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Withdrawn Guilty Pleas and Accompanying Statements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)
Daubert Test - What is it?
Standard used by judge to assess whether an expert witness’s scientific testimony is based on scientifically valid reasoning that can properly be applied to the facts at issue
Test used in Federal Courts, replaced Frye standard (some state courts still use Frye)
Rule 702
Daubert Test - Factors
Factors considered in determining whether the methodology is valid are:
1) whether the theory or technique in question can be and has been tested;
2) whether it has been subjected to peer review and publication;
3) its known or potential error rate;
4) the existence and maintenance of standards controlling its operation; and
5) whether it has attracted widespread acceptance within a relevant scientific community
Frye Standard
Court must determine whether or not the method by which that evidence was obtained was generally accepted by experts in the particular field in which it belongs
Abandoned by many states, replaced by Daubert test in Federal Courts and other states
Who can attack the credibility of a witness?
Any party
Can a party attack the credibility of its own witness?
Yes
Common Methods of Witness Impeachment
Impeachment by cross-examination and (some methods) extrinsic evidence
1) Prior inconsistent statement
2) Bias
3) Prior conviction of crime (limitations)
4) Prior bad acts (limitations)
5) Opinion or reputation evidence of untruthfulness
6) Sensory deficiencies
7) Contradictory facts
Can a party introduce evidence of a prior conviction of a crime to impeach a witness?
a) Yes,
For any crime (misdemeanor or felony) involving dishonesty or false statement cannot be excluded by the judge (no discretion)
b) Any other felony
c) Limitations on remoteness (10-year rule)
Can a party introduce evidence of prior bad acts to impeach a witness?
a) Yes,
Must be probative of truthfulness (i.e.: act of deceit)
On cross-examination ONLY
No extrinsic evidence permitted
What are the (6) privileges recognized in federal courts?
1) Attorney-Client Privilege
2) Spousal Immunity
3) Marital Communications Privilege
4) Psychotherapist/Social Worker-Client Privilege
5) Clergy-Penitent Privilege
6) Governmental Privileges
If not one of these, check if state law applies with respect to the privileges (i.e., is it a diversity case?)
Steps for Determining if the Testimony is Privileged (3)
1) Identify the privilege, its scope, and its holder
2) Are there any exceptions, waivers, or limitations?
3) Check applicability in federal court (6 recognized privileges)
If not one of the 6, check if state law applies with respect to the privileges (i.e., is it a diversity case?)
Attorney-Client Privilege Applies. . .
Client must be seeking attorney’s services at the time of the communications
Communications must be confidential (not intended to be disclosed to third parties)
Termination of attorney-client relationship does NOT terminate privilege; even survives death
Special rules for corporate clients
Situations Where Attorney-Client Privilege is not Applicable (4)
1) Where the client seeks legal advice in aid of CRIME or fraud
2) Parties claiming through the SAME deceased client
3) DISPUTE between attorney and client (e.g.: malpractice)
4) Client puts LEGAL SERVICES at issue
Physician-Patient Privilege Applies. . .
No federal privilege, but recognized in many states
Information must be acquired WHILE professional relationship exists, WHILE attending patient, and information must be NECESSARY for treatment
Situations Where Physician-Patient Privilege is not Applicable (2)
1) DISPUTE between patient and physician (e.g.: malpractice)
2) Patient puts PHYSICAL CONDITION at issue (e.g.: personal injury lawsuit)
Psychotherapist/Social Worker-Client Privilege
Similar to attorney-client privilege
Privileges Related to Marriage (2)
1) Spousal Immunity Privilege
2) Confidential Marital Communications Privilege
Spousal Immunity
Privilege not to testify in a CRIMINAL case (only)
Privilege belongs to witness-spouse under Federal Rules
Can only be asserted DURING marriage, although the matters at issue may have occurred prior to the marriage
Confidential Marital Communications
Applies in BOTH civil and criminal cases
Privilege belongs to BOTH spouses
Communication must have been made during a valid marriage, but divorce WILL NOT terminate the privilege retroactively
Protects communications only, NOT observations
Exceptions to Marital Privileges
Applies to both privileges
Privilege does NOT apply in:
1) Legal actions BETWEEN the spouses
2) Cases involving crimes against the TESTIFYING spouse or either spouse’s children
3) In furtherance of JOINT CRIME or fraud
Hearsay is. . .
an out of court statement, made by a human, being offered for the truth of the matter
“Statement” can be oral or written assertion, or nonverbal conduct intended as an assertion
Rule 801
Hearsay by Animals
No such thing
Nonhuman declarations are not hearsay (animals, machines, etc.)
Out-of-Court Statements Not Offered for Their Truth (4)
1) Legally operative facts (e.g.: words of a K or defamation)
2) Offered to prove effect on reader or listener (e.g.: notice)
3) Circumstantial evidence of declarant’s state of mind
4) Impeachment
Not offered for their truth, therefore NOT hearsay
Is hearsay within hearsay admissible?
Both inner and outer hearsay statements must fall within a hearsay exception to be admissible
Hearsay Statements Categorized as Non-hearsay Under Federal Rules (4)
1) Statement by an OPPOSING party
2) Prior INCONSISTENT statement of testifying witness
3) Prior CONSISTENT statement of testifying witness
4) Prior statement of IDENTIFICATION of testifying witness
Rule 801, 802
Statement by an Opposing Party (3)
1) A statement by or attributable to a party, offered against that party (does not have to be against interest)
2) Adoptive admissions (e.g.: party’s silence in the face of an accusation)
3) Vicarious admissions (i.e.: made by the party’s authorized spokesperson, agent, co-conspirator, etc.)
Categorized as non-hearsay by federal rules
Also called “admission” of a party-opponent
Rule 801, 802
Adoptive Admissions
Hearsay exception for statement by an opposing party
Statement that is against an accused is not inadmissible hearsay, IF the accused is aware of the statement and has INDICATED ACCEPTANCE that the statement is TRUE
Can be oral or written or by conduct
(e.g.: party’s silence in the fact of an accusation)
Rule 801, 802
Vicarious Admissions
Hearsay exception for statement by an opposing party
Statements made by a DECLARANT AUTHORIZED by the party to make the statement, or by a servant or agent, if it concerns a matter within the scope of the servant
Rule 801, 802
Prior Inconsistent Statement of Testifying Witness
Hearsay exception for statement by an opposing party when made UNDER OATH at a prior proceeding or deposition
Rule 801, 802
Prior Consistent Statement of Testifying Witness
Hearsay exception for statement by an opposing party in certain circumstances when offered to REHABILITATE an impeached witness
Rule 801, 802
Prior Statement of Identification of Testifying Witness
Hearsay exception for statement by an opposing party for the identification of a person made after perceiving
the person
(e.g.: photo identifications)
Rule 801, 802
Hearsay Exceptions Where Declarant MUST be Unavailable to Testify (5)
a) Former testimony - under oath
b) Statement against interest
c) Dying declarations
d) Statement of personal or family history
e) Statement against party procuring unavailability
When is former testimony, under oath, admissible?
Admissible when declarant is UNAVAILABLE, and the party against whom the testimony is offered (or his predecessor in interest in civil cases) must have been a PARTY IN THE FORMER ACTION
When are statements against interest admissible?
Admissible when declarant is UNAVAILABLE, the declarant must have KNOWN the statement was AGAINST her pecuniary, proprietary, or penal INTEREST when made
When are dying declarations admissible?
Admissible when declarant is UNAVAILABLE, if the person reasonably believes that death is imminent and the testimony is concerning the cause or circumstances of death
Homicide and civil cases ONLY
Declarant didn’t have to actually die
Rule 804(b)(2)
Can a dying declaration be admitted into evidence if the person who made the declaration didn’t die?
Yes, as long as they are UNAVAILABLE to testify AND the case is either a HOMICIDE or a CIVIL case
Person only had to believe death was imminent, doesn’t have to actually die
Exception to hearsay
Rule 804(b)(2)
Rule 804
Hearsay Exceptions where Declarant is Unavailable
Rule 802
The Rule Against Hearsay
Can a statement regarding personal or family history be admitted into evidence when the declarant is unavailable?
Yes, if the declarant is unavailable, AND the declarant is a member of the family in question or immediately associated with the family, then this falls under an exception to hearsay
Can a statement against the party procuring the unavailability of the declarant be admitted into evidence, even though the declarant is unavailable?
Yes, the unavailable declarant’s hearsay statements ARE admissible against the party who procured her unavailability by DELIBERATE wrongdoing
Hearsay Exceptions Where Declarant’s Unavailability is Immaterial (11)
“The reasonably prudent individual usually stays behind and orders birthday cake.” (mnemonic)
1) Excited utterance
2) Present sense impression
3) Then-existing state of mind
4) Exceptions relating to bodily conditions
5) Business records
6) Recorded recollection
7) Official records
8) Ancient documents
9) Learned treatise
10) Statements in documents affecting an interest in property
11) Catch-all exception
“The reasonably prudent individual usually stays behind and orders birthday cake” is a mnemonic for. . .
These are the hearsay exceptions where the declarant’s unavailability is immaterial
T - learned TREATISE R - RECORDED recollection P - PRESENT SENSE IMPRESSION I - statement in documents re: INTEREST IN PROPERTY U - excited UTTERANCE S - STATE OF MIND B - BUSINESS RECORDS A - ANCIENT DOCUMENTS O - OFFICIAL RECORDS B - BODILY conditions C - CATCH-ALL
What is an excited utterance?
A statement made under stress of an exciting event
Doesn’t matter if declarant is unavailable or not
Hearsay Exception
What is a present sense impression?
A statement made DURING or IMMEDIATELY AFTER the event or condition
Doesn’t matter if declarant is unavailable or not
Hearsay Exception
Rule 803
When is a declarant’s ‘then-existing state of mind, emotion, or sensation’ admissible into evidence? (2)
1) When state of mind is directly at issue in the case
2) To prove subsequent acts of declarant
Doesn’t matter if declarant is unavailable or not
Hearsay Exception
Rule803
What statements relating to bodily conditions are admissible into evidence? (2)
1) Statement of own present condition (admissible even if not made to a physician)
2) Statement made for medical diagnosis or treatment - includes past conditions; also includes CAUSE or source of injury if pertinent to Dx or Tx
Doesn’t matter if declarant is unavailable or not
Hearsay Exception
Rule 803
What are the requirements for a declarant’s business records to be admissible into evidence?
1) Record must be made in regular course of business; and
2) Matters must be within the personal knowledge of the entrant or someone with a business duty to transmit such matters to the entrant
Doesn’t matter if declarant is unavailable or not
Hearsay Exception
Rule 803
What is a recorded recollection? Is it admissible into evidence?
It is a document that (i) the witness once had knowledge but now has insufficient recollection to testify fully and accurately, (ii) the document was shown to have been made or adopted by the witness when the matter was fresh in the witness’ memory, and (iii) to reflect that knowledge correctly.
Document not admissible, but may be read to the jury
Can be entered into evidence by other party
Distinguished from “refreshing recollection”
Doesn’t matter if declarant is unavailable or not
Hearsay Exception
Rule 803
Refreshing Recollection
Witness testifies from their OWN memory, AFTER reviewing the document (no hearsay problem)
How is refreshing recollection different from a recorded recollection?
In refreshing recollection, the witness testifies from their OWN memory AFTER reviewing the document. There is no hearsay problem for refreshing recollection.
A recorded recollection is an exception to the hearsay rule that applies when there is a document that “the witness once had knowledge but now has insufficient recollection to…testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness’ memory, and to reflect that knowledge correctly.”
A recorded recollection may be read aloud, but the document cannot be entered into evidence (except by the opposing party).
Rule 803
What is the relevant year for the ancient documents exception to the hearsay rule?
1998
Statements in authenticated documents prepared before 1998 are admissible as an exception to hearsay
Doesn’t matter if declarant is unavailable or not
Hearsay Exception
Rule 803
When are learned treatises admissible into evidence?
If they are used during the examination of an expert and established as reliable
Doesn’t matter if declarant is unavailable or not
Hearsay Exception
Rule 803
What is the “catch-all” exception to the hearsay rule?
If a statement is not covered by a specific exception, but it
(i) has guarantees of trustworthiness,
(ii) the statements is strictly necessary, and
(iii) notice is given to adversary
It can be admissible as an exception to the hearsay rule
Doesn’t matter if declarant is unavailable or not
Hearsay Exception
When is a hearsay statement offered against the accused in a criminal case barred by the Confrontation Clause?
Statement will be barred if:
a) the declarant is unavailable;
b) the statement was “testimonial” in nature; and
c) the accused had no opportunity to cross-examine the testimonial statement prior to trial
Applies EVEN IF statement falls under an exception to the hearsay rule
What is the Confrontation Clause?
Under the Sixth Amendment, the confrontation clause states that “in all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him.”
The Fourteenth Amendment makes the right to confrontation applicable to the states AND the federal government
The right only applies to criminal prosecutions, not civil cases or other proceedings.
What is a “testimonial” statement?
1) Statements made in the course of a police investigation when the primary purpose is to establish facts potentially relevant to a later criminal prosecution; or
2) Affidavits or written reports of forensic analysis
Statements made to ASSIST police in an ONGOING emergency are NON-TESTIMONIAL
For criminal cases only
When are Confrontation Clause rights forfeited?
If D commits a wrongful act intended to keep the witness from testifying at trial, D forfeits his rights under the Confrontation Clause
