Rules Flashcards
Rule 403 (legal relevance)
Even if evidence is relevant, the judge has discretion to exclude it if its probative value is substantially outweighed by the danger of one or more of: unfair prejudice, confusion of the issues, misleading the jury, waste of time, undue delay, and needless presentation of cumulative evidence
Daubert factors (reliability of scientific testimony)
- whether the expert’s theory or methodology has been tested
- whether it has been subject to peer review and publication
- its known or potential error rate
- the existence and maintenance of standards controlling its operation
- whether it is generally accepted in the relevant field.
Exclusion or sequestration of witnesses
Upon a party’s request, the trial judge must order witnesses excluded, but must not exclude: 1. a party or designated officer or employee of a party, 2. a person whose presence is essential the presentation of a party’s claim or defense, or 3. a person statutorily authorized to be present
Evidence of prior accidents or injuries
Evidence of prior accidents or injuries caused by the same event or condition and occurring under SUBSTANTIALLY SIMILAR circumstances is admissible to prove
- the EXISTENCE of a dangerous condition,
- that the condition was the cause of the present injury, and
- that the defendant had notice of the dangerous condition.
Habit evidence
Evidence of a person’s habit is relevant and admissible as CIRCUMSTANTIAL evidence that they acted IN ACCORDANCE with the habit on the occasion at issue. Habit is a person’s REGULAR RESPONSE to a SPECIFIC SET OF CIRCUMSTANCES. The evidence objectively describes the conduct without suggesting anything about morality.
Routine practice evidence admissible to show organization acted in accordance. Industrial custom evidence admissible to show others in same industry have acted in recent past.
Liability insurance
Evidence of a party’s insurance against liability (or lack thereof) is not admissible to prove whether a party acted negligently or wrongfully. But it is admissible to prove ownership and control (if disputed), to impeach, or as part of an admission of liability.
Subsequent remedial measures
Evidence of repairs or other precautionary measures made following injury is not admissible to prove negligence, culpable conduct, defect, or need for warning or instruction. But it is admissible to prove ownership and control (if disputed), to rebut claim that precaution was not feasible, or to prove that opposing party has destroyed evidence
Civil settlements and settlement negotiations
Evidence of compromise or offer is not admissible to prove/disprove the validity or amount of disputed claim or to impeach witness by prior inconsistent statement or contradiction.
ONLY APPLIES when the party was going to make a claim and the claim was in dispute as to either the liability or amount
Plea discussions
Offers to plead guilty, withdrawn guilty pleas, actual pleas of nolo contendere, or statements of fact made during plea discussions are inadmissible. Actual guilty pleas are admissible as statement by an opposing party.
Payments of and offers to pay medical expenses
Evidence that a party has paid or offered to pay an injured party’s medical, hospital or other expenses is inadmissible to prove liability for injury. However, admissions of fact accompanying such payments and offers are admissible.
Character in issue
Character evidence is admissible when proof of a person’s character is an essential element of a claim or defense (“directly in issue”), including defamation cases, negligent hiring or entrustment, and child custody cases
Defendant may offer character evidence
In criminal cases, the defendant may offer evidence of their own good character to prove their conduct in the case. The evidence must concern a PERTINENT trait and such evidence must be in the form of reputation or opinion testimony.
Except in sexual assault cases, defendant can introduce reputation/opinion evidence of a bad character trait of the victim when relevant to show defendant’s innocence (e.g. self-defense).
Rape victim’s past behavior
Generally inadmissible BUT:
In criminal sexual misconduct case specific instances of victim’s sexual behavior are admissible to prove someone other than the defendant is the source of semen, injury, or other physical evidence. Specific instance between victim and defendant admissible to prove consent.
In civil sexual misconduct cases, specific instances of victim’s sexual behavior are admissible if its probative value substantially outweighs danger of harm to victim.
MIMIC
Evidence of past crimes, wrongs, or acts is admissible if relevant to some issue other than character or propensity, including: motive, intent, absence of mistake or accident, identity, or common plan or scheme.
There must be evidence sufficient to support jury finding that the defendant committed the other misconduct.
Prosecutor must provide reasonable notice of any evidence of this kind.
Basic competency of witness
There must be evidence sufficient to support finding that the witness has personal knowledge of the matter about which they are to testify and they must give an oath/affirmation that they will testify truthfully.
Improper questions and answers
Outside the scope of direct exam
misleading
compound
argumentative
call for narrative or speculation
assume facts not in evidence
Recorded recollection (may the record be read into evidence?)
May be read into evidence if
- witness has insufficient recollection (even after referring to it)
- witness had personal knowledge of facts in record when it was made
- the record was made by the witness or at their direction or it was adopted by them, AND
- the record was made/adopted when the matter was fresh in their mind
Opinion testimony of lay witnesses
Opinions by lay witnesses is admissible when
- it is RATIONALLY BASED on the witness’ perception
- helpful to a clear understanding of their testimony or to determination of a fact IN ISSUE, and
- not based on scientific, technical, or other specialized knowledge.
Lay witnesses may not give opinions about legal conclusions (e.g. whether someone was an agent, whether a contract was made).
Opinion of experts
Expert testimony is admissible if:
1. the witness is qualified as an expert
2. they are reasonably certain about their opinion
3. the subject matter is one where scientific, technical, or other specialized knowledge would be helpful
4. the opinion is based on sufficient facts or data
5. the opinion is the product of reliable principles and methods.
6. the expert reasonably applied the principles and methods to the facts of the case.
Proper factual basis for expert’s opinion
An expert’s opinion may be supported by personal observation, facts made known to expert at trial, or facts not known personally but supplied to expert outside the courtroom and of a type REASONABLY RELIED upon by other experts in the field.
Rule 403 (legal relevance)
Even if evidence is relevant, the judge has discretion to exclude it if its probative value is SUBSTANTIALLY OUTWEIGHED by the danger of one or more of: unfair prejudice, confusion of the issues, misleading the jury, waste of time, undue delay, and needless presentation of cumulative evidence
Logical relevance
Evidence is relevant if it has any tendency to make the existence of a fact that is OF CONSEQUENCE to the determination of the action MORE OR LESS PROBABLE than it would be without the evidence.
impeachment of hearsay declarant
the credibility of a hearsay declarant may be attacked (and supported) by evidence that would be admissible had they testified as a witness. And the declarant need not be given the opportunity explain or deny a prior inconsistent statement.
Hearsay exclusion: prior statements of testifying witnesses
A prior statement by a testifying witness subject to cross exam is not hearsay if the prior statement is one of identification, the prior statement is inconsistent with declarant’s in-court testimony, or the prior statement is consistent and is offered to rebut charge that witness is lying or exaggerating (and statement was made before motive to lie), OR offered to rehabilitate witness whose credibility has been impeached on some other ground
Hearsay exclusion: admissions by party opponent
judicial or extrajudicial statements
adoptive statements
vicarious statements by authorized spokesperson, agents and employees, partners, and co-conspirators (if in furtherance of conspiracy and existence of conspiracy is proven by preponderance of the evidence)
Grounds for unavailability
- death or physical or mental illness
- exempt because of privilege
- refuse to testify despite court order
- testify they do not remember
- are absent and proponent is unable to procure attendance
Hearsay exception: former testimony
Testimony of a now-unavailable witness is admissible if the testimony was given under oath and the party against whom the testimony is now being offered had an opportunity and similar motive to develop testimony at the prior proceeding
Hearsay exception: statements against interest
Statement of a now-unavailable witness may be admissible if it was against that person’s pecuniary, proprietary, or penal interest when made. In criminal cases, statements against penal interest must be corroborated
Hearsay exception: dying declarations
in a homicide prosecution or any civil case, a statement by a now-unavailable declarant is admissible if the declarant believed their death was IMMINENT and the statement concerned the cause or circumstances of what they believed to be their impending death.
NOT APPLICABLE FOR ATTEMPTED MURDER
Hearsay exception: statements offered against party procuring declarant’s unavailability
statement of an unavailable is admissible if offered against a party who intentionally procured their availability
Hearsay exception: excited utterances
An out of court statement relating to a STARTLING event, made while under the stress of the excitement from the event
Hearsay exception: PSI
a statement that DESCRIBES or EXPLAINS an event or condition made while or immediately after the declarant perceives the event or condition
Hearsay exception: present state of mind or condition
statement of declarant’s then-existing states of mind (including motive, intent, or plan) or their emotional, sensory, or physical condition.
Hearsay exception: medical diagnosis or treatment
statement that describes a person’s medical history, past or present symptoms, or their inception or general cause and was REASONABLY PERTINENT to medical diagnosis or treatment
Hearsay exception: business records
- any writing or record made as a memorandum of any act, event, condition, opinion or diagnosis
- in the regular course of business
- made near time of event
- by someone with personal knowledge
Hearsay exception: public records
records setting forth
- activities of office or agency
- recordings of matters observed pursuant to legal duty (not excluding police observations in criminal cases)
- records of factual findings resulting from legally authorized investigations in civil cases or against gov’t in criminal cases (but not against criminal defendants)
Confrontation Clause
hearsay statement will not be admitted if the statement is offered against the accused in a criminal case, the declarant is unavailable, the statement was testimonial, and the accused had no opportunity to cross examine.
Statements are testimonial if their primary purpose are to provide info for later prosecution, not if they are to aid in ongoing emergency
Authentication (standard)
A writing or any secondary evidence may not be received into evidence unless it is authenticated by proof sufficient to support a jury finding of genuineness (that the writing is what the proponent claims it is).
Methods of authentication (generally)
- opponent’s admission
- eyewitness testimony
- handwriting verifications (by lay witness with familiarity in the course of normal affairs, expert who has compared to samples, jury’s comparison)
- reply letter (evidence it was written in response to communication sent to alleged author)
- ancient documents (at least 20 years old, in condition that raises no suspicion as to authenticity, found in place where it would be kept)
- photographs (if id-ed by witness as portrayal of relevant facts and verified as fair and accurate representation)
Methods of authentication (oral statements)
- voice identification (by anyone who has heard voice anytime)
- telephone conversations (by any party to call who testifies that they recognized the other party’s voice, the speaker had knowledge only that person would have, they called a specific person’s number and voice answered as that person, or they called a business and talked with person answering about matters relevant to business)
Self-authenticating documents
- domestic public documents bearing a seal and similar foreign public documents
- official publications
- certified copies of public records
- newspapers and periodicals
- trade inscriptions and labels
- notarized documents
- commercial paper and related documents
- business records, electronically generated records, and data copied from electronic device
BER applicability
Best evidence rule only applies where the writing is a legally operative or dispositive instrument or where the knowledge of a witness concerning a fact results from having read it in the writing
Attorney client privilege
applies to confidential communications between attorney and client (or representatives of either), made during professional legal consultation, unless privilege is waived or an exception is applicable
Spousal immunity
A spouse (married at time of trial) cannot be called to testify as witness of prosecution against defendant spouse in a criminal case. the privilege can only be claimed during the marriage and thetestifying spouse holds the privilege.
Confidential marital communications
Confidential communications made during a marriage are privileged and inadmissible if they were made during the marriage. The privilege survive the marriage and may be invoked by either spouse.
Authenticating oral statements
Oral statements must be authenticated in cases where the identity of the speaker must be shown to make the statement relevant.
May be authenticated by:
- listener recognizes the speaker’s voice
- the speaker has knowledge of facts that only they would have, or
- the speaker has identified themself
Best evidence rule
Under the BER, when seeking to prove the terms of a writing in a case where the terms are material, the original must be produced. The FRE permit use of duplicates so long as no genuine question of authenticity is raised
Impeachment - prior inconsistent statement
For the purposes of impeaching a witness’ credibility, a party may show that the witness has, on another occasion, made statements inconsistent with their present testimony Extrinsic evidence is only admissible if at some point, the witness is given an opportunity to explain or deny the alleged inconsistency.
