Evidence Flashcards
Relevance
All relevant evidence is admissible unless excluded by a specific rule.
Relevant = makes fact in issue more likely than it would be without evidence.
Need both:
1) material (related to some issue in the case); and
2) probative (tendency to prove or disprove
Rule 403 - Exclusion of Relevant Evidnece
Even if evidence is relevant, court has discretion to exclude IF:
Risk substantially outweigh probative value.
Risks = confusion, unfair prejudice, misleading jury, waste of time.
Rule is in favor of admissibility.
Best evidence (original doc) rule
Orig doc (or dup) be produced in order to prove the contents of a:
Writing
Recording
Photograph
Included: Electronic docs, x-rays and videos
Not included: Real physical evidence (e.g., 3D model)
Prior Inconsistent Statement
- Can be done with any type of statement
* Can be proved by EXTRINSIC evidence, but only if witness is given opportunity to explain/deny evidence
Plea negotiations inadmissible - waivable?
Yes, can be waived by ∆
Prior Inconsistent Testimony - substantive, impeachment, or either?
Either - if testimony under oath, considered nonhearsay
Item used to refresh witness recollection - what can adverse party do?
Adverse party can:
- Have doc produced
- Can inspect doc
- Can cross-examine witness about it
- Can introduce any relevant portion into evidence (usually only for purpose of impeaching credibility)
Prelim questions regarding competency of evidence (e.g., does it qualify as dying declaration) - who decides, with/without jury, what evidence to access?
Judge decides
Outside of jury if confession, ∆ requests, or justice requires
Any evidence except privileged evidence
Rebuttable presumption - shifts burden of persuasion and/or production?
Production. Contrary evidence introduced overcomes –> up to jury now.
If no contrary evidence, judge instructs jury to accept presumption.
Recent felony of ∆ (w/in 10 years) - civil vs. crim
Civil - Rule 403 (allow unless risk of prejudice substantially outweighs probative)
Crim - Reverse 403 (do not allow unless probative value outweighs prejudicial effect)
How to authenticate tangible evidence
Sufficient evidence to support a finding that the thing is what its proponent claims it is
Photo - may be authenticated by witness with personal knowledge that object accurately depicts what proponent claims it to be
Statement by co-conspirator - when allowed
Only if made “during and in furtherance” of the conspiracy
X-ray, electrocadiogram authentication?
representations of things that cannot otherwise be seen
Need more - accurate process, machine worked properly, qualified operator, chain of custody
Prior Testimony - Not hearsay always, sometimes, never?
Not hearsay if opposing party had 1) opportunity and 2) similar motive to develop testimony by direct, redirect, or cross-ex.
Must be same party or predecessor in interest
Judicial notice - when allowed, who can request
Can do it any time during proceeding, upon request or by own initiative
Settlement offer - admissible?
No, not admissible for validity of claim OR for amount of damages
Business records
Any record or writing of an act made in the course of regularly conducted business activity
Admissible if record made:
1) At or near the time of the event it records
2) By a person with knowledge of the event and under a duty to report it;
3) As part of the regular practice of the business to make that kind of record
Statement Made for Purpose of Medical Diagnosis or Treatment
Describe a declarant’s medical history or past or present symptoms, or even the cause of an injury, if pertinent to treatment or diagnosis
Out of court statement of a party to the action - hearsay?
No - nonhearsay
Civil or crim judgment - hearsay
Crim - No (with restrictions)
Civil - Yes
Evidence re: victim’s sexual conduct or predisposition in civil - admissible?
Generally not in a civil proceeding involving alleged sexual misconduct, such as a sexual harassment action.
Such evidence may be admitted, however, when the court determines at an in camera hearing that the probative value of the evidence substantially outweighs the danger of harm to the victim and unfair pre`judice to any party
Curative admission
When a court erroneously admits evidence, the court may permit the introduction of additional inadmissible evidence to rebut the previously admitted evidence. Admitted at the court’s discretion when necessary to remove unfair prejudice.
MIMIC
Motive/Opportunity Intent Mistake (lack of) Identity Common Plan
Vicarious Admission test
(i) made by an agent or employee of the company during the course of the employment relationship and (ii) it concerns a matter within the scope of the employment.
Statement in treatise, periodical, or pamphlet - hearsay?
Not excluded as hearsay if:
(i) an expert witness relied on the statement during direct examination or it was called to the expert’s attention on cross-examination; and (ii) the publication is established as a reliable authority by admission or testimony of the expert witness, by another expert’s testimony, or by judicial notice.
If admitted, the statement is read into evidence, but the publication itself may not be received as an exhibit.
Testimony to say nothing on public records search - OK?
Testimony that a diligent search failed to disclose a public record or statement may be admitted to prove that the record or statement does not exist, or that a matter did not occur or exist, if a public office regularly kept a record of statements for a matter of that kind.
In a criminal case, a prosecutor must provide the defense with written notice of the intent to offer such evidence at least 14 days before trial, and the defendant has seven days from receipt of notice to object in writing.
Summary of voluminous writing
Statement OK when a person is seeking to admit the contents of those documents.
Federal inadvertent waiver rule (Rule 502)
Allows opposing party to use either:
attorney work-product protection OR
communications covered by the attorney-client privilege.
