Evidence Flashcards
(115 cards)
1
Q
Evidence may not be logically relevant (i.e., may be too remote) if evidence involves some other:
A
(1) Time
(2) Event
(3) Person
Than the one involved directly in litigation.
2
Q
Even relevant evidence may be excluded if its probative value is substantially outweighed by a danger of one or more of the following:
A
(1) unfair prejudice
(2) confusion of the issues
(3) misleading the jury
(4) undue delay
(5) wasting time
(6) needlessly presenting cumulative evidence
FRE 403
3
Q
To prove cause and effect.
A
Causation
4
Q
πeats at ∆’s restaurant and gets sick. π offers evidence that others who ate “the same type of food” at the same time at the restaurant also got sick. Admissible?
A
Yes, to show causation.
5
Q
π’s prior accidents or claims are NOT admissible except to:
A
(1) show common plan & scheme of fraud
(2) if relevant on the issue of damage to the π
6
Q
π drives into bridge abutment and sues the City that built and maintained the bridge. ∆City seeks to show π has on 4 other occasions driven into stationary objects and sued. Admissible?
A
Yes, to show character evidence. Not admissible to show that π acted in similar manner.
7
Q
π seeks to show that int he last year 6 other drivers drove into the ame bridge abutment involved in this case. Admissible?
A
Yes to show notice or knowledge
8
Q
Other accidents involving the same instrumentality which occurred under the same or similar circumstances are admissible to show:
A
Notice or knowledge on ∆’s part AND that the instrumentality is dangerous & defective.
9
Q
To infer intent from prior conduct.
A
Intent or State of Mind in Issue
10
Q
π sues claiming pattern of gender discrimination in hiring. ∆ employer denies intent to discriminate and claims that absence of women employees is because no women applicants were qualified. π offers to show that other well-qualified women were denied employment. Admissible?
A
Yes, to show intent of ∆.
11
Q
To rebut Defense of Impossibility:
A
Rebuttal Evidence
12
Q
π ingests mouse while drinking Cola and sues ∆ Bottler. Bottler defends on ground that it is impossible for mouse to get into Cola. π offers evidence of another recent incident in which a mouse was found in Cola. Admissible?
A
Yes, as rebuttal evidence to show that it is possible for mouse to get into Cola.
13
Q
Comparable Sales to Establish Value - Sale price of other chattels or parcels of real property admissible if:
A
(1) Others are of same general description as yours;
(2) Other sales took place in relevant time period;
(3) Same general geographic area
14
Q
Habit Evidence
A
Evidence of a person’s habit is admissible to prove that on a particular occasion the person acted in accordance with the habit.
15
Q
Admissible?
Disposition Evidence
A
Not Admissible
16
Q
Admissible?
Prior act evidence
A
Not Admissible
17
Q
Admissible?
Habit evidence
A
Admissible
18
Q
What is habit? How different from disposition or prior act evidence? Key descriptive words are:
A
(1) Specificity
(Habit = specific; General = disposition)
(2) Reoccurrence - occurs often enough to be habitual (discretion of the court)
19
Q
Intersection accident - Did ∆ stop for the stop sign? ∆ offers witness to testify (i) that ∆ is cautious driver; (ii) that witness has seen ∆ stop at that stop sign on two other occasions; (iii) that witness has seen ∆ stop at that stop sign on 10 or 20 prior occasions. Which of these is most likely to be admitted?
A
(iii) that witness has seen ∆ stop at that stop sign on 10 or 20 prior occasions
(i) = disposition evidence (not admissible)
(ii) = not enough
20
Q
Is evidence of an organization’s routine practice admissible to prove that on a particular occasion the organization acted in accordance with the routine practice?
A
Yes
21
Q
Admissible?
Industrial or Trade Custom
A
Admissible as non-conclusive evidence of standard of care
22
Q
Madge tries to get off bus but driver closes the door on Madge’s foot and drags her for several blocks. Madge sues bus company alleging negligence in failing to install safety device that would prevent their buses from moving when passenger door is open.
(1) Bus Co. offers to show that Bus Co. employs such a device. Admissible?
(2) What if Madge is able to show that 98% of the other bus companies do have the device. Admissible?
(3) Conclusive on liability issue?
A
(1) Admissible - not conclusive though
(2) Admissible - highly persuasive
(3) No
23
Q
General Rule & Exceptions: Liability Insurance
A
General Rule: NOT admissible to show person acted negligently or wrongfully or to show ability to pay.
Exceptions: Admissible when relevant to:
- show ownership or control
- impeach credibility of witness by showing interest or bias
24
Q
∆ denies ownership of building where π was injured. πoffers to show ∆ carries liability insurance on buildling. Admissible?
A
Yes, to show ownership or control.
25
Witness testifies for ∆ to facts of accident. π offers to show that witness is claims manager of ∆'s liability insurance co. - the same company that will have to pay if ∆ is found liable. Admissible?
Yes, to impeach credibility of witness by showing interest or bias.
26
General rule & Exceptions: Subsequent Remedial Measures
General Rule: Not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction.
Exceptions
- ownership and control if disputed
- feasibility of precautionary measures if disputed
27
∆ denies ownership of building where π was injured. π offers to show that ∆ made repairs to the building. Admissible?
Yes, to show ownership and control since disputed.
28
π walks into a glass door that was practically invisible. ∆ contends that there was and is no way to avoid such an accident. π offers to show that, after the accident, ∆ put red stickers on the door to make them more visible. Admissible?
Yes to show feasibility of precautionary measures since disputed.
29
General Rule & Exceptions: Settlements
General Rule: Not admissible to prove fault, liability, or amount of damage.
A broad rule of exclusion that covers:
- actual compromises
- offers to compromise
- offers to plead guilty in a criminal case
- withdrawn pleas of guilty
- pleas of nolo contendere
30
Without prior contact, neighbor approaches π-to-be and says "Are you the fellow who was bitten by my dog? Let's settle." In later lawsuit π offers to testify to neighbor's admission of dog ownership. Admissible?
Yes, because π didn't know there was a claim.
31
∆ says to π, I admit that I owe you the full amount of $10,000 on the promissory note, but if you want your money you'll have to sue me for it. On the other hand, if you want to settle now, I'll pay you $5,000 for a full release. Can π show that ∆ admitted liability on the note?
Yes in order to prove that he knew he was liable on the debt (litigation blackmail)
32
∆ says "Let's settle, I will admit I was negligent. Let's agree on the amount of damage." Admissible?
No, because the admission of negligence was made as part of a settlement discussion of the disputed damage issue.
33
∆ says "It was all my fault. Let me pay your hospital bill." Admissible?
Yes, "It was all my fault" is admissible because admission was made as part of a naked offer to pay medical bill and that is not a settlement offer.
34
4 Preliminary Questions Affecting Character Evidence:
(1) purpose of offer of character evidence;
(2) method of proving character;
(3) type of case;
(4) what trait of character is involved
35
What is the purpose of Character Evidence?
(1) Character directly in issue
(2) Character as circumstantial evidence of person's conduct at time of litigated event
(3) Character to impeach the credibility of a witness
36
What method or technique to prove character?
(1) Specific acts of conduct (not in FL)
(2) Opinion (not in FL)
(3) Reputation (only what KNOWS in FL, not what heard)
37
What type of case?
Civil or Criminal
38
What trait of character?
It must be the specific trait which is substantively in issue in the case.
39
Admissibility of character evidence in civil cases when offered as circumstantial evidence:
Character evidence is NOT admissible when offered as circumstantial evidence to infer conduct at the time of the litigated event.
40
π sues Dan for personal injury damages alleging negligence arising out of an automobile accident. π offers a witness to testify that Dan has a reputation in the community for recklessness. Admissible?
No. Trying to show that since he was reckless before, reckless now (disposition)
41
π seeks to testify that he has been driving for 40 years without ever being perviously involved in an accident. Admissible?
No
42
Admissibility of character evidence in civil case when the character of a person is itself a material issue in the case:
Character evidence is admissible in a civil case when the character of a person (party) is itself a material issue in the case. - character directly in issue
43
Grutz calls Yuckl "a crook." π Yuckl sues ∆ Grutz for defamation seeking $1,000,000 for damages to Yuckl's reputation. ∆ Grutz seeks to show that π Yuckl has on three prior occasions stolen money from his employer. ∆ Grutz also seeks to show that, even before the alleged defamation, π Yuckl had a reputation for being dishonest. Admissible?
Yes because the character of Yuckl is directly at issue.
44
Method of proof if character evidence is directly in issue and therefore admissible:
Any one of the specific techniques (specific acts, opinion, or reputation)
45
Character in Criminal Cases: Basic Rules
(1) Bad character, whether in the form of specific acts or prior misconduct, prior crimes or convictions, bad opinion or bad reputation, is not admissible at the initiative of the prosecution if the sole purpose is to show criminal disposition in order to infer guilt from disposition;
UNLESS AND UNTIL
(2) The accused is permitted to offer evidence of good character for the pertinent trait in the form of reputation and opinion to show disposition in order to infer innocence. Only then may the prosecution respond by showing the bad character of the accused.
(No opinion in FL!)
(3) After the accused offers evidence of good character, the prosecution may respond by inquiry on cross-examination of the accused's good character witness about any specific acts which would tarnish the accused's reputation or which would effect the opinion of the witness.
(4) After the accused offers evidence of good character the prosecution may also respond by calling prosecution witnesses to testify to bad opinions or bad reputation in regard to the character of the accused.
46
Spano is arrested and is on trial for assault of an elderly woman. In court, he looks like a clean, upstanding young man. The prosecution, however, has his "rap sheet" which shows 6 prior arrests for robbery, 3 prior convictions for assault, and 2 prior convictions for perjury.
May the prosecution as part of its case-in-chief show Spano's criminal background?
No
47
Spano is arrested and is on trial for assault of an elderly woman. In court, he looks like a clean, upstanding young man. The prosecution, however, has his "rap sheet" which shows 6 prior arrests for robbery, 3 prior convictions for assault, and 2 prior convictions for perjury.
May the prosecution show Spano's criminal background or any part of it if Spano does not try to show his good character but only takes the stand and denies his involvement in the crime?
No
48
Spano is arrested and is on trial for assault of an elderly woman. In court, he looks like a clean, upstanding young man. The prosecution, however, has his "rap sheet" which shows 6 prior arrests for robbery, 3 prior convictions for assault, and 2 prior convictions for perjury.
May the prosecution show Spano's criminal background or any part of it to show Spano's disposition to be violent?
No
49
Spano is arrested and is on trial for assault of an elderly woman. In court, he looks like a clean, upstanding young man. The prosecution, however, has his "rap sheet" which shows 6 prior arrests for robbery, 3 prior convictions for assault, and 2 prior convictions for perjury.
May the prosecution show Spano's criminal background or any part of it to impeach Spano's credibility (show lack of truthfulness)?
Yes, part of criminal background would be admissible (perjury convictions) to impeach Spano's credibility as a witness.
50
Spano is arrested and is on trial for assault of an elderly woman. In court, he looks like a clean, upstanding young man. The prosecution, however, has his "rap sheet" which shows 6 prior arrests for robbery, 3 prior convictions for assault, and 2 prior convictions for perjury.
May Spano take the initiative to show his good character?
Yes
51
Spano is arrested and is on trial for assault of an elderly woman. In court, he looks like a clean, upstanding young man. The prosecution, however, has his "rap sheet" which shows 6 prior arrests for robbery, 3 prior convictions for assault, and 2 prior convictions for perjury.
For what trait may Spano show his good character?
Peacefulness
52
Spano is arrested and is on trial for assault of an elderly woman. In court, he looks like a clean, upstanding young man. The prosecution, however, has his "rap sheet" which shows 6 prior arrests for robbery, 3 prior convictions for assault, and 2 prior convictions for perjury.
How does Spano show his good character - what method or technique is permissible? Specific acts of good conduct? Opinion? Reputation?
No specific acts.
| Common law + FL = reputation
53
Spano is arrested and is on trial for assault of an elderly woman. In court, he looks like a clean, upstanding young man. The prosecution, however, has his "rap sheet" which shows 6 prior arrests for robbery, 3 prior convictions for assault, and 2 prior convictions for perjury.
Assume Spano calls a witness who testifies that Spano has a good reputation for peacefulness and that in the opinion of the witness Spano is peaceful.
Now what may prosecutor do?
Offer rebuttal testimony
54
Spano is arrested and is on trial for assault of an elderly woman. In court, he looks like a clean, upstanding young man. The prosecution, however, has his "rap sheet" which shows 6 prior arrests for robbery, 3 prior convictions for assault, and 2 prior convictions for perjury.
Assume Spano calls a witness who testifies that Spano has a good reputation for peacefulness and that in the opinion of the witness Spano is peaceful.
May the prosecutor ask the witness in cross-examination, have you heard (or do you know) that Spano was arrested 6 times for robbery?
Yes.
| FL only what you KNOW
55
Spano is arrested and is on trial for assault of an elderly woman. In court, he looks like a clean, upstanding young man. The prosecution, however, has his "rap sheet" which shows 6 prior arrests for robbery, 3 prior convictions for assault, and 2 prior convictions for perjury.
Assume Spano calls a witness who testifies that Spano has a good reputation for peacefulness and that in the opinion of the witness Spano is peaceful.
May the prosecutor call a witness to testify that Spano was in fact arrested 6 times for robbery?
No
56
Spano is arrested and is on trial for assault of an elderly woman. In court, he looks like a clean, upstanding young man. The prosecution, however, has his "rap sheet" which shows 6 prior arrests for robbery, 3 prior convictions for assault, and 2 prior convictions for perjury.
Assume Spano calls a witness who testifies that Spano has a good reputation for peacefulness and that in the opinion of the witness Spano is peaceful.
May the prosecutor call a witness to testify that Spano has a bad reputation for violence and that in the opinion of the witness Spano is a violent person?
Yes
57
Victim Character - Self-Defense:
The accused may also take the initiative in homicide or assault cases, as part of a self-defense plea, to show the character of the victim as circumstantial evidence to infer that on the occasion in question the alleged victim was the first aggressor. Again, the permissible method of showing character would be by reputation or opinion. The prosecutor could then respond by showing good reputation or opinion concerning the victim or by showing the bad reputation or a bad opinion regarding the accused himself.
58
Harvey shot and killed Victor during a tavern brawl. Harvey is charged with murder but responds with a plea of self-defense. Harvey offers evidence that Victor attacked him with a broken beer bottle and that he, Harvey, was in fear for his life and, therefore, had to shoot Victor.
In this homicide case, may the prosecution now offer evidence of Victor's trait of peacefulness to rebut evidence that Victor was the first aggressor?
Yes
59
Harvey shot and killed Victor during a tavern brawl. Harvey is charged with murder but responds with a plea of self-defense. Harvey offers evidence that Victor attacked him with a broken beer bottle and that he, Harvey, was in fear for his life and, therefore, had to shoot Victor.
May Harvey call a witness to testify that Victor had a bad reputation for violence and that in the opinion of the witness, Victor was a violent person?
Yes
60
Harvey shot and killed Victor during a tavern brawl. Harvey is charged with murder but responds with a plea of self-defense. Harvey offers evidence that Victor attacked him with a broken beer bottle and that he, Harvey, was in fear for his life and, therefore, had to shoot Victor.
If Harvey does so attack the character of Victor, may the prosecution now respond by calling a witness to testify that Victor had a good reputation for peacefulness and that, in the opinion of the witness, Victor is a peaceful person?
Yes
61
Harvey shot and killed Victor during a tavern brawl. Harvey is charged with murder but responds with a plea of self-defense. Harvey offers evidence that Victor attacked him with a broken beer bottle and that he, Harvey, was in fear for his life and, therefore, had to shoot Victor.
If Harvey does so attack the character of Victor, can the prosecutor now call a witness to testify that Harvey has a bad reputation for violence and that in the opinion of the witness Harvey is a violent person?
Yes
62
Harvey shot and killed Victor during a tavern brawl. Harvey is charged with murder but responds with a plea of self-defense. Harvey offers evidence that Victor attacked him with a broken beer bottle and that he, Harvey, was in fear for his life and, therefore, had to shoot Victor.
Harvey calls a witness to testify that witness had seen Victor use a broken beer bottle to grievously wound and almost kill three bar patrons in fights Victor started last year. Admissible?
No
63
Harvey shot and killed Victor during a tavern brawl. Harvey is charged with murder but responds with a plea of self-defense. Harvey offers evidence that Victor attacked him with a broken beer bottle and that he, Harvey, was in fear for his life and, therefore, had to shoot Victor.
What if the witness testifies that witness told Harvey about Victor's other acts of brutality some weeks before Harvey shot Victor? Admissible?
Yes
64
Harvey shot and killed Victor during a tavern brawl. Harvey is charged with murder but responds with a plea of self-defense. Harvey offers evidence that Victor attacked him with a broken beer bottle and that he, Harvey, was in fear for his life and, therefore, had to shoot Victor.
What if the witness testifies that witness told Harvey about Victor's other acts of brutality some weeks before Harvey shot Victor? If admissible, relevant to show Victor's violent disposition in order to suggest that Victor was the aggressor?
No
65
Harvey shot and killed Victor during a tavern brawl. Harvey is charged with murder but responds with a plea of self-defense. Harvey offers evidence that Victor attacked him with a broken beer bottle and that he, Harvey, was in fear for his life and, therefore, had to shoot Victor.
What if the witness testifies that witness told Harvey about Victor's other acts of brutality some weeks before Harvey shot Victor? If admissible, relevant to show Harvey's state of mind (his reasonable fear of grievous harm) during the fight with Victor?
Yes
66
In a criminal case alleging sexual misconduct, defense evidence of the alleged victim's sexual history or sexual predisposition to prove consent is limited to:
(1) No opinion or reputation;
(2) Specific instances of sexual behavior of the alleged victim are admissible only (a) if offered to prove that third party was source of semen, injury, or other physical evidence, (b) to show prior acts of consensual intercourse between alleged victim and the accused; or
(3) If exclusion would violate constitutional rights of the accused.
67
In civil cases alleging sexual misconduct, evidence of the sexual disposition or behavior of the alleged victim is admissible only if:
Probative value substantially outweighs the danger of harm to the victim and unfair prejudice to any party.
68
In addition, in order for the alleged victim's sexual behavior to be admissible under the limited exceptions (criminal and civil cases), the defense must:
Give notice and an in camera hearing must be held
69
Specific instances of prior misconduct by the accused - ∆'s other crimes offered for a non-character purpose:
Prior accused misconduct is not admissible to show criminal disposition (unless the accused first offers good character evidence), but it would be admissible if relevant to show motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or lack of accident.
70
Grutz is the VP of Bank. He gambles illegally and loses $500,000. In order to pay his debt, he embezzles from his employer, Bank. Then he falsifies the books to cover up the embezzlement. He discovers that auditors are coming to check the books on Monday. Grutz steals key to get into the bank on Sunday and he burns the bank in order to destroy the books. Assume Grutz is charged only with the crime of arson. Assume also that Grutz offers no good character evidence and that he does not testify. May the Prosecution, as part of its case-in-chief, show the illegal gambling, the embezzlement, the falsification of books, and the theft of the key? For what purpose?
Yes - to show motive, opportunity, etc.
71
Other crimes or past misconduct may be shown to prove:
```
Motive
Intent
Mistake, absence of
Identity
Common Plan or Scheme
```
(MIMIC) - subject to FRE 403
72
∆ is charged with murder of detective. Prosecution offers evidence that ∆ killed ∆'s wife 3 years ago. Admissible?
No
73
∆ is charged with murder of detective. Prosecution offers evidence that ∆ killed ∆'s wife 3 years ago. What if Detective, the victim of the murder charged, was killed because Detective was about to arrest ∆ for the murder of wife?
Yes, to show motive.
74
∆, who is charged with receiving stolen goods, claims he was unaware the goods were stolen. Prosecutor offers evidence that ∆ has received stolen goods on 5 prior occasions from the same thief involved in this case. Admissible?
Yes, to show intent.
75
Murdered Victim is found with .45 caliber pistol, the murder weapon, next to the body. The pistol was owned by Mayor but was stolen in a burglary 3 years ago. May the prosecution show that ∆ who is charged with murder of Victim burglarized Mayor's house 3 years ago and stole the gun?
Yes to show identity.
76
∆ is charged with forging a doctor's name to a prescription in order to illegally obtain drugs from a pharmacy. ∆ denies he did it. May Prosecution show that ∆ forged a prescription 3 years ago to illegally obtain drugs?
Probably not - trying to show disposition or propensity
77
∆ is charged with forging a doctor's name to a prescription in order to illegally obtain drugs from a pharmacy. ∆ denies he did it. May Prosecution show that ∆ forged a prescription 3 years ago to illegally obtain drugs? What if the fictitious doctor's name used on both occasions was "Alloysius Kevorkian Peabody"?
Yes to show modus operandi.
78
∆ is charged with bank robbery. May the Prosecution show that ∆ stole a truck the day before the bank robbery? What if the truck was used in the bank robbery?
Yes if used in robbery. To show common plan or scheme.
79
Pat is charged with bank robbery. Prosecution offers to show motive by evidence that ∆ "was recently released from prison for sexual abuse of a child and needed money to support his heroin addition." Admissible?
No. Shows unfair prejudice.
80
Special rule for cases involving sexual assault and child molestation - prior similar acts to show propensity
In civil or criminal cases charging ∆ with sexual assault or child molestation, the ∆'s prior acts of sexual assault or child molestation may be shown by the prosecution or π.
∆ does not need to open any doors.
Obvious disposition evidence.
Prior acts do not need to be an arrest/conviction.
81
General rule of authentication:
A writing is not admissible until it has been authenticated. A foundation must be laid showing that the writing is what it purports to be, i.e., that it is genuine. Writings are NOT self-authenticating. A testimonial foundation is required.
82
π Yuckl sues ∆ Grutz for breach of a written contract. ∆ Grutz denies he ever executed the contract. π Yuckl offers the original contract in evidence arguing that Grutz signature on it is plainly visible to the court. Admissible?
No - need the foundation proving the signature
83
Methods of Authentication:
(1) Direct Evidence
(2) Circumstantial Evidence
(3) Quantum Proof
(4) Self-Authenticating Documents
(5) Authentication of Photographs
84
Authentication - Direct Evidence in the form of:
(1) Admission
(2) Eyewitness testimony
(3) Handwriting proof (lay witness, expert witness, jury comparison)
85
Authentication - Circumstantial Evidence in the Form of:
(1) Ancient Document Rule: (i) 20 or more years, (ii) regular on its face, (iii) found in a place of natural custody
(2) Solicited Reply Doctrine: Proof that disputed document came in response to prior communication
86
Yuckl mails offer to Grutz and receives back by return mail what purports to be an acceptance signed by Grutz. Sufficient authentication if Yuckl does not recognize Grutz's signature?
Yes - solicited reply doctrine.
87
How much evidence is necessary to lay a proper foundation for authentication?
Sufficient evidence to justify a jury finding of genuineness.
88
π Yuckl testifies he saw ∆ Grutz sign the contract. ∆ Grutz testifies that he did not sign. Is contract admissible if evidence is contradictory? Must the judge be convinced by a preponderance of the evidence that Grutz signed before the contract is admitted into evidence?
Just need sufficient evidence to justify a jury finding of genuineness.
89
Self-authenticating documents are:
(1) Certified Copies of Public or Business Records
(2) Official Publications
(3) Newspapers and Periodicals
(4) Trade Inscriptions or Labels
(5) Acknowledged Documents
(6) Signatures on Certain Commercial Documents as provided by U.C.C.
90
How do you authenticate a photo? Must you call the photographer?
No - proper foundation get a witness to look at it and say it's a fair and accurate depiction.
91
Mrs. Grutz witnesses an intersection accident on Main and State on Jan. 2nd. Litigation ensues. π's attorney wants to get into evidence a photograph of the intersection. But π's attorney has no idea who took the photograph or when it was taken. How can the photograph be authenticated?
Mrs. Grutz can say it is a fair and accurate depiction.
92
Harvey breaks into a grocery store after hours and steals money and goods. No one saw Harvey do it. But the store surveillance camera provides a clear picture of Harvey burglarizing the store. At Harvey's trial, the prosecution offers the picture. How can it be authenticated?
Show camera working at the time and how camera or film was handled.
93
Best Evidence Rule
Requires that a party seeking to prove the content of a WRITING (includes films, photos, X-rays, and recordings) must either (1) produce the original document OR (2) account for the absence of the original.
If the explanation for absence of the original is reasonable, then a foundation has been laid for secondary evidence. Then either a copy or oral testimony may be admitted to prove the content of the original.
94
Best Evidence Rule Applies to:
(1) Legally operative documents - documents that by their existence create or destroy a legal relationship that is in dispute. (E.g., deed, divorce decree, will, written contract)
(2) Witness's knowledge comes from a document - witness wants to recite orally what he read
95
Harvey is charged with murder of wife, Madge. At the time of his arrest, officer found in Harvey's possession an anonymous letter. It said "Dear Harvey, Your wife Madge has been having sexual relations with Mr. Gigilo." In order to prove that Harvey had a motive for killing Madge, the prosecution wants to get the content of this letter into evidence. Officer takes the stand and testifies to finding the letter in Harvey's possession. Then, instead of producing the letter, officer seeks to testify orally about what is said. What ruling on the following defense objections?
(1) Improper authentication
(2) Hearsay
(3) Best Evidence Rule
(1)
(2)
(3)
96
Best Evidence Does NOT Apply to:
(1) Facts independent of the writing (i.e. witness has personal knowledge of a fact that just happens to be described in a writing. No need to produce the writing or explain its absence.)
(2) Collateral Documents - best evidence rule does not apply to writings of minor importance. (Madge happens to testify that she is divorced in a personal injury damage claim. Her treating physician testifies he is licensed to practice medicine preliminary to giving his opinion. No need to produce divorce decree or license.)
97
Issue is - Did Spano make payment? Witness testifies that Witness saw Spano pay $10,000 and get back a receipt. Does the receipt have to be produced?
No
98
Issue is - Did Spano make payment? Witness testifies "I know Spano paid because I read it in the receipt"? Does receipt have to be produced?
Yes
99
Modifications to Best Evidence Rule:
(1) Public Records - certified copies admissible in place of originals
(2) Voluminous documents - If originals are too voluminous to be produced in court, summaries, charts or calculations are admissible in place of originals as long as (a) originals would be admissible if offered and (b) originals are made accessible to opposing party
(3) Duplicates - in place of originals. A "duplicate" is a copy produced by any technique which avoids casual errors and "accurately reproduces the original. A duplicate is admissible to the same extent as the original unless: (i) a genuine question is raised about authenticity of the original; OR (ii) the circumstances make it unfair to admit the duplicate in lieu of the original
100
Age discrimination suit. π reviews 10 years of personnel records of ∆ company and finds that every employee over 50 has been fired for "insufficient initiative." Through a personnel expert, π offers a summary of these findings. Admissible?
Yes. Voluminous documents
101
Competency - Personal Knowledge and Oath:
(1) Perception
(2) Memory
(3) Communication
(4) Sincerity (oath or affirmation)
102
Competency - Common Law Disqualifications Abandoned:
(1) Lack of Religious Belief
(2) Infancy
(3) Mental Incompetency
(4) Prior Convictions
(5) Interest
103
Typical Dead Man Statute
An interested survivor CANNOT testify for his or her interest against the decedent or decedent's representatives about communications or transactions with the decedent in a civil case unless there is a waiver.
N/A in FL
104
Elements of Dead Man Statute:
(1) Witness on stand has to be interested (direct stake)
(2) Must be testifying FOR that interest
(3) Must be testifying against decedent or his heirs
(4) Subject matter must be "as to matters decedent could contradict"
(5) ONLY CIVIL CASES
(6) Can be waived - decedent's testimony goes before jury
105
State Dead Man Statute can apply in Federal Court if:
State whose substantive law applies has such a statute
106
```
Diversity Action in Federal Court. Yuckl sues Grutz for breach of oral contract. ∆ Grutz admits he received an offer but denies he ever accepted it. ∆ Grutz dies before trial. The state whose contract law applies has a Dead Man Statute. AT trial, π Yuckl testifies that "Grutz said to me, 'I accept your offer.'" The most likely ground to exclude Yuckl's testimony is:
Hearsay?
Best evidence rule?
Parol evidence rule?
Dead man statute?
```
Dead man statute
107
Objectionable Questions
(1) Narrative
(2) Leading
(3) Misleading or Compound or Argumentative
108
Leading permitted in certain situations:
(1) Hostile witness
(2) Cross-examination
(3) Preliminary matters
(4) Handicapped witness
109
Witness Use of Writings in Aid of Testimony
Witness usually cannot read testimony from previously prepared document but may use a writing in aid of oral testimony in two situations when the witness can't remember.
(1) refreshing recollection; and
(2) recorded recollection
110
Refreshing Recollection
When a witness memory fails, anything can be used to jog the memory of the witness.
111
Mrs. Garibaldi's house was burglarized. ∆ is charged. Prosecutor calls Mrs. Garibaldi to testify to the things that were taken from her house by the burglar. She cannot remember some of the items. The prosecutor has a copy of a tabloid newspaper that reports details of the burglary.
What can the prosecution do to get Mrs. Garibaldi to remember? Leading question? Show her the article to refresh her recollection?
Answer
112
Mrs. Garibaldi's house was burglarized. ∆ is charged. Prosecutor calls Mrs. Garibaldi to testify to the things that were taken from her house by the burglar. She cannot remember some of the items. The prosecutor has a copy of a tabloid newspaper that reports details of the burglary.
What ruling if ∆ objects to use of the article to refresh on grounds of improper authentication? Not the best evidence? Hearsay?
Answer
113
Mrs. Garibaldi's house was burglarized. ∆ is charged. Prosecutor calls Mrs. Garibaldi to testify to the things that were taken from her house by the burglar. She cannot remember some of the items. The prosecutor has a copy of a tabloid newspaper that reports details of the burglary.
Is the article admissible in evidence at the request of the prosecution?
Answer
114
If the tabloid article is used to refresh, may defense counsel see it? Use it in cross-examination? Introduce the article into evidence?
Answer
115
Evidence that has any tendency to make a material fact more or less probable than it would be without the evidence (FRE 401).
Logical Relevance
