Evidence Flashcards
What is the definition of relevance
Evidence that has any tendency to make a fact of consequence more probable or less probable than would be the case without the evidence
What is the threshold inquiry for determining the relevance of evidence?
- Materiality (“of consequence”)
2. Probativeness (any tendency to make the proposition more or less likely)
All relevant evidence is admissible, unless…
- Some specific exclusionary rule is applicable, or
2. The court uses its Rule 403 discretion to keep it out.
When may the court may exclude otherwise relevant evidence
Under Rule 403, if it determines that the probative value of the evidence is substantially outweighed by
- danger of unfair prejudice,
- confusion of the issues,
- misleading the jury,
- undue delay,
- waste of time, or
- unduly cumulative.
Is Plaintiff’s accident history admissible?
Generally inadmissible because it shows nothing more than the fact the plaintiff is accident prone.
Admissible if cause of damages is in issue.
Are similar accidents caused by defendant involving the same event or condition admissible?
Generally other accidents involving defendant are inadmissible because they suggest nothing more than general character for carelessness.
Other accidents involving the same instrumentality or condition and occurring under substantially similar circumstances may be admitted to prove
- Existence of a dangerous condition
- Causation
- Prior notice to the defendant
Prior conduct maybe admissible to prove…
- Inference of intent on later occasion,
- Selling price of other similar property in the same location and close in time if value is in issue, or
- Habit to show evidence of how a person acted on the occasion.
What is the difference between “habit” and “character” evidence?
Habit shows frequency of conduct under a particularity of circumstances.
Character evidence refers to a particular person’s general disposition or propensity.
When is evidence of liability insurance admissible?
Evidence that a person has or does not have liability insurance is inadmissible to prove the person’s fault or absence of fault.
Policy: to avoid risk that jury will base decision on availability of insurance instead of merits of the case.
Admissible to show proof of ownership/control of instrumentality (if disputed) or for impeachment.
When is evidence of subsequent remedial measures inadmissible?
Inadmissible for purpose of proving negligence, culpable conduct, product defect, or need for warning.
Is evidence of a settlement in a civil case admissible?
Inadmissible to prove liability or weakness in a party’s case, or to impeach through prior inconsistent statement or contradiction.
Statements of fact made in the course of settlement discussions are also inadmissible for these purposes.
Admissible for purposes of impeaching a witness on the grounds of bias.
What is the applicability of exclusionary rule regarding settlement in civil cases?
Only applies if there is a claim that is disputed (at the time of settlement discussions) either as to validity or amount of damages
Is an of offer to plead guilty admissible?
No.
Cannot be used against the defendant in the pending criminal case or in a subsequent civil litigation based on the same facts.
Is evidence of a withdrawn guilty plea admissible?
No.
Cannot be used against the defendant in the pending criminal case or in subsequent civil litigation based on the same facts.
Is evidence of a plea of nolo contendere (“No contest”) in criminal cases admissible?
No.
Cannot be used against the defendant in subsequent civil litigation based on the same facts
Are offers to pay medical or hospital expenses admissible to prove liability?
No.
What is character evidence potentially admissible to prove?
Potentially admissible to prove:
- Person’s character is material element in the case,
- Conduct in conformity with character at the time of the litigated event, or
- Witness’s bad character for truthfulness to impeach credibility
Defendant, during the defense, ____ introduce evidence of a relevant character trait, thereby opening the door to rebuttal by prosecution.
May
How may the prosecution rebut in a criminal case after the defendant has “opened the door”?
- Cross-examining defendant’s character witnesses with “Have you heard” or “Did you know” questions about specific acts; or
- Calling its own reputation or opinion witnesses to contradict the defendant’s witnesses.
What evidence of a victim’s character is admissible in a self-defense case?
A criminal defendant may introduce evidence of victim’s violent character to prove victim’s conduct in conformity, i.e. circumstantial evidence that victim was the first aggressor.
What is the proper method of introducing evidence of a victim’s character in self defense case?
Character witness may testify to reputation for violence or may give opinion
If the defendant, at the time of alleged self-defense, was [aware/unaware] of the victim’s reputation for violence or specific acts of violence, such awareness may be proven to prove defendant’s state of mind
Aware.
Character Evidence in a civil case is generally ____________ to show conformity with character.
Inadmissible
When is character evidence admissible in a civil case?
When character is directly in issue (when character is essential element of claim or defense)
Examples:
- Negligent hiring or entrustment
- Defamation suits based on libel or slander
- Child custody
What is the proper method for proving character in civil cases?
- Reputation
- Opinion
- Specific Acts
Are crimes or specific bad acts or crimes of defendant admissible during prosecution’s case-in-chief?
No.
When is evidence of a defendant’s prior crimes or bad acts permissible in a criminal trial?
MIMIC: Motive Intent Mistake, absence of Identity Common scheme or plan
NOTE: MUST ACTUALLY BE CONTESTED
What is the proper method of offering evidence of a defendant’s other crimes or bad acts?
May offer evidence of a conviction or other evidence that proves the crime or other bad act occurred.
When must the prosecution must give prior notice of intent to use “MIMIC” evidence?
Upon defendant’s request.
When may MIMIC evidence be used in civil cases?
Can be used if relevant (examples: tort actions of fraud or assault)
Generally, in a criminal case alleging sexual assault or child molestation, prior specific sexual misconduct of the defendant is admissible in the ___________ case-in-chief for any relevant purpose, including propensity.
Prosecution’s
When approaching a “writing question,” what three step approach should you take?
- Consider the best evidence rule
- Authentication issues
- Hearsay
When introducing a writing into evidence, a showing must be made that the writing is __________.
authentic (i.e. it is what it proports to be)
What is the standard for authentication of writings?
Conditional relevancy.
Admissible if the court determines there is sufficient evidence from which a reasonable juror could conclude the document is genuine.
What is the methods may be used to authenticate handwriting?
- From witness’s personal knowledge
- Proof of handwriting lay opinion: lay witness testifies to opinion that X wrote the document based on familiarity with X’s handwriting as a result of experience in normal course of affairs (cannot be for the purpose of litigation)
- Proof of handwriting by an expert: Expert will testify on the basis of comparison between the document and genuine sample of X’s handwriting.
- Jury comparison: Jury compares document with sample of X’s writing.
What is the procedural method for authenticating an ancient document?
Authentication may be inferred if:
- At least 20 years old,
- Facially free of suspicion (no erasures, white outs, etc.)
- Found in place of natural custody.
What is the procedural method for authenticating writing under the Solicited Reply Doctrine?
Doctrine can be authenticated by evidence that it was received in response to a prior communication to the alleged offer
What is the procedural method for authenticating a photograph?
Witness can testify on the basis of personal knowledge that a photo is a fair and accurate representation of the people or objects portrayed.
No foundational testimony is necessary for introducing self-authenticating documents, including:
- Official publications,
- Certified copies of public record on file in the public office,
- Newspapers, periodicals,
- Trade inscriptions and labels,
- Acknowledged documents,
- Commercial papers,
- Certified business records (must give reasonable written notice)
In order to prove the contents of a writing, recording, or photograph, what must be produced?
The original
What is the definition of the best evidence rule?
A party who seeks to prove the contents of a writing must either produce the original writing or provide an acceptable excuse for its absence. If the court finds the excuse is acceptable, the party may then use secondary evidence - oral testimony or a copy.
When is the best evidence rule applied?
Two principal Situations:
- The writing itself is a legally operative document (i.e., the writing itself creates rights and obligations
- Witness is testifying to facts that she learned solely from reading about them in a writing.
When is the best evidence rule not applied?
When a witness with personal knowledge testifies to a fact that exists independently of a writing that records the fact
Event happens –> Witness perceives –> Recorded
For the purposes of the best evidence rule, what constitutes an “original writing”?
- The writing itself: Any counterpart intended to have the same effect; any negative of film or print from the negative; computer printout
- Duplicate: Any counterpart produced by any mechanical means that accurately reproduced the original (e.g., photocopy, carbon copy)
For the purposes of the best evidence rule, to what extent are duplicates admissible?
Duplicate admissible to the same extent as original unless it would be unfair or genuine question is raised as to authenticity of original.
What are excuses for non-production of original into evidence?
- Lost or cannot be found with due diligence
- Destroyed without bad faith
- Cannot be obtained with legal process (e.g., in Swiss bank vault)
What are the three escapes under the best evidence rule?
- Voluminous records can be presented through a summary or chart provided the original records would be admissible and they are available for inspection.
- Certified copies of public record
- Collateral documents
What are the basic requirements for a witness to testify?
- Personal knowledge,
2. Oath or affirmation
What are Dead Man’s Statutes?
In a civil action, an interested party is incompetent to testify in support of her own interest against the estate of a decedent concerning communications or transactions between the interested party and the decedent.
STATE STATUTE - no “dead man’s rule” under FRE
When are leading questions allowed?
Generally allowed on cross-examination
Generally not allowed on direct examination, unless
- preliminary/introductory,
- youthful/forgetful witness
- hostile witness, or
- adverse party
When does a right to cross-examination exist?
Party has a right to cross-examine any opposing witness who testifies at the trial.
What is the scope of cross-examination?
Matters within the scope of direct examination and matters that test the witnesses credibility
Under refreshing recollection, may a witness read from a prepared memorandum?
No. She must testify on basis of current recollection.
If witness’s recollection is refreshed during testimony, adversary has right to:
- inspect the memory refresher,
- use it on cross-examination, and
- introduce it into evidence.
If refreshing happens before witness testifies, the adversary is not entitled to these options, but the judge has discretion to allow it.
What foundation must be laid before the recorded recollection exception may be used?
- Showing writing to witness fails to jog memory,
- Witness had personal knowledge at former time,
- Writing was made either by witness or adopted by witness,
- Making or adoption occurred when the event was fresh in witness’s memory, and
- Witness can vouch for accuracy of writing
Lay witness opinions are admissible if:
- Rationally based on the witness’s perception (personal knowledge) and
- Is helpful to the jury in deciding a fact.
What qualifications are necessary for an expert witness?
Education and/or experience
What subject matter may an expert witness testify to?
May talk about scientific, technical, or otherwise specialized knowledge that will be helpful to a jury in deciding a fact.
NOTE: Need not be necessary. Because you could do it without an expert, does not mean expert is precluded.
Expert must have opinion based on reasonable degree of probability or reasonable certainty based on:
- Personal knowledge (e.g., treating physician);
- Other evidence in trial record (usually made known for basis of hypothetical question; or
- Facts outside the record, if they are a type reasonably relied upon in the field by experts in forming their opinions.
What four factors must a judge use, in his gatekeeping role, to determine the reliability of an expert witness’s testimony?
TRAP
- Testing of principles or methodology,
- Rate of error,
- Acceptance by experts in the same discipline,
- Peer review and publication
Either a lay or expert witness may provide opinion testimony, even if it addresses an ultimate issue in the case, except when:
the opinion is simply legal jargon (e.g., “It looked to me like Defendant was engaged in conduct constituting a reckless disregard for the safety of others.”)
This is not admissible because it is not helpful to the jury.
Opinion testimony on the ultimate issue in a criminal case is ______________ if the expert tries to give an opinion on the mental state of the defendant.
Objectionable
When is bolstering a witness’s credibility before it has been attacked allowed?
Prior identification of a person by trial witness. It is not also not barred by the hearsay rule (exclusion from hearsay, comes in as substantive evidence).
