Evidence Flashcards
Logical Relevance (28%)
Evidence MUST be relevant in order to be admissible. Evidence is relevant if it is both:
(1) Probative; AND
(a) Evidence is probative if it has any tendency to make a fact more or less probable than it would be without the evidence.
(2) Material.
(a) Evidence is material if it is a fact of consequence in determining the outcome of the action.
Character Evidence: Generally (24%)
Character evidence is evidence of a person’s character or a person’s specific character trait (e.g., he is violent; she is honest; he is a reckless driver; etc.). There are three forms of character evidence that can be presented:
(1) Reputation in the community (e.g., “Everyone in the community knows Johnny is violent.”); (2) Opinion testimony (e.g., “I personally think Johnny is a violent person.”); AND (3) Specific Instances (e.g., “I saw Johnny get into a bar fight last weekend.”)
Character Evidence: Civil Case (24%)
In civil cases, character evidence is NOT admissible for propensity purposes (i.e., evidence of someone’s character cannot be introduced to show that they have the propensity to act in accordance with the alleged character trait), UNLESS:
(1) Character is an essential element of a claim or defense (e.g., defamation, negligent hiring, negligent entrustment, child custody, etc.); OR
(a) If character is an essential element of a claim or defense, it may be shown by reputation, opinion testimony, or specific instances.
(2) The case is based on the defendant’s sexual misconduct (allowed to introduce evidence of a past sexual assault or child molestation by the defendant).
Character Evidence: Criminal Case (24%)
In criminal cases, the prosecution CANNOT introduce evidence of a defendant’s bad character to prove that the defendant has the propensity to have committed the crime in question. However, the defendant may “open the door” and present positive character evidence as long as it is:
(1) Pertinent to the crime charged (e.g., if the crime charged involves violence, the defendant may only put on character evidence of non-violence); AND (2) Through reputation or opinion testimony (NOT specific instances of conduct).
If the defendant opens the door by presenting evidence of positive character, the prosecution may then introduce negative character evidence (must relate to the same character trait in question) to rebut the defendant in two different ways:
(1) The prosecution can call its own character witness; OR
(a) The witness is limited to reputation or opinion testimony (NOT specific
instances of conduct).
(2) The prosecution can cross-examine the defendant’s character witness.
(b) On cross-examination, the prosecution can introduce evidence of specific instances as long as it relates to the same character trait in question (e.g., “Are you aware that the defendant was involved in a bar fight last week? Does this change your opinion of his character?”).
Character Evidence: Evidence of Victim’s Character in Criminal Case (24%)
A criminal defendant may introduce reputation or opinion testimony of the victim’s character if it is relevant to one of the defenses asserted. If the defendant does so, the prosecution may rebut by presenting evidence that:
(1) The defendant possesses the same character trait; OR (2) The victim possesses a relevant positive character trait.
If this is done on cross-examination, the prosecution may introduce specific instances of conduct to rebut.
Character Evidence: Rape Cases (24%)
In cases involving rape, evidence offered to prove a victim’s sexual behavior or predisposition is NOT admissible. However, in civil cases involving sexual misconduct, evidence offered to prove a victim’s sexual behavior or misconduct may be admissible if its probative value substantially outweighs the danger of harm to the victim and unfair prejudice to any party.
Admissibility of Specific Instances of Conduct (24%)
a) Specific instances of conduct are generally NOT admissible to show propensity, BUT are admissible to show (M.I.M.I.C.):
(1) Motive or opportunity;
(2) Intent;
(3) Absence of Mistake;
(4) Identity; OR
(5) Common plan or preparation.
b) Specific instances of conduct are admissible for MIMIC purposes if:
(1) There is sufficient evidence to support a jury finding that the defendant committed the prior act (i.e., cannot “fish” for prior acts without proof); AND
(2) The probative value of the specific instances of conduct is NOT substantially outweighed by the danger of unfair prejudice to the jury.
Hearsay (32%)
a) Hearsay is an out-of-court statement that is offered to prove the truth of the matter asserted. Hearsay is NOT admissible UNLESS it falls under a valid exception.
b) A “statement” includes a person’s oral assertions, written assertions, or nonverbal conduct if the person intended it as an assertion (e.g., head nod, thumbs up, etc.).
Non-Hearsay: Generally (32%)
a) If an out-of-court statement is NOT offered to prove the truth of the matter asserted, the statement is NOT hearsay and is admissible. Common examples of statements that are NOT offered to prove the truth of the matter asserted (thus are admissible) include:
(1) Verbal acts of independent legal significance (i.e., the statement is offered to prove that the statement itself was made, irrespective of its truth – e.g., defamatory statements, threats, etc.);
(2) Statements offered to show the effect on the listener;
(3) Statements offered to show the declarant’s mental state or state of mind; AND
(4) Statements offered for impeachment purposes.
b) The Federal Rules of Evidence have categorically deemed the following statements as admissible, non-hearsay:
Prior Inconsistent Statements
Prior Consistent Statements
Prior statements of identification
Admissions by a party opponent
Non-Hearsay: Prior Inconsistent Statement (32%)
Prior inconsistent statements are admissible for substantive purposes if:
(a) The declarant is testifying at trial and is subject to cross-examination;
(b) The statements were previously made under penalty of perjury (i.e.,
under oath); AND
(c) The prior statements are inconsistent with present testimony being
given at trial.
If the statements were NOT previously made under penalty of perjury, they can be offered only for impeachment purposes (not substantive purposes).
Non-Hearsay: Prior Consistent Statement (32%)
Prior consistent statements are admissible to rebut a claim that the declarant is fabricating or has a recent motive to fabricate the statement in court if:
(a) The declarant is testifying at trial and is subject to cross-examination; AND (b) The prior consistent statement was made before the declarant had a motive to fabricate the statement.
Non-Hearsay: Prior Statements of Identification (32%)
(e.g., prior out-of-court identifications in lineups, photo arrays, etc.) are admissible for substantive purposes if the declarant is testifying at trial and is subject to cross-examination.
Non-Hearsay: Admissions by a Party Opponent (32%)
Admissions by a party opponent (prior out-of-court statements made by a party to the current litigation that are offered by the opposing party) are admissible as non-hearsay.
(a) Adoptive Admissions. Silence is considered an adoptive admission if the party heard and understood the statement and remained silent where a reasonable person would have denied the statement. (b) Vicarious Admissions. Statements made by an authorized spokesperson, an agent within the scope of and during the agency relationship, or co-conspirators during and in furtherance of the conspiracy are considered vicarious admissions and are imputed on the party opponent.
Hearsay Exceptions: Declarant Availability is Immaterial
Present Sense Impression (12%)
A present sense impression is admissible as a valid exception to the hearsay rule. A present sense impression is a statement made by the declarant in which she describes an event as it takes place or immediately thereafter.
Hearsay Exceptions: Declarant Availability is Immaterial
Excited Utterance (12%)
An excited utterance is admissible as a valid exception to the hearsay rule. An excited utterance is a statement that concerns a startling event, made by the declarant when the declarant is still under stress from the startling event.
