Evidence - Relevance, Authentication, Best Evidence, Witnesses, Impeachment Flashcards
Evidence is RELEVANT if it has
any tendency to make a material fact more or less probable than would be the case without the evidence.
The general rule is that all evidence is admissible, unless
(1) an exclusionary rule applies
(2) the probative value of the evidence is substantially outweighed
When considering whether the probative value of the evidence is substantially outweighed by unfair prejudice, the six factors that the judge considers are
(1) danger of unfair prejudice
(2) confusion of the issues
(3) danger misleading the jury
(4) unreasonably delay
(5) waste of time
(6) unduly cumulative
Generally, plaintiff’s accident history is (admissible/inadmissible) because __________.
inadmissible; shows nothing more than the P is accident prone and being accident prone is inadmissible character evidence in a civil action.
Plaintiff’s prior accidents are admissible if
the event that caused the plaintiff’s injuries is in issue (e.g. defendant is contending that a prior accident caused P’s injury, not the injury for which D might be responsible).
Generally, defendant’s accident history is (admissible/inadmissible) because ________.
inadmissible; it shows nothing more than that D has a general character for being careless.
Other accidents involving the defendant and the same instrumentality or condition may be admitted for three potential purposes if the accident occurred under __________.
substantially similar circumstances.
**Same type of weather, daytime/nighttime, traffic conditions, etc.
The three purposes for which defendant’s accident history may be admitted are
(1) to show the existence of a dangerous condition
(2) causation of THIS accident (instrumentality or condition that caused the accident, not the P’s own negligence)
(3) notice to the D
Evidence of experiments or tests may be admissible if the experiment or test occurred under
substantially similar circumstances.
If intent is in issue, _______ of a person may be admissible to raise an inference of the person’s _______ on a later occasion.
prior similar conduct; intent
If value is in issue, ______ ______ are admissible.
comparable sales. Property must be of similar type, location, and close in time period.
______ of a person or routine of an organization is admissible as circumstantial evidence of how the person or business acted __________ at issue in the litigation.
Habit; on the occasion.
Habit is defined as a
repetitive response to a particular set of circumstances.
The two defining characteristics of habit are
(1) frequency of conduct
(2) particularity
**Look for words like always, never, invariably, automatically, instinctively.
Industrial custom is admissible to show how a party in the instant litigation
should have acted, i.e. as evidence of the appropriate standard of care.
The policy-based exclusions are
(1) liability insurance
(2) subsequent remedial measures
(3) settlements of disputed civil claims
(4) plea bargaining in criminal cases
(5) offer to pay hospital or medical expenses
Evidence that a person has liability insurance is _________ for the purpose of _________.
inadmissible; proving fault or the absence of fault
**Policy: encouraging people to carry insurance, concern that the jury will find for P b/c of the insurance
Evidence of insurance may be admissible for the purposes of showing (1) ________ or (2) _______, but ONLY IF those issues are (3) _______ by the defendant.
(1) proof of ownership or control of the instrumentality or location
(2) impeaching a witness on the ground of bias
(3) disputed
If evidence is admissible for one purpose but not another, then a _________ should be given to the jury.
limiting instruction
Subsequent remedial measures are _________ for the purpose of proving ___________.
inadmissible; negligence, culpable conduct, product defect, need for a warning.
**Policy: encourage people to fix things
Subsequent remedial measures may be admissible for the purpose of showing (1) _________ or (2) _________, but ONLY IF those issues are ______ by the defendant.
(1) ownership or control
(2) feasibility of a safer condition
(3) disputed
In the event of a DISPUTED civil claim, the following types of settlement-related evidence are inadmissible to prove liability:
(1) evidence of settlement
(2) offer to settle
(3) statements of fact made during settlement discussions
**Policy: encourage settlement.
Settlement evidence is admissible for the purpose of _______.
impeaching a witness on the ground of bias (e.g. one D settles with P and then testifies against the other D, the other D can introduce the settlement as evidence of bias)
Statements of FACT made during settlement discussions in a civil case with a government regulatory entity are ______ in a later _______ case.
admissible; criminal. Note, offers to settle are NOT admissible under this exception, only statements of fact.
The settlement evidence exclusionary rule only applies if there is a ______ that is ______ as to its ______ or ________ at the time of the discussion.
claim; disputed; validity; amount of damages. A lawsuit need not have been filed, but the prospective P must have asserted the claim in SOME fashion.
The following types of evidence regarding plea bargaining during a criminal case are inadmissible:
(1) offer to plead guilty - can’t be used in current criminal case or later civil case based on same facts.
(2) withdrawn guilty plea - can’t be used in current criminal case or later civil case based on same facts.
(3) plea of solo contendere - can’t be used in later civil case based on same facts
(4) statements made during any of the above plea discussions
A plea of _____ is admissible in subsequent ______ based on the same facts under the rule of ______.
guilty; litigation; party admissions.
Evidence that a party has PAID or OFFERED to pay an accidents victim’s hospital or medical expenses is _________ to prove liability.
inadmissible. There need not be a disputed claim at the time the payment or offer to payment is made.
**Policy: encourage generosity.
The exclusionary rule for payments or offers to pay medical expenses does NOT exclude
other statements made in connection with the payment or offer to pay.
ONLY the payment or offer to pay itself is inadmissible.
Character evidence refers to a person’s
general propensity or disposition.
Potential purposes for the admissibility of character evidence are
(1) person’s character is an essential element of the case (rare in civil cases and NEVER in criminal cases)
(2) circumstantial evidence of the person’s conduct on a particular occasion
(3) witness’s bad character for truthfulness to impeach credibility
In a criminal case, evidence of the D’s character to provee D’s conduct on a particular occasion is
inadmissible in the prosecution’s case in chief
A D in a criminal case ______ introduce character evidence of a ______ character trait.
may; relevant.
Once a D in a criminal case introduces character evidence, it opens the door to the
prosecution to rebut with its own character evidence.
The prosecution may rebut a D’s character evidence by
(1) cross-examining D’s character witnesses about specific acts
(2) introducing its own reputation and opinion character witnesses during its rebuttal
If the prosecution rebuts D’s character evidence by cross-examining D’s character witness, the prosecution may ask the witness about ________ in the form of
D’s specific acts; “did you know/are you aware” type questions about incidents that relate to the particular character trait.
**The purpose here is to impeach the character witness’ knowledge of D’s character
The two proper forms of character evidence are
(1) reputation in the community
(2) personal opinion of the witness
**Witnesses can testify that the D is “law-abiding”, but is deemed to apply only to the trait at issue.
In a criminal case, the D’s character trait is _____ an essential element of the crime.
never
If the prosecution asks D’s character witness about an incident and the witness is not aware of it, the prosecution must
take the witness’ answer on its face and move on. The prosecution CANNOT introduce evidence of the incident.
In order to ask D’s character witness about a specific incident, the prosecution must have a ________ that the incident occurred.
reasonable basis
A criminal D asserting a self-defense defense may introduce _______ evidence of the victim’s ________.
character; character for violence.
If a criminal D introduces character evidence of the victim, the prosecution may introduce
(1) character evidence of the victim’s peaceful nature
(2) character evidence of the D’s character for violence
If a criminal D introduces evidence of ANY KIND that the victim was the ___________ the prosecution may introduce evidence of the victim’s ________.
first aggressor; good character for peacefulness.
**Note that the prosecution cannot impugn D’s character unless the evidence D uses is character evidence.
If a criminal D, at the time of the alleged self-defense, was aware of the victim’s _______________, such awareness may be proven to show the D’s _________ to show D acted reasonably.
violent reputation or prior specific acts of violence; state of mind.
Under rape shield laws, the following types of evidence are generally inadmissible:
(1) opinion or reputation evidence about the victim’s sexual propensity
(2) evidence of specific sexual behavior of the victim
The three exceptions to the rape shield law in criminal cases are
(1) specific sexual behavior of the victim to prove that someone other than the D was the source of semen or injury to the victim
(2) victim’s prior sexual activity with the D if the defense of consent is asserted
(3) where exclusion would violate D’s right of due process (e.g. the love triangle case)
In a civil case, a court may admit evidence of specific sexual behavior or sexual propensity of the victim if
its probative value SUBSTANTIALLY outweighs the danger of harm to the victim and unfair prejudice to any party.
Character evidence in civil cases is generally ________ to prove a person’s conduct on a particular occasion.
inadmissible.
Evidence of a person’s character is admissible in civil action where such character is an
essential element of a claim or defense.
The three situations in civil cases where a person’s character is an essential element of a claim or defense are
(1) a tort action alleging negligent hiring or entrustment
(2) defense of “truth” in a defamation case
(3) child custody case
A D’s other crimes or specific bad acts are generally _______ for the purpose of showing D’s ________.
inadmissible; propensity to commit the crime charged.
D’s bad acts or other crimes may be admissible to show
something specific and non-character about the crime charged.
**Requires a LIMITING INSTRUCTION. Still must balance probative vs prejudicial
The five most common non-character purposes for using D’s bad acts or other crimes are
MIMIC
1) motive
(2) intent (state of mind type stuff
(3) mistake (absence of)
(4) identity
(5) common scheme or plan
A defendant’s modus operandi of a prior crime is admissible if the
the MO was distinctive and the D used the same MO in perpetrating the crime charged.
The standard of proof for using MIMIC-type evidence is a
(1) conviction; or
(2) by evidence that proves the crime occurred
If the prosecution uses MIMIC-type evidence that lacks a conviction, the evidence is evaluated under the ______ standard and the prosecution must produce _______.
conditional relevancy; sufficient evidence from which a reasonable juror could conclude that the defendant committed the other crime.
Upon a defendant’s request, the prosecution must give ______ _____ of the intent to introduce MIMIC evidence
pretrial notice.
A party can use MIMIC evidence in civil cases if
relevant to a non-character purpose.
When deciding to admit MIMIC evidence, court must weigh the evidence’s
probative value vs. prejudicial and give a LIMITING INSTRUCTION.
In a case alleging sexual assault or child molestation, evidence or prior acts is admissible to show that D has a ____________.
propensity for sexual assault or child molestation.
The methods of authenticating a writing are
(1) witness testimony based on personal knowledge
(2) proof of handwriting
(3) proof by circumstantial evidence
(4) ancient document rule
(5) solicited reply doctrine
Whenever a writing appears on the exam, be alert to the three issues of
(1) authentication
(2) best evidence rule
(3) hearsay
Handwriting may be proven by
(1) lay opinion testimony from a witness that is familiar with the party’s handwriting
(2) expert testimony from a handwriting expert
(3) jury comparison
Under the ancient document rule, authenticity may be inferred if
(1) the document is at least 20 years old
(2) facially free from suspicion (no erasures, whiteouts)
(3) found in a place of natural custody
Types of circumstantial evidence commonly used to authenticate a document are
appearance, contents, substance, distinctive characteristics (the doc contains info that only D knows)
Under the solicited reply doctrine, a document can be authenticated by evidence that it was
received in response to a prior communication to the alleged offer.
A document is considered authenticated if the court determines that there is
sufficient evidence from which a reasonable juror could conclude that the document is genuine.
The six types of self-authenticating documents are
(1) official publications
(2) certified copies of public or private records on file in public office
(3) newspapers or periodicals
(4) trade inscriptions and labels
(5) acknowledged document - certified by notary public
(6) commercial paper
Photographs can be authenticated by having a witness testify that the photograph and is a ________ of the people or objects portrayed.
fair and accurate representation.
The witness need not be the photographer, need only have personal knowledge of what the photo shows.
Under the best evidence rule, a party who seeks to prove the contents of a ________ must either _______ or provide ________________.
writing; produce the original writing; an acceptable excuse for its absence.
If the court finds acceptable a party’s excuse for failure to satisfy the best evidence rule, the party may then use
secondary evidence, like oral testimony about the document’s contents or a copy.
The definition of “writing” includes
sound recordings, x-rays, and films.
The two principal situations in which the best evidence rule applies are
(1) the writing is a legally operative document that creates rights and obligations (e.g. deed, patent, mortgage, written contract, divorce decree)
(2) a witness is testifying as to facts that she learned solely from reading about them in a writing
The best evidence rule does not apply when a witness with _________ testifies as to fact that exists ________ of a writing that records that fact.
personal knowledge; independently.
The best evidence rule applies when a party is seeking to
prove the contents of a writing.
Excuses for non-production of an original document are that the document was
(1) lost or cannot be found
(2) destroyed without bad faith
(3) cannot be obtained with legal process (beyond the court’s subpoena power)
In assessing the sufficiency of an excuse for non-product of an original document, the court evaluates the excuse by a standard of
preponderance of the evidence.
What qualifies as an “original” under the best evidence rules?
(1) whatever the parties intended as the original, counterparts intended to have the same effect, negative of a film or print from the negative
Under the best evidence rule, a “duplicate” is defined as any
counterpart produced by mechanical means (e.g. a photocopy)
Under the best evidence rule, duplicates are admissible to the same extent as the original unless
(1) it would be unfair; or
(2) there is a genuine question about the authenticity of the original
A handwritten copy of a writing ________ an original or duplicate.
is niether.
The three “escapes” from having to produce an original writing when the writing is indeed available are
(1) voluminous production (can use a summary or chart, provided originals would be admissible and are available for inspection)
(2) certified copies of public records
(3) collateral documents (e.g. license of a plumber)
For a witness to be competent, the witness must
(1) have personal knowledge; and
2) take an oath or affirmation (willingness to tell the truth
In general, a witness is not incompetent merely because she has an
interest – direct legal stake – in the outcome of the litigation.
**Merely being biased is not an “interest”
Under “Dead Man’s Statutes,” in a _____ action, an ________ witness is __________ to testify against the estate of a ___________ concerning _________ between the interested witness and debtor
(1) civil
(2) interested
(3) incompetent
(4) decedent
(5) a transaction or communication
Leadings questions are generally not allowed during ______ examination but are allowed on ______ examination.
direct; cross
Leadings questions are allowed on direct examination if
(1) it is a preliminary, introductory matter; or
(2) youthful or forgetful witness; or
(3) a hostile witness; or
(4) if you call to the stand the adverse party herself or someone in control of the adverse party (like an employee)
The two situations in which writings are used during witness testimony are
(1) present recollection refreshed
(2) past recollection recorded
Generally a witness cannot read from a prepared memorandum and must testify based on current recollection, but if the witness’ memory fails him, he may be shown
ANY writing to refresh his memory.
No need for authentication, best evidence rule, or hearsay.
If the witness uses a writing to refresh his memory, the adverse party has the right to
(1) inspect the writing
(2) use it on cross-examination
(3) introduce it into evidence
A writing used to refresh a witness’ memory ______ be introduced into evidence by the _______.
cannot; proponent (the ADVERSE party CAN introduce it into evidence)
The five-element foundation for past recollection recorded requires
(1) showing the writing to the witness fails to jog the witness’ memory
(2) the witness had personal knowledge at the former time
(3) the writing was made by the witness OR adopted by the witness
(4) the making or adoption occurred while the event was still fresh in the witness’ memory
(5) the witness can vouch for the accuracy of the writing when made or adopted
Under the past recollection recorded exception, the writing ______ be read to the jury but not be _______ by the ______.
can; introduced as an exhibit; proponent. The opponent CAN introduce the writing as an exhibit.
Lay opinion testimony is admissible if the opinion is
(1) rationally based on the witness’ own perception (personal knowledge); and
(2) the opinion will be helpful to the jury in deciding a fact
The typical types of permissible lay opinions are
(1) drunk/sober
(2) speed of vehicle
(3) sane/insane
(4) emotions of another person
(5) odors
(6) handwriting
(7) character (when permitted)
Expert witness testimony requires
(1) the expert be qualified
(2) the subject matter is technical and helpful
(3) the basis of the opinion is proper
(4) relevance and reliability
Expert witnesses can be qualified by
(1) education; and/or
(2) experience
The expert subject matter is ____________ that will be _______ to the jury in deciding a fact.
scientific, technical, or specialized knowledge; helpful.
The expert’s opinion must be based on a ____________.
reasonable degree of probability or certainty
The expert may draw upon three permissible data sources in forming an opinion:
(1) personal knowledge
(2) other evidence in that trial record
(3) facts outside the record if the out of court material is of the type that is reasonably relied upon by experts in this particular field in forming their opinions
An expert may rely on facts outside the record if the out-of-court materials are
of the type that is reasonably relied upon by experts in this particular field in forming their opinions
The contents of out-of-court materials that an expert relies upon are generally not ________ to the jury, but a judge can choose admit the evidence with a _______ that it can only be used to ___________ of the expert’s opinion.
disclosed; warning; evaluate the quality.
To be admissible, expert opinion must be ______ to the issue at hand and ___________.
relevant; sufficiently reliable (reliable principles that are reliable applied).
In determining the RELIABILITY of the principles and methods used by an expert to reach an opinion, the court looks to the following four factors:
TRAP
(1) testing of the principles and methods
(2) rate of error
(3) acceptance by other experts in the same discipline (general acceptance is not required)
(4) peer review/publication
A learned treatise may be used to aid expert testimony be used by party’s own expert on direct
in conjunction with the expert’s testimony and can be read into evidence
**On direct, a treatise cannot be read in on it’s own but must accompany the expert’s testimony.
A learned treatise may be used on cross-examination to
impeach and may be read into evidence on its own (cannot be introduced as an exhibit)
Generally, any witness _____ give an opinion on the ultimate issue of the case provided that _________.
can; all other requirements for opinion testimony are satisfied.
**But see exception for expert’s in criminal cases.
An expert witness ____ give an opinion on the ultimate issue in a ______ case where ________ is at issue.
cannot; criminal; the D’s mental state.
E.g., the expert cannot say “D’s insanity prevented him from understanding that he was shooting.”
Questions on cross-examination must be within the _____ of the ___________ and matters that test the witness’ _______.
scope; direct examination; credibility.
A party cannot bolster their own witness’ credibility until
the witness’ credibility has been attacked.
Post-impeachment repair of a witness’s credibility is called
rehabilitation.
Prior inconsistent statements are _______ before the witness’s credibility has been attacked.
inadmissible (they are also hearsay).
The one permissible type of prior consistent statements on direct examination is a
prior identification of the D by the trial witness. This is an exclusion at hearsay.
The witness who testifies to a prior identification must ______ and be subject to ______.
testify at trial; cross examination.
A party ______ impeach his own witness.
can
The seven impeachment methods are
(1) prior inconsistent statement
(2) bias
(3) sensory deficiencies
(4) bad reputation or opinion about the witness’s character for truthfulness
(5) criminal convictions
(6) bad acts (w/o conviction) that reflect adversely on witness’s character for truthfulness
(7) contradiction
There are two possible ways to use impeachment methods:
(1) ask the witness about the impeaching fact
(2) prove the impeaching fact with extrinsic evidence
The impeaching fact may be proven with extrinsic evidence as to the following impeachment methods
all except bad acts or some cases of contradiction.
For the impeachment methods that allow extrinsic evidence, the witness need not _______ about the impeaching fact before _______ is introduced except in the case of _______.
be asked; extrinsic evidence; bias
A prior inconsistent statement is generally admissible only for the purpose of
impeachment.
A prior inconsistent statement is NOT hearsay and may be admitted both to impeach OR for the truth if
(1) the witness is currently subject to cross-examination; and
(2) the statement was made orally under oath; and
(3) as part of a formal, hearing, proceeding, trial, or deposition
A witness need not be ________ with her prior inconsistent statement while still on the stand, but must be given an ________ at some point to ___________.
confronted; opportunity; explain or deny the prior inconsistent statement.
An opportunity to explain an inconsistent statement is not required if the witness is
the opposing party.
Also, opposing party statements are a hearsay exception and can come in for the truth.
Bias may be based on ________ that would give a witness a reason to testify __________ about a party’s case.
any fact; favorably or negatively.
A prior inconsistent statement ________ be proven with extrinsic evidence.
can
Bias _______ be proven with extrinsic evidence but only if the witness has been ________.
can; confronted with the alleged bias.
A witness _______ confronted with alleged bias while on the stand.
must be.
This is one of the few that requires confrontation.
A sensory deficiency is anything that could affect the witness’s
perception or memory.
A witness _____ confronted with an alleged sensory deficiency while on the stand.
need not be.
A sensory deficiency _______ be proven with extrinsic evidence.
can
The bad reputation or opinion about a witness’s character for truthfulness can be proven by
a character witness giving reputation or opinion evidence.
Bad reputation or opinion about a witness’s character for truthfulness _______ be proven by extrinsic evidence.
must. In the form of reputation or opinion evidence ONLY.
The types of convictions that can be used for impeachment of any witness are
(1) any type of crime that required the prosecution to prove a “false statement” as the element of crime
(2) felony convictions
A prior conviction is automatically admissible if the crime required ___________ and the court has _________ to exclude it.
the prosecution to prove a “false statement”; no discretion
A prior felony conviction is _________ for impeachment purposes against a criminal defendant IF ____________.
admissible; its probative value on the witness’s credibility outweighs the danger of unfair prejudice.
**Note the absence of “substantially”, burden on prosecution to get it in.
A prior conviction that is more than _____ years old is inadmissible for impeachment unless its ________ and ________.
10; probative value substantially outweighs its prejudicial effect; the adverse party is given notice that it will be used for impeachment.
**This is the reverse of 403 and burden is on prosecution to get it in.
Some factors that make a prior felony conviction probative are
(1) seriousness of the crime
(2) relation to deception and stealth
The fear of unfair prejudice in using a prior conviction for impeachment is that the jury will misuse it as
evidence of liability or guilt, not evidence of truthfulness of testimony.
A prior felony conviction is _________ for impeachment purposes against a non-criminal defendant witness UNLESS ____________.
admissible; its probative value is substantially outweighed by the danger of unfair prejudice (standard 403 analysis).
A prior criminal conviction may be introduced to impeach a witness by either
(1) asking the witness to admit the prior conviction; or
(2) introducing the record of the conviction
A prior criminal conviction _______ be proven by extrinsic evidence.
can
Inquiry about prior bad acts of a witness for impeachment purpose _____ be proven by extrinsic evidence.
cannot
**This would have to be a bad act of deceit or lying
In order to inquire about the prior bad act of the a witness for impeachment purposes, the cross-examiner must have a ___________ for the inquiry
good-faith basis
The witness ______ confronted with a prior bad act on cross-examination.
must be
Questioning a witness on prior bad acts for impeachment purposes is subject to the
court’s discretion.
Proving a witness’s prior bad act for impeachment purposes is allowed if
the bad act is relevant for some purpose other than bad character for truthfulness (i.e. bias).
A prior bad act being used for impeachment purposes need not be
a crime. Could be something like lying on a resume.
If a witness that is confronted with a prior bad act denies making the statement or committing the act, the cross-examiner is __________.
bound by the witness’s answer and must move on.
Impeaching a witness with a prior bad act requires that the prior bad act be related to the witness’s
character for truthfulness, like deceit or lying.
A witness _______ be impeached by being asked about prior arrests.
may not. An arrest in and of itself are not bad acts, nor are they convictions.
Look out for cases where witness’s testifying for the _______ are impeached through questions about their prior arrests, because the question is also impeach on ______ grounds.
prosecution; bias.
A contradictory fact _______ be proven with extrinsic evidence.
may. If the contradictory fact is collateral, no extrinsic evidence is allowed.
Impeachment by contradictory fact is where the cross-examiner tries to obtain an admission that the witness
made a mistake or lied about any fact she testified to during the direct examination.
A COLLATERAL contradictory fact is a fact that
(1) has no significant relevance to the case or to the
(2) witness’s credibility
Rehabilitating may be accomplished through the following two methods:
(1) showing witness’s good character for truthfulness;
(2) a prior consistent statement to rebut
Rehabilitation by showing the witness’s good character for truthfulness may be used only when the impeachment alleged that
your witness was lying and not merely mistaken (methods 4, 5, and 6)
Rehabilitation by a prior consistent statement is permissible to rebut
(1) a charge of recent fabrication*
(2) a contention of inconsistency
(3) a contention of sensory deficiency
* Most likely on the bar exam.
Rehabilitation by a prior consistent statement to rebut a charge of recent fabrication is admissible if it was made
prior to the motive to fabricate arose.
A prior consistent statement used to rehabilitate is also admissible as
substantive evidence that the prior statement was true under a hearsay exclusion.
