Evidence Flashcards
(47 cards)
Relevant
tends to make the existence of any fact of consequence to the outcome more or less probable
Discretionary Exclusion
judge had BROAD discretion to exclude relevant evidence if its probative value is SUBSTANTIALLY OUTWEIGHED by the danger of UNFAIR PREJUDICE (confusion of issues, mislead jury, undue delay, waste of time)
Public Policy Exclusion -Both CIVIL and CRIMINAL
- existence of liability insurance coverage or amount (unless to impeach a witness, factual dispute, cause of action against insurer)
- Plea of guilty or nolo contendere later withdrawn or set aside
- Polygraph
Public Policy Exclusion -CRIMINAL only
contacting or retaining attorney unless within crime-fraud exception to attorney-client privilege
Public Policy Exclusion - CIVIL only
- Subsequent remedial measures
- compromises or offers
- offer to pay medical or similar expenses
- amount paid in settlement (except failure to maker settlement)
- workers comp claim
- Previous plea of nolo contendere
character evidence - 3 concerns
- purpose for which evidence of character is offered
- method to be used to prove character
- kind of case (civil or crim)
Purpose for offer of character evidence
may be offered:
1. serve as circ evidence of how a person probably acted during the event at issue in case
2. persons character is an ultimate issue in the case; OR
3. impeach the credibility of a witness
Means of Proving Character
- testimony of a character witness as to general reputation in the community; OR
- RARELY by evidence of specific acts
Evidence of Character in Civil Case
Generally not admissible in civil cases
rare “directly in issue” reputation testimony and specific acts evidence are admissible to prove character
Character Evidence - Accused in criminal case
prosecution cannot initiate, defendant can
ONLY reputation testimony allowed by defendant (no opinion or specific acts)
Prosecution can rebut with cross or own character witnesses
Victim’s Character
D’s initiative - hostile demonstration or overt act
- Reputation testimony about pertinent trait; OR
- Evidence of prior threats
DOMESTIC VIOLENCE EXCEPTION: D pleads self defense, they were living together, history of behavior between the two
Prosecution may rebut
Homicide Vic Character
Victim character of peacefulness allowed regardless if D opens the door
Sexual Assault Character
past behavior of victim inadmissible
Human Trafficking Character
Past behavior is inadmissible
Specific Acts of Misconduct
Generally inadmissible if offered solely to establish criminal disposition or bad character
If independently relevant to some issue other than D’s character or disposition to commit crime charged
M.I.M.I.C. (prior acts admissible)
Motive
Intent
Mistake (absence of)
Identity
Common Plan or Scheme
Similar Acts
Sexual Crimes
Domestic Abuse/Children
Certain Civil (DA, fam vio, sex abuse)
Judicial Notice of Fact
recognition of a fact as true w/o formal presentation of evidence
common knowledge or capable of verification
conclusive in civil not in crim
Judicial Notice of Law - Mandatory or Permissive
must take notice of fed and state law and official reg of forum state and fed
may take muni ords and private acts or resolutions of congress or the state legislature
foreign countries maybe
Authentication
admitted only if it is authenticated by proof showing evidence is what the proponent claims
Physical Evidence -Authentication
identified as to what it claims by
1. testimony of witness
2. object has been held in a substantially unbroken chain of possession
Doc Evidence (authentication)
- admissions
- eyewitness test
3 handwriting verifications - Ancient Documents
- Reply letter doctrine
- Photographs
- X-rays
Oral Statements - Authentication
Voice id
telephone
self-authenticating Docs
certain documents prove themselves
bears seal
cert public docs
newpapers
commercial paper and docs
labor reports
certified copies of original docs
