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57 Cards in this Set
- Front
- Back
- 3rd side (hint)
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Two things to consider when dealing with evidence questions are:
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-Whether the evidence is relevant
-What the evidence is being offered to prove |
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G.R.
All evidence is admissible UNLESS |
-an exclusionary rule applies or
-the court has determined that the probative value of the evidence is substantially outweighed by its prejudicial nature |
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How does the court determine whether the probative value of the evidence outweighs the prejudicial nature?
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The court looks at the following considerations:
-danger of unfair prejudice -confusion of the issues -misleading the jury -undue delay -waste of time -unduly cumulative |
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Evidence of similar occurrences (i.e. evidence that concerns some time, event or person other than that involved in the case at hand) is generally inadmissible, UNLESS
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the evidence concern the following:
-Plaintiff's accident history -Similar accidents caused by the same event/condition -Intent is in issue -Comparison of sales on the issue of value -Habit -Industrial Custom as Standard of care |
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What is the general rule with regards to the admissibility of the plaintiff's accident history?
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[G.R.] Inadmissible
UNLESS: it is offered to prove that the cause of plaintiff's injuries is as a result of a prior accident rather than the accident at hand |
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What is the admissibility of similar accident caused by the same event or condition (with respect to defendant's prior accidents?
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G.R. Inadmissible
UNLESS: the other accident occurred under substantially similar circumstances to show (): -existence of a dangerous condition -causation of accident -prior notice to defendant |
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HYPO:
Paris sues Brewski Co. for gender discrimination, alleging that she was qualified for the job but was not hired because of her gender. She seeks to show that Brewski hired no women, despite their qualifications, during the past 6 years. Admissible? |
Yes. A person's prior conduct may provide inference of intent on later occasion if intent is in issue. Here, Brewski's treatment of other qualified women candidates can be used to show discrimination against women.
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What can be offered as proof when the value of something is at issue?
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The selling price of other property of similar type, in the same general location, and close in time to period at issue, is some evidence of value of property when that is at issue.
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Is evidence of a person's habit admissible?
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Yes. Habit evidence is admissible as circumstantial evidence of how the person (or business) acted on the occasion at issue in the litigation. Habit has 2 defining characteristics: frequency of conduct and particularity of conduct. Therefore it is not the same as character evidence.
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What are the 4 policy-based exclusions of evidence?
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LOSS
-Liability Insurance -Offers to pay hospital or medical expenses -Subsequent remedial measures -Settlements in disputed civil claims |
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What is the rule regarding the admissibility of evidence of liability insurance?
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G.R. Inadmissible
UNLESS: offered to prove ownership/control of instrumentality or location IF IN DISPUTE If the evidence is admitted, a limiting instruction should be given to the jury explaining the admissibility of the evidence. |
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What is the rule regarding the admissibility of subsequent remedial measures?
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G.R. Inadmissible
UNLESS offered to prove ownership/control, or feasibility of safer condition by defendant IF THE ISSUE IS IN DISPUTE |
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What is the rule regarding the admissibility of evidence of disputed civil claims?
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G.R. Inadmissible
UNLESS offered for the purpose of impeachment of the witness on the grounds of bias. |
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What about admissibility of statements of facts in connection with settlements of disputed civil claims?
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G.R.: Inadmissible
UNLESS: the statements were made in connection to a civil claim asserted by government agency in the exercise of its regulatory, investigative, or enforcement authority. These statements are then admissible in a related criminal case on issues of guilt or witness impeachment. |
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Are plea bargaining statements admissible?
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No, the following are not admissible in criminal cases:
-Offers to plea guilty -Withdrawn guilty pleas -Pleas of nolo contendere (no contest) -Statements of fact made during any of the plea discussions HOWEVER, guilty pleas are admissible in subsequent litigation based on the same facts under the rule of party admissions. |
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What is the rule regarding admissibility of offers to pay medical or hospital expenses?
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Inadmissible to prove liability.
[NC] Evidence of payments and offers to pay lost wages and property damage are also inadmissible. |
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HYPO:
Donna's car hit pedestrian Pablo. Donna immediately ran to Pablo and said (a)"Don't worry about a thing. I'll pay for your hospital bills." (b) "I'm sorry I ran the red light." Are these statements admissible? |
(a) This statement is inadmissible against Donna because it is just an offer to pay medical expenses.
(b) This statement is ADMISSIBLE because this is a statement of fact made with an offer to pay medical bills. Also this statement was not made during any discussions of settlement of the claim. There is no dispute during this hypothetical. (b) This |
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What is character evidence?
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Character evidence is a person's general propensity or disposition, e.g. honesty, fairness, peacefulness or violence. The potential purposes for the admissibility of character evidence are:
-character is MATERIAL element in case -Proves conduct in conformity with character -Impeach credibility - |
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What is the rule regarding admissibility of the defendant's character in criminal cases?
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Inadmissible during prosecution's case in chief
BUT admissible by reputation or opinion to prove conduct in conformity. However this opens the door for the prosecution to rebut this evidence. |
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HYPO
Rambo is charged with murder. During its direct case, should the prosecution be allowed to introduce evidence that Rambo has been convicted 3 times for assault, has a bad reputation for violence, and his hobby is training pit bulls for dog-fighting ring? |
No, this evidence will not be allowed because it is highly prejudicial. There is danger that the jury will misuse the character evidence and convict Rambo on the wrong basis. The judge will not allow the evidence because violence is NOT a material element of murder, the crime with which Rambo is charged.
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HYPO
During the defense, Rambo calls Trautman to the stand to testify: (1)"I'm familiar with Rambo's reputation for peacefulness, and it is excellent. (2) I personally know Rambo, and in my opinion he is a peaceful person." Admissible? |
Yes. When character evidence is admissible through a character witness to prove conduct in conformity, the only proper methods are reputation and opinion. The law gives the defendant the option of introducing good character as circumstantial evidence that he did not commit the crime. Here, the evidence is offered for reputation and opinion.
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Could Trautman property testify: "I've seen Rambo turn the other cheek when assaulted by bullies; he's the President of the local Pacifist Club,"
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No because these are specific acts. Specific acts are not allowed for character acts in conformity.
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Could Trautman property testify, "Rambo's reputation for bravery and honesty is excellent"?
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No because honesty is not a character trait at issue; peacefulness is with regards to the murder charge. Character witnesses can only testify to character traits that are relevant to the crime at issue. Testimony that the defendant is a law-abiding citizen is okay but is limited to the character trait that is at issue in this case, i.e. Rambo, as law-abiding peaceful person.
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How can the prosecution rebut character witnesses when the defendant has opened the door?
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-by cross-examining character witnesses with questions about specific acts of the defendant that reflect adversely on the particular witness's knowledge; and/or
-by calling its own reputation or opinion witnesses to contradict defendant's witnesses |
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When can the evidence of the victim's character be introduced by the criminal defendant?
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Instances when the defendant is asserting self-defense as a defense and when the defendant is charged with sexual misconduct.
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What is the rule with regards to admissibility of the victim's sexual history?
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G.R. Inadmissible
UNLESS: the evidence is offered to prove" -specific sexual behavior of the victim to prove that someone else other than defendant could have injured the victim -victim's sexual activity with defendant if the defense of consent is asserted -where exclusion would violate the defendant's right of due process (Love Triangle Defense) |
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What is the rule with regards to the admissibility of character evidence in civil cases?
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Inadmissible
UNLESS character is an essential element of claim or defense in the following situations: -Tort action alleging negligent entrustment/hiring -Tort action for defamation -Child custody dispute |
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What about other crimes? Are the defendant's other crimes admissible for non-character purposes?
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Inadmissible
UNLESS offered to to prove non-character MIMIC |
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HYPO:
Defendant is charged with the murder of Officer Garcia. The prosecution seeks to prove that Defendant was convicted and imprisoned five years ago for narcotics sales in the after match of an investigation and arrest made by Officer Garcia. Defendant objects on the ground of impermissible character evidence. What ruling? |
Overruled because prior narcotics crime tends to show defendant's motive to seek revenge.
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How do you prove MIMIC-purpose crimes?
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[MS]:
-By conviction -By evidence using the conditional relevancy standard condition relevancy standard: prosecution needs only produce sufficient evidence from which a reasonable juror could conclude that defendant committed the other crime [NC] Prosecution may prove the MIMIC with actual evidence (i.e. proof of the facts/circumstances of the crime) even if defendant was convicted. Prosecution must provide pretrial notice of intent to introduce MIMIC. |
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Is other sexual misconduct admissible to show propensity in sex-crime prosecution or civil action?
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[MS] Prior specific sexual misconduct admissible as party of prosecution's case-in chief
[NC] Other sex crimes admissible if directed at same victim; If different victim, must satisfy MIMIC. |
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What are the methods of authentication of writings?
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-Personal knowledge (i.e. W observing X sign document)
-Proof of handwriting -Ancient document rule -Solicited reply doctrine |
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What are the three methods of proving handwriting?
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-Lay opinion
-Expert comparison opinion -Jury comparison |
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What are the requirements of the ancient document rule?
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Document must be:
-at least 20 years old -facially free of suspicion -found in a place of natural custody (i.e. place where one would expect it to be, e.g. desk drawer) |
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What is the solicited reply doctrine?
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A document can be authenticated by evidence that it was received in response to a prior communication to the alleged author.
EX: P mail contract offer to X, properly addressed and posted, and later receives an acceptance purportedly signed by X. |
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Which types of documents are self-authenticating?
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The following documents are presumed to be authentic (no foundation necessary):
-Official publications -Newspapers or periodicals -Trade inscriptions and labels -Acknowledged document -Commercial paper |
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How do you authenticate photographs?
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Witness may testify on the basis of personal knowledge that the photograph is a "fair and accurate representation" of the people of objects portrayed.
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What is the best evidence rule?
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A party seeks to prove the contents of a writing (includes sound records, X-rays, films) must either produce the original writing or provide an acceptable excuse for its absence. If court finds excuse is acceptable, the party may then use secondary evidence-oral testimony or a copy.
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When does the best evidence rule apply?
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-The writing is a legally operative document, i.e., the writing itself creates rights and obligations (e.g. patent, deed, mortgage, divorce decree, written contract)
-Witness is testifying to facts that she learned solely from reading about them in a writing |
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What is an original writing?
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-Writing itself or 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 (photo or carbon copy) is admissible to the same extent as original UNLESS it would be unfair (photocopy of fuzzy fax) or there is a genuine issue as to authenticity of the original. -Handwritten copy is neither an original or duplicate |
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What are excusable reasonable for the non-production of the original?
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-It's lost or cannot be found with due diligence
-destroyed without bad faith -cannot be obtained with legal process Courts must be persuaded by preponderance of the evidence that excuse has not been established. Once satisfied, the court will admit the secondary evidence. |
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What is hearsay?
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Hearsay: A statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the mater asserted. In the absence of an applicable exclusionary rule, the evidence must be excluded upon appropriate objection to its admission.
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What is the past recollection recorded exception to the hearsay rule?
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If a witness has insufficient memory of an event to enable him to testify fully and accurately, even after consulting a writing given to her on the stand, the writing itself may be introduced into evidence if a proper foundation is laid for its admissibilty.
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What is the required foundation for receiving past recollection recorded evidence?
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-Witness at one time had personal knowledge of the facts recited in the writing
-Writing was made by/under the direction of the W or has been adopted by him -Writing was timely made when info was fresh -Writing is accurate -Witness has insufficient recollection to testify fully/accurately |
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How may the reliability of a learned treatise/publication be established?
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-Direct testimony/cross-examination admission by expert
-Testimony of another expert -Judicial notice |
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What are the requirements for the learned treatise exception of the hearsay rule to be used to prove substantive evidence?
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-The expert is on the stand and it is called to his attention
-it is established as reliable authority |
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What is the pedigree exception to the hearsay rule?
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Reputation among members of his family by blood, adoption, or marriage, or among his associates, or in the community, concerning a person's birth, adoption, marriage, divorce, death, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of his personal or family history.
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What are the spousal privilege?
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A spouse (regardless of whether they are a party) has a privilege during the marital relationship and afterward to refuse to disclose and to prevent another from disclosing a communication if he claims the privilege and communication was made in confidence between him and the other spouse while they were husband and wife.
EXCEPTION: If the communication was made in whole or in part to enable or aid anyone to commit or plan to commit a crime. |
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Are civil judgments admissible in subsequent criminal trials?
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No. Civil judgments are inadmissible in subsequent criminal trials due to the differing standards of proof. Prior judgments in civil case would be inadmissible hearsay in the criminal case.
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When does the business records exception to the hearsay rule apply?
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It apples ti records or writings made in the course of a regularly conducted business activity by one who was under a duty to do so.
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What is the Dead Man's Statute?
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It provides that a person interested in an event is incompetent to testify to a personal transaction or communication with the deceased when such testimony is offered against the representative or successors in interest of the decedent. The statute is waived when the person taking the stand can be cross-examined about the transaction.
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What are the grounds for an unavailable witness?
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-Privilege
-Absence from jurisdiction -Illness/death -Lack of memory -Stubborn refusal to testify |
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What are the factors that courts use to determine the reliability of principles and methods used by experts?
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-Testing of principles or methods
-rate of error -acceptance by other experts in the same discipline -peer review and publication |
NC: Does not use TRAP
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What is required for the statement against interest exception to the hearsay rule?
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It requires that declarant be unavailable as a witness. If the declarant is unavailable, a statement against that witness's pecuniary, proprietary, or penal interest is admissible.
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What is spousal immunity?
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a married person whose spouse is a defendant in a criminal case may not be called as a witness by the prosecution, and a married person may not be compelled to testify against her spouse in any criminal proceeding.
HOLDER: Witness-spouse TERMINATION: Divorce |
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What is confidential marital communication?
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Either spouse, whether or not a party, has a privilege to refuse to disclose, an to prevent another from disclosing, a confidential communication made between the spouses while they are husband and wife.
HOLDER: both hold jointly Divorce does not terminate it |
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What is a vicarious admission?
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It is an exception to the hearsay rule which allows the admissibility of statements made by an agent during the existence of the employment relationship.
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