Evidence

liability insurance

inadmissible: to prove negligence or ability to pay

admissible: to prove ownership or control, as impeachment, or as part of an admission of liability

subsequent remedial measures

inadmissible: to prove negligence, culpable conduct, a defect in a product or its design, or a need for a warning or instruction

admissible: to prove ownership or control, to rebut a claim that precautions were impossible, or to prove destruction of evidence

settlement offers or negotiations

inadmissible: to prove or disprove the validity or amount of a disputed claim, or to impeach by prior inconsistent statement or contradiction

admissible: for all other purposes

offers to pay and payment of medical expenses

inadmissible: to prove culpable conduct

admissible: for all other purposes. admissions of fact accompanying an offer to pay medical expenses are admissible

withdrawn guilty pleas and offers to plead guilty

Inadmissible for nearly all purposes

no admissible purposes

party seeks to prove the contents of a deed through witness testimony or other secondary evidence

best evidence rule applies

party seeks to prove contents of a contract through witness testimony or other secondary evidence

best evidence rule applies

party seeks to prove contents of a will through witness testimony or other secondary evidence

best evidence rule applies

in a breach of warranty case, witness seeks to testify to the contents of the written warranty, which she read

best evidence rule applies

nurse seeks to testify regarding content of a medical record she read

best evidence rule applies

in an obscenity or copyright trial for a book, movie, photo, et, party seeks to introduce a newspaper review or witness testimony

best evidence rule applies

in case where P claimed D defrauded her by selling her a good she claimed was original, P seeks to testify that she found a label on good that states it was made by another

best evidence rule applies

radiologist seeks to testify regarding the extent of P’s injuries he found in x-rays he took, without producing x-ray

best evidence rule applies

If D denies having made a contract with P, P may introduce secondary evidence to prove contract exists, but not its contents

best evidence rule doesn’t apply

Witness may testify that he is 30 years old and married, without producing the certificates

best evidence rule doesn’t apply

witness may testify to testimony he heard at a prior proceeding, without producing transcript

best evidence rule doesn’t apply

witness may testify that he is a real estate broker without producing license

best evidence rule doesn’t apply if it isn’t material to the case

nurse who took vital signs may testify to them without producing medical record

best evidence rule doesn’t apply

party may introduce chart summarizing personnel records of 500 employees

best evidence rule doesn’t apply

party may introduce a certified copy of certificate of incorporation, original is on file with secretary of state

best evidence rule doesn’t apply

W may testify about plane crash she witnessed, despite fact that crash is captured on video

best evidence rule doesn’t apply

P may testify that D delivered a deed by handing it to her

best evidence rule doesn’t apply

FRE 612 Present recollection refreshed

any writing may be used to refresh a memory, witness can’t read from it while testifying, NO Hearsay problem, because it isn’t offered into evidence

FRE 803(5) Recorded Recollection

only a record that meets foundational requirements (timely made by witness, witness can’t remember events after reading record may be used), record is read into evidence, but NOT an exhibit unless offered by adverse party. This is hearsay subject to an exception

Admissible opinions of lay witness

general appearance or condition of person, state of emotion, matters involving sense recognition, voice and handwritten identification, speed of moving object, value of own services, rational or irrational nature of another’s conduct, intoxication

Hearsay

an out of court statement that is offered in court to prove the truth of the matter asserted. statement may be oral, written, or conduct

Statements by opposing party

doesn’t have to be against interest when made, doesn’t need to have personal knowledge of facts, availability irrelevant, MUST be a Party

Statement against interest

declarant must be unavailable, must be against interest when made, must have personal knowledge of facts. Doesn’t need to be a party

Hearsay exceptions (unavailability required)

former testimony, statement against interest, dying declaration, statement of personal or family history, statement offered against party procuring declarant’s unavailability

former statement

statement made under oath at same or other proceeding at which party against whom it is offered had motive and opportunity to develop testimony

statement against interest

statement against declarant’s pecuniary, proprietary, or penal interest when made

dying declaration

(homicide or civil case only) statement made while declarant believed death was imminent concerning the CAUSE or CIRCUMSTANCES of impending death

statement of personal or family history

made by family member or one intimately associated with family (e.g., birth, death, marriage)

statement offered against party procuring declarant’s unavailability

statement of unavailable declarant offered against party who intentionally procured declarant’s unavailability

Excited Utterances

statement must related to a startling event, made while still under stress of excitement from event

present sense impressions

must describe or explain an event or condition; doesn’t have to be startling. Statement must be made while or immediately after perceiving the event or condition

present state of mind

statement of then existing state of mind, emotion, or sensation. usually introduced to establish intent. Admissible when state of mind is a material issue or to show subsequent acts of declarant

statement for medical diagnosis or treatment

statement of past or present physical condition, or the cause of the condition, made for the purpose of diagnosis or treatment

business records or absence thereof

record made in the regular course of business, consisting of matters within the personal knowledge of one with a business duty to transmit. Lack of record may be used to show nonoccurrence of event

public records and reports or absence thereof; records of vital statistics

records and reports of public agencies regarding their activities and records of birth, deaths, marriages. Absence of record is admissible to show nonexistence of matter

judgements - hearsay exception

a copy of a judgment of a prior felony conviction is amissible to prove any fact essential to the judgment. In a criminal case, it may be used for this purpose only against the accused

ancient documents

statements in authenticated documents prepared before Jan 1 1998

documents affecting property interests

statements in a document affecting an interest in a property (deed, will)

learned treaties

statements from authoritative works admitted if called to attention of expert witness and established as reliable authority

reputation

reputation evidence concerning person’s character, person’s personal or family history, land boundaries, or community’s general history

family records

statement of fact found in family Bibles, jewelry, engravings, tombstones, etc.

market reports

market reports and public compilations generally relied on by the public or persons of a particular occupation

spousal immunity

one spouse can’t be compelled to testify against the other spouse in any criminal proceeding, only witness-spouse may invoke, privilege can only be claimed during marriage, but covers information learned before and during marriage

confidential marital communications

communications made in reliance upon intimacy of marital relationship are privileged. applies to civil and criminal proceedings. both spouses have privilege not to disclose, and can prevent the other from disclosing. Privilege survives marriage, but covers statements only made during marriage

FRE 401 - relevance

evidence is relevant if it is material and probative

relevant evidence generally

generally relates to time, person, or event at issue, with exceptions for certain occurrences such as: to prove causation, prior false claims, similar accidents cause by same condition, rebutting claim of impossibility, habit, business routine and industry custom

Rule 403

evidence balancing test. Judge has broad discretion to exclude if its probative value is SUBSTANTIALLY outweighed by: unfair prejudice, confusion of issues, misleading jury, undue consumption of time

character evidence ask

for what purpose is this evidence being offered?

character evidence offered as substantive

allowed for reputation testimony, opinion testimony, specific acts for motive, intent, mistake, identify, common plan or scheme

Exception to character substantive evidence specific acts

if character is directly at issue; in sexual assault cases or child molestation cases; when act is independently relevant MIMIC

character evidence in criminal case

Defendant may introduce own good character to show innocence, prosecution may introduce bad character as rebuttal (open the door), MIMIC, sex assault or child molestation

when character of victim admissible

defendant may introduce if relevant to their innocence, prosecution may rebut with D’s bad character for same trait or victim’s good character for same trait

character evidence in civil cases

generally not admitted, unless it is directly at issue; specific similar acts for sexual assault or child molestation; or MIMIC

Forms of real evidence

direct, circumstantial, original, prepared

direct evidence

offered to prove the facts about the object as an end in itself. example = permanent injury

circumstantial evidence

facts about object are proved as a basis for an inference that other facts are true (race of child to demonstrate same as alleged father)

original evidence

has some connection with the transaction that is in question at trial (alleged murder weapon in murder case)

prepared evidence

also demonstrative evidence. examples are sketches, models, jury view of scene

Real evidence common issue

must be properly authenticated. Recognition testimony by witness, chain of custody if evidence is type likely to be confused or easily tampered with

what must be shown for chain of custody

proponent must show the object has been held in a substantially unbroken chain of possession, need not negate all possibilities of substitution or tampering, but must show adherence to some system of identification and custody

documentary evidence common issues

authentication and best evidence rule

Writings

must be self authenticating or proponent must prove it is what they claim it is by standard for authentication (proof sufficient to support a jury finding of genuineness) or authentication by pleadings or stipulation, or evidence of authenticity

Oral statements

require authentication only when identify of speaker is important

When does best evidence rule apply

when writing is legally operative or dispositive instrument. When witness’s knowledge of fact comes from having read the document. Original must be produced unless original is unavailable for some reason other than serious misconduct

Requirements of witnesses

personal knowledge of subject matter, sworn oath or affirmation to testify truthfully, all witnesses presumed competent until demonstrated not

What is a dead man act?

a dead man act may bar an interested party from testifying in a civil case about a communication with a decedent, if that testimony is offered against the decedent’s representative

when does dead man act apply

not recognized by federal rules, statutes vary by state. Common exception is interested person may testify to facts that occurred after death, protection can be waived if protected party calls interested person to testify

When does expert opinion testimony

is the subject matter one where scientific, technical, or other specialized knowledge would assist the trier of fact (relevant and reliable)

who can testify as expert

must be qualified, possess reasonable probability regarding opinion

what kind of opinion allowed for expert

opinion is supported by proper factual basis, or facts supplied outside courtroom and of a type reasonable relied upon by experts in field, may render opinion as to ultimate issue in case, with exception of accused’s mental state in criminal case where mental state is an element of the crime or defense

Impeachment

discrediting a witness. evidence offered to impeach is not offered to prove a fact at issue, but to show that witness can’t be trusted

who can be impeached

any party may attack the credibility of any witness, even its own. Generally, a party can’t bolster the testimony of a witness until the witness has been impeached

Common methods of impeachment

cross examination and sometimes extrinsic evidence: prior inconsistent statement, bias, prior conviction of crime, prior bad acts, opinion or reputation of untruthfulness, sensory deficiencies, contradictory facts

prior inconsistent statement

always for impeachment, and can be admitted as substantive evidence if made under oath at a prior proceeding

prior conviction of crime (any crime)

misdemeanor or felony involving dishonesty or false statement, judge MUST allow

Prior conviction of crime (felony)

must be admitted subject to rule 403 against witness not the D

must be admitted in criminal case against D if probative value OUTWEIGHS prejudicial effect

felony

a crime that is punishable by death or imprisonment for more than 1 year

Limit on using criminal convictions

if more than 10 years, only admit if probative value supported by specific facts and circumstances, substantially outweighs its prejudicial effect; and proponent gives adverse party reasonable written notice of intent to use and party has fair opportunity to contest use

pardon of conviction

not admissible if pardon, annulment, cert of rehabilitation, or equivalent and not convicted of later crime or based on a finding of innocence

juvenile adjudications

admissible only if offered in criminal case, adjudication was witness other than D, adults conviction for that offense would be admissible to attack adult’s credibility, and admitting is necessary to fairly determine guilt or innocence

prior bad acts

must be probative of truthfulness, cross examination only, no extrinsic evidence

Federal privileged testimony

attorney client, spousal immunity, marital communications, psychotherapist/social worker client privilege, clergy-penitent privilege, governmental privileges

Other privileges (certain states)

physician-patient, accountant client, professional journalist

If privilege applies to testimony ask

what is its scope and who holds it, and are there any exceptions, waivers, or limitations

Attorney client privilege

client must be seeking attorney’s services at the time, must be confidential, termination of relationship doesn’t terminate privilege; survives death

attorney client privilege for corporate clients

statements made by corporate officials or employees are protected if employees were authorized or directed to make the statements

when doesn’t atty client privilege apply

client seeks advice in aid of crime or fraud, parties claim through dead client, dispute between atty and client, client puts legal services at issue

physician patient privilege

no federal privilege, many states recognize. information must be acquired while relationship exists, while attending patient, and information must be necessary for treatment

when doesn’t physician patient privilege apply

dispute between physician and patient, patient puts physical condition at issue

psychotherapist client privilege

similar to physician privilege

Exceptions for spousal and marital privileges

legal actions between spouses, cases involving crimes against testifying spouse or either spouse’s children, in furtherance of joint crime or fraud

when are statements not offered for the truth

when they are legally operative facts (contract words, defamation), offered to prove effect on reader or listener (notice), circumstantial evidence of D’s state of mind, impeachment

Double hearsay

A hearsay statement within another hearsay, both inner and outer hearsay must fall within an exception

What is nonhearsay (subject to exemption)

statements by opposing party (admission of party opponent); for testifying witnesses (prior inconsistent statement, prior consistent statements, prior identification)

statement by opposing party

a statement by or attributable to a party, offered against them. Adoptive admissions (such as silence in face of accusation), vicarious admissions (authorized party made)