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89 Cards in this Set

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RELEVANCE
Evidence is relevant if it tends to prove or disprove a material fact at issue.

To be admitted all evidence must be relevant.
LEGAL RELEVANCE
All relevant evidence is admissible unless

some specific exclusionary rule is applicable or

the court makes a discretionary determination that the probative value is substantially outweighed by pragmatic considerations.
POLICY BASED EXCLUSIONS
Certain evidence is excluded because of public policy.

They include:

liability insurance, subsequent remedial measures, settlement offers, withdrawn guilty pleas, and payment or offers to pay medical expenses.
INSURANCE
MEASURES
OFFERS
PLEAS
PAYMENT
LIABILITY INSURANCE
Evidence that a person does or does not have liability insurance is inadmissible to prove fault or absence of fault.

Evidence of insurance may be admissible to prove some other relevant purpose for purpose of impeachment.
SUBSEQUENT REMEDIAL CONDUCT
SRR are inadmissible for the purpose of proving negligence, culpable conduct, product defect, or need for warning.

May be admissible for some other relevant purpose such as: ownership/control or feasibility of safer conditions, if either is controverted.
ARIZONA DISTINCTION IN PRODUCTS LIABILITY ACTIONS
Changes in state of the art,

changes in the design or

changes in the method of manufacturing

are inadmissible to show the existence of a defect if they occurred after the defendant’s first sale of the product.

This applies if the change is to the same or similar products.
STATE OF THE ART
DESIGN
MANUFACTURE
AFTER FIRST SALE
SETTLEMENT OFFERS IN CIVIL CASES
Evidence of a settlement or offer to settle a disputed claim is inadmissible to prove liability or weakness of a party’s case.

Statements of fact made in the course of settlement discussions are inadmissible.

Evidence of a settlement may be admissible for the purpose of impeachment of a witness on the ground of bias.
PAYMENT OR OFFERS TO PAY MEDICAL EXPENSES
That a party has paid or offered to pay an accident victim’s hospital or medical expenses is inadmissible to prove liability.
WITHDRAWN GUILTY PLEAS
Offers to plead guilty, withdrawn guilty pleas, and statements of fact are inadmissible in pending criminal cases or subsequent civil litigation based on the same facts.

A plea of nolo contendere is inadmissible in subsequent civil litigation based on the same facts.

A plea of guilty is admissible in subsequent litigation based on the same facts under the rule of party admissions.
RULE 403 BALANCE OF PREJUDICIAL IMPACT V. PROBATIVE VALUE
The court may make a discretionary decision to exclude evidence the evidence:

1. creates a danger of unfair prejudice
2. will confuse the issues
3. could mislead the jury
4. could cause undue delay
5. is a waste of time
6. is unduly cumulative
CHARACTER EVIDENCE TESTIMONY
Refers to a person’s general propensity or disposition.

There are three potential purposes for the admissibility of character evidence:

1. prove character when it is an ultimate issue in the case

2. to serve as circumstantial evidence of how the person probably acted

3. to impeach credibility
CONDUCT IN CONFORMITY
Evidence of a person's character Is not admissible for the purpose of proving conduct in conformity, except:

if a pertinent trait of character was offered by the accused,

or by the prosecution to rebut the same evidence.
METHODS OF INTRODUCING CHARACTER EVIDENCE
When character evidence is admissible to prove conduct in conformity, there are only two proper methods:

reputation and opinion

Specific acts are never allowed to prove conduct in conformity.
CHARACTER EVIDENCE IN CIVIL CASES
Character evidence is generally INADMISSIBLE to prove conduct in conformity in civil cases.

It may be ADMISSIBLE where such character is an essential element of a claim or defense (provable by reputation, opinion, and specific acts) in only two situations:

tort cases alleging negligent hiring or entrustment

defamation cases where the plaintiff’s character is what the case is about.
CHARACTER EVIDENCE TO IMPEACH CREDIBILITY
A witness’ bad character for truthfulness is admissible to impeach credibility.
MATERIAL ELEMENT IN THE CASE
A person’s character is admissible in the rare situation where it is a material element of the case.
OPENING THE DOOR
Evidence of the defendant’s character to prove conduct in conformity is INADMISSIBLE during the prosecution’s case-in-chief.

However, the defendant, during the defense, may introduce evidence of a relevant character trait to prove conduct in conformity thereby opening the door to rebuttal by the prosecution.
CHRACTER EVIDENCE DURING PROSECUTION’S REBUTTAL
If the defendant has “opened the door” the prosecution may rebut by:

cross-examining defendant’s character witness with “have you heard” or “did you know” questions about specific events; or

calling its own reputation or opinion witnesses to contradict defendant’s witnesses.
ARIZONA VICTIM’S CHARACTER ON PROSECUTION'S REBUTTAL(SELF DEFENSE CASE)
In Arizona, the prosecution may rebut the defendant’s bad character evidence of the victim only with evidence of the victim’s good character for the same trait;

the prosecution may not rebut with evidence of the defendant’s bad character for the same trait.
MBE VICTIM’S CHARACTER (SELF DEFENSE CASE)
A criminal defendant may introduce evidence of a victim’s violent character to prove victim’s conduct in conformity as circumstantial evidence that the victim was the first aggressor.
MBE VICTIM’S CHARACTER (SEXUAL MISCONDUCT CASE)
Under the Federal Rape Shield Law, in both criminal and civil cases where a defendant is alleged to have engaged in sexual misconduct the following evidence about the victim is ordinarily inadmissible: opinion or reputation evidence about the victim’s sexual propensity, or evidence of specific sexual behavior of the victim
MBE VICTIM’S CHARACTER (SEXUAL MISCONDUCT CASE) EXCEPTIONS
Specific sexual behavior of the victim is ADMISSABLE to prove:

Someone other than the defendant was the source of semen or injury

victim’s sexual activity with the defendant if the defense of consent is asserted,

It is also ADMISSABLE if exclusion would violate the defendant’s right of due process.
ARIZONA RAPE SHIELD LAW
Applies only to criminal cases.

Opinion and reputation evidence relating to the victim’s chastity is prohibited.
WHEN IS A VICTIM'S PRIOR SEXUAL CONDUCT ADMISSABLE?
The victim’s prior sexual conduct is admissible only if it:

occurred with the defendant

shows a different source of semen

shows victim had a motive to accuse the defendant

impeaches the victim after prosecutor has put victim’s sexual conduct at issue;

or consists of false allegations of sexual misconduct against others
SPECIFIC ACTS OF MISCONDUCT INADMISSABLE
Other crimes or specific bad acts are INADMISSIBLE during the prosecution’s case-in-chief to suggest that because of the defendant’s bad character, he is more likely to have committed the crime.
SPECIFIC ACTS OF MISCONDUCT ADMISSABLE
If the other crimes or bad acts show something specific about the crime charged – it may be ADMISSIBLE as evidence bearing on guilt.
WHAT ARE THE MOST COMMON NON-CHARACTER PURPOSES FOR INTRODUCING PRIOR MISCONDUCT?
Motive
Intent
Mistake or Accident,
Absence of Identity
Common Scheme or Plan

If relevant, evidence for one of these purposes can also be used in civil cases.
DOES THE PROSECUTOR HAVE TO GIVE NOTICE OF INTENT TO USE SPECIFIC ACTS OF PRIOR MISCONDUCT?
Upon defendant’s request, the prosecution must give pretrial notice of intent to introduce the evidence.

In all cases, the court must also weigh probative value against prejudice and give limiting instructions if it is admitted.
WHEN CAN A PROSECUTOR INTRODUCE CHARACTER PRIOR MISCONDUCT?
In Arizona, the prosecution can only introduce a prior conviction or by evidence that proves the crime occurred if the trial court finds by clear and convincing evidence that the defendant committed the crime.

Under FRE the prosecutor must produce sufficient evidence from which a reasonable juror could conclude that the defendant committed the other crime.
OTHER SEXUAL MISCONDUCT TO SHOW PROPENSITY IN SEX-CRIME PROSECUTION OR CIVIL ACTION
In a federal case alleging sexual assault or child molestation, prior specific sexual misconduct of the defendant is admissible as part of the case-in-chief of the prosecution or of the plaintiff for any relevant purpose, including defendant’s propensity for sex crimes.
SIMILAR OCCURRENCES
If evidence concerns some time, event or person other than that involved in the case at hand, the evidence is INADMISSIBLE UNLESS some concrete rule permits admissibility.
PLAINTIFF’S ACCIDENT HISTORY
A plaintiff’s accidents are inadmissible to show the fact that the plaintiff is accident prone but, prior accidents are ADMISSIBLE if CAUSE is in issue.
SIMILAR ACCIDENTS CAUSED BY SAME EVENT OR CONDITION
Generally other accidents are inadmissible because they suggest nothing more than general character for carelessness.
INTENT IN ISSUE
Similar conduct previously committed by a party may be introduced to prove the party’s present motive or intent when such elements are relevant.
HABIT
Habit of a person is admissable as circumstantial evidence of how a person (or business) acted on the occasion at issue.
OTHER ACCIDENTS, SAME INSTRUMENTALITY OR CONDITION, AND SIMILAR CIRCUMSTANCES
Other accidents involving the same instrumentality or condition and occuring under substantially smililar circumstances, are ADMISSABLE to prove:

Existence of a dangerous condition

Causation

Prior notice
DOCUMENTARY EVIDENCE
If a written document is to be admitted into evidence it must be:

relevant

authenticated

conform to the Best Evidence Rule

not hearsay or fit an exception to the hearsay rule
AUTHENTICATION
If the document is:

an official publication,
a certified copy of a public record,
newspaper or periodical,
trade inscription or label,
notarized or commercial paper

it is presumed authentic.

If it is not one of these and in the absence of a stipulation as to authenticity, a foundation must be made in order for the document to be admissible.
WAYS TO AUTHENTICATE A DOCUMENT
There are five ways in which a document may be authenticated:

personal knowledge,

proof of handwriting,

ancient document rule,

solicited reply doctrine,

authentication of photographs.
PERSONAL KNOWLEDGE
if the witness observed the signing of the document she can authenticate it
PROOF OF HANDWRITING
can be proven by lay opinion, expert comparison or jury comparison
ANCIENT DOCUMENT RULE
authenticity may be inferred if the document is:

at least 20 years old

facially free of suspicion

found in a natural place of custody
SOLICITED REPLY DOCTRINE
a document can be authenticated by evidence that it was received in response to a prior communication to the alleged author.
AUTHENTICATION OF PHOTOGRAPHS
a witness may testify on the basis of personal knowledge that the photograph is a “fair and accurate representation” of the people or objects portrayed.
BEST EVIDENCE RULE
a party who seeks to prove the contents of a writing, sound recording, x-ray or film must either produce the original or provide an acceptable excuse for its absence. If the court finds the excuse acceptable, the party may then use secondary evidence – oral testimony or a copy.
RECORDS TOO VOLUMNIOUS
A party may escape the Best Evidence Rule if the original records are too voluminous to be presented or if they have certified public records or if the documents are collateral evidence.
WITNESSES
A witness is someone who has first-hand knowledge about a crime or dramatic event. A witness must be competent to testify.
CHILD WITNESSES
In Arizona, the court , in its discretion, may exclude testimony of a child witness under the age of 10, who appears incapable of perceiving or relating facts.
OPINION TESTIMONY OF LAY WITNESSES
opinions by lay witnesses are generally ADMISSIBLE if it is with respect to the general appearance or condition of a person. Other opinions by lay witnesses are generally INADMISSIBLE, unless no better evidence can be obtained.
WHEN ARE LAY WITNESSES OPINIONS OTHER THAN APPEARANCE OR CONDITION ALLOWED IN?
A lay witness may testify about matters other than general appearance or condition if the opinion is rationally based on the witness’ perception and is not based on specialized knowledge and the testimony would assist the trier of fact.
EXPERT WITNESSES
An expert may state an opinion or conclusion provided: the subject matter is one where scientific, technical or other specialized knowledge would assist the trier of fact, the witness is qualified as an expert, the expert possesses reasonable probability regarding his opinion and the opinion is supported by a proper factual basis.
TREATISES, PERIODICALS AND PAMPHLETS
On direct examination of a party’s own expert relevant portions of a treatise, periodical, or pamphlet may be read into the record as substantive evidence if established as a reliable authority. On cross-examination of an opponent’s expert relevant portions of a treatise, periodical, or pamphlet may be read into evidence to impeach or contradict if established as a reliable authority. These documents may never be introduced as an exhibit.
HEARSAY
is an out of court statement offered to prove the truth of the matter asserted. Hearsay statements are inadmissible unless an exception or exclusion applies
NON-HEARSAY
verbal acts or legally operative words used to show the effect on the person who heard or read the statement or circumstantial evidence of speaker’s state of mind are non-hearsay and are admissible
PRIOR STATEMENTS OF A TRIAL WITNESS
generally a witness’ own prior statement, if offered to prove the truth of the matter asserted in the statement, is hearsay and is INADMISSIBLE unless an exception or exclusion applies.
PRIOR STATEMENTS OF A TRIAL WITNESS NON HEARSAY PURPOSES
The following witness statements are non-hearsay: prior statement identification prior inconsistent statement if prior statement was under oath and made during a formal trial, hearing, proceeding or deposition. In Arizona, any prior inconsistent statement is admissible.
PRIOR CONSISTENT STATEMENTS
Prior consistent statement used to rebut a charge of recent fabrication or improper motive or influence
PARTY ADMISSIONS
any statement made by a party is NON-HEARSAY and is ADMISSIBLE against any party as substantive evidence. Any statement made by an agent or employee of a party is ADMISSIBLE against the principal or employer if the statement concerns a matter within the scope of agency or employment and is made during such agency or employment as a vicarious admission.
COMPETENCY
A witness is competent to testify if they have personal knowledge and declare or affirms to testify truthfully
HEARSAY EXCEPTIONS
Hearsay will be admitted if there are factors tending to prove reliability or if other good reasons exist sufficient to excuse the inability to cross-examine.
EXCEPTIONS TO THE HEARSAY RULE INCLUDE
former testimony, statement against interest, dying declaration, present sense impression, present state of mind, declaration of intent, present physical condition, statement for purpose of medical treatment or diagnosis, business records and public records
FORMER TESTIMONY
allows a statement to be admitted if it was given at a former proceeding or in a deposition if opportunity and motive to cross examine existed and the issues of both proceedings are essentially the same.
FOR FORMER TESTIMONY TO BE ALLOWED THE DECLARANT MUST BE UNAVAILABLE DUE TO
death or illness
absence from jurisdiction privilege
refusal to testify
lack of memory
STATEMENT AGAINST INTEREST
allows a statement to be admitted if it was against the declarant’s pecuniary, proprietary or penal interest
DYING DECLARATION
allows a statement to be admitted if it was made under the belief of impending death and the statement concerned the cause or circumstance of what was believed to be impending death
EXCITED UTTERANCE
allows a statement to be admitted if it was made during or shortly after a startling event, and it relates to the event and was made without time to reflect or fabricate
PRESENT SENSE IMPRESSION
allows a statement to be admitted if it was made while observing an event
PRESENT STATE OF MIND
allows a statement to be admitted if it was a contemporaneous statement concerning declarant’s present state of mind, feelings, or emotions
DECLARATION OF INTENT
allows a statement to be admitted if it was a statement of declarant’s intent to do something in the future
PRESENT PHYSICAL CONDITION
allows a statement to be admitted if it was made to anyone about the declarant’s current physical condition
STATEMENT FOR PURPOSE OF MEDICAL TREATMENT OR DIAGNOSIS
allows a statement to be admitted if it was made to medical personnel to assist in diagnosing the condition
BUSINESS RECORDS
allows a writing to be admitted if it was made at or near the time of the underlying event, in the regular course of business, by one who made it with personal knowledge and was under a duty to make the writing
PUBLIC RECORDS
allows a statement to be admitted if it was a record of a public office or agency and it set forth either: the activities of the office or agency; or matters observed pursuant to a duty imposed by law; or findings of fact or opinions from an investigation authorized by law
POLICE REPORTS
police reports and investigatory findings are not admissible against the defendant in a criminal case
ATTORNEY-CLIENT PRIVILEGES
Evidence is privileged if the communications were confidential between attorney and client (or representative of either) made during professional, legal consultation unless privilege is waived by the client or an exception is available
ATTORNEY CLIENT NOT PRIVILEGED
An attorney-client conversation is not privileged if it has to do with a future crime or ongoing fraud, the client puts legal advice in issue (“I relied on advice of my attorney”) , the issue is an attorney-client dispute (malpractice claim)
PHYSICIAN-PATIENT PRIVILEGE
Evidence is privileged if the communications were confidential or the information was acquired by the physician or psychotherapist from the patient for the purpose of diagnosis or treatment of a medical condition
PHYSICIAN-PATIENT NOT PRIVILEGED
Evidence is not privileged if the patient expressly or impliedly puts physical or mental condition in issue.
SPOUSAL IMMUNITY
Criminal Cases Only - In a criminal case a spouse cannot be compelled to testify against a defendant spouse concerning any matter, including pre-marriage observations. Non-defendant spouse is holder of the privilege.
SPOUSAL IMMUNITY IN ARIZONA
In Arizona a spouse may not testify against a defendant spouse without the defendant’s consent concerning any events that have occurred during the marriage.
CONFIDENTIAL COMMUNICATIONS BETWEEN SPOUSES
In any type of case, a spouse is not required, and is not allowed in the absence of consent by the other spouse, to disclose confidential communications made by one to the other during the marriage.
MARITAL PRIVILEGE EXCEPTIONS
The following exceptions apply to the marital communications privileges: future crimes or fraud, communications or acts destructive to the family unit, divorce or other civil actions between spouses in Arizona
IMPEACHMENT USING PRIOR INCONSISTENT STATEMENTS
any witness may be impeached by showing on some prior occasion they made a material statement that is inconsistent with the trial testimony
IMPEACHMENT BASED ON BIAS, INTEREST OR MOTIVE TO MISREPRESENT
any witness may be impeached by showing that the witness’ relationship to a party suggests false, slanted or mistaken testimony in favor of the party.
IMPEACHEMENT BASED ON SENSORY DEFICIENCIES
any witness may be impeached by showing anything that could affect the witness’ perception or memory
IMPEACHMENT AND BAD CHARACTER FOR TRUTHFULNESS
Any witness may be impeached by showing Bad reputation or opinion about a witness’ character for truthfulness
IMPEACHMENT BY CRIMINAL CONVICTIONS
any witness may be impeached by showing that the witness has been convicted of a crime involving dishonesty or false statement or if the conviction was for a felony of another sort and the court finds that the probative value on the issue of credibility does not outweigh the danger of unfair prejudice to a party.
TIMING OF CONVICTION FOR IMPEACHMENT PURPOSES
Conviction or release from prison must generally be within ten years of the trial.
IMPEACHMENT BY SPECIFIC BAD ACTS
Specific bad acts that reflect adversely on a witness’ character for truthfulness – are only admissible on cross-examination and must involving dishonesty or false statement.