Evidence: What Types of Evidence Are Admissible? Flashcards
Logical Relevancy
Rule 1: All irrelevant evidence is inadmissible.
Rule 2: All relevant evidence is admissible, absent an “exclusionary rule,” such as Rules 403-412, the hearsay rules, the privilege rules, etc.
The relevancy rules are construed liberally in favor of admitting evidence.
Definition: Relevant evidence is evidence that has any tendency to prove or disprove a material fact; thus, relevancy has two components
1) probative value: the evidence has any tendency to prove or disprove
2) material fact: a fact of consequence to a claim or defense (as determined by substantive law)
Legal Relevancy: FRE 403
Otherwise relevant evidence is inadmissible if its probative value is substantially outweighed by unfair prejudice, time concerns, or the potential that it is misleading or might confuse the jury (but not unfair surprise).
This is a fact-sensitive determination made by the judge.
Evidence is “unfairly prejudicial” if it invites the jury to make a decision on an improper ground.
Legal Relevancy: FRE rule 404-406: Character evidence in civil case
Rule: Character evidence is inadmissible in civil cases, except in two instances:
(1) If a person’s character is an element of the claim or defense, that person’s character may be proved by evidence of reputation, opinion, or specific acts
(2) Habit evidence (including business routine) as to a party’s semi-automatic, instinctive response to a particular activity; the court may admit evidence of habit regardless of whether it is corroborated.
Legal Relevancy: FRE 407: Subsequent Remedial Measures and Similar Happenings Evidence
Subsequent Remedial Measures: Evidence that the defendant made repairs or changed policies, practices, designs, or personnel after an accident is not admissible to prove that the defendant is culpable, that a product was dangerous, or that a warning or instruction was needed.
Such evidence is admissible for other purposes, however, including to prove ownership or control of property (if disputed), to prove that a safer product was feasible (if controverted), or to prove spoliation.
Evidence of subsequent repairs is also admissible if it was performed by someone other than the defendant.
Similar Happenings Evidence: Evidence that the plaintiff has been involved in prior accidents or claims is generally inadmissible, except to prove fraudulent claims or aggravation of prior injuries.
By contrast, evidence of prior accidents or claims (if substantially similar to plaintiff’s accident or claim) is generally admissible against the defendant to prove:
(i) the defendant had notice of an unsafe or illegal condition, event, or product;
(ii) the condition, event, or product was unsafe or illegal;
(iii) a safer design was feasible (if controverted by defendant); or
(iv) causation in a complex case (e.g., food poisoning). Evidence of an absence of prior accidents (to prove the defendant’s property or product was safe) is rarely admissible.
Legal Relevancy: FRE 408 and 410
Rule: The following evidence is inadmissible to prove liability, guilt, the amount of a civil claim, or to impeach by prior inconsistent statement or contradiction:
(1) offers to compromise (or acceptances of such offers) in civil cases (including conduct and statements made during settlement negotiations)
for this rule to apply, there must be a dispute as to fault or the amount of the claim at the time of the offer
(2) compromises (i.e., settlements)
(3) withdrawn guilty pleas (including statements made to prosecuting attorneys during the plea bargaining process), and
o unwithdrawn guilty pleas are admissible (subject to the hearsay and impeachment rules)
(4) no contest pleas.
Exceptions: Such evidence is admissible for other purposes, such as to prove bias (e.g., that a witness for the plaintiff has settled her claim with the plaintiff) or to negate a contention of undue delay by an insurer.
Legal Relevancy: FRE rule 404-406: Criminal Case (Prosecutor’s Case-in-Chief)
Rule:
Although character evidence offered by the prosecution in its case-in-chief is not admissible to show the accused acted in conformity with his character or to imply that the accused has a bad character, it is admissible if it is independently relevant.
evidence of a specific crime or other bad act (even if no conviction) of the accused is admissible to prove
motive, knowledge, intent, absence of mistake, lack of accident, identity crime, opportunity, or general scheme or plan.
Such “specific bad act” evidence is not admissible if the risk of unfair prejudice substantially outweighs its probative value.
Legal Relevancy: FRE 409 and 411
Rule: Evidence of offers to pay another’s medical expenses or the actual payment thereof (but not statements of fault made in connection therewith—compare FRE 408) is inadmissible.
Rule: Evidence that a person has or does not have liability insurance is inadmissible to prove fault or ability to pay a judgment, but is admissible to prove ownership (e.g., only owners insure property) or bias of a witness (e.g., the witness works for defendant’s insurer) or motive (e.g., the purchase of fire insurance before an alleged arson).
Legal Relevancy:
Rule: In sexual assault cases, opinion and reputation evidence of the victim’s character (e.g., promiscuity) is inadmissible.
Specific instances of such character are admissible to prove that the origin of semen, pregnancy, or physical injuries is someone other than the defendant. Specific instances of sex between the defendant and the victim also are admissible to prove consent. These are two very narrow exceptions, and both require pretrial notice before they can be used.
Rule: In both civil and criminal cases based on sexual assault, evidence that the accused (or defendant in a civil case) has sexually assaulted others (even if not arrested or convicted) is admissible to prove that the accused is guilty.
Privileges generally
Relevant evidence is inadmissible at trial and undiscoverable before trial if it is protected by an evidentiary privilege.
The privilege rules are construed narrowly because they exclude otherwise relevant evidence.
For federal questions (i.e., all federal criminal cases and civil cases based on federal question jurisdiction), federal courts use federal common law privileges, namely:
- attorney-client privilege
- psychotherapist-patient privilege
- clergy-communicant privilege
- spousal privileges
Attorney-client privilege
Rule: Confidential communications between an attorney (and her representatives, such as paralegals, clerks, investigators, consulting experts, etc.) and a client (and his representatives, such as interpreters, parents of small children, etc.) for the purpose of seeking legal advice is protected from disclosure during discovery and at trial.
The privilege does not apply if non-essential third parties (e.g., bystanders, friends, witnesses, testifying experts) are involved in or overhear the communications. An eavesdropper will not destroy the privilege if the attorney and client took reasonable steps to preserve confidentiality.
As a general rule, the privilege applies to communications by corporate employees (regardless of their position) when the communications concern matters within the scope of the employee’s corporate duties and the employee is aware that the information is being furnished to enable the attorney to provide legal advice to the corporation.
The privilege belongs to the client, and the client may waive it by disclosing a significant part of the confidential communication to an unprivileged third party.
An inadvertent disclosure does not constitute a waiver if the disclosing party (a) had taken reasonable steps to prevent the disclosure and (b) after discovering the disclosure, took reasonable steps to rectify the error.
The privilege may not be used to shield preexisting documents or the facts themselves.
If a client brings documents from her business to the lawyer’s office to obtain legal advice about them, the discussion between the lawyer and client about the documents is privileged, but the documents themselves are not. Moreover, if the client discusses the facts of a legal matter with her lawyer, the discussion about the facts is privileged, but the facts themselves are not.
The privilege survives the client and the representation.
Attorney-client privilege exceptions
There are several exceptions to the privilege, including:
(1) the client sought the communication to commit an ongoing or future crime or fraud (regardless of the lawyer’s knowledge)
(2) communications with joint clients (but such communications are still privileged as to outsiders)
(3) suits between the attorney and client, and suits, disciplinary actions, or crimes arising out of the representation
(4) the communications were with a now-deceased client about the disposal of the client’s estate
(5) the client has placed the communication in issue (e.g., using the defense of advice of counsel).
The attorney-client privilege does not cover information “incident to the representation,” such as (1) the fact that an attorney-client relationship exists, (2) the client’s fee arrangement, (3) the amount paid to the lawyer by the client, or (4) the client’s identity (except in rare cases).
In addition, the privilege does not protect observations made by the lawyer if these same observations could have been made by third parties (e.g., lawyer notices scratch marks on client’s face).
Phychotherapist-patient privilege
Rule: Confidential communication between a patient and a licensed psychiatrist, psychologist, or social worker for purposes of treatment is protected from disclosure during discovery and at trial.
The patient is the holder of the privilege and may waive it voluntarily or accidentally.
Exceptions: There are several exceptions to the privilege, including:
(a) the patient places her mental condition in issue (e.g., suit for intentional infliction of emotional distress);
(b) court-ordered exams; and
(c) civil commitment hearings.
In many states, if a patient makes specific threats regarding an identifiable third party, the psychotherapist must notify the third party of the threats; failure to do so will result in civil liability.
Clergy-communicant privilege
Rule: Pursuant to the “clergy-communicant” privilege, a person may refuse to disclose, and prevent others from disclosing, communication to a member of the clergy for purposes of spiritual advise. The privilege applies to the clergy of any religion and prevents disclosure during discovery and at trial.
Spousal privilege
Spousal Immunity:
a person may not be compelled by the prosecution to testify (about anything—communications, events, etc.) against her spouse (they must be validly married at the time of trial) in a criminal trial or before a grand jury. The privilege ends upon divorce.
The privilege belongs to the witness-spouse and thus she may choose to waive it and voluntarily testify against her spouse.
Confidential Marital Communications Privilege:
the privilege protects confidential communications (i.e., not overheard by anyone else) between spouses made during a valid marriage.
It does not apply to observations made by spouses during the marriage. This privilege applies to both civil and criminal trials and belongs to both spouses (i.e., either spouse may prevent disclosure).
If this privilege applies, it continues after the marriage ends by divorce or the death of a spouse. This privilege is waived if either spouse discloses a significant part of the confidential communication to a third party.
Exceptions:
The spousal privileges do not apply to crimes committed against the witness-spouse or children in their custody. They also do not apply where the spouses are accused of jointly committing a crime.
Hearsay definition
Definition: Hearsay is:
- An out of this court (i.e., all statements except those made by witnesses during the current trial while testifying before the trier of fact)
- statement (i.e., oral, written, or non-verbal conduct intended as an assertion)
- made by a human declarant (not animals or machines)
- offered for the truth of the matter asserted.
A statement is “offered for the truth of the matter asserted” when it is offered to prove its contents (e.g., P offers X’s statement that “D’s light was red” to prove that D ran a red light). There are two categories of statements that are not offered for the truth of the matter asserted (and thus are not hearsay) one should know for the UBE:
Verbal Acts (i.e., Legally Operative Facts): A statement that gives rise to legal consequences when offered to show those legal consequences, such as offers, acceptances, contracts, deeds, warranties, wills, trusts, defamation, solicitation, conspiracy, fraud, bribery, and waivers.
Verbal Parts of Acts: A statement accompanying an ambiguous physical act, such as a statement of gift or a statement of permission.
Notice to or Effect on the Listener: Statements that put someone on notice (e.g., five minutes before P fell, I told D that the floor was wet) or that show the effect on the listener (e.g., the day before D killed V, I told D that V was “gunning for him” is admissible to prove that D thought he was acting in self-defense).
Admissibility of Hearsay
Rules:
- If a statement fits within the definition of hearsay, it is inadmissible, unless the proponent proves that it (1) qualifies as definitional non-hearsay (FRE 801(d)); or (2) qualifies for one of the many hearsay exceptions (FRE 803, 804, 807). In either case, the statement is admissible as substantive evidence.
- If a statement is hearsay and does not qualify as definitional non-hearsay or for a hearsay exception, it may not be admitted as substantive evidence, but sometimes may be used for non-substantive purposes, such as impeaching a witness (FRE 613) or as a basis for an expert’s opinion (FRE 703).
Hearsay: FRE 801(d)(1)
The following prior statements by a witness (who is in court testifying) are admissible:
prior inconsistent statements made at trials, hearings (including grand juries), and depositions under oath
prior consistent statements to refute a charge of recent fabrication (the prior statement must predate the event—e.g., a bribe—alleged to have caused the fabrication) or to rehabilitate the credibility of the witness when attacked on other non-character grounds, such as faulty memory or inconsistency (but not criminal convictions, prior acts of untruthfulness, or reputation or opinion testimony regarding the witness’s untruthfulness)
prior visual identifications (e.g., line-ups, show-ups, mug shots, preparing or identifying composite sketches) of persons (these statements may be offered by the person making the ID or anyone who witnessed it)
Hearsay: FRE 801(d)(2)
Statements (including opinions and conclusions) made by a party that are offered against that party are admissible, including:
statements made by a party’s authorized spokesperson
statements made by a party’s agent or employee if the statement concerns a matter within the scope of the person’s agency or employment and is made during the course thereof
statements that a party hears and either expressly adopts or remains silent (silent adoption constitutes an admission only if an ordinary person would naturally refute or deny the statement which, because of Miranda, never occurs in response to statements by police during custodial interrogation)
statements of co-conspirators made in furtherance of (i.e., advances the conspiracy’s objectives) and during the course of the conspiracy
Hearsay: FRE 803(1) and (2)
The following statements are admissible as exceptions to the hearsay rule regardless of the availability of the declarant:
Present Sense Impression: a statement describing or explaining an event or condition made while the declarant is perceiving it or immediately thereafter
Excited Utterance: a statement made while the declarant is under the stress of a startling event that relates to the event (e.g., “Oh my God! Bill’s car just ran over that child.”); this rule has a longer time period than present sense impression, but is probably limited to minutes in most cases
Hearsay: FRE 803(3) and (4)
The following statements are admissible as exceptions to the hearsay rule regardless of the availability of the declarant:
• State of Mind or Emotion.
o A statement of the declarant’s then-existing state of mind (such as motive, intent, or plan) or emotion, sensation, or mental feeling, but not a statement of memory or belief about past actions or events, unless it relates to the validity or terms of the declarant’s will.
• Physical Condition.
o A statement of the declarant’s then-existing bodily condition, pain, or symptoms (“My back hurts now”) regardless of the purpose for which such statement is made.
o A statement of the declarant’s medical history, past or present pain or symptoms, or the general cause of the pain or symptoms if made for purposes of medical diagnosis or treatment to a health-care provider (physician, nurse, EMT, testifying expert-physicians, etc.) or to a third party to pass on to a health-care provider.
To be admissible, the statement must be relevant to diagnosis or treatment (“I was hit by a car” is relevant to diagnosis and treatment, but “the car ran a red light” or “the car was driven by Mike Jones” is not).
Hearsay: FRE 803(5)
The following statements are admissible as exceptions to the hearsay rule:
A prior record (written, audio, or video) by the witness about a matter for which she once had personal knowledge, but now is unable to recall the matter well enough to testify fully and accurately, if such a record was reliably created (or adopted) by the witness when the matter was fresh in her memory
Even if all of the conditions of FRE 803(5) are satisfied, the record is not admissible as an exhibit; the witness may only read it out loud (or play it) to the jury. The opposing party, however, may admit the record into evidence
This hearsay exception is to be used if a document fails to refresh a witness’s recollection under FRE 612
Although this exception is contained in FRE 803 for which the availability of the declarant is generally irrelevant, FRE 803(5) requires the declarant to testify at trial
Hearsay: FRE 803(6), (7), (8) and (10)
The following statements are admissible as exceptions to the hearsay rule regardless of the availability of the declarant:
Regularly made and maintained business, public, official, religious, medical, or commercial records; to be admissible, such records:
must be made in the regular course of the enterprise at or near the time the events contained in the document occurred; the information contained therein must have been provided by someone with a duty to the enterprise to report such information (i.e., an employee); and
all of these conditions must be established by the testimony of a custodian of records or another qualified witness or by certification
Such records are inadmissible if the opponent shows that the records lack trustworthiness or are unduly self-serving
Documents made in anticipation of litigation (e.g., accident reports) usually lack trustworthiness.
Police reports are not admissible against an accused in a criminal case.
The absence of such a record is admissible to prove that the record does not exist and that the event (which would have been recorded therein) did not occur.
Hearsay: FRE 803(9) and (11)-(15)
The following statements are admissible as exceptions to the hearsay rule regardless of the availability of the declarant:
Vital Statistics. A record of birth, death, or marriage reported to a public office.
Records of Religious Organizations. A statement or certificate of birth, legitimacy, ancestry, baptism, marriage, divorce, death, etc. contained in a regularly kept record of a religious organization.
Family Records. A statement of fact about personal or family history contained in a family record, such as a Bible, genealogy, chart, engraving on a ring, inscription on a portrait, or engraving on an urn or burial marker.
Documents That Affect an Interest in Property. A publicly recorded document that purports to establish or affect an interest in property or a statement contained in a document that purports to establish or affect an interest in property if the matter stated was relevant to the document’s purpose
Hearsay: FRE 803(16)
The following statements are admissible as exceptions to the hearsay rule regardless of the availability of the declarant:
A statement in a document that was prepared before January 1, 1998, and whose authenticity is established.
Such documents also qualify for authentication under FRE 901(8).
