Evidence - General Flashcards
What is the threshold for evidence to be admitted?
Relevance
What is the test for “relevance?”
Relevant =
has any tendency to make a material fact more probable or less probable than would be the case w/o the evidence
Why might relevant evidence be inadmissible?
(1) Specific Rule against it, or
(2) Probative value is substantially outweighed by one or more of the following:
i. danger of unfair prejudice
ii. danger of confusion of the issues
iii. danger of misleading the jury
iv. undue delay
v. waste of time
vi. unduly cumulative
Is the plaintiff’s accident history admissible (character evidence of that π is accident prone)?
(1) Generally no, except:
- (a) the events that caused π’s injury are at issue
- (b) ∆ wants to show that other accidents injured π
Is ∆’s history of causing accidents by the same instrumentality or condition admissible (character evidence that ∆ is careless)?
(1) Generally no, except:
- (a) other accident happened under substantially similar circumstances
(2) Evidence allowed for π to show:
- (a) existence of dangerous condition
- (b) causation of this accident
- (c) prior notice to ∆ of danger
Are prior incidents of ∆’s behavior admissible to indicate what ∆’s intent was on the occasion in question?
Yes, prior similar conduct of a person may be admissible to raise an inference of person’s intent on a later occasion
If there is a conflict surrounding a sale, are sale prices of similar transactions admissible?
Yes, the selling price of property of similar type/location/point in time may be probative of value.
Is a person’s habit generally admissible?
Yes, habit is admissible as circumstantial evidence of how a person behaved on a particular occasion.
How is habit distinguished from character for the purposes of admissibility?
(1) Character = someone’s general propensity or disposition
(2) Habit = repetitive response to particular circumstances
Is the standard method of performing a task in a given industry admissible to analyze a party’s conduct?
(1) Yes, Evidence of behavior in same trade/industry may be admitted as some evidence as to show how a party SHOULD have acted (Appropriate Standard of Care)
(2) Industry custom is NOT conclusive, however, of the reasonable standard of care
Is whether a party has liability insurance admissible?
(1) Not for purpose of assigning fault.
(2) Other, admissible, purposes:
- (a) proof of ownership/control, if disputed
- (b) impeachment of a witness
(3) Judge should give jury instruction on proper use of insurance evidence
If a party takes subsequent remedial measures, is this admissible as evidence?
(1) Inadmissible for purposes of proving:
- (a) negligence
- (b) culpable conduct
- (c) product defect
- (d) need for a warning
(2) Admissible for purposes of:
- (a) showing ownership/control of instrument/premises, if disputed by ∆
Is a party’s offer to pay (or actual payment) for hospital bills or medical expenses admissible as evidence?
(1) Inadmissible to show fault
(2) Statements of fact connected w/ offer to pay are not excluded, however.
In the event of a disputed civil claim, what statements regarding settlements are inadmissible?
(1) evidence of settlement
(2) offers to settle
(3) statements of fact made during settlement discussions
* *Statements made prior to actual dispute do not count as within settlement discussions**
What is the exception to the general rules of inadmissibility regarding settlement discussions?
(1) Civil settlement discussions in civil litigation with a regulatory agency may later be introduced in a criminal trial against same ∆ (ENRON)
What are the admissibility rules regarding statements related to criminal plea bargaining.
(1) Inadmissible:
- (a) offer to plead guilty
- (b) withdrawn guilty pleas
- (c) Plea of no contest can’t be used in later civil litigation
- (d) statements of fact made during plea bargaining
(2) Admissible:
- (a) Plea of guilty (not withdrawn) admissible in subsequent litigation based on same facts under the rule of Party Admissions
What is the definition of “character evidence”?
A person’s general propensity
Ex: honest, violent, etc.
When is evidence of ∆’s character admissible?
(1) ∆ may introduce evidence of good reputation/opinion of character (specific acts not admissible)
(2) If ∆ brings up own character, prosecution may rebut
What are the different methods that the prosecution is allowed to rebut a ∆’s character evidence?
(1) May cross-examine ∆’s character witnesses w/ “Were you aware…” questions, or
(2) May present its own character witnesses
Is character evidence regarding a witness admissible?
To impeach a witness’s credibility
What are the rules regarding the admissibility of character evidence regarding the victim’s violent character?
(1) For purpose of self-defense claim, ∆ can show V’s propensity for violence to show:
- (a) V was the aggressor, or
- (b) ∆ reacted reasonably out of fear, knowing V’s character for violence
(2) Prosecution can rebut w/ BOTH:
- (a) V’s character for peace, and
- (b) ∆’s character for violence
What is the general rule of admissibility regarding the victim’s sexual behavior?
(1) Generally inadmissible, both reputation/opinion and past specific behavior
What are the exceptions to the general prohibition on character evidence of victim’s sexual conduct?
Criminal Law:
(1) to show someone else was source of injury/semen
(2) If consent is the issue, V’s past sexual conduct with the ∆
(3) Where exclusion would violate ∆’s right to due process (think love triangle cover-ups)
Civil Law:
(1) where the probative value of the evidence substantially outweighs the danger to V or prejudice to any party
If character evidence is admissible by some valid exception, when can specific acts be used to show proof of character?
(1) Civil cases
In civil cases, when is character evidence admissible?
(1) Where character is an essential element of a claim, for example:
- (a) tort action for negligent hiring (employee’s character)
- (b) Defamation case (inherently reputation oriented)
- (c) Child custody dispute
What is the general rule on character evidence of ∆’s past criminal history?
Not allowed for the purpose of showing ∆’s character, but may be used for other purposes.
What are the most common admissible purposes of introducing ∆’s criminal history?
MIMIC - (civil or criminal case)
(1) Motive
(2) Intent
(3) Mistake, the absence thereof
(4) Identity
(5) Common scheme/plan
What is needed in order to introduce MIMIC evidence?
(1) ∆ was convicted of past crimes, or
(2) Conditional Relevancy Standard: could reasonable jury find that ∆ committed the crime?
* Upon ∆’s request, prosecution must give notice of intent to introduce MIMIC evidence*
What are the rules regarding admissibility of character evidence regarding the ∆’s sexual conduct?
In Crim/Civil Sexual Misconduct Case:
(1) ∆’s prior specific acts are admissible in Prosecution/π’s case-in-chief as evidence of THIS TYPE of sexual misconduct
Ex: prior rape, admissible in rape case
prior child molestation admissible in child molestation case
What are the general methods of document authentication? (5)
(1) Witness’s personal knowledge (saw X sign it)
(2) Proof of handwriting (3 ways)
- (a) lay person opinion (familiar w/ X’s handwriting)
- (b) expert comparison opinion
- (c) jury comparison
(3) Proof by circumstantial evidence (contents, appearance, etc.)
(4) Ancient Document Rule
(5) Solicited Reply Doctrine
What is the Ancient Document Rule?
Document Presumed Admissibly Authentic if:
(1) Document is 20+ years old
(2) document is facially free of suspicion, and
(3) document found in place of natural custody
What is the solicited reply doctrine?
Document may be authenticated by evidence that it was received IN RESPONSE to a prior communication to the alleged author
What is the standard for presuming a document is authentic?
The judge must conclude that there is some evidence from which a rational jury could find that the document is authentic.
What are self-authenticating documents? (6)
Presumed authentic; no need for foundation testimony:
(1) official publication (government produced)
(2) Certified copies of public or private records on file in public office (ex: real estate deed, mortgage)
(3) newspaper or periodical
(4) Trade inscriptions and labels
(5) Acknowledged document (cert by notary)
(6) Commercial paper (ex: promissory note)
What is the typical method of authenticating photographs?
Ask witness: “Is this a fair an accurate representation” of the people or objects portrayed.
Witness need not be the photographer—just needs personal knowledge.
What is the best evidence rule?
A party whos seeks to prove the contents of a writing must either produce the original writing or provide an acceptable excuse for its absence.
What is included in the definition of “writing” for purposes of the best evidence rule?
Beyond actual writing: sound records, film, x-rays
If an excuse for not producing the original writing is deemed acceptable, how may a party authenticate the document?
Secondary evidence:
oral testimony
copy of the writing
What does the Best Evidence Rule apply?
(1) If the writing is the operative legal document
- (a) ex: contract, mortgage, divorce, patent, deed
(2) Witness is testifying to facts she learned SOLELY from reading about them in writing
What qualifies as an “original writing” under the Best Evidence Rule?
(1) whatever the parties intended as original
(2) Any counterpart intended to have same effect (2 signed copies)
(3) Any negative of film or print from negative
(4) Computer print-out
Are “duplicates” acceptable for the purposes of the Best Evidence Rule?
Yes, so long as it would not be unfair, or there is some genuine question raised about the authenticity of the original
