Evidence Flashcards
Logical Relevance
Evidence is relevant if it tends to make the existence of any
fact of consequence more or less probable than it would be
without the evidence
Legal Relevance
A court may exclude logically relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, undue delay, or waste of time
• Often arises with evidence that is:
» Emotionally disturbing
» Repetitive or confusing
» Admissible for one purpose but inadmissible for another (court excludes to avoid risk of jury using evidence for the improper purpose)
Liability Insurance
Evidence of liability insurance is not admissible to prove fault or a party’s ability to pay damages
• Evidence of insurance is admissible to prove anything else (e.g., ownership, control, etc.)
Subsequent Remedial Measures
Evidence of repairs or other
remedial measures taken after an injury is inadmissible to prove fault, defect, or inadequate warning
• Remedial measures evidence is admissible to rebut a defense that there was no feasible precaution
Offers to Settle or Plea Bargains
Civil cases — compromises, offers to settle, or related
statements are inadmissible to prove liability or fault
» Does not include statements made before the claim or
threat of litigation was asserted
• Criminal cases — pleas, offers to plea, and related statements are inadmissible to prove guilt
Offers to Pay Medical Expenses
Inadmissible when offered to prove liability for injuries
• Related statements are admissible (distinguish this from
settlement offers)
• An offer to pay medical expenses in exchange for releasing liability is inadmissible — it is considered a settlement offer, not an offer to pay medical expenses
Similar Occurrences
Evidence of similar occurrences (i.e., similar events occurring
outside the present litigation) is usually inadmissible, but can be
relevant if the similar occurrences are used for non-propensity purposes
Similar Occurrences Admissible If:
1) Causation
2) Prior accidents demonstrating:
a) A pattern of fraudulent claims
b) Pre-existing conditions
3) Intent or absence of mistake
4) To rebut a defense of impossibility
5) Value (similar transactions can establish value, if disputed)
6) Industry custom (to prove standard of care)
Habit
Habit of a person to act in a certain way is relevant and
admissible to show that the person acted in conformity with
that habit on the occasion in question
• Conduct must be highly specific and frequently repeated
(i.e., a person’s regular response to a specific set of circumstances)
• Look for regular, instinctive, habitual conduct
Character Evidence
Evidence of a person’s character is generally inadmissible to prove they acted in conformity with that character on a given
occasion
Character At Issue
Character evidence is admissible if character is an issue in the case
» E.g., defamation, child custody disputes
» Character can be proved through opinion, reputation,
or specific instances of conduct
Prior Acts of Sexual Assault or Child Molestation Cases
In cases arising from sexual assault or child molestation, D’s prior acts of sexual assault or molestation are admissible to prove D’s conduct in the present case
D’s Entrance of Character Evidence in Crim
In criminal cases, D may introduce evidence of pertinent
character, which the prosecution (P) may rebut; with limited exceptions, P may not first introduce evidence of D’s character
Response to D Opening Door
P’s rebuttal — once D “opens the door,” P may rebut by:
» Cross-ex of D’s character W — including knowledge of specific instances of D’s misconduct or prior arrests
» Calling other Ws to testify to D’s bad character — limited to D’s character for the trait in question
Prosecution of Character Evidence
May not initiate introduction of character evidence about D (i.e., can’t “open the door”), except:
1) Sexual assault/child molestation — P can offer evidence of D’s other acts of sexual assault or child molestation
2) If D first offers evidence of victim’s character — P can
offer evidence that D has the same character trait
• Direct — reputation and opinion evidence is admissible;
evidence of specific instances is inadmissible
• Cross — reputation, opinion, and specific instances are
admissible
Evidence of Victim Trait
Only D can “open the door” by introducing evidence of victim’s
character to prove conduct
• Once D offers evidence of victim’s character, prosecution
may then rebut
• Homicide cases — D can offer evidence of the victim’s
character for violence to show that the victim attacked first
» Prosecution may then rebut by offering evidence of victim’s character for peacefulness
Rape Shield Civil
Reputation, opinion, and specific instances of victim’s character are admissible if:
» Probative value substantially outweighs unfair prejudice, and
» In the case of reputation evidence, P puts her
reputation at issue in some way
Rape Shield Criminal
Reputation and opinion evidence of victim is never admissible
• Specific instances of victim’s conduct are only admissible to
show:
a) A third party is the source of injury or DNA evidence, or
b) Prior acts of consensual intercourse between D and the
alleged victim
Prior Bad Acts
In civil and criminal cases, specific instances of D’s bad conduct is inadmissible to prove character (i.e., action in conformity therewith), but admissible to prove anything else
• Exception — in sexual assault or molestation cases, evidence of D’s prior acts of sexual assault or molestation is admissible
Exceptions to Prior Bad Acts
Prior acts evidence is admissible to prove:
1) Motive
2) Intent
3) Mistake (i.e., absence of mistake, knowledge)
4) Identity (extremely similar or unique prior act)
5) Common plan or scheme
Methods of Impeachment
1) Contradiction
2) Prior inconsistent statement (PIS)
3) Bias or interest
4) Sensory deficiencies
» E.g., W’s senses were incapable of producing the
perceptions testified to
5) Reputation and/or opinion for untruthfulness
» Admissible to impeach W’s veracity by use of extrinsic evidence
6) Prior acts of misconduct
» Extrinsic evidence is prohibited
7) Prior criminal conviction
Extrinsic Evidence
Any evidence other than W’s testimony at the current proceeding
• Includes evidence of prior inconsistent statements made out of court
Collateral Matter
A fact not material to issues in the case
• Says nothing about W’s credibility; only used to contradict W
• To determine if evidence is collateral, ask: would it be
material to the given issue if not for W’s contrary assertion?
» If not, it is likely collateral
Impeachment by Prior Contradiction
Any evidence may be used to show a W has made contradictory statements on material issues
Impeachment by Prior Inconsistent Statement
W’s prior inconsistent
statements may be used to impeach W’s present testimony
• Establishing PIS — may be established through cross-exam or extrinsic evidence
» Extrinsic evidence is inadmissible if the PIS relates to a collateral matter
• Foundation requirement — W must have an opportunity to
explain or deny the statement
Impeachment by Bias
Evidence of W’s bias or interest in the outcome of a suit may be used to impeach W (because it tends to show motive to lie)
Impeachment by Untruthfulness
Impeachment by prior instances of misconduct
• W may be questioned on cross-exam about any prior
misconduct probative of truthfulness (i.e., lying or deceit)
• Arrests ≠ misconduct — must be an act of lying
• No extrinsic evidence permitted — W may only be asked about prior misconduct; the questioning attorney must
accept W’s answer
• See card 15 — Impeachment by Prior Convictions Opinion or reputation for untruthfulness
• W may be impeached by testimony describing her
reputation for untruthfulness in the community
Impeachment by Prior Conviction
Felonies — admissible if:
1) Punishable by death or more than 1-year imprisonment, and
2) Survives 403 balancing
Misdemeanors — inadmissible unless it involves dishonesty
Impeachment by Prior Conviction involving Dishonesty
Always admissible — 403 balancing inapplicable (note — this is a rare exception to 403)
• Includes felonies and misdemeanors
Acts of dishonesty — must be a crime requiring deceit as an element (e.g., perjury, fraud)
Convictions over 10 years old
Not admissible, unless:
• Probative value substantially outweighs unfair prejudice (note — this is inverse of 403
balancing)
Witness Competency
1) Personal knowledge — W’s testimony must be based on
her own perceptions (e.g., what W saw or heard)
2) Present recollection — W must testify from present
memory, not from a record of matters the W once knew but has since forgotten
3) Communication — W must be able to relay her perceptions, either directly or through an interpreter
4) Sincerity — W must take an oath or affirm to tell the truth
Recollection Refreshed
Use of documents to refresh
W’s memory during testimony
• Anything can be used to refresh W’s memory
» W cannot read aloud from a document, but can look at it briefly, then continue testimony unassisted
• Opponent may inspect and offer into evidence anything used to refresh W’s memory
Recorded Recollection HS
1) W once had personal knowledge of facts comprising the recorded recollection
2) Document was written or adopted by W
3) W wrote or adopted the document when its contents
were fresh in W’s memory
4) W’s memory is insufficient to testify at trial as to the document’s contents
» I.e., present recollection refreshed was ineffective
5) The document was accurate at the time it was made
Types of Question Objections
Calls for Narrative Leading Assumes Facts Not in Evidence Argumentative Compound Beyond Scope of Direct Non-responsive
Leading Questions
Question itself suggests the answer; improper on direct unless W is hostile or an adverse party; leading
questions are acceptable on cross-exam
Lay Opinion Testimony
1) Opinion is rationally based on W’s perception
2) Opinion is helpful to the trier of fact
» Helpful = gives the jury more information regarding W’s perception than the perception alone
• Legal conclusions are not helpful and thus inadmissible
3) Not based on scientific, technical, or other specialized
knowledge (i.e., not in the realm of expert opinion)
