Evidence Flashcards
Relevance
First hurdle, irrelevant evidence never admissible
What is:
Tends to make existence of any fact of consequence to the determination of the action more or less probable than without the evidence
(i) Must be offered to prove a fact of consequence
(ii) Evidence makes that fact of consequence more or less probable
Probative Value
The degree to which evidence affects a fact of consequence
Rule 403: Court’s Discretion
Judge has discretion to exclude evidence if probative value substantially outweighed by its prejudicial effects.
Some examples:
Unfair prejudice
Confusion of issues
Misleading jury
Waste of time
Undue delay
Cumulative/Repetitive
Unfair Prejudice
Evidence has the potential to move the jury on some improper basis
Types of unfair evidence:
Emotion: Where evidence can move the jury to base the case on emotional considerations (anger, etc)
Or, Jury moved to be prejudiced against someone as he’s a bad person
Evidence admissible on limited basis
Jury may use limited evidence for other purpose, unfair.
Similar Occurrences Evidence
Relevance based on parties or events in case usually, but
Sometimes evidence based on other events and other people and what is at issue
Similar Occurrences Evidence: Evidence of similar accidents or injuries
May be admissible to prove:
Existence of a dangerous condition
Causation
Notice to defendant
Similar Occurrences Evidence: Evidence that a Plaintiff had prior accidents or lawsuits
Generally inadmissible if irrelevant to case in question
Exceptions where admissible:
Pre-existing conditions
Suffered injury to same part of the body, therefore D not responsible
Pattern of false claims
Many groundless claims in the past
Similar Occurrences Evidence: Intent
Similar occurrences may be admissible to show D’s intent in current case
Similar Occurrences Evidence: Rebut Claim of Impossibility
Show feaseability
Similar Occurrences Evidence: Comparable Sales to Establish Value of Property
Similar property in same area at similar time
Similar Occurrences Evidence: Habit Evidence
Admissible as circumstantial evidence that person acted in accordance with habit on occasional issue
Habit: regular response to set of circumstances
Specific conduct, specific situation, and repeated (not judging action)
Not character evidence
Similar Occurrences Evidence: Routine Practice
Business or organization routine practice
Similar Occurrences Evidence: Industrial Custom
Evidence as to how others in the same trade or industry have acted in the past
Public Policy Exclusions: Evidence of Liability Insurance
Not admissible to prove negligence/wrongful conduct
Exceptions:
Relevant for other than wrongful conduct.
Ownership or control
Impeach a witness
Part of an admission of liability
Bias
Public Policy Exclusions: Subsequent Remedial Measures
Inadmissible to prove negligence, culpable conduct, defect, or need for warning or instruction.
Exceptions:
Relevant for other than wrongful conduct
Ownership or control
Feasibility
Destroyed Evidence
Public Policy Exclusions: Civil Settlements and Settlement Negotiations
Settlements, offers, and conduct or statements in negotiations inadmissible to:
Prove validity or amount of claim
Impeach by prior inconsistent statement or contradiction
Disputed claim required:
Evidence excluded only if:
Claim/threat of claim
Disputed as to validity or amount
Public Policy Exclusions: Plea Discussions
Inadmissible:
Offers to plead guilty
Withdrawn guilty pleas
Actual nolo contendere (no contest) pleas
Statements in plea discussions
Public Policy Exclusions: Payments of and Offers to Pay Medical Expenses
Inadmissible to prove liability
But accompanying admissions of fact are admissible
Character Evidence Purposes
Usually inadmissible
Purposes:
To prove character when directly at issue (rare)
Prove how person probably acted (conduct in conformity/propensity evidence)
Impeachment
Character Evidence Methods
Specific acts
Opinion testimony
Reputation testimony
Character Evidence in Civil Cases
Generally not admissible to prove conduct in conformity
Exception for civil sexual assault or child molestation cases
Admissible When Directly at Issue
Rare and limited to:
Defamation
Negligent entrustment or hiring
Child custody disputes
Character Evidence in Criminal Cases
When trial begins, prosecutor cannot “open the door” to allow character evidence for D or victim
Limited exception for sexual assault and child molestation cases
Criminal Cases
When trial begins, prosecutor cannot “open the door” to allow character evidence for D or victim
Limited exception for sexual assault and child molestation cases
Character Evidence Presented by Defendant
D can prove own character for pertinent trait by reputation and/or opinion testimony
BUT NO specific acts
Character Evidence Presented by Defendant: Prosecution’s Rebuttal Options
Offering evidence of D’s bad character
Cross-examine D’s character witnesses and ask about specific instances
Attack basis for direct examination testimony:
“Have you heard, that”; “Did you know, that”
Only admissible to impeach character witness, not to show conduct in the case
Once asked about, can’t bring more witnesses or evidence to “prove” specific instance
Once the door is opened, it stays open.
Character Evidence for Victim’s Character
D can offer reputation and/or opinion testimony concerning victim’s character for a relevant trait
Opens door for both victim and Defendant
Opens door for Prosecution to rebut with:
Victim’s good character for the same trait,
Defendant’s bad character for same trait
Consider specific acts could be brought in for D’s state of mind or other non-character reasons
Special Rule: When Prosecution Can Initiate Character Evidence
Any evidence admitted that victim was first aggressor in homicide case where D claims self-defense opens the door to evidence of victim’s good character for peacefulness
Character Evidence: Sexual Assault Exception
Victim’s past behavior is generally inadmissible, no sexual behavior or disposition. Rape shield law.
Exceptions in criminal cases:
Instances with third person to prove source of injury or physical evidence
Instances with D to prove consent
Exceptions in civil cases:
Probative value substantially outweighs harm
Victim places own reputation in controversy in the case (ie. victim testifies to reputation for chastity)
Exception to all Character Evidence rules
Person’s other misconduct generally inadmissible if offered solely to prove conduct in conformity
But may be admissible if provided for a non character purpose.
Common Non-Character Purposes:
Motive
Intent
Mistake (absence of)
Identity
Common Plan or Scheme
Character Evidence: Exception for D’s Similar Misconduct in Sex Crime Cases
D’s other similar acts are admissible in any criminal or civil case involving alleged sexual assault or child molestation
Witness Competency
Personal knowledge
Oath or affirmation to testify truthfully
Witness Competency: Appropriate objections
Lacks personal knowledge
Hearsay
Witness Competency: Special categories of witnesses
Children: case by case basis
Mental illness: Competent if witness understands obligation
Judge and jurors: incompetent to testify
Witness Competency: Jurors
Inquiry into past verdict or indictment
Juror incompetent to testify about deliberations or matters affecting vote except for:
Extraneous prejudicial information
Outside influence
Mistake in verdict form
Another juror’s clear statement that they relied on racial stereotypes or animus
Form of Questioning for Direct Examination
Leading questions in direct examination usually not allowed
Except:
Preliminary or introductory matters
Witness needs help responding
Witness is hostile, adverse party, or affiliated with adverse party
General scope of cross examination
Asking questions within scope of direct examination
Matters that test witness’s credibility (impeachment)
Can move to direct, but must stop leading
Limits on the form of a question
Calls for a narrative (open-ended, tell us what happened)
Non-responsive answer
Assumes facts not in evidence (when did you stop beating your wife)
Argumentative
Witness Uses a Document to Assist While Testifying
A witness cannot read from documents to the jury, hearsay
Refreshing recollection
Witness may use any writing or object to refresh memory
So long as witness is not reading document and actually recollecting
Doesn’t have to be a document
Whenever a witness has used a writing to refresh their memory while on the stand, an adverse party is entitled to:
Have the writing produced at trial;
Cross-examine the witness about the writing; and
Introduce portions of the writing relating to the witness’s testimony into evidence
If the witness refreshes their memory before taking the stand,
an adverse party is entitled to the above options only if the court decides that justice requires it.
Past Recollection Recorded—Recorded Recollection
Where witness cannot remember, even after refreshing, then only option is to try and submit the record.
To do so without being hearsay, must use this exception.
Elements that have to be established:
Witness has insufficient recollection
Witness had personal knowledge
Record made by witness, made under witness’s direction, or adopted by witness (agreed it was correct)
Record was made when matters were fresh in witness’s mind
Limits on Opinion Testimony: Lay Witnesses
Generally, witnesses are not to state opinions.
Exceptions:
Rationally based on witness’s perception
Helpful, and
Not based on specialized knowledge
An opinion of a lay witness is generally admissible with respect to:
The general appearance or condition of a person;
The state of emotion of a person;
Matters involving sense recognition;
Voice or handwriting identification;
The speed of a moving object;
The value of the witness’s own services or property;
The rational or irrational nature of another’s conduct; and
A person’s intoxication
Situations Where Opinions of Lay Witnesses Are Not Admissible
whether they (or someone else) acted as an agent or
whether a contract was made,
as these are legal conclusions that require specialized knowledge.
The lay witness may testify only as to the surrounding facts
Limits on Opinion Testimony: Experts Generally
General requirements:
Expert is qualified
—-Specialized knowledge, skills, or training
—-Area of expertise must match testimony subject
Expert is reasonably certain
—-No guess or speculation
Helpful
—-Need the knowledge for decision
Based on sufficient facts or data
—-Facts based on expert’s own observations
—-Facts made known to expert at trial (hypothetical q)
——–But cannot misrepresent the hypothetical on facts in the case
—-Facts of a type reasonably relied upon by other experts in field
Based on reliable principles and methods
Reliably applied
Expert Reliability (Daubert)
Reliability Determined by Court
Daubert factors:
Testing
Peer Review and publication
Error Rate
Standards controlling operation
General acceptance by other experts
Learned Treatise Hearsay Exception
Established as reliable authority
Called to expert’s attention on cross or relied upon on direct
Excerpt read into evidence (not received as exhibit)
Expert Opinion on Ultimate Issues
Permitted except for testimony concerning defendant’s mental state in criminal case
Credibility and Impeachment: Bolstering
Bolstering witness’s testimony generally prohibited
Except: Impeachment needs to come before credibility can be asserted
Forms of Impeachment
Examination of witness
Extrinsic evidence (other witness or documents)
Note:
Is extrinsic evidence allowed under this impeachment method?
Any foundation requirements?
Impeachment Methods
Facts specific to case:
Prior Inconsistent Statements
Bias
Sensory deficiencies
Contradiction
General bad character for untruthfulness:
Opinion or reputation evidence of untruthfulness
Prior convictions
Prior bad acts involving untruthfulness
Impeachment Methods: Prior Inconsistent Statements
May be done on examination of witness or with extrinsic evidence
Extrinsic evidence must be relevant and foundation required
Note: just impeachment, careful for truth of the matter asserted
Also, admissible as substantive evidence if made under oath at a prior proceeding
