Evidence Flashcards
(13 cards)
MBE tip
Impeachment
* Evidence that is admissible to impeach, may or may not be admitted substantively (for its truth) subject to hearsay rules
* Extrinsic evidence is other than through the W on the stand
* Extrinsic evidence simplified:
* allowed for PIS, but first opp. for W to explain/deny
* no extrinsic evidence for impeachment by character for truthfulness
Impeachment:
Overview: Methods of impeachment; Evidence supporting witness credibility
Any party may impeach a witness. Impeachment is the process of challenge W’s testimony based on W’s :
* Prior inconsistent statement
* Bias (e.g., reason to lie, relationship with a party)
* Sensory deficiencies
* Character for truthfulness
* Prior acts of misconduct
⇒ Extrinsic evidence prohibited; questioning attorney must accept W’s answer
* Prior criminal conviction
Evidence supporting witness credibility — inadmissible unless credibility has been attacked (i.e., W has been impeached)
Some test prep clump impeachment based on reputation or opinion of untruthfulness, prior acts of misconduct, and prior criminal convictions under the header of “character for truthfulness.” Here, character for truthfulness refers only to impeachment based on reputation or opinion of untruthfulness
Impeachment:
Prior inconsistent statement
Prior inconsistent statement & hearsay
Prior inconsistent statement — W’s prior inconsistent statement may be used to impeach W’s present testimony
* May be established through cross-exam or extrinsic evidence
* Foundation requirement — W must have an opporutnity to explain or deny the statement
Prior inconsistent statement & hearsay — if PIS is hearsay, it is admisslbe for impeachment purposes, but inadmissible as substantive evidence (to prove the truth of the matter asserted)
Extrinsic evidence may be used to prove the PIS, but only if W who made PIS is given an opp. to explain/deny the PIS and the adverse party can examine W
Impeachment
Bias
Misconduct
Character for Truth
Evidence of W’s bias, prior misconduct, or reputation for untruthfulness may be used to impeach W
Impeachment by establishing bias (e.g., reason to lie, relationship w/ a party) — may be established through cross-exam or extrinsic evidence
Impeachment by prior instances of misconduct — W may be questioned on cross-exam about any prior misconduct probative of truthfulness (i.e., lying or deceit)
* No extrinsic evidence permitted; questioning attorney must accept W’s answer
Character for truthfulness — this can be shown by reputation and opinion (i.e., introducted extrinsically)
Impeachment
Prior Conviction
Prior conviction involving act of dishonesty
Conviction more than 10 years old
Admissiblility of impeachment by type of prior conviction:
Prior conviction
* Felonies not involving dishonesty/false statements:
⇒ If W is a criminal D — Inadmissible unless govt. shows PV outweighs PE
⇒ If W is not a criminal D — admissible unless PV substantially outweighed by PE
* Misdemeanors: inadmissible unless it involves dishonesty/false statements
Prior conviction involving act of dishonesty
* Always admissible — court has no discretion to exclude under 403
⇒ Includes felonies and misdemeanors
- Acts of dishonesty — prior conviction required proof or admission of an act of dishonestyt or false statement (e.g., perjury, fraud)
Conviction more than 10 years old (felonies & misdemeanors)
* Not admissible, unless:
⇒ PV substantially outweighs PE (inverse of 403 balancing) and adverse party is given notice
Present Recollection Refreshed vs. Recorded recollection:
Rule; Admissibility; Use by opponent
Present recollection refreshed — use of documents to refresh W’s memory during testimony
* Anything can be used to refresh W’s testimony
* W cannot read aloud from a document, but can look at it briefly, then continue testimony unassisted
* Opponent may inspect and offer into evidence anything used to refresh W’s memory
* Document is not read into evidence
Recorded recollection — contents of a record/document W previously made or adopted is read into evidence
Requirements::
1. W once knew but can no longer recall a fact
2. W made or adopted the record when fact was fresh in mind and
3. Record accurately reflects W’s knowledge
- Note — recorded recollection is a hearsay exceptions; as such it may be admitted into evidence
Objections to Form of Question or Testimony
- Calls for narrative
-
Leading — question itself suggests the answer; acceptable on cross-exam
⇒ Note: permitted on direct to establish preliminary matter (e.g., W’s identity or occupation) not in dispute - Assumes facts not in evidence
- Argumentatntive
- Compound
- Lacks foundation (e.g., authenticating tangible evidence)
- Repetitive
Opinion Testimony
Lay Opinions
Expert Opinions
Lay Opinions
Lay opinion requirements — opinion testimony is admissible if it is:
* Rationally based — opinion is rationally based on W’s perception
* Helpful — opinion is helpful to the trier of fact (i.e., gives the jury more information regarding W’s percetion than the perception alone)
* Not expert — not based on scientific, technical, or other specialized knowledge
Expert Witness Testimony
Expert opinion requirements — expert testimony is admisslble if:
* Helpful — expert opinion must be helpful to the trier of fact
* Qualified — expert must have scientific, technical, or other specialized knowledge
* Reasonable certainty — expert must believe in his opinion to a reaonsable degree of certainty
* Proper factual basis — opinion must be based on facts
* Reliable principles and methods
Tangible Evidence
Authentication
Authentication issues
All physical evidence must be authenticated, i.e., the proponent must show that the evidence is what he claims it to be
- Proving authetntication — may be proved by any means that serve to establish authenticity (low burden)
- Self-authenticating evidence — writings containing identifying information do not need separate authentication (e.g., deeds, notarized documents, newspapers)
Authentication issues:
* * Non-unique items — item facially indistguishable from others of its kind
* Proponents must establish “chain of custody”
* Photos — must have personal knowledge to authenticate
* Voice — a voice may be identified by anoyne who heard the voice at any time
Best Evidence Rule
If evidence is offered to prove the contents of a writing, an original document or reliable duplicate must be used unless it is unavailable
This rule is only implicated in two narrow situations:
* when W is relying on the document while testifying or
* when the contents of the document are at issue (e.g., a written agreement in a breach-of-contract dispute)
Evidence sufficient to prove a writing’s contents:
* Originals
* Duplicates
* Testimony regarding contents — originals lost or destroyed (not by proponent’s bad faith)
* Voluminous documents exception — a voluminous series of documents may be summarized
“No describing documents instead of showing them (on important matters), unless you really need to”
Privileges
Attorney-Client Privilege
Work Product Doctrine
Spousal Testimony & Marital Communications Privileges
Physician-Patient Privilege
Psychotherapist-Patient Privilege
Attorney-Client Privilege
To be protected, a communication must be:
* Intended to be confidential; and
* Made to facilitate legal services
Exceptions — no privilege
* Crime or fraud
* Attorney defending malpractice claim
* Between former co-clients who are now adverse to each other
Spousal testimonial privilege — criminal cases only
* A person whose spouse is a D in a criminal case cannot be:
* Called as a witness by the prosecution, or
* Compelled to testify against his spouse
* Only the W-spouse can invoke the privilege
* Privilege can only be invoked during marriage
Marital communications privilege — civil and criminal
* Confidential communications made during marriage are privileged in any later proceeding
* Applies even if spouses divorce
* Either spouse may invoke the privilege
Exceptions where privilege does not apply
* Suits between spouses
* Suits in which one spouse is charged with a crime or tort against children
* Suits in which spouses are co-Ds
Physician-patint privilege — material conveyed by patient for the purpose of treatment is privileged
* Exceptions — privilege does not apply where:
* Patient’s condition is at issue
* Dispute between doctor and patient
Psychotherapist-patient privilege — material conveyed by patient for the purpose of treatment is privileged
Exclusion of Relevant Evidence on Public Policy Grounds
Liability insurance — evidence of liability insurance is not admissible to prove fault or a party’s ability to pay damages
Subsequent remedial measures — evidence of repairs or other remedial measures taken after an injury is inadmissible to prove fault, defect, or inadequate warning
Settlements, offers to settle, & plea bargaining
* Civil cases — compromises, settlement offers, and related statements are inadmissible to prove liability or fault
* Criminal cases — pleas, offers to plea, and related statements are inadmissible to prove guilt
Payment or offers to pay medical expenses — inadmisible when offered to prove liability for injuries
