Evidence Flashcards
Does D open the door to his character simply by testifying?
NO, but he does put his credibility at issue and can be attacked.
Can D call any witness to testify to any of his good characters?
No, D can call anyone to testify to his good character , but MUST BE RELATED TO THE TRAIT AT ISSUE.
Can talk about good reputation and good opinion, but not specific instances on direct.
How can P rebut D’s good character evidence?
What can P do
- call a witness to testify his rebutting opinion about D
- call a witness to testify re D’s reputation to the contrary
- cross D’s witness with specific instances.
What P cannot do:
- if w denies the specific instance, P CANNOT OFFER ANY EXTRINSIC PROOF, must accept answer as it is.
- P cannot offer rebutting extrinsic evidence re any specific instance.
Careful: difference between D offering good relevant character er evidence v. rule that cannot bolster your witness until attacked.
D can always open the door to his character by introducing w’s testimony re his reputation or w’s opinion re D’s trait at issue.
THIS IS AN INDEPENDENT GOOD GROUNDS, AND IS NOT BARRED when
D testifies as a witness => can’t say now bringing a witness will be bolstering your unattached witness.
When P cannot bring trustworthiness ev. against D?
When P always can?
Note: when D testifies, P can always bring in trustworthiness attack => as impeachment (cannot say it is not relevant)
When D does not testify and the issue at the case is not tied to trustworthiness (fraud, etc.), P cannot bring trustworthiness evidence.
Can D open the door to character in a civil case?
NO, this rule applies only in criminal context.
in civil, character only comes in if:
1) sexual assault/child molestation
2) character is at issue
- defamation
- negligent instrument
- child custody
- loss of consortium
- negligent hiring
can use all => reputation, opinion, specific instance.
When is the character at issue in a civil case?
Character is said to be at issue in a civil case when proof of a person’s character, as a matter of substantive law, is an essential element of a claim or defense.
For example, when a defendant in a negligent hiring case is alleged to have hired an unstable employee, the character of the employee is indeed at issue in the case.
Defamation cases are another example of where character is at issue (e.g., defendant may use character evidence as part of her affirmative defense that she spoke the truth when she called plaintiff a thief).
However, these types of situations are rare.
In a typical breach of contract, battery, or product liability case, the character of the parties is not directly at issue.
Such circumstantial use of prior behavior patterns for the purpose of drawing the inference that, at the time and place in question, the actor probably acted in accord with her prior behavior pattern is not permitted in civil cases.
Habit v. Character evidence
Habit evidence concerns a person’s regular response to a specific set of circumstances.
Character evidence describes one’s disposition with respect to general traits.
how sure must cross examiner be about bad acts to ask the w?
33% - ish is enough
L must have reasonable bases to believe that bad act happened.
Can use extrinsic evidence (EE) or Specific Instance to prove character
- bais
- habit
- sex abuse/child mol.
- past conviction
- prior inconstant st. impeachment
Cannot use EE or specific instance
- attack w truthfulness with a counter-witness on direct
- cross w about non-convict untruthfulness (better try bias cuz can bring SI and EE)
Impeachment bases (WON)
Liar by Nature – attack truthfulness
- calling CW on direct on say W is a liar
- cross w about non-convict misconduct
- cross w about his convictions (once a convict, always a liar)
Prior Inconsistent Statement of W - testimony is not accurate
Prior EE - w is a liar based on facts
Won’s 7 ways to attack an Expert
1) Qualified? (knowl., skill, experience, ed., training)
2) Proper Topic? (assist jury, gives tools, no bold concl, disabuse misconception, add depth, beyond the ken
3) Data problem? – other experts rely? Reliable in this case, hearsay? If yes - reverse 403), testimonial?
4) Reliable? (methodology) – Daubert + analytical gaps, expert’s experience, alternat., is the field reliable
5) Logical deficiency? (methd) Kumho -analytical gap?
6) Relevant (method) – fits facts of the case or does not makes sense for our case?
7) 403? – too prej. science (Korean bizman - not probat. to talk about honesty of a race; 2% lie is too strong)
Won - Not hearsay because
Not Hearsay Because
1) Natural verbal act (ouch) – NA 2) Not implied assertion – what’s offered for does not match the intent
3) not assertion –did’t intend to assert what it’s here for
4) not made out of court
5) shows state of mind (knew, felt, believed) – not for truth
6) impeach – not for truth
7) verbal act of legal consequence (defamation, K) – not for truth.
8) explains ambiguity behind physical act – not for truth (pen back)
In order for a defendant’s prior misconduct to be admissible for some relevant non-character purpose (motive, intent, etc.), there must be:
sufficient evidence to support a jury finding that the defendant committed the prior act.
33% 😉
When no 403?!
P brings in honesty-related past conviction
Reverse 403 - if prior conviction is over 10 from date of conviction or release, whatever is later
Does doc. used to refresh recollection have to be authenticated?
Nope.
not a hearsay either (question to look up: IF OP OFFERS REFRESHING DOC INTO EVIDENCE, DOES IT HAVE TO BE AUTHENTICATED?
“past recorded recollection” Hearsay exception
- where a witness’s memory of an event cannot be revived by reviewing a memorandum or other record
- made by the witness
- at or near the time of the event,
a party may introduce the record into evidence by reading it aloud to the jury.
note: this does not automatically make the document admissible, unless OP request to be admitted.
What can w use to refresh recollection?
A witness may use any writing or thing for the purpose of refreshing her present recollection.
present recollection refreshed V. past recollection recorded
Present Recollection Refreshed = w reviews silently and remembers and testifies.
- note: can use ANYTHING to refresh memory, even if it is tax record saying the number that L has been asking about, W looks at it, say I remember now.
=> OP can request to admit into evidence as na exhibit.
Past Recollection Recorded = w still does not remember, writing by w, near the time of the relevant event, can read out loud to the jury.
NOTE: this does not admit it as an exhibit into evidence unless OP requests to admit into evidence as na exhibit.
Can lay witness make conclusive statement about whether there was authority to act?
No! When agency or authorization is in issue, a lay witness generally may not state a conclusion as to her authorization. Thus, a lay witness cannot testify that her employer directly authorized her to enter into a contract where that is at issue in the case.
examples of what lay witness can testify to
- A was drunk
- car was going fast / estimate car speed
Expert testimony
=> Helpful
(i) The opinion must be relevant, and
(ii) The methodology underlying the opinion must be reliable.
=> The opinion of an expert witness may embrace the ultimate issue in the case
=> To testify as an expert, a person must have special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates.
=> The expert must possess reasonable certainty or probability regarding his opinion. If the opinion of the expert is a mere guess or speculation, it is inadmissible.
WHAT CAN EXPERT WITNESS BASE ITS OPINION ON?
the expert may base an opinion on
=> facts that he knows from his own observation
=> facts presented in evidence at the trial and submitted to the expert (can sit at the courtroom ant listen)
=> facts not in evidence that were supplied to the expert out of court and which are of a type reasonably relied upon by experts in the particular field in forming opinions on the subject.
If facts on which experts based on is inadmissible, the proponent of the expert opinion MUST NOT DISCLOSE those facts to the jury UNLESS the court determines reverse 403.
Lay witness elements:
(i) rationally based on the perception of the witness;
(ii) helpful to a clear understanding of her testimony or to the determination of a fact in issue; and
(iii) not based on scientific, technical, or other specialized knowledge. Matters involving sense recognition, such as what something smelled like, are common subjects of opinion testimony.
When crossing re prior bad acts, can judge stop the questioning.
Yes, judge can allow the L to go on and on or stop at one point.
Note: L on cross can not introduce EE, even if w lies, all he can do is keep questioning 🤓
When is prior statement of testifying w not hearsay?(exemption)
w must now be present at court and subject to cross 👇🏻🙉
- PRIOR CONSISTENT st. to rebut NON-character related attack if st. was made within reasonable time and makes sense as a rebuttal.
> recent fabrication
> improper influence/motive
> st. made BEFORE bribe accusation to show was not affected by bribe. - Statement of identification made after seeing the person.
- if it is a prior INCONSISTENT statement given under oath (trial or depo) - can be character-related (ok if for impeachment)
Prior inconstant statement - hearsay exception
- if under oath (trial/depo) can come in to prove truth of the matter asserted.
- if not under oath - to impeach only, not to the truth.
previous felony conviction for lying over 10 years
reverse 403 - probably inadmissible
Can description of past condition be an exception?
Yes if made to medical people for treatment purposes.
No description of then existing condition exception.
When is the communication between corporation employee and corp. lawyer not privileged?
if the employee is not connected to the incident and is a mere witness.
- ex: corp. truck hit a pedestrian, another corp employee sees this. Corp asks employee to write a letter to corp. lawyer explaining what happened. => no privilege!
Does the best evidence rule apply to testimony?
No, not to oral stuff, but to written docs, recording, etc.
Hearsay and Privileged Communication
- check who’s testifying? (spousal privilege may bar spouses from testifying at all)
- check if actually privileged - no privilege if it was said aloud and others heard it.
- if others overheard privileged people yelling at each other, no privilege will bar them, overhearing party may testify if it falls under a hearsay exception.
Does the judge have a discretion to exclude a testifying witness from courtroom during other witness’ testimony?
No, the judge HAS TO exclude witness IF A PARTY REQUESTS.
If party does not request, the judge MAY exclude on its own.
Can judge allow cross-examining witness outside of the scope of direct?
Yes, usually not allowed, but judge can choose to allow.
Can L use leading questions on cross?
Usually allowed, but judge has discretion to not allow (including cross of D by D’s lawyer.)
Can you use stuff beyond the scope of direct on cross?
Yes, can use stuff to impeach even if not raised on direct
also, judge has discretion to allow more expansion as long as does not turn into abuse of discretion.
Check for party opponent exception
is it cross or direct?
D’s previous statement not hearsay if he’s on cross => party opponent
D’s previous statement are hearsay on direct => is introducing his own previous statement
What is NOT hearsay (exemptions)
- prior inconsistent statements of testifying w taken under oath in previous depo or trial
- PRIOR CONSISTENT st. of testifying w to rebut NON-character related attack if st. was made within reasonable time and makes sense as a rebuttal.
- prior id statements
- opposing party statement
Can you impeach your own witness?
Yes => For the purpose of impeaching the credibility of a witness, a party may show that the witness has, on another occasion, made statements that are inconsistent with some material part of his present testimony.
Prior inconsistent statement under oath
A testifying witness’s prior inconsistent statement made while under oath and subject to penalty of perjury in a deposition or prior hearing is not hearsay under the Federal Rules, and is therefore admissible as substantive evidence of the facts asserted.
Can you use extrinsic evidence to impeach with prior inconsistent statement?
Yes, can use EE!
When can you use prior inconsistent statement to prove truth of the matter?
if made under oath (prior trial, depo) => not hearsay at all.
Does spousal or marital communication privilege cover a conduct of spouse in response to police searching home?
NO! admissible if relevant.
Spousal immunity prohibits the prosecution from compelling one spouse to testify against the other in a criminal proceeding.
The privilege for confidential marital communications protects communications (i.e., expressions intended to convey a message) between spouses made in reliance on the intimacy of the marital relationship.
No privilege applies to observations of a spouse’s condition, actions, or conduct.
Furthermore, this is a testimonial privilege and probably would not prevent the wife from handing over real evidence.
Would it cover if a spouse had given the jacket to wife to hide?! => wife would have to turn over the jacket if asked by police, but could not testify about what husband told him about jacket (this would be protected).
Can you use extrinsic evidence to impeach?
Yes, but must meet foundation requirement => give w opportunity to explain/deny.
includes: => prior inconsistent statement => bias, interest, motive => past convictions => reputation or opinion
cannot use EE
=> non-conviction misconduct re untruthfulness
Offer to pay medical stuff
not admissible
> stuff around it is admissible UNLESS is part of a settlement offer
Does a testifying OP have to have personal knowledge?
Lack of personal knowledge does not necessarily exclude an opposing party’s statement.
An opposing party’s statement may be in the form of an opinion. The only requirement is that it concern one of the relevant facts
What is not hearsay?
- independent legal consequence
- effect on w (not for truth)
- evidence of state of mind (I am Santa)
- Opposing party
- Prior inconsistent statements of testifying witness
> if under oath, - Prior consistent statements of testifying witness
> rebut non-character attack, or ID
When is silence an adoptive statement?
(i) the party must have heard and understood the statement;
(ii) the party must have been physically and mentally capable of denying the statement; and
(iii) a reasonable person would have denied the accusation under the same circumstances.
Party can be vicariously responsible for
Authorized spokesperson;
partner;
co-conspirator;
principal-agent
NOT responsible for what co party (co-defendant) says
When can an employee statement be attributed to employer for OP hearsay exception purposes?
The statement can be attributed to the employer, provided
(i) it was made while the person was employed by the employer (not before or after the period of employment) and
(ii) the statement related to the employment.
exceptions to foundational requirement for EE (opportunity to deny or explain)
> if the inconsistent statement was made by a hearsay declarant, the declarant may be impeached despite the lack of a foundation.
> foundation is not required when the inconsistent statement qualifies as an opposing party’s statement.
hearsay v. EE foundational requirement analysis
Hearsay => statement, offered to prove truth
EE => Whether the witness is given an opportunity to explain or deny the inconsistent statement relates to whether extrinsic evidence of the statement can be used to impeach the witness. It does not relate to the hearsay analysis.
Can a party impeach her own witness?
YES, because the Federal Rules permit a party to impeach its own witness, even if not “surprised.”
but cannot put a witness up just to impeach them.
Is quoting the defamatory statement a hearsay?
NO, In a defamation action, evidence of the statement alleged to be defamatory is not hearsay because the evidence is by definition not offered to prove the truth of the matter asserted. It is offered only to show that the actionable statement was made.
Can you use religious belief to attack credibility?
Evidence of the religious beliefs of a witness is not admissible to challenge credibility. Lack of religious belief is no longer a basis for excluding a witness. Not only are a person’s religious convictions irrelevant in determining the competence of a witness, Federal Rule 610 provides that a witness’s religious beliefs or opinions are not admissible to show that the witness’s credibility is thereby impaired or enhanced.
ex: cannot ask in cross - isn’t it true that you are atheist even though you took an oath before your testimony?
Is a witness incompetent because he served on a jury against the D ?
A witness is not rendered incompetent simply by having served on a jury in a prior case involving a party to the current suit. Such prior jury service might render the witness’s testimony unpersuasive, but it would not make it inadmissible.
What does best evidence rule cover?
DOCUMENTS - “letters, words, numbers, or their equivalent, set down in any form”
does NOT cover other stuff - statutes, etc. to testimony
