Evidence [the essentials] Flashcards
Relevant Evidence
Evidence has to be logically + legally relevant
Logical: tends to prove or disprove a fact of consequence
Legal: Probative value not outweighed by all the 403 factors
Rule 403
Judge has discretion to exclude evidence if probative value is substantially outweighed by:
-unfair prejudice
-confusion of issues
-misleading jury
-waste of time
-undue delay
-cumulative
Unfair Prejudice [Rule 403]
Evidence that has the potential to move jury to decide case on improper basis. (1) evidence could move the jury to decide with emotion (2) evidence admissible on one basis but not the other–leading to the danger that the jury may still use the evidence for the improper purpose
Habit Evidence
Evidence of a regular response to a specific set of circumstances
Character Evidence
Describes someones general disposition or propensity. Usually conveys a moral judgement. Generally inadmissible
Public Policy Exception
When evidence, even if admissible, is excluded for public policy reasons because doing so encourages conduct we want
Liability Insurance
Not admissible to prove negligence or wrongful conduct. Admissible to prove: (1) ownership/control (2) impeach a witness [bias] (3) as part of an admission of liability.
Subsequent Remedial Measures
Inadmissible to prove negligence, culpable conduct, defect or need for warning/instructions.
Admissible to prove: (1) ownership/control (2) rebut a claim that a precaution was not feasible (3) to prove that the opposing party had destroyed evidence
Civil Settlements + Negotiations
evidence of settlement or an offer to settle is not admissible to (1) prove/disprove the validity or amount of disputed claim (2) impeach a witness by prior inconsistent statement/contradiction
Plea Discussions
Inadmissible: offers to plead guilty, withdrawn guilty plea, actual no contendere pleas, statements of fact made during plea discussions
Payments of + Offers to Pay Medical Expenses
Inadmissible to prove liability
Admissions of fact that come with payments or offers are admissible.
Character Evidence in Civil Cases
Evidence generally not admissible to prove conduct in conformity.
Limited Exception: sexual assault/molestation cases
Admissible when character is directly at issue. Ex: (1) defamation cases where truth is a defense (2) negligent hiring or entrustment issue (3) child custody cases
Character Evidence in Criminal Cases
Evidence of a person’s character is generally INADMISSIBLE to prove they acted in conformity with that character on a given occasion.
Prosecutor: cannot offer character evidence first (unless rape/molestation)
Defendant: can offer evidence of good character. Must be a pertinent trait. Can do this by reputation or opinion evidence. No specific acts
Prosecutor: can rebut Ds character evidence: (1) offer evidence of Ds bad character by calling own character witness to provide reputation/opinion testimony about the Ds bad character trait. (2) Cross Examine Ds character witness–may ask witness about specific acts of D that show the Ds bad character for trait in Q [have you heard?]–this is for impeachment and NOT to prove conduct
Victims Character: D also has key to victim character door. Can bring reputation/opinion evidence about bad character trait of V. Then P can with reputation/opinion evidence (1) victims good character same trait (2) Ds bad character same trait
Rebutting Self-Defense [Homicide]
Prosecution can initiate. Any evidence admitted that victim was first aggressor opens the door to evidence of victim’s good character for peacefulness
Rape Victims + Character Evidence
GENERALLY: past is not admissible. In both civil/criminal–evidence offered to prove sexual behavior/disposition of victim generally not allowed
Exceptions:
Criminal: (1) instances with third persons to prove source of injury/physical evidence [semen usually] (2) instances with D to prove consent
Civil: (1) If probative value substantially outweighs harm (2) victim places own reputation in controversy
Prior Bad Acts
Evidence of a persons crimes, wrongs or bad acts can be admissible if relevant to some other issue rather than character or propensity to commit crime charged [or act done in civil]
Non-Character Purpose: MIMIC–motive, intent, mistake [absence of], identity, common scheme or plan
Can be proven using ANY evidence that is otherwise admissible [witness, criminal convictions etc].
Standard of Proof that this act exists: reasonable jury could come to this conclusion [low bar]
Similar Misconduct + Sex Crimes
Ds other similar acts are admissible in any criminal or civil case involving alleged sexual assault or molestation
CRIM: adds DV case + elder abuse
Competency of Witnesses
Generally: everyone is considered competent as long as the witness has personal knowledge and takes an oath
Modern Modifications [re lacking competency]
(1) Children: case-by-case determination (2) insanity-still competent if witness understands obligation to speak truthfully (3) judge + jury at the trial: may NOT testify
Jury [at trial]: after trial if there is an inquiry into the validity of the verdict, the jurors can ONLY testify about deliberations: (1) extraneous prejudicial information (2) outside influence (3) mistake on verdict form (4) another jurors clear statement that they relied on racial stereotypes/animus
Leading Questions
Generally only permitted on cross.
Judge MAY allow on direct: (1) preliminary/intro matters (2) witness needs help responding (3) witness is hostile, adverse party or affiliated with adverse party
Cross Examination
Typically limited to Qs within the scope of direct examination. May also ask about matters relating to credibility of witness [impeachment]
Using documents during testimony [generally]
General Rule is that a witness cannot read testimony from a prepared document. Docs are OOC statements.
Refreshing Recollection
Witness may use ANY writing/object to refresh recollection
Safeguards against abuse: (1) have writing produced (2) cross-examine witness with it (3) introduce portions of writing related to testimony into evidence
Past Recollection Recorded
Hearsay Exception. Used when witness cannot remember even with recollection refreshed.
Elements: (1) witness has insufficient recollection (2) witness has personal knowledge (3) record made by witness, made under witness’s direction, or adopted by witness (4) record made when matters were fresh in the witness’s mind (4) witness says that the record accurately reflects their knowledge
IMPORTANT: record read into evidence only. NOT admitted as exhibit
Lay Witness Opinion Testimony
Admissible if: (1) rationally based on witness’s perception (2) helpful (3) not based on specialized knowledge
LEGAL CONCLUSIONS not admissible
Expert Witness Testimony Requirements
(1) Expert is qualified–must possess special knowledge, skill, experience or education (2) expert is reasonably certain–guess or speculation not permitted (3) helpful (4) based on sufficient facts/data–(a) facts based on personal observation (b) facts made known to expert at trial (c)facts of the type that could be reasonably relied on by other experts in the field in admissible doc (ex: pathology report) (5) based on reliable principles/methods (6) reliably applied
Daubert Factors
How court determines reliability: (1) Testing (2) peer review and publication (3) error rate decent (4) standards controlling (5) general acceptance by other experts in the field
Not all factors must be satisfied
Learned Treatise Hearsay Exception
May be used during expert testimony to (1) impeach experts (2) as substantive evidence–what the treatise says is true
Must show:established as reliable evidence by testimony of expert, testimony of another expert, or judicial notice
Excerpt is read into evidence but NOT an exhibit
Expert Opinion: Ultimate Issue
Generally permitted except for testimony concerning Ds mental state in criminal case
Impeachment
Attacking the credibility of a witness. Any party can impeach.
Types:
-prior inconsistent statements
-bias or interest
-criminal convictions
-bad acts
-opinion or reputation regarding untruthfulness
-sensory deficiencies
Prior Inconsistent Statement [Impeachment]
(1) may be done on examination of witness or with extrinsic evidence
(2) extrinsic evidence must be relevant and foundation is required
These statements are offered just to impeach (non-hearsay)
Admissible as substantive evidence when made under oath at prior proceeding (then NOT hearsay)(Ex: deposition)
Admissibility of Extrinsic Evidence: may be introduced only if (1) not collateral (2) at some point during case the witness must have the opportunity to explain or deny and must give the adverse party the opportunity to examine the witness (before or after admission)
Exception to foundation requirement: (1) if prior inconsistent statement is opposing party (2) where hearsay declarant is being impeached (3) where justice so requires
Bias [Impeachment]
Extrinsic evidence allowed, but witness generally must be questioned re bias first (foundation)
Sensory Deficiencies [Impeachment]
Evidence that shows that faculties or perception or recollection were so impaired to make it doubtful witness could have perceived.
(1) admissible on examination of witness or by extrinsic
(2) no foundation required
Contradiction [Impeachment]
Showing that some facts that witness testified to are not the case–and that they are therefore lying or mistaken about said facts
(1) Extrinsic evidence generally admitted unless impeaching would go to collateral matter
(2) has to have value BEYOND the contradiction
Opinion or Reputation evidence of untruthfulness
A witness can be impeached with testimony that shows that the witness has poor character
(1) Extrinsic evidence permitted. No limit
Conviction of a Crime [Federal]
Witness can be impeached by proof of conviction. No limit on extrinsic evidence.
Crimes that can be used:
(1) any crime involving dishonesty or false statement [felony OR misdemeanor]. Court has no discretion re 403 here. Admissible unless very old.
(2) Felonies [generally] not involving dishonesty. Court has discretion to exclude. Balancing depends (1) if witness is D in criminal case then the court will exclude if prosecution has not shown probative value outweighs prejudicial
(b) everyone else the court will exclude if objecting party shows Rule 403
Remoteness of Conviction: if more than 10 years or release of confinement (whichever later), then the court MAY allow if probative value substantially outweighs prejudicial effect
Bad Acts involving untruthfulness [Impeachment]
Interrogation permitted (can cross examine witness about acts of lying, deceit, etc)
NO extrinsic evidence
Impeaching a hearsay declarant
Credibility of declarant can be attacked. Difference: declarant does not need to be given the opportunity to explain or deny prior inconsistent statements.
Rehabilitation [Post-Impeachment] [Federal]
If witness is impeached, then rehab evidence may come in
(1) explanation on redirect (2) if character attacked by rep/opinion testimony (not truthful), then evidence of good character for truthfulness can come in (3) prior consistent statements (4) if bias, then a consistent statement before motive to lie arose can come in (5) if testimony impeached on some other ground, then prior inconsistent statement made at a. time when it would be likely to rehabilitate.
If admissible for rehabilitation, then it is NOT HEARSAY. And can also COME IN FOR THE TRUTH
Federal Court [Diversity Case]
Apply state evidence with privileges, witness competency + effect of presumptions
Bolstering Credibility
FRE: cannot bolster testimony of witness until there has been impeachment
Hearsay
OOC statement offered to prove the the truth of the matter asserted
Overall rule: evidence is inadmissible if it is hearsay unless it falls under an exception (or an exclusion–not hearsay)
Specific Situations of Non-hearsay
(1) verbal acts/legally operative language that creates a contract etc
(2) statements offered to show their effect on the listener
Certain Prior Statements by Witnesses
Hearsay exclusion
(1) when prior statement is a statement of identification of a person after perceiving them
Admission by Party Opponent
Hearsay Exclusion
Statements by or attributable to an opposing party
(1) admission by another person that can be attributed to the party
(2) party’s silence in fact of accusation admissible if (a) party heard and understood + (b) party capable of denying + (c) reasonable person would have
(3) vicarious statements by opposing party via:
-spokesperson
-employee/agent if within scope of employment
-partners
-co-conspirators
Hearsay Exceptions–Declarant Unavailable
Establishing Unavailability: (1) death or illness (2) privilege (3) refusal to testify despite court order (4) inability to remember subject matter (5) absent + attendance cannot be procured
Former Testimony
Hearsay Exception
(1) Declarant unavailable (2) Testimony under oath (3) party against whom testimony being offered [civil cases–predecessor in interest] had opportunity/similar motive to develop
Statements Against Interest
Hearsay Exception
(1) Declarant Unavailable. (1) Statements against pecuniary, proprietary, penal interest - such that a reasonable person would not have made the statement unless they believed it to be true
CRIM: penal interest has to be corroborated
Dying Declaration
Hearsay Exception
Statements under belief of impending death in homicide prosecutions/any civil case: (1) unavailable declarant (2) homicide prosecution or any civil civil (3) declarant believed that their death was imminent (4) statement concerned cause/circumstances
Death NOT actually required
Statements of Personal/Family History
Hearsay Exception
Concerning stuff like births, deaths, marriage etc
Statement against party who procured declarant’s unavailability
Statement admissible against a person who’s wrongful conduct cause declarant to be unavailable
Excited Utterance
Hearsay Exception
OOC statement (1) relates to startling event/condition (2) made while speaker was under stress of excitement of event/condition
Key: emotional state
Present Sense Impression
Hearsay Exception
OOC statement (1) describes/explains event or condition (2) made while or immediately after declarant perceives an act or condition
Key: Timing
Present State of Mind or Physical Condition
Statements of then existing state of mind or physical condition of declarant–does NOT include statements of memory or belief
This includes statements of intent - declarant’s intent to do something in the future
Statements made for purpose of medical diagnose
Hearsay Exception
(1) statement that describes medical history, past or present symptoms or their inception or general cause (2) must be made for and reasonable pertinent to medical diagnosis or treatment
Records of Regularly Conducted Activity–Business Records
Hearsay Exception
(1) record of act, event, condition, diagnosis (2) made in regular course of business and business regularly keeps such records (3) made near time of event (4) consists of matters within personal knowledge of entrant (or by someone who has duty to transmit info to entrant)
Foundation: in court testimony or certification
Official Records + other official writings (Public Records)
Three Types: (1) activities of agency–internal HR type (2) records of matters observed pursuant to legal duty (a) but NOT including police observations in criminal cases (3) records of factual findings resulting from legally authorized investigation but not against D in criminal case
Catchall Exception
Residual Exception
Elements: (1) guarantees of trustworthiness (2) strictly necessary (more probative on fact than any other available evidence) (3) must give notice
Confrontation Clause
Only in criminal cases. 6th Amendment Issue
Not admissible if: (1) declarant unavailable (2) statement is testimonial (3) accused had no opportunity to cross declarant about statement
Testimonial Statement
(1) Sworn testimony (prior trial/grand jury) (2) statements given to police to help build case against D
Preliminary Questions of Fact
Facts that decide whether a piece of evidence is admissible
Decided by jury: jury decides facts as relating to relevance,
Decided by Judge: all other fact Qs related to admissibility
Standard: preponderance of the evidence–judge an consider ANY evidence [FRE rules do not apply except for privilege]
Judicial Notice
Court recognizes fact as true without formal presentation of the evidence: (1) generally known within trial courts jurisdiction (2) can be accurately and readily determined from sources that cannot be reasonably questioned
CIVIL: conclusive [only mandatory if party has requested]
CRIM: “may”
Rule of Completeness
When some or all of a writing or recorded statement is admitted: (1) adverse party may require proponent to introduce any other party OR (2) any related writing or recorded statement (3) that ought in fairness be considered at same time
Limited Admissibility
Evidence may be admissible on limited basis
Judge must upon timely request issue limiting instructions
Judge may also exclude evidence entirely re Rule 403
Attorney-Client Privilege
(1) confidential communications (2) between attorney + client [or their re[s] (3) during a professional legal consultation–must be made to obtain/render legal services
Held by: Client + attorney can generally claim for them
Lasts: after death
Corporate clients: employees authorized/director by corp to make such statements
Exceptions: generally crime/fraud + malpractice
Psychotherapist/Social Worker-Patient Privilege
Operates the same as attorney-client
Married Couples Privileges
Testimonial Privilege [Spousal Immunity]: only in CRIM
(1) Ds spouse cannot be compelled to testify against D (2) spouses must be married AT TIME OF TRIAL
Holder of Privilege: witness spouse [not the D]
Confidential Communications[applies in CIV/CRIM]: (1) must be confidential (2) Spouses must have been MARRIED AT THE TIME OF THE COMMUNICATION. Privilege remains if they get divorced
Holder of Privilege: either spouse can claim it–D can stop spouse from testifying.
Clergy-Penitent Privilege
Protects statements made to members of clergy in their capacity as a spiritual advisor
Privilege against self-incrimination
5th Amendment
Cannot be compelled to testify against themselves
Ancient Documents Rule
Authenticated if you can show (1) at least 20 YO (2) in non-suspicious condition (3) found in place where likely to be
Authenticating a Photo
(1) must be IDed by witness as fair + accurate depiction of the scene (2) generally do not need photographer
X Rays/Cardiograms/Diagnostic Imaging
Have to show that the process used was accurate–machine in working order/person qualified
Best Evidence Rule
To prove the content of a writing, recording or photo, you need the original [when evidence is being offered to prove the content of the evidence]
Authenticating Real Evidence
(1) testimony of person who recognizes it (2) chain of of custody [for non-distinct looking real evidence]
