Kaplan Evidence Foundation Slides Flashcards
Presentation of Evidence - Coverage Areas
Presentation of Evidence
- Preliminary Questions of Admissibility
- First Hand Knowledge
- Burdens of Persuasion and Presumption
- Habit Evidence
- Subsequent Remedial Measures
- Settlement Offers
- Offers to Pay Medical Expenses
Approach to Evidence Questions
- Underline the Cause of Action
- Civil or Criminal
- Situate the Proceeding
- Direct or Redirect
- Party or Witness
- Purpose for Evidence
- Substantive use
- Impeachment use
Relevant Evidence is
Relevant Evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence
Admissions are
- Statement of a party
- Oral or Written Assertion / Conduct
- Used against them by their opponent
- Can be anything (words, letters, documents)
FRE 1002: Best Evidence Rule is
- To prove the contents of a writing (recording, photograph, X ray) the original must be produced unless shown to be available
- Rule applies where contents are in issue: i.e., where the testimony is reliant on the writing, not on personal knowledge
- The person testifying has personal knowledge ONLY because of the original writing
Preliminary Questions of Admissibility include
Questions concerning qualification of a person to be a witness (FRE 601, 602, 603, 401), existence of a privilege, or admissibility of evidence shall be determined by the court
Burdens in a Civil Action
- Burden of proof on the Plaintiff
- Burden of persuasion - preponderance of the Evidence
Burdens in a Criminal Action
- Burden of proof on Prosecution
- Burden of persuasion - beyond a reasonable doubt of every element
Habit Evidence
Habit Evidence is evidence of the habit of a person, or the routine practice of an organization is admissible to prove conduct.
Corroboration is not required
Subsequent Remedial Measures
Evidence of subsequent remedial measures is inadmissible to prove negligence
Subsequent Remedial Measures, Exceptions are:
Is evidence to prove (1) Ownership, (2) Control
Settlement offers that are not admissible are
Offers to settle claims in “dispute” are inadmissible. Admission are NOT severed and are inadmissible
Offers to Pay Medical Expenses
Offers to pay medical expenses of another are inadmissible. Admission ARE severable and admissible
Checkpoint Items for Character Evidence
- Character is tricky, watch for state distinctions as trap answers as they are generally opposite rules
- Impeachment is a good answer when someone does not come in substantively for its truth
- Have to follow and approach,
- where are you in the case
- what kind of case is it
- purpose of the evidence
Character Evidence in Criminal Cases- Character of Defendant
Defendant may open the door with “reputation or opinion” evidence (not specific acts) of his good character to prove his innocence and the prosecution may so rebut
Character Evidence in Criminal Cases- Character of Victim
Where evidence of a pertinent trait of character of the alleged victim is offered by the accused, the prosecution may rebut the same way
Character Approach in Criminal Cases
Door opened? Trait? Reputation / Opinion
4 Ways to Impeach
- Bias / Prejudice; Prior Inconsistent Statement; Sensory Defects; Character to Impeach
Bias / Prejudice
- Bias of a witness is always considered relevant.
- A witness can be impeached by showing that he has a reason for lying about or misrepresenting facts because he is
- biased in favor of a party,
- prejudiced against a party, or
- has an interest in the outcome
Prior Inconsistent Statement may be admissible substantively when
Admissible substantively in 3 cases
- If “sworn” under FRE 801(d)(1)
- As an admission under FRE 801(d)(2)
- If a Hearsay Exception applies
Sensory Defects
Any sensory or mental defect that might affect a witness’s capacity to observe, recall, or relate the events about which the witness has testified is admissible to impeach
Prior Bad Act Impeachment
- Reputation or opinion testimony about the witness involving truthfulness
- Questions regarding specific instances of conduct allowed on cross-examination
Convictions to Impeach
- Felony Conviction
- Convictions involving dishonesty or false statement
FRE 404(b): Mimic Rule
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes.
M Motive I Intent M Absent of Mistake/Knowledge I Identity C Common Plan or Scheme
Hearsay Exceptions
- Present Sense Impression
- Excited Utterance
- Dying Declaration
- Business Records
- 403 Balancing Test
Non Hearsay
- Admission
- Prior Consistent Statements
- Prior Identifications
Checkpoint items for Hearsay
- 26 Rules to Memorize
- 10 Rules of what is NOT Hearsay
- Factually specific
- Lot of Reading Comprehension in the fact patterns
- Watch for Non hearsay uses
- Calls of question are critical
Approach to Hearsay MBE
- Isolate the Statement
- Determine who is the declarant
- Purpose for which the evidence is being offer:
- for its truth = hearsay
- not for its truth = not hearsay
- Apply the hearsay exceptions if the statement is being offered for its truth
Effect on Listener FRE 803(3), not hearsay
Not Hearsay which is Circumstantial evidence offered to show:
- Knowledge
- Intent
- Attitude
- Belief
Of the declarant or of the listener
Effect on Listener FRE 803(3), hearsay exception
Statement of then existing state of mind or physical condition
- Intent
- Design
- Plan
- Motive
Offered for its truth
Statement Made for Medical Diagnosis or Treatment
Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or external source thereof insofar as reasonably pertinent to diagnosis or treatment
FRE 803(6): Business Record
- Report or record concerning act or event
- Made at or near the time
- By a person with knowledge
- Kept in the regular course of business
Past Recollection Recorded
- The witness once had personal knowledge of the writing
- The witness now forgets the writing and showing the writing to the witness does not jog his or her memory;
- The writing was either made by the witness or adopted by the witness;
- The writing was made when the event was fresh in the witness’s memory; and
- The witness can attest that, when made, the writing was accurate
Absence of Entry in a Business Record
Lack of a record to prove that a transaction or occurrence had not taken place, is admissible if it was the regular practice of the business to record such events if they had actually occurred
FRE 803(2): Excited Utterance
Statement relating to a startling event made while declarant was under the stress of excitement caused by the event
FRE 804(b)(2): Dying Declaration
- Statement must concern cause or circumstances of death
- Unavailable declarant
- Criminal homicide or any civil case
- Declarant’s belief of imminent death
Confrontation Clause
The Confrontation Clause requires that (1) in a criminal case AND (2) where the declarant is unavailable, that “Testimonial” evidence is inadmissible unless defendant is given prior opportunity to cross-examine the declarant
Davis v. Washington established that Not Testimonial Evidence is
Primary purpose of the testimony by the declarant is to obtain police assistance to meet an “ongoing emergency”
Hammon v. Indiana established that Testimonial Evidence is
Primary purpose of the testimony by the declarant is for “interrogation,” which is to establish or prove past events relevant to later prosecution
FRE 804(b)(3): Declaration Against Interest
Statement of an:
1- Unavailable declarant
2- Non-party (generally)
3- Against interest when made (penal, pecuniary or proprietary)
FRE 804(b)(1): Former Testimony
1- Testimony from the same or different proceeding, or in a deposition;
2- Unavailable declarant;
3- Opportunity and similar motive to develop the testimony on direct, cross, or redirect
FRE 804(b)(4): Statement of Pedigree
A statement of Pedigree: a statement concerning declarant’s own relationship by blood, adoption, or marriage or other similar fact of personal or family history
Leading Questions are appropriate when:
- On Cross
- Hostile or adverse witnesses
- Questioning children
- Refreshing a witness
- Preliminary background matters
Spousal Privilege applies to
- Protects communications Before AND during marriage (impressions/observations), BUT the privilege is lost at divorce.
- Applies to Criminal Cases ONLY
- Holder of the privilege:
- Common Law
- Party Spouse
- Federal Courts (Majority)
- Witness Spouse
Marital Privilege applies to
- Protects communications only DURING marriage
- Privilege survives divorce
- Applies to BOTH Civil and Criminal
- Holder of the privilege:
- Both Spouses have the privilege
Attorney Client Privilege
- Communications between a client an her attorney are inadmissible
- Rationale- By assuring confidentiality the privilege encourages clients to make “full and frank” disclosures to their attorneys, who are then better able to provide candid advice and effective representation
Opinion Testimony applies to
Lay witnesses may offer opinion testimony if:
- Opinions must be based on first-hand knowledge or perception; and
- Helpful to the finder of fact
