Relevancy and reasons for excluding relevant evidence Flashcards
Relevancy
To be admissible, evidence must be relevant. Evidence is relevant if it has any tendency to make a fact more or less probable than it would be without the evidence and the fact is of consequence in determining the action. Relevant evidence is admissible unless another rule or exclusion provides otherwise.
Rule 403
Under FRE 403, the court may exclude relevant evidence if its probative value is substantially outweighed by a danger of:
(a) unfair prejudice;
(b) confusing the issues;
(c) misleading the jury;
(d) undue delay;
(e) wasting time;
OR
(f) being needlessly cumulative.
Authentication
All evidence MUST be authenticated before being admitted. The proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.
Main ones:
Handwriting - 3 ways: (1) Lay witness (familiar w/ handwriting before the litigation + did not acquire familiarity solely litigation); (2) Expert witness - can compare the writing; (3) Trier of Fact (e.g. jury) - may compare w/ authenticated specimen.
Voice - (1) Anyone who has heard the person speak (firsthand or on recording, even if familiar solely for the purpose of litigation) + (2) ID’d person as speaker
Phone Conversation - (a) showing person answering was the one called or call made to particular business if call related to business reasonably transacted over the telephone; (b) showing particular person disclosed knowledge of facts known peculiarly to him; (c) showing the response was in reply to a duly authenticated one (“reply doctrine”); or (d) showing language patterns (these may indicate authenticity or its opposite).
Character - Admissibility of character
Generally, subject to exceptions, character evidence is inadmissible to prove conformity therewith (propensity). However, character evidence is generally allowed for non-propensity purposes.
Character - Methods of proving character
Direct examination: opinion testimony or reputation in the community
Cross-examination: opinion, reputation, or specific acts
Person’s character is an essential element of a charge, claim, or defense: specific instances of the person’s conduct
Character Evidence in a Civil Case
Generally not admissible to prove propensity. However, character is admissible in a civil case when character is directly “in issue.” Character is “directly in issue” when it is an essential element of a claim or defense.
When character is in issue, all forms of character evidence (reputation, opinion, and specific acts) are admissible.
Examples include: Defamation Cases (P’s character); Negligent Hiring/Entrustment Cases (hired/entrusted person’s character); and Child custody cases (parent’s character)
Character Evidence in a Criminal Case
Generally, character evidence is inadmissible in the prosecution’s case-in-chief to prove that D acted in conformity with his own character.
However, D can always introduce reputation or opinion evidence (NOT specific instances of conduct) of a good character trait pertinent to the crime charged to prove that he acted in conformity with his character at the time in question.
Once D “opens the door” by putting his character “in issue,” prosecutor can rebut D’s testimony in one of three ways: (1) calling its own witnesses to testify about D’s reputation; (2) calling its own witnesses to testify about their opinion to contradict D’s witnesses; or (3) cross-examining D’s witnesses by asking about specific acts only (including prior arrests) (no rep/op).
However, if D’s witness does not admit that a specific act occurred, no extrinsic evidence may be offered to prove it.
Character - Habit and routine practice
Evidence of a person’s habit or an organization’s routine practice may be admitted to prove that on a particular occasion the party acted in accordance with the habit or routine practice. The court may admit this evidence regardless of whether it is corroborated or if there was an eyewitness.
A habit is a regular response to a repeated situation (i.e. going down a stairway two stairs at a time), and usually has four key elements: (1) specificity; (2) repetition; (3) duration; AND (4) is semi-automatic or reflexive.
Usually, courts limit habit evidence to behaviors that are semiautomatic or reflexive.
Character - Other crimes, acts, transactions, and events
Evidence of prior bad acts (crimes, wrongs, or acts) is NOT admissible to show propensity (that on a particular occasion the person acted in conformity with a character trait).
However, evidence of prior bad acts may be admissible for other relevant non-propensity purposes, such as proving Motive, Identity, Absence of Mistake or Accident, Intent, a Common Plan or Scheme, Opportunity, or Preparation.
In order to offer such evidence, the proponent must show: (1) by a preponderance of the evidence that the prior act was committed (vague references to acts are insufficient); AND (2) that its probative value substantially outweighs the danger of unfair prejudice.
If relevant, a defendant’s prior acts of sexual assault or child molestation are admissible in a case where he is accused of similar conduct.
In a criminal case, prosecutor must provide reasonable notice of any evidence of this type that they intend to offer at trial. Notice must: articulate the non-propensity purpose for which evidence will be offered, the reasoning that supports this purpose, AND must generally be in writing and provided in advance of trial (but crt can excuse lack of pretrial notice for good cause)
Character - Prior sexual misconduct of a defendant
Character - Prior sexual conduct of victim (Criminal Case)
Character - Prior sexual conduct of victim (Civil Case)
Expert testimony - Qualifications of witnesses
Expert testimony - Bases of testimony
Expert testimony - Ultimate issue rule
