Relevancy and Excluding Relevant Evidence Flashcards
HYPO:
If a party offers evidence of a similar prior event that is probative of a material issue in the case, will it be admissible?
YES.
A prior similar happening that is probative of a material issue may be admissible IF its probative value outweighs the risk of confusion or unfair prejudice
*such evidence may be used to show causation, prior false claims, similar conditions cause the same event, rebut a claim of impossibility, establish habit, or prove an industrial routine or standard of care
What is “habit evidence”?
A person’s routine or regular reposes to a particular situation, admissible to show “that on a particular occasion, the person… acted in accordance w/ the habit” (eg, she always puts her seatbelt on as soon as she gets in her car)
**distinguish habit from character evidence, which refers to someone’s propensity or general disposition for a particular trait (eg, she’s always unreliable)
May a ∆ introduce evidence of their own character in a criminal case?
YES.
A crime ∆ may introduce evidence of their own good character, which “opens the door” and allows prosecution to rebut
*narrow exception may allow the protection to introduce other acts of sexual assault by ∆
What is the rule of admissibility of character evidence in CIVIL cases?
The general rule is that character evidence may NOT be used in a CIVIL case UNLESS:
- character itself is an ultimate issue (essential element) OR
- it is being used for a non-character purpose (remember MIMIC)
A criminal ∆ may offer evidence of their own good character in which 2 forms?
“opens the door” to their character for a relevant trait by calling witness to testify to EITHER:
- the ∆’s good reputation (or that the witness has heard nothing bad);
OR - the witness’s OPINION about the ∆’s character trait
Are specific acts of character evidence admissible to show propensity?
NO.
Specific acts of misconduct (or “prior bad acts”) are generally NOT admissible to show propensity
**prosection may, however, introduce evidence of ∆’s previous misconduct if it is offered to establish more than mere criminal disposition
i.e., If it is used to show (MIMIC)
Motive
Opportunity Intent
Preparation
Plan
Knowledge
Identity
Absence of mistake
What are the 3 requirements for real evidence to be admissible?
to be admissible, real evidence must be:
- authenticated
- in substantially the same condition at trial
- legally relevant in a way that is not outweighed by another police or rule of exclusion (eg, prejudice or inconvenience)
*if the opposing party does not object to otherwise improper evidence it aye be admitted, and the objection will be waived
What is evidence “authentication”?
Process of admitting a piece of real evidence
The proponent of the evidence must offer proof that the item is what it is purported to be
*authentication is usually accomplished by calling. witness to testify that they recognize the object, knows its origin, or that the chain of custody remained intact
What are the 2 requirements of authenticating a photograph?
A photo is properly authenticated if a witness is called to:
- identify it as a portrayal of relevant facts at issue; AND
- verify it as a correct representation of those facts (which may be shown by the witness’s familiarity w/ the scene or object)
*typically, it is not necessary for the photographer to be called to authenticate a photo
What are the 4 requirements of authenticating an X-Ray?
Must be stablished that:
- the process used was accurate (often judicially noticed)
- the machine was in working order
- the operator was qualified
- the evidence stayed w/in the chain of custody
What are the 2 methods for authenticating a person’s voice (oral statement)?
An oral statement may be authenticated by EITEHR:
- VOICE IDENTIFICATION: a witness testifies they have heard a voice at any time, including in preparation for trial, and recognizes it when it is played in court;
OR - TELEPHONE CONVERSATION: a witness who was a party to a phone call authenticates the voice by vapors methods in court
*a witness MAY familiarize themself w/ a person’s voice for purposes of testifying, but NOT when authenticating a person’s handwriting
What are the 5 requirements of excluding testimony under a Dead Man statute?
A Dead Man statute prevents a witness from testifying to events occurring before a decedent’s death IF:
- a claim or demand exists;
- for which money judgement is sought;
- against the estate of the decedent;
- the witness is a party or immediate beneficiary of the claim or demand; AND
- the decedent’s estate does not consent to the witness’s testimony or call them to testify
*this prevents an interested party from testifying about events concerning a dead person who is unable to testify
**the FRE do not contain a Dead Man provision, but many states have statutes w/ these elements
What are the 5 requirements of admitting expert witness testimony?
An expert witness Amy testify to their opinion IF:
- they are qualified as an expert;
- their specialized knowledge will be helpful to the fact finder;
- their testimony has a sufficient factual basis;
- their testimony is based on reliable principles and methods; AND
- they have “reliably applied the principles and methods” to this case
Evidence of prior similar accidents or injuries caused by the same condition or event may be admissible for which 3 purposes?
Admissible to prove that:
- a defect or dangerous condition existed;
- the ∆ knew the condition or defect existed; AND/OR
- the defect or condition was the cause of the current injury
*a court may, in its discretion, admit evidence of the ABSENCE of prior similar accidents to show a lack of defect or ∆’s lack of knowledge
What is the legal standard of admissibility for evidence of sales of similar property?
-evidence of sale of similar real or personal property may be admissible to prove the value of a piece of property IF the comparative sale is not too remote in time
-Note that with REAL PROPERTY comparison, there must be a preliminary determination that the properties are sufficiently similar (eg, character, use, proximity, date of sale, etc)
*evidence of mere price offers is NOT admissible
What are the 2 requirements for performing a scientific experiment in the courtroom?
the judge may permit an in-court scientific experiment IF:
- conditions in the courtroom are substantially similar to those of the OG event AND
- the experiment will not cause confusion or undue delay
Which 2 types of demonstrations are generally NOT permitted in the courtroom?
It is generally NOT permissible to allow in-court demonstrations that:
- show the effect of a bodily injury, such as the existence of a limp or extreme pain, to avoid dramatizing the injury or inflame jurors’ minds; AND/OR
- would be under the sole control of the witness b/c they may not be subject to effective cross
What is considered “relevant’ evidence?
any evidence having any tendency to make the existence of any fact that is of consequence to a final determination more or less probable than it would be without the evidence
*general rule is that evidence is relevant if it relates to the time, event, or person in a controversy
What are the 6 circumstances when a judge may exclude otherwise relevant evidence under FRE 403?
- danger of unfair prejudice
- confusion of the issues
- misleading the jury
- undue delay
- waste of time
- needless presentation of cumulative evidence
Define “character” evidence
Evidence of a person’s moral attributes, such as the tendency to be violent, honest, or careless
**REMEMBER - general rule is that character evidence is INADMISSIBLE in CIVIL cases except when necessary to prove an ultimate issue and INADMISSIBLE in CRIMINAL cases except when 1st introduced by ∆
Which three threshold questions arise when determining whether character evidence is admissible?
When determine whether character evidence is admissible, the three threshold question that arise are:
- what is the PURPOSE of the character evidence (eg, to show conformity, to some non-character purpose)
- what is the FORM or METHOD being used to prove character (eg, specific acts or reputation); AND
- is the case CIVIL or CRIMINAL?
*these questions will help u determine which rule is being tested (eg, character may be relevant in a particular case, but a party is offering it in the incorrect form)
Is character evidence admissible to show that a person acted in conformity with their character?
NO.
*general rule is that character evidence may not be used to show that a person acted in conformity w/ a character trait BUT THERE ARE IMPORTANT EXCEPTIONS
What are the 6 ways character evidence may be used to establish something other than character?
May be used to show:
- M - motive
- I - Intent (or knowledge)
- M - absence of Mistake or accident
- I - identity
- C - common plan or scheme, preparation; AND
- Others (opportunity, knowledge)
*remember MIMIC (Motive, Intent, absence of MISTAKE, Identity, or Common plan) in addition to OTHER uses
When character is an ultimate issue in a case, which form of evidence may be introduced?
If a person’s character is an ultimate issue (ie, an essential element, not merely relevant) character evidence MUST be allowed in for form of specific acts, opinion, or reputation evidence
*this typically (but rarely) comes up in civil cases (DEFAMATION AND NEGLIGENT ENTRUSTMENT)
The prosecution may rebut a ∆’s evidence of their own good character in which 2 forms?
If a CRIMINAL ∆ has opened the door, the prosecution may rebut with evidence by EITHER:
- cross-examining the character witness about SPECIFIC ACTS OR
- calling a separate character witness to testify to reputation or opinion of ∆’s bad character
When is evidence of a VICTIM’S character admissible in a CRIMINAL case?
Defense may introduce evidence of the victim’s character in the form of reputation or opinion, which may be rebutted by the prosecution showing the victim’s good character or the same bad character of the ∆
*this does NOT apply in rape cases, which have special “rape shield” laws
What is the legal standard for qualifying a witness as an expert?
A witness may be qualified as an excerpt if they have “specialized knowledge, skill, experience, training, or education” in the field
What are the 5 Daubert factors to determine whether expert testimony is based on reliable principles and methods?
The 5 Daubert factors used to determine whether expert testimony is based on reliable principles and methods include:
- whether the technique or theory has been tested before;
- whether is has been peer reviewed and/or published;
- any known or potential error rate;
- the existence and maintenance of standard controlling procedure for its operation; AND
- whether it is generally accepted in the scientific community
Which 3 types of “factual basis” are sufficient for admitting expert testimony?
A sufficient “factual basis” may include facts that:
- the expert has personally observed;
- were presented as evidence during trial and submitted to the expert (often by hypothetical question); OR
- were given to the expert outside of court (and are a type reasonably relied upon by experts in the field)
*the expert may testify w/out offering the basis of their opinion, although they may be required to on cross-exam
What is considered “specialized knowledge that will help the fact finder” for admitting expert testimony?
The expert’s “specialized knowledge” skill, experience, or training is outside normal lay experience such that it would be helpful to the trier of fact in understanding the evidence or determining a fact in issue
What is required to show that an expert witness “reliably applied the principles and methods to the facts of the case” for admissibility?
Expert testimony is admissible if the opinion “reliably applied” scientific or specialized principles and methods to the facts of the case
The expert must have “a reasonable degree of certainty” or probability regarding their opinion, not merely a guess or speculation
What are the 4 ways a witness may authenticate an oral statement (a person’s voice) using a phone conversation?
A witness who was a party to a telephone conversation w/ the alleged speaker may testify that they (the witness):
- recognize the speaker from the call;
- heard the speaker’s voice on the call and the speaker testifies to knowledge of facts only a specific person who have had
- called that particular speaker on the phone who answered and identified themself; OR
- called the speaker’s business and talked to them about relevant business matters
*typically, the testifying witness is on the stand while an attorney offering the evidence plays the recording of the alleged speaker’s voice, and the witness testifies w/ one of these 4 methods to ID the voice of the speaker
What form of evidence is appropriate when the ∆’s character is at issue?
On Direct: specific acts are not permissible to show character, ONLY reputation or opinion evidence is allowed
On Cross: reputation, opinion, and specific acts are permissible to rebut character evidence
*although specific acts may be asked about on cross, extrinsic evidence of the specific acts is NOT permissible
What are the 3 methods of proving character evidence?
- reputation
- opinion
- specific acts
Are prior acts of sexual assault or child molestation admissible in a civcil case for similar claims?
YES.
The ∆’s proper acts of sexual assault/molestation are admissible to prove ∆’s conduct in the present matter
What is the Rule 403 balancing test?
Under the rule, relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence
