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Inadmissible: offers to plead guilty, withdrawn guilty plea, actual no contendere pleas, statements of fact made during plea discussions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