EVIDENCE Flashcards
LOGICAL RELEVANCE
Evidence is relevant if it tends to make the existence of any fact of consequence more or less probable than it would be without the evidence
> Irrelevant evidence is inadmissible
> Relevant evidence may be admissible
> *Note - logical relevance is not equal to probative value (i.e., evidence can have high relevance but low probative value)
Limitations on relevance
> Discretionary exclusion - courts can exclude relevant by its danger of unfair prejudice or confusion
> Public policy exclusions - evidence of liability insurance, subsequent remedial measures, settlement offers, guilty pleas withdrawn, and offers to pay medical expenses may be excluded despite its relevance
DISCRETIONARY EXCLUSION OF RELEVANT EVIDENCE
A court may exclude logically relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, undue delay, or waste of time
> This often arises with evidence that is:
—> Emotionally disturbing
—> Repetitive or confusing
—-> Admissible for one purpose but inadmissible for another (court excludes to avoid the risk of the jury using evidence for the improper purpose)
>
- Note - unfair surprise to a party or witness is not a valid ground for excluding relevant evidence
> Balancing test - for courts to exclude, probative value must be substantially outweighed by the danger of unfair prejudice
—> * Note - memorize this standard; wrong MBE answer choices may use similar, but incorrect language
> Exceptions -impeachments evidence based on convictions for crimes involving false statements is not subject to discretionary exclusion
EXCLUSION OF RELEVANT EVIDENCE ON PUBLIC POLICY GROUNDS
Liability insurance - evidence of liability insurance is not admissible to prove fault or a party’s ability to pay damages
> Evidence of insurance is admissible to prove anything else (i.e., ownership, control, etc.)
Subsequent remedial measures -evidence of repairs or other remedial measures taken after an injury is inadmissible to prove fault, defect, or inadequate warning
> Remedial measures evidence is admissible to rebut a defense that there was no feasible precaution
Settlements, offers to settle & plea bargaining
> Civil Cases - compromises, offers to settle, or related statements are inadmissible to prove liability or fault
—> Does not include statements made before the claim or threat of litigation was asserted
> Criminal cases - pleas, offers to plea, and related statements are inadmissible to prove guilt
Payments of offers to pay medical expenses - inadmissible when offered to prove liability for injuries
> Related statements are admissible (distinguish this from settlement offers)
> An offer to pay medical expenses in exchange for releasing liability is inadmissible - it is considered a settlement offer, not an offer to pay medical expenses.
SIMILAR OCCURRENCES & HABIT
Similar occurrences - evidence of similar events occurring outside of the present litigation is usually inadmissible, but can be relevant if used for non-propensity purposes
> Similar occurrences may be admissible to prove:
(1) Causation
(2) Prior accidents demonstrating:
(a) A pattern of fraudulent claims
(b) Pre-existing conditions
(3) Intent or absence of mistake
(4) To rebut a defense of impossibility
(5) Value (e.g., similar transactions can establish value)
(6) Industry custom (to prove standard of care)
Habit - a person’s habit may be relevant and admissible to show that the person acted in conformity with that habit on a given occasion
> Conduct must be particular and frequently repeated (i.e., a person’s regular response to a specific set of circumstances)
> Look for regular, instinctive, habitual conduct
> E.g., evidence that a person habitually goes down a particular stairwell two steps at a time could be admissible as circumstantial evidence that she did so at the time in question.
HEARSAY
Hearsay (out-of-court statements that are offered to prove the truth of the matter asserted) is generally inadmissible, subject to exceptions
> Statements - an oral or written assertion, or nonverbal conduct intended as an assertion
—> Non-human assertions are not statements (e.g., test results, radar gun reading, dog barking)
Exemptions vs Exceptions - federal rules create both exceptions and exemptions to the hearsay ban:
> Exemptions - deemed “non-hearsay” and thus are admitted
> Exceptions - deemed hearsay, but are still admitted
> *Note - distinguish between answer choices that turn on this distinction, such as “hearsay but admissible” or “not hearsay and admissible”
—> Beyond this distinction, there are no practical differences between hearsay exceptions and exemptions; they should be treated as the same
> **Note - Witnesses’ own previous out-of-court statement can be hearsay; thus an answer that a statement is “not hearsay because it is witness’s own statement” is incorrect
VALID NON-HEARSAY USES OF OUT-OF-COURT STATEMENTS
Out-of-court statements are not hearsay if offered to prove anything other than the truth of the matter they assert
Common non-hearsay uses of out-of-court statements:
(1) Statements of independent legal significance
—> Statements containing legally operative words, such that the statements itself is a legal factor in the case
> Common with defamation, contract, and adverse possession cases
> E.g., in a contract dispute, A testifies that B told him it was a “done deal”
(2) Statements offered to show their effect on the listener
—> E.g., comparative negligence claim - statements by third party warning P of the injury-causing condition
(3) Statements offered to show the speaker’s knowledge
—> E.g., D charged with conspiracy, claims he did not know about the crime; an out-of-court statement indicating D has been told about specifics of the crime will be admissible, indicating he knew it was being planned
(4) Statements offered to show state of mind
—> E.g., a statement by D before committing a crime indicating he might have been insane
HEARSAY EXEMPTIONS
There are four exemptions to the ban on hearsay
(1) Admissions - out-of-court statements by a party are admissible if offered against that party
—> Judicial Admissions - made in pleading or testimony
—> Adoptive Admissions - acquiescence in another’s statement
> Silence can be an admission if:
(1) The party heard, understood, and was capable of responding to a statement, and
(2) A reasonable person in the party’s position would have responded
—> Vicarious admissions - made by agent or employee
—> Co-conspirator admissions - co-conspirator’s statements are admissible against the defendant if made in furtherance of the conspiracy
(2) Prior inconsistent statements given under oath
(3) Prior consistent statement - if offered to rebut a charge of fabrication, improper bias, or improper motive
(4) Prior statement of identification after perception
—> E.g., “The red Honda just hit me and fled the scene!”
COMPLETE LIST OF HEARSAY EXCEPTIONS
Exceptions - declarant unavailability is required
(1) Former testimony exception
(2) Statements against interest
(3) Dying Declarations
(4) Statements of personal or family history
(5) Statements offered against party procuring declarant’s unavailability
Exceptions - declarant unavailability is immaterial
(1) Present state of mind
(2) Excited utterances
(3) Present Sense Impressions
(4) Physical condition (for medical diagnosis or treatment)
(5) Past recollection recorded
(6) Business records
(7) Public records or reports
(8) Judgments and prior convictions
(9) Ancient documents
(10) Documents affecting property interests
(11) Learned treatises
(12) Family records
(13) Market reports
EXCEPTIONS REQUIRING DECLARANT UNAVAILABILITY
The declarant must be unavailable for these exceptions to apply
(1) Former testimony
(2) Statements against interest
(3) Dying declarations
(4) Statements of personal or family history
(5) Statements offered against the party procuring the declarant’s unavailability
Unavailability
> “Unavailability” refers to the declarant’s testimony
—> E.g., a declarant can be in court, but her testimony is “unavailable” because she asserts a valid privilege
> A declarant is unavailable if:
(a) Privilege - exempt from testifying due to a privilege
(b) Death or physical/mental sickness
(c) Refusal to testify despite a court order
(d) Lack of memory
(e) Absent - beyond reach of court’s subpoena power
FORMER TESTIMONY
Testimony given by a person in an earlier proceeding or deposition may be admissible
Requirements:
(1) Declarant is currently unavailable
(2) Declarant’s prior testimony was given under oath
(3) The party against whom testimony is now offered was either:
(a) A party in the previous action and had an opportunity to cross-examine the declarant
—> The motive for cross-examining the declarant in the former hearing must be similar to the current motive
(b) A predecessor in interest of a party in the previous action, in which there was an opportunity to cross-examine the declarant and a similar motive for doing so
—> Applicable in civil actions only
—> Predecessor in interest is one who has a close privity type relationship with the party in the earlier proceeding
** Note - the MBE tests this exception; remember that it only applies if the declarant is currently unavailable and the prior testimony was under oath
STATEMENTS AGAINST INTEREST
A hearsay statement is admissible if, at the time it was made, it was against the pecuniary or legal interest of the declarant
Requirements:
(1) Declarant is currently unavailable
(2) The statement was contrary to the declarant’s pecuniary, proprietary, or penal interest when made
(3) A reasonable person would not have made the statement unless he believed it to be true
> Criminal cases only - must be corroborating circumstances indicating the trustworthiness of the statement
Distinguish from party-opponent admissions
> A party-opponent admission is a statement of a party or a vicarious statement attributable to that party
—> No requirement that the statement is against the declarant’s interest
> A statement against interests is any statement against the declarant; ‘s interest at the time it was made
—> No requirement that the declarant is a party in the proceeding.
DYING DECLARATIONS
A hearsay statement is admissible in civil cases or homicide cases if the declarant made the statement under the belief of impending death and the statement describes the cause or circumstances of the impending death
Requirements:
(1) Declarant is currently unavailable
(2) The out-of-court statement was made under the belief of impending death
(3) The statement was made regarding the cause or circumstances surrounding the belief of impending death
> Death of declarant is not required
—> Declarant must only have believed that he was dying when the statement was made
Only available in:
> Civil cases
> Homicide cases
PRESENT SENSE IMPRESSIONS & EXCITED UTTERANCE
Present sense impression
> A hearsay statement is admissible if it:
(1) Describes or explains an event or condition, and
(2) Is made contemporaneously with the event or immediately thereafter
> Timing is key - the statement must be made while, or immediately after, the declarant perceives the condition or event described in the statement
Excited utterance
> A hearsay statement is admissible if it:
(1) Relates to a startling or exciting event or condition, and
(2) Was made while the declarant was under the stress or excitement of the event
> Declarant’s emotional state is key - the declarant must be under such excitement or stress that one would not normally have an opportunity to fabricate the statement.
STATEMENTS CONCERNING DECLARANT’S THEN-EXISTING STATE OF MIND OR PHYSICAL CONDITION
Hearsay statements are admissible if they concern a declarant’s state of mind, emotion, sensation, or physical condition existing at the time the statement was made
Statement of then-existing state of mind - usually offered to show a declarant’s intent at the time the statement was made or as circumstantial evidence that an event was carried out
Statement of then-existing condition - usually offered to establish some physical condition, symptom, or sensation that declarant experienced at the time of the statement
Items to note:
> Statements must concern a then-existing condition or mental state
> Statements of memory or belief are inadmissible because they do not reflect on a then-existing condition
> Statements of intent may be admissible as circumstantial evidence that an act was committed at a later time
STATEMENTS OF PHYSICAL CONDITION FOR DIAGNOSIS OR TREATMENT
Hearsay statements made to medical personnel for the purpose of diagnosis or treatment may be admissible
Requirements:
(1) A statement must be made to medical personnel
—> Medical personnel: anyone involved in the treatment in treatment or diagnosis; not necessarily a doctor
(2) The statement must be pertinent to assisting in the diagnosis or treatment of a condition
—> Related statements about an injury-causing event are usually inadmissible
> E.g., statements by the declarant to an emergency room doctor that she was shot will be admissible, but the identity of the shooter will not, as it is not pertinent to treatment
> Includes statements of past conditions if the statement is made for the purpose of diagnosis or treatment
