Evidence

Front 1

mnemonic to remember evidence subjects

Back 1

HELP Henry learned his ABCDS and CPR
authentication, best evidence rule, competence, character evidence, dead man statute, expert testimony, hearsay, hearsay exceptions, layperson testimony, procedure, privileges, relevance, settlement information

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relevance statement

Back 2

evidence with any tendency to make any material fact more or less likely that without the evidence is relevant. Relevant evidence is presumed admissible. A judge can exclude evidence whose relevance is substantially outweighed by unfair prejudice, confusion, or waste of time

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objections

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must be timely and specific.
If testimony already made, must immediately move to strike, mistrial, or limiting instruction
if Judge excludes your evidence, must make an offer of proof to preserve issue for appeal.

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Judicial notice

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Judge can look at Constitution, statutes, etc. or adjudicative facts not subject to reasonable dispute without authentication because they are generally known or are readily determinable from accurate sources

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can prior crimes be admitted?

Back 5

The court must identify the purpose of introducing this evidence, whether its relevance to prove an essential element of the crime charged, and weigh on the record the probative value against its prejudicial effect. Limiting instruction may be appropriate.

Front 6

confrontation clause

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a criminal defendant has a constitutional right to be confronted by his accusers. A confrontation issue arises if an accuser does not testify at trial, requiring additional indicia of liability before being admissible (i.e. a hearsay exception)

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on what can a witness testify?

Back 7

A witness must only testify from personal knowledge and observations

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Public record – admissible

Back 8

if authenticated or a certified copy
authentication: by the author, agency records custodian, a witness to the execution, or someone familiar with the author's handwriting.
However: if there is a statement with any plea support not based on personal knowledge of the police officer, then it is double hearsay.

Front 9

does best evidence rule apply?

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If witness has personal knowledge of the events and is not basing testimony solely on the content of the writing, then it does not apply in the original document does not need to be produced.

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insurance

Back 10

evidence that a person was or was not insured not admissible to show negligence or wrong to conduct.

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prior crimes of any witness – admissible?

Back 11

admissible for impeachment purposes only if:
1. the crime involved dishonesty and. conviction or release from confinement less than 10 years old, OR
2. a felony where the probative value outweighs potential prejudice- no time constraints
3. for a civil case, or excluded unless an essential element of the charge, claim, or defense.

Front 12

if a witness testifies as to what they overheard?

Back 12

overhearing it does not create another layer of hearsay

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bail forfeiture

Back 13

generally excluded because extremely prejudicial and sheds little light on the fact the case.

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A party's silence to a accusation

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a tacit admission if the party heard the statement, was able to respond, and a reasonable person would have responded if the statement were untrue. However, if there is presence of a police officer, then the silence is not deemed a tacit admission.

Front 15

is former testimony admissible?

Back 15

Former testimony under oath and with an opportunity and similar motive to develop the testimony is admissible if the witness is unavailable at trial.

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Is evidence of a person's character admissible?

Back 16

not admissible to show conformity on a specific occasion
if civil case, only admissible if the trait of character is an essential element of the charge, claim or defense

Front 17

how can physical evidence be authenticated?

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1. Everyone who has possession testifies
2. witness who placed in identifying mark or seal on it testifies
3. admission in response to request for admission
4. if civil case, numbered and indexed copies served to opposing party 30 days prior to trial w/ notice of intent to offer evidence are authenticated and admissible, unless opposing party objects in writing within 14 days
5. a judge or expert compares handwriting to a sample
6. person with adequate foundation to be familiar with voice or handwriting testifies
7. distinctive characteristics of handwriting +other circumstances
8. custodian authenticates business records
9. if self authenticated

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when is evidence self authenticated?

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public documents under seal
certified copies of public documents
notarized documents, newspapers and periodicals
official publications
signed commercial paper
documents with trade inscriptions or labels of origin/ownership

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When are ancient documents or data compilations authenticated?

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documents at least 20 years old
located where they should be to be authentic and
when there is no reason to be suspicious of their authenticity

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original writing (best evidence) rule

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to prove the content of a writing (i.e. not testifying based on personal knowledge of underlying information) must offer original, unless, through no fault of the offering party, original is unavailable.
Duplicates admissible unless genuine issue of authenticity or other circumstances make admission unfair
secondary evidence admissible if original is lost and diligent search is made, or if destroyed without bad faith

Front 21

can the plaintiff or defendant bring evidence of past crimes, wrongs or acts of the defendant?

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evidence of other crimes, wrongs, or acts of defendant are admissible unless to show propensity to engage in such behavior; admissible to show res gestae ( the complete story), that motive of one crime is to facilitate the other, that there is a modus operandi (signature crime), the intent of the party, or a common plan or scheme (for a sex crime, must pass balancing test).

Front 22

can the defendant bring a Defense witness to testify as to his own character?

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yes, but only as to reputation (not opinion) regarding a pertinent trait of his own character, subject to prosecution impeachment by bringing in their own character witness or by asking the defense witness whether they have heard of specific acts the defendant did inconsistent with the character trait

Front 23

can the defendants testify as to the character of the victim?

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Yes, but not of the sexual history in a rape case, unless to show bias or explain pregnancy or STD

Front 24

character evidence statement

Back 24

character evidence is generally not admissible in criminal cases to show conformity on a specific occasion.

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privileges statement

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privileged statements are not admissible. generally, privileged statements must be made in confidence, asserted at the first opportunity, and will be waived if voluntarily disclosed to a 3rd person.
exception:spousal incompetence

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attorney-client privilege exception

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can testify as to the identity of the client when representing them, to prevent future crime or fraud, and during litigation between attorney and client

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attorney-client privilege for corporate clients

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covers members of the corporate control group and employees with knowledge who are told to report to corporate attorney

Front 28

physician-patient: exceptions

Back 28

waived if the patient puts the physical condition in issue (including 90 days by statute after filing a personal injury case) or if insanity defense for civil commitments

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marital privileges

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the marital communications privilege protects oral communication or conduct intended to be confidential made during the marriage.
The spousal testimony privilege states that spouses can't testify on any conduct or communication if married at time of trial. A limited exception for allegations involving spousal or child abuse.

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witness competency

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incompetenct if incapable of receiving facts or relating facts or impressions truthfully. Look for children under 10.

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dead man's statute

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interested parties can't testify against the interest of someone who derives his right from the deceased person when only the deceased person could contradict the testimony

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expert opinions

Back 32

allowed if:
subject matter beyond the understanding of average juror,
expert is qualified by knowledge, skill, training, education, or experience,
testimony is to a reasonable degree of probability,
novel scientific principles or devices have gained acceptance in the relevant scientific community under the Frye test
and opinions on the ultimate issue are permitted unless incorporates legal opinion or invades the province of the jury

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lay opinions

Back 33

opinions not allowed. Look for sense perceptions, relaying what someone perceived

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hearsay statements

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out-of-court statements (oral, written, assertive conduct) offered to prove the truth of the matter asserted are not admissible even if the speaker is now in court, unless an exception applies.

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hearsay exemptions

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1. Testimony offered for the purpose of showing indirect evidence of mental state, notice, duress, impeachment
2. Words with operative legal fact
3. Prior inconsistent statements made under oath
4. Prior consistent statements to rebut recent fabrication that was made before there was a motive to lie
5. Prior identification in a pretrial lineup
6. Admissions offered against a party

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admissions offered against a party

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admissible. Look for a person's own prior statements, adopted or tacit admissions, vicarious admission by speaking agent, or a statement by co-conspirators made in furtherance of the conspiracy (not after speaking to the police), once conspiracy established by substantial independent evidence

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hearsay exceptions requiring the declarant not be available

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raise confrontation clause!
1. Former testimony given under oath were defendant's motives and opportunities are similar in both proceedings
2. Dying declaration
3. statement against interest
4. statements of personal or family history

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why would a declarant not be available for trial?

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dead, incompetent, privileged, refuses to testify, can't remember, absent and can't be found by all reasonable means

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requirements for dying declaration

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concerning the cause and circumstances of impeding death by a person believed definite and certain. Person must have opportunity for personal knowledge. Only allowed in homicide and civil cases

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requirements for statements against interest

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defendant must believe it to be against his interest when made.
Can be made by a nonparty
declarant is unavailable
note:Contrast against party admissions

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hearsay exceptions where unavailability immaterial

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1.present sense exception
2. Excited utterance
3. Mental state
4. Statement made to a health care provider for the purpose of diagnosis or treatment
5. Recorded recollection
6. authenticated records (Business records, Public records under seal, Learned treatises, ancient documents, other reliable generally used and relied upon reports and records)
7. statements made by a child who is a victim of sexual or physical abuse

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present sense exception

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spontaneity requirement – must be made while sensing event or immediately thereafter

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excited utterances

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statements related to a shocking event made while the speaker is excited (in shock or pain). Does not need to be immediate

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mental state

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statement offered to show present state of mind, emotion, sensation, or physical condition. Hillmon doctrine.
exception: past mental state allowed for wills; "I intended to leave my car to X"

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exception to the medical treatment exception of hearsay

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statements of fault are not admissible unless involving family abuse to show identity of the abuser

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recorded recollection

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L can read a record to refresh declarant's memory. Must testify under oath that this statement was accurate when made or preserved in a reliable method

Front 47

business record

Back 47

only facts, not opinions, are admissible must be:
1. maintained in the ordinary course of business,
2. created reasonably soon after the event
3. relied upon internally by the business
4. authenticated by a custodian of records (person in charge of the records who can testify as to requirements)

Front 48

what information can be used in public records under seal?

Back 48

Facts and opinions are okay

Front 49

confrontation clause statement

Back 49

the confrontation clause of the 6th amendment, as adopted in Washington in Crawford, prohibits the introduction of testimonial out-of-court statements against a criminal defendant unless the declarant appears as a witness at trial or if the defendant had a prior opportunity to cross-examine the declarant concerning the statements.
Covers prior testimony at trial, preliminary hearings, grand jury, police interrogation. Probably applies to statements made by victims to a crime describing the crime.

Front 50

special rules for 911 emergency calls and police questioning at the scene of the crime or accident

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under Davis and the confrontation clause, the court will consider the primary purpose of police questioning (statements are testimonial when the primary purpose was to establish past events, rather than to enable police assistance for an ongoing emergency) and whether the circumstances would lead a reasonable person to realize that the statement was likely to be used in investigation or prosecution of the crime