Evidence Flashcards
Relevance
(1) Any tendency to make a fact of consequences to the determination of the action more probable or less probable than it would be without the evidence
(2) All evidence must meet this minimum standard to be admissible
Rule 403 Test
The court has discretion to exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following:
- Unfair prejudice
- Confusion of the issue
- Misleading the jury
- Undue delay
- Waste of time
- Needless presentation of cumulative evidence
Subsequent Remedial Measures
A precautionary measure put into place after an injury. This evidence is inadmissible to prove the following (but may be admitted for other purposes):
- Negligence or culpable conduct
- Defect in a product or design
- Need for a warning or instruction
Offers of Compromise
If a claim is disputed as to validity or amount, these statements – and any other statements or conduct in the negotiations – are inadmissible for the following purposes:
- Proving or disproving the validity or amount of the claim
- Impeaching a witness with a prior inconsistent statement or contradiction
Offers to Pay Medical Expenses
These statements – often made for humanitarian motives – are inadmissible, but accompanying statements (including admission of fault) will not be excluded.
Evidence of Liability Insurance
Inadmissible to prove fault or ability to pay a judgment, but admissible for other purposes (e.g., to prove ownership or control).
Character Evidence to Show Conformity
(1) Evidence of a person’s character trait, offered to prove that she acted the same way during the events of the current case
(2) Civil cases – not admissible
(3) Criminal cases –
1. Defendant may initiate if trait is relevant to defendant’s innocence (reputation or opinion only)
2. Prosecution may rebut by
a. Calling its own character witnesses (reputation or opinion)
b. Cross-examining defendant’s character witness about defendant’s bad acts
Character Evidence to Prove Direct Issue
(1) Rarely, a person’s character trait is an essential element of a charge, claim, or defense, such as:
1. Negligent entrustment/hiring
2. Defamation
3. Child custody
(2) All types of character evidence (reputation, opinion, specific acts) are admissible in this situation
Character Evidence Used to Impeach
Evidence that a witness has a bad character for truthfulness, offered to show that the witness’s testimony is not credible
1. Reputation or opinion evidence of untruthfulness 2. Prior convictions 3. Prior acts of misconduct involving untruthfulness
Habit Evidence
(1) Evidence of a person’s regular response to a specific set of circumstances
(2) Admissible to prove that the person acted the same way during the events at issue in the case
Defendant’s Specific Acts of Misconduct – Permissible Purposes for Offering
- Motive
- Intent
- Absence of mistake or accident
- Identity/modus operandi
- Common plan or scheme
- Any other relevant purpose except general criminal disposition
Impeachment with Prior Inconsistent Statement – Foundation for Extrinsic Evidence
(1) At some point during the proceeding, before or after extrinsic evidence of the statement is introduced:
1. Witness must be given an opportunity to explain or deny
2. Adverse party must be given an opportunity to examine the witness
(2) These requirements do not apply to opposing party’s statements or when impeaching a hearsay declarant
Impeachment with Evidence of Bias or Interest
(1) Witness may be impeached with evidence that she has some motive to lie
(2) Extrinsic evidence permitted if proper foundation is laid (asking the witness about the impeaching fact)
Impeachment with Prior Criminal Conviction
(1) Types of crimes:
1. Crime involving dishonesty or false statement (felony or misdemeanor) – court has no discretion to exclude
2. Any other felony – court has discretion to exclude
(2) General time limit – more than 10 years since the date of release or confinement, whichever is the later date
(3) Conviction may be proven on cross-examination or through extrinsic evidence (record of conviction)
Impeachment with Prior Bad Acts Involving Untruthfulness
A witness may be impeached by this method on cross-examination only; extrinsic evidence of the impeaching facts is never permitted.
Impeachment by Contradiction
(1) A witness may be impeached with facts that show he was lying or mistaken in part of his testimony
(2) Extrinsic evidence not allowed if witness’s testimony concerned a collateral matter
Hearsay Definition – Truth of the Matter Asserted
To be hearsay, the out-of-court statement must be offered for the truth of its contents
1. Common nonhearsay purposes (statements not offered for their truth):
a. To prove the statement’s effect on the reader/listener (e.g., notice of dangerous condition)
b. To prove a legally operative fact (e.g., words of defamation)
c. Circumstantial evidence of declarant’s state of mind (e.g., to prove insanity) d. Impeachment
Prior Inconsistent Statement – Hearsay Exclusion
Not hearsay when:
1. Made under penalty of perjury (under oath) at a trial, hearing, proceeding, or deposition 2. Declarant is now testifying and subject to cross-examination
Opposing Party’s Statement (Admission by a Party-Opponent) – Hearsay Exclusion
A statement by or attributable to a party, offered against that party, is not hearsay
1. Special types:
a. By Silence–failing to respond to an accusation that a reasonable person would have denied.
b. Vicarious–statements by someone else, but attributable to the party because of the relationship between them (including a statement by the party’s employee concerning a matter in the scope of employment).
Dying Declaration
(1) Declarant unavailable (but need not be dead)
(2) Declarant believed death was imminent
(3) Statement concerns the cause or circumstances of the apparently impending death
(4) Offered in a criminal homicide case or in any civil case
a) Does not apply in nonhomicide criminal cases
Former Testimony
(1) Made during a trial, hearing, or deposition
(2) Declarant is now unavailable
(3) The party against whom the statement is now offered (or in civil cases, the party’s predecessor in interest) had an opportunity and similar motive to develop the statement on cross-or direct examination.
Present State of Mind or Physical Condition
Concerns the declarant’s current emotion, feeling, sensation, or physical condition
1. Statements of intent may be offered to prove that the intent was probably carried out
2. No backwards-looking statements of memory or belief
a. Exception for statements remembered or believed concerning the validity/terms of declarant’s will
Excited Utterance
(1) Concerns a startling event
(2) Made while under the stress of excitement caused by the event
Present Sense Impression
(1) Describes or explains an event or condition
(2) Was made while perceiving the event or condition or immediately thereafter
Statement for Medical Diagnosis or Treatment
(1) Statements of physical condition (past or present) made for the purpose of obtaining medical diagnosis or treatment
(2) Includes statements about the cause of the condition, but only if reasonably pertinent to diagnosis or treatment
Records of a Regularly Conducted Activity (Business Records)
A record of an act, event, condition, opinion, or diagnosis, if:
- Made at or near the time it occurred
- Entrant had knowledge of the matters recorded, or obtained the information from someone who had knowledge and a business duty to report
a. Statements by outsiders need an independent hearsay exception - Made in the course of a regularly conducted activity of a business or other organization
- Making the record was a regular practice of that activity
- Authenticated by testimony or written certification by records custodian or other qualified persons
Recorded Recollection
(1) Witness once had personal knowledge of the facts recited in the writing
(2) Witness now has insufficient recollection to testify fully and accurately
(3) Writing was made or adopted by witness
(4) Writing was accurate when made
(5) If admissible, may be read into evidence, but may not be received by the jury as an exhibit unless offered by an adverse party
When Hearsay Statements Will Be Excluded under the Confrontation Clause
- Statement is offered against a criminal accused
- Declarant is unavailable
- Statement is testimonial in nature
a. Actual testimony
b. Statements to law enforcement to aid in prosecution (but not to assist in an outgoing emergency)
c. Forensic analysis reports accursing targeted person of criminal conduct - Accused had no opportunity to cross-examine the declarant about the statement prior to trial
Authentication of Evidence – General Standard
Proof sufficient to support a jury finding that the item of evidence is what the proponent claims it is.
Best Evidence Rule
- To prove the content of a writing, the original writing (includes a photocopy) generally must be produced
a. Secondary evidence is permitted if a satisfactory explanation is given - Generally applies in two situations only:
a. Writing is a legally operative or dispositive instrument (e.g., contract, will, divorce decree)
b. Witness’s knowledge of a fact results from having read it in the document
Judicial Notice of Facts
- A court’s recognition of a fact as true without formal presentation of evidence
- Applies to:
a. Facts of common knowledge in the jurisdiction
b. Facts that can be determined from easily accessible sources that are known to be accurate - The jury must accept the fact as conclusive in a civil case, but not in a criminal case.
