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)
Expert Opinion Testimony
1) Helpful — expert opinion must be helpful to the trier of fact
» I.e., expert uses specialized knowledge to reach conclusions an average juror would not reach alone
2) Qualified — expert must possess special knowledge, skill, experience, training, or education
3) Reasonable certainty — expert must believe in her
opinion to a reasonable degree of certainty
4) Proper factual basis — opinion must be based on facts
» Expert may base opinion on admitted evidence, personal knowledge, or inadmissible evidence properly relied upon (e.g., data, other testimony, experience)
5) Reliable principals reasonably relied upon
Scope of Expert Opinion
Experts may render an opinion on any ultimate legal issues
• Exception — experts cannot give opinion on D’s mental state
in a criminal trial if it is an element of a crime or defense
Expert Opinion Based on Scientific Evidence
Under the Daubert/Kumho standard, expert opinion must be based on scientific evidence that is:
1) Peer tested and capable of retesting
2) Published
3) Has a low error rate
4) Reasonably accepted in the field of study
Types of Privilege
1) Attorney-client
2) Doctor-patient
3) Psychotherapist/social worker-patient
4) Spousal
5) Marital communications
Attorney-Client Privilege
Communications between an attorney and client or client’s
representatives are privileged in all proceedings unless waived
• Organizational clients — privilege applies to any employee authorized to speak to the attorney
To be protected, a communication must be:
1) Intended to be confidential, and
2) Made to facilitate legal services
Exceptions to Attorney-Client Privilege
1) Crimes of fraud — privilege does not apply if a client seeks legal services to further a fraud or similar crime
2) Attorney defending a malpractice claim — privilege
does not apply if the communication relates to an alleged breach of the attorney’s duty
3) Matters of common interest — privilege does not apply in suits between two parties represented by the same
attorney, or where two or more parties consult the same attorney on a matter of common interest (e.g., divorce)
Psychotherapist-Patient Privilege
Communication between a psychotherapist or social worker and her client is privileged in all civil or criminal cases if:
1) Client intends the communication to be confidential, and
2) The communication is made to facilitate therapy or social work
• A patient/client may waive the privilege
Doctor-Patient Privilege
There is no doctor-patient privilege under the federal rules, but it exists in almost all states
• To be protected, the communication must be:
1) Made for purposes of obtaining diagnosis or treatment
2) Pertinent to a diagnosis or treatment
3) Intended by the patient to be confidential
Exceptions to Doctor-Patient Privilege
1) Patient’s condition is a legal issue (e.g., personal injury)
2) Physician’s services were sought to aid in a crime, fraud, or to escape capture
3) Cases involving a breach of duty arising out of the doctor-patient privilege (e.g., malpractice)
Spousal Testimonial Privilege
Criminal cases only
• W may refuse to testify against a spouse during marriage
• Only W may invoke the privilege (i.e., D cannot prevent a willing spouse from testifying against him)
Marital Communications Privilege
Civil and criminal
• Confidential communications made during a marriage are
privileged in any later proceeding
» Applies even if spouses divorce after the confidential
communication was made
• Either spouse may invoke the privilege
Exceptions to Marital Comm Privilege
1) Suits between spouses
2) Suits in which one spouse is charged with a crime or
tort against children
3) Suits in which spouses are co-defendants
Authentication
Every item of physical evidence must be authenticated, i.e., the
proponent must show that the evidence is what he claims it is
Proving Authentication
May be proved by any means
» Low burden — authentication must only be sufficient to sustain the finding
Self Authentication
Writings that contain identifying information do not need separate authentication
Ancient Documents
Automatically authenticated if:
1) 20 or more years old
2) Does not present any irregularities on its face
3) Found in a place of natural custody
Photos Authentication
Must have personal knowledge to authenticate
Non-unique Items
Item facially indistinguishable from others of its kind (e.g., bag of white powder, generic syringe)
» Proponent must establish “chain of custody,” i.e., that
the proffered evidence is the same item it is claimed to be (will be admissible absent large breaks in chain)
Best Evidence Rule
If evidence is offered to prove the contents of a writing, an
original document must be used unless it is unavailable
• “Writing” = any tangible collection of data (e.g., videos,
documents, photos, books, computer drives, x-rays)
• Applicability — rule only applies if evidence is offered to
prove its contents (e.g., W’s knowledge is obtained from a
writing, case turns on contents of a legal instrument, etc.)
BER Sufficient Writings
1) Originals
2) Duplicates — must be a machine or carbon copy
» Admissible unless there is a genuine question as to the authenticity of the original itself
3) Testimony regarding contents
» Admissible if the original is lost or destroyed, unless done so in bad faith by the proponent of testimony
Completeness Doctrine
If part of a writing or recorded statement is introduced into
evidence, an adverse party may compel introduction of other evidence that should be fairly considered with it at that time
• Most often applies to omitted parts of the introduced writing or recording
• Otherwise inadmissible evidence can be admitted under the completeness doctrine if necessary to avoid confusion or an incorrect impression created by the original evidence
Judicial Notice
A court may recognize a fact as true without formal presentation
of evidence, either on its own or upon formal request of a party
Judicially Noticeable Facts
Facts that are:
1) Capable of verification by a source with unquestionable
accuracy (e.g., calendar, almanac)
2) Generally known within the jurisdiction
Effect of Judicially Noticed Facts
Civil — jury must take judicially noticed facts as conclusive
• Criminal — jury may take judicially noticed facts as
conclusive, but is not required to
Hearsay
An out-of-court statement offered to prove the truth of the
matter asserted
• Generally inadmissible, subject to exceptions and exemptions
• Statement — an oral or written assertion, or nonverbal conduct intended as an assertion
» Non-human assertions are not statements (e.g., test results, radar gun reading, dog barking)
Non-Hearsay
Out-of-court statements are not hearsay if offered to prove
anything other than the truth of the matter they assert
Common Non-Hearsay
Statements of independent legal significance
Statements offered to show their effect on the listener
Statements offered to show speaker’s knowledge
Statements offered to show state of mind
Independent Legal Significance
» Statements containing legally operative words, such that the statement itself is a legal factor in the case
» Common with defamation, contract, adverse possession cases
» E.g., in a contract dispute, A testifies that B told him it
was a “done deal”
Effect on Listener
E.g., comparative negligence claim — statement by third party warning P of the injury-causing condition
Show Knowledge Hearsay
E.g., D charged with conspiracy, claims he did not know about the crime; an out-of-court statement indicating D had been told about specifics of the crime will be admissible, indicating he knew it was being planned
State of Mind Non-Hearsay
» E.g., statement by D before committing a crime indicating he might have been insane
4 Hearsay Exemptions
Party Admission
Prior Inconsistent Statement under Oath
Prior Consistent Statement
Prior Identification
Party Admissions
Out-of-court statements by a party are admissible if offered against that party
Adoptive Admissions
Acquiescence in another’s
statement
• Silence can be an admission if both:
1) Party heard, understood, and was capable of responding to a statement, and
2) A reasonable person in the party’s position would have responded
Vicarious Admissions
Made by an agent or employee
Co-Conspirator Admissions
Co-conspirator’s statements are admissible against D if made in
furtherance of the conspiracy
Prior Consistent Statement
If offered to rebut a charge of
fabrication, improper bias, or improper motive
Unavailable Exceptions HS
1) Former testimony exception*
2) Statements against interest*
3) Dying declarations*
4) Statements of personal or family history
5) Statements offered against party procuring declarant’s
unavailability
Availability Immaterial Exceptions HS
1) Present state of mind*
2) Excited utterances*
3) Present sense impressions*
4) Physical condition (for medical diagnosis or treatment)*
5) Past recollection recorded*
6) Business records*
7) Public records or reports*
8) Judgments and prior convictions*
9) Ancient documents
10) Documents affecting property interests
11) Learned treatises
12) Family records
13) Market reports
HS Unavailability
A declarant is unavailable if:
a) Privilege — exempt from testifying due to a privilege
b) Death or physical/mental sickness
c) Refusal to testify despite a court order
d) Lack of memory
e) Absent — beyond reach of court’s subpoena power
Former Testimony
1) Declarant is currently unavailable
2) Declarant’s prior testimony was given under oath
3) Party against whom testimony is now offered was either:
a) A party in the previous action and had an opportunity
to cross-examine declarant
b) A predecessor in interest of a party in the previous action, in which there was an opportunity to cross-examine declarant and a similar motive for doing so
Statement Against Interest
1) Declarant is currently unavailable
2) Statement was contrary to declarant’s pecuniary, proprietary, or penal interest when made
3) A reasonable person would not have made the statement
unless he believed it to be true
Dying Declaration
1) Declarant is currently unavailable
2) The out-of-court statement was made under the belief of
impending death
3) The statement was made regarding the cause or
circumstances surrounding the belief of impending death
• Death of declarant is not required
Present Sense Impression
A hearsay statement is admissible if it:
1) Describes or explains an event or condition, and
2) Is made contemporaneously with the event or
immediately thereafter
Excited Utterance
A hearsay statement is admissible if it:
1) Relates to a startling or exciting event or condition, and
2) Was made while the declarant was under the stress or excitement of the event
Then-Existing State of Mind
Hearsay statements are admissible if they concern a
declarant’s state of mind, emotion, sensation, or physical
condition existing at the time the statement was made
Statement for Diagnosis or Treatment
1) Statement must be made to medical personnel
» Medical personnel: anyone involved in treatment or
diagnosis; not necessarily a doctor
2) Statement must be pertinent to assisting in the diagnosis
or treatment of a condition
» Related statements about an injury-causing event are usually inadmissible
Business Records
1) A record or transaction made or recorded by a business
» E.g., transactions, reports, patient records
2) Made in the regular course of business
3) Made at or near the time of the matters described
4) Made by any employee with personal knowledge of the
facts recorded
5) Authenticated or certified in writing
Public Records
1) Describes the activities of a public office or agency
2) Describes either:
a) Matters observed pursuant to a duty imposed by law, or
b) Factual findings resulting from an investigation made pursuant to authority granted by law
3) Made within the scope of duty of the public employee-author and made at or near the time of the event
Learned Treaties
Learned treatises are accepted authority in a given field
» Established as reliable and accepted authority by
testimony, admission, or judicial notice
Family Records
Statements of fact found in family keepsakes, e.g., jewelry engravings, genealogies
Confrontation Clause
1) The declarant is currently unavailable
2) D had no prior opportunity to cross-examine the declarant
about the statement at the time it was made
3) The statement is testimonial
Testimonial Statement
Prior statements made during court proceedings
• Statements made in furtherance of a police investigation
Co-Defendant Statements
The Confrontation Clause bars admission of an out-of-court
statement by a non-testifying co-D if the statement expressly
implicates another D
Exceptions to Co-Defendant Statements
a) Declarant co-D testifies — Confrontation Clause does not bar an out-of-court statement if the declarant co-D
testifies and is subject to cross-exam
b) Redaction — portions of the co-D’s testimony referring to
the non-declarant D are redacted
» Redaction is not effective unless it clearly makes the non-declarant co-D’s identity anonymous
c) Coerced confession — the statement is used to rebut a
charge of a coerced confession
