Evidence

Relevance

Any tendency to make the existence of any fact of consequence more or less probable. Requires evidence be:

1) Material: “of consequence” to the case; and

2) Probative: must have “any” tendency to make proposition more/less likely

• All evidence must be relevant to be admisisble

Is all relevant evidence admissible?

Yes unless an exclusionary rule applies; or 403 discretion keeps it out

Rule 403:

ALL EVIDENCE SUBJECT TO THIS RULE

Court has discretion to throw out evidence if the probative value is “substantially outweighed” by danger of:

(1) unfair prejudice

(2) confusing the issues;

(3) misleading the jury;

(4) undue delya/waste of time;

(5) needless presentation of cumulative/repetitive evidence

Public Policy Exclusions List

1) Liability Insurance:

• Not admissible to show negligence

2) Subsequent Remedial Measures:

• Not admissible to show

  • negligence / culpable conduct,

  • a defect

  • a need for a warning

3) Settlements + their negotiations:

• Inadmisisble if

  • evidence that a party was going to make a claim; AND

  • existence of an actual dispute or liabilty/amount existed @ the time

• Admissible to impeach for bias

4) Plea Discussions: Inadmissible

• unless used in a civil case after there was an actual guilty plea

5) Offer/Payment of Medical Expenses: Inadmissible

• BUT admissions of fact accompanying $ = admissible

Methods of Character Evidence

1) Person’s Prior Acts

2) Opinion from W who knows person;

3) Reputation in community

Character Evidence allowed in when?

• ALL TYPES Can ALWAYS be used for non-character purposes

• Can use “untruthfulness” evidence for impeachment

• D’s character in Criminal Case (rules)

• V’s character in Criminal Case (rules)

• Civil Cases (generally not allowed)

  • unless char. is an essential element of a claim/defense is “directly @ issue”

    • Defamation

    • Negligent hiring/entrustment

    • Child Custody

When can D’s character be used in Criminal Case?

• P CAN’T initiate D’s BAD character →

• D CAN initiate D’s GOOD “rep or opinion” character:

  • → then P can rebut w/ bad character

    • “rep or opinion” or “did you know that…” specific acts

When can V’s character be used in Criminal Case?

D can show victims bad trait IF D claims Self-defense & argues V is first aggressor → P may rebut w/ (1) V’s good character; (2) D’s bad character of same trait D offerred against V

~not allowed for S.A. cases tho~

“Character Evidence” common non-character purposes

Motive

Intent

Absense of Mistake

Identity/ M.O.

Common Plan/Scheme

Which prior acts evidence are ALWAYS allowed in criminal or civil case?

prior S.A. or child mol

Authentication requirement?

any writing/ secondary evidence must be authenticated sufficiently through proof to support jury finding of guineness

Authentication Methods

1) opponent admission

2) eyeW testimony of someone who actually saw/executed it

3) handwriting vertification

• opinion of lay W w/ familiarity

• Experty

• up to Jury compare

4) Ancient Docs: auto auth if

• @ least 20 y/o

• condition not suspicious

• in place it normally would be

5) Reply letter: written response sent by author

6) Photographs and videos: W must be fmailar w/ scene

7) X-ray: process was accurate, operater was qualified, custodial chain was good

How to Authenticate Speaker/Oral Statements

1) Voice ID: anyone who heard voice at the time

2) Telephone Convos:

• recognizes other parties voice

• speaker had knoweldge only they could have

• answered as that person after specifically calling them; or

• called business + spoke to rep person

Self-Authenticating Docs

official publications

• newspapers/periodicals

certified public records + their copies

business records

Best Evidence Rule

States that an Original writing must be produced if terms = Material

• Should be using document to prove whats in document

  • if W is not part of creation

• allow secondary if there’s satsifactory excuse

  • loss of original

  • can’t use judicial process to obtain og

  • oh in possession of adversary who after due notice fails to produce og

Used when:

1) writing/video is legally operative /dispositive instrument; or

2) knowledge of W only came from reading it in writing/video

Exceptions to Best Evidence Rule

1) Voluminous records inconvenience - can use charts/summaries

2) certified public records- copies can be made

3) writing collateral to litigated issue

4) what opponent says about writing is admissible against them

What things doe a Jury decide (under best evidence rule)

1) whether OG document ever existed

2) whether trial writing is actually OG

3) whether evidence correctly reflects contents of OG

Requirements for Real evidence

• relevant

• authentic

• if condition important → then in substnatially same conition @ trial

  • survive 403

Any Witnesses requirements

• must have personal knowledge about what saying

• must give oath/affirmation

• must be competent (presumed to be)

  • child: judged determine

  • insane person: allowed if understand truthfullness obligation + have capacity to be accurate

  • juror: can testify only about base things inhibiting their duty as a juror

“Dead Mans Acts”

in a CIVIL CASE

• An interested person can’t testify to a personal transaction/communication w/ a dead man if offerred against the representative or successor of the deadman

  • interested if stand to gain/lose something from judgment - usually a party to the case

Expert Witness requirements

(1) subject requires specialized knowledge

(2) opinion based on sufficient facts/data

(3) opinion = product of reliable principles/methods; and

(4) opinion reflects those methods reliably applied to facts of case

AKA must be: qualified, have opinion supported by proper factual basis, have reasonably probability + reliable

Proper factual basis can be:

• personal observation

• facts made known to expert @ trial

  • need not be admissible/disclosed at trial for expert to consider

• facts reasonably relied upon by other experts in field

Reliability Test (Daubert Factors)

• Testing of principal/methodology

• Rate of Error

• Acceptance by expert in same disciple

• Peer Review + Publication

True or False: Expert can give opinon on Criminal Case about Defendant’s mental state element?

False, opinion not allowed in this context

Excluding/ Sequesting a Witness

Judge must order W excluded from courtroom upon request

BUT can’t exclude:

• human party or designated officer/employee of party

• any person whose presense is essential

• person statutorily authorized to be present

Refreshing Recollection

only the W uses the evidence

• W may use anything to refresh their recollection

• NOT INTRODUCED into evidence

  • NOT read out loud

  • unless opposing party wants it in

Recorded Recollection

Evidence can be read outloud but not marked/introduced

• Can read into evidence if: proper foundation laid

  • W has insufficient recollection;

  • personal knowelge

  • record was made by/directed by/or adopted by W when matter was fresh in their mind

  • record accurately reflects W’s knowledge

Impeachment defined + methods

• discrediting a W

• can never bolster tesitmony unless attacked 1st

  • “rehabilitation”

• own part allowed to impeach own W

Methods:

• General

  • Cross Exam

  • Extrinsic evidence → includes calling other W

• Specific

List of Specific Impeachment Methods

w/ facts specific to current case

• Prior Inconsistent Statement

• Bias/Interest

• Sensory Deficiencies

• Contradictory Facts

w/ untruthfulness character

• Opinion/rep Evidence of untruthfulness

• Conviction of Crime

• Bad Acts involving untruthfulness

Prior Inconsistent Statements

method of impeachment

• party may show by cross-exam that W has made prior inconsistent statements w/ present testimony

  • lack of memory not considered inconsistent

Admissible as Substantive Evidence IF:

• Prior statement was made under oath at prior proceeding → “admisisble non hearsay'“

Admisisble as Extrinsic Evidence IF before evidence introduced: proper foundation is laid →

• W given opportunity to explain/deny statement; and

• Adverse Party given opportunity to examine W about statement

• UNLESS:

  • prior inconsistent statement is an opposing party’s statement

  • inconsistent statment by hearsay declarant can be used to impeach hearsay declarant

  • court may allow in if “justice requires”

Bias or Interest (Impeachment Method)

Evidence that a W is biased or has an interest in outcome of a case tends to show that the W has a motive to lie

Admisisble as Extrinsic Evidence IF first asked about facts that show bias or interest on cross-examination

Sensory Deficiencies (Impeachment Method)

W may be impeached by showing their faculties of perception and recollection were impaired

• Can be through cross-exam or extrinsic evidence

  • no foundation requirement

Contradictory Facts (Impeachment Method)

Cross-examiner can try to make W admit they lied or were mistaken abou some fact

• If W sticks to story → extrinsic evidence can be brought in UNLESS contradictory fact is collateral

Opinion or Reputation Evidence of Untruthfulness allowed?

Allowed for impeachment of ANY W

• specific instances of conduct not allowed though

Done by:

• calling character W to testify about bad reputation or opinion of the target W

Conviction of Crime used for impeachment?

Yes, but only for certain crimes

• if crime involves dishonesty or false statement - W may be impeached

  • perjury, flase statement, criminal fraud, embezzlement, false pretenses

• If crime is any other felony → court uses balancing test

  • If D impeached:

    • P MUST shown probative value outweights prejudicial effect to get evidence in

      • more difficult than 403

  • Any other witness:

    • Standard 403 balancing test

• If more than 10 years since conviction → inadmissible

  • UNLESS:

    • Reverse 403 (harder to meet); and

    • proponent gives adverse party reasonable written notice of their intent to use it

• juvenile conviction → inadmissble

EXTRINSIC EVIDENCE ALLOWED w/out foundation

Prior Bad Acts involving untruthfulness used to impeach?

W may be intrrogated on cross ONLY

• consequences of basd acts cant be used → ex. arrest never allowed

• no extrinsic evidence permitted- EVEN if W denies

  • UNLESS it shows bias

Can you impeach on a collateral matter?

Nope, not on cross or through extrinsic evidence

Impeachment of Hearsay-Declarant

can be impeached by any method- witohut the opportunity to explain or deny-

so they can be impeached even if they’re not a current W at trial

How can a W be rehabilitated?

1) W may explain/clarify on refriect

2) When W bad character for truthfulness was attacked in any form → another W may rebut w/ rep + opinion of good truthfulness.

• no specific acts allowed

3) Prior Consistent Statement

Prior Consistent Statement

Method of rehabilitation:

• if W attached for bias → can use a previous consistent statement before event causing this bias happened

• If W attached for any other prior consistent statements, that negate what W was attacked for (except general truthfulnes)

• also admissible as Substantive evidence of truth of contents

Hearsay definition

Out of court statement, offering in evidence to prove the truth of the matter asserted

• Evidence that is hearsay must be excluded

Hearsay w/in Hearsay

admissible onyl if both the outer hearsay statement and inner hearasy statement fall within an exception to the hearsay rule

~ look for out of court declarant who repeats/ transcribes another person’s statements

Hearsay Definition elements - “Statement”

1) oral or written assertion; or

2) nonverbal conduct intended as an assertion

Hearsay Definition elements - “prove the truth of the matter asserted”

offered for non-truth purpose is ok- if relevant for another purpose then not hearsay

Examples of non-hearsay:

• Statements offered to show their effect on the listen or reader (to prove notice in a negligence case)

• offered to show declarant’s state of mind

'“Non-hearsay” Statements

1) prior identification

2) prior inconsistent statement under oath

3) consistent statement to rebut bias or rehabiliate W

4) opponent party statements

Types of opponent party statements

1) Judicial statements are conclusive and cannot be contradicted

2) Adoptive Statements

• silence considered adoption if:

  • statement was heard and understood

  • party was physically and mentally capable of denying statement;

  • reasonable person would have denied

3) Vicarious Statements

• agent/employee statement can be sued if it was in scope of employment

• person authorized to make statement

List of Hearsay Exceptions

1) Declarant Unavailable

• former testimony

• statement against interest

• dying declaration

• party produced unavailability

2) Excited Utterances

3) Present Sense Impressions

4) Present State of Mind

5) Statement Made for Medical Diagnosis or Treatment

6) Records of Regularly Conducted Business

7) Official Records/Writings

8) Recorded Recollection

9) Learned Treatises

10) Ancient Documents

11) Catch-all exception

Declarant Unavailable

• former testimony exception

Former testimony of now unavailable witness is admissible if:

• given under oath at trial, hearing, or deposition, in same case of in a diff case; and

• party against whom testimony is being offereed had opportunity and similar motive to develop declarant’s testimony at the prior proceeding by direct, cross or redirect

Declarant Unavailable

• statement against interest

admissible if against that persons:

• penuniary (money)

• propriotery (property); or

• penal (criminal) interests

  • in criminal cases, statements must be corroborated w/ other evidence

• w/ awareness it was against interests and personal knoweldge of facts

• reasonable person would say only if believed to be true

Declarant Unavailable

• dying declaration

Only HOMICIDE PROSECUTIONS or CIVIL CASE can use this exception

• Declarant must have believed death was imminent;

• statement concerned cause/circumstances of their impending death

Excited Utterances Exception

• statement relates to a startling event, made while under stress of the excitement from the event (before time to reflect on it)

  • look for exclamation point!

Present Sense Impression

• statement that describes or explains an event condition, made while or immediately after the declarant perceives event/condition

  • “That guy’s drunk.”

Present State of Mind

statement of the declarant’s “then existing” state of mind or emotional, sensory, physical condition is admissible

• includes statements of intent

Statements Made for Purposes of Medical Diagnosis or Treatment

Statement that describes medical history, past or present symptoms, inception/general cause of the condition is admissible IF:

made for and reasonably pertient to medical diagnosis or treatment

Business Records Exception

• Writing/recording of any act, event, condition, opinion, diagnosis is admissible as proof of that occurance IF:

  • “business”

  • entry was made in regular course of business regularly kept

  • entry was made near time of event

  • entrant had personal knowledge of event- or duty to transmit such matters

• Authenticity must be establihed by sponsoring W

• can be used to prove non-occurance

Learned Treatises

hearsay exception if:

1) treatise is established as reliable authority; and

2) except is relief upon by an expert during or brought to experts attention on cross

• read into evidence but not admitted as exhibit

Ancient Documents Exception

any authenticated document prepared before Jan 1, 1998 = admissible

Catch all hearsay exception

State Allowed if:

1) sufficient guarantees of trustworthiness →

• court looks at totality of circumstances

• any evidence that corroborates statement

2) statement is strictly necessary;

3) proponent gives reasonable notice

• substance of statement

• name of declarant

Confrontation Clause

Hearsay not admitted where:

• statement is offered against D in criminal case;

• declarant unavailable;

• statement was “testimonial”; and

• D had no opportunity to cross declarant’s testimonial statement before trial

“testimonial statement”

Confrontation Clause requirement

• Sworn testimony;

• Statements made to law enforcement;

• statement to provide information for later prosecution

• affidavits, written reports, forensic analysis

NOT Testimonial:

• primary purpose was to aid an ongoing emergency:

Which law governs privilege?

Fed court cases

arising under fed substantive law → federal common law

arising from diversity → privilege law of the state (Erie)

Federal and State Testimonial Privileges List

• permit person to refuse to disclose and prohibit others from disclosing certain confidential information

Federal:

1) Attorney-Client

2) Spousal Immunity

3) Confidential marital communications

4) Psychotherapist/social worker-client

5) Governmental

~ clergy- penitent

6) Privilege Against Self-incrimination 5th Am

State:

1) Physician-Patient

2) Accountant-client

3) Professional journalist

Who can assert privilege?

Personal to the holder- only asserted by holder

• must be made in confidence

Do eavesdroppers destroy privilege?

No, as long as person asserting wasn’t negligent in letting person eavesdrop i guess?

Joint Client A-C Privilege? Rule

no privilege b/w 2 clients only to 3rd parties

Physician-Patient Privilege

State priv. only:

Requires:

• professional relationship and info acquired for purpose of medical treatment

• info was necessary for diagnosis or treatment

Priv. belongs to patient

Physician-Patient Privilege Exceptions

• patient puts physical condition in issue

• doctors assistance was sought to aid wrongdoing

• the communications relevant if about breach of duty doc owed

• pateint agreed by K to waive; or

• federal law used

2 spousal privileges

1) Martital communications

2) testimonial privilege

Spousal immunty/testiominial privilege

CRIMINAL CASES ONLY

• can’t be W for spouse-defendant or against spouse interest in criminal case

• must be valid marriage @ time of trial for this

  • Witness spouse can waive if choose to

Confidential Martial Communications

In any civil or criminal case

Confidential communication b/w spouses made in reliance upon intimacy of their marital relationship made during their valid marriage are privileged

both hold privilege

Confidential Martial Communications Exceptions

• comm about future joint crime/fraud

• in legal against b/w spouses; or

• spouse charged w/ crime against other spouse or either’s children

Preliminary Facts determined by Jury vs Judge

Jury

• whether evidence relevant at all, authentic, W has personal knowledge?

Judge- may considered all non-privleged evidence

• W mentally competent?

• Privilege exist?

• Hearsay exception met?

When MUST a jury be excused?

1) hearing invovles the admissibility of a confession;

2) D in crim case i testfying at hearing and requests jury be excused; or

3) justice requires

Judicial Notice of Fact

Fact:

• allowed if:

  • generally known; or

  • can be accurately and readily determined

  • or be a legislative fact

• Conclusiveness:

  • civil case: conclusive

  • criminal case: jury may choose to accept

Judicial Notice of Law

Courts must take judicial notice of fed and state law and offical regs of forums state and fed gov

Courts MAY take notice of municipal ordiances and private acts/resolutoins of congress or local state legislature

Effect of a presumption?

shifts burden of production to party against whom presumption occurs

what law governs presumptions?

state law

Rule of Completeness

where part or all of a statement is introduced into evidence, the adverse party may require the proponent of the evidence to introduce any other part - or a related statement - to make it fair

Habit Evidence

admissible as proof that person acted in accordance/comformity with the habit on the occasion at issue in case

• describes a person’s regular response to a specific set of circumstances

  • Look to:

    • frequency of conduct

    • particularity of circumstances

Lay Witness Opinion Testminoy

opinion is: inadmissible UNLESS:

(i) rationally based on the perception of the witness;

(ii) helpful to a clear understanding of the testimony or to the determination of a fact in issue; and

(iii) not based on scientific, technical, or other specialized knowledge.