Evidence Flashcards
(92 cards)
Preserving Claims of Error
Parties are required to preserve a claim of error only if it affects a substantial right. This means the party attempting to preserve must be quick to object when the evidence is introduced, or be quick to prove the evidence’s substance when the evidence is excluded. Appellate courts can also take note of plain error even if the error was not properly preserved.
Preliminary Review of Evidence
Trial judges preliminarily review evidence to decide what gets into evidence. This includes deciding whether a witness is qualified, a privilege exists, or evidence is admissible. No evidence rules apply except those on privilege. This is typically a preponderance of the evidence standard.
When relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist. This is typically a sufficiency evidence standard.
Rule of Completeness
If a party is cherry-picking evidence, then the other party can introduce the additional evidence to complete the context, like when one party only uses parts of a prepared report.
Relevance
Under the rules of evidence, all relevant evidence is admissible unless provided otherwise. Relevant evidence is material and probable. The standard for relevance is low, so relevant evidence is admissible unless provided otherwise. Relevant evidence can be excluded if its probative value is substantially outweighed by danger of unfair prejudice or co.
Relevance - Judge’s Discretion
Trial judges have broad discretion to decide relevance and can exclude relevant evidence if they believe the probative value of the evidence is substantially outweighed by unfair prejudice, confusing of the issues, misleading of the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.
Relevance - Conditional Relevance
Conditional relevance is a chain of evidence leading to an inference or conclusion (witness unable to identify defendant). The evidence’s relevance is conditional on another evidence, and this conditional fact must be sufficient (it does not have to be 100%) to support the fact does exist.
Relevance - Similar Occurrences
Similar past occurrences are generally low in relevance because it is unrelated to the current case. However, similar past occurrences may be admissible if they are (1) the plaintiff’s past accident history to show false claims or injury to same body part; (2) the defendant’s past accident history to show the defendant was on notice of the dangerous activity that caused the current injury; or (3) proving intent.
Character
Character evidence is generally inadmissible to prove the defendant acted in conformity with that character because it is unduly prejudicial. However, a criminal defendant may open the doors to character evidence if they introduce opinion or reputation testimony regarding their pertinent trait. The prosecutor can then follow up with opposing evidence regarding the defendant’s pertinent trait with opinion or reputation testimony, and/or specific instances of conduct.
Character evidence can be offered to prove something other than a person acting in accordance with that character, or to prove an element in a crime.
Character - Criminal Defendants - General
Criminal defendants may open the door to character evidence regarding their or the victim’s pertinent trait. This character evidence can consist of a witness’s reputation or opinion testimony. Once the door is open, prosecution can respond in kind. However, evidence of relevant specific conduct can only be used on cross-examination, or when the character is an essential element of a claim.
Character - Criminal Defendants - Defendant’s Good Character
If criminal defendant opens the door by bringing up their “good” character, then defendant can show their own good character for a pertinent trait with opinion or reputation testimony. The prosecutor can rebut with defendant’s bad character for pertinant trait with opinion or reputation testimony, or with specific acts of conduct (but no extrinsic evidence).
Character - Criminal Defendants - Victim’s Bad Character
If criminal defendant opens the door by bringing up victim’s “bad” character, then the defendant can show victim’s bad character for pertinent trait with opinion or reputation testimony. The prosecutor can rebut with victim’s good character for pertinent trait or defendant’s bad character for pertinent trait with opinion or reputation testimony. This is usually when the defendant is arguing self-defense.
Character - Criminal Defendants - Self Defense in Homicide
If criminal defendant opens the door by arguing self-defense against victim in a homicide case, then the defendant show victim was the first aggressor with any evidence. The prosecutor can rebut with victim’s good character for peacefulness. No character evidence of violent victim is needed here.
Character - Criminal Defendants - Specific Instances of Victim’s Promiscuity
If criminal defendant opens the door by arguing specific instances of victim’s promiscuity in a sexual assault case, then the evidence is not admissible unless (1) it is a specific instance of victim used to prove someone other than defendant was the source of the semen/injury, or (2) it is specific instances of victim and defendant used to prove inferred consent.
Character - Civil Defendants
Civil defendants may not open the door to character evidence unless character is at issue, like defamation, negligent hiring, or child custody cases.
Character - Civil Defendants - Victim’s Promiscuity
If civil defendant argues victim’s promiscuity, then the evidence is not admissible unless (1) it is not excluded by any other rule, and (2) its probative value substantially outweighs the danger of harm to the victim and of unfair prejudice to any party (special version of 403 balancing test).
Character - Other Wrongs
Evidence of other wrongs is generally inadmissible to prove the defendant acted in conformity with their character. However, evidence of other wrongs can be admitted to prove something other than character, such as motive, intent, mistake (absence of), identity, or common plan. This requires sufficient evidence for a reasonable jury to find the defendant did commit these other wrongs, and a criminal defendant requires notice.
YOU CAN’T MIMIC CHARACTER, BUT YOU CAN MIMIC OTHER WRONGS – Motive, Intent, Mistake (absence of), Identity, Common plan or scheme.
Character - Sex
Evidence of a victim’s sexual relations are not admissible to prove character unless it is a criminal case and the prior sexual relations are being used to prove someone other than the defendant is the source of the semen/injury or to prove inferred consent; or it is a civil case and the prior sexual relations are material and can pass the special variation of the 403 balancing test. The special balancing test inquires whether the probative value of the evidence significantly outweighs danger of harm to the victim and danger of undue prejudice, confusion, etc.
Habit
Evidence of a habit is admissible to prove conformance with that habit provided the evidence shows adequate sampling and uniformity of response. Regular practices in the ordinary course of business can be habits, like information sessions before surgeries. Intoxication and addiction evidence are usually excluded because it leads to a propensity inference, but it could be admissible to demonstrate a pattern of behavior of carrying and consuming alcohol while on the job. Lying evidence is usually excluded because they are very conditional and volitional.
Public Policy Exclusions
Even relevant evidence may be excluded for public policy reasons. These exclusions are meant to promote charitable behaviors or self-improvement, and generally are excluded for the purposes of proving fault. These exclusions include proof of liability insurance, settlement offers and negotiations, offers to pay medical expenses, subsequent remedial measures, and plea offers and negotiations.
Public Policy Exclusions - Subsequent Remedial Measures
Evidence of subsequent measures is not admissible to prove negligence, culpable conduct, defect in product or design, or need for a warning or instruction. However, this evidence can be admissible for another purpose, such as impeachment, or (if disputed) proving ownership or control, or feasibility of precautionary measures.
Evidence of remedial measures by third parties are admissible.
Public Policy Exclusions - Compromise/Settlement Offers and Negotiations
Evidence of offers and its acceptance or rejection and statements made about the offer (unless offered in a criminal case and when related to a claim by a public office) are not admissible to prove or disprove the validity of a disputed claim or to impeach by a prior inconsistent statement. However, this evidence can be admissible to impeach a witness on grounds of bias.
There must be a disputed claim, and attempts to negotiate count as negotiation.
Public Policy Exclusions - Offers to Pay Medical Expenses
Evidence of furnishing, promising to pay, or offering to pay medical, hospital, or similar expenses resulting from an injury is not admissible to prove liability for the injury. Lost wages are generally not considered under similar expenses. However, admissions of fact accompanying the payments and offers are admissible.
Public Policy Exclusions - Pleas and Related Statements
Evidence of the following are not admissible against the defendant who made the plea or participated in the plea discussions in civil and criminal cases: (1) a guilty plea that was later withdrawn, (2) a nolo contendere plea, (3) a statement made during a proceeding on either of those please under FRCP or comparable state procedure, or (4) a statement made during plea discussions with an attorney for the prosecuting attorney if the discussions did not result in a guilty plea or resulted in a later-withdrawn guilty plea. This rule does not protect the prosecutors’ statements.
Statements under (3) and (4) can be admitted if (1) another statement from the same plea or plea discussion was introduced and fairness requires the statements to be considered together, or (2) in defendant made the statement under oath, on the record, with counsel present, in a criminal proceeding for perjury or false statement.
If the defendant waives their 410 rights, then plea negotiation statements can be used to impeach the defendant if they choose to testify at trial.
Public Policy Exclusions - 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. However, this evidence can be admitted for another purpose, such as impeaching a witness for bias or prejudice, as part of an admission of liability, or proving agency, ownership, or control.
An expert witness who receives a lot of business by an insurance company that is representing the defendant can fall under the witness bias exception.