Evidence Flashcards
The Doctrine of Limited Admissibility (FRE 105)
Allows the court to admit evidence to be used for one purpose but not another
Relevance (401)
Evidence is relevant if it has ANY tendency to prove or disprove a material fact of consequence
Pragmatic Relevance Test (FRE 403) + Tip + Remember
Relevant evidence may be excluded if the PROBATIVE VALUE is SUBSTANTIALLY OUTWEIGHED by the danger of six trial/pragmatic concerns (unfair prejudice, confusion of issues, mislead jury, waste of time, etc.).
Tip: The evidence should relate to some time, event, or person in the present lawsuit (or similar occurrence).
Remember: FRE 403 FAVORS admissibility
Habit Evidence (FRE 406) + Tip
Admissible to describe one’s regular response to a specific set of circumstances and to show the person acted in the same way on the occasion in question.
Tip: Look for 1) particularity and 2) frequency (e.g. “always,” “instinctively,” “invariably,” or “automatically”)
Habit Evidence for Organizations
Habit evidence can be used to establish routine practice of an organization
Subsequent Remedial Measures (FRE 407) + Exception
Evidence of repairs or other precautionary measures made following an injury is inadmissible to prove negligence or a defect in product design.
Exception: Subsequent remedial measures are admissible to prove FDIC. (Feasibility, Destruction of evidence, Impeachment, Control of ownership.)
Settlement Offers in Civil Cases (FRE 408) + Remember + Exception
Evidence of compromise is inadmissible to prove or disprove the validity or amount of disputed claims or to impeach through prior inconsistent statements
Remember: There must be a claim disputed about fault OR damages, otherwise this rule will not come into play.
Exception: Settlements CAN be used to show the bias of a witness for impeachment purposes.
Pleas and Plea Discussions in Criminal Cases (FRE 410) + Remember
Neither withdrawn guilty pleas, pleas of nolo contendere (no contest), offers to plead guilty, nor evidence of statements made in negotiating such pleas are admissible in any proceeding.
Remember: If D pleads guilty in a criminal case, the plea may be admissible as an admission in a subsequent civil case.
Offers to Pay Medical Expenses and Similar Expenses (FRE 409) + Remember
Evidence that a party furnished or offered to pay hospital, medical, or similar expenses is inadmissible.
Remember: If a party makes an ADMISSION OF GUILT during an offer to pay, it IS ADMISSIBLE as admission/opposing party’s statement.
Liability Insurance (FRE 411) + Exceptions
Evidence that a person was or was not insured against liability is NOT admissible to prove the person was negligent or not at fault.
Exceptions: 1) Ownership of control and 2) Bias of witness
Character Evidence: Prohibited Use (FRE 404)
Evidence of a person’s character is inadmissible to prove conforming conduct, unless it meets recognized exception
Methods of Proving Character
1) Reputation in the community
2) Opinion testimony
3) Specific acts relevant to the character trait
Character Evidence of Defendant in Criminal Cases Offered by Defendant
The criminal defendant may introduce evidence of his own pertinent character trait (using ONLY reputation or opinion), but this opens the door for the prosecution to rebut.
Character Evidence of Defendant in Criminal Cases Rebutted by Prosecution + Remember
Prosecution may rebut the defendant’s character evidence by: 1) calling its own W to testify to the D’s relevant bad character (ONLY in the form of reputation or opinion), and 2) cross-examining D’s character W by questioning their knowledge of specific acts RELEVANT to the character trait.
Remember: Good faith requirement - prosecution must have a good faith basis to believe that the specific act took place and accept the W’s answer.
Character Evidence of Victim’s Character in Criminal Case Offered by Defendant
A criminal defendant may offer evidence of the victim’s VIOLENT character to prove that the victim was the first aggressor in the form of reputation or opinion
Character Evidence of Victim’s Character in Criminal Case Rebutted by Prosecution
Prosecution may offer: 1) evidence of victim’s good character for the pertinent trait, or 2) attack D’s character for same trait.
Character Evidence of Victim’s Character Special Homicide Case Rule (FRE 404(C))
In a homicide case where the D claims the victim was the first aggressor, the prosecution may offer evidence of the alleged victim’s trait of peacefulness to rebut D’s claim.
Character Evidence Main Exception in Civil Cases + Remember
Evidence of a person’s character is admissible in civil actions where such character is an essential element of a claim or defense, such as: Defamation, Negligent entrustment/hiring, child custody.
Remember: All three methods of introducing character evidence are allowed here (reputation, opinion, and bad acts)
Other Crimes for Non-Character Purpose (FRE 404(B)) + Tip + Remember (2)
If the defendant’s other crimes or specific bad acts are offered for SOME OTHER PURPOSE other than propensity, the evidence will not be barred by the rule against character evidence
Tip: MIMIC (motive, intent, absence of mistake, identity, common plan or scheme)
Remember (1): This applies in EITHER civil or criminal cases.
Remember (2): This evidence can be offered by either side.
General Rule of Authentication
Any writing offered into evidence must first be authenticated by laying a foundation to show the evidence is genuine. (E.g. admission, eyewitness testimony, or handwriting proof)
Best Evidence Rule + Exception
A party seeking to introduce the contents of a writing must either: 1) produce the original document, or 2) account for the absence of the original. If the explanation for the absence is reasonable, then a foundation has been laid for secondary evidence.
Exception: Where the witness has personal knowledge of events or items described in the writing, INDEPENDENT of the writing.
Refreshing Recollection
The witness cannot read from a prepared memorandum; must testify based on their current recollection. BUT, if the witness can’t recall, you can use ANYTHING to job their memory (typically a document).
Refreshing Recollection: Opponent’s Rights
The opponent is entitled to inspect the writing and offer it into evidence.
Lay Witness (FRE 701)
Lay witness opinion is admissible if: 1) Rationally based on witness’s perception, 2) assists the jury in deciding facts, AND 3) not based on scientific or specialized knowledge.
Expert Witness (FRE 702) + Basis of Expert’s Opinion (FRE 703) + Tip
Must be educated or trained in the proper subject matter.
Basis of Opinion: Expert must have opinion to REASONABLE degree of probability or certainty on ONE OR MORE: 1) Facts from own observation, 2) Evidence made known to expert at or before hearing, and 3) facts outside the record (including inadmissible hearsay) if of a type reasonably relied upon by experts in the field.
Tip: To be admitted, an expert’s testimony must be GRREAT. GATEKEEPER (trial court acts as gatekeeper to determine if expert is used), RELIABLE method is used by expert, RELEVANT, EVIDENCE that will ASSIST the TRIER of fact.
Prior Inconsistent Statement - Impeachment
ANY witness can be impeached by showing that he or she made a material statement inconsistent with the witness’s trial testimony.
Bad Reputation or Opinion About Witness’s Character for Truthfulness (FRE 608 (A))
Any witness may be impeached through reputation or opinion by permitting extrinsic evidence
Criminal Convictions (FRE 609) + Remember
Crimes Involving Dishonesty or False Statement: Any crime (felony or misdemeanor) may be used to impeach if it involves lying, deceit, or false statement WITHOUT the court’s discretion (e.g. fraud, embezzlement, perjury).
Felonies that DO NOT Involve Dishonesty or False Statement: Only a felony with the court’s discretion may be used to impeach a witness.
Time Frame: Generally, 10 years from the conviction OR release from prison, whichever is later.
Remember: Extrinsic evidence is permitted.
Bad Acts (Not Convictions) Relating to Witness’s Character for Truthfulness (FRE 608(b)) + Remember (3)
On cross-examination of a witness, specific acts may be inquired to the witness if they are probative of truthfulness.
Remember (1): No extrinsic proof is permitted.
Remember (2): Cross-examiner MUST have a good-faith basis
Remember (3): A cross-examiner can ask about the act BUT NOT the consequences of the act. (e.g. not allowed to ask if SUSPENDED for lying on a law school app, just the lying)
Bolstering
Introducing evidence to support a witness’s credibility before credibility is attacked AND is NOT ALLOWED.
Hearsay Definition
An out-of-court statement offered to prove the truth of the matter asserted (TOMA)
Common Non-hearsay Purposes
1) Legally operative facts (e.g. offered to prove the statement was made)
2) Impeachment
3) Effect on listener
4) State of mind
Hearsay Exclusions
Declarant Witness:
1) Prior Inconsistent Statement
2) Prior Consistent Statement
3) Prior Statement of Identification
Opposing Party’s Statement:
1) Party’s Own Admission
2) Adoptive Admission
3) Vicarious Admission
4) Co-Conspirator
Co-Conspirator Statements + Remember
Statements by a co-conspirator made DURING the course of the conspiracy and IN FURTHERANCE of the conspiracy are admissible to prove the TOMA in either civil or criminal cases if: a conspiracy existed, declarant was a member, and offered against a member of the conspiracy
Remember: Judge may let in statement of co-conspirator, subject to later independent proof of conspiracy
Adoptive Statement + Tip + Remember
A party adopts another person’s statement as true by words, conduct, OR remaining silent.
Tip: For silence as an adoptive statement/admission, the party must have (HURT): Heard the statement, Understood the statement, and a Reasonable person would have Taken exception.
Remember: Adoptive admissions do not count after being Mirandized
Vicarious Admission Statements
Statements by employees are admissible against her employer IF her admission:
1) was made within the scope of the employment
2) made while declarant was employed
Prior Inconsistent Statement + Remember
Prior inconsistent statement by a testifying witness given under oath at a prior proceeding (e.g. grand jury, trial, deposition) is NOT HEARSAY.
Remember: A prior inconsistent statement must be RELEVANT to the case
Prior Consistent Statement + Timing
Prior consistent statements generally cannot be used, UNLESS it is to rebut a charge of improper motive or to rehabilitate.
Timing: Prior consistent statement must be made BEFORE the alleged undue influence.
Declarant Unavailable Hearsay Exceptions
1) Former Testimony
2) Dying Declaration
3) Statement Against Interest
4) Statement of Personal or Familial History
5) Forfeiture Misconduct
Former Testimony Hearsay Exception (FRE 804(b)(1))
Statement given UNDER OATH at prior trial, now being offered AGAINST a party to the prior proceeding, and the party against whom the statement offered had PRIOR OPPORTUNITY to examine the declarant with a SIMILAR MOTIVE
Dying Declaration Hearsay Exception (FRE 804(b)(2)) + Tip
Statement that RELATES to cause of death when the declarant believes death is IMMINENT in ALL CIVIL or only homicide cases.
Tip: CUBA (Cause of death, Unavailable, Believes death is imminent, All civil or homicide)
Statement Against Interest Hearsay Exception (FRE 804(b)(3)) + Remember
Statement of a non-party declarant is admissible if it was against declarant’s interest when made (pecuniary, property, or penal) AND a reasonable person would not have made the statement unless he thought it was true.
Remember: If statement INCRIMINATES declarant, the rule requires CORROBORATING CIRCUMSTANCES to indicate trustworthiness
Rule 803 Hearsay Exceptions
1) Present Sense Impression
2) Excited Utterance
3) Then-Existing State of Mind
4) Past Recorded Recollection
5) Business Records or Absence Thereof
6) Public Records or Absence Thereof
8) Statement for Purpose of Medical Treatment
9) Prior Felony Judgments
10) Learned Treatises
Present Sense Impression Hearsay Exception (FRE 803(1))
Statement (oral or written) that describes or explains an event or condition made WHILE PERCEIVING the event OR immediately thereafter
Excited Utterance Hearsay Exception (FRE 803(2))
A declarant’s description of a startling event that causes the declarant to be excited or shocked made WHILE the declarant is under the stress.
Then-Existing State of Mind Hearsay Exception (FRE 803(3)) + Remember
Statement of declarant’s then-existing state of mind, emotion, or physical condition is admissible to prove INTENT, PLAN, MOTIVE, or MENTAL FEELING
Remember: The existing state of mind can include a statement of intent in order to PROVE FUTURE ACTS (must look forward), UNLESS the statement is describing a WILL
Statement for Purposes of Medical Diagnosis or Treatment Hearsay Exception
Statement made by patient, family member, good Samaritan to medical person, doctor, ambulance, attendant, etc., for PURPOSE OF DIAGNOSIS describing the CAUSE of injury (not fault), if PERTINENT to diagnosis
Recorded Recollection Hearsay Exception (FRE 803(5)) + Remember
When a witness cannot recall, a document of an event that relates to facts the W cannot presently remember, but did know earlier AND was adopted by the witness can be admitted
Remember: Contents can only be READ into evidence, the jury will not receive the document, UNLESS adverse party introduces the document
Business Records Hearsay Exception (FRE 803(6)) + Absence of Business Records
Authenticated by a custodian or qualified witness with knowledge of facts may submit a business record made CONTEMPORANEOUSLY with business transaction made in the NORMAL course of business
Absence of Business Records: The same requirements for FRE 803(6), but a diligent search fails to show the transaction occurred.
Public Records & Reports Hearsay Exception (FRE 803(8)) + Absence of Public Records w/ Tip
Records, reports, statements, or data of a gov’t agency that describes one of the following three areas, unless the opponent shows that the sources appear untrustworthy:
1) The ACTIVITIES of the agency
2) Any matter OBSERVED by a public official with a duty to observe and report (INADMISSIBLE for reports against a defendant in a criminal trial)
3) Investigative reports in CIVIL cases, and against the gov’t in CRIMINAL
Absence: Evidence that a diligent search failed to reveal public records AND testimony by qualified witness
Tip: AOC (activities, observations, civil case investigative reports or gov’t in criminal)
Prior Felony Judgments Hearsay Exception (FRE 803(22)) + Remember
Evidence of a final judgement of conviction that is a FELONY admitted to prove any fact essential to the judgement is admissible
Remember: Civil and criminal, but if offered by prosecutor in a criminal case, it must be a judgement against the D.
Confrontation Clause + Tip
In a CRIMINAL case, the prosecution cannot offer testimonial (providing substantive information) hearsay (even if it falls within an exception), UNLESS the D has the opportunity to cross declarant OR declarant is unavailable and defendant had a prior opportunity to cross
Tip: Calls for help (or ongoing emergency)= non-testimonial
911 call or other statement providing information to help solve the case = testimonial
Attorney-Client Privilege Definition
Confidential communication between attorney and client made DURING professional consultation are privileged from disclosure unless waived by client or an exception applies.
Exceptions to Attorney-Client Privilege
1) Future crime or fraud
2) Client makes an issue of legal advice
3) Dispute between attorney and client
Spousal Immunity
One spouse cannot be forced (privilege belongs to testifying spouse) to give adverse testimony against the other in a CRIMINAL case so long as the spouses are married at the time of trail, but privilege applies to matters that pre-date the marriage AND protects against ALL adverse testimony
Confidential Marital Communications Privilege
Spouse is not required and not allowed without the other spouse’s consent to disclose confidential communication made from one to the other DURING the marriage. Must be married at the time of the COMMUNICATION (as opposed to trial for spousal immunity). Privilege applies in civil and criminal (not just criminal like spousal immunity).
Exceptions to Spousal Immunity and Marital Communications Privilege
1) Communications in furtherance of future crime or fraud
2) Acts destructive of family (e.g. child abuse)
3) One spouse suing another
(PA) Statements from a learned treatise
To impeach an expert when his opinion differs, but not as substantive evidence.
(PA) Ancient documents
A document must be 30 years old to qualify as “ancient,” but documents affecting interest in property other than a will are admissible regardless.
(PA) Dying Declaration
Same rule, but applies in ALL CASES
(PA) Opinion Testimony by Expert Witness + Frye Test
Expert testimony is ADMISSIBLE when it is based on scientific, technical, or other specialized knowledge, BEYOND THAT POSSESSED BY A LAYPERSON
Fry Test: Permit expert testimony ONLY on a subject that has gained GENERAL ACCEPTANCE in the particular field (only applies to novel scientific principles)
(PA) Difference in admission of a party opponent
Considered an EXCEPTION to hearsay in PA
(PA) Difference in testifying witness’s prior consistent statement
Only admissible as rehabilitative evidence (not substantive like FRE)
(PA) Prior Inconsistent Statements - Foundation for Extrinsic Evidence
Extrinsic evidence of a prior inconsistent statement is admissible only if DURING the cross-examination of the witness he is given an opportunity to explain or deny the statement (FRE requires only that the witness be given an opportunity to explain or deny at some point)
(PA) Spousal Immunity
In a CRIMINAL proceeding, a person holds a WAIVABLE privilege not to testify against his or her spouse, in CIVIL, NEITHER spouse is competent to testify unless BOTH spouses waive the privilege. (FRE requires only witness spouse)
(PA) Cross-Examination of a Character Witness Regarding Convictions in a Criminal Case
A defense character W in a CRIMINAL case MAY NOT be asked on cross whether he KNOWS OR HAS HEARD of a defendant’s arrests or criminal misconduct NOT RESULTING IN A CONVICTION
(PA) Prior Inconsistent Statement + Elements
PA recognizes a hearsay EXCEPTION for declarant witness’s prior inconsistent statement.
Elements: To be admissible it must have been:
(1) made under oath,
(2) was a writing signed and adopted by the witness, or
(3) a contemporaneous audio or video recording
(PA) Which party may be cross-examined on all relevant issues, regardless of whether the issues were brought up on direct examination?
A party in a civil case
(PA) Expert opinion testimony on the ultimate issue to be decided by the trier of fact:
Similar to FRE, PA allows expert testimony embracing the ultimate issue in a case, unlike FRE, PA does not prohibit the issue in a criminal case with regard to mental state
(PA) Criminal defendant may introduce evidence of a victim’s character for a pertinent trait through:
Reputation or specific acts testimony, NOT OPINION
(PA) Means of Proving Character - Character Witness
Opinion testimony regarding character is NOT ADMISSIBLE in PA, only Reputation is allowed.
(PA) Judicially noticed facts
Not conclusive in any case - criminal or civil
(PA) Persons convicted of perjury in PA are not competent to testify in:
Civil matters, but may testify in criminal matters
(PA) Physician-patient Privilege Rules (3) + Exceptions
(1) Applies only in CIVIL CASES, (2) Only information that BLACKENS THE CHARACTER of the patient will be protected from disclosure, and (3) can ONLY BE ENABLED BY PATIENT, not physician
Exceptions: Recall a driver’s license, child abuse, injuries from criminal acts or deadly weapons, and involuntary commitment proceedings.
(PA) Discretionary Exclusion of Relevant Evidence
Evidence may be excluded if its probative value is OUTWEIGHED by the danger of unfair prejudice, confusion of issues, or misleading jury
FRE: Evidence may be excluded if its probative value is SUBSTANTIALLY OUTWEIGHED by unfair prejudice
(PA) Consumption of Alcohol in Civil Cases + Remember
Evidence of alcohol consumption prior to an accident IS INADMISSIBLE as unfairly prejudice, UNLESS there is evidence the intoxication proving an unfitness to drive.
Remember: Evidence of alcohol consumption in civil cases is admissible only WHERE RECKLESSNESS OR CARELESSNESS IS AT ISSUE. The evidence MUST establish intoxication.
(PA) Victim in Criminal Case
A defendant MAY NOT introduce opinion evidence of the victim’s character, but MAY introduce evidence of reputation or specific bad act
(PA) Specific Acts of Misconduct - Admissible if Independently Relevant
In CRIMINAL cases, the prosecution must ALWAYS provide “reasonable” pretrial notice of any specific act evidence
(PA) Authentication of Social Media Evidence
The proponent of social media evidence that tends to CORROBORATE THE IDENTITY OF THE AUTHOR of the communication in question
(PA) Perjury Conviction
Convicted perjurers MAY NOT testify in CIVIL matters
(PA) Spouses as a Testifying W
Spouses are generally incompetent to testify against each other in civil cases, EXCEPT divorce, child abuse, and custody proceedings
(PA) Dead Man Acts + Exception
Prohibits ONLY TESTIMONY (documentary evidence okay) of an interested person for testifying in a CIVIL case as to any transaction or event that occurred BEFORE decedent’s death if the decedent has an interest in the litigation
Exception: A party waives this rule if it takes the deposition, sends interrogatories, or engages in other discovery with respect to an adverse party.
(PA) Past Recollection Recorded
The recorded recollection may be read into evidence and received as an exhibit by the adverse party OR the proponent
(PA) Opinions of Lay Witnesses - Speed of Moving Objects
The speed of VEHICLES must be expressed in terms of miles per hour
(PA) Bias or Interest - Foundation for Extrinsic Evidence
There is NO REQUIREMENT of questioning a witness about the bias before offering extrinsic evidence of it.
(PA) Crimes Not Involving Dishonesty - Impeachment
A witness MAY NOT be impeached by any crime that does not involve dishonesty or false statement
(PA) Specific Instances of Misconduct - Bad Acts - Impeachment Purposes
A witness MAY NOT be asked about prior bad acts not resulting in conviction, EVEN if probative of truthfulness
(PA) Prior Statement of Identification and Statements by Opposing Party Difference
In PA, these are considered EXCEPTIONS, not exemptions. (Considered hearsay, but exception applies.)
(PA) Hearsay Exception - Medical Diagnosis or Treatment
The exception for statements for medical diagnosis or treatment ONLY applies when the statement is made IN CONTEMPLATION OF TREATMENT
(PA) Guilty Plea to a Summary (Minor) Offense - Admissibility
A guilty plea to a summary offense is generally INADMISSIBLE in a related action because the probative value is usually outweighed by the danger of unfair prejudice.
(PA) Competency of Children Witness or Mental Condition
A person is incompetent to testify if the court finds that, due to MENTAL CONDITION OR IMMATURITY, the person: (i) is or was incapable of perceiving accurately, (ii) is not able to be understood even through an interpreter, (iii) has an impaired memory, OR (iv) does not understand the duty of truthfulness
(PA) Clergy-Communication Privilege
The clergy-communication privilege applies ONLY to confidential communications between a communicant and a member of the clergy IN HIS ROLE as a confessor or spiritual counselor.
Evidence of Similar Accidents (Unrelated to Current Case)
Evidence of similar accidents occurring at substantially the same place and under similar circumstances MAY be admissible to prove CONSTRUCTIVE NOTICE of a dangerous condition AND the likelihood of injury.
How Juries Assess Punitive Damages
In assessing punitive damages, the jury must consider the CHARACTER OF THE ACT underlying the claim, the HARM suffered by plaintiff, AND the WEALTH OF THE DEFENDANT.
(PA) Cell Phone Records Admitted as Evidence
Cell phone records are ADMISSIBLE, as a business record exception, because there are no circumstances indicating a lack of trustworthiness because they were not compiled in anticipation of litigation
(PA) Crimen Falsi (Crimes Involving Dishonesty) to Impeach Witnesses + Example
Crimes involving dishonesty, and recent convictions (within 10 years) are admissible for impeachment purposes.
Example: Robbery, perjury, embezzlement, fraud
Elements for an Accused to be Confronted by their Accuser, Despite Potential Hearsay Exceptions Present
A hearsay statement will not be admitted-even if it falls within a hearsay exception-when: (i) the statement is offered against the accused in a criminal case; (ii) the declarant is unavailable; (iii) the statement was testimonial in nature; and (iv) the accused had no opportunity to cross-examine the declarant’s “testimonial” statement prior to trial.
