Evidence Flashcards
Relevancy
Evidence is relevant if it has any tendency to make the existence of any fact of consequence to the determination of the action more probable or less probable than it would be without the evidence
Hearsay
Generally, hearsay is an out-of-court statement offered to prove the truth of the matter asserted and is not admissible unless it falls within an exception to the hearsay rule
Rule statement: Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. If a statement is hearsay, and no exception applies, the evidence must be excluded upon appropriate objection to its admission
Hearsay within Hearsay (Multiple Hearsay)
Hearsay within hearsay is an out-of-court statement that incorporates other hearsay, and is admissible only if both the outer hearsay statement and the inner hearsay statement fall within an exception to the hearsay rule.
Business Records Exception
A record is admissible under the business records exception to the hearsay rule if it was:
(1) made in the regular course of the business;
(2) the regular practice of the business to make the record;
(3) made at or near the time of the event; and
(4) made by a person who had a duty to make the record and who had personal knowledge of the event (or who obtained the information from another person at the business with personal knowledge and a duty to report)
The record also myst be authenticated through the testimony or written certification of a records custodian or other qualified witness.
Spousal Immunity
When the privilege of spousal immunity is invoked, a married person whose spouse is a defendant in a criminal case may not be called as a witness by the prosecution. Moreover, a married person may not be compelled to testify against the legal interests of their spouse in any criminal proceeding, regardless of whether the spouse is the defendant. There must be a valid marriage for the privilege to apply, and the privilege lasts only during the marriage (even if the events at issue took place before the marriage)
*The privilege belongs to the witness spouse
Privilege for Confidential Marriage Communications
In any civil or criminal case, confidential communications between spouses during a valid marriage are privileged. Either spouse can refuse to disclose the communication or prevent any other person from doing so. For this privilege to apply, the marital relationship must exist when the communication is made. Divorce will not terminate the privilege, but communications after divorce are not privileged.
Private communications between spouses are generally presumed to be confidential, but this is not always the case. The communication must be made in reliance upon the intimacy of the marital relationship, and the privilege survives the marriage. Threats or abusive language are not privileged. Furthermore, communications made in the known presence of a third party are not privileged (though statements may still be confidential and privileged if made in the presence of young children living in the home).
Impeachment of Hearsay Declarant
Generally, when a hearsay statement is admitted into evidence, the party against whom the statement is offered has the opportunity to impeach the credibility of the declarant by evidence that would be admissible if the declarant had testified as a witness.
Liability Insurance
Evidence that a person was or was not insured against LIABILITY is not admissible to prove whether the person acted negligently or otherwise wrongfully. But the court may admit this evidence for another purpose, such as proving a witness’s bias or prejudice or proving agency, ownership, or control.
*Policy behind rule is that we do not want to discourage people from buying insurance
*This rule only excludes evidence of LIABILITY insurance - not other types of insurance
- For example, Evidence of insurance coverage (particularly where it is life insurance on the life of a homicide victim) is relevant and admissible for other purposes - such as motive
Judicial Notice
Civil Case: the court must instruct the jury to accept the judicially noticed fact as conclusive (irrebutttable presumption)
Criminal Case: the jury is instructed that it may, but is not required to, accept the judicially noticed fact as conclusively proven (prosecutor’s burden of PRODUCING evidence on this point it satisfied)
*A court may take judicial notice of a relevant fact whether a party requests it or not
- if a court does not take judicial notice of a fact on its own accord, a party must formally request that notice be taken and provide the court with the necessary information. If the party does this, the court is required to take judicial notice of the fact
**A court may take judicial notice of any fact that is “not subject to reasonable” dispute because:
(1) the fact is generally known within the trial court’s jurisdiction (for example, NYC is located in NYS), or
(2) the fact can be accurately and readily determined from sources whose accuracy cannot be reasonably questioned (for example, October 10, 2017 was a Tuesday)
Summaries of Voluminous Records - Best Evidence Exception
When it would be inconvenient to examine a voluminous collection of records in court, the proponent may present their contents in the form of a chart or summary. However, the proponent must make the originals or duplicates available for inspection or copying, and the court may order the proponent to produce the records in court.
Learned Treatise Hearsay Exception
Under the learned treatise hearsay exception, a learned treatise may be substantively admissible if it is:
(1) called to the attention of the expert witness upon cross-examination or relied upon by him during direct examination; and
(2) established as reliable authority by the testimony or admission of the witness, by other expert testimony, or by judicial notice.
If the court finds a publication to be a reliable authority, then “statements” from it may be read into evidence, but the publication may not be received as an exhibit. Thus, the jury is not allowed to bring learned treatises into the jury room.
*There is a concern that if juries were allowed unrestricted access to the whole publication, they might rely on parts of the publication that are not germane to the case. The intent of the rule is that juries need to be guided through the pertinent parts of the publication by the testifying experts.
Self-Authenticating Evidence - FRE 902
Before a writing or any secondary evidence of its content may be received into evidence, the writing must be authenticated by proof showing that the writing is what the proponent claims it is. The writing usually needs a testimonial sponsor to prove that the writing was made, signed, or adopted by the particular relevant person.
Contrary to the general rule, however, there are certain writings that are said to “prove themselves” or to be “self-identifying” on their face. Under FRE 902, extrinsic evidence of authenticity is therefore not required for:
(1) printed materials purporting to be newspapers or periodicals;
(2) trade inspections, signs, tags, or labels purporting to have been affixed in the course of business and indicating ownership, control, or origin; or
(3) official publications (i.e., books, pamphlets, or other publications purporting to be issued by a public authority).
A defendant is on trial for tax evasion. The prosecutor, seeking to establish the defendant’s income by showing his expenditures, has asked the defendant’s attorney to produce records showing only how much the defendant has paid his attorney in fees.
Should the demand for the attorney’s fee records be upheld?
Yes, because it calls for relevant information not within the attorney-client privilege
*The A-C privilege applies only to confidential communications made for the purpose of facilitating legal representation of the client, and the amount the defendant paid in legal fees does not qualify as such a communication. Fee arrangements and payments are generally outside the protection of the A-C privilege
Presumptions in Criminal Cases
A presumption is a rule that requires a particular inference to be drawn from an ascertained set of facts. It is a form of substitute proof or evidentiary shortcut where proof of the presumed fact is rendered unnecessary once evidence has been introduced of the basic fact that gives rise to the presumption.
The accused in a criminal case is presumptively innocent until the prosecution proves every element of the offense beyond a reasonable doubt. Accordingly, it is clear that in criminal cases, “presumptions” cannot shift the burden of producing evidence or of persuading the fact finder to the accused. A “presumption” in a criminal case is truly nothing more than a permissible inference.
If a presumption in a criminal case is considered MANDATORY, it is subjected to much more stringent constitutional scrutiny. If the presumption shifts the burden of persuasion to the defendant, it will be normally unconstitutional if the presumed fact is AN ELEMENT OF THE CRIME. This is because such a presumption runs afoul of the constitutional principle that the prosecution must prove each element of the crime beyond a reasonable doubt. (violates Due Process)
Subsequent Remedial Measures
Under FRE 407, evidence of repairs or other precautionary measures made following an injury is inadmissible to prove negligence, culpable conduct, a defect in a product or its design, or a need for a warning or instruction. The purpose of this rule is to encourage people to make such repairs.
But the court may admit this evidence for another purpose, such as impeachment or - if disputed - proving ownership, control, or feasibility of precautionary measures
