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131 Cards in this Set

  • Front
  • Back
Relevance (three steps)
1. Does it tend to prove a material fact?

2. If so, should it nonetheless be excluded based on judical discretion (probative value outweighed by prejudice)

3. If not should it be excluded on public policy grounds (insurance, remedial repairs)
General Rule of Relevance: must relate to
Time, event or person involved in the present litigation
Relevant Similar Occurrences (list)

Prior False Claims

Same Bodily Injury

Similar Accidents or Injuries caused by Same Event or Condition

Previous Similar Acts Admissible to Prove Intent

Rebutting Claim of Impossibility

Sales of Similar Property


Industrial or Business Routine

Industry Custom as Evidence of Standard of Care
Evidence Generally (4 steps)
1. Is the evidence relevant?

2. Is there proper foundation?

3. Is the evidence in the proper form?

4. Is the evidence beyond the application of, or within an exception to, one of the exclusionary rules?
Sales of Similar Property (Relevant Similar Occurrences)
Admissible if not too remote

Mere offers not admissible

Rejected offers may be used as admission
Prior False Claims or Same Bodily Injury (Relevant Similar Occurrences)
Relevant to prove

1) the present claim is likely false

2) P's condition is attributable in whole or in part to the prior injury
Similar Accidents or Injuries Caused by Same Event or Condition (Relevant Similar Occurrences)
Admissible to prove

1) EXISTENSCE of dangerous condition

2) Defendant had KNOWLEDGE of dangerous condition

3) Dangerous condition was the CAUSE of the present injury
Absence of Similar Accidents (Relevant Similar Occurrences)
Only admissable to show:

Lack of Knowledge
Habit (Relevant Similar Occurrences)

Specifity and Recurrence

Essay: 3 or more times discuss

MBE: always, instinctively, automatically
Unfair Surprise
Not a valid ground on which to exclude relevant evidence
Exclusion of Relevant Evidence for Public Policy Reasons (List)
Liability Insurance

Subsequent Remedial Measures

Settlement Offers

Withdrawn Guilty Pleas

Offers to Pay Medical Expenses
Liability Insurance

Not Admissible to show negligence or ability to pay

Admissible to:

1. Prove ownserhip or control
2. Impeach
3. As part of an admission
Subsequent Remedial Measure

Not Admissible to prove:
1) Negligence
2) Culpable conduct
3) Defect
4) Need for warning or instruction

Admissible to :
1) Prove ownership and control
2) Rebut a claim that the precaution was not feasible
3) Prove the opposing party has destroyed evidence
Settlement Offers

Not Admissible to prove liability for, or invalidity of, a claim that is disputed as to validity or amount

To be excluded, there must be some evidence the party is going to make a claim AND the claim must be in dispute as to liability or amount
Offers to Pay Medical Expenses

Admissions of fact accompanying offers to pay medical expenses are admissible
Character Evidence may be offered as substantive evidence to
1) Prove character when it is the ultimate issue in the case

2) Serve as circumstantial evidence of how a person probably acted
Means of Proving Character
1) Evidence of SPECIFIC ACTS

2) OPINION TESTIMONY of other witness who knows person

3) Testimony as to the person's general REPUTATION in the community
Character Evidence in Civil Cases
Generally not admissible

Unless character directly in issue (defamation)
Character Evidence of Accused in Criminal Case
Prosecutor cannot initiate

Accused may introduce evidence of good character
How a Defendant Proves Character
Witness may testify as to:

1) Reputation for trait in question

2) Personal opinion concerning that trait
Taking the stand puts the Defendant's x (as opposed to y) in issue
X = credibility (impeachment)

y = character (substansive character evidence)
How Prosecution Rebuts Defendant's Character Evidence
1) Cross-examination as to basis including defendant's PRIOR ACTS (no extrinsic evidence)

2) Calling qualified witness
Victim's Character in Criminal Case
Admissible when relvant to show defendant's innocence (except rape)

Prosecution may counter with opinion or reputation evidence of:

1) victim's good character

2) defendant's bad character for the same trait
Rape Victim's Past Behavior
Generally Inadmissable


1) In criminal cases, some other source of PHYSICAL EVIDENCE or past encounters between D and P to show CONSENT

2) In civil case, probative/prejudicial balancing test. Reputation only where put in controversy by the victim
Specific Acts of Misconduct

(Admissible Character Evidence)
Relevant to some issue other than character or disposition (MIMIC)

Mistake (abence of)
Common plan or scheme

1) Must be sufficient evidence to support jury finding that D committed prior act

2) Probative outweighs prejudice

EXCEPTION: Sexual Assault and Child Molestation
Judical Notice (Appropriate Facts)
Indisputable Facts

1) Common knowledge in community
2) Capable of verification by resort to easily accessible sources of unquestionable accuracy

Legislative Facts (not covered by FRE)
Judical Notice Conclusive?
In civil cases

Not in criminal
Judicial Notice of Law
State and federal law (Mandatory)

Municipal ordinances, private acts or resolutions of legislature, foreign laws (Permissive)
Real Evidence (Conditions of Admissibility)
1. Authentification (foundation testimony; unbroken custodial chain)

2. Condition (substantially same)

3. Balancing Test- Legal Relevance (inconveince, indecency)
Types of Real Proof
1. Reproductions and Explanatory Real Evidence

2. Maps, Charts, Models

3. Exhibition of Child in Paternity Suits

4. Exhibition of Injuries

5. Jury Views of the Scene

6. Demonstrations
Authentication of Documentary Evidence (def and list)
Proof sufficient to support a jury finding of genuineness

1. Pleading or Stipulation
2. Evidence
3. Oral Statements
4. Self-Authenticating Documents
Evidence of Authenticity of Writings (list)
Eyewitness Testimony
Handwriting Verification
Ancient Documents
Reply Letter Doctrine
X-Rays, EKGs, etc.
Handwriting Verifcations
1. Lay witness with personal knowledge (cannot acquire for trial)

2. Expert comparison

3. Samples for comparison by trier of fact (Jury)
Ancient Documents
1) at least 20 yrs. old

2) such Condition as to be free from suspicion

3) found in a Place where such a writing would likely be kept
Photographs (authentification)
Must be ID'ed by witness with personal knowledge of scene (photographer not necessary)

Unattended camera: show proper operation at relevant time and developed from film obtained from camera
X-Rays, etc. (authentification)
1. Process is accurate
2. Machine in working order
3. Operator qualified
4. Custodial chain
Voice Identification
Anyone who has heard the voice
Telephone Conversation (authentification)
1. Recognized voice

2. Speaker had knowledge of exclusive facts

3. Called person's number and answered by self-identified person or person's residence

4. Called business, discussed business matters
Best Evidence Rule (definition)
Original Document Rule

To prove the terms of a writing, the original writing must be produced if the terms of the writing are material

Secondary evidence of writing is admissible only if the original is unavailable
Best Evidence Rule (applicable to)
1) Writing is a legally operative or dispositive instrument

2) Knowledge of a witness concerning a fact results from having read it in the document
Best Evidence Rule (does not apply to)
1) Fact to be proved existed independent of writing

2) Writing is Collateral to Litigated Issue

3) Summaries of Voluminous Records

4) Public Records
Admissibility of Duplicates
Admissible unless the authenticity of the original is challenged or unfairness would result

Duplicates are carbon copies; handwritten copies are secondary evidence
Best Evidence Rule: Admissibility of Secondary Evidence of Contents
1) Satisfactory Foundation
a) Loss or destruction of original
b) Original is in possession of a third party outside jurisdiction and unobtainable
c) Original is in the possession of an adversay who after due notice fails to produce it

2) No degrees of Secondary Evidence

3) Testimony or Written Admission of Party
Best Evidence Rule (functions of Court and Jury)
Judge: admissibility


1) Whether original ever existed

2) Whether a writing, recording or photograph produced at trial is an original

3) Whether the evidence offered correctly reflects the contents of the original
Parol Evidence

1) Incomplete or Ambigious Contract

2) Reformation of Contract

3) Challenge Validity of Contract

4) Subsequent Modifications
Federal Rules of Competency
1) Personal Knowledge

2) Witness must declare he will testify truthfully

Interpreter: qualified and oath
Modern Common Law Disqualifcations (Competency)
Infancy: capacity and intelligence determined by judge

Insanity: may if understands obligation to speak truthfully and has capacity to speak accurately

Judge and Jury: incompetent
Dead Man Acts
State laws

1) Interested witness

2) Witness must be testifying for his interest

3) Witness must be testifying against the decedent or a representative of the decedent

4) Subject matter of the testimony is communications or transactions with decedent

5) Civil case

6) Unless there is a waiver
Leading Questions (permissible)
1) On cross

2) Elicit preliminary or introductory matter

3) Witness needs aid to respond because of loss of memory, immaturity or physical or mental weakness

4) Witness is hostile
Improper Questions and Answers

Unduly harassing or embarassing
Calls for narrative or speculation
Assumes facts not in evidence


Lack foundation
Present Recollection Revived
May glance at
May not read
Not authenticated
Not in evidence

Not hearsay
Past Recollection Recorded
Writing itself may be read into evidence

Foundation must include proof that:

1) Witness had PERSONAL KNOWLEDGE at one time

2) Writing was MADE BY THE WITNESS or under her direction, or it was ADOPTED by the witness

3) The writing was TIMELY MADE when the matter was fresh in the witness's mind

4) The writing is ACCURATE

5) The witness has INSUFFICIENT RECOLLECTION to testify fully and accurately

Hearsay exception
Recollection Revived or Recorded (Inspection and Use on Cross)
Adverse party can:

Have it produced at trial

Is entitled to cross on

Introduce into evidence
Lay Witness Opinion Testimony (when)
1) rationally based on witness's perception

2) helpful to a clear understanding of his testimony or helpful to the determination of a fact in issue

3) not based on scientific, technical, or other specialized knowledge
Situations Where Opinions of Lay Witnesses Are Admissible
1) General appearance or condition of a person

2) State of emotion of a person

3) Matters involving sense recognition

4) Voice or handwriting identification

5) The speed of a moving object

6) The value of his own services

7) The rational or irrational nature of another's conduct

8) Intoxication of another
Situations Where Lay Witness Opinions Are Not Admissible
1) whether one acted as an agent

2) whether an agreement was made
Expert Opinion Testimony
Expert may state an opinion or conclusion, provided:

1) Subject matter is one where specialized knowledge would assist the trier of fact

2) The witness is qualified as an expert

3) Expert possesses reasonable probability regarding his opinion

4) The opinion is supported by a proper factual basis
Expert Opinion (proper factual basis)
May be based on

1) Personal observation

2) Facts made known to expert at trial

3) Facts supplied to him outside the courtroom of a type reasonably relied upon by experts in the particular field
Learned Treatise
1) Establised as authoritative

2) Expert on the Stand

3) Portion read into evidence
Cross Examination (scope)
Limited to:

1) Scope of direct examination

2) Testing the credibility of the witness
Collateral Matters (cross examination)
Cross-examiner is bound by the answers given by the witness as to collateral matters. No extrinsic evidence is allowed to contradict a witness as to a collateral matter

Lots of discretion (bias, interest, conviction)
Accrediting or Bolstering (credibility)
May not unless rehabilitating

Exception: May prove made a timely complaint or prior statement of ID
Who may Impeach?
Impeachment Devices
Prior Inconsistent Statements

Bias or Interest

Conviction of Crime

Bad Acts

Opinion or Reputation Evidence for Truth

Sensory Deficiencies
Prior Inconsistent Statement (Impeachment)
Must lay foundation for extrinsic evidence: witness given opportunity to explain before or after (unless hearsay declarant)
Conviction of Crime (impeachment)
1) Any crime involving dishonesty

2) Felony not involving dishonesty (discretion)

3) w/in 10 yrs. (no juvenile crime)

4) Not pardoned

5) No foundation necessary for extrinsic evidence
Felony Not Involving Dishonesty (Impeachment)
Court has discretion to exclude if:

1) Witness is criminal defendant and prosecution has not shown probative outweighs prejudicial

2) Civil: court determines probative outweighs prejudicial
Bad Acts (impeachment)
1) Only if act is probative of truthfulness

2) Inquire in good faith

3) No extrinsic evidence
Impeachment on Collateral Matter
No extrinsic evidence or prior inconsistent statement
Impeachment of a Hearsay Declarant
1. Need not be given opportunity to explain

2. May be called and cross-examined
Methods of Rehabilitation (impeachment)
1. Explanation on Redirect

2. Good Repuatation for Truth

3. Prior Consistent Statement
1. Failure to object is a waiver

2. Introducing a subject opens the door

3. Introducing one part of transaction, etc. adverse party may require rest

4. Only examining party may make motion to strike unresponsive answers

5. Offer of proof made to preserve evidence for appeal
Testimonial Privileges in the FRE
None, state law
General waiver of privilege
1) Failure to claim

2) Vountary disclosure by holder

3) Contractual provision waiving privilege in advance
Eavesdroppers (testimonial privileges)
Unless speaking party negligent, even eavesdroppers would be prohibited from testifying
Testimonial Privileges (list)
1. Attorney/Client
2. Physician/Patient
3. Psychotherapist (social worker)/Patient
4. Husband/Wife
5. Self-Incrimination
6. Clergy
7. Accountant
9. Journalist
10. Governmental
Attorney/Client Privilege (generally)
1. Seeking professional services at time

2. Confidential communication (including through agents)

3. Client holds privilege

4. Applies Indefinitely

5. Includes Work Product
Attorney/Client (does not apply)
1) Acts for both parties

2) Client sought to aid in the planning or commission of something the client should have known was a crime or fraud

3) Regarding a communication relevant to an issue between parties claiming through the same deceased client

4) For communication relevant to an issue of breach of duty in a dispute between the attorney and client
Physican-Patient Privilege
1. Professional relationship exists

2. Information is acquired while attending the patient in the course of treatment

3. The information is necessary for treatment

States mixed on whether it can be invoked in criminal, felony and homicide cases
Physician/Patient Privilege (does not apply)
1) The patient has put his physical condition in issue

2) The physician's assistance was sought to aid wrongdoing

3) The communication is relevant to an issue of breach of duty in a dispute between the physician and patient

4) The patient agreeed by contract to waive the privilege

5) It is a federal case applying the federal law of privilege
Spousal Immunity
In criminal case where spouse is defendant, may not be called

In any criminal case, may not be forced to testify

Privilege only lasts during valid marriage

Witness spouse holds the privilege
Privilege for Confidential Marital Communications
1. Marital relationship must exist when communication is made

2. Divorce will not terminate

3. Communication must be made in reliance upon the intimacy (confidential)

4. Both spouses hold
Husband/Wife Privilege (does not apply)
Actions between spouses or in cases where involving crimes against the testifying spouse or either spouse's children
Exclusion and Sequestration of Witnesses
Judge may not exclude

1) a party or a designated officer or employee of a party

2) a person whose presence is essential to the presentation of a party's case

3) a person statutorily authorized to be present
Hearsay (steps)
1. Is the evidence a statement? Yes

2. Offered to prove the truth of the matter asserted? Yes

3. Prior inconsistent statement given by the declarant under oath? No

4. Prior consistent statement offered to rebut a charge that the witness is lying or exaggerating because of some motive? No

5. ID of a person made after perceiving him? No

6. Made or adopted by a party to the action, or by agent, partner, co-conspirator or privy in title? No

7. Hearsay (see Exceptions)
Out of court statements that are not hearsay
1) Verbal acts or legally operative facts

2) Statements offered to show their effect on the hearer or reader

3) Statements offered as circumstantial evidence of declarant's state of mind
In deciding whether evidence is hearsay ask yourself whether
We are relying on declrant's credibility. If not, evidence is not hearsay
Nonhuman Declarations
Not hearsay
Prior Statements by Witness (not hearsay)
1. Prior statement is inconsistent with the declarant's in-court testimony and was given under oath at a prior proceeding (not affidavit)

2. The prior statement is consistent with the declarant's in-court testimony and is offered to rebut a charge that the witness is lying or exaggerating because of some motive

3. The prior statement is one of identification of a person made after perceiving him
Admissions by Party-Opponent
Not Hearsay (Admissible)

Judicial and Extra-Judicial Admissions

Adoptive Admissions

Vicarious Admissions
Judicial and Extrajudicial Admissions (Not Hearsay)
Formal judicial admissions (in pleadings, stipulations, etc.) are conclusive

Informal judicial admissions made during testimony and Extrajudicial (evidentiary) admissions are not conclusive and can be explained
Adoptive Admissions (Not Hearsay)
A party can make an admission by expressly or impliedly adopting or acquiescing in the statement of another

Includes: silence
Silence (Adoptive Admission - Not Hearsay)
If a reasonable person would have responded and a party remains silent in the face of accusatory statements, his silence may be considered an implied admission if:

1. The party heard and understood the statement

2. The party was physically and mentally capable of denying the statement

3. A reasonable person would have denied the accusation

(Rarely applicable w/ police)
Vicarious Admissions (List)




Privies in Title and Joint Tenants (State Courts Only)
Co-Parties (Vicarious Admissions)
Not receivable
Principal/Agent (Vicarious Admissions)
Within scope while relationship exists (ADMISSIBLE)
Partners (Vicarious Admissions)
Admissible as to the scope of the partnership business
Co-Conspirators (Vicarious Admissions)
Admissible where

1. Made to a 3rd person
2. In furtherance of conspiracy
3. At time when declarant was participating

Testimonial admissions only admissible if opportunity to cross-examine
Privies in Title and Joint Tenants (Vicarious Admissions)
State Courts only

Under Federal Rules may be admissible under exceptions
Hearsay Exceptions- Declarant Unavailable (list)
1. Former Testimony

2. Statements against Interest

3. Dying Declarations

4. Statements of Personal or Family History

5. Statements Offered Against Party Procuring Declarant's Unavailability
"Unavailability" (Definition for Hearsay Exceptions)
1. Exempt from testifying because of privilege

2. Refuses to testify concerning the statement depite court order

3. Testifies to lack of memory of the subect matter of the statement

4. Is unable to testify due to death or physical or mental illness

5. Is absent (beyond subpoena) and the proponent is unable to procure his attendance by reasonable means
Former Testimony (Hearsay Exception)
Testimony of now UNAVAILABLE witness is admissible if:

1. The party against whom the offered was party or in privity with a party in the former action

2. Involved the same subject

3. Testimony given under oath

4. Party against whom offered had an opportunity to develop the declarant's testimony

Hint: hearing or deposition, NO grand jury
Statements Against Interest (Hearsay Exception)

Against propriety, pecuniary or penal interest when made

Collateral facts also admissible

Declarant must have personal knowledge of facts and been aware statement was against interest

Where risk of criminal liability, corroborating circumstances required

Statement includes only remarks that inculpate declarant
Dying Declarations (Hearsay Exception)
1. Declarant believed death was imminent

2. Statement concerned the cause or circumstances of what he believed to be his impending death

(No need to actually die)
Statements of Personal or Family History (Hearsay Exception)
Concerning birth, death, marriages, divorces etc. admissible provided:

1. Declarant is member of family or intimately associated

2. The statements are made on declarant's personal knowledge
Statement Offered Against Party Procuring Declarant's Unavailability (Hearsay Exception)
Admissible against party who engaged or acquiesced in wrongdoing that intentionally procued the declarant's unanavailability
Hearsay Exceptions- Declarant's Availability Immaterial (List)
1. Present State of Mind

2. Excited Utterances

3. Present Sense Impression

4. Declarations of Physical Condition

5. Business Records

6. Past Recollection Recorded

7. Official Records and Other Official Writings

8. Ancient Document and Documents Affecting Property Interest

9. Learned Treatises

10. Reputation

11. Family Records

12. Market Reports
State of Mind (Hearsay Exception)
Statement of then existing state of mind, emotion, sensation or physical condition

Usually introduced to establish intent

Admissible when state of mind is a material issue or to show subsequent acts of declarant (not truth of matter believed)
Excited Utterance (Hearsay Exception)
Statement made while under stress or excitement of startling event (no time to reflect)
Present Sense Impression (Hearsay Exception)
Statement made concurrently with perception of event described
Medical Diagnosis or Treatment (Hearsay Exception)
Statement made to medical personnel for the purpose of diagnosis or treatment
Recorded Recollection (Hearsay Exception)
Writing by witness who cannot now remember the facts, made while the facts were fresh in her mind (must be read to jury)
Business Records or Absence Thereof (Hearsay Exception)

1. Made in the regular course of business near time of event

2. Consisting of matters within the personal knowledge of one with a business duty to transmit

3. Authentification (testify or certify)

Lack of such writing may be used to show nonoccurrence of event
Public Records and Reports or Absense Thereof; Records of Vital Statistics (Hearsay Exception)
Records and reports of public agencies regarding their activities and records of birth, deaths, marriages, etc.

Absence of public record is admissible to show nonexistence of matter

Includes police reports (but public records and reports generally not admissible against defendant in criminal case)
Judgments (Hearsay Exception)
A copy of a judgment of a prior felony conviction is admissible to prove any fact essential to the judgment (no acquittals or civil judgments).

In a criminal case, may be used for this purpose only against the accused
Ancient Documents (Hearsay Exception)
Documents 20 years old or more

Where it should be

Raises no questions of authenticity
Documents Affecting Property Interests (Hearsay Exception)
Deeds, wills, title, etc.
Learned Treatise(Hearsay Exception)
Statements from authoritative works admitted if called to attention of expert witness and established as reliable authority
Reputation (Hearsay Exception)

1) Person's character

2) Personal or family history

3) Land boundries

4) Community's general history
Family Records (Hearsay Exception)
Statements of fact found in family Bibles, jewelry engravings, tombstones, etc.
Market Reports (Hearsay Exception)
Market reports and public compilations generally relied on by the public or persons of a particular occupation
Declaration of Physical Condition (Hearsay Exception)
Spontaneous declaration of present body condition admissible even if not made to physician

Statements of past bodily condition admissible if to assist diagnosis or treatment (under FRE, not in most States)
Residual "Catch-All" Exception of Federal Rules (Hearsay Exception)
The hearsay statement possesses circumstantial guarantees of trustworthiness

The statement is strictly necessary

That notice be given to the adversary as to the nature of the statement
Sixth Amendment and Hearsay (Rule)
1. Rule – even though an out-of-court statement qualifies as an exception to the rule against hearsay, the accused’s Sixth Amendment right to confrontation may render the statement inadmissible when it is offered against the accused in a criminal case.
Sixth Amendment and Hearsay (factors)
From Crawford

1) The out-of-court statement is offered against the accused in a criminal case AND

2) The declarant is unavailable at the trial AND

3) The out-of-court statement was “testimonial” AND

4) The accused had no opportunity to cross-examine the declarant’s “testimonial” statement when it was made

5) Unless the prosecution demonstrates that the defendant has forfeited his Confrontation Clause objection by wrongdoing that prevented the declarant from testifying at trial.
Sixth Amendment and Hearsay (definition of "testimonial")
A hearsay statement is testimonial if declarant makes a statement that he or she anticipates will be used in the prosecution or investigation of the crime


1) Witness statements made to police or other law enforcement officials in response to police questioning

2) Any testimony given at a formal proceeding – preliminary hearing, grand jury, or motion to suppress

3) Guilty pleas allocutions of conspirators to prove that a conspiracy existed

4) Forensic lab reports revealing drugs, fingerprints, firearms evidence, blood, DNA, etc.
Burden of Producing Evidence
Burden of producing or going forward with evidence sufficient to make out a prima facie case.

Once party has satisfied, burden shifts
Burden of Persuasion
Civil: preponderance

Criminal: beyond reasonable doubt
Specific Presumptions (list)

Against Suicide


Death from Absence

Ownership of Car - Agent Driver




Mail Delivery


Bailee's Negligence

Preliminary Determinations of Admissibility
Judge: Competency, hearsay exceptions, privileges, expert testimony, mental competency, presence of jury

Jury: agency, authenticity of document, credibility of a witness and personal knowledge
Witness statements in Police Report
Must fall under a hearsay exception separate from Public Records (or Business Records - civil) exception that allows the rest of the report in