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25 Cards in this Set
- Front
- Back
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401
definition of relevant evidence |
"relevant evidence" means evidence having ANY tendency to make the existence of ANY fact that is of consequence to teh determination fo the action, more probable or less likely than it would be w/o the evidence
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402
Relevant evidence generally admissible |
All relevant evidence is admissible, except as otherwise provided by the constitution, acts of congress, by these rules, or supreme court
* evidence not relevant is NOT admissible *look to elements of cause of action or crime. relevance is relational and rarely does 1 thing hit a home run |
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403
Exclusion of Relevant Evidence, Prejudice, Waste of Time |
Although relevant, evidence may be excluded if its probative value (tendency to prove in the relevant test) is substantially outweighed by the burden of unfair prejudice, confusion of the issues, misleading the jury, by considerations of undue delay, waste of time
*burden on objecting party (party seeking exclusion) |
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606
Competency of juror as Witness |
a) at the trial. a member of the jury may not testify as a witness before that jury in trial of the case in which the juror is sitting. if the jury is called to testify, opposing party shall be afforded opportunity to object
b) jurors can not impeach their verdict, ie jurors cannot take their verdict back or attack their own decisions- protect integrity of jury process *External evidence is admissible, internal evidence not admissible |
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104
Preliminary Questions |
a) questions of admissions generally: judge makes decisions
b) conditional relevancy: when the relevance of evidence depends upon the fulfillment of a condition of fact, court shall admit it upon or subject to, intro of evidence to support a finding of the fulfillment of the condition e) weight and credibility. The rule does not limit the right of a party to introduce before the jury evidence relevant to weight or credibility |
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105
Limited ADmissibility |
When evidence which is admissible as to one party or for one purpose but not admissible as to another party for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly
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407
Subsequent REmedial Measures |
When after an injury or harm allegedly caused by an event measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of SRM is NOT admissible to prove negligence, culpable conduct, a defect in product or design, or a need for warning or instruction and strict liability, change in personell
BUT can be offered for ANOTHER PURPOSE if these are controverted ownership control feasibility of precautionary measures or impeachment * note, 3rd party repairs are admissible |
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408
Compromise and offers ot Compromise |
a) Evidenc eof
1) furnishing or offering ot furnish or promising to furnish or 2) accpeting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which is disputed ast o either VALIDITY (of a claim) or AMOUNT is NOT ADMISSIBLE to prove liability or invalidity of claim or amount *** evidence of conduct or statements made in compromise negotiations is not admissible b) BUT ANOTHER PURPOSE: 1) bias/prejudice of a witness 2)negating a contention of undue delay 3) proving an effort to obstruct criminal investigation or prosecution * 408 does not protect discoverable evidence that is admissible |
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409
Payment of Medical and Similar Expenses |
evidence of furnishing or offering or promising to pay medical, hospital, or similar expenses occasioned by an injury is not admissible to prove liability for the injury
409 narrow, says NOTHING ABOUT CONDUCT OR STATEMENTS being excluded (unlike 408). Therefore, 409 ONLY excludes payment or offer to pay medical. Admissions to fault/accident circumstances are admissible |
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411
Liability Insurance |
Evidence that a person was or was not insured against liability is NOT admissible upon the issue whether the person acted negligently or otherwise wrongfully.
NOT EXCLUDED FOR ANOTHER PURPOSE: * proof of agency *ownership *bias or prejudice of a witness |
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404
Propensity Rule |
404(a) character evidence generally. Evidence of a person's character is NOT admissible for purpose of proving action in conformity therewiht (propensity) on a particular occasion.
EXCEPT: 404 (a)(1), (a)(2), (a)(3) 404(b) antoher purpose caveat: other crimes, wrongs, acts. evidenc eo fother crimes, wrongs or acts isNOT admissible to prove character of a person in order to show action in conformity therewith but ANOtHER PURPOSE SUCH AS: MIMICKO 1. motive 2. identity 3. mistake (absence of) 4. intent 5. common scheme, plan 6. knowledge 7. opportunity *character is never an issue in a criminal prosecution unless D chooses to make it one- MUST OPEN THE DOOR character NEVER admissible in civil cases |
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404(a)(1)
Mercy 1 evidence- character of the accused |
D can open the door to character and offer good evidnece of his own good pertinent character trait. If D says good things about himself, P can say something bad aka offer bad pertinent character evidence about D to rebut
Important: 1) character trait introduced must be opposite to crime charged (theft v honesty) 2) D has to initiate |
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404(a)(2)
Mercy II evidence: character of the alleged victim |
D has to open door again and may offer bad evidence of victim's pertinent character trait, usually ahppens in self defense character
*If D says bad things about victim, P can say good things about v AND/OR P can say the same bad things about D. 1) If D does this what can P do? P can offer evidence of same character trait of D or 2) P can offer good things about victim Homicide Cases only: if D says victim was 1st aggressor if D says V was 1st aggressor, P can say V was peaceful. DOES NOT have to be in reputation or opinion. If D does this, P can offere evidence of V's peacable character |
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405
Methods of Proving Character |
a) reputation or opinion. In all ases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or opinion (on cross, inquiry allowed int specific instances of conduct)
Direct: D can call community witnesses to give reputation or opinion testimony (NO SIC) Cross: inquiry into SIC allowed (all 3 essentially) BUT NO EXTRINSIC evidence allowed "take" what witness says b) Specific Instances of Conduct: In cases in which character or trait of character of a person is an essential element of a charage, claim, ro defense proof may be made using special instance of conduct (ex: old chief) 405(b) Civil Cases: Admissible SIC 1) child custody 2) negligent hiring 3) negligent enforcement 4). damages in wrongful death 5) defamation |
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406
Habit, Routine Practice Both criminal and civil |
Evidence of the habit of a perosn or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eye witnesses is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity wiht habit
Habit is ADMISSIBLE. Habit is specific, consistent, semi-atuomatic response, protracted period of time If neither character or habit- look to 401/403- NOT AN EXCEPTION TO CHARACTER |
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601
competency of a witness |
601
every person is competenet to be a witness unless can prove otherwise- competency determined by judge, at time they testify factors: 1. communication 2. recollection 3. perception 4. sincerity |
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602
Personal Knowledge |
A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter
PK- what witness perceives through their own senses- saw, touch, taste, hear, smell witnesses can only testify to matters they have PK over |
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603
Oath or affirmation |
before testifying you must give an oath or affirmation that you will testify truthfully
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610
Religious Beliefs or Opinions |
Evidence of beliefs or opinions of a witness on matters of religion is not admissible for purpose of showing tha tby reason of their nature the witness' credibility is impaired or enhanced
*BUT if relevant to case, can attack bias or interest in outcome |
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611
Mode and Order of Interrogation and Presentation |
a) control of court- judge decisions
b) scope of cross-exam. cross should be limited to subject matter of direct and matters affecting credibility of witness. The court may, in exercise of discretion, permit inquiry into addition matters as if on direct (non-leading). c) leading questions. Leading questions should not be used on the direct exam of a witness except as may be necessary to develop witness testimony. *Permitted on cross- when a party calls a hostile witness, an adverse party, interrogation can be by leading questions |
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607
Who may impeach |
The credibility of a witness may be attacked by any party including the party calling the witness
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608
Impeachment of character evidence and conduct of witness |
a) opinion and reputation evidence of character: the credibility (only that of truthfulness or non truth) of a witness may be attacked orsupported by evidnece in form of opinion or reputation, but subject to these limitations
1) evidence may refer only to truthfulness or untruthfulness 2) evidence of truthful character is admissible only after character of witness for truthfulness has not been attacked by opinion or reputation *bad before good! (bias not an attack on truthfulness) *contradiction might be an attack if non collateral *cannot rehabilitate unless there is an attack. b)SIC of the conduct of a witness, for purpose of attacking or supporting the witness' character for truthfulness (other than conviction of crime as provided in rule 609)- may NOT be proved by EXTRINSIC evidence. They may, however, in discretion of court, if probative of truthfulness or untruthfulness, be inquired inot on cross of witness: 1) concerning witness character for truthfulness or untruthfulness or 2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified |
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609
Impeachment by Evidence of Conviction of Crime |
a) general rule: for purpose of attacking character for truthfulness of a witness
1) evidence of a witness other than accused has been convicted of a crime shall be admitted, subject to 403, if crime was punishable by death or imprisonment over 1 year (felony) and was convicted, AND evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value outweighs its prejudicial effect on accused (a)(2): evidence tha tny witness (including D) has been convicted of a crime shall be admitted if it involved dishonesty or false statemetn, regardless of punishment ex: perjury, embezzlement, fraud 609(b)- evidence of conviction uner this rule is not admissible if a period of more than 10 years has passed since date of conviction or release of witness from confinement, whichever is later date, UNLESS court thinks in interest of justice it should come in. written notice advanced. |
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609(a)(1)
cook factors to determine if probative outweighs danger of unfair prejudice |
1) impeachment value of prior conviction: more prior conviction relates to Ds truthfulness more probative
2) poitn of time between prior convictions and current testimony 3) similarity between past crime and crime charged- more similar, more prejudicial 4) importance of D's testimony to the case 5) centrality of D's credibility- more D puts credibility above mere testimony- higher chance prior conviction will come in. |
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613
prior statements of witnesses |
a) examining witness concerning prior statement. In examining a witness concerning a prior statement made by the witness, whether written or not, statement need not beshown nor its contents disclosed to witness at that time, but on request the same shall be shown or disclosed to opposing counsel
b) extrinsic evidence of prior inconsistent statement of witness. Extrinsic evidence of a prior inconsistent statement by a witness is NOT ADMISSIBLE UNLESS the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the intterest otherwise require (does not apply toe admissions of a party opponent. |
