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Flashcards in Evidence Deck (20)
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  1. Is evidence relevant (tends to prove or disprove a material fact)?
    1. General rule - evidence that has any tendency to make a material fact more probable or less probable than it would be without the evidence, then it is relevant.  but evidence must relate to time, event or person in litigation
    2. Exception - certain similar acts may be relevant if probative of a material issue
      1. to prove cause and effect
      2. to show common plan or scheme of fraud
      3. show instrumentality
      4. infer intent from prior act
      5. to rebut impossibility
      6. to establish value
      7. habit
      8. business routine
  2. If relevant, should evidence be excluded based on:
    1. judicial discretion - exclude if the probative value of the evidence is substantially outweighed by dange of
      1. unfair prejudice
      2. confusion of issues
      3. misleading the jury
      4. undue delay
      5. wasting time
      6. cumulative evidence
    2. Public Policy
      1. Liability insurance no admissible to show negligence or ability to pay
        1. can be used to show ownership and control
      2. Subseqyent remedial measures not admissible to show negligence, defect, or need for warning.  can be used to show ownership and control.  
      3. Settlements - not admissible to prove fault, liability, or damage
        1. includes a: actual compromises, offers to compromise, admission s of facts, liability
        2. Limitations - must be a claim with a claimant that gives some indification that he plans to file a claim
        3. the claim must be disputed as to either liability or amount
        4. an offer to pay hospital or medical expense is not admissible either. but an admission that accompanies the naked payment offer is admissible.


Character Evidence

Four Preliminary Questions

  1. For what purpose to do seek to offer character evidence?
    1. when character is ultimate issue in the case
    2. to impeach the credibility of a witness
  2. What method to prove character
    1. specific acts
    2. opinion testimony
    3. testimony as to the person's general reputation
  3. What type of case? Civil or criminal
  4. What trait of a character
    1. it must be the specific trait which is substantively at issue in the case

Civil Cases - Character evidence not admissible as circumstantial evidence to prove conduct.  but character evidence is admissible in a civil case if character is directly at issue (defamation, negligent entrustment, fraud)

Criminal Cases

  1. Basic Rules - bad character in any form is not admissible at the initiative of the prosecution if the sole purpose is to show criminal propensity UNLESS and UNTIL the accused opens the door by preenting evidence of good character for the pertinent trait in the form of reputation and opinion to show innocence.  Only then may the prosecution respond by showing bad character of the accused by:
    1. cross-examining the character witness, asking questions to him about specific instances of Defendant's misconduct
    2. Calling qualified witness to testify to Defendants bad reputation
  2. Evidence of the victims bad character
    1. In cases other than rape - self-defense.  D may present evidence of the victims bad character when it is relvent to show D's innocence.
      1. By reputation or opinion to show victims violent disposition.
      2. by knowldge of specific acts to show D's state of mind
      3. Prosection may counter with reputation or opinoin evidence of the victims good character or the defendants bad character of the same trait
    2. In sexual misconduct cases - victims past sexual behavior is generally inadmissible
      1. exception in criminal case - to prove that someone other than D is the source of seman, injury, or other physical evidence.  specific instances of sex between D and V are admissible by prosecution for any reason and by the D to prove consent
      2. Exceptions in civil cases - admissible if not excluded by any other rule and its probative value substantially outweighs te danger of harm to the victim.  
    3. Evidence of a person's other crimes or miscoundct is generally inadmissible
      1. unless it is relevant to some issue other than character or disposition
        1. MIMIC - motive, intent, absence of mistake, identity, common plan or scheme
        2. to impeach redibility 0 to show lack of truthfulness after D testifies (prejury convictions)
      2. Applies in both civil and criminal cases
      3. to be admissible, there must be sufficient evidence to support a jury finding that D committed the prior act AND its probative value must not be substantially outweighed by the dange of unfair prejudice
      4. evidence of prior sexual assult or child molestation is always admissible in a case where D is accused of those things


Judicial Notice

  1. Judicial Notice of Fact - court may take judicial notice of indisputable facts that are either
    1. common knowledge in the community or
    2. easily capable of verification
    3. Effect of judicial notice
      1. in a civil case - fact is conclusive
      2. in a criminal case, jury may, but is not required to accept as conclusive
  2. Judicial Notice of Law - COurts must take judicial notice of federal and state law and the official regulations of the forum state and the federal goverment.  Courts may take judicial notice of  municipal ordinacnes, pricate acts, resolutions of congress, or laws of  foreign countries.  


Real Evidence

  1. Defined - actual physical evidence addressed directly to the trier of fact. may be direct, circumstantial, original, or prepared
  2. General conditions of admissibility
    1. authentication - object must be identified as to what the proponent claims it to be either by
      1. testimony of a witness that she recognizes object, or
      2. evidence that the object has been held in substantially unbroked chain of possession
    2. If the condition of the object is significant, it must be shown to be in substantially the same condition at trial
    3. balancing test to weigh relevance of evidence v. convenience of bringing it to the courtroom, indecency or impropriety or undue prejudice
  3. Particular types of real proof
    1. photos, diagrams, maps, etc - admissible if relevant.  evidence used solely for explanatory purpsopes permitted at trial, but usually not admitted into evidence
    2. maps, charts, models, are usually admissible to illustrate testimoney, but must be authenticated
    3. child may be exhibited to prove race in paternity suit
    4. injuries may be exhibited byt court may exclude if unfair prejudice
    5. court has discretion to permit jury to view places at issue in the trial
    6. court has discretion to permit experiments or demonstrations in the courtroom


Documentary Evidence

  1. In general - court may admit relevant documentary evidence.  when you get a question about a writing, ask yourselef
    1. was it authenticated
    2. is its hearsay
    3. is it the best evidence
  2. Authentication - to be admitted, a writing must be authenticated by proof that shows the writing is what the proponent claims it to be.  proof must be sufficent to support a jury finding.  propery authentications include
    1. admission by party whom evidence is offered against
    2. eyewitness testimony
    3. evidence of handwriting
      1. law witness with personal knowlege
      2. expert who has compared styles
    4. evidence that document is at last 20 years old, regular on its face and was found in a cplace where such writings are kept
    5. evidence that it was written in response to a communication sent to claimed author
    6. witness familiar with scene can authenticate photo.  when no witness available, photo can be authenticated by showing camerwa was properly operating at relevant time
    7. x-rays - must show that the process used is accurate, the mahcine in working order
    8. oral statements - may be authenticated by anyone who has heard the voice at any time.  
      1. for telephone, there must be voice recognition, speaker had knowledge of certain facts only a particular person would have, witness called a particular person and that person answered, or he called a business and talkd with the person answering the phone about matters relevant to the business
    9. No authentication needed for
      1. ceritfid copies of public records
      2. official publications
      3. newspapers
      4. etc
  3. Best Evidence Rule- to prove the content of a writing, the original writing mus tbe produced.  secondary evidence of the writing (oral testimony) is only admissible if the original is unavailable
    1. applies where the writing is a legally operative instrument or a witness's knowledge of a fact results from having read it in a document
    2. does not apply where
      1. facts to be proven exist independently of writing (witness has personal knowledge
      2. the writing is of minor importance to controversy
      3. records are voluminous
      4. public records
    3. machine generated copies of an original are admissible unless the authenticity of the original is challenged or unfairness would result
    4. if proponet cant produce the original, he may offer secondary evidence if a satsfactory explanation is given for nonproduction of original.  valid excuses are:
      1. loss or destruction of the original
      2. original is in possession of a 3rd party outside jurisdiction of court and is unobtainable
      3. original is in possession of an adversaary who fails to produce the original
    5. judge decideds admissibility of diuplicates, but jury decides
      1. wheterh the original existed
      2. wheter a writing is an original
      3. whetehr the evidence offered correctly reflects th contents o the original
  4. Parol Evidence Rule - if an agreement is reduced to writing.  The writing constitutes the whole agreement.  Prior contemporaneous negotiations or agreements are inadmissible to vary the terms of the writing.  Rule does not apply when
    1. there is an incomplete K, or to explain an ambiguous term
    2. reofrm a mistake of K
    3. showt hat K is void or voidable, or that it was subject to condition precdent
    4. show subsquent modificaiton or discharge of written agreement


Testimonial Evidence - Competency of Witnesses

Witness must pass test of basic reliability, but they are generally presumed to be competent until the contrary is established

  1. Qualification under the Federal Rules
    1. Witness must have communicable personal knowledge AND
    2. witness must declar that he will testify truthfully
  2. Special Groups
    1. Children may testify depending on capcacity/intelligence as determined by the judge
    2. an insane person may testify provided he can understand the obligation to speak truthfully and he has the capacity to be truthful
    3. Presiding jduge and jurors may not testify
    4. Dead Man Act - Bars an interested party from testifying to a personal communication with a deceased when such testimony is against the deceased's successor unless there is a waiver


Form of Examination of Witness (testimonial evidence)

  1. Leading Questions  genearlly improper on direct examination, but permitted
    1. on cross-exam
    2. to elicit preliminary or introductory matter
    3. to refresh a witnesses memory
    4. when a witness is hostile
  2. Other improper forms of questions
    1. misleading
    2. compound
    3. argumentative
    4. conclusionary
    5. cumulative
    6. unduly harassing
    7. calls for narrative 
    8. assumes facts not in evidence
  3. Answers that may be stricken
    1. lacks foundation
    2. non-responsive
    3. note - request must be made before Witness asnwers if the question is objectionable
  4. Witness cannot read testimony from prepared writing.  but a writing can be used for:
    1. refreshing a witness's recollection
      1. can use anything to refresh memory - no authentication, hearsay, or best evidence problems b/c writing is not offered into evidence
      2. Witness must say "I can't remember"
      3. the adverse party is entitled to have whatever writing is used to refresh a witness's recollection produced at trial, and use it on cross-exam
    2. OR, under the recorded recollection doctrine, if a witness still can't remember, the writing itself may be read into evidence IF the proponent proves that:
      1. The witness had personal knowledge of the facts in the writing at one time
      2. the writing was made by the wtiness under her direction, or it was adopted by the wtiness
      3. the writing was timely made when the matter was fresh in the witness' mind
      4. the writing is accurate and
      5. the witness must be unable to remember all or part of the details.  
      6. The is hearsay, but it is one of the exceptions


Opinion Testimony

  1. Lay testimony - admissible if
    1. (1) rationally based on the perception of the witness,
    2. (2) the opinion is helpful to the trier of fact (no legal conclusions), and
    3. (3) not based on scientific, technical, or other specialized knowledge.  
  2. Expert opinion - 4 basic requirements (determined by judge)
    1. Subject matter must be appropriate for expert testimony.  the opinoinj must be sufficiently reliable that is helpful to the trier of fact
      1. Methodology underlying hte opinion must be reliable
      2. The opinoin must be relaevnt
    2. Witness must be qualified as an expert (skills + experience sufficient)
    3. Expert must possess reasonable certainty or probability regarding the opinoin.  more than mere speculatoin
    4. Opinion must be supported by a proper factual basis.  facts support opinoni must be:
      1. facts within the personal knowledge of the expert
      2. facts supplied to the expert by the evidence
      3. facts, not in evidence, as long as they are of a type that experts in that field would reasonably rely upon in making out of court profession decisions.
  3. Learned treatises -
    1.  can be used to rebut or impeach opponent's expert IF:
      1. your opponent's expert relies on that test or treatise
      2. elicit an admission on cross-examination "are your familiar w/X, do you consider it authoritative or reliable?"
      3. Call your own expert witness to testify that text is reliable
      4. judicial notice
    2. Can be used for its truth IF
      1. reliance by your expert on direct
      2. admission on cross-exam by opposing expert
      3. testimony of any expert, or
      4. judicial notice
    3. Limitations
      1. expert must testify unless judge takes judicial notice
      2. treatise is admitted by being read to the jury.  text itself is not recieved as evidence



  1. Party has absolute right to cross-examine any witness who testifies live.  if witness refuses cross-exam, then testimony must be stricken
  2. limited to
    1. scope of direct examination
    2. testing the credibility of witness
  3. Collateral matters doctrine - no extrinsic evidence is allwoed to contradict a witness as to a collateral matter.  cross-examination is bound by the answers given by the witness


Credibility - Impeachment

  1. Accrediting your own witness
    1. no bolstering your own witness unless there has first been impeachment
    2. prior statement of identification made by the witness are admissible.  
  2. impeaching your own witness is allowed IF the witness is:
    1. an adverse party or identified with an adverse party
    2. hostile
    3. one whom the party is required by law to call
    4. gives surprise testimony that is affirmatively harmful
  3. impeaching your adversary's witness - a witness may be impeached by either cross-exam or by extrinsic evidence through
    1. prior inconsistent statements
      1. generally admissible only to impeach - not for its trust
      2. but if the prior inconsistent statement was given udner oath AND at a trial, hearing, or in a deposition, such a statement IS admissible for its truth
      3. Extrinsic evidence is admissible to prove that the prior inconsistent statement, but must give witness an opportunity to explain or deny the statement
      4. Prior inconsistent statement of a party = an admission. admissions are fully admissible for their truth
    2. Evidence of bias - may be shown by extrinsic evidence after a foundation is laid by inquiry on cross-exam of the target witness
    3. prior conviction of a crim
      1. mst be a felony or a crime involving dishonesty.  no crimes older than 10+ since release
      2. Extrinsic evidence of conviction is admissible
    4. Specific acts of deceit or lying may be asked about in cross-exam
      1. i.e. did you lie on your income taxes, etc
      2. good faith required, with reasonable basis for ebleiving that the act was done by the witness
      3. act inquired about must involve deceit
      4. no extrinsic evidence permitted
    5. bad reputation or opinoin for truth or veracity.  may call community mouth to testify to bad rep.  cant testify to specifc instances of deceit
  4. Rehabilitating after impeachment
    1. explanatoin on redirect
    2. good reputation - get opinion testimony after character attack
    3. prior consistent statements - may be used to rebut an express or implied charge of facbrication or improper influence of motive
      1. can't use to rebut charge or prior inconsistent statement
      2. admissible for its truth


Attorney Client Privilege

Confidential communications between attorney and client made during professional legal consultation are privileged from disclosure unles waived by the client or the representative of the deceased client. 
  1. elements
    1. the right parties
    2. confidential communication 
    3. intent by client to establish a professional legal relationship
  2. note - appleis to atty's agent as well.  including a doctor who examines the client at atty request
  3. exceptions
    1. future crime or fraud
    2. when client or patient affirmatively puts commincation in issue
    3. dispute between the parties as to the professional relationship
    4. where two or more parties commincate with attorney about amatter of common interest, no privilege between them


Physician - Patient Privilege

The patient has a privilege against disclosure of confidential informaiton acquired by teh physician in a professional relationship entered into for the purpose of obtaining treatment

  1. Key Elements
    1. patient must be seeking treatment
    2. information acquired must be confidential and necessary for treatment
  2. doctor-patient priviledge does nt apply in federal corut.  nor dos it apply where the patients puts medical treatment at issue
  3. wavier of privilege is common especially because of patient litigation exception. 


Husband-Wife Privilege

  1. does not apply to intra-family injury cases
  2. dual privilege
    1. spousal immunity privilege - one spouse cannot be forced to give adverse testimony against the other in a criminal case. requirements
      1. valid marriage at the time of trial
      2. protects against any and all testimony (including pre-marriage facts)
      3. holder of privilege is witness spouse not party spouse
      4. applies only in criminal cases
    2. Confidential marital communications privilege - spouse can't be required to disclose confidential communication made by the other during the marriage.  requiremtns:
      1. married at the time of communications
      2. protects only confidences, not all testimony
      3. either spouse holds the privilege, not just witness
      4. applies in civil and criminal cases


Procedural issues of testimonial evidence

Procedural issue - federal evidence law applies in federal courts because it is procedural.  but there are three exceptions where state evidence law applies in federal court IF state substantiv law applies:

  1. presumptions and burdens of proof
  2. competency of witnesses (dead man's statute)
  3. privileges - 


Exclusion and sequestration of witnesses

Genearlly judge may order witnesses exlcuded from the courtroom.  but the judge may not exclude

  1. a party or a designated officer/employee of a party
  2. a person whose presence is essential to the presentation of a party's case
  3. a person statutorilu authorized to be present



Out of court statements offered for the purpose of establishing the truth of the matter asserted

  1. Three Questions
    1. is it an out of court statement
    2. what precisely is the out of court statement
    3. is it being offered for the purpose of establishing its truth
  2. Non-hearsay
    1. verbal acts - words of offer, acceptance, defamation, conspiracy, bribery, cancellation, misrepresntation, waiver, permission
    2. out of court statemtnts offerred to show its effect on the hearer.  to show notice to, or reason for action or inaction by the person who heard or read the out of court statement
    3. out of court statements to show declarant's state of mind
  3. generally a witnesses own prior statements are also hearsay, but certain prior statements are admissible
    1. prior statements given under oath
    2. prior consistent statement to rebut charge of recent fabrication
    3. prior statment of identification made by witness on the stand
  4. party admissions do not equal hearsay
    1. need not be against interest at time of making statment
    2. need not be based on personal knowledge
    3. can be in the form of legal conclusion (i was negligent)
    4. vicarious admission.  a statement by an employee concerning a matter within the schope her employment is admissible against eh employer if made during existence of the relationship


Exceptions to Hearsay Rule

Declarant unavailable

  1. Former testimony - testimony given in earlier proceeding by person no unw unavailable to testify is admissible if there was a meaningful opportunity to cross, and declarant is now unavailable.
    1. meaningful opportunity -
      1. same issue and motive
      2. same identity of party
    2. unavailability - exempted from testifying because of privilege, or otherwise unwilling to testify
  2. Statements against interest - declaration of a person, now unavailable as a witness, against that persons' pecuniary. propreitary or penal interest at the time the statement was made.  requriem,ents:
    1. statement must have been against interst when made
    2. declarant must have personal knowledge of facts
    3. declarant must be unabilable
    4. does not have to be a party
  3. Dying declaration - statement made by a declarant while believeing his death is imminent
    1. made under sense of impending death (need evidence that declarant beleived he as going to die
    2. declarant need not die, but must be unavailable at tial
    3. admissible in homicide or any civil cases
    4. must concern cause or cicrumstances of impending death
  4. statemetns of personal or family history (i.e birth, death, marriage)
  5. statement of unavailable declarant offered against party who procured the unavailibilty


Exceptiions to Hearsay - declarant avilable

Spontaneous statements
  1. then existing state of mind is in issue (i beieive i am the pope)
  2. statemetns of existing intent to do something in th´future - admissible to infer that was what was intended was done (in ten days i will kill myself)
  3. excited utterance
    1. starting event
    2. statement made under stress of excitement
    3. concerns the facts of the startling event
  4. present sense impression - a statement describning or explaining an event while it is happening (Nick is at the door) 
  5. Declaration of then existing physical cnodition - admissible by anyone who hears it.  (it hurts)
  6. Declaration of past physical cnodition - statmetns made describgin medical history.  admissible if
    1. made to medical personnel
    2. pertient to either diagnosis or treatment

Business records - records made as a memo of any business transaction is admissible if:

  1. the record is germane to business
  2. it appears that the record was maade in the regular course of business
  3. the business record consists of matters within the personal knowlege of the entrant or within the knowlege of someone with a duty to transmit such matters
  4. entry made at or near the time of the transaction
  5. authenticity established by custodian
    1. testifying that the record is a businss record, or
    2. certifying in writing that the record is a buseinss record


IMportant test notes

a. Preliminary fact questions upon which admissibility depends are decided by the judge, and she is not bound by the rules of evidence to make this determination (i.e. she can use hearsay).
b. You are entitled to impeach the credibility of a hearsay declarant, even when he’s absent, by any evidence which would be admissible for impeachment if the declarant had testified live.
c. Mixing hearsay and writings: remember best evidence rule.  Where a witness want to testify to a recorded message, which meets a hearsay exception, it is still inadmissible unless you satisfy the best evidence rule (i.e. explaining the absence of the recording itself).


Constitutional issues

Six Amendment - Confrontation Clause

  1. Testimonial out of court statements will be admissible against the accusesd in a criminal case only if:
    1. the declarant is unavailable AND
    2. the defndant has a prior opportunuty to cross examine
    3. does not apply if prosection demonstrates that D had forfeited his CC obnjection by wrongdoing that prevented the declarant from testifying at trial