Evidence Flashcards
(73 cards)
CHARACTER EVIDENCE
Victim’s sexual behavior
Evidence of victim’s other sexual behavior or predisposition is INADMISSIBLE in a criminal case, UNLESS:
- offererd to prove another person was the perpetrator;
- offered by the ∆ to prove consent or offered by prosecution with respect to the ∆;
- exclusion would violate ∆’s constitutional rights.
POLICY EXCLUSIONS
Compromise offers & negotiations
Public policy encourages settlements of disputes. As a result, compromise offers and negotiations are INADMISSIBLE when offered to:
- prove or disprove validity of amount of disputed claim; or,
- impeach by a prior inconsistent statement or contradiction.
For this exclusion to apply, both parties must intend to enter into such negotiations and there must have been an actual dispute. In criminal cases, the statement must be made to the prosecutor, not a government agency.
EXPERTS
Expert testimony
Expert testimony is ADMISSIBLE as substantive evidence (i.e., to prove a material fact or issue) if it is both:
* relevant: testimony will help trier of fact understand evidence or determine fact in issue; AND,
* reliable: testimony is based on sufficient facts and data and product of reliable principle and methods that expert reliably applied to the facts of the case.
HEARSAY EXCLUSIONS
Prior consistent statement
A declarant-witness’s prior consistent statement is EXCLUDED from the rule against hearsay if:
* It’s offered to rebut a charge of fabrication or improper influence and was made before a motive to fabricate arose; or,
* It is offered to rehabilitate witness’s credibility.
PRIVILEGES
Attorney-client privilege
Attorney-client communications are privileged when:
* made to obtain or provide legal assistance for the client; and,
* intended to be kept confidential.
Communication is confidential if circumstances indicate an intention of secrecy as to its contents between the client and attorney. If the client discloses it to a 3rd party, communication generally is not confidential and not protected by the attorney-client privilege.
Merely offering to share the privileged information does not waive the privilege.
The privilege extends to confidential communications between a client and the attorney’s agent if those communications are made in furtherance of the legal representation (e.g., consultant).
HEARSAY EXCEPTIONS
Then-existing state of mind
EXCEPTION to hearsay. e.g., motive, intent, plan
This can be admitted as substantive proof that the declarant later acted in accordance with that state of mind. Declarant’s memory or belief typically falls outside of this exception though.
HEARSAY EXCLUSION
Statement by party-opponent
EXCLUSION to hearsay.
e.g., letter to IRS written by the ∆ and offered against ∆ at trial is ADMISSIBLE.
A statement is not hearsay and is ADMISSIBLE if the statement is offered against an opposing party and is one the party manifested that it adopted or believed to be true.
Statement does not need to be a confession; instead, any relevant statement of an opposing party is admissible.
HEARSAY
Hearsay
Hearsay rule bars out of court statements that are offered to prove the truth of the matter asserted therein, but not those that are offered for some other purpose–e.g., to show statement’s effect on the listener.
Hearsay is defined as a statement (i.e., a person’s oral assertion, written assertion, or non-verbal conduct if the person intended it as an assertion). example: woman making a thumb’s up.
WITNESS
Judge as witness
A judge may never testify in a trial over which they are presiding–even when that testimony pertains to otherwise permissible evidence.
PRIVILEGES
Physician-patient privilege
Federal rules of privilege apply to claims arising under federal law. However, the physician-patient privilege is not recognized under federal law.
The physician-patient privilege, which was not recognized at common law, has been adopted by statute in most jurisdictions. In determining whether to honor the assertion of a privilege, courts must balance the public interest in nondisclosure against the need of the particular litigant for access to the privileged information, keeping in mind that the burden of persuasion rests on the party seeking to prevent disclosure. In most jurisdictions, patient communications or disclosures made for the purpose of medical diagnosis or treatment are privileged.
if facts state that privilege is recognized by state law and suit is in fed court via diversity:
If the physician-patient privilege is recognized by state law, it will apply in federal diversity suits, UNLESS:
* patient’s physical condition is at issue;
* patient-physician communication was part of a crime or tort;
* there is a dispute between the patient & physician; or,
* the patient contractually waived the privilege.
HEARSAY EXCEPTION
Statement made for medical diagnosis
EXCEPTION to hearsay. The following statements will be ADMISSIBLE:
* statements made for and reasonably pertinent to medical diagnosis and treatment; and,
* statements that describe the declarant’s medical history, past or present symptoms, or their inception or general cause.
FORM OF QUESTION
Leading questions
Leading questions are permissible on cross-examination.
EXPERTS
Expert testifying about reliability of treatise
Expert testimony that a treatise is a reliable authority lays a foundation for admitting the statement therein. The statements can then be used as a basis for the expert’s opinion AND as substantive evidence to help prove a material fact (e.g., the proper psychiatric standard of care).
POLICY EXCLUSIONS
Subsequent remedial measures
Evidence of subsequent remedial measures is INADMISSIBLE to prove negligence or other culpable conduct.
However, court may ALLOW evidence for other limited purposes:
* resolving a dispute about feasibility of precautionary measures;
* impeaching a witness; or,
* proving ownership or control.
MEE RULE:
FRE 407 excludes evidence of “measures” a defendant has taken taht would have made an earlier injury or hamr less likely to occur. Such evidence is inadmissible if offered to prove negligece or culpable conduct. The justification for Rule 407 is twofold. First, the probative value of any subsequent remedial meausre as an admission of fault is limited. Second, exclusion fosters a social policy of encouraging people to take steps in furtherance of added safety.
The general rule in both state and federal courts is that post-incident discipline constitutes a subsequent remedial meausre. More specifically, the termination of employees under similar circumstances is typically viewed as a subsequent remedial measure. For example, in Mahnke v. Washington Metropolitan Area Transit Authortiy, the court found evidence regarding a bus driver’s termination following an accident with a pedestrian inadmissible as a subsequent remedial measure.
Under Rule 407, evidence of subsequent remedial measures is admissible only if offered for another purpose, such as impeachment or–if disputed–proving ownership, control, or the feasibility of precautionary measures.
AUTHENTICATION
Best evidence rule (MBE)
The best evidence rule applies only when the contents of a recording, writing, or photograph are at issue–i.e., when:
* document is used to prove the happening of an event;
* document has a legal effect; or,
* the witness is testifying based on facts learned from the document.
This rule does NOT apply when a witness is testifying based on personal knowledge.
Under the best evidence rule, a duplicate is generally admissible to the same extent as the original writing–regardless of whether original is available.
IMPEACHMENT
Impeaching witness v. hearsay declarant
When a hearsay statement is admitted under any hearsay exception (or hearsay exclusion for statements made by an opposing party’s agent, employee, or coconspirator), the declarant’s credibility may be attached as through the declarant had testified (e.g., by introducing the declarant’s inconsistent statement). (treat this like you would impeach a witness on the stand).
It does not matter if the statement occurred after the hearsay statement OR declarant had no opportunity to explain.
WITNESSES
Exclusion of witnesses
A court must exclude a witness from the courtroom upon a party’s request–or may do so on the court’s own initiative, UNLESS, the witnesses are:
* parties or their designated representatives;
* persons whose presence is shown to be essential to a party’s presentation of its case; or,
* persons authorized by statute to be present.
APPEALS
Preserving evidentiary rules for appeal
To preserve a challenge to the exclusion of evidence for appeal, the party generally must make a timely offer of proof on the record, in the form of an oral or written explanation of the relevance and admissibility of the excluded evidence. No formal evidence is required.
The offer of proof is timely if it’s made within a reasonable time outside of the jury’s presence so the judge has an opportunity to correct the error.
AUTHENTICATION
Authenticating physical objects
Reproductions (e.g., models, drawings, photographs, maps) may be authenticated by the testimony of a witness with personal knowledge (ie., firsthand observations or experiences) that the reproduction accurately depicts what its proponent claims it does.
Example: police saw ∆ drop a plastic bag before running and he recovered bag from same area a few minutes after catching ∆. police officer has personal knowledge.
Remember, does not need to be authenticated by an expert!
For photographs, you can’t just have any photographer testify; it has to be someone with actual knowledge of what happened. It does not have to be the person who took the photos; just has to be someone with personal knowledge.
JURORS
Juror testimony
A juror is generally prohibited from testifying after trial about statements/incidents during deliberations, the effect of anything on a juror or juror’s vote, or any juror’s mental processes concerning the verdict.
Post-trial juror testimony is ADMISSIBLE if it concerns:
* extraneous prejudicial information brought to jury’s attention (e.g., juror learned from court clerk that ∆ had been accused of fraud in recent lawsuit);
* an outside influence improperly brought to bear on a juror; or,
* a mistake made in entering the verdict onto the verdict form.
HEARSAY
Hearsay within hearsay (double hearsay)
When one hearsay statement is contained in another hearsay statement, both statements are INADMISSIBLE unless both fall within an exclusion or exception to the hearsay rule.
CHARACTER EVIDENCE
Non-character purpose for admitting a crime or prior bad act
Evidence that a criminal ∆ committed similar crimes or bad acts is INADMISSIBLE character evidence when it’s offered for propensity purposes.
However, such evidence may be ADMISSIBLE for relevant, non-character purposes (MIAMI KOPP):
* motive: to show purpose for committing the crime;
* intent: to establish guilty mind or negate good faith;
* accident (lack of)
* mistake (absence of): to negate mistake or that this was an accident and prove this was a deliberate act;
* identity: to connect the ∆ to the crime with unique pattern of behavior (i.e., criminal signature);
* knowledge: to show knowledge of crime;
* opportunity: to show ∆ had opportunity to commit the crime
* preparation
* plan
HEARSAY EXCEPTION
Present sense impressions
Statements made by the declarant explaining or describing an event while or immediatley after the declarant perceived it are ADMISSIBLE.
HEARSAY EXCEPTION
Excited utterance
Statements relating to a objectively startling event, made while the declarant was subjectively under the stress of excitement that it caused are ADMISSIBLE.
