discredits his own testimony, or
Extrinsic evidence - calling other witnesses or introducing evidence that prove the impeaching facts
What are the rules for prior inconsistent statements?
A party may show, by cross examination or extrinsic evidence, that the witness has on past occasions made statements inconsistent with his present testimony
Prior inconsistent statement are generally hearsay and admissible only for impeachment purposes
What is the rule for bias or interest?
Evidence that a witness is biased or has an interest in the outcome of the suit tends to show the witness has a motive to lie, and may be used for impeachment
What are the rules for conviction of a crime?
A witness may be impeached by proof of conviction (arrest or indictment not enough)
Types of crimes admissible:
- Any crime involving dishonesty or a false statement, felony or misdemeanor
- A felony not involving dishonesty or false statement
- The court has discretion to exclude if (1) probative value is substantially outweighed by undue prejudice (often admitted if not against a criminal defendant), or (2) the witness being impeached is a criminal defendant and the prosecution has not shown the conviction’s probative value outweighs its prejudicial effect (often excluded)
- If more than 10 years have passed since the date of conviction or the date of release from confinement (whichever is later), the conviction is inadmissible
- Juvenile convictions are inadmissible
When are specific acts of misconduct admissible for impeachment?
If the act of misconduct is probative of truthfulness (i.e. an act of deceit or lying)
Extrinsic evidence of bad acts is not permitted
A witness may be impeached for opinion or reputation evidence of untruthfulness
What are the methods of rehabilitating an impeached witness?
Explanation on redirect
Good reputation for truthfulness (by calling other witnesses to testify on good reputation)
Prior consistent statements
When can a party impeach its own witness?
When the witness:
(1) Is an adverse party or identified with an adverse party
(2) Is hostile and uncooperative
(3) Is one whom the party is required by law to call, or
(4) Gives surprise testimony that is harmful to the party calling him
