Evidence - Imported Flashcards
Relevant Evidence
any evidence having any tendancy to make the existance of an action more probably than without the evidence
Preliminary Questions
The judge not the jury decides whether evidence is admissible, except for conditional evidence
Rule 403 - Probativeness v. Prejudice
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time or needless presentation of cumulative evidence
Effect: Keeping Evidence Out - if you allow prejudicial evidence in, most likely the appellate courts will say its cumulative and a harmless error. If you keep the evidence out, and it turns out to be non-prejudicial, then a new trial will be ordered.
Subsequent Remedial Measures
Specialize Relevance Rule
Evidence that a D changed or repaired something after it was allegedly involved in an injury is not admissible to establish the D’s negligence or the products defectiveness. Can use for the following if they are disputed:
You can use for impeachment.
(ex. Claims there was no hazard at all)
Has to comply with the regular impeachment rules
Can use to prove ownership or control
Can use for the issue of feasibility, if brought up by the defendant
(ex. Claims there was no safer way to handle the situation, wouldn’t have improved the safety of the situation, or it was the newest technology)
(not ex. When it is reasonably safer, or more practicable)
Compromise / Offers to Compromise
Specialized Relevance Rules
The fact that a party settled or offered to settle cannot be admitted to prove the issue of the claim’s validity
b) Statements of collateral fact or admissions made in connection with settlement offers are likewise not admissible. If statement is otherwise discoverable, then can be admitted (for example to prove bias because someone was paid off)
Payment of medical and Similar Expenses
Evidence of furnishing or offering or promising to pay medical, hospital, or similar expenses occasioned by an injury is not admissible to prove liability for the injury.
Liability Insurance
2) cannot bring in evidence of being insured to suggest that because the defendant was or was not insured, that he probably was/was not careless. Can show
a) For use of proof of agency (ex. The insurance adjuster witness has bias)
b) Proof of ownership or control
c) Or Bias/Prejudice of the witness
Pleas in Criminal Cases
a) offers to plead guilty or otherwise and admissions or statements of fact made during plea negotiation cannot be introduced against the defendant at trial or subsequent civil trials.
b) Can use guilty pleas in subsequent civil cases, if the plea was not withdrawn. The rule only covers pleas that were offered or withdrawn, not actually plead.
Methods of Proving Character
a) Reputation or Opinion - in all cases in which evidence of character or a trait of character of a person is admissible, prove may be made by testimony as to reputation or by testimony in the form of an opinion. On cross examination, inquiry is allowable into relevant specific incidences of conduct
b) Specific Instances of Conduct - In cases in which character or a trait of character of a person is an essential element of a charge, claim or defense, proof may also be made of specific instances of that person’s conduct.
3) Specific Incidences of Conduct on DIRECT is only Permitted only when character itself is in issue, like defamation or negligent entrustment cases.
Character Evidence Generally
2) Cannot admit evidence if its only relevance is to support an inference that because a person has a certain type of character, the person acted in a way typical of that character at a particular time
- Applies to all civil cases with no exclusions
- Applies to criminal cases, with exclusions for sexual offenses
Character of the Accused
on Direct
A criminal defendant is allowed to introduce evidence about his or her own good character to support an inference that they did not commit the crime (this opens the door to prosecutors bringing in counter character evidence though. Can even bring in specific instances too on cross)
DOES NOT APPLY IN CIVIL CASES - No character evidence is permissible in civil cases
Character of the Accused
On Cross
If a prosecutor asks about specific instances on cross-examination, he must rely on however the witness responds, he cannot bring in proof of the specific instance or question.
Can ask about specific instances of bad conduct if he has a good faith belief for beliveving wthat the D actually commited that act, and its relevant to the particular characer trait testified to by the witness.
Character of the Alleged Victim
on Direct
1) Criminal defendants can show that the victim was the aggressor by introducing evidence of the victims character for violence (also opens door to counterevidence about the defendant).
Character of the Alleged Victim
on Cross
2) Prosecution can show that a murder victim had a peaceful character to rebut a claim made in any way that the victim was the agressor
3) Prosecutor can also bring in evidence of the defendants character in respect to the issue raised about the victim. Can show that the defendant has the same character traits he’s claiming the victim has.
Other Crimes of Witness
can’t use the fact of a witness’ past crimes to prove conformity on this occasion
only requires that a reasonable jury could find that the person committed the bad act (if not convicted of it)
Still subject to 403
Has exceptions
Other Crimes of Witnesses
Exception
Can use past crimes/bad acts to show:
Knowledge or Particular Skill
Motive or Common Plan
Identity or MO
Narrative Integrity
Absence of Accident
Doctrine of Chances
Habit
Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.
its automatic, invariable actions lacking volition
Impeachment:
trying to establish that a witness is not to be believed in this particular case. Any party can use impeachment evidence. There is a difference between impeachment and contradiction.
Means of Impeaching a Witness
Attack thier good character (past crimes, bad acts or bad reputation)
- Show prior inconsistent statement
- show that the W is biased
- show that they can’t remember well
- contracdict thier testimony
Who may impeach a witness?
Either party may impeach any witness
Character Evidence of Witness
on Direct
The character of a witness for TRUTHFULNESS may be attacked on direct in the form of opinion and reputation
Other witnesses may not be called to bolster that witness’ credibility for truthfulness unless they have been attacked
Character Evidence of Witness
on Cross
Specific instances of bad acts relating to the witness’ TRUTHFULNESS may be brought in on cross-examination.
OR
A witness brought in to bolster/attack can be asked about the W1’s specific acts.
Must take what the witness says
Impeachment of Witness by Evidence of a Crime
Witness
Felony Crimes w/10 years:
Are allowed in if the probativenss is not SUBSTANTIALLY outweighed by unfair prejudiceness
Crimes of dishonesty: shall be admitted regardless of whether it was a felony
Impeachment of Witness by Evidence of a Crime
Accused
Felony Crimes w/10 years:
Are allowed in if the probativenss is not outweighed by unfair prejudiceness
Crimes of dishonesty: shall be admitted regardless of whether it was a felony
Crimes of Dishonesty
_ Forgery
_ Embezzlement _ Bank robbery _ Smuggling _ Filing false tax return _ Using false identification
Extrinsic Evidence to Impeach Genearlly
Not ok for character evidence
Ok for prior inconsistent statements
Sometimes ok for contradiction
Extrinsic Evidence with Prior Statements
Extrinsic Evidence of prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogated the witness thereon, or the interests of justice otherwise require.
Rehabilitation of Witnesses
you can only show prior consistent statements of a witness to rehabilitate them after a charge of recent fabrication.
Can’t bring in bolstering witnesses, unless W1’s has been impeached somehow
Prior Inconsistent Statements
3) Are statements made out of court before a witness testifies that conflicts with something the witness says at trial
- Only prior statements made under oath are admissible to prove the truth of the statement. If the statement was not made under oath, it can only be used to impeach
Prior Consistent Statements
4) statement that was made out of court before the witness’ testimony that reinforces or supports the testimony.
- Consistent statements are admissible only to rebut specific types of attacks on the witness’ in court testimony.
- Prior consistent statements does not have to have been made under oath to be used substantively
- Evidence that someone made a prior consistent statement may only be introduced if the proponent shows (1)that the witness’ testimony has been acted as recently fabricated or influenced by a motive to lie and (2) the statement was made before the alleged fabrication or motive to lie arose.
Extrinsic Evidence with Prior Inconsistent statements
a)
b) Extrinsic Evidence of prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogated the witness thereon, or the interests of justice otherwise require.
Impeachment by Bias
1) If a party is biased, either against or in favor of a party at a trial, proof of that bias is permitted on the theory that the witness may have shaded his or her testimony in line with it.
1) Family ties
2) Financial ties
3) Membership in organizations
4) Payment by a party to testify
5) Deals with the prosecution
Rape Shield Law
Evidence of sexual activity or reputation is not admissible against a rape victim.
Has exceptions
Rape Shield Exceptions
- evidence of specific instances of sexual behavior by the alleged victim offered to prove that a person other than the accused was the source of semen, injury or other physical evidence;
2. evidence of specific instances of sexual behavior by the alleged victim with respect to the person accused of the sexual misconduct offered by the accused to prove consent or by the prosecution; and
3. evidence the exclusion of which would violate the constitutional rights of the defendant.
Hearsay:
Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”
Hearsay Statement:
a) Spoken words
b) Written words
c) Implied Assertions - a statement that was made with the intent of saying something, other than what the words themselves say. If the evidence is coming in to prove what the person intended to say, then its hearsay.
d) Assertive Conduct - Actions made with the intent to make a statement about something, in the mind of the actor, the actor is trying to say something. This is an assertion.
e) NOT animals, or machines
Non-Hearsay
NAME?
Hearsay Exclusions
NAME?
Admissions:
- party’s own words
- Adoptive admissions
- authorized representatives
- agent/employee
- Conspiracy
Party’s Own words
Anything a party has ever communicated in speech, writing or other way are not considered hearsay.
Adoptive Admissions
Hearsay Exclusion
- When the party himself doesn’t particularly say anything, someone else says something, and the party agrees with it, and adopts it as his own. A party’s reaction to a statement or action by another person when it is reasonable to treat the party’s reaction as an admission of something state or implied by the other person
- Silence can also be treated as an admission - Someone who has heard it and understood it, but doesn’t respond. If they donÕt respond in a manner in which a normal person would respond, you can bring the silence in as an adoptive statement.
