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
