Evidence Flashcards
Logical Relevance, FRE 401
Evidence is relevant if it has a 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.
Legal Relevance, FRE 403 (Exclusion of Logically Relevant Evidence)
Relevant evidence may be excluded if its probative value is substantially outweighed by the
danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time,
or needlessly presenting cumulative evidence.
Character Evidence—Civil Case
In a civil case, character evidence is not admissible to prove that a person acted in accordance with that character or trait on a particular occasion.
However, character evidence (reputation, opinion, and specific acts) is admissible when character is an essential element of a claim or defense, such as: defamation, negligent hiring or entrustment, and child custody.
Character Evidence—Criminal Case - Defendants Character
Defendant’s Character
A defendant may introduce evidence of his own good character (reputation or opinion) to show that it is inconsistent with the crime charged.
Note 2: Reputation evidence refers to the defendant’s reputation in the community at large, not just his friends. Opinion evidence refers to the testifying witness’s personal opinion of the defendant, not the opinions of others.
Character Evidence Criminal-Defendant’s “opens the door” effect
If the defendant “opens the door”, the prosecution may:
• Call a witness to rebut and attack the defendant’s claims of good character with reputation or opinion based evidence, or
• Cross-examine the defendant’s character witness and ask about the defendant’s reputation, opinion, or specific bad acts by the defendant
Note 3: The prosecution can only “ask” about specific bad acts, it cannot enter
extrinsic evidence.
Criminal Character Evidence - Victim’s Character
A defendant may introduce reputation or opinion evidence of the victim’s character trait if it is relevant to the defense asserted (for example, if the defendant is charged with assault and battery and claims self-defense, he can introduce evidence that the victim has a violent character).
Criminal Character Evidence - Victim’s Character - If defendant “opens the door” effect
If the defendant “opens the door,” the prosecution may:
• Introduce rebuttal (reputation or opinion) evidence of the victim’s character trait, or
• Attack the defendant’s character regarding the same trait that the defendant attacked of the victim
Exam Tip 2: If the facts involve a criminal case, read carefully to see if the defendant has “opened the door” by presenting evidence about his character or the victim’s character, which would then allow the prosecution to rebut this with evidence attacking defendant or rehabilitating victim.
Character Evidence : Specific Bad Acts, FRE 404(b) (MIMIC)
Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the
character.
However, evidence of prior bad acts may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. This is sometimes referred to as the MIMIC rule, which refers to Motive, Intent, absence of Mistake, Identity, or Common plan. Modus operandi can be used as identity evidence.
Exam Tip 3: If a specific bad act is introduced as evidence, consider arguments for any non-character uses of the evidence.
Habit Evidence, FRE 406
Evidence of a person’s habit or an organization’s routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. The court may admit this evidence regardless of whether it is corroborated or
whether there was an eyewitness.
Character Evidence : Sex-Offense Cases, FRE 412, and exception
In civil or criminal cases involving alleged sexual misconduct, evidence of the victim’s sexual conduct or predisposition is generally barred.
Exception: In a civil case, the court may admit evidence offered to prove a victim’s sexual behavior or sexual predisposition if its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party.
Witness Competence, FRE 601, what must a non-expert witness have
A non-expert witness must have personal knowledge of a matter in order to testify about it
Witness lay Opinion, FRE 701, when are they allowed
A lay opinion is admissible if it is rationally based on the witness’s perception, helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and not based on scientific, technical, or other specialized knowledge.
Exam Tip 4: Lay witnesses are qualified to give testimony about the speed of a vehicle—this has been tested on past essay exams.
Expert Testimony, FRE 703, what must the subject matter cover, what must they be qualified about, etc
o The subject matter of expert testimony must be scientific, technical or some other specialized knowledge that will help a trier of fact understand evidence or determine a fact at issue that focuses on the relevance of testimony.
o A witness must be qualified as an expert by knowledge, skill, experience, training or education.
o The testimony must be based on sufficient facts or data and the product of reliable principles and methods.
o Finally, the witness must apply these principles and methods reliably to facts of the case.
Present Recollection Refreshed, FRE 612, and admissibility of it as evidence
A witness may examine any item to refresh his present recollection, and his testimony must be based on his refreshed recollection (he may not read from the refreshing document itself).
The item itself is not entered into evidence unless the adverse party introduces it into evidence.
Note 4: When the item used to refresh a witness’s recollection is a document, the adverse party is entitled to have the document produced, to inspect the document, to cross-examine the witness about it, and to introduce any relevant portion of the document into evidence.
Past Recollection Recorded, FRE 803
A memorandum or record about a matter the witness once had knowledge of but now has insufficient recollection of to testify that was made or adopted by the witness when it was fresh in the witness’s memory and is accurate may be read into evidence under the recorded recollection hearsay exception.
Note 5: The memo or record itself may be admitted into evidence if the adverse party introduces it into evidence.
Impeachment: Opinion/Reputation
Opinion/reputation testimony from another witness, FRE 608
Note 6: Evidence of truthful character is admissible only after the witness’s character for truthfulness has been attacked.
Impeachment: Specific instances of conduct, FRE 608
Generally (see below for Criminal Conviction exception), extrinsic (outside) evidence is not admissible to show specific instances of witness’s conduct relating to truthfulness.
However, on cross-examination, a witness can be asked about specific instances of his conduct to attack or support the witness’s credibility.
Exception to specific instances of conduct rule: Criminal convictions, FRE 609
Extrinsic evidence of a criminal conviction for crimes involving dishonesty/false statements (e.g., perjury or fraud) must be admitted.
Extrinsic evidence of a criminal conviction for a crime not involving dishonesty/false statement (e.g., assault) if the crime was punishable by death or imprisonment for more than one year (a felony):
• If the conviction is being used in a civil or criminal case against a witness who is not a defendant, the evidence is admissible subject to a Rule 403 analysis (i.e., is the
probative value substantially outweighed by the danger of unfair prejudice or other factors) to determine admissibility.
• If the conviction is being used in a criminal case against a witness who is the defendant, the evidence will be admissible only if the probative value outweighs the
prejudicial effect to the defendant.
10-year rule: If more than 10 years has passed since the conviction or release (whichever is later), the evidence of the conviction will only be admissible if the probative value substantially outweighs the prejudicial effect and the proponent gives reasonable notice of the intent to use it.
Impeachment: Prior inconsistent statements, FRE 613
A witness’s prior statement that is inconsistent with the witness’s current testimony is admissible to impeach the witness.
Extrinsic evidence of the prior statement can be admissible for purposes of impeachment.
Impeachment :Bias or interest
Extrinsic evidence is admissible to show that the witness is biased and may not be testifying truthfully is admissible.
Impeachment: Sensory competence
Extrinsic evidence showing that a witness is physically or mentally impaired and is therefore not a credible witness is admissible.
o Impeachment of a hearsay declarant, FRE 806
If a hearsay statement is admitted into evidence, the declarant who made the original statement can be impeached as if the declarants/he was a testifying witness.
Impeachment: Rehabilitation of a witness
If a witness is impeached, the witness may be rehabilitated by the introduction of rebuttal evidence, including:
- Explanation or clarification during redirect examination;
- Reputation or opinion evidence about the witness’s character for truthfulness; or
- A prior consistent statement.
Tangible Evidence: Authentication, FRE 901–02
All tangible evidence must be authenticated. To authenticate an item, the proponent must produce sufficient evidence to support a finding that the thing is what its proponent claims it is.
Exam Tip 6: Look for facts indicating that the authenticity of the evidence could be in question, for example handwriting or the sound of a person’s voice may be in dispute. A lay person can testify about the authenticity of handwriting and a person’s voice if they have prior knowledge.
Best Evidence Rule, FRE 1001–08
The best evidence rule requires that the original document or a reliable duplicate be produced in order to prove the contents of a writing, recording, or photograph, including electronic documents, X-rays, and videos. This rule applies only when the contents of the document are at issue or a witness is relying on the contents of the document when testifying.
Privileges: Spousal Testimonial Privilege
The testifying spouse can assert the privilege and refuse to testify against another spouse; it only applies if there is a valid marriage in existence.
Confidential Marital Communications
Both spouses can assert the privilege and prevent the other spouse from testifying about confidential communications made during the marriage. This privilege continues even if the marriage has ended (marriage ends upon divorce).
Note 7: If a spouse breaks confidentiality and discloses information to a third party, the spouse may not be able to assert this privilege.
Subsequent Remedial Measures, FRE 407
Evidence of subsequent remedial measures taken by the defendant that would have made an earlier injury or harm less likely to occur are admissible for purposes such as
impeachment or to show ownership or control, but not to show negligence.
Settlement Offers and Statements Made During Negotiations, FRE 408
Settlement offers and statements made during settlement negotiations are excluded. The settlement offer must be made in response to a disputed claim. If there is no disputed claim and a settlement offer is made, it is not barred.
Offers to Pay Medical Expenses, FRE 409
Offers to pay medical expenses are inadmissible to prove liability.
Evidence of Liability Insurance, FRE 411
Evidence of liability insurance is not admissible to show liability, but is admissible to prove agency, ownership, control, or the witness’s bias or prejudice.
Hearsay, FRE 801(c)
Hearsay is an out-of-court statement that is offered to prove the truth of the matter asserted. If offered to prove something other than the truth of the matter asserted, then the statement is not hearsay.
Hearsay: Assertive Conduct
Assertive conduct is treated as a statement and is subject to the hearsay rules. Assertive conduct such as gesturing (e.g., nodding one’s head to indicate “yes”) or pointing a finger in a direction to indicate a direction of travel (e.g., right, left, or forward) will be treated as a statement. Laughing or crying may or may not be assertive conduct, depending on the circumstances.
Non-Hearsay Use for other than truth of matter being asserted
If a statement is used to show something other than the truth of the matter asserted, it will not be hearsay. For example, a statement can be used to show the effect on the listener or reader, or as circumstantial evidence of the declarant’s state of mind.
Exam Tip 8: An example of a non-hearsay use of evidence is a mechanic telling a defendant that his car’s brakes are bad. The non-hearsay use of this statement is to show the effect on the listener—it has the effect of putting the listener-defendant on notice that he has bad brakes.
Exam Tip 9: Before discussing hearsay exceptions, look for any non-hearsay uses of the evidence and discuss them. Then, even if you find a non-hearsay use for the evidence, proceed to discuss the hearsay exceptions that might
apply.
Double Hearsay, FRE 805
Hearsay within hearsay is not excluded by the rule against hearsay if each part of the combined
statements conforms with an exception to the rule.
Exam Tip 10:Read the facts carefully and look for items of evidence that
contain two layers of hearsay. For example, a written police report containing a
statement made by a witness to a car crash would present two levels of
hearsay. The written police report is hearsay and contained within it is the
statement made by the witness, which is also hearsay. In order to admit the
report and the statement within it, both levels of hearsay must be admissible.
the Non-Hearsay Exceptions to consider, FRE 801(d)
a. Prior statements
Prior inconsistent statements
Prior consistent statements
Prior statements of identification
b. Opposing party’s statement
Party opponent—anything the party opponent says is admissible, it does not have to be against her interest
Adoptive admission
Vicarious statements—look for statements made by an employee that can be attributed to an employer
Hearsay Exceptions - Declarant MUST be unavailable, just the list
1) Former testimony
2) Dying declaration
3) Statement against interest—not the same as an opposing party’s statement! This applies to any declarant who is unavailable to testify that makes a statement against her
(criminal or civil) interest
4) Statement of personal or family history
5) Statement against party that caused declarant’s unavailability
Declarant’s availability as a witness immaterial, FRE 803, just list
1) Present sense impression
2) Excited utterance
3) Statement of mental, emotional, or physical condition
4) Statement made for medical diagnosis/treatment
5) Recorded recollection (witness no longer able to testify)
6) Business records
7) Public records
8) Learned treatises
9) Judgment of previous conviction
