Evidence Essay Rule Statements Flashcards
What evidence is admissible and what makes evidence relevant?
All relevant evidence is admissible unless it is excluded by a specific rule, law, or constitutional provision. Evidence is relevant if it has a tendency to make a fact more or less probable (probative) and the fact is of consequence in determining the action (material).
Make sure to say that evidence has to be relevant when analyzing if it is admissible and explain why it is helpful for determining the outcome of the dispute
Legal Relevance 403
Relevant evidence may be excluded if the probative value is substantially outweighed by the danger of unfair prejudice, confusing the issue, misleading the jury, undue delay, or needlessly presenting cumulative evidence.
Character evidence in civil cases
In a civil case, character evidence is not admissible to prove that a person acted in accordance with that character or trait on a particular occasion.
But character evidence is admissible when character is an essential element of a claim or defense, such as: defamation, negligent hiring or entrustment, and child custody.
Character evidence in criminal cases
The prosecution is not allowed to introduce bad character evidence to prove a propensity to commit crimes.
A defendant may introduce evidence of his pertinent good character through reputation or opinion to show it is inconsistent with the charged crime
If a defendant “opens the door” the prosecution may then call a witness to rebut D’s character and use reputation or opinion OR cross-examine the D’s character witness an ask about reputation/opinion or specific acts. (The prosecution can ask about specific acts but can’t introduce extrinsic evidence)
Example of opinion and reputation evidence when witness says his friends just met the defendant.
Generally, character evidence is inadmissible. However, in a criminal case, the defendant is permitted to introduce evidence of his good character as being inconsistent with the type of crime charged, as long as the evidence is in the form of the defendant’s reputation in a community or opinion testimony by another witness. The “community” includes people the defendant engages with on a regular basis.
Here, Defense Counsel called Buddy to testify that he had heard from some of his friends that Defendant is an honest and gentle person who would never hurt anyone. Because Buddy is not testifying to his own opinion of Defendant, it is not opinion testimony. This testimony also does not qualify as reputation evidence, because Buddy’s friends have only met Defendant recently and engaged with him a few times. Therefore, as Buddy’s testimony is neither opinion nor reputation testimony, it is improper character evidence, and the judge should not have admitted it to prove Defendant’s character for honesty and gentleness.
Use of victim’s character in criminal trials
A defendant may introduce reputation/opinion evidence of the victim’s character if it is relevant to the defense asserted. If D opens the door then the prosecution may:
1) introduce rebuttal evidence of the victim character’s trait OR
2) introduce evidence of the defendant’s bad character regarding the same trait
In a homicide case, the prosecution may also offer evidence of the alleged victim’s trait for peacefulness to rebut evidence that the alleged victim was the first aggressor. Fed. R. Evid. 404(a)(2)(C).
Method of proving character evidence
405
(a) By Reputation or Opinion. When evidence of a person’s character or character trait is admissible, it may be proved by testimony about the person’s reputation or by testimony in the form of an opinion. On cross-examination of the character witness, the court may allow an inquiry into relevant specific instances of the person’s conduct.
(b) By Specific Instances of Conduct. When a person’s character or character trait is an essential element of a charge, claim, or defense, the character or trait may also be proved by relevant specific instances of the person’s conduct
Specific Bad Acts 404(b)
Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.
But, evidence of prior bad acts may be admissible to show a non-propensity purpose such as OKMIMIC
Opportunity, Knowledge, Motive, Intent
absence of Mistake, Identity, Common plan or scheme.
(3) Notice in a Criminal Case.
In a criminal case, the prosecutor must:
(A) provide reasonable notice of any such evidence that the prosecutor intends to offer at trial, so that the defendant has a fair opportunity to meet it;
(B) articulate in the notice the permitted purpose for which the prosecutor intends to offer the evidence and the reasoning that supports the purpose; and
(C) do so in writing before trial — or in any form during trial if the court, for good cause, excuses lack of pretrial notice.
Habit Evidence
Evidence of a person’s habit or an organization’s routine practice may be admitted to prove that on a particular occasion the person or org acted in accordance with the habit/routine practice. May be admitted regardless of whether its corroborated or whether there was an eyewitness.
Sex offense cases using Victim’s character, FRE 412
In a civil or criminal case involving alleged sexual misconduct, evidence of the victim’s sexual conduct/predisposition is generally barred.
Civil case exception: can be used in a civil case if the probative value substantially outweighs danger to the victim or unfair prejudice to any party
Criminal case exception:
(A) evidence of specific instances of a victim’s sexual behavior, if offered to prove that someone other than the defendant was the source of semen, injury, or other physical evidence;
(B) evidence of specific instances of a victim’s sexual behavior with respect to the person accused of the sexual misconduct, if offered by the defendant to prove consent or if offered by the prosecutor; and
(C) evidence whose exclusion would violate the defendant’s constitutional rights.
Witness Competence & Lay opinion
A non-expert witness must have personal knowledge of a matter in order to testify about it.
Lay opinion is admissible if it is rationally based on the witness’s perception, helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and not based on scientific, technical, or other specialized knowledge.
Past exam: A lay witness could give testimony about the speed of a vehicle
Expert Testimony
Before an expert witness may testify, the proponent must demonstrate to the court that it is more likely than not that the subject matter of the witness’s testimony:
i) Is scientific, technical, or other specialized knowledge, which focuses on the reliability of the testimony; and
ii) Will help the trier of fact understand the evidence or determine a fact in issue, which focuses on the relevance of the testimony.
A witness must be qualified as an expert through knowledge, skill, training, experience, or education.
The testimony must be based on sufficient facts or data and the product of reliable principles and methods.
Present recollection refreshed 612
Past Recollection recorded 803
A witness may examine any item to refresh his past recollection, and his testiomny must be based on his refreshed recollection (can’t read directly from the document). The item is not introduced into evidence unless the adverse party chooses to introduce it and then it can be read into evidence.
A memorandum or record about a matter the witness once had knowledge of but can not testify on because they now have an insufficient recollectionvand that was made or adopted by the witness when it was fresh in their mind and is accurate may be read into evidence. Not admitted as an exhibit unless the adverse party admits it.
Impeachment by character of untruthfullness
(a) Reputation or Opinion Evidence. A witness’s credibility may be attacked or supported by testimony about the witness’s reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character. But evidence of truthful character is admissible only after the witness’s character for truthfulness has been attacked.
(b) Specific Instances of Conduct. Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness. But the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of:
(1) the witness; or
(2) another witness whose character the witness being cross-examined has testified about.
By testifying on another matter, a witness does not waive any privilege against self-incrimination for testimony that relates only to the witness’s character for truthfulness.
Evidence of truthful character is only admissible after truthfulness has been attacked
Exception to specific instances of conduct to show truthfulness: Criminal convictions
Extrinsic evidence allowed for:
1) Any felony (penalty greater than 1 year) subject to 403 except when it is used against a criminal defendant and in that case is subject to reverse 403 (light)
2) Any misdemeanor involving dishonesty or false statements must be admitted. Most jurisdictions don’t consider burglary, larceny, theft, dishonest crimes because they don’t require proving an element of dishonesty
If the conviction is over ten years old it can only be admitted if its probative value substantially outweighs prejudice and notice is given by the proponent.
Use of past juvenile convictions
Evidence of a juvenile adjudication is not admissible to impeach a defendant. When the witness is not the defendant, evidence of a juvenile adjudication can be used to impeach the witness’s character for truthfulness only if:
i) It is offered in a criminal case;
ii) An adult’s conviction for that offense would be admissible to attack the adult’s credibility; and
iii) Admitting the evidence is necessary to fairly determine guilt or innocence.
Prior inconsistent statements/bias/sensory competence
Prior inconsistent statement can be used to impeach a witness and can be shown with extrinsic evidence if the witness is given a chance to explain it.
Extrinsic evidence can also be used to show bias or sensory competence.
Rehabilitation of a witness
If a witness is impeached, the witness may be rehabilitated by the introduction of rebuttal evidence, including:
1) explanation or clarification during redirect examination
2) Reputation or opinion evidence about the witness’s character for truthfulness; or
3) a prior consistent statement
Authentication
All tangible evidence must be authenticated To do so, the proponent must produce sufficient evidence to support a finding that the thing is what the proponent claims it to be.
Best Evidence Rule
The best evidence rule requires that the original document or a reliable duplicate be produced in order to prove the contents of a writing, recording, photo, x-ray, or video. Applies when the contents of the document is at issue or a witness is relying on the contents when testifying.
Define Hearsay
Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. Hearsay may be an oral or written assertation or nonverbal conduct intended as an assertion. Hearsay evidence is generally inadmissible unless it falls under an exception.
A hearsay declarant can be impeached as if they were a testifying witness when their statements are admissible
Hearsay can be admitted for other purposes besides proving truth of the matter asserted such as to show effect on a listener or provide context of the declarant’s state of mind.
Hearsay within hearsay requires exceptions for each point of hearsay
Non hearsay exceptions
When there is a testifying witness subject to cross examination:
1) Prior inconsistent statements given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition;
2) Consistent statements to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying;
3) Prior statements of id if witness is cross-examinable
EX:
part of Witness’s prior written statement included an identification of Defendant as the person Witness saw on May 5. Witness testified at trial and was subject to cross-examination concerning the identification. Therefore, this part of Witness’s prior written statement should have been admitted as a non-hearsay prior identification.
However, the remaining portion of Witness’s prior inconsistent statement, “I saw Defendant attack Victim and then run away with Victim’s bag,” is not non-hearsay, because only prior inconsistent statements made under oath at a trial, hearing, or deposition qualify as non-hearsay and can be admitted as substantive evidence therefor. This part is not admissible.
Also not hearsay
An Opposing Party’s Statement. The statement is offered against an opposing party and:
(A) was made by the party in an individual or representative capacity;
(B) is one the party manifested that it adopted or believed to be true;
(C) was made by a person whom the party authorized to make a statement on the subject;
(D) was made by the party’s agent or employee on a matter within the scope of that relationship and while it existed; or
(E) was made by the party’s coconspirator during and in furtherance of the conspiracy.
Hearsay exceptions when declarant is unavailable
Prior Testimony when it is offered against someone who had opportunity/motive to develop it
Dying declaration
Statement against interest (A statement offered in a criminal case that would subject the declarant to criminal liability is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.)
Statement of personal or family history
Statement against party that caused declarant’s unavailability
Hearsay exception where declarant’s availability is immaterial
1) Present sense impression
2) Excited utterance
3) Statement of mental, emotional, or physical condition
4) Statement made for medical diagnosis/treatment
5) Recorded recollection (witness no longer able to testify)
6) Business records
7) Public records
8) Learned treatises
9) Judgment of previous conviction (this has to be a felony)
