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.