Evidence Flashcards
DIRECT AND CIRCUMSTANTIAL EVIDENCE
direct evidence involves NO inferences, and it is testimony or real evidence that speaks directly to material issue in case; circumstantial evidence is indirect and relies on inference – evidence of a subsidiary or collateral fact from which, alone or in conjunction with other facts, the existence of the material issue can be inferred
Determining Relevance
evidence is relevant if it tends to make the existence of any fact of consequence to the outcome of the action more or less probable then it would without the evidence
Habit
describes a person’s regular response to a specific set of circumstances [CONTRAST character – describes one’s disposition in respect to general traits evidence of a person’s habit MAY BE ADMITTED to prove that on a particular occasion the person acted in accordance with that habit
Industrial or Business Routine
evidence that a particular business had an established business routine is relevant as tending to show that a particular event occurred
Industry custom as evidence of standard of care
may be offered to show adherence to or deviance from an industry-wide standard of care; industry custom is NOT conclusive on this point
DISCRETIONARY EXCLUSION OF RELEVANT EVIDENCE
trial judge has broad discretion to exclude relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, undue delay, or waste of time
Liability Insurance
evidence of insurance against liability (or lack thereof) is NOT ADMISSIBLE TO SHOW NEGLIGENCE OR ABILITY TO PAY a substantial judgment; MAY BE ADMISSIBLE TO (1) prove ownership or control; (2) to impeach; or (3) as part of an admission of liability
Subsequent Remedial Measures
evidence of repairs or other precautionary measures made following an injury is NOT ADMISSIBLE to prove negligence, culpable conduct, a defect in a product or its design, or a need for a warning or instruction; MAY BE ADMISSIBLE TO (1) prove ownership or control, (2) rebut a claim that the precaution was not feasible, or (3) prove that the opposing party has destroyed evidence
Settlement Offers and Withdrawn Guilty Pleas
evidence of compromises or offers to compromise is NOT ADMISSIBLE TO PROVE OR DISPROVE THE VALIDITY OR AMOUNT OF A DISPUTED CLAIM; withdrawn guilty pleas, pleas of nolo contendere, and offers to plead guilty are admissible
Offers to Pay Medical Expenses
payment of or offers to pay medical expenses are inadmissible; admission of fact accompanying offers to pay medical expenses are admissible
Character Evidence
may be offered as substantive, rather than impeachment, evidence to: (1) prove character when it is the ultimate issue in the case, or (2) serve as circumstantial evidence of how a person probably acted
Proving Character
the purpose of the offer and the nature of the case, one or all of the following methods of proving character may be available – (1) evidence of specific acts; (2) opinion testimony of a witness who knows the person; and (3) testimony as to person’s general reputation in community
Character Evidence not admissible in civil cases, unless
Not admissible in civil cases: unless character is directly in issue (defamation), evidence of character offered by either party to prove the conduct of a person in the litigated event is generally not admissible in a civil case
Character Evidence of accused in criminal case
Accused in criminal case: generally only accused can initiate – prosecution cannot initiate evidence of bad character of D merely to show that she is more likely to have committed the crime; accused may introduce evidence of her good character to show her innocence of alleged crime
Defendant Proves Character
a witness for D may testify as to Ds good reputation for the trait in question and may give his personal opinion concerning trait of D
Prosecution Rebuts (Character Evidence)
once D opens door by introducing character evidence, prosecution may rebut by: (1) cross-examining the character witness regarding the basis for his testimony, including whether he knows or has heard of specific instances of Ds misconduct; (2) calling qualified witnesses to testify to Ds bad reputation or give their opinion on Ds character
ANY misconduct including prior arrests is OK BUT prosecutor is limited to inquiry of witness and MAY NOT introduce any extrinsic evidence of the misconduct
Victims in Criminal Case (Character Evidence)
except in rape cases, D may introduce reputation or opinion evidence of a bad character trait of alleged crime victim when it is relevant to show Ds innocence; once D has introduced evidence of victim’s bad character for a pertinent trait, prosecution may counter with reputation or opinion evidence of (1) the victim’s good character for the same trait, or (2) Ds bad character for the same trait ‘
Rape victims past behavior is generally inadmissible – in a criminal case, specific instances of victim’s sexual behavior are admissible to prove that someone other than D is the source of semen, injury, or other physical evidence and also to prove consent; in a civil case, evidence of the alleged victim’s sexual behavior is admissible if it’s not excluded by any other rule and its probative value substantially outweighs the danger of harm to the victim and of unfair prejudice to any party – only admissible if placed in controversy
Homicide Cases and Victim’s Character for Peacefulness to Rebut Self-Defense: in a homicide case in which D pleads self-defense, evidence of any kind that the victim was the first aggressor opens the door to evidence that victim had good character for peacefulness
Prior Acts of Misconduct
evidence of a person’s other crimes or misconduct is inadmissible if offered solely to establish a criminal disposition or bad character; evidence of other crimes or misconduct is ADMISSIBLE if these acts are relevant to some issue other than Ds character or disposition to commit the crime or act charged [motive, intent, absence of mistake or accident, identity, or common place or scheme]
Requirements for Admissibility: (1) there must be sufficient evidence to support a jury finding that D committed the prior act, AND (2) its probative value must not be substantially outweighed by the danger of unfair prejudice (or the judge, in her discretion, may exclude it)
Prior acts of sexual assault or child molestation is admissible in a case where D is accused of committing an act of sexual assault or child molestation; must disclose it to D 15 days before child (or later – good cause)
Judicial Notice of Fact
recognition of a fact as true without formal presentation of evidence take judicial notice of indisputable facts that are either matters of COMMON KNOWLEDGE in the community (notorious facts) or CAPABLE OF VERIFICATION by resort to easily accessible sources of unquestionable accuracy
Judicial Notice Of Law
courts MUST take judicial notice of federal and state law and official regulations of the forum state and the federal government; courts MAY take judicial notice of municipal ordinances and private acts or resolutions of Congress or of the local state legislature
Documentary Evidence
Must be relevant in order to be admissible; in the case of writings, authenticity of the document is one aspect of its relevancy
Authentication
AUTHENTICATION: a writing or any secondary evidence of its content will not be received in evidence unless the writing is authenticated by proof that shows that the writing is what the proponent claims it is;
proof must be SUFFICIENT TO SUPPORT A JURY FINDING of genuineness [genuineness of a document may be admitted by pleadings or by stipulation] admissions [party against whom it is offered has either admitted its authenticity or acted upon it as authentic];
eyewitness testimony [testimony of one who sees it executed or hears it acknowledged];
handwriting verifications [evidence of genuineness of handwriting of the maker – evidence may be the opinion of a nonexpert with personal knowledge of the alleged writer’s handwriting or the opinion of an expert who has compared the writing samples of maker’s handwriting – may be determined by the trier of fact through comparison of samples];
Self-Authenticating Documents
extrinsic evidence of authenticity is NOT REQUIRED for following: (1) domestic public documents bearing a seal; (2) similar official foreign public documents; (3) certified copies of public records; (4) official publications; (5) newspapers and periodicals; (6) trade inscriptions; (7) acknowledged documents; (8) commercial paper and related documents; and (9) certified business records
BEST EVIDENCE RULE
to prove the terms of a writing (including a recording, photo, or x-ray), the original writing must be produced if the terms of the writing are MATERIAL; secondary evidence of a writing (oral testimony) is admissible only if the original is unavailable
Applicability: (1) the writing is a legally operative or dispositive instrument; or (2) the knowledge of a witness concerning a fact results from having read it in the document
Non-applicability:
● Fact to be proved exists independently of writing
● Writing is collateral to litigated issue (writing is of minor importance)
● Summaries of voluminous records
● Public records
COMPETENCY OF WITNESSES
capacity to observe, to recollect, to communicate, and to appreciate the obligation to speak truthfully
Federal Rules: (1) witness must have personal knowledge of the matter about which he is to testify; and (2) the witness must declare he will testify truthfully [an interpreter must also take an oath]
Modern Modifications: infancy [competency of an infant depends on capacity and intelligence on the particular child as determined by trial judge]; insanity [insane person may testify, provided he understands the obligation to speak truthfully and has capacity to testify accurately]; judge and jurors [presiding judge may not
testify as a witness; jurors are incompetent to testify before the jury in which they are sitting]
Dead Man Acts
a party or person interested in the event is incompetent to testify to a personal transaction or communication with a deceased, when such testimony is offered against the representative or successors in interest of the deceased; person is “interested” if he stands to gain or lose by the judgment or the judgment may be used for or against him in a subsequent action [predecessor in interest of interested party also disqualified]
Leading Questions
generally improper on direct examination; they are permitted (1) on cross- examination; (2) to elicit preliminary or introductory matter; (3) when the witness needs aid to respond because of loss of memory, immaturity, or physical or mental weakness; or (4) when the witness is hostile
Present Recollection Revived
witness may use any writing or thing for the purpose of refreshing her present recollection; she usually may not read from the writing while she actually testifies because writing is not authenticated and not in evidence
Past Recollection Recorded
where a witness states that she has insufficient recollection of an event to enable her to testify fully and accurately, even after she has consulted a writing given to her on the stand, the writing itself may be read into evidence if a proper foundation is laid
● The witness at one time had personal knowledge of the facts in the writing;
● The writing was made by the witness or under her direction, or it was adopted by the witness;
● The writing was timely made when the matter was fresh in the witness’s mind;
● The writing is accurate; and
● The witness has insufficient recollection to
testify fully and accurately
Inspection and Use on Cross-Examination: whenever a witness has used a writing to refresh her memory on the stand, an adverse party is entitled to have the writing produced at trial, to cross-examine the witness thereon, and to introduce portions relating to witness’s testimony and evidence
Opinion Testimony of Lay Witness
generally inadmissible; opinion testimony by lay witness is ADMISSIBLE when it is: (1) rationally based on the witness’ perception, (2) helpful to a clear understanding of his testimony or helpful to the determination of a face in issue, and (3) not based on scientific, technical, or other specialized knowledge
Opinion Testimony by Expert Witness
an expert may state an opinion or conclusion, provided –
- the subject matter is one where scientific, technical, or other specialized knowledge would assist the trier of fact (an opinion will assist the trier of fact if it is relevant and reliable);
- the witness is qualified as an expert (possesses special knowledge, skill, experience, training, or education);
- the expert possesses reasonable probability regarding his opinion; and
- the opinion is supported by a proper factual basis; the expert’s opinion may be based on one or more of 3 possible sources of info (1) personal observation, (2) facts made known to the expert at trial, (3) facts not known personally but supplied to him outside the courtroom and of a type reasonably relied upon by experts in the particular field
Authoritative Texts/Treatises
may be cross- examined concerning statements contained in any publication established as reliable authority either by the testimony of this expert or another expert, or by judicial notice; texts and treatises can be used not only to impeach experts, but also as substantive evidence, SUBJECT TO: (1) an expert must be on the stand when an excerpt is read from a treatise; and (2) the relevant portion is read into evidence but is not received as an exhibit
Cross Examination
cross of adverse witnesses is a matter of right in every trial of a disputed issue of fact, but the scope of cross is a matter of judicial discretion
Restrictions: generally limited to (1) the scope of direct, including all reasonable inferences that may be drawn from it, and (2) testing the credibility of the witness
Collateral Matters: cross-examiner is generally bound by the answers of the witness to questions concerning collateral matters; certain recognized matters of impeachment, such as bias, interest, or a conviction, may be developed by extrinsic evidence because they are sufficiently important – trial court has considerable discretion
Impeachment
Accrediting/Bolstering: party may not bolster or accredit the testimony of his witness until witness has been impeached; a party may prove the witness made a timely complaint or prior statement of identification may serve as substantive evidence that the identification was correct
Any Party May Impeach: witness may be impeached by any party, including party calling him; Rule prohibits impeaching your own witness UNLESS the witness (1) is an adverse party or identified with adverse party; (2) is hostile and affirmatively uncooperative; (3) is one whom the party is required by law to call; or (4) gives surprise testimony that is affirmatively harmful to the party calling him
Prior Inconsistent Statement
party may show by cross or extrinsic evidence that the witness has, on another occasion, made statements inconsistent with his present testimony; proper foundation must be laid, and statement must be relevant to issue in case [extrinsic evidence can be introduced to prove a prior inconsistent statement only if witness is, at some point, given an opportunity to explain or deny statement]
