Evidence Flashcards
Relevance
Evidence is relevant if it has any tendency to make a fact of consequence more probable or less probable than would be the case without the evidence
Relevance: 2 Prongs
Materiality: proposition must be “of consequence.” Need not be an ultimate issue
Probativeness: “any tendency” to make the proposition more or less likely. Just needs to shift probabilities to any degree whatsoever
Admissibility of Evidence: General Rule
All irrelevant evidence is inadmissible. No exceptions.
All relevant evidence is admissible, unless
- Some specific exclusionary rule is applicable
- the court uses its rule 403 discretion to keep it out
Rule 403
the court may exclude otherwise relevant evidence if it determines that the probative value of the evidence is substantially outweighed by one of the pragmatic considerations (MUD WUC)
Rule 403: Pragmatic Considerations
MUD WUC
Misleading the jury (danger of jury giving undue weight to evidence)
Undue delay
Danger of unfair prejudice
Waste of time
Unduly Cumulative
Confusion of the issues (evidence creates a side issue)
Similar Occurrences: General Rule
In general, if evidence involves some other time, event, or person OTHER than that involved in the case at hand, the evidence is irrelevant, inadmissible because probative value is usually outweighed by pragmatic considerations
Plaintiff’s Accident History
Generally, plaintiff’s accident history is inadmissible because it only shows plaintiff is accident prone.
BUT plaintiff’s accidents are admissible if cause of plaintiff’s damages is in issue
Similar Accidents Caused by Same Event or Condition
Generally, other accidents involving defendant are inadmissible because it only suggest general character for carelessness
BUT other accidents involving the same instrumentality or condition, and occurring under substantially similar circumstances, may be admitted for 3 reasons:
(1) existence of dangerous condition
(2) causation
(3) prior notice to defendant
Intent in Issue
A person’s prior conduct may provide inference of intent on later occasion
Comparable Sales on Issues of Value
Selling price of other property of similar type, in same general location and close in time to the period at issue, is some evidence of property at issue
Character Evidence
Refers to a particular person’s general disposition or propensity (e.g. honesty, fairness, peacefulness, violence). Usually NOT admissible to prove conduct on a particular occasion.
Habit
“Always, invariably, automatically, instinctively”
Habit of a person (or routine of a business organization) is admissible as circumstantial evidence of how the person (or business) acted on the occasion at issue in the litigation
Frequency of conduct
Particularity of circumstances
Industrial Custom as Standard of Care
Evidence as to how others in the same trade or industry have acted in the recent past may be admitted as some evidence as to how a party in the instant litigation should have acted (i.e. as evidence of the appropriate standard of care)
Liability Insurance
Evidence that a person has, or does not have, liability insurance is inadmissible to prove the person’s fault or absence of fault.
BUT may be admissible for some other relevant purpose, such as
- proof of ownership/control
- impeachment of a witness (usually on the grounds of bias)
Policy: avoid risk that jury will base decision on availability of insurance rather than merits
Limiting Instruction
A limiting instruction should be given to the jury whenever evidence is admissible for one purpose but not for another
Judge should tell the jury to consider the evidence only for the permissible purpose
Subsequent Remedial Measures
Post-accident repairs, design changes, policy changes are inadmissible for the purpose of proving negligence, culpable conduct, product defect, or need for warning.
BUT may be admissible for some other relevant purpose (if controverted):
- proof of ownership
- feasibility of safer condition
Policy: to encourage post-accident repairs, design changes, policy changes
Settlements in Civil Cases
Evidence of a settlement or offer to settle a DISPUTED claim is inadmissible to
- prove liability or weakness of a parties case
- impeach through prior inconsistent statement or contradiction
Statement of facts made in course of discussions also inadmissible.
BUT these all may be admissible for purposes of impeaching a witness for bias
Policy: to encourage settlement
Settlements in Civil Cases: Disputed Claim Required
The exclusionary rule only applies if there is a claim that is disputed (at the time of settlement discussion) either as to
(1) validity or
(2) amount of damages
Offer to Plead Guilty
Cannot be used against the defendant in the pending criminal case or in subsequent civil litigation based on the same facts
Cannot use statements of fact made in discussions
Plea of Nolo Contendere
Cannot be used against the defendant in subsequent civil litigation based on the same facts
Cannot use statements of fact made in discussions
Withdrawn Guilty Plea
Cannot be used against the defendant in the pending criminal case or in subsequent civil litigation based on the same facts
Cannot use statements of fact made in discussions
Plea of Guilty (Not Withdrawn)
Admissible in subsequent litigation based on the same facts under the rule of party admissions
Offer to Pay Medical or Hospital Expenses
Evidence that a party has paid or offered to pay an accident victim’s hospital or medical expenses is inadmissible to prove liability.
No need to show disputed claim
Does not include statements of fact/admissions made in conjunction with offer
Policy: to encourage charity
Potential Purposes for Offering Character Evidence
(1) character is a material element in the case
(2) to prove conduct in conformity with character at the time of the litigated evident (character as circumstantial evidence of conduct)
(3) witness’s bad character for truthfulness to impeach credibility
Evidence of Defendant’s Character to Prove Conduct in Conformity
Ok to say “law-abiding”
Not admissible during prosecution’s case-in-chief
Defendant may introduce evidence of a relevant character trait by reputation or opinion testimony to prove conduct in conformity, thereby opening the door to rebuttal by prosecution
Excludes specific evidence of conduct
If the Defendant has “Opened the Door” by Calling the Character Witnesses, the Prosecution May Rebut…
(1) by cross-examining defendant’s character witness with “have you heard” or “did you know” questions about specific acts of the defendant that reflect adversely on the particular character trait that defendant has introduced (need good faith basis) (purpose, to impeach)
and/or
(2) by calling its own reputation or opinion witnesses to contradict the defendant’s witnesses
Reputation Questions
Have you heard?
Opinion Questions
Did you know?
Victim’s Character in Self-Defense Cases
Criminal defendant may introduce evidence of victim’s violent character to prove victim’s conduct in conformity, ie as circumstantial evidence that the victim was the first aggressor
Method: character W may testify to victim’s reputation for violence and may give opinion
Victim’s Character in Self-Defense Cases: Prosecution Rebuttal
Once defendant has introduced evidence of victim’s violent character, prosecution may rebut with opinion or reputation testimony regarding:
(1) victim’s good character for peacefulness and/or
(2) defendant’s bad character for violence
Victim’s Character for Violence Where Defendant’s Violent Reputation or Prior Specific Acts of Violence
If the defendant, at the time of the alleged self-defense, was aware of the victim’s violent reputation or prior specific acts of violence, such awareness may be proven to show the defendant’s state of mind– fear– to help prove he acted reasonably in responding to victim’s aggression
Character Evidence in Civil Cases: Conduct in Conformity
Character evidence is generally inadmissible to prove conduct in conformity.
Doesn’t matter if plaintiff or defendant
Doesn’t matter if conduct is criminal
First aggressor does not matter
Character in Civil Cases: Character Directly in Issue
Evidence of a person’s character is admissible in civil action where such character is an essential element of a claim or defense (provable by reputation, opinion, or specific acts)
Only a few situations
- Negligent hiring or entrustment
- Defamation (libel or slander)
- Child custody
Defendant’s Other Crimes or Acts for Non-Character Purpose: General Rule
Other crimes or specific bad acts of defendant are not admissible during the prosecution’s case-in-chief if the only purpose is to suggest that because of defendant’s bad character he is more likely to have committed the crime currently charged
Defendant’s Other Crimes or Acts for Non-Character Purpose: Specific Connection to Crime Charged
If defendant’s other crimes or bad acts show something specific about the crime charged, something more than mere bad character, such evidence may be admissible as evidence bearing on guilt.
Most common non-character purposes: MIMIC
Most Common Non-Character Purposes
MIMIC
Motive Intent Mistake or accident (absence of) Identity Common scheme or plan
Court must ensure defendant is actually contesting the issue to which MIMIC crime is addressed. If satisfied, can be used in prosecution’s case in chief.
Can also be used in civil cases!
Method of Proof of Independently Relevant Misconduct
(1) by conviction
(2) by other evidence (witnesses, etc.) that proves the crime or act occurred.
Conditional relevant standard: prosecution need only produce sufficient evidence from which a reasonable juror could conclude that defendant committed the other crime.
Upon defendant’s request, prosecution must give pretrial notice of intent to use MIMIC evidence and give a limiting instruction if warranted
Can also be used in civil cases
Other Sexual Misconduct to Show Propensity for Civil or Criminal Sex Crime Case
In a case alleging sexual assault or child molestation, prior specific sexual misconduct of the defendant is admissible as part of the prosecution’s case-in-chief or the plaintiff’s case-in-chief for any relevant purpose including defendant’s propensity for sex crimes (i.e. conduct in conformity with characters)
3 Potential Issues When You See a Writing (Other Than Relevance)
(1) Authentication
(2) Best evidence rule
(3) Hearsay
Authentication of Writings
A showing must be made that the writing is authentic (genuine) ie that it is what it purports to be
Standard for Authentication
Conditional relevancy standard: document is admissible if court determines there is sufficient evidence from which a reasonable juror could conclude document is genuine
Methods of Authentication
Witness’s personal knowledge
Proof of handwriting
- Lay opinion
- Expert comparison opinion
- Jury comparison
Ancient document rule
Solicited reply doctrine
Witness’s Personal Knowledge
Witness observed X sign the document
Proof of Handwriting: Lay Opinion
Lay witness testifies to opinion that X wrote document on basis of familiarity with X’s handwriting as a result of experience in normal course of affairs
Cannot become familiar with X’s handwriting for the sole purpose of testifying
Proof of Handwriting: Expert Comparison Opinion
Handwriting expert testifies to opinion that X wrote document on basis of comparison btwn document and genuine sample (exemplar) of X’s handwriting
Proof of Handwriting: Jury Comparison
Jury compares document with exemplar of X’s handwriting
Ancient Document Rule
Authenticity may be inferred if document is
- at lest 20 years old
- facially free of suspicion
- found in a place of natural custody
Solicited Reply Doctrine
Document can be authenticated by evidence that it was received in response to a prior communication to the alleged author
Authentication of Photographs
Witness may testify on the basis of personal knowledge that the photograph is a “fair and accurate representation” of the people or objects portrayed
Self Authenticating Documents
Presumed authentic- no need for foundation
- Official publications
- Certified copies of public or private recorder on file in a public office
- Newspapers or periodicals
- Trade inscriptions or labels
- Acknowledged documents
- Commercial paper
- Certified business records
(with reasonable written notice to adverse party)
Best Evidence Rule
“Original Writings Rule”
In order to prove the contents of a writing, recording, or photograph, the original must be produced.
A party who seeks to prove the contents of a writing (incl. sound recording, x ray films) must either produce original or have acceptable excuse– secondary and acceptable)
When Does the Best Evidence Rule Apply?
(1) the writing is legally operative document (ie the writing itself creates rights and obligations)
Patent, deed, mortgage, divorce decree, written contract
(2) Witness is testifying to facts that she learned solely from reading about them in a writing
When Does the Best Evidence Rule NOT Apply?
When a witness with personal knowledge testifies to a fact that exists independently of a writing that records that fact
What Qualifies as the “Original Writing”?
The writing itself, any counterpart intended to have the same effect effect, any negative of film or print from the negative, computer print-out
Duplicate
Any counterpart produced by any mechanical means that accurately reproduced the original (photocopy, carbon copy)
Handwritten copy NOT okay
Rule on Duplicates
Duplicate is admissible to same extent as original UNLESS it would be unfair (e.g. photocopy of a fuzzy fax) or a genuine question is raised as to authenticity of original
Excuses for Non-Production of Original
Lost or cannot be found with due diligence
Destroyed without bad faith
Cannot be obtained with legal process
Court must be persuaded by preponderance of evidence that excuse has been established; secondary evidence is then admissible
Escapes
Voluminous records: can be presented through a summary or chart, provided that the original records would be admissible and they are available for review
Certified copies of public records
Collateral documents
Two Basic Requirements for Competency of Witnesses in General
(1) personal knowledge
(2) oath or affirmation
