Evidence (DONE) Flashcards
Relevance - Basic Principles
Evidence is relevant if it has any tendency to make a fact of consequence more probable or less probable than would be the case without the evidence.
Two elements:
1) Materiality
2) Probativeness
Relevance - Materiality
Proposition must be “of consequence”. Need not be an ultimate issue,
Relevance - Probativeness
“Any tendency” to make the proposition more or less likely. Just needs to shift probabilities to any degree whatsoever.
Relevance - Admissibility of Evidence
All irrelevant evidence is INADMISSIBLE: no exceptions.
All relevant evidence ADMISSIBLE, unless:
1) Some specific exclusionary rule is applicable (hearsay, privilege, etc.) OR
2) The court uses its Rule 403 discretion to keep it out.
Relevance/Admissibility Exception - Rule 403
The court may exclude otherwise relevant evidence if it determines that the probative value of the evidence is substantially outweighed by one or more of the following pragmatic considerations:
1) Danger of unfair prejudice.
2) Confusion of the issues (evidence creates a side issue)
3) Misleading the jury (danger of jury giving undue weight to evidence)
4) Undue delay
5) Waste of time (not in Texas)
6) Unduly cumulative
Relevance - Prior Similar Occurrences
In general, if evidence involves some other time, event or person OTHER than that involved in the case at hand, the evidence is irrelevant/inadmissible.
Why? The probative value is usually outweighed by pragmatic considerations (e.g., weak relevance, danger of confusion, etc.).
BUT some recurring situations have produced concrete rules that may permit admissibility.
EXCEPTIONS:
1) P’s accident history
2) Similar accidents caused by same event or condition
3) Intent in issue
4) Comparable sales on issue of value
5) Habit
6) Industry custom as standard of care
Relevance/Similar Occurrences Exceptions - Plaintiff’s Accident History
Generally, the plaintiff’s accident history is inadmissible because it shows nothing more than the fact that the plaintiff is accident-prone.
BUT, plaintiff’s prior accidents are admissible if cause
of plaintiff’s damages is in issue.
***For what purpose is the evidence being offered?
Relevance/Similar Occurrences Exceptions - Similar Accidents Caused by Same Event or Condition
Generally, other accident involved defendant are inadmissible because they suggest nothing more than general character for carelessness. But other accidents involving the same instrumentality or condition, and occurring under substantially similar circumstances, may be admitted for 3 potential purposes:
1) Existence of dangerous condition
2) Causation
3) Prior notice to defendant (if other accident occurred before plaintiff’s)
Relevance/Similar Occurrences Exceptions - Intent In Issue
Person’s prior conduct may provide inference of intent on later occasion.
Relevance/Similar Occurrences Exceptions - Comparable Sales on Issue of Value
Selling price of other property of similar type, in same
general location, and close in time to period at issue,
is some evidence of value of property at issue.
Relevance/Similar Occurrences Exceptions - Habit
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: C.E. refers to a particular person’s general disposition or propensity. Character is usually not admissible to prove conduct on a particular occasion.
Defining characteristics:
1) Frequency of conduct
2) Particularity of circumstances
Relevance/Similar Occurrences Exceptions - 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, i.e., as evidence of the appropriate standard of care.
Relevance - Public Policy Exclusions (PPE)
Dealing with evidence that is unquestionably relevant, but is excluded because there’s some public policy consideration that is more important than the jury hearing the evidence.
1) Liability Insurance
Relevance/PPE - Liability Insurance
Evidence that a person has, or does not have, liability
insurance is inadmissible to prove the person’s fault
or absence of fault.
Policy: To avoid risk that jury will base decision on
availability of insurance instead of merits of case.
But evidence of insurance may be admissible for
some other relevant purpose, such as:
- Proof of ownership/control of instrumentality or location, if controverted (disputed)
- Impeachment of a witness (usually on the grounds of bias)
LIMITING INSTRUCTION: 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.
Relevance/PPE - Subsequent Remedial Measures
Post-accident repairs, design changes, policy changes.
Inadmissible for the purpose of proving negligence,
culpable conduct, product defect, or need for warning.
Policy: To encourage post-accident repairs, etc., to
avoid future accidents.
But such evidence may be admissible for some other
relevant purpose, if controverted, such as:
1) Proof of ownership/control
2) Feasibility of safer condition
Relevance/PPE - Subsequent Remedial Measures FOR TEXAS
Same as Federal Rule with one exception: In a products liability action, evidence of written notification of a product defect sent by a manufacturer to a purchaser is admissible to prove existence of the defect.
Relevance/PPE - Settlement in Civil Cases
Evidence of a settlement (compromise) or offer to settle a disputed claim is inadmissible to:
1) Prove liability or weakness of a party’s case, or
2) Impeach through prior inconsistent statement or contradiction.
Statements of fact made in the course of settlement discussions are also inadmissible for these purposes.
POLICY: To encourage settlement
BUT, evidence of settlement may be admissible for purposes of impeaching a witness on the grounds of bias.
Relevance/PPE/Settlement Offers - Disputed Claim Required
The exclusionary rule only applies if there is a claim
that is disputed (at time of settlement discussion) either as to (1) validity or (2) amount of damages.
Relevance/PPE - Please Discussions in Criminal Cases
The following are inadmissible:
• 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 case 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, a plea of guilty (not withdrawn) is admissible in subsequent litigation based on the same facts udner the rule of party admissions.
Relevance/PPE - Offer to Pay Medical or Hospital Expenses
Evidence that a party has paid or offered to pay an
accident victim’s hospital or medical expenses is inadmissible to prove liability.
Policy: To encourage charity.
No need to show disputed claim—trying to reward
generosity.
Relevance - Character Evidence
Character evidence refers to a person’s general propensity of disposition (e.g., honesty, fairness, peacefulness, or violence).
Potential purposes for offering:
1) Person’s character is a material element in the case
2) To prove conduct in conformity with character at the time of the litigated event, a.k.a. character as circumstantial evidence of conduct on a particular occasion.
3) Witness’s bad character for truthfulness to impeach credibility.
Relevance/Character Evidence - Criminal Cases: Defendant’s Character
Evidence of the defendant’s character to prove conduct in conformity is not admissible during the prosecution’s case-in-chief.
However, 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.
Relevance/CE/Crim: Def’s Character - Prosecution’s Rebuttal
If the defendant has “opened the door” by calling
character witnesses, the prosecution may rebut:
(1) By cross-examining defendant’s character witnesses with “Have you heard” or “Did you know”
questions about specific acts of the defendant that
reflect adversely on the particular character trait that
the defendant has introduced (prosecution must have
good faith basis for the question); purpose: to impeach character witness’s knowledge; and/or
(2) By calling its own reputation or opinion witnesses
to contradict the defendant’s witnesses.
NOTE: If the witness gave reputation testimony, the question on cross should be “Have you heard…” If the witness gave opinion testimony, the question on cross should be “Did you know..”
Relevance/CE - Criminal Cases: Victim’s Character in Self-Defense Case
Criminal defendant may introduce evidence of victim’s
violent character to prove victim’s conduct in conformity, i.e., as circumstantial evidence that victim was the first aggressor.
Proper method: Character witness may testify to victim’s reputation for violence and may give opinion.
Relevance/CE/Crim: Victim’s Character in Self Defense - Prosecution Rebuttal
Once defendant has introduced evidence of victim’s violent character, prosecution may rebut with opinion or reputation testimony regarding: (1) victim’s good
character for peacefulness, and/or (2) defendant’s
bad character for violence.
IN TEXAS: Under the Texas Rules, rebuttal is limited to evidence of the victim’s good character for peacefulness. Prosecution may not rebut with the defendant’s bad character for violence.
Relevance - Character Evidence in Civil Cases
Inadmissible to Show Conformity:
- In civil cases, character evidence is generally inadmissible to prove conduct in conformity.
Admissible When Character Directly In Issue:
- Evidence of a person’s character is admissible in civil actions where such character is an essential element of a claim or defense (provable by reputation, opinion, and specific acts). Only a few situations:
1) Negligent hiring or entrustment
2) Defamation (libel or slander)
3) Child Custody
Relevance/Civ: C.E./Inadmissible to Show Conformity - TEXAS Moral Turpitude exception
TEXAS NOTE: Civil defendant accused of conduct involving moral turpitude may introduce evidence of his good character (reputation or opinion testimony). Moral turpitude is a crime involving “grave infringement” of community sentiment.
Examples of moral turpitude: Dishonesty, violence, sex misconduct, prostitution, theft, swindling, false report of a crime.
NOT moral turpitude: DWI, gambling, public intoxication.
Relevance/Civ: C.E./Inadmissible to Show Conformity - TEXAS Assaultive Conduct exception
Civil defendant accused of assaultive conduct may prove victim’s violent character (reputation or opinion testimony) to suggest victim was first aggressor.
Relevance - Defendant’s Other Crimes or Acts for Non-Character Purpose
Other crimes or specific bad acts of D are not admissible during the P’s case-in-chief if the only purpose is to suggest that because of D’s bad character he is more likely to have committed the crime currently charged.
BUT, if D’s other crimes or bad acts show something specific about the crime charged - something more than just bad character - such evidence may be admissible as evidence bearing on guilt.
MIMIC:
1) Motive
2) Intent
3) Mistake or accident (absence of)
4) Identity
5) Common scheme or plan
Relevance/D’s Other Crimes for Non-Character Purposes - Methods of Proof of Independently Relevant Misconduct
(1) By conviction or (2) by other evidence (witnesses,
etc. ) that proves the crime or act occurred.
Conditional relevancy standard—prosecution need
only produce sufficient evidence from which a reasonable juror could conclude that defendant committed the other crime.
Upon defendant’s 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 MIMIC evidence is admitted.
If relevant, MIMIC evidence can also be used in civil
cases, such as tort actions for fraud or assault.
EXAM TIP: Court must insure that defendant is actually contesting the issue to which MIMIC crime is addressed (e.g., identity, intent). If a MIMIC category is satisfied, prosecution may use other-crimes evidence as part of its case-in-chief; MIMIC evidence is not dependent on defendant’s introduction of favorable character evidence.
Relevance/CE - Other Sexual Misconduct to Show Propensity in Criminal or Civil Sex-Crime Case
In a case alleging sexual assault or child molestation,
prior specific sexual misconduct of the defendant is
admissible as part 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 defendant’s propensity for sex crimes, i.e., conduct in conformity with character.
Writings
Whenever a writing appears on the exam, be alert to 3 potential issues (aside from relevance): authentication, best evidence rule, and hearsay.
Writings - Authentication
A showing must be made that the writing is authentic, i.e., that is it what it purports to be. This is the process of authentication.
STANDARD: Conditional relevancy standard—document is admissible if court determines there is sufficient evidence from which a reasonable juror could conclude document is genuine.
Writings/Authentication - Methods of Authentication
Issue: Whether X is the author of a document
1) Witness’s personal knowledge: WItness observed X sign document
2) Proof of Handwriting
- Lay opinion: Lay witness testifies to opinion
that X wrote document on basis of familiarity
with X’s handwriting as result of experience in
normal course of affairs. (Lay witness cannot become familiar with X’s handwriting for the sole purpose of testifying.)
- Expert comparison opinion: Handwriting expert
testifies to opinion that X wrote document
on basis of comparison between document and
genuine sample (exemplar) of X’s handwriting.
- Jury comparison: Jury compares document with exemplar of X’s handwriting.
3) Ancient Document Rule: authenticity may be inferred if document is:
- at least 20 years old
- facially free of suspicion
- Found in a place of natural custody
4) Solicited reply doctrine: Document can be authenticated by evidence that it was received in
response to a prior communication to the alleged
author.
Writings/Authentication - Authentication of Photographs
Witness may testify on the basis of personal knowledge that the photograph is a “fair and accurate representation” of the people or objects portrayed.
Sponsoring witness does not need to be the original photographer.
Writings/Authentication - Self-Authenticating Documents
Presumed authentic - no need for foundation testimony
• Official publications • Certified copies of public or private records on file in public office • Newspapers or periodicals • Trade inscriptions and labels • Acknowledged documents • Commercial paper • Certified business records (with reasonable written notice to adverse party)
TEXAS RULE for business records:
• Affidavit or unsworn declaration 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.
• Affidavit and attachment are filed with the court
at least 14 days prior to trial and prompt notice is
given to other parties.
Writings - Best Evidence Rule
The name of this rule is misleading. Better described as the “original writings” rule.
RULE: In order to prove the contents of a writing, recording, or photograph, the original must be produced.
Definition: A party who seeks to prove the contents of a writing (includes sound recordings, X-rays, films), must either produce the original writing or provide an acceptable excuse for its absence. If court finds the excuse is acceptable, the party may then use secondary evidence— oral testimony or a copy.
Key inquiries:
- what does it mean to “prove the contents” of a writing?
- to what evidence does the BER apply?
- what is an “original”?
- what are the exceptions to the BER?
Writings/BER - When does BER apply?
Two principal situations:
1) The writing is a legally operative document; i.e., the writing itself creates rights and obligations.
2) Witness is testifying to facts that she learned solely from reading about them in a writing.
Writings/BER - When does BER NOT apply?
When a witness with personal knowledge testifies to a fact that exists independently of a writing that records the fact.
Writings/BER - What qualifies as the “Original” writing?
• The writing itself; any counterpart intended to
have the same effect; any negative of film or print
from the negative; computer print-out.
• Duplicate: any counterpart produced by any mechanical means that accurately reproduced the
original (e.g., photocopy, carbon copy).
RULE ON DUPLICATES: Duplicate is admissible to
same extent as original UNLESS it would be unfair
(e.g., photocopy of fuzzy fax), or genuine question
is raised as to authenticity of original.
Writings/BER - Excuses for Non-Production of Original
- Lost or cannot be found with due diligence
- Destroyed without bad faith
- Cannot be obtained with legal process
Court must be persuaded by preponderance of the
evidence that excuse has been established; secondary evidence is then admissible (e.g., testimony based on memory, handwritten copy).
Writings/BER - “Escapes” from the BER
Function as exceptions.
• Voluminous records can be presented through a
summary or chart, provided the original records
would be admissible and they are available for
inspection.
• Certified copies of public records.
• Collateral documents.
Witnesses
-
Witnesses - Competency of Witness, in General
Includes TEXAS NOTE
Testimonial qualifications.
Two basic requirements:
1) Personal knowledge of what they’re testifying about
2) Oath or affirmation
TEXAS NOTE:
In addition to personal knowledge and oath/affirmation, witness incompetent to testify if court finds:
• Insane at time of events witnessed or at trial.
• Child or other person lacks sufficient intellect to
relate events witnessed.
Witnesses/Competency - “Dead Man Statute”
In general (FEDERAL/MULTISTATE rules): Witness is not ordinarily incompetent merely because she has an interest—a direct legal stake—in outcome of the litigation.
But, under a typical state “Dead Man’s Act,” 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.
Witnesses/Competency - TEXAS “Dead Man Statute”
ON TBE, ALWAYS APPLY DMS
Texas Dead Man’s Rule:
Interested witness incompetent if:
• Civil action by or against decedent’s estate, or by
or against decedent’s heirs or legal representatives.
• Either party to action seeks to testify to oral statement made by decedent.
BUT, party may testify to decedent’s oral statement if
either:
• Decedent’s oral statement is corroborated by other
evidence, OR
• Incompetent party is called by adverse party (i.e.,
the estate) to testify concerning decedent’s oral
statement.
