EVIDENCE RULES! Flashcards
RELEVANCE
Evidence is relevant if it has any tendency to make a material fact more or less probable.
Similar Occurrences - PLAINTIFF’S ACCIDENT HISTORY
A plaintiff’s accident history is inadmissible as it only tends to show he is accident prone; however, prior accidents are admissible if the cause of injuries are at issue.
Similar Occurrences - SIMILAR ACCIDENTS CAUSED BY SAME EVENT OR CONDITION
Past accidents involving defendant may be admissible if they occurred under substantially similar circumstances, and for the purposes of (1) showing existence of a dangerous condition, OR (2) causation of the accident, OR (3) prior notice to defendant.
Similar Occurrences - INTENT IN ISSUE
If intent to discriminate is at issue, then prior conduct may provide inference of intent on later occasions.
COMPARABLE SALE OF PROPERTY
Selling price of other similar property, in the same location and time, is some evidence of value of property in issue.
HABIT
One’s habit is admissible to show how he acted on the occasion at issue; repetitive response to a particular set of circumstance that must be frequent and particular.
INDUSTRIAL CUSTOM
Evidence of how others in the same industry have acted may be admitted as some evidence of the appropriate standard of care.
Policy Based Exclusions - LIABILITY INSURANCE
Existence of a party’s insurance is inadmissible for proving fault or absence thereof. However, it may be admissible for (1) proof of ownership/control, OR (2) witness impeachment.
Policy Based Exclusions - SUBSEQUENT REMEDIAL MEASURES
Subsequent remedial measures are inadmissible unless to show (1) proof of ownership/control, or feasibility of a safer condition - if either is disputed by the defendant.
Policy Based Exclusions - SETTLEMENT OF DISPUTED CIVIL CLAIMS
Settlements of disputed claims are inadmissible to show liability: (1) fact of settlement, (2) an offer to settle, and (3) statements of fact made during settlement talks. However, admissible to impeach witness on the ground of bias.
Policy Based Exclusions - PLEA BARGAINING IN CRIMINAL CASES
An offer to plead guilty and withdrawn guilty pleas can never be used against the defendant based on the same facts.
A plea of nolo contendere can never be used in later civil litigation based upon the same facts. All statements of fact made during plea bargaining can never be used. HOWEVER, a guilty plea NOT withdrawn is admissible in civil case under the rule of party admission.
Policy Based Exclusions - OFFER TO PAY HOSPITAL OR MEDICAL EXPENSES
A party’s payment or offer to pay accident victim’s hospital/medical expenses is inadmissible to prove liability. [NC] North Carolina extends this rule to include other expenses such as lost wages and property damage.
Character Evidence - DEFENDANT’S CHARACTER (CRIMINAL)
A defendant may introduce a relevant trait by reputation or opinion testimony of a witness, but the witness may never testify to specific acts for showing character. Doing so opens the door to rebuttal by the prosecution.
Character Evidence - PROSECUTION’S REBUTTAL OF DEFENDANT’S CHARACTER (CRIMINAL)
The prosecution may rebut by (1) cross-examining the defendant’s character witness, but the witness may never testify to specific acts of defendant, or (2) by calling its own reputation or opinion witness to contradict.
Character Evidence - VICTIM’S CHARACTER IN SELF DEFENSE CASES (CRIMINAL)
A criminal defendant may introduce evidence of a victim’s violent character to prove victim’s conduct in conformity as circumstantial evidence that victim was the first aggressor by reputation or opinion - no specific acts are allowed. The prosecution may rebut with evidence of victim’s good character AND may prove defendant’s violent character. [NC] In North Carolina, victim’s character does not open the door to defendant’s character.
Character Evidence - DEFENDANT AWARE OF VICTIM’S VIOLENT REPUTATION IN SELF DEFENSE CASES (CRIMINAL)
If defendant, at the time of the alleged self-defense, was aware of the victim’s violent reputation or prior specific violent acts, such awareness may be proven to show defendant’s state of mind (fear) to help prove that he acted reasonably in responding as he did to the victim’s aggression.
Character Evidence - VICTIM’S CHARACTER IN RAPE CASES (CRIMINAL AND CIVIL CASES)
In all cases, where defendant is alleged to have engaged in sexual misconduct, the defense may not admit (1) opinion/reputation evidence of victim’s sexual propensity, or (2) evidence of victim’s specific sexual behavior.
However, the defense may admit evidence of (1) specific sexual behavior of victim to prove that another was the source of semen or injury to the victim, (2) victim’s prior sexual activity with defendant If defense of consent is asserted, OR (3) where exclusion would violate the defendant’s due process rights (love triangle).
Character Evidence - CHARACTER EVIDENCE IN CIVIL CASES (CIVIL)
Only admissible where character is essential element of claim or defense; (1) negligent hiring or entrustment in tort, (2) defamation, libel, slander, and (3) child custody disputes.
Defendant’s other crimes for NON-CHARACTER PURPOSES (CRIMINAL) - GENERAL RULE
Defendant’s other crimes or specific bad acts are NOT admissible during the prosecution’s case-in-chief if the only purpose is to suggest that because of the defendant’s bad character, he is more likely to have committed the crime. However, admissible to prove motive, intent, mistake, identity, or common scheme or plan. (MIMIC)
Defendant’s other crimes for NON-CHARACTER PURPOSES (CRIMINAL - MOTIVE EXCEPTION
A defendant’s prior crime is admissible to prove defendant had motive to commit the charged crime.
Defendant’s other crimes for NON-CHARACTER PURPOSES (CRIMINAL) - INTENT EXCEPTION
A defendant’s prior crime is admissible to show defendants state of mind (intent) to commit the charged crime.
Defendant’s other crimes for NON-CHARACTER PURPOSES (CRIMINAL) - MISTAKE OR ACCIDENT EXCEPTION
A defendant’s prior crime is admissible to show defendant didn’t make a (mistake) in committing the crime cInharged.
Defendant’s other crimes for NON-CHARACTER PURPOSES (CRIMINAL) - IDENTITY EXCEPTION
A defendant’s prior crime is admissible to show his identity (modus operandi) if it is distinctively unique.
Defendant’s other crimes for NON-CHARACTER PURPOSES (CRIMINAL) - COMMON SCHEME/PLAN EXCEPTION
A defendant’s prior crime is admissible if it was part of the common scheme or plan; that is the same transaction
Defendant’s other crimes for NON-CHARACTER PURPOSES (CRIMINAL) - METHOD OF PROVING PRIOR CONVICTION
The prosecution can prove past crimes by (1) showing defendant was convicted, OR (2) evidence (witnesses) that prove that crime occurred through a conditionally relevancy standard - produce sufficient evidence from which a reasonable juror could conclude that defendant committed the crime.
Defendant’s other crimes for NON-CHARACTER PURPOSES (CRIMINAL) - METHOD OF PROVING PRIOR CONVICTION (NC DISTINCTION)
(NC DISTINCTION) - (1) CAN NOT prove by conviction, (2) upon request, the prosecution must give pretrial notice of intent to introduce MIMIC evidence, (3) Court must weigh the probative value against prejudice and give limiting instructions, and (4) allow in civil cases if relevant to a non-character purpose such as fraud or assault.
Defendant’s other crimes for NON-CHARACTER PURPOSES (CIVIL AND CRIMINAL) - DEFENDANT’S PRIOR SEXUAL MISCONDUCT TO SHOW PROPENSITY IN SEX CRIMES
In sexual assault or child molestation cases, the defendant’s prior specific acts of sexual misconduct is admissible in plaintiff’s or prosecution’s case in chief to show defendant’s propensity for sex crimes. (NC CISTINCTION) - only allowed if same victim in the past or similar offense close in time.
Authentication of Writings - AUTHENTICATION RULE
If relevance of a writing depends on its source, it must be authenticated by showing that the writing is what it purports to be (genuine). If no authentication is required, foundation must be made for the document to be admissible.
Authentication of Writings - CONDITIONAL RELEVANCY STANDARD
A document is admissible if the court determines there is sufficient evidence from which a reasonable juror could conclude the document is genuine.
Authentication of Writings - METHODS OF AUTHENTICATION
A document can be authenticated by (1) witness’s personal knowledge, (2) proof of handwriting, (3) ancient document rule, and (4) solicited reply doctrine.
Authentication of Writings - WITNESS’S PERSONAL KNOWLEDGE
A document can be authenticated by a witness’s personal knowledge by testifying she saw the signing or writing.
Authentication of Writings - PROOF OF HANDWRITING
Proof of handwriting by (1) lay witness’s opinion that X wrote the document on the basis of familiarity with x’s handwriting as a result of experience in normal course of affairs, (2) expert comparison, or (3) jury comparison
Authentication of Writings - ANCIENT DOCUMENT RULE
Authenticity may be inferred by circumstantial evidence by way of the ancient document rule if document is (1) at least 20 years old, (2) facially free from suspicion, and (3) found in a place of natural custody.
Authentication of Writings - SOLICITED REPLY DOCTRINE
A document can be authenticated by evidence through the solicited reply doctrine if a reply was received in response to a prior communication to the alleged author (P mails contract to X and later receives acceptance signed by X).
Authentication of Writings - SELF-AUTHENTICATED DOCUMENTS
A document is presumed authentic, and thus, there is no need for foundation testimony if document is (1) an official publication, (2) certified copies of records on file in a public office, (3) newspapers/periodicals, (4) trade inscriptions and labels, (5) notarized documents, and (6) commercial paper.
Authentication of Writings - AUTHENTICATION OF PHOTOGRAPHS
Witness may testify on basis of personal knowledge that it is a fair and accurate representation of objects.
Best Evidence Rule - BEST EVIDENCE GENERAL RULE
A party who seeks to prove the contents of a writing, sound recording, x-ray, or film, must (1) produce the original, or (2) provide acceptable excuse for its absence.
Best Evidence Rule - WHEN BEST EVIDENCE RULE APPLIES
The best evidence rule applies when a party is seeking to prove the contents of a writing. Typically occurs when (1) writing is a legally operative document, or (2) witness testifies to fact he learned solely from writing. HOWEVER, it does NOT apply when witness with personal knowledge testifies to a fact that exists independently of a writing which records the fact.
Best Evidence Rule - WHAT QUALIFIES AS AN ORIGINAL WRITING
Original writings include (1) whatever the parties intended as original, or (2) accurate duplicate of original.
Best Evidence Rule - WHAT QUALIFIES AS ACCEPTABLE EXCUSE FOR ABSENCE OF WRITING
Proper excuses include (1) lost or cannot be found with due diligence, (2) destroyed without bad faith, or (3) cannot be obtained with legal process. Court must be persuaded by preponderance that excuse is established. If so, secondary evidence is then admissible (witness’s memory of writing or a handwritten copy).
Best Evidence Rule - ESCAPE OF BEST EVIDENCE RULE
Best evidence rule not applicable if (1) voluminous records can be presented through chart/summary so long as originals are admissible, (2) certified copies of public records, or (3) collateral documents (I have a license).
Witnesses - COMPETENCY OF WITNESS
A witness is presumed competent if he (1) has personal knowledge, and (2) takes an oath or affirmation.
Witnesses - DEAD MAN’S STATUTE
Although a witness is not generally incompetent because he has a direct legal interest in the outcome, dead man’s statutes provide that, in CIVIL actions, an interested witness is incompetent to testify in support of his own interest against the estate of a decedent concerning communications or transactions between the witness and decedent.
Witnesses - DEAD MAN’S STATUTE (NORTH CAROLINA DISTINCTION)
NORTH CAROLINA DISTINCTION - Under North Carolina’s dead man statute, an interested witness is incompetent on if the testimony concerns an ORAL communication between witness and decedent. However, an interested witness may testify against the decedent’s estate concerning the identity of operator of a motor vehicle.
Witnesses - LEADING QUESTIONS
A leading question is one that (1) suggests the answer, or (2) provides unevenly balanced alternatives. Leading questions are not allowed on direct, but allowed on cross. However, they are allowed on direct for (1) preliminary introductory matters, (2) youthful or forgetful, (3) hostile, or (4) adverse party or under control of.
Witnesses - REFRESHED RECOLLECTION WITH WRITING
A forgetful witness may be shown a memorandum/tangible item to refresh memory, but may not read from it. Adversary has right to (1) inspect the memo, (2) use it on cross-exam, and (3) introduce it into evidence.
Witnesses - PAST RECOLLECTION RECORDED (HEARSAY EXCEPTION)
Under exceptions for past recollection recorded, witness may read a writing into evidence if (1) refreshed recollection fails, (2) had personal knowledge at former time, (3) writing was made/adopted by him, (4) making or adoption occurred while event was fresh in mind, and (5) can vouch for accuracy of writing when made/adopted.
