federal evidence Flashcards
relevance
any tendency to make any fact of consequence to the action more or less probable than without the evidence
of consequence = fact material. look to underlying law and elements needed for COA to determine materiality.
judicial discretion to exclude relevant evidence
a judge can exclude relevant evidence if the danger of unfair prejudice, confusion of the issues, misleading the jury, undue delay, or wasting judicial time substantially outweighs the probative value of the evidene
exclusion of relevant evidence for policy reasons; improper purposes
- liability insurance to prove negligence or ability to pay
- subsequent remedial measures to prove negligence, a defect in product design, or need for warning
- settlement offers- inadmissible to prove liability or that a disputed claim is invalid, that D made a prior inconsistent statement during settlement negotiations, or that the amount of damages are appropriate. all related statements INadmissible.
- offers to pay medical expenses- invalid to prove fault,
- guilty pleas are inadmissible (offer or agreement to plead guilty, or withdrawn guilty plea). NOTE: statements during plea negotiations also inadmissible.
- in crim cases, discussions with government regulatory agencies about civil disputes related to the crime are admissible.
when does the settlement exclusionary rule apply?
- when there is a threat of a claim
-when the claim is disputed as to D’s liability, or the proper amount of damages
- must be a dispute as to liability or amount
what is a subsequent remedial measure admissible to prove?
ownership and control of the item/ area that the remedial measure was made to.
to impeach a claim that a better precaution than used at the time of the injury was not feasible.
to prove destruction of evidence.
similar occurrences- general rule and examples of proper purpose
general rule: not relevant
must be probative of a material issue
look to whether probative value outweighed
examples:
- similar occurrences to prove causation
- rebutting impossibility
- habit (regular behavior under a specific set of facts)- to show likely acted in accordance with habit
- prior false claims to prove fabrication here
- preexisting condition or injury to rebut that D caused
- similar acts to prove intent (ex: discrim)
- establishing value- sales prices of similar prop.
- routine business practice to prove conduct in conformity
- industrial custom to prove standard of care in negligence
- similar accidents to prove D’s knowledge, or that a dangerous condition existed
character evidence proper purposes
proper purposes
-may be offered to impeach
-or as substantive evidence to prove:
- criminal defendants innocence
-character when it is an issue in the case
ways to prove character
specific acts
opinion testimony- W’s personal opinion
testimony of person’s reputation - what W has heard about reputation
proper purpose of character evidence in civil cases
-MIMIC purposes for specific acts
- character is directly at issue- defamation, negligent entrustment, custody disputes, lack of consortium
(ex: if P claims defamation, D can prove character to show statement was true; employee character is at issue for negligent hiring)
-propensity/character trait if character is in issue in civil case
when the prosecution can raise character
-after D has “opened the door” by discussing own character, or victim’s in crim case
when the purpose for prosecution referring to specific acts is MIMIC: motive -intent -mistake (absence of) -identity (must be similar/ unique) -common plan or scheme Note: if MIMIC, argue probative value vs. prejudice
in cases of sexual assault or molestation, can introduce D’s prior acts
on direct, how can the defendant prove character?
opinion or reputation only
who can introduce evidence of victim’s character?
defendant must raise first generally
prosecution can only raise first if defense claims self defense in homicide case and introduces ANY type of evidence to support it, or specific acts of victim if for a MIMIC purpose
it has to be opinion or reputation testimony BUT in self defense cases specific act testimony is allowed
if D calls witnesses about V’s character, how may prosecution respond?
-can rebut the evidence about V’s bad character (ex V is violent, which D would use to prove D’s state of mind) with evidence of V’s good character
only relevant if claim of self defense
or can prove that D shares the bad trait
victim’s character in rape criminal case
D can’t talk about it generally
unless the evidence is about specific acts that prove-
consent (prior acts b/w D and V only)
alternate source of semen or injury (prior acts b/w V, others)
prior acts b/w D and V admissible for any reason
if D claims self-defense, does that raise his character as an issue?
Prosecution still cannot offer evidence of defendant’s character first
Prosecution CAN offer character evidence that the victim was non violent if it’s a homicide case (not allowed in any other case)
regarding character, what form of evidence can be used on direct?
opinion or reputation testimony
how can the prosecution present evidence of character?
calling its own opinion and reputation witnesses.
on cross examination can ask about specific instances (did you know __ did __)
specific instances cannot be proven. can only ask about them.
if specific instances are raised, no extrinsic evidence to prove they happened
real evidence- how to authenticate
must be authenticated by:
a) testimony from a witness that she recognizes it as what the proponent claims it is; or
b) evidence that the object has been in a substantially unbroken chain of possession (used if the item is not unique or easily distinguishable from other items like it)
if significant, must show evidence is in same condition at trial
dramatizations or reproductions of an injury/crime can be excluded for prejudice
types of real evidence
circumstantial evidence
photographs, diagrams, maps, or other reproductions
view of the scene
demonstration of how an accident or injury occurred
authentication
must provide proof showing that the writing or object or other evidence is what proponent claims it is
methods of authentication of documents
- admission by party it is offered against
- eyewitness- someone who saw a document executed or heard it acknowledged, or someone present at or familiar with the scene shown in a photo to identify photo as portraying relevant facts and to prove photo is an accurate portrayal of facts
- handwriting/signature verification- nonexpert with personal knowledge of person’s handwriting, or expert comparing the writing to samples of person’s handwriting, jury comparing handwriting to samples
- ancient document- proof the document is at least 20 years old, in a condition so that its authenticity is not doubted (no irregularities like erasures), found in a place where likely to be kept
authenticating a voice vs. handwriting/signature
voice: can be identified by a person who has heard the voice at any time, including after litigation begins.
handwriting: nonexpert witness can be familiar with it but cannot become familiar with person’s handwriting so he can testify
self-authenticating documents
certified copies of public records official publications newspapers and periodicals trade inscriptions (tag or label attached in course of business and indicating ownership or origin) acknowledged documents commercial papers certified business records
oral statement made during phone call- ID’ing speaker
- party to the call testifying he recognized speaker’s voice as belonging to particular person
- speaker had knowledge of facts that only a particular person would know
- witness called a particular number and a voice answered as a particular person or as that person’s house or business
- witness called a business and discussed matters relevant to the business
best evidence rule
~~~
Rule: to prove the content of a writing (writing, photograph, video, X-ray), the proponent must produce the original writing if the terms are material.
when best evidence rule doesn’t apply
- writing is collateral to litigated issue- i.e. of minor importance
- fact to be proved exists independently of the writing (ex: receipt not needed to prove price, death certificate unnecessary for date of death)
- voluminous records- need not present the entire voluminous collection of writing, a summary or chart suffices
for best evidence rule, do you need the original or can a duplicate work?
a duplicate is admissible if it is an exact copy of the original made by mechanical means (carbon copy, photocopy).
note: a handwritten copy (person copying words but writing in own writing) is not an exact copy for FRE
UNLESS it would be unfair to admit a copy (because not a clear copy) or it’s unclear if the original is genuine
Is authentication a question for jury or judge? whether a document is the original or whether it exists?
BER question for judge or jury?
authentication is a jury Q: evidence that the writing is what the proponent claims it is must be enough to support a jury finding
existence of original is a jury Q; whether a writing produced is an original is a jury Q
witness competence
witness must
have personal knowledge (is he testifying about something he perceived?), and
declare he will testify truthfully
must be able to communicate (but interpreter ok)
objections to form of questioning
- calls for narrative answer (question is too broad)
- calls for speculation
- compound- 2 questions in one
- assume facts not in evidence- asking a question about something not yet discussed/established
- argumentative
- leading (question on direct suggesting desired answer)
must make a timely and specific objection or it is waived
may a witness testify from a prepared memorandum?
a witness can’t read from prepared memorandum.
this will only be allowed if W doesn’t remember even after attorney provides with a document to read to refresh memory. if H/S objection, exception if
- W once had knowledge of facts
- prepared the writing or adopted it
- document was accurate when made
can a judge or juror testify?
no, they are disqualified from testifying in the case they are serving on. A juror also can’t testify about deliberations in the case where they served as a juror.
juror may testify in a later case though
refreshing recollection
if a witness is provided with a document to read while on the stand and remembers, they can testify based on what they have read.
W cannot read from it.
party questioning the W can’t admit it into evidence.
opposing party can ask to have it admitted into evidence as an exhibit and cross-examine re: the doc. judge must grant.
opinion lay witness testimony
- opinion rationally based on perception
- helpful to a clear understanding of his testimony or
Helpful to determine a fact in issue (legal conclusions are not helpful b/c do not give info as to why) - not based on scientific, technical, or specialized knowledge, including legal effect of facts
things a lay witness can give opinion on
speed of a car person's emotion intoxication sanity Persons appearance of general health value of property or services Things they perceive with senses (person's general appearance, sound of a persons voice, or what a persons handwriting looks like)
can someone be an expert without scientific or technical knowledge or special training/education?
yes, if they have sufficient experience.
elements of proper expert opinion
Expert must:
- Be QUALIFIED: have special knowledge, training, education, experience, or skill
- have scientific,technical, or other specialized knowledge that will ASSIST trier of fact
a) must be relevant (must fit the facts)
b) must be reliable methodology: based on sufficient facts or data, must be based on reliable principles, expert must apply principles reliably to facts - SUPPORT opinion with proper factual basis
a) facts expert observed
b) facts not in ev. but supplied out of court and of a type experts rely on. can be hearsay or inadmissible.
c) facts in ev. and supplied to expert (hypo questions or trial testimony) - opinion must be that X is reasonably probable (causation of injury by x object is reasonably probable). no speculation or guessing.
when does an expert opinion assist a trier of fact?
when it is something that an average person couldn’t figure out for herself b/c of lack of knowledge or experience
when is evidence to support credibility admissible?
only when W is attacked first. cannot bolster.
impeachment by prior inconsistent statement
- using extrinsic evidence or cross exam to show party has made a statement inconsistent w/ prior testimony
- foundation: either before or after you must give a non-party witness the chance to explain or deny, and opponent to cross-examine, unless court waives because justice so requires.
-hearsay declarants whose statements are admissible under an exception need not be given this opportunity
Does not matter if under oath
- not allowed as to collateral matters
impeachment by bias
evidence that a witness is biased or has an interest in the outcome.
collateral matter for impeachment purposes
not at issue in the case or that does not refute the witness’s credibility beyond contradicting the witness (i.e. you can show lying if it shows W had a defect in perception, ex: drunk)
impeachment with different types of crimes
a conviction of a felony OR misdemeanor involving dishonesty is almost always admissible even against criminal defendants. Only exception is remote convictions.
conviction just must be constitutionally obtained.
FELONIES not involving dishonesty- admissible if pass balancing test
W: may be admitted, or may be excluded if prejudice substantially outweighs probative value
D (crim): admissible if probative value outweighs prejudice
misdemeanors not involving dishonesty are always inadmissible.
Crime introduced 10 years after later of release or conviction is generally inadmissible. probative value must substantially outweigh prejudice, and defense must receive notice.
specific instances of misconduct for impeachment
witness may be interrogated on the bad act only if probative of truthfulness. no extrinsic ev to prove, opp attorney may only ask about them on cross.
impeachment with reputation and opinion of character for truthfulness
extrinsic evidence is admissible (calling other witnesses to the stand to discuss witness or party’s credibility)
hearsay
out of court statement that is offered to prove the truth of the matter asserted in the statement
statement = verbal or written expression or nonverbal conduct by a person intended to communicate (pointing, nodding)
note: *even statements made in court for another case are hearsay, although may be an exception.
* even statements made by declarant out of court are hearsay.
statements not offered for truth
the statements are not hearsay.
- verbal acts or words with independent legal significance (ex: I accept your offer, a defamatory statement)
- statements offered to show their effect on the listener (that a party had notice)
- statements offered as circumstantial evidence of declarant’s state of mind (insanity or knowledge)
look to whether it matters that statement is true
is evidence of a statement produced by a machine or animal hearsay?
No, hearsay can only be produced by humans
party admission rule
statement by an opposing party offered against that party.
note: personal knowledge not necessary, need not be against interest.
types of party admission
- vicarious- statement by a person authorized to speak on party’s behalf or
statement by employee/agent/partner, concerning matter within scope of employment and made during employment relationship - adoptive admission- nonparty makes a statement and party indicates belief it is true
- co-conspirator statement- made during the course of the conspiracy and to further it
- Someone authorized to speak on behalf of a person
adoptive admission by silence
- party heard and understood statement
- physically and mentally capable of denying accusation
- reasonable person would deny the accusation
Party stays silent
elements of prior statement of identification
witness’s prior statement identifying person after perceiving him.
Witness must be testifying at current trial or hearing.
Witness must be subject to cross examination.
HS exceptions: declarant unavailable
- former testimony of W (under oath, offered against someone w/ former opportunity to develop it)
- statement against interest of W
- dying declaration of W
- statements offered against a party that is the cause of the witness’s unavailability to prevent them from testifying
- statements of personal or family history
Dishonor on U, dishonor on your family, dishonor on your COW
unavailability defined
- court has ruled exempt because of privilege
- persists in refusing to testify despite court order
- lack of memory on subject matter
- death
- physical or mental illness
- beyond the reach of subpoena and unable to compel attendance
former testimony
testimony of a witness who is now unavailable that was given under oath at another hearing or deposition admissible if
a) party or party’s predecessor in interest (someone in privity with the party)
b) had opportunity to develop testimony (no grand jury)
c) similar motive to cross-examine in earlier proceeding (look to similarity of issues)
d) former testimony under oath
crim case- D must have had prior opp to examine
declaration against interest
statement against the person’s pecuniary, proprietary, or penal interest when made is admissible
Person must have personal knowledge of facts statement concerns
witness need not be a party
hearsay exceptions where declarant need not be unavailable
- present state of mind
- excited utterance
- present sense impression
- declarations of physical condition
- business records
- past recollection recorded
- public records
- learned treatise
present state of mind or condition
rule: statement by declarant about his then-existing state of mind, emotion, sensation, or physical condition is admissible.
- often proved to establish intent (criminal intent, or intent to be domiciled)
- not admissible if it expresses memory (past fact) or declarant’s belief.
- can infer that declarant acted in accordance with his intention (I’m going to New York, to infer he went)
business records
writing or record made as a memo or record of any act, transaction, occurrence, or event admissible if
- made in the regular course of business activity and not for litigation
- made at or near the time of event
- customary to make the record
- entrant must have a duty to make the record
- entrant must have personal knowledge or someone with duty to transmit info to the entrant must have personal knowledge
-business can be an association not for profit
hearsay within hearsay
admissible only if each level of hearsay meets an exception
past physical/mental condition
attorney/client privilege
client may refuse to disclose and prevent others from disclosing a communication
- b/w attorney and client or their representatives (secretary, paralegal, physician who examines client at request of atty)
- to facilitate legal services
- communication must be intended to be confidential (i.e., not in presence of 3rd party, unless unaware he is there)
client need only be seeking attorney services at the time communication made
survives termination of relationship and death
if attorney represents 2 parties to a transaction and a lawsuit later arises, is there an a/c privilege?
no, because the parties could not expect confidentiality between themselves in the joint representation.
however, they can invoke the privilege if a 3rd party sues them.
psychotherapist or social worker / client privilege
communication intended to be confidential
made to facilitate psychological services
privileged in all crim/ civil proceedings
unless waived
what are previous false claims made by a plaintiff admissible to prove?
that the current claim is likely to be false (credibility)
what is a previous injury that is similar to the one claimed admissible to prove?
that the injury was caused by a different accident or occurrence than the one at issue in the current case.
improper purpose for prior similar occurrences
in civil cases they are inadmissible to prove D’s liability / lack of liability. must have a narrower, different purpose.
proper purpose for lawsuits/injuries (or absence of) involving same condition or defect
-to prove that D had notice
-to prove that the condition/defect caused this injury
-to prove that there is a dangerous condition
-to rebut claim of impossibility
proper purpose for prior similar acts
example criminal conduct like batteries. can be used to show that D acted with intent, or to prove motive
difference between habit and character evidence
habit is specific behavior in response to specific situation; character is more general, conclusory statement about person’s disposition or propensity to act a certain way (ex: D is violent, careless, always drunk)
proper purposes for use of evidence that a party has insurance
to show the party owns or controls the property/ personal property
to show that the person is biased (usually in case of someone working for insurance company offering testimony or preparing a report)
if it is so entwined with a probative admission of liability that it can’t be severed
victim character evidence- rape civil case
in a civil case opinion and reputation testimony about v’s character are not admissible
specific acts can be used for non propensity purpose (ie not to show promiscuity)
probative value must substantially outweigh the prejudice
reply letter authentication
a reply letter can be authenticated by proving it was in response to a letter sent to the person
machine produced documents
must be shown that the machine was operating properly
that the process used was accurate
that the operator was qualified to operate the machine
and chain of custody (no one tampered with it)
approach toward writings
ABC’s
Authentication
Best Evidence Rule (applicable or not?)
Content -relevance, hearsay, purpose, etc
when is secondary evidence admissible?
secondary evidence = oral testimony
allowed only if writing unavailable-
1) lost or destroyed but not because of proponent’s misconduct
2) cannot be obtained by judicial process
3) the adversary has the original and refuses to produce it after notice
dead man act
under some states’ laws, which will apply under Erie in diversity cases based on a state law claim, a witness is not competent to testify about a transaction or communication with a dead person when the witness has a financial interest in the outcome or if the judgment may be used against them in another case
leading questions
allowed on cross
allowed on direct if witness is hostile, can’t remember something, might need help because of their young age, or if the matter is introductory
questions allowed on cross examination
questions about matters raised on direct examination
questions to test credibility
leading questions
past recollection recorded- elements and what can be done with the document
a document prepared or adopted by the witness can be used to refresh their recollection
witness must not be able to remember
witness must have had personal knowledge of the facts in the doc when doc was prepared
Witness must have prepared or adopted the doc
Doc must have been prepared at or near time of events described
Offering party can only have w read it into evidence. there’s an applicable hearsay exception.
Party calling the witness cannot admit it as an exhibit
The opposing party may admit it as an exhibit
reliability for experts methods
Testing of principles or methods
Rate of error
Accepted by similar experts
Peer reviewed
statements accompanying an offer to pay
admissions accompanying the offer to pay medical expenses are admissible (ex: so sorry I hit you, let me pay your med bills…sorry I hit you is admissible admission).
admissions accompanying an offer to pay med expenses that can be construed as a settlement inadmissible (ex: it was my fault so I will pay your med expenses in exchange for dropping the claim– “it was my fault” will not be admissible)
admissions accompanying other settlement offers inadmissible
evidence about criminal defendant’s character
can only be raised by the defendant as to a relevant trait, and rebutted by prosecution after it’s been raised.
only in form of reputation or opinion testimony when d raises.
Pros can do opinion reputation specific acts crimes
bolstering & exceptions
presenting evidence to further prove something that has been said by a witness when they have not yet been attacked. not permissible.
offering evidence of a prior complaint or identification does not count as bolstering
evidence to impeach
cross examination
calling other witnesses or presenting documents (see limits on doing this for specific acts), such as depo testimony
when can a prior inconsistent statement be used for truth?
if it is made under oath at a prior proceeding
If the witness is testifying at current trial or hearing
If the witness is subject to cross examination
extrinsic evidence and bias
can be used to prove bias after witness has been asked about the facts suggesting bias.
court has discretion to allow even if the witness admits the facts or admits bias
impeachment by sensory deficiencies or lack of knowledge
extrinsic evidence is allowed without asking the witness about it first
impeachment by extrinsic evidence of contradictory facts
the opposing party must first seek on cross to have the witness admit they lied or were mistaken about fact testified about on direct. if successful, the contradictory admission can be admitted into evidence as substantive proof and not just to weaken W’s credibility IF THE FACT IS MATERIAL
is a foundation needed before extrinsic evidence of a conviction can be admitted for impeachment?
no. need not give an opportunity to explain or deny.
can a party ask about the opposing party’s witness’s arrests for crimes?
no, to be used as a crime showing untruthfulness there must be a conviction. also, an arrest is a consequence of misconduct and only acts and not their consequences can be asked about.
the only way it can be used is if they are a prosecution witness who may be biased because they are getting a deal for testifying.
rehabilitation
efforts to restore belief in a witness’s credibility. either by:
redirect examination to explain facts shown on cross
opinion/ reputation testimony re: honesty
prior consistent statement
hearsay exclusions (nonhearsay)
-statement made or adopted by opposing party (if it’s a statement attributed to an opposing party vicariously or based on relationship the relationship must first be proven)
-any declarant prior inconsistent statement under oath
-any declarant prior consistent statement (as rehabilitation of impeached witness)
-any declarant prior statement identifying a defendant
Statement of opposing party by adoption - vicarious
Must be made by an employee/ agent during their employment
Must be about something within the employee or agents scope of employment or authority
Must be authorized to speak on behalf of the employer
Similarly during existence of a partnership, statements about things within scope of partnership business
Statements of a conspirator to a third party in furtherance of the conspiracy
Unavailable declarant hearsay exceptions- requirements for each
Declarant MUST be unavailable through no fault of the person calling the witness
Statements made under oath in this case or a different case + declarant had an opportunity and motive to deny or explain by direct, cross and re direct examination. Generally means must have been sued
Statement against interest- statement against financial interest, or that incriminates, or that could cause or damage or forfeiture of property with personal knowledge of the facts and knowledge that statement is harmful
(Personal embarrassment insufficient)
Dying declaration
Statement about family history
Statement offered against someone who procured the witness unavailability
Limitations on statement against interest exception
If declarant is a witness in a criminal case making such a statement must also be supported by other evidence
If the statement is part of a longer sentence or chunk of testimony that does not harm declarant’s interest the good parts will be severed if they are not otherwise subject to hearsay exclusion or exception
Dying declaration
Homicide case (murder, manslaughter- not attempt!) OR
Civil case
AND
Declarant must believe their death is imminent (ok if they live)
Statement about the cause of their death based on personal knowledge
Statement about family history
Witness must be unavailable
By someone part of family with personal knowledge of the facts or knowledge of reputation of family
About adoptions, divorces, births, marriages
Hearsay exceptions when declarant is still available
Excited utterance
Present sense impression
Present state of mind
Statement for medical treatment or diagnosis
Business record
Official record
Recorded recollection
Reputation testimony
Docs affecting property interest when relevant to the case
Treatise
Ancient documents (prepared 25 years ago or more- 1998)
marital privileges
spousal immunity:
criminal case
communication made before or during marriage
witness spouse holds privilege- can invoke it or choose to testify
must be married at time of trial
confidential marital communication
applies in any case
must be intended not to be disclosed to 3rd parties
must have been married at time of communication; need not be at time of trial
both spouses hold privilege and can keep each other or third parties from testifying
NEITHER PRIVILEGE APPLIES IN divorce cases and child/spousal abuse cases
pyschotherapist patient privilege
confidential communication
to facilitate receipt of professional services
does not apply if the mental communication is at issue
excited utterance
statement made about a startling or stressful event
made while still under the stress of the event
holder of attorney client, doctor patient, psychotherapist patient
the client or patient
For attorneys the attorney will be presumed to have authority from the client to assert the privilege unless there is contrary evidence
exceptions to patient doctor privilege and psychotherapist patient privilege
when the patient puts their medical condition in issue (personal injury)
when relevant to a claim of a breach of duty
approach toward written or verbal communications in essays
If a writing:
Authentication
Best Evidence Rule
Content
Relevant?
Purpose?
Policy exclusion?
Privilege?
Hearsay?
Prejudicial?
Present sense impression
describes or explains an event condition
while witness is perceiving it or immediately after witness perceived
note that witness must perceive
motion to strike
a motion to strike an unresponsive answer to a question
criminal case and judicial notice
The jury should be instructed that it may, but is not required to, accept as conclusive any fact that is judicially noticed
can a witness be asked if they were fired from a job for stealing as proof of their lack of credibility?
No because asking if they were fired is asking about the consequences of misconduct and only the action may be asked about.
is a foundation needed for a hearsay declarant to be impeached?
no
is a foundation needed if the declarant is a party and is being impeached?
no
for impeachment purposes, which convictions does the judge have discretion to exclude?
crimes that are not probative of truthfulness. the standard for exclusion is usually that the prejudice must substantially outweigh the probative value.
if there is a criminal defendant, then the probative value must outweigh the prejudice
does a prior consistent statement need to be made under oath to be used for witness rehabilitation or for its truth?
No, it just needs to be consistent with testimony in court and before any opportunity to lie developed
does the judge or jury decide if an expert is qualified?
the judge
grounds for prior consistent statement admission into evidence
witness must have made a prior consistent statement
must be to rebut a claim that witness is lying or exaggerating because of a motive to lie
OR to rehabilitate witness after impeachment
not admissible to rebut claims of untruthfulness shown by opinion/reputation testimony
Witness must be testifying at current trial and now subject to cross examination
if a witness refreshes their recollection with a document before testifying is the adverse party entitled to have it produced?
only if the judge decides that justice requires it
presumption
rule that requires that a particular inference be drawn from an ascertained set of facts
judge makes findings about
witness mental competence to testify
whether an expert is qualified
is the evidence privileged
is the evidence hearsay
Whether probative value is substantially outweighed by prejudice
Whether to exclude for policy reasons
effect of taking judicial notice
in a civil case it is conclusive
in a criminal case the jury is instructed that it may but is not required to accept the judicially noticed fact as conclusive
jury determines
-whether a witness committed misconduct for purposes of impeachment
-that a document is genuine
-that real evidence is what it’s claimed to be
-identification of a speaker or author of handwriting
-whether an original document existed
-whether a document is the original
-whether secondary evidence accurately reflects contents of the original
can inadmissible evidence given to a party’s expert outside of court be admitted into evidence?
No, unless the judge decides the probative value of helping the jury evaluate the expert opinion substantially outweighs their prejudicial effect
can an expert provide an opinion about an ultimate issue in a case?
yes, unless it is an opinion about the defendant’s state of mind in a criminal case where state of mind has to be proven. Ex- d had knowledge or d was reckless
confrontation clause exclusionary rule
The statement must be offered against the accused in a criminal case (there is no confrontation concern in civil cases);
* The declarant must be unavailable;
* The statement was “testimonial” in nature; and
* The accused had no opportunity to cross-examine the witness
privilege against self incrimination
Any witness compelled to appear in a civil or criminal proceeding may refuse to give an answer that ties the witness to the commission of a crime
does an expert need to disclose the basis of their opinion?
No, unless they are asked on cross-examination or the judge orders otherwise.
when is character evidence admissible to show propensity?
- sexual assault or child molestation cases- D’s specific acts
-civil cases when character at issue
when does the best evidence rule apply?
generally applies when: a) writing is a legally operative document (contract, will, deed) or
b) person derives his knowledge of a fact from the writing (victim’s neck broken shown by X ray)
specific acts- threshold jury question
must be sufficient evidence to support a finding that the act occurred
if the jury’s verdict is questioned, what can and can’t the juror testify about?
the juror can testify about prejudicial outside information or outside attempts to influence jury.
mistakes on the verdict form.
jurors CANNOT testify about the deliberations or why they voted the way they did.
impeachment by facts contradicting W’s testimony
must ask the witness about the fact and see if they will admit they were mistaken or lying.
if they do not admit, then extrinsic evidence can be offered to prove the fact.
Examples of crimes probative of dishonesty
Forgery, embezzlement, perjury, fraud, false pretenses
Federal evidentiary privileges
Attorney client privilege
Psychotherapist patient privilege
Clergy penitent
Confidential marital communication
Spousal immunity
Government- official info not open to the public
State privileges
Dr patient (not recognized in fed case)
Professional journalist / info source
Accountant client
Effect of a presumption
Shifts the burden of production (to produce ev) to the other party to rebut it
Limiting instruction
Instruction from the judge that the jury may only consider the evidence for a specific proper purpose and not for improper purposes
Judge has discretion to give instruction or exclude evidence if it is too prejudicial or confusing for the jury
Burden of proof
After parties have presented evidence the question is whether the party with the burden of proof satisfied it. Preponderance for most civil cases, clear and convincing evidence for fraud, or beyond reas doubt for criminal cases
Can a witness become familiar with a person’s handwriting just to testify about it at trial?
No, the witness must have been familiar with the handwriting before trial
Catch all hearsay
Guarantees of trustworthiness given the circumstances and whether there are any other corroborating circumstances)
Strictly necessary (more probative than any other evidence)
Proponent has given the other side reasonable notice of the evidence and name of declarant
Are police records hearsay?
Yes, in civil cases they are public records
in criminal cases they are not subject to the business record or public record exceptions. The actual cops have to testify
Public records hearsay exception
Records setting forth the activities of the agency
Recording matters observed pursuant to a duty imposed by law
When there is a duty to make a report of the observations
(Ex: Records of factual findings from an investigation )
Made at or near the time of the activity or events reported
Made by a public employee within the scope of his duty
Police records count as public records in civil cases
medical diagnosis or treatment hearsay exception
statement made for purposes of or reasonably pertinent to receiving medical treatment or diagnosis
about present symptoms, past symptoms, or medical history
about what caused the condition (the part that identifies a person will be inadmissible)
usually to medical personnel but can be to someone who will help you get to the dr (a relative for example)
when is evidence testimonial for confrontation clause purposes?
when it is a statement
for purposes of proving past events or facts needed to prosecute
usually statements made for purposes of pressing charges or help police arrest a D if not a current safety threat
for what types of “nonhearsay” testimony must a witness be testifying in the current trial?
1 prior identification
2 prior inconsistent statement under oath
3 prior consistent statement to rebut claim witness is lying, or to rehabilitate witness that has been impeached in any way
nontestimonial evidence
statements that are made to the police or other public service personnel to help them address an ongoing emergency
statements identifying a D are nontestimonial if given to help get a D with a weapon or in midst of attack into cop car/custody
statements to help a victim get to safety or injured person get medical treatment may be nontestimonial
Learned treatise
Can be used to impeach a witness
And as direct evidence that its position on a point is true
Must first establish it is a reliable treatise (experts own admission, judicial notice, another expert testified and said it was)
Read into evidence
Use in relation to expert testimony
Inconsistent statements- omitted fact or inability to remember
Omitted fact is inconsistent if a person would have naturally mentioned it
Inability to remember while on the stand is inconsistent if it seems the witness is faking it and they testified about it earlier
Inability to remember when questioned before and then remembering when on the stand is inconsistent
Balancing test for impeachment of criminal defendant by crimes not involving dishonesty
Probative value must outweigh prejudice
