Evidence Flashcards
Evidence is Relevant When. . .
Makes existence of any fact of consequence to the determination of the action (MATERIALITY) more or less probable than it would be without the evidence (PROBATIVENESS)
Relevant Evidence
Relates to time, person, or event at issue, e.g.:
a) To prove causation
b) Prior false claims
c) Similar accidents caused by the same condition
d) Rebutting a claim of impossibility
e) Habit
f) Business routine and industrial custom
Exceptions for certain similar occurrences
Habit vs. Character Evidence
Character evidence is more general and often inadmissible
(e.g.: “Charlie never stops at the stop sign at Main and Oak.” = habit
vs.
e.g.: “Charlie is a careless driver.” = character)
Liability Insurance
INADMISSIBLE to prove:
a) Negligence;
b) Ability to pay
ADMISSIBLE to prove:
a) Ownership or control,
b) Impeachment; or
c) As part of an admission of liability
Subsequent Remedial Measures
INADMISSIBLE to prove:
a) Negligence
b) Culpable conduct
c) Defect
ADMISSIBLE to prove:
a) Ownership or control
b) Feasibility of the repair
c) Destruction of evidence
Settlement Offers and Accompanying Admissions of Fact
INADMISSIBLE to prove or disprove:
a) Validity or amount of disputed claim; or
b) To impeach by prior inconsistent statement or contradiction
EXCEPTION - preexisting information is NOT protected
Payments or Offers to Pay Medical Expenses
INADMISSIBLE to prove:
a) Liability
BUT NOTE - accompanying statements of FACT are ADMISSIBLE (unlike rule for settlement negotiations)
Withdrawn Guilty Pleas and Accompanying Statements
Generally INADMISSIBLE
Rule 403 - Balancing Test
Judge has broad discretion to exclude evidence if its PROBATIVE VALUE is SUBSTANTIALLY outweighed by:
a) Unfair prejudice
b) Confusion of Issues
c) Misleading the jury
d) Undue consumption of time
Rule 403
Permitted Character Evidence
a) Reputation testimony
b) Opinion testimony
c) Specific acts - usually NOT permitted UNLESS:
-character is directly at issue in the case (rare);
-in sexual assault or child molestation causes;
-when act is independently relevant (act relevant to
an issue other than D’s character) [Rule 412(b)(1)]
Rule 404
Specific Acts Relevant to an Issue Other Than Defendant’s Character
Acts relevant to “MIMIC” issues are generally ADMISSIBLE
1) Motive
2) Intent
3) Mistake (absence of)
4) Identity
5) Common plan or scheme
Prosecutor must give notice before trial or during trial (if good cause exists for lack of pretrial notice)
Rule 404(b)(2)
Specific Acts Relevant to Defendant’s Character
INADMISSIBLE, except for when:
a) Character is directly at issue in the case (rare);
b) In sexual assault or child molestation causes;
c) When act is independently relevant (act relevant to an issue other than D’s character)
Rule 404(a)(1)
Can D introduce character evidence?
In a CRIMINAL case, D MAY introduce evidence of his OWN good character to show innocence
In a CIVIL case, character evidence is generally NOT admitted (exceptions exist)
Rule 404(a)(2)(A)
Can the prosecution introduce evidence of D’s bad character?
In a CRIMINAL case, the prosecution may introduce evidence of D’s bad character for:
a) A rebuttal when D “OPENS THE DOOR”
b) Specific acts that are independently relevant (“MIMIC”)
c) Specific similar acts by D in sexual or child molestation cases (admissible for ANY relevant purpose, including propensity) [Rule 412(b)(1)]
Rule 404(a)(2)(A)
Can D introduce character evidence of the victim?
In a CRIMINAL case, D MAY introduce character evidence of the victim if it is RELEVANT to his INNOCENCE (generally in self-defense cases)
Rule 404(a)(2)(B)
When/Can the prosecution enter character evidence of the victim?
In a CRIMINAL case, the prosecution may REBUT character evidence of the victim introduced by D for:
a) D’s bad character for same trait; or
b) Victim’s good character for same trait
May only be done AFTER D’s evidence is admitted
Rule 404(a)(2)(B)
Rule 404
Character Evidence
When can character evidence be admitted in a civil case?
a) When character is DIRECTLY in issue (e.g.: defamation, negligent hiring);
b) Similar specific acts in a sexual assault or child molestation case; or
c) Specific acts that are independently relevant (“MIMIC”)
Effect of Real Evidence
1) Object is presented DIRECTLY to trier of fact for inspection
2) Allows trier of fact to reach conclusions based on its OWN perceptions rather than relying upon those of witnesses
Direct Evidence
Offered to prove the facts about the object in and of itself
e.g.: Evidence of a permanent injury can be shown by the injury itself
Circumstantial Evidence
Facts about the object are proved as a basis for an inference that other facts are true
(e.g.: In a paternity case, the child can be shown to the jury to demonstrate the child is the same race as the alleged father)
Original Evidence
Has some connection with the transaction that is in question at the trial
(e.g.: The alleged murder weapon in a murder case)
Prepared Evidence
Evidence in the form of representation of an object
Also called “demonstrative” evidence
(e.g.: sketches, models, jury view of scene)
Authentication Methods for Real Evidence
Evidence must be authenticated:
a) Recognition testimony by witness - if item has recognizable features
b) Chain of custody - if evidence is a type likely to be confused or if it can be easily tampered with
c) Writings must be authenticated by proof showing they are what the proponent claims they are (unless self-authenticating)
Chain of Custody Requirement for Authentication
Proponent must show that the object has been held in a SUBSTANTIALLY UNBROKEN chain of possession
Need not negate ALL possibilities of substitution or tampering, but must show adherence to some system of identification and custody
Documentary Evidence
A document i.e.: a will, deed, or K that is offered as evidence
Authentication Methods for Documentary Evidence (3)
a) Writings must be authenticated by proof showing they are what the proponent claims they are (unless self-authenticating)
b) Authenticated by stipulation, evidence of authenticity, etc.
c) Oral statements (only when important)
Standard for Authentication of Documentary Evidence
Proof sufficient to support a jury finding of genuineness
Best Evidence Rule
“Original Document Rule”
In proving the terms of a writing (including a recording, photograph, or x-ray), where the terms are material, the original writing must be produced
Only applies in certain situations (2)
Secondary evidence is allowed ONLY if the original is unavailable for some reason OTHER than the serious misconduct of the proponent
If the fact exists independently of a writing, the Best Evidence Rule does NOT apply
When is secondary evidence permitted?
Secondary evidence is allowed ONLY if the original is unavailable for some reason OTHER than the serious misconduct of the proponent
When does the Best Evidence Rule apply?
a) When the writing is a legally operative or dispositive instrument (e.g.: K, deed, will, divorce decree)
b) When the witness’s knowledge of a fact comes from having read it in the document
If the fact exists independently of a writing, the Best Evidence Rule does NOT apply
Requirements for a Witness to Testify
1) Personal knowledge of the subject matter
2) Sworn oath or affirmation that the witness will testify truthfully
3) All witnesses presumed competent under the Federal Rules until the contrary is demonstrated (no age requirement)
Dead Man Act
Not recognized by Federal Rules; statutes vary by state
May bar an interested person from testifying in a CIVIL case as to communication with a deceased, if such testimony is offered against the representative of the deceased
Many exceptions to this act and “door-openers”
Lay Opinion Testimony Requirements
Testimony must be rationally based on
a) witness’s perception;
b) helpful to the jury; and
c) NOT based on scientific or technical knowledge
Lay Opinion Testimony - Common Examples
1) General appearance or condition of a person
2) State of emotion
3) Speed of a moving object
4) Intoxication
5) Sanity
6) Voice or handwriting identification
Expert Opinion Testimony - 4 Questions to Ask
1) Is the subject matter one where expert testimony would ASSIST the trier of fact? (relevant and reliable)
2) Is the expert QUALIFIED on the subject?
3) Does the expert possess reasonable PROBABILITY regarding her opinion?
4) Is the opinion supported by a PROPER FACTUAL BASIS? (personal observation, facts made known to her AT trial; or facts supplied OUTSIDE the courtroom) and of a type reasonably RELIED UPON by experts in the field)
