My notes (one) Flashcards
Basic types of evidence
testimony, exhibits/tanglible evidence (demonstrative and real), evidentiary stipulations, and judicial notice.
When can court take judicial notice of evidence?
The court may judicially notice a fact that is not subject to reasonable dispute because it:
1) is generally known within the trial court’s territorial jurisdiction; or
2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned (ex. that November 25, 2023 was a Saturday based on referencing a calendar0
Rule 602 (requirement for witness to testify)
1) personal knowledge
2) Evidence to prove personal knowledge may consist of the witness’s own testimony.
3) does not apply to a expert witness
Rule 603 (oath)
Before testifying, a witness must give an oath or affirmation to testify truthfully. It must be in a form designed to impress that duty on the witness’s conscience.
Legal requirements to get exhibits (tangible evidence) introduced
1) Mark (name the piece of evidence, ex. state exhibit #1)
2) Show to opposing counsel (judge can insist upon demand by opposing counsel)
3) Identify??? (this is not authentication/laying the foundation, ask witness to identify the exhibit)
4) Lay the foundation.
5) admit
6) publish.
How to lay foundation for real evidence
1) authenticate (901: show that sufficient to support finding that it is what introducer claims it is), 2) show that the condition is not materially different from time of incident.
When do you need a chain of custody as an aspect of authentication (for real evidence)?
A chain of custody shows continuous possession of the exhibit. Usually put in evidence bag immediately. Don’t need each and every person who has touched in when in evidence bag. Just those who have done something with it (they describe what they did and condition changes on bag itself if they take it out). Only need chain when piece of evidence isn’t distinctive enough to be sufficient to show that it is what it purports to be.
Things with unique markings don’t need chain of custody.
How to lay foundation for demonstrative evidence
1) show that it is a fair and accurate representation of what it purports to represent, 2) as of the relevant time, 3) helpful to the jury.
Demonstrative evidence
Objects, pictures, models, displays or other devices used in a trial or hearing to support facts that the party is trying to prove.
When is relevant evidence not admissible
Relevant evidence is admissible unless any of the following provides otherwise: 1) the US Constitution, 2) a federal statute, 3) fed rules of evidence, 4) other rules prescribed by the Supreme Court
Note: Irrelevant evidence is not admisslbe.
Rule 401 (when is evidence relevant)
Evidence is relevant if a) it has any tendency to make a fact more or less probably that it would be without evidence (logical relevance); and b) the fact is of consequence in determining the action (materiality)
Rule 403 (Reasons court can exclude relevant evidence)
The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issue, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.
Preliminary analytical approachdeterminingif evidence admissible
1) what item of evidence
2) offered to prove what factual proposition
3) is the FP of “consequence in determining the action”
4) Does the E tend to make the FP more or less probable
5) is probative value substantially outweighted by the prejudical effect
6) does some other rule (of exlusion) bar admission.
M told D that R said “I’m going to get D”
FP1: Offered to prove D feared R
FP2: Offered to prove that M speaks English
FP3: Offered to prove R died due to gunshot wound
FP4: R planned to “get that boy”
FP1: Is logically relevant to a material proposition
FP2: probative but not material, so not relevant.
FP3: Material, but very low probative value. Even if logically relevant, it would fail 403 balance.
FP4: Logically relevant and material, but hearsay.
E1: D heard that police officer had “clubbed and seriously injured an old man.”
FP1: Reason to fear police officers.
Material because it ties to an element of self-defense. Logically relevant because it would make more probable that they would have a reasonable belief there was an immediate threat of death/serious bodily harm. Is relevant.
E1: Defendant hear that police officer had “clubbed and seriously injured an old man.”
E2: Old man died of senility and alcoholism, and had no bruise or marks.
FP2: No reason to fear.
Court: if man died of senility and alcoholism, then didn’t die by clubbing. Someone is lying, the person lying could be D. Relevant.
Police shoot man who he though reached for a gun.
E!: D says the man made a “quick movement.”
E2: Man didn’t have a weapon.
Is E2 admissible?
No. No logical relevance. Police didn’t know that at the time so had no bearing on his reasonable belief his life was in danger.
Direct evidence
No inference required (ex. I saw J hit S).
Circumstantial evidence
Requires one or more inferences. Ex. “I heard J threaten S” to conclude that J hit S. Inference is that people who treaten tend (to some degree) to carry out their threats
Trial judge excluded results of a test indicating the decedent’s blood alcohol level was .24% at the time of his death, because a nurse testified that decedent didn’t have alcohol on breath and was not intoxicated. Was this correct?
No. It should have been admitted. The judge doesn’t make decisions based on what they think is true. They assume everything is true, and make decision on probative value and prejudicial effect based on that assumption. Credibility is for the jury to decide.
Charged with possession of firearm and felony assault. Prior conviction for felony assault. P allowed to present name of prior conviction as “felony assault.” D had been willing to stipulate to them being a felon, but not name of crime. Was this correct?
No. Reversible error. It is being offered to support that he meets condition of being a felon, but too likely to lead to improper conclusion related to being more likely to commit another felony assault.
It is logically relevant even in face of alternative explanation, because alternative explanation has no effect on it.
But alterantive way of proving can discount probative value.
Is probative value how much proof something provides?
No. It isn’t just how much proof it provides, but also how much you need it to prove what you’re trying to prove.
Probative value weight when their is an alterantive?
Discount probative value because of alternative, and then decide if prejudicial effect substantially outweighs the probative value (but only if you get full value from the evidentiary alternative?)
Can you stipulate to committion action with malice aforethought in murder case without stipulating to the murder to block evidence?
No. The State has the right to tell their story. The narrative is an essential part of a case. Something like felon status is a special case because it isn’t part of the state’s narrative. You ordinarily can’t stipulate away proof of an element.
Is telling a story with descriptive richness part of the probative value vs prejudicial effect calculation?
Yes.
Ways to introduce character evidence, when allowed, general (Rule 405)
1) testimony about reputation, 2) testimony about opinion, 3) testimony about specific acts.
When is character evidence prohibited from being used 404(a)(1). General rule.
Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.
Exceptions exist in criminal cases and as applied to witness’s character.
Character
A generalized description of one’s disposition or of one’s disposition in respect to a general trait such as honesty, temperance, or peacefulness.
S charged with assaulting J. P wants to present character evidence via B’s testimony. B says S is a violent person with a reputation for being violent. B has personally seen her slap small children and animals in a brutal way on repeated occasions. P wants to show this on the theory that a person with a violent disposition is more likely to act violently in a specific situation. Is this allowed?
No.
Train switchman didn’t switch track and didn’t alert other train to stop. Negligence claim.
E: Siwtchman drank a lot
FP1: Prove he was drunk when he didn’t switch the track
FP2: Company had knowledge he was a drinker so they were negligent in keeping in employing him.
404 blocks FP1 (action in accordance with character)
Admissible to show FP2, but you still have to do the 403 analysis.
Can instructions reduce prejudicial effect?
Yes.
Character evidence exception in criminal cases
a) a D may offer evidence of the d’s pertinent trait, and if the evidence is admitted, the P may offer evidence to rebut it.
b) subject to the limitations in Rule 412 (sex offense cases) , a D may offer evidence of an alleged victim’s pertinent trait, and if the evidence is admitted, the P may: 1) offer evidence to rebut it; and ii) offer evidence of the D’s same trait; and
c) in a homicide case, the P may offer evidence of the alleged victim’s trait of peacefulness to rebut evidence that the victim was the first aggressor.
rule 405 (methods of proving character)
By reputation or opinion: Whenever admissible
By specific acts: 1) on cross examination of charecter witness, 2)
When a person’s character or character trait is an essential element of a charge, claim, or defense.
D has witness testify that he has a reputation for being honest, truthful, and a law abiding citizen.
P cross-examines witness, asks if they had ever heard that on a specific date 27 years prior D had been arrested for stealing. Witness said no. Was this appropriate?
Yes. It tests witness’s qualifications to address reputation.
J sues S for damages because S shot J without provocation. S says she was defending herself when J came at her with a knife. Can S offer testimony of witness that S has a peaceful character?
No. This is a civil case.
J sues S for damages because S shot J without provocation. S says she was defending herself when J came at her with a knife. Can S offer testimony of witness that 1 hour before shooting witness saw J hurtling knife at picture of S while muttering obscenities?
Yes. This can be used to show something other than character.
Attempted murder. S shot J without provocation. S says she was defending herself when J came at her with a knife. P wants to offer testimony of witness familiar with S that S has reputation for being a violent person
No. D hasn’t opened the door.
Attempted murder. S testifies that J rushed her with big knife and was the first aggressor. But hasn’t presented character testimony. Can gov, in rebuttal, offer testimony that J was known in his community as having a peaceful reputation?
No. This can only be done in a homicide case. This is an attempted homicide case.
S shoots J. Attempted murder of J. Claims self-defense. S says J rushed her with a knife. S says she’s seen J fight before. Wants to use this to show he has a violent character. Allowed?
No. Can only use specific act when character is end point of what you’re trying to prove. It has to be an essential element. It is not an element of self-defense to show violent character.
Does character trait have to be relevant?
yes. Ex. you can’t show a disposition for greed in a straightforward, unprovoked murder case.
S character witness has given testimony that J has a violent character. On cross, can P ask if she has heard that J turned the other cheek when slapped by an angry customer at 7/11?
Yes (assuming prosecutor has a good faith basis that this happened).
S character witness has given opinion testimony that J has a violent character. Later, in their own case, can P introduce reputation testimony that J had a peaceful reptutation?
yes. Reputation can be used to rebut opinion (any allowed type can be used to rebut).
Rebuttal case. Can P present evidence that S had a reputation as a violent person to rebut claim that J has a violent reputation?
Yes, because it is evidence of the same trait.
When can P introduce character evidence without the door having been opened?
In homicide cases where the defense is self-defense and D is claiming that the victim was the first aggressor.
Other crimes, wrongs, or acts used as character evidence (404(b)), prohibited uses, permitted uses, other requirements?
1) Not admissible to prove a person’s character in order to show person acted in accordance with the character.
2) This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan knowledge, identity, absence of mistake, or lack of accident.
3) Notice in a criminal case: In a criminal case, the prosecutor must:
provide reasonable notice, inlcuding reasoning behind purpose, before trial unless good faith reason.
Reasons evidence of other crimes, wrongs, or acts can be admitted
non-character purposes, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident
Does 403 still apply in a 404 case?
Yes.
Facts: Murder in drive-by shooting
E: D connected to prior drive-by involving same characters.
FP1: Propensity for drive-bys
FP2: Reason for revenge
FP3: Identity
FP1: No.
FP2: Yes (motive/intent)
FP3: No, not unique enough. ID has to be really probative to overcome the 403 balance.
Prior event: Phones police, says dead man at his house. Man was shot. Caller had been sleeping and drinking. Doesn’t know how guy got there. Never convicted.
Current event: Phones police, says old dead man at his house. He was shot. He’d been sleeping and drinking. Doesn’t know how guy got there.
Prior admissible?
No. Evidence was not admissible for any purpose because he was never proven guilty.
Standard for proof for prior crime: Clear and convincing evidence???
Trial court had said it showed identity, lack of accident, and plan. Appeals court says not adequate evidence that he was involved in the prior act.
Doctrine of chances
A rare act that can be a random occurrence becomes less likely random the more times it happens. How likely is it that the same person would be innnocently involved in this act this many times? Can be used for identity.
J arrested on warrant for possession of marijuana plants based on undercover investigation. Claims they have wrong guy. P wants to show he had been convicted of marijuana plants on three different occasions. Says it goes to identity. Allowable?
No. Similarity here is not sufficiently unique. Plenty of people accused of this fact pattern. No signature crime.
J arrested on warrant for possession of marijuana based on undercover investigation. Claims wrong guy. Says plants in his possession were just big weeds with innocent leaves. P wants to show three prior arrests for marijuana possession to go to knowledge. Allowable?
Yes
J charged with murder of S. J says he has an ailibi. He was in Djibouti at the time of murder. P wants to introduce evidence that on day of murder J robbed a liquor store four hours prior in same town has murder. P would argue on grounds of opportunity here. Allowable?
D would respond by offering to stipulate. P would say they have right to tell story. D would say out of sequence of crime, and so on.
J charged with murdering S by shooting S. J says was cleaning gun and it went off by itself. P wants to intro that three months earlier S had J arrested for embezzling hundreds of thousands of dollars, says it goes to motive, intent, lack of accident?
Yes
J charged with murdering S by shooting her in left eye using a rare gun. J says shot her in eye but she was about to hack him to death with a butcher knife. P wants to intro that on another occassion J shot two people, both threw left eye using the same rare gun. Allowable for intent?
Issue on which it is to bear has to be subject to actual controversy. So to use intent, intent must actually be disputed.
Rule 104 (preliminary questions), in general
a) In general. The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by evidence rules, excdept those on privilege.
Rule 104(b) relevance that depends on a fact
When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist. The court may admit the proposed evidence on the condition that the proof be introduced later.
sufficient = could a reasonable jury come to this conclusion.
This is conditional relevance
Rule 104 preliminary questions and cross-exaiming a defendant in a criminal case
By testifying on a preliminary question, a defendant in a criminal case does not become subject to cross-examination on other issue in the case.
Pattern for situations of Conditional relevance
We are talking about a situation where e will only be logically relevant to a factual proposition if something else, x, is true.
X is the preliminary question of fact.
Ex. My dog does not bite, used to reach conclusion that nearby dog doesn’t bite. This is logically relevant only if that is the person’s dog.
J sues S for personal injuries arising from a car accident.
E: A was driving. To prove: S was responsible. X: A was an employee of S acting within the scope of A’s employment. What should the judge do?
Judge can let it in contingent on enough evidence coming in later to show that A was an employee of S, or the judge can hold it off until enough evidence comes in. The jury then decides if it believes the evidence and decides the weight.
The judge only decides if there is enough evidence for a rational factfinder to conclude the FP (a sufficiency standard)
Standard for 104(a) questions vs standard for 104(b) questions
104(a), where admissibility generally depends on some preliminary fact being true for some reason other than conditional relevance, the judge uses a preponderance standard.
104(b): When logical relevance depends upon some preliminary fact being true, the judge uses a sufficiency standard.
J sues for breach of contract. S doesn’t think there was a contract. J wants to offer a document that he says is a contract signed by S. Contract has to be authenticated to be admitted. Who works out the matter of authenticity? What role does the judge play? What role does the jury play?
If it is not what it purports to be, then it isn’t relevant to the case. So 104(b) applies. Judge uses sufficiency standard to decide whether or not to admit it.
Rule 901 (authenticating or identifying evidence)
a) In general: To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must
produce evidence sufficient to support a finding that the item is what the proponent claims it is.
Facts: H possessed 5,000 stolen videotapes and was selling them. Issue is whether he knew they were stolen.
Defense: Believed they were obtained legitatmely
P wants to intro similar act in past where bought TVs for super cheap price and then sold them. Wants to use to show knowledge. Allowable?
This only shows knowledge if he knew TV sets were stolen property. But there is no evidence of this. Judge blocks this because it fails the sufficiency test.
Ex. of preliminary fact depending on something other than conditional relevance?
proving foundational facts for a hearsay exception
When can habit be introduced? (rule 406)
Evidence of a person’s habit or an organization’s routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. The court may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness.
Habit vs character
Character is a trait across a lot of circumstances (ex. honesty).
Habit is a regular practice of meeting a particular kind of situation with a specific kind of conduct (ex. a habit of taking a particular route when driving to the office every morning, buckling your seatbelt whenever you ride in a car, or making a routine practice of checking your mailbox at 4 o’clock everyday).
A habit doesn’t have to be invariable. You just have to have a regular practice of meeting a particular kind of situation with a specific kind of conduct.
P slips and falls and hurts neck. Doctor checks them but doesn’t mark looking at back (section is left blank). Turns out there was a back injury that, because untreated, causes permanent damage.
Evidence: Doctor testifies that they always check back when their is a neck injury. Is this admissible?
Yes. It is a habit.
Note: That it is regular practice is a preliminary question, but it is not a question of conditional relevance (because it is relevant regardless of whether the answer is yes or no).
Rules 413, 414, and 415 (rape sword rules)
In general, they make admissible in criminal or civil proceedings alleging sexual assault or child molestation, evidence of prior offenses (specific acts) of sexual assault or child molestation by D, for any relevant purpose. This includes proof of character to show action in accordance with character. This can be done even if the door hasn’t been opened by D.
Rule 412 (rape shield law)
Excludes, from most cases involving sexual misconduct, evidence of past sexual misconduct or sexual predisposition of the victim. Prevents D from introducing such evidence as a pertinent character trait of the victim.
Rule 802 (when is hearsay admissible, generally)
hearsay is not admissible unless any of the following provides otherwise:
a federal statute;
these rules; or
other rules prescribed by the Supreme Court.
Hearsay definition (rule 801(c))
Hearsay is a statement that 1) the declarant does not make while testifying at the current trial or hearing; and 2) a party offers in evidence to prove the truth of the matter asserted in the statement.
aka: An out of court statement offered to prove the truth of the matter asserted.
declarant
The person who made the statement
Statement
a person’s oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.
Hearsay exclusion vs exceptions
If exclusion, then it is not hearsay (801(d)). If exception, then it is hearsay but it comes in anyway.
Hearsay analytical approach
1) what item of evidence is being offered?
2) offered to prove what factual proposition?
3) Is the item of evidence a “statement”
4) Was it made out-of-court
5) Is it offered to prove the truth of the matter asserted?
6) Does an exception or exclusion apply.
In court: “I saw J hit S.” Hearsay?
No.
“A told me that J hit S.” Hearsay?
Yes (if to prove that J hit S).
Two decedents. One dies before the other one, then the other get’s their estate. When the second dies that person’s children from a previous marriage gets everything. Both die at same time in plane crash.
But, deputy on seen said he saw the wife dead, and then after seeing the wife dead, heard the husband say “I’m still alive.” Is this statement hearsay?
No, if it is used to show that he spoke. It’s just a coincidence that what the statement is being used to show is the same thing the statement says.
S said “Clause tried to kill me.”
FP1: To show that Clause tried to kill S?
FP2: To show that S had the ability to speak?
FP1: Hearsay.
FP2: Not hearsay.
