Priscilla - Rules Flashcards
What is Relevance?
Evidence is relevant if it is probative, in that it has any tendency to make a fact more or less likely/ probable than it would be without the evidence; and material in that the fact is of consequence to the determination the action and is disputed by the parties.
§352 - Probative Value v. Prejudicial Effect
Although relevant, the court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.
Why is Character Evidence generally banned?
There is a general ban on character evidence in any form (specific conduct, opinion, or reputation) because it describes a person’s character trait and is used to suggest that its more likely or not that they acted in conformity with that trait on a particular occasion.
What are the three types of Character Evidence?
1) Specific Conduct
2) Opinion
3) Reputation
What is the Mercy Rule?
In a criminal action, evidence of the defendant’s character or a trait of his character in the form of an opinion or evidence of his reputation is ADMISSIBLE if such evidence is:
(a) Offered by the defendant to prove his conduct in conformity with such character or trait of character; [or]
(b) Offered by the prosecution to rebut evidence adduced by the defendant under subdivision (a), or Offered through specific instances by the prosecution on cross-ex to discredit the defendant’s good character witness, if the specific instances are asked in good faith.
EXAMPLE:
o D offers D’s CE w/ O & R
o P rebut w/ O & R, or CrossX w/ S/O/R
When is §352 Considered?
352 is only considered, and is only the proper grounds for an objection, if no other rule excludes the evidence.
Character Evidence and Victims
o ∆ offers Victim’s relevant bad Character Evidence with O, R, and S
o π rebut or CrossX w/ O, R, and S of Victim’s good Character Evidence
o π attack ∆ character evidence with O and R on the same threat (usually self defense)
o If ∆ offers O, R, or S of Victim’s Character Evidence for violence, π can either rebut through O, R, or S of Victim’s Character Evidence of peacefulness, OR by ∆’s Character Evidence of Violence.
What are the examples of Non-Character Purposes?
MIAMI CCOPS
The Evidence Code permits evidence of crimes, civil wrongs, and other acts when offered to prove something other than a person’s predisposition to commit such acts – as for a non-character purpose.
- Motive
- Identity of the Perpetrator
- Absence of Mistake
- Intent
- Common Plan, Scheme, or Conspiracy
- Context
- Opportunity
- Propensity for Abnormal Sexual Conduct
- State of Mind
Non-Character Purpose: Motive
Often, evidence of another bad act can show the motive to have committed the crime with which defendant is charged.
Non-Character Purpose: Identity
Sometimes, the perpetrator of a crime leaves a consistent, tell-tale signal or sign, or commits a crime in an identical method.
Non-Character Purpose: Absence of Mistake
Evidence of prior intentional acts toward the victim or similar other victims are admissible to show the charged offense was not performed accidentally or innocently.
Non-Character Purpose: Intent
This allows prior acts that indicate the accused’s mens rea.
Non-Character Purpose: Common Plan/Scheme/Conspiracy
Sometimes, the crime on trial is part of a larger plan, scheme, or conspiracy. If so, then evidence of prior acts that are part of the plan or scheme is admissible. The Court in Ewoldt left unchanged the rule from Tassell that evidence of a common plan or design is still inadmissible unless the prosecution first identifies a noncharacter proposition to which the evidence is directed. That is, it isn’t enough to say that the evidence shows a common plan or purpose, but the prosecution must offer the evidence to show that the evidence was thereby indicative of some other fact, such as motive, state of mind, or other relevant fact. On the other hand, the Ewoldt court no longer requires that the charged and uncharged offenses are part of a single, continuing conception or plot, but only requires that the prior misconduct and the charged offense are “sufficiently similar to support the inference” that they are manifestations of a common design or plan. The prosecutor need only show “such a concurrence of common features [between the charged offense and the prior uncharged misconduct] that the various acts are naturally to be explained as caused by a general plan of which [such acts] are the individual manifestations.”
Non-Character Purpose: Context
Sometimes, prior acts are necessary to place the story of the crime on trial in context.
Non-Character Purpose: Opportunity
Evidence of prior acts may be admissible to show that the accused had the opportunity to commit the crime of which he is being tried.
Non-Character Purpose: Propensity for Abnormal Sexual Conduct
This evidence may only be used to identify the accused.
Non-Character Purpose: State of Mind
The accused’s other bad acts or crimes may be used to show the accused’s or the victim’s state of mind where relevant.
What is a Habit or a Custom?
Habit is:
1) a person’s regular practice of responding,
2) to a particular kind or repeated situation,
3) with a specific type of conduct.
The evidence of habit or custom is Admissible, being used for its character purpose, to prove conduct on a specified occasion in conformity with the habit.
When are Prior Similar Occurrences admissible?
Evidence of Prior occurrences is Inadmissible to prove negligence or propensity, but Admissible to prove Substantively similar circumstances to occurrence at issue in case and, (CENO)
- Cause of accident
- Existence of dangerous condition
- Notice/ knowledge
- Ownership.
When are Similar Lawsuits admissible?
Evidence of Similar Lawsuits is Inadmissible to prove a predisposition to filing frivolous claims unless its against a vexatious litigant; but it may be Admissible to prove some other proposition such as a common plan or scheme
When is evidence of Prior Similar Contracts admissible?
o Evidence of Prior similar contracts between the SAME parties is Admissible for a non-character purpose such as habit, custom, or common plan;
o Evidence of Prior similar contracts between OTHER parties may have character issues but some courts allow it in after focusing on the relevance
When is evidence of Subsequent Accidents admissible?
Evidence of Subsequent accidents are only Admissible to prove:
1) Existence of a particular dangerous condition,
2) Cause of action in dispute
When is evidence of Other Prior Accidents admissible?
o Evidence of Other prior accidents are Inadmissible to prove ultimate issue.
o It is Admissible to prove elements such as: (CEND)
- Cause of action in dispute
- Existence of a particular dangerous condition
- Notice to the D of the existence of the dangerous condition
- Degree of danger created by the condition
When are Subsequent Precautions or Remedial Measures inadmissible/admissible?
Evidence of a remedial or precautionary measure taken after the occurrence of the event, which would have tended to make the event less likely to occur is Inadmissible to prove negligence or culpable conduct in connection with the event, but is Admissible for other purposes, IF AT ISSUE such as COIF, products liability & product defects/liability
When are Pleas and Related Statements inadmissible/admissible?
o Evidence of Withdrawn guilty pleas, offers to plead guilty, statements made under bona fide plea negotiations to police or prosecutors are Inadmissible as admissions in both civil and criminal proceedings.
o Nolo contendere pleas Admissible in civil cases if acts constituted a felony.
• (Inadmissible in civil suits if crime was misdemeanor or infraction)
• (Nolo admissible in criminal suits)
Offers of Compromise
Evidence of Offers to compromise, negotiations, to pay hospital/medical/funeral bills AND connected admissions of guilt = Inadmissible to prove liability for loss or damage, or for invalidity of the claim. (civil cases)
When is evidence of an Offer of Compromise admissible?
o Evidence is Admissible for other purposes, such as: (O-BUDI)
- 1) to prove a party attempted to obstruct a criminal investigation,
- 2) to show bias or prejudice of a witness,
- 3) to negate a contention of undue delay,
- 4) to impeach
What happens if an accused offers to pay his victim?
That offer will be ADMISSIBLE as an admission in a CRIMINAL case.
Benevolent Gestures
Evidence of Statements, writings, and benevolent gestures expressing sympathy relating to the pain, suffering or death are inadmissible in civil, BUT admissions made in connection with expressions of sympathy = admissible.
Liability Insurance
o Evidence of Insurance, OR the absence of insurance is Inadmissible to prove neg or other wrongdoing.
o Admissible to prove: ( CABO )
• Control, Agency, Bias/Prejudice of Witness, Ownership
What is Hearsay?
Hearsay is an out of court statement used to prove the truth of the matter asserted and is generally Inadmissible.
What are the Non-Hearsay purposes?
NAPKINS & VAEL
1) To prove that NOTICE or warning was given
2) To prove that the declarant was ALIVE or conscious.
3) To prove why a PARTICULAR course of action was taken (sd)
4) To prove possession of relevant KNOWLEDGE
5) To IMPEACH a witness by disproving assertions the witness testified.
6) To prove the NATURE of business or place, circumstantially
7) To prove the declarant’s STATE of mind
8) To prove that Info requiring further investigation was available(neghire)
9) Verbal acts Doctrine
• Evidence is not intended for the truth of their content, but to show legally relevant conduct itself.
• For the verbal acts doctrine to apply, the witness MUST have personal, first-hand knowledge of the statement constituting the verbal act.
10) To prove effect on listener or reader
Confrontation Clause
When the prosecution offers hearsay statements that constitute testimonial hearsay statements (an out of court statement solicited by a government officer with an eye for use at trial), against the accused, even if under a traditional hearsay exception, the accused’s confrontation rights are violated and the statements are Inadmissible
UNLESS:
1) the out of court declarant is produced for cross-ex, or
2) that declarant is unavailable and the accused had a prior opportunity to cross-ex the declarant.
Party Opponent Admissions
o Admissions of a Party Opponent are admissible hearsay statements by a party that helps the other party’s case.
o The statements must be against a party’s interest but doesn’t need to be against interest at the time it was made.
Admission by Conduct
The conduct of a party can be offered whether or not it is assertive.
- If it is assertive, its hearsay but Admissible as a party admission for the truth of the statement.
- If it is non-assertive conduct, then it is Admissible for what it is circumstantially probative to show.
Adoptive Admissions
If the declarant is a party themselves, and makes an admission, it will be Admissible against that party, whether or not the declarant is speaking on his own behalf or as someone’s representative, as long as the party has manifested an adoption or belief in its truth by words or conduct.
Authorized Admissions
The statement is Admissible if it is offered against an opposing party and was made by a person authorized to make a statement on the subject.
Vicarious ADmissions
When the liability of an employer is based on the liability of an employee (under the principle of respondeat superior), and the employee is the declarant, if the employee’s statement would be an admission by him if he were a party, then the statement is Admissible as a vicarious admission against the employer.
Co-Conspirator Declarations
o Statements of a participant in a conspiracy that were made before the party joined the conspiracy are Admissible as admissions against that party.
o The proponent must show that the declarant made the declaration (1) while participating in a conspiracy to commit a crime or a civil wrong (2) in furtherance of the conspiracy; and (3) either before or during the time the party opponent was participating in the conspiracy.
Judicial Admissions in Civil Cases
o Judicial admissions are found in pleadings and discovery responses, and are binding on both the parties and the fact finder.
o Stipulations as to facts operate as judicial admissions to bind the parties and fact finder.
Prior Consistent Statements
o Prior Consistent Statements are Admissible to bolster witness credibility and for the truth of the matter stated, but may only be introduced after the attack on credibility through PIS or charge of fabrication bias.
o The consistent statement must have been made prior to any inconsistent statement alleged or reason for motive or bias.
o If PCS is otherwise admissible on the issue of witness credibility, the PCS is also Admissible to prove the truth of their conduct.
Prior Inconsistent Statements
o Prior Inconsistent Statements are Admissible for impeachment and to prove the truth of the other statement, if 1) the prior statement was made by the witness before trial, 2) statement is inconsistent with the witness’ testimony at trial, and 3) the statement is offered in compliance of 770.
o While testifying, the witness must have been given an opportunity to explain or deny the PIS, or The witness must not have been excused from giving further testimony in the action)
Statements of Identification
Prior Statement of a Witness is Admissible for Identification (criminal cases only!) if it is:
(1) an identification of a party who participated in the crime or tort,
(2) made when the incident was fresh in the witness’s memory,
(3) and evidence of the statement is offered after the witness first testifies they made the identification and that it was a true reflection of their opinion at the time.
Which Hearsay Exceptions require UNAVAILABILITY?
1) Former Testimony
2) Declarations against Interest
3) Declarations of Past Physical Condition
4) Declarations by Crime Victims (OJ Rule)
Hearsay Exception: Former Testimony
o Prior testimony is Admissible when the party against whom the former testimony is offered was the SAME party to the action or proceeding in which the testimony was given and had the right and opportunity to cross examine the currently unavailable declarant with an interest and motive similar to that which he has at the hearing.
o Prior testimony is also Admissible against a party who was NOT a party to the earlier proceeding, if the declarant is unavailable, the testimony is offered in a CIVIL action and the party opposing the evidence in the current proceeding must have had the right and opportunity to cross examine the declarant with similar
Hearsay Exception: Declarations Against Interest
o For this statement to be Admissible, The proponent must show that the declarant is unavailable to testify and that it was against the declarant’s interest to have made the declaration.
o By showing the declaration was so far contrary to declarant’s interest that a reasonable man would not have made the statement unless he believed it to be true
Hearsay Exception: Declarations of Past Physical Condition
Statements of PAST physical condition are Admissible when The declarant is unavailable and The past physical condition is at issue and its Only offered to prove the existence of a physical condition.
