main Flashcards
logical relevance
evidence must be relevant to be admissible
relevent evidence = probative + material
probative
if it has any tendency to make a fact more or less probable than it would be without the evidence
material
offered to prove or disprove a specific fact at issue or element
excluding relevant info
a court may exclude relevant evidence if its probative value is substantially outweighed by danger or one or more
- unfair prejudice
- confusing the issue
- misleading the jury
- undue delay
- wasting time
subsequent remedial measures
actions taken after an injury or harm that make future injuries less likely
NOT ADMISSIBLE to prove
- negligence
- defective product or design
- culpable conduct
admissible to prove agency, ownership, control, impeachement
compromise or settlement offers
offer or statements made are NOT ADMISSIBLE to prove
- disputed claim
- an amount
- impeachment purposes
offer to pay medical expenses
NOT ADMISSIBLE to prove liability
any conduct or statement accompanying the offer to pay are admissible
ex. factual admissions
guilty pleas
knowing and voluntarily waived by ∆
NOT ADMISSIBLE
- withdrawn guilty pleas
- no contest pleas
- statements made during negotiations
liability insurance
NOT ADMISSIBLE to show whether the person was negligent or wrongful
ADMISSIBLE for bias, agency, ownership, control
character evidence
evidence of a person’s specific character traits (violent, honest, reckless driver)
what are the three forms of character evidence?
(1) reputation = everyone in the community knows john is violent
(2) opinion = I think john is violent
(3) specific instance = I saw john be violent at a bar last week
character evidence in civil cases
NOT ADMISSIBLE to show someone has the propensity to act in accordance with the alleged character traits unless:
- character is essential element (defamation, child custody, negligent hiring)
- case is based on the ∆’s sexual misconduct (allows of prior sexual assault or child misconduct)
character evidence in criminal cases
cannot introduce evidence of ∆’s bad character to show ∆ has the propensity to commit the crime
unless ∆opens the door
∆ can open door with
- opinion
- reputation
- NOT specific instances
evidence of victims character in criminal cases
∆ can introduce if it is relevant to one of the defenses asserted
then prosecution can attack by showing
- ∆possesses the same characteristics OR
- victim has positive character
rape cases
victim’s sexual behavior is NOT admissible
admissible = if its probative value outweighs the danger of harm
character evidence in homicide case
self-defense claims
if ∆claims victim was agressor, prosecution can admit evidence of victim’s nonviolent nature
specific instances exceptions
M.I.M.I.C
specific instances are not admissible unless to show
- motive or oppurtunity
- intent
- absence of mistake
- identity
- common plan or preparation
habit or routine evidence
admissble to show person acted in accordance with the habit or routine, in a specific instance
impeachment
attacking witness credibility
character of truthfulness
truthfulness credibility can be attacked by evidence
- reputation
- opinion
- specific instance = ONLY on cross exam
character cannot be bolstered
prior convictions
felony or misdemeanor for fraud or dishonesty is always admissible
- 10 year restriction
punishable by death or imprisonment of more than one year IF relevant
- loose 10 year restriction
prior inconsistent statements
extrinsic evidence may be used if the witness is given the opportunity to explain or deny
sensory competence
may be attacked by showing that the witness has a deficiency in her abilities to perceive, recall or relate info
ex. memory loss
lay witness
any person who gives testimony that is not termed as an expert
witness is presumed competent
opinion testimony based on
- witness’s perception
- not based on scientific, technical, or specialized knowledge
expert witness
opinion in the form of
- qualified by possessing sufficient knowledge or skill, experience, or education
- helps understand the evidence
- sufficient facts or data
CANNOT give evidence of whether the ∆had the requisite mindset
spousal immunity
witness in a valid marriage
any CRIMINAL proceeding
held by testifying spouse
confidential marital communications
communication bw spouses are privileged
held by both spouses
CRIMINAL and CIVIL
extends beyond marriage
attorney-client privilege
communication bw attorney and client
- made to facilitate legal services
- intend to be confidential
if client is a corporation
- control group members
- extends to non control group when communicating to seek legal advice for corp
authentication
all tangible evidence must be authenticated
requires that a party show that the item being introduced as evidence is what the party claims
authenticating physical evidence
witness testimony
OR
chain of custody
authenticating documentary evidence
ex. letters, contracts
(1) both parties agree
(2) witness testimony
(3) handwriting verification
- expert can compare or non-expert has to have personal knowledge
self-authenticating evidence
these do not require authentication
- public documents with seal
- certified copies
- issued by public authority
- newspaper and periodicals
- notarized docs
- commercial papers
- regularly conducted business activity
authentication of oral statements
any person who has heard the person;s voice
best evidence rule
must provide the original document or an accurate duplicate when
- contents of the doc are at issue
- witness is relying on the document when testifying
offers of proof
motion to try and convince the judge to allow the evidence that was denied
rule of completeness
when a party introduces an incomplete statement at trial, the other party can introduce other parts of the statement to provide context
rebuttable presumption
assumes something is true until proven otherwise
burden of proofs
(1) criminal – beyond a reasonable doubt
(2) child custody, wish to die, fraud = clear and convincing
(3) most civil cases – preponderance of the evidence
judicial notice
allows a court to declare a fact as true without formal evidence
(1) generally known as true
(2) cannot reasonably be questioned
