Evidence Flashcards
Define Relevance
Evidence if relevant if it has any tendency to make a fact of consequence (materiality) more or less probable that it would be in the absence of that evidence (probativeness)
When is evidence generally admissible?
Evidence is generally admissible if it is relevant unless an exclusionary rule excludes it or the evidence's probative value is substantially outweighed by 1). danger of unfair prejudice 2). confusion of the issues 3). misleading the jury 4) undue delay 5). unduly cumulative 6). waste of time (NOT IN TEXAS). Not surprise.
What situations admit evidence in special situations?
1) . plaintiff’s accident history to show cause of damages
2) . similar accidents caused by the same event or condition to show the existence of a dangerous condition, causation, or prior notice to the defendant
3) . Intent of a later occasion
4) . Comparable sales to show value
5) . Habit Evidence
6) . Industry custom as the proper standard of care.
Habit Evidence?
It is admissible to show circumstantial evidence of how the person acted on the occasion at issue. Habit evidenc is defined by particularity and frequency.
What types of evidence are excluded for policy reasons?
1) . Liability Insurance other than to show ownership/control if at issue or bias impeachment
2) . Subsequent Remedial Measures other than ownership/control or feasibility if at issue. In Texas, in product liability, written notification of a product defect from manufacturer to purchaser is admissible to show defect
3) . Settlement offers or statement s of fact made during settlement to prove liability or weakness of a party’s case when there is a claim and a dispute about validity or damage amount
4) . Offers to pay hospital or medical expenses
Criminal Pleadings admissible as evidence?
Offers to plead guilty and withdrawn guilty pleas cannot be used against the defendant in the pending criminal case or in later civil litigation based on the same facts. Nolo contendere can’t be used against the defendant in a later civil case based on the same facts. Statements of facts made during pleas cannot be used at any time. A not withdrawn guilty plea is admissible in later litigation as a party admission.
Character evidence generally?
Not admissible to prove conduct in conformity.
When is character evidence admissible in a criminal case?
A criminal defendant can use reputation or opinion testimony. THEN the prosecution can cross with prior bad act testimony for character at issue or bring in its own opinion/reputation testimony.
Proper question method for reputation cross examination?
Have you heard…
Proper question method for opinion cross examination?
Did you know …
Criminal victim’s character evidence?
A criminal defendant can bring in opinion/reputation of a victim’s violent character for self defense. Under the FRE, the prosecution can then bring in evidence of the defendant’s bad character, but not in Texas–just victim’s good character evidence.
Victim’s character in a sexual misconduct case?
Evidence of a sexual misconduct victim’s opinion or reputation is not admissible in civil or criminal cases unless to show that someone other than the defendant was the source or semen or injury, previous sexual activity with the defendant to show consent, or where exclusion would violate defendant’s DP. In Texas, rape shield laws apply only in criminal cases.
When is character evidence admissible in a civil case?
Under the FRE, only in a sexual misconduct case for those three exceptions. Or in a civil action where such character is an essential element of a claim or defense (negligent hiring and defamation). In Texas, Moral turpitude defendants can introduce opinion or reputation good character evidence and defendants for assaultive conduct can introduce reputation or opinion evidence to show victim’s violent character.
What is moral turpitude?
Generally acts of dishonesty, violence, and sexual misconduct. Including prostitution, theft, swindling, man on woman violence, but not DWI, gambling, PI, or man on man violence.
What is MIMIC?
The plaintiff/prosecution can introduce character evidence to show a Motive, Intent, Mistake or accident (absence of), Identity, or Common scheme/plan, IF THIS IS AT ISSUE. This can be shown with prior conviction evidence or evidence that the crime occurred with a reasonable juror standard. Upon request, the prosecution must give pretrial notice
Sexual misconduct of defendant?
In a Sexual misconduct criminal or civil case under the FRE only, prior specific instances of sexual misconduct are permitted to show defendant’s propensity for sex crimes.
What Evidence Issues are raised by the presence of a writing?
Authentication, hearsay, and best evidence
What is authentication?
Showing that the writing is what it proports to be.
How can a writing be authenticated?
1). By the witnesses’ personal knowledge
2). by lay opinion of handwriting not familiarized for litigation, unless it’s a voice familiarity
By expert handwriting comparison
By jury handwriting comparison
3). Ancient Document rule if it is 20 years old, facially free of suspicion, and found in a place of natural custody
4). Solicited reply doctrine, where the document was received in response to a prior communication to the alleged author
How can a writing be self-authenticated?
Official publications, certified copies of public or private records on file in a public office, newspapers/periodicals, trade inscriptions and labels, notarized documents, and commercial paper are self-authenticating. IN TEXAS, Business records are self-authenticating if
1) . there is an affidavit by custodian or other person saying it qualifies for business record under hearsay doctrine,
2) . business record hearsay doctrine actually is satisfied,
3) . original or exact duplicate of the business record is attached to the affidavit,
4) . The affidavit and attachment are filed with the court at least 14 days before trial and notice is given to the other parties.
How are photographs authenticated?
A witness with personal knowledge about what is depicted says that it is a fair and accurate depiction of the people/things portrayed.
What is the best evidence rule?
To prove the contents of a writing, an original must be produced, or a copy, unless the copy is unfair (like unreadable) or there is a genuine question about its authenticity.
When does the best evidence rule apply?
If a party is attempting to admit the contents of a writing into evidence, not if the witness is testifying about personal knowledge.
When is non production of best evidence excused?
If the writing is lost or cannot be found with due diligence, destroyed without bad faith, or it cannot be obtained with legal process. IN TEXAS, it is excused if the document is not in Texas.
ESCAPES occur when voluminous records can be summarized for the jury, certified copies of public records exist, or collateral (insignificant) documents.
When can jurors testify?
Not in the case they juror for, and not about their deliberations in any case or the effect anything had on their deliberations. Then can testify about any outside influence or extraneous predjudicial information.
When are witnesses competent to testify?
When they testify about their own knowledge and they take an oath to a higher power or an affirmation they will tell the truth and understand the consequences of not telling the truth. IN TEXAS, a judge may say a witness is incompetent to testify if insane or lacking sufficient intellect at trial or at the time of the events to relate the events witnessed.
What is a Dead Man’s statute?
In a typical Dead Man’s Act, in a civil case, an interested party cannot testify in his support against a decedent about communications or transactions between the witness and the decedent. There is no Dead man’s statute in the FRE. In Texas, an interested witness can’t testify about the decendent’s oral statements unless corroborated or the decedent’s side calls the incompetent person.
What rights does the adverse party have to a document used to refresh a witness’s memory?
He can read it, use it on cross, and offer it into evidence.
What if a witness inspects a document but still cannot remember enough to testify?
Then there is a hearsay exception for pst recollections recorded:
1). showing the writing does not jog the witness’s memory
2). the witness had personal knowledge at a former time
3). the writing was made or adopted by the witness
4). at a time when the event was fresh in the witness’s mind
5). the witness can vouch for the accuracy of the writing when made/adopted.
Then the writing can be read, but not admitted into evidence. The adverse party may offer it, though.
When is lay witness testimony admissible?
When it is rationally based on the witness’s personal knowledge and helpful to the jury in deciding a fact.
