Evidence - Overview Flashcards
Evidence Overview
The law of evidence is a system of rules and standards governing the admissibility of proof (testimony, writings, objects, etc.) at the trial of a civil or criminal action. A good rule of thumb is that all relevant evidence is admissible if competent, i.e., does not violate some exclusionary rule. These exclusionary rules serve as a gateway, and are meant to ensure that evidence is reliable and authentic (e.g., the hearsay rule, the best evidence rule), or to protect certain societal interests outside of the courtroom (e.g., testimonial privileges).
IS THE EVIDENCE RELEVANT? - Explain Why Each Item of Evidence Is Relevant
- 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)?
- Generally, relevant evidence relates to the time, person, or event at issue, but there are exceptions for certain similar occurrences, e.g.:
a. To prove causation
b. Prior false claims
c. Similar accidents caused by the same condition
d. Rebutting a claim of impossibility
e. Habit
1) Distinguish from character evidence (which is more general and often inadmissible)—e.g., “Charlie never stops at the stop sign at Main and Oak” (habit) vs. “Charlie is a careless driver” (character)
f. Business routine and industrial custom
IS THE EVIDENCE RELEVANT? - Policy-based Relevance—Evidence Excluded for Social Policy Reasons
- Think about the general rule, the rationale behind the rule, and its exceptions/limitations
- Liability insurance
a. Inadmissible to prove—negligence or ability to pay
b. Admissible to prove—ownership or control, impeachment, or as part of an admission of liability - Subsequent remedial measures
a. Inadmissible to prove—negligence, culpable conduct, or defect
b. Admissible to prove—ownership or control, feasibility of the repair, or destruc- tion of evidence - Settlement offers and accompanying admissions of fact
a. Inadmissible to prove or disprove validity or amount of disputed claim, or to impeach by prior inconsistent statement or contradiction
b. Exception—preexisting information not protected - Payments or offers to pay medical expenses
a. Inadmissible to prove liability
b. But note: Accompanying statements of fact are admissible (unlike rule for settlement negotiations) - Withdrawn guilty pleas and accompanying statements—generally inadmissible
IS THE EVIDENCE RELEVANT? - Discretionary Relevance—Rule 403 Balancing Test
- 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
IS THE EVIDENCE RELEVANT? - Character Evidence—Special Relevance Problem
- Determine its purpose—substantive or impeachment evidence? (For character evidence offered to impeach a witness, see VII., infra.)
- Which methods are permitted?
a. Reputation testimony (“Mary has a good reputation for honesty in our community”)
b. Opinion testimony (“I think Mary is a very honest person”)
c. Specific acts—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”:
1) Motive
2) Intent
3) Mistake (absence of)
4) Identity
5) Common plan or scheme - What type of case is it?
a. Criminal cases—determine who can initiate and under what circumstances
1) Defendant may introduce evidence of his own good character to show innocence
2) When 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)
3) Character of the victim
a) Defendant may introduce if relevant to his innocence (generally in self- defense cases)
b) Prosecution may rebut with (i) defendant’s bad character for same trait or (ii) victim’s good character for same trait
b. Civil cases—character evidence generally not admitted
1) 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”)
REAL EVIDENCE - Generally
- 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
REAL EVIDENCE - Types and Examples
- 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
a. Has some connection with the transaction that is in question at the trial
b. Example—the alleged murder weapon in a murder case - Prepared
a. Also called “demonstrative” evidence
b. 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:
a. Proponent must show that the object has been held in a substantially unbroken chain of possession
b. Need not negate all possibilities of substitution or tampering, but must show adherence to some system of identification and custody
DOCUMENTARY EVIDENCE—COMMON ISSUES - Has It Been Authenticated?
- Writings must be authenticated by proof showing they are what the proponent claims they are (unless self-authenticating such as newspapers, commercial paper, etc.)
a. Standard for authentication—proof sufficient to support a jury finding of genuineness - Authenticated by stipulation, evidence of authenticity, etc.
- Oral statements—only when important
DOCUMENTARY EVIDENCE—COMMON ISSUES - 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
a. Secondary evidence is allowed only if the original is unavailable for some reason other than the serious misconduct of the proponent - Rule applies only in certain situations
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
1) If the fact exists independently of a writing, the best evidence rule does not apply
IS THE WITNESS COMPETENT TO TESTIFY? - Requirements for All Witnesses (Federal Rules)
- 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)
IS THE WITNESS COMPETENT TO TESTIFY? - Does a Dead Man Act Apply?
- Not recognized by Federal Rules; statutes vary by state
- May bar an interested person from testifying in a civil case as to a communication with a deceased, if such testimony is offered against the representative of the deceased (e.g., executor)
- Many exceptions to act and “door-openers”
IS OPINION TESTIMONY APPROPRIATE? - Lay Opinion Testimony
- Requirements—rationally based on the witness’s perception, helpful to the jury, and not based on scientific or technical knowledge
- Common 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
IS OPINION TESTIMONY APPROPRIATE? - Expert Opinion Testimony
- Is the subject matter one where expert testimony would assist the trier of fact (relevant and reliable)?
a. 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)?
CAN THE CREDIBILITY OF THE WITNESS BE IMPEACHED? - Common Methods
Any Party May Attack the Credibility of Any Witness (Even Its Own)
Impeachment by cross-examination and (some methods) extrinsic evidence
1. Prior inconsistent statement
- Bias
- Prior conviction of crime
a. Any crime (misdemeanor or felony) involving dishonesty or false statement—judge has no discretion to exclude
b. Any other felony
c. Limitations on remoteness (10-year rule) - Prior bad acts
a. Must be probative of truthfulness (i.e., an act of deceit)
b. Cross-examination only; no extrinsic evidence (this includes another witness who testifies about the individuals prior bad acts) - Opinion or reputation evidence of untruthfulness
- Sensory deficiencies
- Contradictory facts