Evidence

Front 1

Relevance

Back 1

Evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence

Front 2

Discretionary reasons a court may exclude relevant evidence

Back 2

1. substantially outweighed by unfair prejudice

2. substantially outweighed by confusion

3. substantially outweighed by waste of time

Front 3

Public policy reasons to exclude relevant evidence

Back 3

1. Liability insurance

2. Subsequent remedial measures or repairs

3. Settlements or settlement offers

4. Pleas

5. Payment or offers to pay medical expenses

Front 4

Subsequent remedial measures or repairs

Back 4

1. Inadmissible to prove culpable conduct

2. Inadmissible to prove defective product design

3. Admissible to prove anything else (like responsibility for maintenance)

4. Admissible to rebut defense of no feasible precaution or alternative

Front 5

Admissibility of settlements or settlement offer discussions

Back 5

a. inadmissible to prove culpable conduct

b. related statements are also inadmissible

c. Exception 1: admissible if no claim filed or threatened

d. Exception 2: admissible if no dispute as to liability or damages

Front 6

Payment/offer to pay medical expenses

Back 6

a. offer is inadmissible

b. admissions and related statements are admissible

Front 7

Similar occurrences

Back 7

i. may be admissible to prove causation

ii. prior accidents or claims of plaintiff usually irrelevant (except for fraudulent claims or preexisting conditions)

iii. previous similar acts may be relevant to prove intent

iv. admissible to rebut defense of impossibility

v. comparable sales admissible to establish value

vi. habit evidence admissible

vii. routine practice evidence admissible

viii. industrial custom evidence relevant to standard of care admissible in negligence case

Front 8

Habit

Back 8

Specific, frequently repeated conduct

Makes no moral judgment

Front 9

Approach to Character Evidence questions

Back 9

1. What is the purpose for which the character evidence is offered?

2. What method or technique is used to prove character?

3. Is it a civil or criminal case?

4. Does the evidence prove a pertinent character trait?

Front 10

Character evidence in civil cases

Back 10

Character evidence is inadmissible to prove conduct except where claim is sexual assault/child molestation, or when character is in issue.

Front 11

Cases where character is in issue

Back 11

a. defamation

b. negligent entrustment

c. child custody

d. loss of consortium

e. defendant’s state of mind

Front 12

Permissible methods to prove character when character is in issue

Back 12

All methods (specific instances of conduct, opinion, and reputation)

Front 13

Character evidence in criminal cases

Back 13

Two doors initially closed: defendant’s character and victim’s character.

Usually only defendant can open these doors

Doors are opened separately.

Front 14

Admissibility of criminal Defendant’s character to prove conduct

Back 14

1. Door initially closed

2. Only defendant can open door

----a. Exception for sexual assault/child molestation

----b. Exception if defendant has offered evidence of victim’s character, prosecution may offer evidence that defendant has same trait

3. Prosecution can rebut once door is open

Front 15

Methods of proving character on direct examination

Back 15

Reputation

Opinion

Front 16

Methods of proving character on cross- examination

Back 16

Reputation

Opinion

Specific Instances

Front 17

Admissibility of Victim’s character to prove conduct

Back 17

Defendant may open the door by offering evidence of victim’s character

In homicide case, if defendant offers evidence that victim attacked first, prosecution may offer evidence of victim's character for peacefulness

Front 18

Rape shield statute for criminal cases

Back 18

Reputation and opinion of victim are inadmissible.

Specific instances admissible only to prove:

i. third party is source of semen or injury

ii. prior acts of consensual intercourse between defendant and alleged victim

Front 19

Rape shield statute for civil cases

Back 19

Reputation, opinion, and specific instances are all admissible if probative value outweighs unfair prejudice.

In the case of reputation evidence, plaintiff must have put her reputation in issue.

Front 20

When may specific instances of defendant’s bad conduct be admitted?

Back 20

MIMIC Quasi-exceptions (so long as prejudicial effect doesn’t outweigh probative value):

-Motive

-Intent

-Mistake (absence of)

-Identity (similarity and uniqueness)

-Common plan or scheme

Front 21

Sole requirements of COMPETENCY for a witness

Back 21

i. Personal knowledge

ii. Present recollection

iii. Communication

iv. Sincerity (oath)

Front 22

Objections to form of testimony/question

Back 22

1. calls for narrative

2. unresponsive

3. leading question (not allowed on direct)

4. assumes facts not in evidence

5. argumentative

6. compound

Front 23

When are leading questions permissible?

Back 23

a. on cross examination

b. if witness is adverse/hostile

c. if witness forgets or needs help

Front 24

Refreshing recollection

Back 24

a. anything can be used to refresh recollection

b. opponent may inspect and offer into evidence anything used to refresh

Front 25

Elements of PAST RECOLLECTION RECORDED

Back 25

i. witness once had personal knowledge of facts

ii. document was adopted or made by the witness or under his direction

iii. document was written at a time when facts were fresh in his memory

iv. document was accurate when made

v. witness now has insufficient recollection to testify as to matters in the document

Front 26

When is LAY PERSON OPINION admissible?

Back 26

1. based on witness’ perceptions

2. rationally based

3. helpful to the trier of fact (i.e. gives more info than would testimony limited to witness’ perceptions)

Front 27

Examples of admissible lay opinion

Back 27

1. Speed of autos

2. Sanity

3. Intoxication

4. Emotions

5. Value of witness’ property

Front 28

When is Expert Opinion admissible?

Back 28

i. helpful to jury

ii. witness must be qualified

iii. witness must believe in opinion to “reasonable degree of certainty”

iv. opinion must be supported by a proper factual basis

v. opinion must be based on reliable principles that were reliably applied

Front 29

When is Expert Opinion “helpful”

Back 29

When the expert uses specialized knowledge to reach a conclusion that the average juror could not figure out for himself.

Front 30

On what may an expert base his opinion?

Back 30

i. admitted evidence

ii. personal knowledge

iii. inadmissible evidence reasonably relied upon

Front 31

Federal Daubert/Kumho standard for “reliable principles reliably applied”

Back 31

1. method is peer reviewed and published in scientific journals

2. has been tested and is subject to retesting

3. low error rate

4. reasonable level of acceptance

(5. must meet the “common sense test.”)

Front 32

Learned treatises

Back 32

Admissible to prove anything stated therein if the treatise is an accepted authority in the field.

Can be used to impeach a witness.

Front 33

Evidence to support witness credibility

Back 33

i. Inadmissible unless credibility is attacked

ii. Prior consistent statement made before event used to attack credibility is admissible for all purposes

Front 34

Approach to admissibility of impeachment evidence

Back 34

1. Is source of impeachment extrinsic evidence or testimony at this proceeding of witness being impeached?

2. If extrinsic, is it admissible given impeachment technique?

3. Any other foundation requirements?

Front 35

Extrinsic evidence

Back 35

Any evidence other than testimony given at this proceeding by the witness being impeached

Front 36

Collateral matter

Back 36

A fact not material to the issues.

Extrinsic evidence is inadmissible to contradict a collateral matter.

Front 37

Methods of impeachment

Back 37

1. Impeachment by contradiction

2. Impeachment by Prior Inconsistent Statement

3. Impeachment with evidence of bias, interest, motive

4. Impeachment with conviction for crime involving false statement

5. Impeachment with felonies

6. Impeachment with Non-conviction Misconduct Bearing on Truthfulness

7. Impeachment with Reputation and Opinion Regarding Truthfulness

Front 38

Prior inconsistent statement given under oath

Back 38

Not hearsay and admissible for all purposes

Front 39

When is extrinsic evidence admissible to impeach

Back 39

1. matter must not be collateral

2. witness must have opportunity to explain or deny (cross-examination)

Front 40

Impeachment with conviction of crime for false statement

Back 40

Admissible with no discretionary balancing (unless conviction is more than 10 years old)

Front 41

Impeachment with convictions more than 10 years old

Back 41

Probative value must outweigh unfair prejudice

Burden is on party admitting the evidence

Front 42

Impeachment with Non-Conviction Misconduct Bearing on Truthfulness

Back 42

Acts must involve lying.

Extrinsic evidence inadmissible.

Impeacher may only cross-examine witness about misconduct

Front 43

Impeachment with reputation & opinion regarding truthfulness

Back 43

Extrinsic evidence admissible

Front 44

Hearsay

Back 44

Out-of-court statement introduced to prove the truth of the matter asserted.

Speaker cannot be cross-examined

Front 45

Statement

Back 45

Verbal or written expression or conduct by a person intended to communicate

Front 46

Approach to determine whether statement was offered to prove the truth of the matter asserted

Back 46

1. find statement

2. ask what it is being offered to prove

3. given what it’s offered to prove, will jury be misled if the speaker was lying or mistaken? (if yes, this is hearsay)

Front 47

Acts of independent legal significance

Back 47

Not hearsay (e.g. contract formation, defamation, adverse possession, delivery of a gift, etc.)

Front 48

Examples of statements not offered to prove truth of matter asserted (and therefore not hearsay)

Back 48

a. to show acts of independent legal significance

b. to show effect on listener

c. to show speaker’s knowledge

d. to show speaker’s state of mind

Front 49

Hearsay exemptions (“nonhearsay”)

Back 49

1. Admission by party opponent

2. Prior inconsistent statement given under oath

3. Prior consistent statement offered to rebut charge of recent fabrication or improper influence or motive

4. Statement of identification of a person made after perceiving the person

Front 50

Admission of Party Opponent

Back 50

Not hearsay.

Needn’t be against party’s interest when made.

Not subject to personal knowledge

Elements:

---i. statement by a party (or someone whose statement is vicariously attributable to a party)

---ii. offered by a party opponent

Front 51

Authorized party admissions

Back 51

Not hearsay

i. statement by authorized spokesperson, or

ii. statement by employee of party concerning matter within scope of employment and made during employment relationship

Front 52

Examples of vicarious party admissions

Back 52

i. authorized parties (express or implied)

ii. employees

iii. adoptive admissions

iv. co-conspirator statements

Front 53

Adoptive Party Admissions

Back 53

Not hearsay

Nonparty makes statement and party indicates belief in its truth

Front 54

Co-conspirator Adoptive Admissions

Back 54

Not hearsay

Statement made during course and in furtherance of conspiracy.

Front 55

Hearsay exceptions (“hearsay but admissible”)

Back 55

1. former testimony

2. declaration against interest

3. dying declaration

4. excited utterance

5. present sense impression

6. declaration of existing physical or mental condition (including state of mind)

7. statement for medical diagnosis

8. business records

9. public records

10. judgment of previous conviction

Front 56

When is former testimony admissible hearsay

Back 56

i. declarant is unavailable

ii. party against whom the testimony is now offered had an opportunity and similar motive to examine that person; or

iii. in a civil case, the party against whom the testimony is now offered was not present but has a close privity-type relationship with someone who had an opportunity and similar motive to examine

Front 57

When is a Declarant “unavailable”?

Back 57

i. he is exempted due to privilege

ii. he is dead or sick

iii. his attendance cannot be procured by process or other reasonable means

iv. he refuses to testify

v. his memory fails

Front 58

When is declaration against interest admissible hearsay?

Back 58

i. declarant is unavailable

ii. at the time it was made, statement was against his financial or penal interests

iii. if statement made to exculpate, there must be corroborating evidence

Front 59

When is a Dying Declaration admissible hearsay?

Back 59

i. declarant must be unavailable (but need not die)

ii. declarant must believe he is about to die

iii. statement must be describing cause or circumstances of death

iv. must be a civil action or homicide prosecution

Front 60

When is an Excited Utterance admissible hearsay?

Back 60

i. Statement relating to startling event or condition

ii. made while declarant was still under stress of excitement caused by event or condition.

Front 61

When is a Present Sense Impression admissible hearsay?

Back 61

Statement described or explained an event or condition while declarant was perceiving the event or condition (or immediately thereafter)

Front 62

When is a business record admissible hearsay?

Back 62

i. record of events, conditions, opinions, or diagnoses

ii. kept in course of regularly conducted business activity

iii. made at or near time of matters described

iv. by a person with knowledge of the facts in the record

v. it was a regular practice of business to make such a record

(Courts may exclude if untrustworthy)

Front 63

When is a public record admissible hearsay?

Back 63

i. record describes activities/policies of office

ii. record describes matters observed pursuant to duty imposed by law (excluding police reports in criminal cases); or

iii. record contains factual findings resulting from investigation made pursuant to authority granted by law (unless untrustworthy, or unless it’s a criminal case)

Front 64

Confrontation clause

Back 64

Applies in criminal cases.

No out-of-court statements by an unavailable witness are admissible if

i. statement was testimonial, and

ii. defendant had no chance to cross-examine declarant about the statement

Front 65

Testimonial statements

Back 65

i. are made to further a police investigation aimed at producing evidence for a prosecution

ii. are not made to deal with an ongoing emergency

Front 66

Burden of proof for authenticating non-testimonial evidence

Back 66

Low burden.

“Sufficient to sustain finding”

(i.e. reasonable person test)

Front 67

Ways to authenticate handwriting or signatures

Back 67

a. admission

b. eyewitness testimony

c. expert opinion

d. lay opinion familiar with it

e. circumstantial evidence

f. genuine exemplar

Front 68

Ancient documents rule

Back 68

Authenticity is established if :

i) document is 20 years old or more

ii) document does not have any irregularities on its face (e.g. erasures)

iii) document was found in a place of natural custody (i.e. where you’d expect such documents to be found)

Front 69

Authentication is not needed for these documents

Back 69

1. Certified copies of public documents (e.g. deeds)

2. Notarized documents

3. Official publications

4. Newspapers/periodicals

5. Business records

6. Trade inscriptions

Front 70

Authentication of non-unique items

Back 70

Must be a chain of custody demonstrating that this is the specific item proponent claims it to be

Small breaks in the chain are okay (but not large breaks)

Front 71

Best Evidence Rule

Back 71

Applies where evidence offered to prove the contents of a writing.

Writings = documents, videos, photos, x-rays, audio recordings, computer disks, or any tangible collection of data

Rule requires the original (with exceptions)

Front 72

Exceptions to Best Evidence Rule

Back 72

1. voluminous documents can be summarized

2. duplicates are admissible (e.g. copies made by carbon or machine)

3. if there is a genuine issue about authenticity of original, copies are not admissible

4. testimony about contents is admissible where original is lost or destroyed (unless bad faith by proponent of testimony)

Front 73

Privileges

Back 73

1. attorney-client

2. psychotherapist-patient

3. social worker-client

4. spousal testimony

5. marital confidential communication

Front 74

attorney-client privilege

Back 74

i. Communication between attorney and client OR their representatives,

ii. Intended to be confidential

iii. Made to facilitate professional legal services

Front 75

Exceptions to attorney-client privilege

Back 75

i. professional services sought to futher crime or fraud

ii. communication relates to alleged breach of duty between lawyer and client

iii. two or more parties consult attorney on a matter of common interest, and that communication is offered by one of these parties against the other

Front 76

Doctor-patient privilege

Back 76

NOT listed in the federal rules

Applies to information:

i. confidentially conveyed

ii. for purpose of diagnosis or treatment, and

iii. info was pertinent to diagnosis or treatment

Front 77

Spousal testimonial privilege

Back 77

Permits witness to refuse to testify against his/her spouse

Applies only when they are married

Testifying spouse holds the privilege

Front 78

Marital confidential communication privilege

Back 78

Protects confidential spousal communications made during marriage

Continues after divorce

Both spouses hold the privilege

Front 79

Facts appropriate for JUDICIAL NOTICE

Back 79

Facts that aren’t subject to reasonable dispute either because

i. generally known within the jurisdiction, or

ii. capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned

Front 80

Procedure for taking judicial notice

Back 80

a. in civil case, jury must accept noticed fact as conclusive

b. in criminal case, jury may, but is not required to accept judicially noticed facts

Front 81

LOGICAL RELEVANCE rule

Back 81

To be admissible, evidence must be logically relevant. Evidence is logically relevant if it tends to prove or disprove a material fact at issue (CA: in dispute)

Front 82

JUDICIAL NOTICE rule

Back 82

Judicial notice is proper if the fact is either a notorious fact or a manifest fact.

Notorious fact is one that is of common knowledge.

Manifest fact that is easily verifiable from sources of undisputed accuracy.

Front 83

ADMISSION BY PARTY OPPONENT rule

Back 83

A prior acknowledgement of a relevant fact.