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88 Cards in this Set
- Front
- Back
- 3rd side (hint)
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Evidence is relevant if
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any tendency to make a material fact more or less probable than would be the case without the evidence
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Is all relevant evidence admissible?
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Yes, unless:
- Specific exlusionary rule is applicable, or; - Probative value of evidence is substantially outweighed by: -- Danger of unfair prejudice -- Confusion of issues -- Mislead jury -- Undue delay -- Waste of time -- Unduly Cumulative |
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Similar Occurrences general rule
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If evidence concerns some:
- Time, - Event, or - Person, other than that involved in the case at hand, it is inadmissible |
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Similar Occurrences Exceptions
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- Plaintiff's accident history (civil) if cause of injury at issue
- Similar Accidents caused by same event or condition -- show existence of dangerous condition -- Cause -- Prior notice to D - Intent at issue - Comparable sales on issue of value - Habit - Industrial Custom as standard of care |
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Habit Evidence
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Repetitive response to a particular set of circumstances
Massachusetts - Only allowed in: - Business routine; - Action against decedent's estate to rebut with decedent's habit of dealing |
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Policy-Based Exclusions of evidence
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Liability Insurance
Subsequent Remedial Measures Settlements of Disputed Civil Claims Offer to pay Hospital/Medical expenses |
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Liability Insurance
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Inadmissible for fault, admisible for ownership if CONTROVERTED or impeach/bias
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Subsequent Remedial Measures
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Inadmissible for liability, liable for ownership/control or feasibility of safer condition if CONTROVERTED
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Settlements of Disputed civil Claim
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DISPUTED civil claim, settlements talk inadmissible (includes statements of fact)
Dispute of validity/amount |
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Plea bargaining in Criminal case admissibility
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Inadmissible:
offer to plead guilty withdrawn guilty plea Nolo contendre Statements of fact during plea discussions Admissible: GUILTY PLEA as party admission |
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Offer to pay Hospital/Medical Expenses
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Inadmissible to prove liability
Does NOT exclude statements of fact MASSACHUSETTS - excludes expression of sympathy |
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Character Evidence basics
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Refers to person's general propensity/disposition
Potential purposes for for admissibility: - Character is essential element - Prove conduct in conformity with character - impeach credibility with bad character |
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Character Evidence in Criminal Cases
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- Prosecutor cannot show D's bad character to show conduct in conformity
- D allowed to introduce evidence of good character to show conformity - Opens door for P to rebut, no specific crimes, may ask D's witnesses, may show bad acts - May always show MIMIC - D testifies - places trait of truthfulness in issue, P may rebut - Victim's character in self-defense/sexual misconduct |
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MIMIC
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Motive
Identity Mistake or Accident, lack thereof Intent Common Scheme |
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Victim's Character in Self-Defense
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May introduce evidence of victim's violent character to prove victim's conduct in conformity
- Opens door for victim AND d's character D may offer evidence of prior knowledge of victim's xter to show mens rea (- fear of victim) MASSACHUSETTS - Court discretion to admit prior specific acts - NO REP or OPINION |
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Victim's Character - Sexual Misconduct
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Rape Shield Law prevents opinion/reputation/specific behavior of victim, UNLESS:
- Prove someone else source of semen/injury - Consent is asserted - Exclusion violate D's DP - love triangle defense (Mass - may show past false accusations of rape) |
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Character Evidence in Civil Cases
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Generally inadmissible to prove conduct in conformity
Admissible when essential element: - negligent hiring/entrustment - defamation - Child custody Admissible - MIMIC by conviction, or evidence that proves crime occurred (conditional) Admissible - Propensity for sex assault/child molestation |
MASSACHUSETTS - MIMIC for prior sex crimes
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Conditional Relevancy Standard
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reasonable juror could conclude D committed other crime
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Writings on the Exam; issues
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Whenever writing on exam, 3 potential issues:
Authentication Best Evidence Rules Hearsay |
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Methods of Authentication
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Witness' personal knowledge
Proof of handwriting (lay, expert, jury) Ancient Document Rule - inferred if 20 (30 in mass) years old, free of suspicion, found in natural custody Solicited Reply Doctrine - in response to letter |
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Self-Authenticating Documents
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- Official publications
- Certified copies of public/private records on file in public office - Newspapers/periodicals - Trade inscriptions/labels - Acknowledged document - Commercial papers Mass - Court records under seal - Domestic official records not under seal - Foreign official records |
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Authentication of Photographs
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Witness may testify on basis of personal knowledge photo is "fair and accurate representation" of people/objects portrayed
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Best Evidence Rule
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Definition - party who seeks to prove contents of writing must either: produce original OR provide acceptable excuse for absence
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Best Evidence Application
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Applicable:
- Legally operative document - Learned Solely from doc Inapplicable - personal knowledge independent of doc - no personal knowledge |
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Best Evidence Duplicate
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Counterpart produced by any mechanical means that accurately reproduced original
Admissible unless unfair or genuine question re authenticity |
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Best Evidence excuses
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- lost/can't be found with due diligence
- Destroyed without bad faith 0 cannot be obtained with legal process |
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Best Evidence escapes
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voluminous records
certified public record copies collateral documents |
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Competency of Witness
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Witness must have personal knowledge, include oath/affirmation (solemn promise to tell the truth)
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Dead Man's Statutes
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Civil action
Interested witness Incompetent to testify Against decedent's estate re: personal transaction/communication Not in Federal/Mass, may be on MBE |
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Leading Questions on Direct when...
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- Preliminary introductory matters
- Youthful/forgetful witness to jog memory at court's discretion - Hostile witness for control - Other party or other party's employee |
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Writings in Aid of Oral Testimony
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Witnesses must testify based on current recollection, can jog memory
Opposing party may inspect, use on cross, introduce into evidence Past Recollection Recorded - Hearsay exception; may read list to jury |
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Past Recollection Recorded Hearsay Exception
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May read list to jury if:
- Fail to jog memory - personal knowledge at former time - Made/adopted by witness - while event was still fresh - witness can vouch for accuracy |
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Lay Witness Testimony
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admissible if:
- Personal knowledge - Helpful to jury MASSACHUSETTS - No direct testimony of person's sanity; except Will witness may give opinion of testator's sanity at execution |
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Expert Witness Requirements
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- Must be qualified by education or experience
- Proper Subject matter - Proper basis of opinion - Relevance and Reliability - TRAP - Treatise Hearsay Exception |
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Expert Basis of Opinion
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Based on reasonable degree of probability or reasonable certainty
- Personal knowledge - Other evidence via hypo - Outside material if reasonably relied on by experts in the field |
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Expert Relevance and Reliability
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TRAP
Testing of principles or methodology Rate of error Acceptance by other experts in same discipline Peer review and publication |
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Learned Treatise in Aid of Expert Testimony
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Direct of Own witness - substantive evidence if established as reliable authority
Cross other Witness - impeach/contradict as substantive NOT EXHIBIT MASSACHUSETTS - used only on cross for substantive Med Mal - use treatise for own case, read by lay person |
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Cross - Examination
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right to cross any opposing witness
Proper subject matter - within scope of direct - test witnes's credibility MASSACHUSETTS - scope not limited to direct |
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Impeachment - PBSBCBC
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Evidence offered to show testified witness may not have told the truth:
- Prior inconsistent statements - bias, interst, motive to misrepresent - sensory deficiencies - bad reputation/opinion re truthfulness - criminal convictions - bad acts reflective xter truthfulness - Contradictoin |
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How do you show impeaching evidence?
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- Ask witness about impeaching fact
- Extrinsic evidence -- All except BAD ACTs and some CONTRADICTIONS -- Don't have to ask first except BIAS |
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Prior Inconsistent Statements
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Impeachment - material statement that is inconsistent with trial testimony
Substantive IF: orally under oath AND part of formal hearing/trial/depo Must be given opportunity to comment (explain/deny) unless OPPOSING PARTY MASSACHUSETTS - When impeaching own witness confronted on the stand only |
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Bias/Interest/Motive to misrepresent
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Impeachment - Any fact that would give a reason for witness to testify for/against
Witness must be confronted with bias on stand |
MASSACHUSETTS - no confrontation
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Sensory Deficiencies
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Impeachment - anythign that could affect witness's perception or memory
Confrontation not required Extrinsic evidence allowed |
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Bad Reputation/Opinion re Witness's Character for Truthfulness
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Impeachment - call witness to testify Target Witness has bad rep/opinion for truthfulness
No confrontation Extrinsic only |
MASSACHUSETTS - only reputation
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Criminal Convictions
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Impeachment
- any criminal convictions involving dishonesty or false statement can always be used - Felonies that meet 403 - 10 year limit Proof - ask to admit, or extrinsic without confrontation Civil convictions not admissible in criminal proceedings, vice versa |
MASSACHUSETTS - Felonies: 10 year limits; Misdemeanors: 5 year limits
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Inquiry about Bad Acts (without convictions)
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Impeachment - no extrinsic, ask on cross ONLY; good faith questioning
Allowable if relevant for other purpose than bad character, i.e. bias |
MASSACHUSETTS - NOT ALLOWED, MUST HAVE CONVICTION
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Contradiction
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Impeachment
Cross try to obtain admission of mistake/lie Extrinsic not allowed if collateral |
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Rehabilitation
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If impeachment, rehabilitate by:
- Show Witness's good xter for truthtelling: only if impeachment clearly points to lying, NOT mistake (Bad rep/opinion, conviction, Bad acts); xter witness to rep/opinion Prior consistent statement to rebut recent fabrication - admissible if made before motive to fabricate (rehab/substantive) - in Mass only rehab |
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Privilege types
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Attorney Client Privileges
Physician-Patient Privilege Spousal Privileges |
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Privilege Jurisdiction
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Multistate - basic rule
Federal court - Federal law - basic; Diversity - state |
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Attorney - Client Privilege
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Applies to:
- Confidential communications - Bw attorney/client (or reps) - During professional/legal consultation - UNLESS: waived by client or exception |
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Attorney - Client Waivers
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- Voluntary waiver by client
- Subject matter waiver (multiple documents) - Inadvertent waiver: not waive if reas steps to prevent/correct |
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Attorney - Client Exceptions
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- Prevent future crime/fraud
- Client puts legal advice into issue - Dispute between attorney and client |
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Physician - Patient Privilege
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Confidential communication/information acquired by physician from patient for PURPOSE of diagnosis/treatment
Unless - Patient expressly/impliedly puts physical/mental condition in issue Does not apply in federal question cases, where state law does not supply privilege law |
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Types of Spousal Privilege
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- Spousal Immunity (married at trial)
- Conf Comm between Spouses (Comm during marriage) |
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Spousal Immunity
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Criminal - cannot be compelled to testify against spouse about anything
married at time of trial; witness spouse holds privilege MASSACHUSETTS - no spousal immunity in grand jury |
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Confidential Communications Between Spouses
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Any case - not allowed to disclose confidential STATEMENT/ACT made during the marriage;
waiver requires both MASSACHUSETTS - Surviving spouse may testify after death |
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Confidential Communications Between Spouses Exceptions
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Furtherance of jointly perpetrated future crime/fraud
Destruction of family unit No privilege in civil litigation between spouses themselves |
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Mass Prohibition of Child's Testimony Against Parent in Some Cases
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Unemancipated minor prohibited from testifying against natural/adoptive parent with whom they reside
Exception - victim of crime lives in house and member of parent's family |
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Hearsay definition
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1. Out of court statement by a person;
2. Offered to prove the truth of the matter asserted in the statement |
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Non-Hearsay Purposes
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- Verbal Act - rights/obligations attach
- To show effect on person who heard/read statement - how effected regardless of statement truth - Circumstantial evidence of speaker's state of mind - suggest they were nuts - Knowledge when at issue |
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Non-Hearsay Exclusions
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- PRIOR statements (ID, consistent, inconsistent); inconsistent - oral under oath during formal; rebut recent fabrication
- ADMISSIONS by Party - LEGALLY operative words |
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Party Admissions
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- Made by party or party's employee in scope of employment
- Offered by opposing party that amounts to prior acknowledgment of one of the relevant facts - Relevant |
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Confrontation Clause limitation on Hearsay Evidence
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Prosecution may not use hearsay if:
- Testimonial statement - declarant is unavailable, AND - D no opportunity for cross |
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Testimonial Statements
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- Actual testimony/equivalent
- Grand jury testimony - Some statement sin response to police interrogation (re: past events potentially relevant to later prosecution) - Affidavits/police reports |
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Non-Testimonial Statements
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- Some statements in police interrogation
-- enable police assistance to meet ongoing emergency (crime ended within hour; perp at large and immediate threat) - Business records |
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Forfeiture Exception to Testimonial statements
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Mafia exception
preponderance of evidence D conduct designed to prevent witness from testifying |
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Hearsay Exceptions (Availability irrelevant)
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- Present Sense Impression
- Excited Utterance - Statement showing current state of mind/physical condition - Recorded recollection - Business record |
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Hearsay Exceptions (Unavailability)
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- FORMER testimony
- Statements AGAINST interest - DYING declarations |
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Present Sense Impression
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Description of an event made while the event is occurring or immediately thereafter
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MASSACHUSETTS - not adopted this
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Excited utterance
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look for exclamation point
Concerning a startling event and made while declarant is still under the stress of excitement caused by the event Factors: nature of event, passage of time, excitement verbs |
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Current State of mind/physical Condition
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Contemporaneous statement concerning declarant's present state of mind/feelings/emotions
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Statements for Purposes of Medical Treatment/Diagnosis
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1. Made to anyone concerning declarant's:
- present/past symptoms; or - general cause of declarant's condition 2. for purposes of obtaining medical treatment/diagnosis (not tortfeasor's ID or describes nature of alleged liability) |
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Business Records
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- Business of any type
- regular course of business - regularly kept - made at or about time of event - Info observed by ANY employee; or independent hearsay exception |
Police reports prepared for prosecutorial purposes not admissible against D
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Former Testimony
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- Unavailable witness PAILS
- Given at former proceeding/depo - admissible against party who on prior occasion - had opportunity/motive to cross |
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Sworn Medical Report of Med Examination of Injured Person
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MASSACHUSETTS - Physician's written report describing medical exam of injured person ADMISSIBLE to prove diagnosis/opinion as to proximate cause of condition as to disability
Must be sworn |
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PAILS unavailability
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- Privilege
- Absent from jurisdiction - Illness/death - Lack of memory - Stubborn refusal to testify |
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Dying Declarations
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Made under belief of impending/certain death by unavailable declarant
Criminal - HOMICIDE ONLY Civil - any |
MASSACHUSETTS - Homicide only.
In any civil proceeding, any statement of a deceased person admissible if good faith based on decedent's personal knowledge |
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Statement Against Interest
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Unavailable declarant's statement against pecuniary/proprietary/penal interest
Against interest when made, by any person, personal knowledge required In criminal cases; must show trustworthiness circumstances |
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Massachusetts Tender Years Statute
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Criminal case, statement of a child under 10 describing sexual act/ID perp admissible if
- unavailable - adequate reliability - corroborated by other evidence, AND - person who heard child testifies at trial BEWARE confrontation clause |
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5th Amendment Self-Incrimination
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Must testify, waived for each question
remain silent if some reasonable possibility of self-incrimination |
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Judicial Notice
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Recognition of facts as true without formal recognition of evidence
- Common Knowledge - Capable of verification |
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Must take judicial notice when...
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- federal/state law
- official regulations of forum state and federal government |
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May take judicial notice when...
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- municipal notices
- private acts of resolution of congress or of the local state leg |
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Mass Judicial Notice
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Federal/state law and official regs only, unless express statute
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Parol Evidence
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Admissible to complete an incomplete contract or explain ambiguous terms
Does not apply where a party alleges facts that entitle him to reformation Admissible to show K is void/voidable or made subject to valid condition precedent that has not been satisfied |
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Subsequent K Modifications
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Applies only to negotiations prior to or at the execution of the contract and is admissible to show subsequent modification or discharge of the written contract
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Judge may question/cross a witness?
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At any time as long as she does not demonstrate partisanship for one side of the controversy
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