Evidence General Import Flashcards
Evidence Approach 3 steps
- Determine type of case - civil or criminal?
- Situate the proceeding - direct, cross, or re-direct?
- Determine about purpose for which the evidence is being offered - Prove something substantive, discredit a witness, prove propensity (Character Evidence)?
Initial relevance question
Does it tend to make the existence of any fact of consequence to the determination of the action (materiality) more or less probable than it would be without the evidence (probativeness)
Grounds for excluding under 403
Unfair prejudice, cumulative evidence, waste of time, misleading juries (confusion of issues).
“Of Consequence”
For evidence to be relevant, it must be offered to prove a fact of consequence in the case.
Normal 403 balancing
PV is substantially outweighed by unfair prejudice (PV is substantially outweighed by ugly phoenix) (PVsoUP). AKA the danger of unfair prejudice substantially outweighs the probative value.
Policy based relevance exclusions
Liability insurance;
subsequent remedial measures;
settlement offers and accompanying admissions;
offers to pay medical expenses;
withdrawn guilty pleases and accompanying statements
Liability insurance
a. Inadmissible to prove—negligence, ability to pay, or other wrongful action
b. Admissible to prove—ownership or control, impeachment, or as part of an admission of liability.
Liability insurance is admissible to prove (3 WAYS:
• To prove ownership or control, if disputed;
• To impeach a witness (usually to show their bias); or
• As part of an admission of liability, where the reference to insurance coverage cannot be severed without lessening its probative value as an admission of liability (for example, “Don’t worry, my insurance will pay it off”)
Subsequent remedial measures
Inadmissible to prove (3)
admissible to prove (3)
a. Inadmissible to prove—negligence, culpable conduct, or defect in a product or its design, or a need for a warning or instruction.
b. Admissible to prove—ownership or control, feasibility of the repair (to rebut a claim that precautions were impossible), or destruction of evidence.
SUBSEQUENT REMEDIAL MEASURES NOT admissable to prove
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 instruc- tion.
SUBSEQUENT REMEDIAL MEASURES ARE admissable to prove (3)
To prove ownership or control, if disputed;
To rebut a claim that a precaution was not feasible; or
To prove that the opposing party has destroyed evidence
CIVIL SETTLEMENTS, Settlement offers, and accompanying admissions of fact.
Inadmissible to prove: (2)
Exceptions (2)?
a. Inadmissible to prove or disprove validity or amount of disputed claim, or to impeach by prior inconsistent statement or contradiction. Conduct or state- ments made in the course of negotiating a compromise—including direct admissions of liability—are also inadmissible for these purposes.
b. Exception—preexisting information not protected
ALSO, Evidence of settlement is admissible to impeach a witness on the ground of bias.
c. Exception 2 - Civil Dispute with Government Authority: conduct or statements made during compromise negotiations regarding a civil dispute with a govern- mental regulatory, investigative, or enforcement authority are not excluded when offered in a criminal case.
The public policy exclusion for settlements and negotiations only kicks in if…
there was a claim or some indication that a party was going to make a claim (although the party need not have actually filed suit). Furthermore, the claim must have been in dispute as to either (1) liability or (2) amount.. DISPUTED CLAIM REQUIRED.
PLEA DISCUSSIONS
These are generally inadmissible in any criminal or civil case against the defendant who made the plea or participated in the discussions:
• Offers to plead guilty;
• Withdrawn guilty pleas;
• Actual pleas of nolo contendere (“no contest”); or
• Statements of fact made during any of the above plea discussions
Is an actual guilty plea (not withdrawn) admissible?
An actual guilty plea (not withdrawn) is generally admissible in related litigation as a statement of an opposing party (see the Hearsay module).
Payments or offers to pay medical expenses
a. Inadmissible to prove liability/culpable conduct. E that a party has paid or offered to pay an injured person’s medical, hospital, or similar expenses is inadmissible to prove liability for the injury.
b. But note: Accompanying statements of fact are admissible (unlike rule for settlement negotiations).
BUT: look for offer to pay medical expenses that is also an offer to settle (rule for settlement negotiations applies; meaning, any accompanying statements or conduct would be excluded along with the offer.
Statement made in connection with offer to pay medical expenses
ADMISSABLE
Statement made in connection with offer to settle
INADMISSABLE.
403 balancing - Judge has broad discretion to exclude relevant evidence if its probative value is substantially outweighed by
a. Unfair prejudice
b. Confusion of issues
c. Misleading the jury
d. Undue consumption of time/undue delay
e. Needless presentation of cumulative (repetitive) evidence
403 balancing
discretion to exclude it if its probative value is substantially outweighed …
SIMILAR OCCURRENCES
Some situations allow prior similar occurrences to be admitted:
Similar Accidents or Injuries Caused by Same Condition
Similar Accidents or Injuries Caused by Same Condition
Evidence of prior accidents or injuries caused by the same event or condition and occurring under substantially similar circumstances is admissible to prove: (1) the existence of a dangerous condition, (2) that the dangerous condition was the cause of the present injury, and (3) that the defendant had notice of the dangerous condition (if the other accident occurred before the plaintiff’s accident).
Plaintiff’s Prior Accidents or Claims
Evidence of a plaintiff’s prior accidents or claims is usually inadmis- sible; all it demonstrates is that the plaintiff is litigious or accident-prone.
a. Exceptions for Pre-Existing Condition or Prior False Claims: However, such evidence might be admissible in certain circumstances:
• Evidence of prior accidents may be admissible where the cause of the plaintiff’s damages is at issue. If the plaintiff previously injured the same part of their body, the evidence may be admitted to show that the plaintiff’s condition is attributable (in whole or in part) to the prior injury rather than the current accident.
• Evidence that a plaintiff has made previous similar false claims is usually relevant to prove that the present claim is likely to be false.
Previous Similar Acts to Prove Intent
Similar conduct previously committed by a party may be admissible to prove the party’s present motive or intent in the current case.
Rebutting Claim of Impossibility
Evidence of similar occurrences may be admitted to rebut a claim of impossibility.
Comparable Sales to Establish Value
The value of property may be at issue in certain cases, such as in a condemnation action, or to prove the amount of damages where property has been harmed or destroyed. In this situation, evidence of the sale price of similar property is admissible if it was in the same area and sold at around the same time.
Habit Evidence
Evidence of a person’s habit is relevant and admissible as circumstantial evidence that the person acted in accordance with the habit on the occasion at issue in the case. Habit describes a person’s regular response to a specific set of circumstances (meaning, there must be specific and repeated conduct). The evidence objectively describes the conduct without suggesting anything about the person’s morality.
Routine Practice Evidence
Habit evidence involves people, but there is a counterpart rule for organizations. The routine practice of an organization is relevant and admissible as circumstantial evidence that the organization acted in accordance with their routine practice on the occasion at issue in the case.
Industrial Custom Evidence
Evidence as to how others in the same trade or industry have acted in the recent past is admissible as evidence of the appropriate standard of care (to show how the party in the current case should have acted). However, industry custom isn’t conclusive on this point; for example, an entire industry may be acting negligently.
Character evidence
Character evidence refers to a person’s general propensity or disposition (such as for honesty, fairness, peacefulness, violence)
Character evidence in CIVIL CASES
GENERALLY NOT ADMISSIBLE: In civil cases, character evidence is generally inadmissible to prove conduct in conformity; meaning, it cannot be offered to prove how a person probably acted during the events of the current case. But Admissible When Character Directly in Issue.
Limited exception to this rule that allows evidence of the defendant’s prior similar acts in civil and criminal sexual assault and child molestation cases.
DEFENDANT’S CHARACTER IN CRIMINAL CASE
As a general rule, the prosecution cannot initiate evidence of the defendant’s bad character to show conduct in conformity. BUT, D is permitted to “open the door” and introduce evidence of their own good character to show their innocence.
D may offer evidence of their own good character to prove their conduct in the case. The evidence must concern a pertinent trait, and such evidence must be in the form of reputation and/or opinion testimony. Evidence of specific acts of good conduct by the defendant is not admissible to prove character for purposes of showing conduct in the case
defendant taking the stand and testifying.
a defendant does not open the door to character evidence merely by taking the stand and testify- ing. Taking the stand places the defendant’s credibility
(as opposed to character) in issue; meaning, the prosecution is limited to offering impeachment evidence rather than substantive character evidence.
How Prosecution Rebuts Defendant’s Character Evidence
Prosecution may rebut it by either or both of the following methods:
a. Offering Evidence of Defendant’s Bad Character: The prosecution can call its own character witnesses to provide reputation or opinion testimony about the defendant’s bad character for the trait in question.
b. Cross-Examining Defendant’s Character Witnesses: The prosecution can cross-examine the defendant’s character witnesses regarding the basis for their testimony by asking “Have you heard?” or “Did you know?” questions about specific acts of the D that show the defendant’s bad character for the trait in question. This questioning is admissible only to impeach the witness by showing their lack of knowledge. It is not admissible to prove the defendant’s character.
Prosecution Rebuts Defendant’s Character Evidence - Extrinsic Evidence
When the prosecutor rebuts by this method (Cross-Examining Defendant’s Character Witnesses), they are limited to questioning the defendant’s character witness on cross-examination; they cannot introduce any extrinsic evidence of the misconduct.
What misconduct may be inquired about while cross-examining a defendant’s character witness?
Any misconduct, including prior arrests, may be inquired about while cross-examining a defendant’s character witness. Be careful to distinguish asking a character
witness whether they are aware of the defendant’s prior arrests, which is proper, and impeaching a witness with the witness’s own arrests, which is improper.
Character evidence - when are specific acts permitted?
usually not permitted, unless character is directly at issue in the case (rare); in sexual assault or child molestation cases; or when the act is independently relevant (i.e., relevant to an issue other than defendant’s character)—“MIMIC”. Prior acts or crimes may be admissible for other purposes (e.g., to show motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident).
Essential element
When proof of a person’s character, as a matter of substantive law, is an essential element of a claim or defense.
• Defamation cases where truth is a defense (plaintiff’s character is at issue);
• Negligent hiring or entrustment cases (hired/entrusted person’s character is at issue); and
• Child custody cases (parents’ character is at issue)
In order for a defendant’s prior misconduct to be admissible for some relevant non-character purpose (motive, intent, etc.), there must be:
sufficient evidence to support a jury finding that the defendant committed the prior act.
prior misconduct evidence is inadmissible if…
the danger of unfair prejudice substantially outweighs the probative value.
Character evidence of the D - criminal cases
Defendant may introduce evidence of his own good character to show innocence.
Prosecution may introduce defendant’s bad character:
a) As rebuttal when defendant “opens the door”
b) Specific acts that are independently relevant (“MIMIC”)
c) Specific similar acts by defendant in sexual assault or child molestation case (admissible for any relevant purpose, including propensity)
Character evidence of the V - criminal cases
a) Defendant may introduce if relevant to his innocence (generally in self- defense cases). Reputation and/or opinion evidence of a bad character trait of the alleged crime victim when it is relevant to show the defendant’s innocence.
b) Prosecution may rebut with (i) defendant’s bad character for same trait or (ii) victim’s good character for same trait.
Evidence of a victim’s character might also be offered for a non-propensity purpose—to prove the defendant’s state of mind at the time of the altercation.
Character evidence of the V - criminal cases - Prosecution Rebuttal
Prosecution Rebuttal: Once the defendant has introduced evidence of a victim’s bad character for a pertinent trait (usually violence), the prosecution may rebut with reputation or opinion evidence of:
• The victim’s good character for the same trait, or
• The defendant’s bad character for the same trait
When Prosecution Can Initiate - VICTIM’S CHARACTER IN CRIMINAL CASE
Rebutting Self-Defense Claim in Homicide Case: prosecution to offer evidence of a victim’s good character for peacefulness. In a homicide case in which the defendant pleads self-defense, evidence of any kind (not just character evidence) that the victim was the first aggressor (for example, eyewitness testimony that the victim struck first) opens the door to evidence that the victim had a good character for peacefulness.
The prosecution can introduce this evidence regardless of whether the defendant has introduced character evidence of the victim’s generally violent propensity.
Character evidence - CIVIL cases
Civil cases—character evidence generally not admitted
Exceptions—when character is directly in issue (e.g., defamation, negligent hiring); similar specific acts in a sexual assault or child molestation case; or specific acts that are independently relevant (“MIMIC”).
What type of Character evidence is allowed in CIVIL cases when it is allowed?
Where character evidence is allowed in a civil case (i.e., when character is directly at issue), under the Federal Rules, any of the types of character evidence (reputation, opinion, or specific acts) may be used.
Rape Victim’s Past Behavior - CRIMINAL cases
Rape Victim’s Past Behavior Generally Inadmissible: In any civil or criminal proceeding involving alleged sexual miscon- duct, evidence offered to prove the sexual behavior or sexual dispo- sition of the victim is generally inadmissible.
Exceptions in Criminal Cases: In a criminal case involving alleged sexual misconduct, specific instances of a victim’s sexual behavior are admissible to prove that someone other than the defendant is the source of semen, injury, or other physical evidence. Also, specific instances of sexual behavior between the victim and the defendant are admissible by the prose- cution for any reason and by the defense to prove consent.
Rape Victim’s Past Behavior - CIVIL cases
Rape Victim’s Past Behavior Generally Inadmissible: In any civil or criminal proceeding involving alleged sexual miscon- duct, evidence offered to prove the sexual behavior or sexual dispo- sition of the victim is generally inadmissible.
Exceptions in Civil Cases: In a civil case involving alleged sexual misconduct, evidence of the alleged victim’s sexual behavior is admissible if it is 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 (notice that this is not the same balancing test as in Rule 403 and favors excluding the evidence). Evidence of an alleged victim’s reputation is admissible only if it has been placed in controversy by the victim.
MISCONDUCT FOR NON-CHARACTER PURPOSE
Admissible If Independently Relevant: Evidence of a person’s other crimes, wrongs, or acts is admissible if relevant to some issue other than their character or propensity to commit the crime charged (or the alleged act in civil cases).
Non-character purposes for offering the evidence may include motive, intent (to show guilty knowledge or lack of good faith), absence of mistake or accident, identity (for example, “signature” crimes/modus operandi), or common plan or scheme (usually, committing one crime to prepare for another).
MIMIC
Motive, intent, mistake (absence of), identity, common scheme or plan. These are the most common non-propensity purposes for offering evidence of a defendant’s other crimes or misconduct. Civil and criminal. BUT, remember that this E can be admitted as long as it is relevant to any purpose other than the defendant’s general character or propensity to commit the charged crime.
Must be E sufficient to support a jury finding that the defendant committed the other misconduct (meaning, a reasonable juror could come to this conclusion)
MIMIC Evidence
MIMIC evidence is admissible only if the defendant is actually contesting the non-character issue (for example, identity or intent). Also remember that if a MIMIC category is satisfied, the prosecution may use the evidence of misconduct as part of its case-in-chief. In other words, because MIMIC evidence is being offered for a non-propensity purpose, it is admissible even if the defendant does not “open the door” to character evidence.
DEFENDANT’S SIMILAR MISCONDUCT IN SEX-CRIME CASES
Evidence of a defendant’s other acts of sexual assault or child molestation is admissible in a criminal or civil case where the defendant is accused of committing an act of sexual assault or child molestation.
Such evidence is relevant for any purpose, including the defendant’s propensity to commit sex crimes.
Habit vs Character evidence
Habit evidence concerns a person’s regular response to a specific set of circumstances. Habit evidence is admissable bc its not CE. Character evidence describes one’s disposition with respect to general traits.
Real evidence
Object is presented directly to the trier of fact for inspection. Allows the trier of fact to reach conclusions based upon its own perceptions rather than relying upon those of witnesses
Types of Real Evidence
Direct, circumstantial, original, Prepared
Direct
a. Offered to prove the facts about the object as an end in itself
b. Example—evidence of a permanent injury can be shown by the injury itself
Circumstantial
a. Facts about the object are proved as a basis for an inference that other facts are true
b. Example—in a paternity case, the child can be shown to the jury to demonstrate the child is the same race as the alleged father
Original: Has some connection with the transaction that is in question at the trial
Has some connection with the transaction that is in question at the trial
Prepared
“demonstrative” evidence; Examples—sketches, models, jury view of scene
Real evidence must be…
Authenticated.
Recognition testimony by witness—if item has recognizable features
Chain of custody—if evidence is a type likely to be confused or if it can be easily tampered with.
Chain of custody
Applies if evidence is a type likely to be confused or if it can be easily tampered with.
Proponent must show that the object has been held in a substantially unbroken chain of possession. Need not negate all possibilities of substitution or tampering, but must show adherence to some system of identification and custody
DOCUMENTARY EVIDENCE
Authenticated and best evidence rule.
Authentication for writings
Writings must be authenticated by proof showing they are what the proponent claims they are (unless self-authenticating such as newspapers, commercial paper, etc.)
Standard for authentication—proof sufficient to support a jury finding of genuineness
Best Evidence Rule (“Original Document Rule”)
In proving the terms of a writing (including a recording, photograph, or X-ray), where the terms are material, the original writing must be produced. Secondary E is allowed only if the original is unavailable for some reason other than the serious misconduct of the proponent
Best Evidence Rule (“Original Document Rule”) applies when (two):
a. When the writing is a legally operative or dispositive instrument (e.g., contract, deed, will, divorce decree).
b. When the witness’s knowledge of a fact comes from having read it in the document - If the fact exists independently of a writing, the best evidence rule does not apply
Requirements for W competency
- Personal knowledge of the subject matter
- Sworn oath or affirmation that witness will testify truthfully
- All witnesses presumed competent under the Federal Rules until the contrary is demonstrated (no age requirement)
If W requires an interpreter, the interpreter must be qualified and take an oath to make a true translation.
Personal knowledge
The question is, does the fact testified to match the fact that was perceived by the witness? If not, personal knowledge is the proper objection.
Insanity
An insane person may testify, provided they understand the obliga- tion to speak truthfully and have the capacity to testify accurately.
Jurors testifying
Inquiry into Verdict or Indictment
During an inquiry into the validity of a verdict or indictment, a juror is generally prohibited from testifying about what occurred during deliberations or about anything that may have affected a juror’s vote, and the court may not receive evidence of a juror’s statement on such matters. BUT, A juror may testify as to:
Whether any extraneous prejudicial information was improp- erly brought to the jury’s attention;
Whether any outside influence was improperly brought to bear on any juror;
Whether there is a mistake on the verdict form; or
Whether any juror made a clear statement that they relied on racial stereotypes or animus to convict a criminal defendant. Ct must find that racial animus was a significant motivating factor in the juror’s vote to convict.
Dead man act
Not recognized by Federal Rules; statutes vary by state
CIVIL CASE Only. May bar an interested person from testifying in a civil case as to a communica- tion with a deceased, if such testimony is offered against the representative of the deceased (e.g., executor). an interested person (or their prede- cessor in interest) is incompetent to testify to a personal transac- tion or communication with a deceased, when such testimony is offered against the representative or successors in interest of the deceased. A person is “interested” if they stand to gain or lose by the judgment, or if the judgment may be used for or against them in a subsequent action. Has exceptions.
Leading Questions
Leading questions (questions that suggest the desired answer) are generally allowed only on cross-examination and are not permitted on direct examination.
Allowed on DIRECT when:
• To elicit preliminary or introductory matter;
• When the witness needs help responding because of loss of memory, immaturity, or physical or mental weakness; or
• When the witness is hostile, an adverse party, or a witness affiliated with an adverse party.
Scope of Cross-Examination
A party has a right to cross-examine any opposing witness, but the scope of cross-examination is frequently a matter of judicial discretion. Cross-examination is generally limited to:
• The scope of direct examination, including all reasonable infer- ences that may be drawn from it, and
• Matters that test the credibility of the witness (the permitted methods of impeachment are covered in the Credibility and Im- peachment module)
Improper Questions and Answers
Questions that are misleading (cannot be answered without making an unintended admission), compound (requiring a single answer to more than one question), argumentative, conclusionary, cumulative, unduly harassing or embarrassing, call for a narrative answer or speculation, or assume facts not in evidence are improper and are not permitted. Answers that lack foundation (the witness has insuffi- cient personal knowledge) and answers that are nonresponsive (do not answer the specific question asked) may be stricken.
Refreshing Recollection—Present Recollection Revived
A witness may use any writing or object for the purpose of refreshing their present recollection. They usually may not read from the writing while testifying because the writing is not authenticated and not in evidence (and thus, there is no hearsay concern).
Refreshing Recollection - Safeguards Against Abuse
Adverse Party’s Options: Whenever a witness has used a writing to refresh their memory while on the stand, an adverse party is entitled to:
• Have the writing produced at trial;
• Cross-examine the witness about the writing; and
• Introduce portions of the writing relating to the witness’s testimo- ny into evidence
If the witness refreshed their memory before taking the stand, an adverse party is entitled to the above options only if the court decides that justice requires it.
Failure to Produce or Deliver Writing
In a criminal case, if the prosecution fails to produce or deliver a writing as ordered, the judge must strike the witness’s testi- mony—and, if justice requires, declare a mistrial.
When the defense fails to comply, or in a civil case, the judge has more discretion and can issue “any appropriate order.”
Recorded Recollection
Only a record that meets several foundational requirements (e.g., timely made by witness; witness cannot remember the events after reading the record) may be used.
The record itself is read into evidence (but is not received as an exhibit unless offered by an adverse party).
This is hearsay, but it falls within a specific exception to the hearsay rule.
Recorded Recollection FOUNDATION
The foundation must include proof that:
• The witness has insufficient recollection to testify fully and ac- curately (that is, showing the document to the witness fails to jog their memory);
• The witness had personal knowledge of the facts in the record when the record was made;
• The record was made by the witness or under their direction, or it was adopted by the witness (adoption means that another person made the record and the witness said or did something to indicate that they agreed with the record’s contents);
• The record was made or adopted when the matter was fresh in the witness’s mind; and
• The record accurately reflects the witness’s knowledge. In other words, even though the witness cannot currently remember the facts, this requirement is satisfied where the witness vouches for the accuracy of the record at the time that it was made or adopted
Recorded Recolelction offered into evidence?
Although the record may be read into evidence and heard by the jury, it cannot be admitted into evidence as an exhibit unless offered by an adverse party.
Opinion Testimony by Lay Witnesses. (Lay Opinion Testimony)
Requirements—rationally based on the witness’s perception, helpful to the jury, and Not based on scientific, technical, or other specialized knowledge.
Opinion Testimony by Lay Witnesses (Requirements?)
a. Requirements: Opinions by lay (nonexpert) witnesses are generally inadmissible. However, there are many cases where no better evidence can be obtained. Opinion testimony by a lay witness is admissible when it is:
• Rationally based on the witness’s perception;
• Helpful to a clear understanding of the witness’s testimony or helpful to the determination of a fact in issue; and
• Not based on scientific, technical, or other specialized knowledge
Opinion Testimony by Lay Witnesses EXAMPLES
a. General appearance or condition of a person
b. State of emotion
c. Speed of moving object
d. Intoxication
e. Sanity
f. Voice or handwriting identification
g. Value of Own Services
h. Rational or Irrational Nature of Another’s Conduct
Admissable lay opinion examples:
General appearance of a person, emotions, sense recognition like Speed of an automobile, handwriting, valuation of property, rational nature of another persons conduct, whrether someone was intoxicated.
Situations Where Opinions of Lay Witnesses Are Not Admissible
A lay witness cannot give an opinion as to whether they (or someone else) acted as an agent or whether a contract was made, as these are legal conclusions that require specialized knowledge.
Expert Witness Testimony Requirements (basic)
Expert is qualified, expert is reasonably certain, helpful, based on sufficient facts or data, based on reliable principles and methods, reliably applied.
Opinion Testimony by Expert Witnesses: Requirements for Admissibility
Expert testimony admissible: (1) the witness must be qualified as an expert; (2) the witness must be at least reasonably certain about their opinion; (3) the subject matter must be one where scientific, technical, or other specialized knowledge would be helpful to the jury; (4) the opinion must be based on sufficient facts or data; (5) the opinion must be the product of reliable principles and methods; and (6) the expert must have reliably applied the principles and methods to the facts of the case.
Expert Opinion Testimony
- Is the subject matter one where expert testimony would assist the trier of fact (relevant and reliable)? Court acts as gatekeeper to determine reliability (Daubert test)
- Is the expert qualified on the subject?
- Does the expert possess reasonable probability regarding her opinion?
- Is the opinion supported by a proper factual basis (personal observation, facts made known to her at trial, or facts supplied outside courtroom and of a type reasonably relied upon by experts in field)?
Qualification as Expert
The witness must be qualified as an expert. This requirement is satisfied if they possess special knowledge, skill, experience, training, or education.
Reasonable Probability
The expert must have a reasonable level of certainty in the correctness of the opinion. A mere guess or speculation is not sufficient.
Proper Factual Basis
The expert’s opinion must be supported by a proper factual basis. The opinion can be based on any of the following 3 possible sources of information:
• Facts based on the expert’s own personal observation (for example, the expert personally examined the injured plaintiff).
• Facts made known to the expert at trial (for example, the expert reviews testimony from the trial, or counsel relates the facts to the expert on direct examination in the form of a hypothetical question).
• Facts not known personally but supplied to the expert outside the courtroom and of a type reasonably relied upon by other experts in the particular field. Such facts need not be admissible as evidence.
But if the facts would be inadmissible, the proponent of the expert testimony must not disclose the facts to the jury unless the court determines that their probative value in helping the jury evaluate the expert’s opinion substantially outweighs their prejudicial effect.
Expert Testimony: Main Daubert Factors
Testing, peer review and publication, error rate, standards controlling operation, general acceptance by other experts in field.
Reliability—Judge as Gatekeeper: Federal courts determine the reliability of all expert testimony (scientific or otherwise) and have discretion to consider a wide variety of factors. The traditional Daubert factors for reliability of scientific testimony include: (1) whether the expert’s theory or methodology has been tested; (2) whether it has been subject to peer review and publication; (3) its known or poten- tial error rate; (4) the existence and maintenance of standards controlling its operation; and (5) whether it is generally accepted in the relevant field.
Expert testimony - proper factual basis
(personal observation, facts made known to her at trial, or facts supplied outside courtroom and of a type reasonably relied upon by experts in field)
Learned treatises - When admissable as substantive evidence
Established as reliable authoprity, used in context of expert testimony (Called to experts attention on cross or relied upon on direct), excerpt read into evidence (not received as exhibit)
Use of Learned Treatises During Examination
A relevant excerpt from a treatise, periodical, or pamphlet may be used during expert testimony. Under the Federal Rules, these “learned treatises” can be used not only to impeach experts, but also as substantive evidence (that is, to prove that what the treatise says is true) under the “learned treatise” exception to the hearsay rule, subject to the following limitations:
• The treatise must be established as reliable authority by: (1) the testimony of the expert on the stand, (2) the testimony of another expert, or (3) judicial notice;
• The excerpt must be used in the context of expert testimony (meaning, it is called to the attention of an expert witness on cross-examination, or relied upon by an expert witness during direct examination); and
• The excerpt is read into evidence but cannot be received as an exhibit
Hypo: Prosecution’s toilet expert testifies that it’s impossible for a toilet to explode accidentally. On cross-examination, defense reads from page 747 of volume 6 of Professor Plunge’s seminal work, On The Toilet, which states “Toilets have been known to explode accidentally in seismically active areas.” Admissible?
Yes. meets reqs of learned treatise exception.
Expert opinion on ultimate issues
Permitted except for testimony concerning D’s mental state in criminal case. In a criminal case in which the defendant’s mental state constitutes an element of the crime or defense, an expert may not state an opinion as to whether the accused did or did not have the mental state in issue.
EXCLUSION AND SEQUESTRATION OF WITNESSES
Upon a party’s request, the trial judge must order witnesses excluded from the courtroom.
The judge may also do this on their own motion. The judge, however, must not exclude: (1) a party or a designated officer or employee of a party, (2) a person whose presence is essential to the presentation of a party’s claim or defense, or (3) a person statutorily authorized to be present.
bolstering witness’s testimony
bolstering witness’s testimony is generally prohibited until credibility is attacked.
Exceptions to Rule Against Bolstering
In certain cases, a party may offer evidence that the witness made a timely complaint (in a sexual assault case, for example) or a prior state- ment of identification (usually, identifying the defendant as the perpe- trator of the charged crime) even if this tends to bolster their in-court testimony. The prior identification may also serve as substantive evidence that the identification was correct.
WITNESSES CALLED OR EXAMINED BY THE COURT
The court may examine a party’s witness or call its own witness. Each party is entitled to cross-examine a witness called by the court. A party may object to the court’s examining or calling a witness either at that time or at the next available opportunity when the jury is not present.
Two ways of impeaching
Cross-examination and extrinsic evidence
Common methods of impeachment
- Prior inconsistent statement
- Bias
- Prior conviction of crime
- Prior bad acts
- Opinion or reputation evidence of untruthfulness (poor reputation for truthfulness)
- Sensory deficiencies
- Contradictory facts
Impeachment methods
• Impeachment methods 1-4 (prior inconsistent statements; bias; sensory deficiencies; contradiction) involve impeaching a witness with facts that are specific to the current case; and
• Impeachment methods 5-7 (opinion or reputation evidence of untruthfulness; prior convictions; bad acts) involve impeaching a witness with their general bad character for truthfulness
• Impeachment methods 1-4 - involve impeaching a witness with facts that are specific to the current case;
(prior inconsistent statements; bias; sensory deficiencies; contradiction)
• Impeachment methods 5-7 - impeaching a witness with their general bad character for truthfulness
(opinion or reputation evidence of untruthfulness; prior convictions; bad acts)
• Impeachment methods
- prior inconsistent statements;
- bias;
- sensory deficiencies;
- contradiction;
- opinion or reputation evidence of untruthfulness;
- prior convictions;
- bad acts involving untruthfulness
Impeachment by Prior conviction of crime
a. Any crime (misdemeanor or felony) involving dishonesty or false statement - Admission automatically, judge has no discretion to exclude. Look for DUF - deceit, untruthfulness, falsification.
b. Any other felony (1 year prison)
c. Limitation on remoteness (10 year)
A witness may be impeached by cross-examining her about specific criminal or immoral acts, but extrinsic evidence is not permitted.
What crimes (misdemeanor or felony) involve dishonesty or false statement?
Any crime (misdemeanor or felony) involving dishonesty or false statement.
Look for DUF - deceit, untruthfulness, falsification. Active element of DUF, not just theft or robbery or burglarly.
Result- Admission automatically (if less than 10 years old) judge has no discretion to exclude.
Is perjury a crime of dishonesty?
Yes!
Impeachment by Prior Inconsistent Statements
may show, by cross-examination or extrinsic evidence, that the witness has, on another occasion, made statements inconsistent with their present testimony. (to use as actual evidnece, must meet hearsay exclusion by having prior inconsistent statement made under oath).
May be done on examination of a W or with extrinsic evidnece.
Must be relevant and foundation required for extrinsic evidence. To prove the statement by extrinsic evidence, a proper foundation must be laid and the statement must be relevant to some issue in the case.
Requirements to prove a prior inconsistent statement by extrinsic evidence
To prove a prior inconsistent statement by extrinsic evidence, certain requirements must first be met. It is not enough that the prior inconsistent statement cast doubt on the witness’s credibility. Instead, the statement must be relevant to the case; i.e., it cannot be a collateral matter.
Extrinsic evidence of a prior inconsistent statement
Extrinsic evidence of a prior inconsistent statement may not be used to impeach a witness upon a collateral matter.
When is a prior inconsistent statement Admissible as Substantive Evidence?
Usually, prior inconsistent statements are hearsay, admissible only for impeachment purposes. BUT If, a testifying witness’s prior inconsistent statement was made under oath at a prior proceeding, it is admissible nonhearsay and may be admitted as substantive evidence of the facts stated.
prior inconsistent statement - Foundation for Extrinsic Evidence
Must not be collateral
At some point in case, must: Give W opportunity to explain or denty, give adverse party opportunity to examine witness.
Extrinsic evidence can be introduced to prove a prior inconsistent statement only if its content is not collateral (meaning, it is probative of some fact of consequence in the case or says something about the witness’s credibility beyond just showing the witness made an inconsistent statement) and, at some point:
• The witness is given an opportunity to explain or deny the statement (opportunity to explain or deny can be given before or after introduction of the extrinsic evidence); and
• The adverse party is given an opportunity to examine the witness about the statement
prior inconsistent statement - Exceptions to Foundation Requirement
Does not apply where PIS is an opposing party’s statement. An inconcsitent statement by a hearsay declarant can be used to impeach the hearsay declarant despite lack of foundation. Where justice so requires.
The foundation requirement above (giving the witness an oppor- tunity to explain or deny; allowing the adverse party to examine them) does not apply in the following circumstances:
- The foundation requirement does not apply if the prior incon- sistent statement is an opposing party’s statement (see the Hearsay module).
- An inconsistent statement by a hearsay declarant can be used to impeach the hearsay declarant despite the lack of a foundation.
- The court may dispense with the foundation requirement where justice requires (for example, when the witness has left the stand and is unavailable when their inconsistent statement is discovered).
Impeachment by Bias or Interest
Evidence that a witness is biased or has an interest in the outcome of a case tends to show that the witness has a motive to lie.
A witness is a friend, relative, or employee of a party; an expert witness is being paid by a party; a witness has a grudge against a party, etc.
Extrinsic Evidence: The majority rule is that before a witness can be impeached by extrinsic evidence of bias or interest, they must first be asked about the facts that show bias or interest on cross-examination. Note that the court has discre- tion to permit extrinsic evidence even if the witness admits the bias.
Impeachment by Sensory Deficiencies
witness may be impeached by showing, either on cross-exam- ination or by extrinsic evidence, that their faculties of perception and recollection were so impaired as to make it doubtful that they could have perceived those facts. A witness may also be impeached by showing that they had no knowledge of the facts to which they testified.
Admisaable on examination of W or by extrinsic evidence. No foundation requirement.
collateral matter
it has no significant relevance to the case or to the witness’s credibility;
Impeachment by Contradictory Facts
Impeach- ment by contradiction is a recognized method of impeachment. The cross-examiner, while questioning the witness, can try to make the witness admit that they lied or were mistaken about some fact they testified to during direct examination.
If the witness admits the mistake or lie, they have been impeached by contradiction. However, if the witness sticks to their story, the issue becomes whether extrinsic evidence may be used to prove the contradictory fact. The answer is yes, extrinsic evidence is permitted unless the contradic- tory fact is collateral (meaning, it has no significant relevance to the case or to the witness’s credibility;
Impeachment by Opinion or Reputation Evidence of Untruthfulness
A witness can be impeached with reputation or opinion evidence of their own bad character for truthfulness, to suggest that they were not telling the truth while on the stand. This is accomplished by calling a character witness to testify about the target witness’s bad reputation or the character witness’s low opinion of the target witness.
Impeachment by Conviction of Crime
A witness may be impeached by proof of a conviction (an arrest or indictment is not sufficient) for certain crimes. A pending review or appeal does not affect the use of a conviction for impeachment.
- Any Crime Involving Dishonesty or False Statement: Any crime, felony, or misdemeanor requiring an act of dishonesty of false stmt. Ct has NO DISCRETION to bar impeachment. narrowly includes only crimes in the nature of “crimen falsi” (for example, perjury, false statement, criminal fraud, embezzlement, false pretense). Look for a crime that involves some “uttering of false words.”
- Felony Not Involving Dishonesty or False Statement. Ct HAS DISCRETION to exclude. Balancing test depends on whether the W is the defendant in a criminal case, or someone else:
– If the W being impeached is a criminal defendant, Ct will exclude the conviction if the prosecution has not shown that its probative value outweighs its prejudicial effect. (This is a more difficult balancing test than for other witnesses.)
– In the case of all other Ws, the court will exclude the conviction if it determines that its probative value is substantially outweighed by its prejudicial effect. This is the standard Rule 403 balancing test, which favors admitting the evidence.
Impeachment by Conviction of Crime - - Any Crime Involving Dishonesty or False Statement
- Any Crime Involving Dishonesty or False Statement: Any crime, felony, or misdemeanor requiring an act of dishonesty of false stmt. Ct has NO DISCRETION to bar impeachment. narrowly includes only crimes in the nature of “crimen falsi” (for example, perjury, false statement, criminal fraud, embezzlement, false pretense). Look for a crime that involves some “uttering of false words.”
Impeachment by Conviction of Crime - - Felony Not Involving Dishonesty or False Statement
- Felony Not Involving Dishonesty or False Statement. Ct HAS DISCRETION to exclude. Balancing test depends on whether the W is the defendant in a criminal case, or someone else:
– If the W being impeached is a criminal defendant, Ct will exclude the conviction if the prosecution has not shown that its probative value outweighs its prejudicial effect. (This is a more difficult balancing test than for other witnesses.)
– In the case of all other Ws, the court will exclude the conviction if it determines that its probative value is substantially outweighed by its prejudicial effect. This is the standard Rule 403 balancing test, which favors admitting the evidence.
Impeachment by Conviction of Crime: Remote Convictions
Remote Convictions Generally Not Admissible: Generally, if more than 10 years have elapsed since the date of conviction or the date of release from confinement (whichever is later), the conviction is inadmissible.
Court May Admit in Extraordinary Circumstances: The court may admit an older conviction if: (1) its probative value substantially outweighs its prejudicial effect (a reverse-Rule 403 balancing test that strongly favors exclusion); and (2) the proponent gives the adverse party reasonable written notice of their intent to use it.
Impeachment by Conviction of Crime: How can they be proved?
If its admissable, it may be proved either through the testimony of the witness being impeached or by extrinsic evidence. No founda- tion is necessary.
if a party introduces evidence of their own prior conviction (to take out the sting of being impeached on cross-examination), they cannot…
if a party introduces evidence of their own prior conviction (to take out the sting of being impeached on cross-examination), they cannot later claim on appeal that the convic- tion was erroneously admitted.
Impeachment by Conviction of Crime: Effect of Pardon
A conviction cannot be used to impeach a witness if the conviction was subject to a pardon or equivalent procedure, and either:
• The pardon was based on rehabilitation, and the witness has not been convicted of a subsequent felony; or
• The pardon was based on innocence (irrespective of any subse- quent convictions)
Impeachment by Conviction of Crime: Juvenile Convictions
Juvenile offenses are generally not admissible for impeachment purposes. However, in a criminal case, the judge has the discretion to admit evidence of a juvenile offense committed by a witness other than the accused if the E would be admissible to attack the credibility of an adult and if the evidence is necessary to a determina- tion of the accused’s guilt or innocence.
Impeachment by Conviction of Crime: Constitutionally Defective Conviction
Constitutionally Defective Conviction Cannot Be Used. A conviction obtained in violation of the defendant’s constitutional rights is invalid for all purposes, including impeachment.
Impeachment by Prior Bad Acts
Must be bad acts Involving Untruthfulness - Must be probative of truthfulness (i.e., an act of deceit). Interrogation permitted, Cross-examination only, extrinsic evidence prohibited (a witness may be interrogated upon cross-examination). With respect to an act of misconduct if the act is probative of truthfulness (that is, an act of deceit or lying).
The cross-examiner must have a good-faith basis to believe the witness committed the misconduct. Discretion of court.
Additionally, the cross-examiner cannot refer to any consequences the witness may have suffered as a result of their bad act. (permissible to ask a witness whether they
embezzled money from their employer. It is not permissible to ask them whether they were arrested for embezzlement.)
Cross X of Prior bad acts during impeachment
Extrinsic evidence of “bad acts” is not permitted, even where the witness denies committing the act on cross-examination. If the witness denies the act, the cross-examiner, acting in good faith, may generally continue the cross-examination after a denial in the hope that the witness will change his answer.
The Federal Rules of Evidence permit a party to cross-examine a witness regarding the witness’s prior act of misconduct only where the act ____
is probative of truthfulness (i.e., is an act of deceit or lying)
Impeachment by Bias
A witness can be impeached, either on cross-examination or by extrinsic evidence, with evidence that suggests a bias on the part of the witness, because it tends to show that the witness has a motive to lie. Evidence that the witness disliked the party he is testifying against would qualify as evidence of bias. if the prior bad act also helps establish bias, the courts have held that extrinsic evidence also will be admissible.
IMPEACHMENT ON COLLATERAL MATTER
Where a witness makes a statement not directly relevant to the issue in the case, the rule against impeachment on a collateral matter prohibits a party from proving the statement untrue either by extrinsic evidence or by a prior inconsistent statement.
IMPEACHMENT OF HEARSAY DECLARANT
The credibility of a hearsay declarant may be attacked (and if attacked, may be supported) by evidence that would be admissible if the declarant had testified as a witness. The hearsay declarant can be impeached by any of the impeachment methods.
BUT, the difference is that the hearsay declarant need not be given the opportunity to explain or deny a prior inconsistent statement.
Also, the party against whom the out-of-court statement was offered may call the hearsay declarant as a witness and cross-examine them about the statement.
a “hearsay declarant” means… (2)
a person whose out-of-court statement has been admitted into evidence: (1) under an exception to the hearsay rule, or (2) as a vicarious statement of an opposing party
Rehabiliation
Rehabilitation must meet the attack.
1. Explnation on redirect:The witness on redirect may explain or clarify facts brought out on cross-examination.
2. Good character for truthfulness (rep or opinion testimony) - other witnesses may be called to give reputation or opinion testimony about the impeached witness’s good character for truthfulness.
The character witness cannot testify about specific acts of truthful conduct by the impeached witness; only reputation and opinion are allowed.
3. Prior Consistent Statement: Next
Rehabiliation by Prior Consistent Statement:
- Prior Consistent Statement: 2 situations in which a party can rehabilitate a witness by introducing the witness’s prior consistent statement.
• First, if the testimony of W has been attacked by an express or implied charge that the witness is lying or exaggerating because of some motive, a previous consistent statement made by the witness before the onset of the alleged motive is admissible to rebut this evidence.
• Second, if the witness’s testimony is impeached on some different ground (other than a general attack on the witness’s character for truthfulness), such as an inconsistency or a charge of faulty memory, counsel may introduce a prior consistent statement made by the witness if, under the circumstances, it has a tendency to rehabilitate the witness’s credibility.
A prior consistent statement that is admissible to rehabilitate a witness’s credibility also is admissible as substantive evidence of the truth of its contents
BURDENS OF PROOF
The burden of proof encompasses (1) the burden of producing or going forward with the evidence and (2) the burden of persuasion.
Burden of Production
The party who has the burden of pleading usually has the burden of producing or going forward with evidence sufficient to make out a prima facie case (that is, create a fact question of the issue for the trier of fact).
Once the party has satisfied the burden of production, it is incum- bent upon the other side to come forward with evidence to rebut the accepted evidence.
Burden of Persuasion (Proof)
After the parties have sustained their burden of production of evidence, the question is whether the party with the burden of persuasion has satisfied it.
The burden of persuasion for civil cases
The burden of persuasion for civil cases is usually by a preponderance of the evidence (more probably true than not true), although some civil cases (such as fraud or an oral contract to make a will) require proof of clear and convincing evidence (high probability).
The burden of persuasion for criminal cases
The burden of persuasion for criminal cases is beyond a reasonable doubt.
Judicial Notice
A court can take judicial notice of facts when they’re
1. capable of accruate and ready determination, or
2. facts that are common knowledge within the jurisdiction of the courts.
PRELIMINARY QUESTIONS (judge vs jury)
Applies When the existence of some preliminary or foundational fact is an essential condition of admissibility.
Preliminary Facts Decided by Jury
Preliminary Facts Decided by Jury: The jury decides certain preliminary facts relating to whether evidence is relevant at all.
Some preliminary facts to be decided by the jury include whether evidence is authentic, whether a person was acting as a party’s agent in a breach of contract case, and whether a witness has personal knowledge of the facts of their testimony.
Preliminary Facts Decided by Jury, BUT Screened by Judge
Screened by Judge: Before such a question is brought before the jury, the judge must determine that there is sufficient proof to support a jury finding that the preliminary fact exists.
Preliminary Facts Decided by Judge
Preliminary Facts Decided by Judge: Facts affecting the competency of the evidence (meaning, whether it is admissible under the rules of evidence) must be determined by the trial judge.
• Is a witness mentally competent to testify?
• Does a privilege exist?
• Does the evidence meet the requirements of a hearsay excep- tion?
Judge May Consider All Non-Privileged Evidence
The Federal Rules permit the trial judge to consider any non-priv- ileged relevant evidence when making a preliminary fact determi- nation, even if such evidence would not be admissible at trial. In other words, the judge is not bound by the rules of evidence, except privilege.
Presence of Jury during the preliminary fact determination
Whether the jury should be excused during the preliminary fact determination is generally within the discretion of the trial judge.
However, the jury MUST be excused if: (1) the hearing involves the admissibility of a confession; (2) the defendant in a criminal case is testifying at the hearing and requests that the jury be excused; or (3) justice so requires.
The jury MUST be excused if…
However, the jury MUST be excused if: (1) the hearing involves the admissibility of a confession; (2) the defendant in a criminal case is testifying at the hearing and requests that the jury be excused; or (3) justice so requires.
Does Testimony by Accused Waive Privilege Against Self-Incrimination?
No. Testimony by Accused Does Not Waive Privilege Against Self-Incrimination. An accused may testify on any preliminary matter (for example, circumstances surrounding an allegedly illegal search) without subjecting themselves to testifying at trial generally. Furthermore, testifying about the preliminary matter does not subject the accused to cross-examination about other issues in the case.
JUDICIAL NOTICE
Judicial notice is the recognition of a fact as true without formal presentation of evidence.
Facts Appropriate for Judicial Notice
A court may take judicial notice of any fact that is “not subject to reasonable dispute” because:
• The fact is generally known within the trial court’s jurisdiction (not just judge’s personal knowledge), or
• The fact can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned
Courts often take judicial notice of…
the reliability of well-established scientific tests and principles (such as radar speed tests, ballistics tests, and paternity blood tests) as a type of “generally known” fact.
The court will admit test results (such as radar speed tests, ballistics tests, and paternity blood tests) into evidence upon a showing that…
The court will admit these test results into evidence upon a showing that the test was properly conducted.
When can judicial notice be taken?
Can be taken at any state of a pleading.
Required on Party’s Request: Judicial notice can be taken at any stage of the proceedings (and can even be taken for the first time on appeal).
If a court does not take judicial notice of a fact on its own accord, a party must formally request that notice be taken and provide the court with the neces- sary information. If the party does this, the court is required to take judicial notice of the fact.
When is the court required to take judicial notice of the fact?
If a court does not take judicial notice of a fact on its own accord, a party must formally request that notice be taken and provide the court with the neces- sary information. If the party does this, the court is required to take judicial notice of the fact.
Judicial notice conclusive?
Conclusive in civil case, but not in criminal case. in a civil case, the court must instruct the jury to accept the judicially noticed fact as conclusive. In a criminal case, the jury is instructed that it may, but is not required to, accept the judicially noticed fact as conclusive.
A judicially noticed fact is conclusive in…
A judicially noticed fact is conclusive in a civil case but not in a criminal case.
If a judge takes judicial notice of a fact in a criminal case….
The prosecutor’s burden of producing evidence on this point is satisfied. Not bindign or conclusive on the jury.
“Adjudicative” and “Legislative” Facts
Federal Rules, and thus their requirements, govern only judicial notice of “adjudicative” facts (meaning, those that relate to the particular case).
“Legislative” facts (those relating to legal reasoning and lawmaking), such as the rationale behind the spousal privilege, need not be generally known nor capable of indisputable verification to be judicially noticed.
Judicial Notice of Law—Mandatory or Permissive
Courts must take judicial notice of federal and state law and the 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. Laws of foreign countries may also be judicially noticed.
PRESUMPTIONS
A presumption is a rule that requires that a particular inference be drawn from proven facts. It is a form of substitute proof, because proof of the presumed fact is rendered unnecessary once evidence has been introduced of the basic fact that gives rise to the presumption.
Common rebuttable Presumptions
a. Mail Delivery: A letter, properly addressed, stamped, and mailed, is presumed to have been delivered.
b. Death from 7-Year Absence: If a person is inexplicably absent for a continuous period of 7 years and they have not been heard from, they are presumed dead.
c. Against Suicide: When cause of death is in dispute, there is a presumption in civil cases that it was not suicide.
d. Legitimacy: Every person is presumed to be legitimate (meaning, born to legally married parents).
e. Sanity: Every person is presumed sane in civil and criminal cases until the contrary is shown.
f. Ownership of Car—Agent Driver: Proof of ownership of a motor vehicle creates the presumption that the owner was the driver or that the driver was the owner’s agent.
g. Chastity: Every person is presumed chaste and virtuous.
h. Regularity: It is presumed that persons acting in an official office are properly performing their duties.
i. Continuance: Proof of the existence of a person or condition at a given time raises a presumption that it continued for as long as it is usual with things of that nature.
j. Solvency: A person is presumed solvent, and every debt is presumed collectible.
k. Bailee’s Negligence: Proof of delivery of goods in good condition to a bailee and failure of the bailee to return the goods in the same condition create the presumption that the bailee was negligent.
l. Marriage: Upon proof of a marriage ceremony, a marriage is presumed valid.
a. Mail Delivery:
A letter, properly addressed, stamped, and mailed, is presumed to have been delivered.
b. Death from 7-Year Absence:
If a person is inexplicably absent for a continuous period of 7 years and they have not been heard from, they are presumed dead.
c. Against Suicide:
When cause of death is in dispute, there is a presumption in civil cases that it was not suicide.
d. Legitimacy:
e. Sanity:
f. Ownership of Car—Agent Driver:
g. Chastity:
h. Regularity:
i. Continuance:
j. Solvency:
k. Bailee’s Negligence:
l. Marriage:
d. Legitimacy: Every person is presumed to be legitimate (meaning, born to legally married parents).
e. Sanity: Every person is presumed sane in civil and criminal cases until the contrary is shown.
f. Ownership of Car—Agent Driver: Proof of ownership of a motor vehicle creates the presumption that the owner was the driver or that the driver was the owner’s agent.
g. Chastity: Every person is presumed chaste and virtuous.
h. Regularity: It is presumed that persons acting in an official office are properly performing their duties.
i. Continuance: Proof of the existence of a person or condition at a given time raises a presumption that it continued for as long as it is usual with things of that nature.
j. Solvency: A person is presumed solvent, and every debt is presumed collectible.
k. Bailee’s Negligence: Proof of delivery of goods in good condition to a bailee and failure of the bailee to return the goods in the same condition create the presumption that the bailee was negligent.
l. Marriage: Upon proof of a marriage ceremony, a marriage is presumed valid.
Effect of Presumption
Shifts Burden of Production: Until rebutted, a presumption operates to shift the burden of production to the party against whom the presumption operates.
Rebutting Presumptions in Civil Cases
A presumption is overcome or destroyed when the adversary produces some evidence contradicting the presumed fact. Once sufficient contrary evidence is admitted, the presumption is of no force or effect.
Presumptions in Criminal Cases
No Mandatory Presumptions in Criminal Cases: The judge cannot instruct the jury that it must find a presumed fact against the accused; the judge must instruct them that they may regard the basic facts as sufficient evidence of the presumed fact.
True Presumptions vs Permissible Inferences and Substantive Law
True presumptions are the rebuttable type.
Permissible Inferences: A permissible inference may allow the party to meet their burden of production (establish a prima facie case), but does not shift the burden to the adversary.
Conclusive Presumptions: Because it cannot be rebutted, a conclusive presumption (for example, that a child under age 7 cannot commit a crime) is really a rule of substantive law.
Examples of Permissible inferences
Examples include the inference of negli- gence arising from res ipsa loquitur, the inference that destroyed evidence was unfavorable to the spoliator, the presumption of innocence in a criminal case, and the inference of undue influence when a will’s drafter is also the principal beneficiary.
Conflicting Presumptions
When 2 or more conflicting presumptions arise, the judge should apply the presumption founded on the weightier considerations of policy and logic.
Choice of Law Regarding Presumptions in Civil Actions
Under the Federal Rules, state law governs the effect of a presump- tion concerning a fact that is an element of a claim or defense to which, under the Erie doctrine, the rule of decision is supplied by state law.
RULE OF COMPLETENESS
Where part or all of a writing or recorded statement is introduced into evidence, the adverse party may require the proponent of the evidence to introduce any other part, or any related writing or recorded statement—that ought in fairness to be considered at the same time. (statement was cut off in an unfair way -> so admit the whole statement)
Rule 403 balancing test)
the court may exclude the evidence entirely if it determines that, even with a limiting instruction, the probative value of the evidence with respect to its legitimate purpose would be substantially outweighed by danger of unfair prejudice with respect to its incompetent purpose.
Preserving Claim of Error for Appeal
A party may claim error in the court’s ruling if it affects a substantial right of the party.
Preserving Claim of Error for Appeal: If the court admitted evidence
If the court admitted evidence, the party opposing its admission needs to make a timely objection or move to strike the evidence.
Preserving Claim of Error for Appeal: If the court excluded evidence.
If the court excluded evidence, the proponent of the evidence needs to inform the court of the evidence’s substance by a timely offer of proof, (show what the E woulda been) unless its substance was apparent from the context.
Offers of Proof
An offer of proof may be made, disclosing the nature, purpose, and admissibility of rejected evidence, to persuade the trial court to hear the evidence and to preserve the evidence for review on appeal. It may be made by witness testimony, a lawyer’s description of what the evidence would have been, or tangible evidence marked and offered. The court can require the offer of proof to be made in question-and- answer form (meaning, the lawyer conducts their examination of the witness so that the judge hears exactly what the witness would have said in front of the jury).
preserve the claim of error for appeal: Renewal?
Once the court rules definitively on the record (either before or at trial), the party doesn’t have to renew its objection or offer of proof to preserve the claim of error for appeal.
Taking Notice of Plain Error
The court may take notice of a plain error affecting a substantial right of a party, even if the claim of error wasn’t properly preserved.
Timing of Objections
Objections at trial should be made after the question, but before the answer, if the question calls for inadmissible information. Otherwise, a motion to strike must be made as soon as an answer emerges as inadmissible.
Objections at a deposition
At a deposition, objections to the form of a question, or to a testimonial privilege, should be made when the question is asked or it may be waived. Objections based on the substance of a question or answer may be postponed until the deposition is offered in evidence.
“Opening the Door”
A party who introduces evidence on a particular subject thereby asserts its relevance and cannot complain if their adversary offers evidence on the same subject.
Motion to Strike—Unresponsive Answers
If an answer is unresponsive but otherwise admissible, only examining counsel can move to strike the answer; opposing counsel cannot.
“Exceptions”
It is not necessary for a party to “except” from a trial ruling in order to preserve the issue for appeal.
