Evidence Flashcards
Relevance
- 1st step always
Evidence is relevant if it has any tendency to make a fact of consequence more probable or less probably than would be the cause without the evidence
2 components of Relevance
- Materiality: proposition evidence tends to prove, proposition of consequence of case (matter)
- Probativeness: Any tendency to make fact of consequence more likely or less likely
Irrelevant Evidence
Inadmissible. No Exceptions
All Relevant evidence is admissible unless
- A. Some specific exclusionary rule is applicable or
- B. The court makes a discretionary determination that the probative value of the evidence is substantially outweighed by pragmatic considerations
Pragmatic Considerations
- Danger of unfair prejudice (evidence that tends to create an emotional issue)
- Confusion of the issues (side issue, not there to determine that issue)
- Misleading the jury (jury will give that evidence to much weight)
- Undue Delay
- Unduly Cumulative
- Waste of Time (NOT IN TEXAS)
Balancing test and pragmatic considerations
Tip: Unfair Surprise/Surprise is no a pragmatic consideration (tends to be a choice)
Similar Occurrences
In General, if evidence concerns some time event or person other than that involved in the case at hand, the evidence is inadmissible
Why: Probative value is usually outweighed by pragmatic considerations
EXCEPTIONS: Some recurring situations have produced concrete rules that may permit admissibility
Where Similar occurrences are admissible
Plaintiff Accident History, Similar Accidents Cause by Same Event or Condition, Intent in Issue, Comparable Sales on Issue of Value, Habit, Industrial Custom as Standard of Care
Plaintiff Accident History/ Similar Occurrences Exception
Generally plaintiffs accident history is inadmissible because it shows nothing more than the fact that plaintiff is accident prone
Exception: Plaintiffs prior accidents admissible if cause of plaintiffs damages is an issue
- Not that your careless but want to show you were injured in earlier accident not that you are careless because you had previous accident
Question to ask yourself: For what purpose is the evidence being offered?
Exception to Plaintiff Accident History/ Similar Occurrences Exception
Plaintiffs prior accidents admissible if cause of plaintiffs damages is an issue
Similar Accidents Cause By Same Event or Condition/ Similar Occurrences Exception
Generally other accidents involving defendant are inadmissible because they suggest nothing more than generally character for carelessness.
But other accidents involving the same instrumentally or condition and occurring under substantially similar circumstances may be admitted for 3 purposes
1. Existence of dangerous condition
2. Causation
3. Prior Notice to defendant
- Similar conditions (lighting, weather, traffic)
Rule governing admissibility of experiments
- Substantial Similarity
If you wanted to show recreation
Intent in Issue/ Similar Occurrences Exception
Person’s prior conduct may provide inference of intent on later occasion
Ex: Company won’t hire you, fact that company has not hired a women and you seek to introduce that haven’t hired women in 6 years. You have to prove intent to discriminate so you can use prior conduct
Comparable Sales on Issue of Value/ Similar Occurrences Exception
Selling price of other property of similar type in same general location, and close in time to period at issue, is evidence of value of property at issue
Habit/ Similar Occurrences exception
Habit of a person (or routine of a business organization) is admissible as circumstantial evidence of how the person (or business) acted on the occasion at issue in the litigation
- Distinguish from character evidence on MBE. Character evidence refers to a particular person’s general disposition or propensity. Character is usually not admissible to prove conduct on a particular occasion.
Ex: Fact that you are careless drive not admissible to suggest that you ran red light and inured plaintiff
Habit Characteristics
A. Frequency of Conduct (frequency)
B. Particularity of circumstances on which it occurs (Particularity)
Habit/ Business Routine Example
To prove that a particular letter was mailed by CEO, evidence that the CEO put letter in her outbox on Tuesday and messenger routinely picks up mail in CEOs outbox at 3pm each business day for delivery to mail room
Industrial Custom as Standard of Care
Evidence as to how others in the same trade or industry have acted in the recent past may be admitted as some evidence as to how a party in the instant litigation should have acted ie as evidence of the appropriate standard of care
- Conduct of others to prove that d should have done what others were doing, not conclusive
Ex: injured by blade spinning off lawn mower, You can show that 80% of all other manufacturers during the relevant time period had installed devises to prevent bald spin off
Policy Based Exclusions (Relevant, but excluded)
Liability Insurance, subsequent remedial measures, settlements, offer to pay hospital or medical expenses,
Liability Insurance
Relevant but Excluded
Evidence that a person has or does not have liability insurance is inadmissible to prove the persons fault or absence of fault
- Does not apply to casualty insurance
EXCEPTION: Evidence of insurance may be admissible for some other relevant purpose such as proof of ownership/ control of instrumentality or location, if controverted (put in dispute) or for purposes of impeachment (witness bias)
- Have to dispute you own or control
- Shown to say that witness works for insurance, might be bias
- Generally not admissible to impeach through Prior Inconsistent Statement or Contradiction
Exception to Liability Insurance
Evidence of insurance may be admissible for some other relevant purpose such as proof of ownership/ control of instrumentality or location, if controverted (put in dispute) or for purposes of impeachment (witness bias)
- Have to dispute you own or control
- Shown to say that witness works for insurance, might be bias
Limiting Instruction
should be given to the jury whenever evidence is admissible for one purpose but not for another. Judge should tell jury to consider the evidence only for the permissible purpose.
- Jury can use evidence to reach one conclusion but not another
Subsequent Remedial Measures
Relevant but Excluded Post-Accident Repairs, design changes, policy changes (designed to prevent accident form happening
Inadmissible for the purpose of proving negligence, culpable conduct, product defect, need for warning
EXCEPTION: May be admissible for some other relevant purpose, such as proof of ownership or control or feasibility of safer condition if either is converted
- Must have it be an issue (converted) to be able to be brought in
TEXAS: Same as federal but in addition: In a products liability action, evidence of a written notification to a product defect sent by manufacturer to a purchaser is admissible to prove existence of the defect
Exception to Subsequent Remedial Measures
May be admissible for some other relevant purpose, such as proof of ownership or control or feasibility of safer condition if either is converted
- Must have it be an issue (converted) to be able to be brought in
Subsequent Remedial Measures Texas
In a products liability action, evidence of a written notification to a product defect sent by manufacturer to a purchaser is admissible to prove existence of the defect
May be admissible for some other relevant purpose, such as proof of ownership or control or feasibility of safer condition if either is converted
- Must have it be an issue (converted) to be able to be brought in
Settlements/ Civil
Evidence of a settlement (compromise) or offer to settle a disputed claim is inadmissible to prove liability or weakness of a parties case
- In addition, statements of fact made in the course of settlement discussions are inadmissible
- Only applies if there is a claim that is disputed (at time of settlement discussions) either as to validity or amount of damages
- BUT evidence of settlement may be admissible for purpose of impeachment of a witness on the ground of bias
Settlements/ Criminal
- Offer to plead guilty: Cannot be used against the defendant in the pending criminal case or in subsequent civil litigation based on the same facts
- Withdrawn Guilty Plea: cannot be used against the defendant in the pending criminal cases or in subsequent civil litigation based on the same facts
- Plea of Nolo Contendere (no contest): Cannot be used against the defendant in subsequent civil litigation based on the same facts
- Statements of fact made during any of the above plea discussions
- BUT: plea of guilty (not withdrawn) is admissible in subsequent litigation based on the same facts under the rule of party admissions
Offer to Pay Hospital or Medical Expenses
Evidence that a party has paid or offered to pay an accident victims hospital or medical expenses is inadmissible to prove liability
- No need to show disputed claim
- Statement of facts made in connection are not covered
Character Evidence
Refers to a persons general propensity or disposition
- Honesty, fairness, peacefulness, or violence
Potential Purpose for the Admissibility of Character Evidence
- Persons character trait is a material element in the case
- Character Evidence to prove conduct in conformity with character at the time of the litigated event (aka character as circumstantial evidence of conduct on a particular occasion, I’m a truthful person and I acted like that at time in question)
- Witness bad character for truthfulness to impeach credibility
Criminal Cases/ Defendants Character
Evidence of the defendants character to prove conduct in conformity is not admissible during the prosecutions case-in-chief
- Character trait never an element of crime, only element of claim of defense
- Defendant during the defense may introduce evidence of a relevant character trait (by reputation or opinion testimony of a character witness) to prove conduct in conformity thereby opening the door to rebuttal by the prosecution, but defendant does not have to
- Reputation and Opinion, No specific instances of conduct
- Can only testify to proper trait (Honest has nothing to do with violence)
Defendants Character Evidence can only be introduced by
Reputation and Opinion, not specific acts
Who can introduce character evidence of the defendant?
Only the defendant can open that door, once they do prosecution can put on evidence to rebut that character evidence
Prosecution Rebuttal when Defendant opens door
Cross-examining defendants character witness with “have you heard” or “did you know” questions about specific acts of the defendant that reflect adversely on the particular character trait that defendant has introduced (prosecution must have good faith basis for the question);
and/or
B. By calling its own witnesses to contradict defendant’s witnesses
- Cannot bring in evidence to prove acts actually occurred, have to take witnesses answer
If defendant takes stand has he put his character in issue?
No that does not mean that he has opened the door and put a trait at issue. If he just takes stand to say he didn’t do it then no trait at issue prosecutor cannot call own witness or ask about specific events
Defendant, Victims Character in Self Defense
Criminal defendant may introduce evidence of victims violent character to prove victims conduct in conformity ie as circumstantial evidence that the victim was the first aggressor
Method: Character witness may testify to victims reputation for violence and may give opinion that he is violent person
- Cant bring in specific acts
Prosecution Rebuttal, Victims Character in Self Defense
Evidence of victims good character (with reputation or opinion)
- MBE: Prosecution may also prove defendants character for violence
- TEXAS: Rebuttal limited to evidence of victims good character, can’t let prosecutor prove defendants character for violence
When can a defendant bring in specific past acts of victims violence in self defense case?
to show defendants state of mind. If the defendant at the time of the alleged self-defense was aware of the victims violent reputation or prior specific acts of violence, such awareness may be proven to show the defendants state of mind (fear) to help prove that he acted reasonably in responding as he did to the victims aggression
Victims Character in Sexual Misconduct Cases
Under federal Rap Shield Law in both criminal and civil cases, where defendant is alleged to have engaged in sexual misconduct, the following evidence about the victim is ordinarily inadmissible:
- Opinion or Reputation evidence about the victims sexual propensity or
- Evidence of specific sexual behavior of the victim
TEXAS: Only applies to criminal cases
EXCPETIONS:
- Specific sexual behavior of the victim to prove that someone other than the defendant was the source of semen or injury to the victim
- If consent asserted: Victims sexual activity with the defendant
- Where exclusion would violate defendants right of due process
Exceptions to Victims Character in Sexual Misconduct Case
- Specific sexual behavior of the victim to prove that someone other than the defendant was the source of semen or injury to the victim
- If consent asserted: Victims sexual activity with the defendant
- Where exclusion would violate defendants right of due process
Civil Cases and Character Evidence
Character evidence generally inadmissible to prove conduct in conformity
- No opinion or reputation by anyone
Texas Exception to Civil Cases and Character Evidence
- Civil defendant accused of conduct involving moral turpitude may introduce evidence of his good character by reputation or opinion testimony
- Moral Turpitude: Crime involving grave infringement of community sentiment
- Ex: Dishonesty, violence, sexual misconduct (man punching women, prostitution, theft, false report of crime, swindling)
- Not moral turpitude: 1st DWI, Gambling, Public Intoxication, man assaulting man
2.C ivil defendant accused of assaultive conduct may prove victims violent character by reputation or opinion testimony to suggest victim was first aggressor
Exception to Civil Case and Character Evidence
Evidence of persons character is admissible in civil action where such character is an essential element of a claim or defense (provable by reputation, opinion, and specific acts)
EX: Negligent Hiring or Entrustment and Defamation
Defendants other Crimes for Non-Character Purpose
Other crimes or specific bad acts of defendant are not admissible during the prosecution’s case-in chief if the only purpose is to suggest that because of defendants bad character he is more likely to have committed the crime currently charged
Defendants other Crimes for non-characer purpose can be admitted for
MIMIC: Motive, Intent, Mistake or accident, Absence of, Identity, Common Scheme or Plan
- if defendants other crimes or bad acts who something specific about the crime charged, something more then mere bad character, such evidence may be admissible as evidence bearing on guilt
- If MIMIC category is satisfied past act can come in
Method of Proof for MIMIC Crimes
- By Conviction or
- By evidence (witnesses etc) that proves the crime occurred. Conditional Relevance Standard- prosecution need only produce sufficient evidence form which a reasonable juror could conclude that defendant committed the other crime, not beyond a reasonable doubt that you did it
MIMIC Crimes and Notice
Upon Defendants request, prosecution must give pretrial notice of intent to introduce MIMIC evidence. In all cases, court must also weigh probative value vs. prejudice and give limiting instructions if MIMC evidence is admitted
MIMIC Evidence and Civil Cases
can also be used in civil cases such as tort actions for fraud or assault
Federal and Sexual Assault or Child Molestation cases
prior specific sexual misconduct of the defendant is admissible as party of the case-in-chief of the prosecution (in a criminal case) or of the plaintiff (in a civil action) for any relevant purpose, including Defendants propensity for sex crimes, ie conduct in conformity with character
Authentication of Writings
A showing must be made that the writing is authentic (genuine) is that it is what it purports to be.
Process of authentication:
In the absence of a stipulation as to authenticity a foundation must be made in order for the document to be admissible
Issues to be alert to when writing is in hypo
authentication, best evidence rule, hearsay
Methods of Authentication
Witness personal knowledge, Proof of handwriting, Ancient Document Rule, Solicited Reply Doctrine, Self Authentication, Texas- Business Records
Method of Authentication/ Proof of Handwriting Lay Opinion
familiar with writing and how you are familiar with it, must have become familiar with it in normal course of affairs not in preparation of litigation (unlike lay opinion on a voice)
Method of Authentication/ Proof of Handwriting Expert Comparison
Testifies on opinion based on comparison between document and genuine sample of handwriting
Method of Authentication/ Proof of Handwriting Jury Comparison
Jury compares document with genuine sample of handwriting
Method of Authentication/ Ancient Document Rule
Authenticity may be inferred if document is:
A. At least 20 years old
B. Facially free of suspicion (no obvious signs of tampering ex: white out, scribbles)
C. Found in a place of natural custody (found where you would expect to find it
Method of Authentication/ Solicited Reply Doctrine
Document can be authenticated by evidence that it was received in response to a prior communication to the alleged author
- Solicited signature and then you get it back signed, it’s authenticated
Conditional Relevancy Standard
Document is admissible if court determines there is sufficient evidence from which a reasonable juror could conclude document is genuine (don’t have to convince judge)
Self Authenticating Document
Not additional testimony needed, presumed authentic
- Official publications (government pamphlets)
- Certified Copies of public or private records on file in public office
- Newspapers or Periodicals
- Trade inscriptions and labels
- Acknowledged document: Documents notarized by notary
- Commercial Paper
Texas Self Authentication of Business Records
- Affidavit or certification by custodian or other person capable of testifying that the record qualifies for the business records hearsay exception
- Business records hearsay exception is satisfied
- Original or exact duplicate of the business record is attached to the affidavit
- Notice to other parties: Affidavit and attachment are filed with court at least 14 days prior to trial and prompt notice is given to other parties
Authentication of Photographs
Witness may testify on the basis of personal knowledge (of people or scene in photo) that the photograph is a fair and accurate representation of the people or objects portrayed
- Doesn’t have to be the photographer
Best Evidence Rule
- Better described as original writings rule
In order to prove the contents of a writing, recording, or photograph the original must be produced
Key Inquires: what does it mean to prove the contents of writing, to what evidence does best evidence rule apply, what is an original, what are the exceptions to the best evidence rule - If court finds excuse is acceptable then party may use secondary evidence, oral testimony or a copy
When party seeking to prove contents
- Writing is a legally operative document ie writing itself creates rights and obligations.
Ex: patent, deed, mortgage, divorce decree, written contract - Witness is testifying to facts that she learned solely from reading the writing.
- Has no personal knowledge independent of the writing
- Doesn’t only know it because of the writing, has personal knowledge
What Qualifies as Original Writing
. The writing itself; any counterpart intended to have the same effect, any negative of film or print from a negative, computer print out
2. Duplicate: any counterpart produced by any mechanical means that accurately reproduced the original (carbon copy, photocopy)
Rule on Duplicates: duplicate is admissible to same extent as original unless it would be unfair (photocopy of fax fuzzy) or genuine question is raised as to authenticity of original
3. Handwritten copy is neither an original or a duplicate
Excuses for Non-production of Original
- Lost or cannot be found with due diligence
- Destroyed without bad faith
- Cannot be obtained with legal process
- TEXAS it’s not in Texas
Court must be persuaded by preponderance of the evidence that excuse has been established; secondary evidence is then admissible (ie testimony based on memory, handwritten copy)
Best Evidence Rule Exceptions
original records would be admissible and they are available for inspection
- Certified copies of public records
- Collateral Documents (not important enough)
Court, in its discretion determines writing is collateral contents may be proven by secondary evidence
Competency of Witness
Must have: Personal Knowledge, Things they perceived with own senses.
- Their own, not what someone told them
Must swear an Oath of Affirmation
TEXAS addition: witness incompetent to testify if court finds- insane at time of events witnesses or at trial or child or other person lacks sufficient intellect to relate events witnessed
Juror As Witness
juror may not testify
A. In same case in which sitting as a juror as to any matter; or
B. In any other case as to statements made in deliberations or the effect anything had on deliberations
Exception: May testify as to any outside influence (bailiff statements) and extraneous prejudicial information (document that wasn’t in evidence)
Dead Mans Statute
Witness is not ordinarily incompetent merely because she has an interest (direct legal state) in outcome of litigation
EXCEPTION: Dead man statute in a civil action an interested party is incompetent to testify in support of her own interest against the estate of a decedent concerning communications or transactions between the interested party and the decedent
MBE and Dead Mans Statute
DO NOT APPLY unless question says you are in jurisdiction that says you have it
Texas Dead Mans Statute
Interested witness incompetent if:
A. Civil Action by or against decedents estate or by or against decedents heirs or legal representatives and
B. Either party to action seeks to testify to oral statements may be decedent
- What decedent said, not actions he did or appearance
EXCEPTIONS: Party may testify to decedents oral statement if either: Descendants oral statement is corroborated by other evidence or incompetent party is called by adverse party to testify concerning decedents oral statement (heirs or estate calls party)
Ex: If a witness saw everything that had no legal stake they can testify and now so can party who has direct legal stake because their statements are corroborated by witness
Leading Questions
Form of question suggests the answer (Isn’t it a fact that… or unevenly balanced alternatives)
Generally not allowed on direct examination of witness
Exceptions, allowed on direct if:
- Preliminary matters (which there is no dispute over)
- Youthful or forgetful witness
- Hostile Witness (hostile to position)
- Adverse Party (actual adverse party or under control of adverse party)
Generally allowed on cross examination of witness
Refreshing Recollection
Witness may not read from prepared memorandum must testify on basis of current recollection
EXCEPTION: If witness’s memory fails him, he may be shown a memorandum (or any other tangible item) to jog his memory
- Cannot read it into evidence, only used to recollect, read it and put it aside
Refreshing Recollection Exception (when can writing be used?)
EXCEPTION: If witness’s memory fails him, he may be shown a memorandum (or any other tangible item) to jog his memory
- Cannot read it into evidence, only used to recollect, read it and put it aside
If a document is used to Refresh Recollection or for Past Recollection Recorded what does adversary have right to do?
- Inspect the memory refresher
- To use it on cross-examination
- To introduce it into evidence
Past Recollection Recorded / Hearsay Exception
Foundation for admissibility of contents of writing
- Showing writing to witness fails to jog memory (try to recollect first)
- Witness had personal knowledge at former time
- Writing was either made by witness or adopted by witness
- Making or adoption occurred when event was fresh in witness’s memory
- Witness can vouch for accuracy of writing when made or adopted
- Cannot read it into evidence, just read it to jury only
When is Lay Witness Opinion Testimony admissible?
A. Rationally based on witness’s perception (personal knowledge) and
B. Helpful to jury in deciding a fact
Ex: Drunk/sober, speed of vehivle, sane/insane, emotions of another person, handwriting
Federal Expert Witness Qualifications
SKEET
- Skill, Knowledge, Education, experience, training
- Education and/or Experience
Texas Rule on Expert Qualifications in health care liability (malpractice)
- Expert must be actually practicing same type of health care as that of defendant, either at time of testimony or at time claim arose
- Practicing includes teaching at medical school or other relevant institution
Proper Expert Subject Matter
Scientific, technical or other specialized knowledge that will be helpful to jury in deciding fact
- If it’s not helpful to jury in deciding fact it won’t come in
Basis of Expert opinion (when is expert opinion admissible)
Expert must have opinion based on reasonable degree of probability or reasonable certainty and 3 permissible data sources:
- Personal Knowledge (ex: I’m the doctor and I saw wounds )
- Other evidence in the trial record (testimony by other witnesses exhibits (medical reports, x-rays) made known to expert by hypothetical question
- Facts outside the record if of a type reasonable relied upon by experts in the particular fiend in question
- Expert gets to use hearsay evidence to form analysis but its not allowed to communicate it to the jury
Ex: based conclusion off of interview with defendants friends, can base opinion off of that, cant read to jury parts of the interview
Can Experts use Hearsay to base opinions on?
- Expert gets to use hearsay evidence to form analysis but its not allowed to communicate it to the jury
Ex: based conclusion off of interview with defendants friends, can base opinion off of that, cant read to jury parts of the interview
Federal Reliability of Expert Opinion
To be admissible expert opinion must be sufficiently reliable
Federal: Court serves as gatekeeper and will use four principal factors to determine reliability of principles and methodology used by expert (all types) to reach opinion. TRAP
- Testing of principles or methodology, Rate of Error, Acceptance by other experts in same discipline, Peer review and publication
Texas Reliability of Expert Opinion if based on scientific methodology
If expert opinion is based on scientific methodology court uses TRAP ON
- Testing of principles or methodology, Rate of Error, Acceptance by other experts in same discipline, Peer review and publication AND
- Objective vs. subjective interpretation of data, Non-judicial use of principle or methodology (used outside of court room)
Ex: Toxicologist testifies about chemical cause of injury based on laboratory studies
Texas Reliability of Expert opinion if based on nonscientific methodology
If expert opinion is based on non-scientific methodology ie the expert relies on personal skill and experience, the test for reliability is less stringent.
Court simply seeks to ensure that there is no analytical gap between experts methodology and the facts of the case
Ex: Engineer testifies about defect in seatbelt based on his many years experience testing safety of seat assemblies
Learned Treatise in Aid of Expert Opinion / Hearsay Exception
- Reliable authorities in a field used in connection with expert testimony
- CANNOT be introduced as an exhibit (read relevant portion, not put into evidence)
On direct examination of party’s own expert: Relevant portions of treatise, periodical or pamphlet may be read into evidence as substantive evidence (to prove truth of the matter asserted) if established as reliable authority
If Expert uses learned treatise in aid of opinion on direct what can opponent do on cross examination
On Cross examination of opponents expert: read into evidence to impeach and contradict opponents expert. Comes in as substantive evidence
Can a witness testify to an ultimate issue in case generally?
Opinion testimony of a lay or expert witness is permissible even if it addresses an ultimate issue in the case BUT
- Look out for instances where witness is testifying all about situation (lots of facts) and then testifies 1. With legal terms 2. With their opinion. Undefined legal terms are not helpful to jury, and the opinion is not going to be helpful to the jury because they have all the facts to draw their own conclusion, don’t need witness
In federal cout when can you use the objection “ultimate issue:
criminal cases only: ultimate issue is still proper objection if expert seeks to give direct opinion that defendant did or did not have relevant mental state
Ex: Insanity prevented him from understanding that he was shooting at a human
In Texas what are some examples of ultimate issues that witnesses can testify about
Expert witness may testify in terms of negligence, proximate cause, or lack of testamentary capacity if proper legal standard is used
- Define standard for expert and then ask him questions based on standard
Federal/ What is the proper scope of cross- examination?
- Matters within the scope of direct examination and
- Matters that test the witnesses credibility
Ex: If on Direct witness talked about contract formation could not on cross ask about contract damages
Texas/ What is the proper scope of cross-examination
Cross- Examination not limited to scope of direct examination, may question witness or anything relevant to case
Cross-Examination Generally
Party has a right to cross-examine any opposing witness who testifies at trial. Significant impairment of this right will result at minimum in striking of witness’s testimony
Bolstering of Witness Testimony
In general, not allowed until after witness credibility has been attacked
- Could also be in the form of prior consistent statement (wanting to bolster your testimony by saying “and I told everyone at work the next day…)
EXCEPTION: Prior identification of a person
- Witness identifying defendant in court and also saying they picked defendant out of line up 2 weeks ago
- Prior identification of a witness is NOT hearsay and comes in as substantive statements
Exception to bolstering of witness testimony (and a hear say exception)
Prior identification of a person
- Witness identifying defendant in court and also saying they picked defendant out of line up 2 weeks ago
- Prior identification of a witness is NOT hearsay and comes in as substantive statements
Can you impeach your own witness?
Yes
Impeachment Methods
- Prior Inconsistent Statements
- Bias, Interest or Motive to Misrepresent
- Sensory Deficiencies
(456 all show bad character for truthfulness) - Bad Reputation or opinion about witness’s character for truthfulness
- Criminal Convictions
- Bad Acts ( without conviction) that reflect adversely on witness’s character for truthfulness
- Contradiction
Prior Inconsistent Statements / Impeachment Methods
Any witness may be impeached by showing that on some prior occasion, she made a material statement (oral or in writing) that is inconsistent with her trial testimony.
- Does not come in for matter of truth asserted (cannot be used for substantive evidence) only used to raise doubt about the witness
EXCEPTION: certain prior inconsistent statements may be admitted both for impeachment and as substantive evidence: to prove the truth of the matter asserted in the prior inconsistent statement
- Prior inconsistent statements given orally under oath and as part of a formal hearing, proceeding, trial, or deposition
When can prior inconsistent statements be used for impeachment and substantive evidence?
Prior inconsistent statements given orally under oath and as part of a formal hearing, proceeding, trial, or deposition
Confrontation Issue Generally / Prior Inconsistent Statements
must witness be confronted with her prior inconsistent statement while still on the stand, or may it be proven later by extrinsic evidence without such confrontation? IE at next opportunity for presenting affirmative evidence, call the person to whom she made the statement (if oral) or lay foundation to introduce writing into evidence (if in writing)
EXCEPTION: No confrontation required and no opportunity to explain need be given if witness is the opposing party
- No confrontation requirement if witness is opposing party
- Admitted as substantive evidence when it’s a party admission (hearsay exclusion)
Confrontation Issue Federal / Prior Inconsistent Statements
Confrontation timing is flexible. Not required to immediately confront witness. But after proof by extrinsic evidence, witness must be given an opportunity at some point to return to stand to explain or deny the prior inconsistent statement
Confrontation Issue Texas / Prior Inconsistent Statements
Confrontation on stand usually required: witness must be told the contents of the prior inconsistent statement, time and place and person to whom made; at some point to return to stand to explain or deny the prior inconsistent statement
Exception to Confrontation Issue / Prior Inconsistent Statements
EXCEPTION: No confrontation required and no opportunity to explain need be given if witness is the opposing party
- No confrontation requirement if witness is opposing party
- Admitted as substantive evidence when it’s a party admission (hearsay exclusion)
When would a witness have Bias, Interest, or Motive to Misrepresent?
Witness is party, friend, relative, or employee of party; expert witness being paid by party; person with grudge against a party etc.
Federal / Must witness be confronted with alleged bias while on the stand / Confrontation issue / prior inconsistent statement
Courts Discretion
Texas / Must witness be confronted with alleged bias while on the stand / Confrontation issue / prior inconsistent statement
Yes. Witness must be told of circumstances or statements that allegedly show bias and given immediate opportunity to explain or deny
Federal/ If confrontation prerequisite met may bias be proved by extrinsic evidence? / prior inconsistent statement
Yes, court has discretion to permit extrinsic evidence even if witness admits the bias
Texas/ If confrontation prerequisite met may bias be proved by extrinsic evidence? / prior inconsistent statement
Yes, if witness denies bias or fails to admit bias unequivocally
Sensory Deficiencies
Anything that could affect witness perception or memory
Ex: bad eyesight, bad hearing, mental retardation, consumption of alcohol or drugs at time of event or while on the witness stand
Confrontation Required: No
Extrinsic Evidence allowed: Yes
Is confrontation required for sensory deficiencies?
No
Is extrinsic evidence required for sensory deficiencies?
Yes
Bad Reputation or Opinion about Witness’s Character for Truthfulness
Propensity to lie on the stand
- Any witness is subject to impeachment by this methodConfrontation required: No
Extrinsic Evidence allowed: Yes
- Only way you can prove it
Call character witness to testify that target witness has bad reputation for truthfulness or that character witness has low opinion of Target Witness character for truthfulness
- Cannot used specific acts/instances of conduct to say why that’s your opinion
- If witness testifies that witness is subject to impeachment
Only way you can prove bad reputation about witnesses character for truthfulness
Extrinsic Evidence allowed: Yes
- Only way you can prove it
Call character witness to testify that target witness has bad reputation for truthfulness or that character witness has low opinion of Target Witness character for truthfulness
- Cannot used specific acts/instances of conduct to say why that’s your opinion
- If witness testifies that witness is subject to impeachment
When can criminal convictions be used to prove bad reputation about witnesses character for truthfulness in Federal court?
- Conviction of any crime (felony or misdemeanor) involving dishonesty or false statement may be used to impeach any witness
- Look for crime involving writing/speaking false words
- If conviction does not involve dishonesty or false statement it must be a felony and court may exclude in its discretion if probative value on issue of witness credibility is outweighed by danger or unfair prejudice to a party (misuse as evidence of liability or guilt)
- Conviction or release from prison whichever is later generally must be within 10 years of trial
Method of Proof: Ask witness to admit prior conviction or Introduce record of conviction (extrinsic). Not required to confront witness prior to introduction of record conviction
What is the method of proof for proving criminal convictions be used to prove bad reputation about witnesses character for truthfulness?
Ask witness to admit prior conviction or Introduce record of conviction (extrinsic). Not required to confront witness prior to introduction of record conviction
When can criminal convictions be used to prove bad reputation about witnesses character for truthfulness in Texas court?
- Types of conviction that can be used to impeach felonies of any type and crimes of moral turpitudes
- Violence, sexual misconduct, dishonesty, false statements
- Balancing of impeachment value against potential for prejudice applies to all convictions
- Cannot use conviction to impeach if an appeal of the conviction pending
- Conviction or release from prison whichever is later generally must be within 10 years of trial
Rehabilitation, Innocence, and Probation / When Criminal Convictions can’t be used to prove bad reputation of witnesses character for truthfulness
Conviction is not admissible if:
1. Conviction was subject of pardon, annulment, certificate of rehabilitation or other equivalent procedures based on finding of rehabilitation
EXCEPTION:
- Federal: Subsequently conviction of crime punishable by death or imprisonment in excess of one year
- TEXAS: Subsequently convicted of felony or crime of moral turpitude
2. Was subjected of pardon, annulment, or other equivalent procedure based on a finding of innocence
3. TEXAS: Successful completion of probation
4. Juvenile crimes generally not admissible to impeach
Inquire about Bad Acts (without conviction) if they reflect adversely on witness character for truthfulness / Texas / Impeachment
DOES NOT EXIST Federal only
Inquire about Bad Acts (without conviction) if they reflect adversely on witness character for truthfulness / Federal / Impeachment
Confrontation of cross-examination is the only permissible means. Not extrinsic evidence permitted. Cross-examiner must have a good-faith basis and ability to inquire lies in courts discretion
- Bad act must be of truthfulness, not just any bad act
- You are stuck with the witness answer, no extrinsic evidence
Cannot word question in a way that uses the terms- arrested, charged, indicted if asking about truthfulness
Can use terms when you are asking to show bias, interest, motive, misrepresentation
Contradiction / Impeachment
Cross-examiner through confrontation of witness may try to obtain admission that she made a mistake or lied about any fact she testified to during direct examination. If the witness admits the mistake or lie she has been impeached by contradiction.
- However if she sticks to the story the issue becomes whether extrinsic evidence may be introduced to prove the contradictory fact
- Extrinsic Evidence not allowed for the purpose of contradiction if the fact at issue is collateral. A fact is collateral if it has no significant relevant to the case or to the witnesses credibility
Rehabilitation of Witness Once Impeached
Showing Witnesses good character for truthfulness or Prior Consistent statement to rebut a charge of recent fabrication
Rehabilitation / When and How to show witnesses good character for truthfulness
When? When witness has been attacked using: Bad Reputation or opinion about witness’s character for truthfulness, Criminal Convictions, Bad Acts (without conviction) that reflect adversely on witness’s character for truthfulness
How? Call character witness to say target witness is truthful by opinion/reputation
Rehabilitation / When to introduce Prior Consistent statement to rebut a charge of recent fabrication
When: If the witness’s trial testimony is charged as a recent fabrication or as a product of improper influence, a prior statement by the witness that is consistent with her testimony will be admissible to rebut the charge if the statement was made before the motive to fabricate arose
- Look to see if also admissible as substantive evidence because it’s a prior consistent statement
Privileges in Federal Court
None, all from case law
- No doctor patient
Attorney Client Privilege
Applies to: confidential communications, between attorney and client (or representative of either) made during professional, legal consultation unless privilege is waived or an exception is applicable
Confidential Communications: Client must intend confidentiality (no privileged if client knows that third party is listening in or if client asks attorney to disclose information to third party
Attorney Client Privilege joint client rule
if two or more clients with common interest consult the same attorney, their communications with counsel concerning the common interest are privileged as to third parties. But if the joint clients later have disputes with each other concerning the common interest, privilege does not apply as between them
Communication: Privilege does not apply to underlying information, pre-existing documents, or physical evidence
Attorney or Representative of the the Attorney
Attorney: Member of the bar or person that client reasonably believes is member of bar
Representative of the attorney: Any agent reasonably necessary to facilitate the provision of legal services
Client or Representative of the Client
Client: includes person seeking to become client (formal consolation with attorney even if not retained)
Representative of client: any agent reasonably necessary to facilitate the provision of legal services (for corporate client, any employee who communicates with corporations attorney to enable attorney to provide legal survives to the corporation
Professional Legal Consolation
primary purpose of communication must be to obtain or render legal services not business or social advice
Waiver of Attorney Client Relationship
client is holder of privilege so client alone has power to waive by discloser of communication to third party. Privilege continues after attorney-client relationship ends and even after death of client. Clients estate representative has power to waive privilege after clients death
Exceptions to Attorney Client Relationship
- Future crime or fraud
- Client puts legal advice in issued
- Attorney-Client dispute
Physician- Patient Privilege (also psychotherapists)
Applies to:
- Confidential communication or information acquired by physician from patient
- No 3rd parties who don’t have to be there
- For purpose of diagnosis or treatment of medical condition
- Can’t say fell downstairs because there was no tread
FEDERAL: only has psychotherapist, not physician
EXCEPTION: if patient expressly or impliedly puts physical or mental condition in issue
- Patient is plaintiff suing for damages for personal injury or defendant assets insanity defenses
Exceptions to Physician- Patient Privilege (also psychotherapists)
EXCEPTION: if patient expressly or impliedly puts physical or mental condition in issue
- Patient is plaintiff suing for damages for personal injury or defendant assets insanity defenses
Texas Exceptions to Physician-Patient Privilege
No doctor-patient privilege in criminal case. However, a communication to a person who is examining or treating another for drug or alcohol abuse is not admissible in a criminal proceeding
No doctor-patient privilege if any party relies on patients physical or mental condition as party of party’s claim or defense
Husband- Wife Privileges
Spousal Immunity and Confidential Communications between Spouses
Spousal Immunity
In CRIMINAL cases only, a spouse cannot be compelled testify against the defendant spouse.
- Witness spouse not defendant is holder of privilege, witness-spouse may voluntarily testify against he defendant spouse if he/she so chooses, but can’t be compelled to testify
- Does not apply once marriage ends, can be compelled to testify
Confidential Communications between Spouses
In ANY time of case spouse is not required and is not allowed in the absence of consent by the other spouse to disclose a confidential communication made my one to the other during the marriage
- Both spouses hold privilege
- Survives past divorce
Exceptions to Spousal Immunity and Confidential Communications between spouses
Communications or acts in furtherance of future crime or fraud
Communications of acts destructive of family unit (spousal or child abuse)
TEXAS civil: all types of disputes between spouses (breach of contract) and incompetency/commitment proceedings
Clergy- Penitent Privilege
A person has a privilege to refuse to disclose, and to prevent others from disclosing, a confidential communication by that person to a member of the celery in the clergy members capacity as a spiritual adviser
Hearsay Definition
- Out-of-Court statement of a person (oral or written)
- Offered to prove the truth of the matter asserted in the statement
- Part 1 includes affidavits, depositions, witness stand of another trial
- Need both for it to be hearsay
- Out of court means any statement that is not from the witness stand of this trial
- For part 2 ask what is the proposition being admitted for to prove? What is matter asserted? If both are not the same that it’s being offered for something other then the truth and it’s not hearsay
Non Hearsay Statements
Not hearsay if they are not offered to prove the truth of the matter asserted in the statement. An out of court statement may be relevant to some issue simply because it was spoken (written). If offered for some other purpose, credibility of the declarant is irrelevant.
On issue of whether statement was spoken the witness on the stand can be cross-examined, or if the statement was in writing it can be examined as an exhibit
Nonhearsay
- Verbal Act (legally operative words)
- To show effect on person who heard or read the statement
- Circumstantial evidence of speakers state of mind
- Prior statements of trial witness
- Party Admissions (statements of a party opponent)
- Vicarious Admissions
Verbal Act (legally operative words) / Nonhearsay
Contract offer or cancellation, making gift, bribe, perjury, fraud, defamation, words accompanying ambiguous act (ex: charged with stealing care could testify that As Victim handed me the keys he said I could have the car for the weekend)
To show effect on person who heard or read the statement / Nonhearsay
Ex: Grocery store being sue for slip and fall. Could admit that someone told them there was a broken jar of salsa on aisle 3. Offered to prove notice not hearsay, if the statement was true or not someone should have checked the aisle
Ex: Not saying that husband was a cheater can be admitted for murder of husband, not being offered to prove affair, offered to prove motive of defendant
Circumstantial Evidence of Speakers State of Mind / Nonhearsay
Statements that would say he was insane
Prior Statements of Trial Witness / Nonhearsay
A witness own prior statement, if offered to prove the truth of the matter asserted in the statement, is hearsay and inadmissible unless exception or exclusion apply
Ex: Could go on stand and say I didn’t do it (not hearsay) but couldn’t say that you told the cops when they arrested you that you didn’t do it (hearsay)
EXCEPTION: NOT hearsay
- Witness’s prior statement of identification
- Witness’s prior inconsistent statement IF prior statement was under oath and made during formal trial, hearing, proceeding or deposition
- Prior consistent statement used to rebut charge of recent fabrication or improper motive or influence
Party Admissions (statements of a party opponent) / Nonhearsay
Any statement made by a party (plaintiff or defendant) is admissible against the party
- Has to be offered against that party, can’t be used for that party
- Can offer statement against you even if you lacked personal knowledge of what you were saying
Vicarious Admissions / Nonhearsay
Statement by agent/employee is admissible against principal/employer if statement concerns matter within scope of agency/employment and is made during agency/employment
- Doesn’t have to be on the job (while clocked in) but do have to be employed by the person
- Has to be within scope of your employment, can’t be a truck driver commenting on human resource matters
Hearsay Exceptions
Hearsay but Admissible Hearsay
- Former testimony
- Statement against interest
- Dying declaration
- Excited utterance
- Present sense impression
- Present state of mind
- Declaration of intent
- Present physical condition
- Statement for purpose of medical treatment or diagnosis
- Business records
- Public records
- Past recollection recorded
- Learned treatises
Criminal Defendant Rights of Confrontation
Testimonial statements
- Regardless of whether a hearsay exception is satisfied, the sixth amendment right of confrontation prohibits the use of testimonial hearsay statements against a criminal defendant if the declarant is unavailable and the defendant has had no opportunity for cross-examination. Testimonial statements include sworn testimony:
At a grand jury, prior trial or preliminary hearing and responses made during police questioning, whether sown or unsworn
Ex: Police interrogation of defendants accomplice at station house and elicit incriminating statements, cannot be used against defendant because it is testimonial and there has been no cross-examination
EXCPETION: Declarant unavailable due to wrongdoing any type of hearsay statements are admissible against a defendant who engaged in or acquiesced in wrongdoing that was intended to and did procure the unavailability of the declarant as a trial witness
Exception to Criminal Defendant Rights of Confrontation
Declarant unavailable due to wrongdoing any type of hearsay statements are admissible against a defendant who engaged in or acquiesced in wrongdoing that was intended to and did procure the unavailability of the declarant as a trial witness
Grounds of Unavailability
- Death or Serious illness
- Absence from jurisdiction
- Privilege
- Stubborn refusal
- Lack of memory
Former Testimony / Hearsay Exception
(unavailable required)
The former testimony of a now-unavailable witness if given at a former proceeding or in a deposition is admissible against a party who on the prior occasion had an opportunity and motive to cross examine or develop the testimony of the witness
- Issue in both proceedings must be essentially the same
What Hearsay Exceptions require Unavailability?
- Former testimony
- Statement against interest
- Dying declarant
In Texas unavailability is not required for this former testimony
In civil actions, Deposition of witness taken in same proceeding is admissible without need to show that witness has become unavailable
Statements against Interest / Hearsay Exception
- Unavailability required for federal but not Texas
An unavailable declarants statement against his or her pecuniary, proprietary or penal interest - Statement against penal interest when offered to exculpate defendant must be corroborated
- Pecuniary- Financial, Proprietary- civil liability and property loss, Penal- Criminal
How this is different from party admission: - Must be against interest when made, any person (not merely party) can make statements against interest, personal knowledge is required, declarant must be unavailable
TEXAS: adds statements against social interest: statements that makes declarant an object of hatred, ridicule or disgrace
Dying Declaration / Hearsay Exception
(unavailability required)
Statements made under a belief of impending and certain death by a now unavailable declarant concerning the cause or surrounding circumstances of the declarants death
Federal: Criminal- Homicide only, Civil- All cases
TEXAS: Criminal and Civil: all cases
- Watch where the person is not under belief of certain and impending death but then die anyways (If they think they are “going to get the person” not thinking they are going to die)
Spontaneous Statements / Hearsay Exception
Unavailability not required
- Excited utterance, present sense impression, present state of mind, declaration of intent, present physical condition
Excited Utterance / Hearsay Exception
Unavailability not required
Statement concerning a starling event and made while decalrant is still under the stress of excitement caused by the event
- Need startling event and for person to be under stress of event
Present Sense Impression / Hearsay Exception
Unavailability not required
Description of an event made while the event is occurring or immediately thereafter
- Does not require a startling event, could be mundane
Present State of Mind / Hearsay Exception
Unavailability not required
Contemporaneous statement concerning declarants present state of mind, feelings, emotions
- Contemporaneous statement about matter as to which declarant has unique knowledge
- Has to be right at this moment while I am speaking, can’t be about past event
- Doesn’t look backwards
Declaration of Intent/ Hearsay Exception
Statement of declarants intent to do something in the future, including to intent to engage in conduct with another person
- Declaration of attempt to do future act
- Declaration of attempt to do future act with someone else
Present Physical Condition / Hearsay Exception
Statement made to anyone about declarants current physical condition
- Has to be about physical condition now existing, can’t look backwards
Statement for purpose of medical treatment or diagnosis / Hearsay Exception
Statement made to anyone (usually involves medical personnel) concerning past or present symptoms of general cause of condition for the purpose of treatment or diagnosis
- Some statements are also the existing physical conditions
- Can’t be statements that merely pint blame, have to have something to do with trying to diagnosis symptoms or cause
- Medical diagnosis includes diagnosis for the purpose of giving an expert opinion, statements said when speaking to a physician who was retained solely for the purpose of testifying as an expert witness
Business Records / Hearsay Exception
Records of any type of business, made in the regular course of the business (germane to business), the business regularly keeps such records, made at or about the time of the event recorded, contents consist of: information observe by employees of the business or a statement that falls within an independent hearsay exception
Proving Business Records Foundation
- Call sponsoring witness to testify to the 5 elements of business records hearsay exception; witness need not be author of report- can be records custodian or any other knowledgeable person within the business or
- Written certification under oath attesting to elements of business records hearsay exception
TEXAS: call sponsoring witness or use self-authentication affidavit procedure
Public Records / Hearsay Exception
Records of a public office or agency setting forth:
1. The activities of the office or agency (ex: payroll records) or
2. Matters observed pursuant to a duty imposed by law (ex: weather records) or
3. Findings of fact or opinion resulting from an investigation authorized by law (ex: FAA report of plane crash)
EXCEPTION: Police reports and investigatory findings are not admissible against the defendant in a criminal case. Nor is the prosecution in such cases allowed to introduce a police report against he defendant under the alternative theory of business records
Impeachment of Hearsay Declarants
- Hearsay comes in, credibility of decalrant at issue
Opponent may use any of the impeachment methods to attack the credibility of a hearsay declarant
