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106 Cards in this Set
- Front
- Back
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RELEVANCE
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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
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Distinguish RELEVANCE from PROBATIVE VALUE
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-Matter of "degree"
-How much weight does the evidence have? -Courts can even exclude relevant evidence |
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How/why can courts exclude relevant evidence?
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Even if evidence is relevant, court has discretion to exclude if probative value is substantially outweighed by UNFAIR PREJUDICE, CONFUSION, or WASTE OF TIME.
-Look for emotionally disturbing evidence or evidence admissible for one purpose but inadmissible for another purpose |
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Is waste of time a basis for excluding evidence in OR?
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No.
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Is evidence of liability insurance admissible?
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-Evidence of liability insurance is inadmissible to prove culpable conduct like negligence or D's ability to pay a judgment.
-CAN be used to prove scope of employment and things like that. |
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Is evidence of subsequent remedial measures admissible?
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-Evidence of safety measures or repairs after an accident are inadmissible to prove culpable conduct or, in a products liability action, defective product design.
-Admissible to rebut defense of no feasible precaution or anything else that's relevant |
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Is evidence of settlements, offers to settle, and pleas admissible?
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-CIVIL-->evidence of these things are inadmissible to prove liability or fault
-CRIMINAL-->pleas, offers to plea and related statements are inadmissible to prove guilt. Includes nolo contendre |
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Exceptions to inadmissibility of evidence of settlements, offers to settle, and pleas.
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-Where no claim yet asserted
-Where no dispute as to liability or damages(EX:suit on a promissory note) |
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Is evidence of offers to pay medical expenses admissible?
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-Inadmissible when offered to prove liability for the injuries in question
-Related statements are still admissible -DISTINGUISH between settlement offers and payment of medical expenses |
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When is evidence about other people or events relevant?
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When there are certain similarities between that evidence and the people and events at issue
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TYPES OF CASES where evidence about other people or events is relevant.
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-To prove causation
-To show pattern of fraudulent claims -To prove preexisting condition -Previous similar acts to prove intent -To rebut a defense of impossibility -Comparable sales relevant to establish value -Habit evidence -Routine business practice to show conduct in conformity -Industrial custom evidence to prove standard of care in negligence case |
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TYPES OF CASES where evidence about other people or events is IRrelevant.
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-Prior accidents or claims
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HABIT evidence versus CHARACTER evidence
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-Habit evidence is admissible
-Character evidence is generally inadmissible -Habit evidence describes specific conduct and makes no moral judgment -Character evidence says something general about a person and conveys a moral judgment -Habit=Frequently Repeated Conduct |
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CHARACTER EVIDENCE-4 Question Approach
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1-What is the purpose for which the evidence is offered?
-character is an issue in case -circumstantial evidence of a person's conduct on occasion in question -to impeach or support credibility of witness 2-What method or technique is used to prove character? -specific acts of conduct -opinion -reputation 3-Civil or Criminal case? 4-Does the evidence prove a pertinent character trait? |
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Character evidence in CIVIL cases
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-Inadmissible to prove conduct
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Character evidence in CIVIL cases-EXCEPTIONS
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-FRE-->Where claim is based on sexual assault or child molestation, D's prior acts of sexual assault or child molestation are admissible to prove conduct
-ORE-->In a civil assault and battery case where self-defense is pleaded, evidence of D's or P's violent character is admissible |
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Can character evidence be offered in other civil cases-->negligent entrustment and child custody disputes?
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-Yes
-ALL METHODS (specific instances of conduct, opinion, and reputation) |
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Admissibility of evidence of criminal D's character to prove conduct.
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-Prosecution CANNOT be FIRST to offer such evidence
-Door is CLOSED at the start of trial when the prosecution begins its case in chief |
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Admissibility of evidence of criminal D's character to prove conduct-EXCEPTIONS
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-Under FRE only
1-In cases of sexual assault or child molestation, prosecution can be first to offer evidence that D committed other acts of sexual assault or child molestation 2-Where court has admitted evidence of victim's character offered by D, prosecution can be first to offer evidence that D has same character trait |
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What if D puts on a witness in an assault case who says D is gentle and non-violent?
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-D can do this-->OPEN DOOR
-BUT! If D opens door, prosecution can then offer pertinent character evidence to rebut -Prosecution's rebuttal evidence MUST ALWAYS concern a pertinent character trait. |
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Reputation and Opinion Evidence on DIRECT examination
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-By ANY party
-Reputation and Opinion evidence are ADMISSIBLE -NOT SPECIFIC INSTANCES evidence (NEVER!) |
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Reputation and Opinion Evidence on CROSS examination
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-ALL are ADMISSIBLE
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Admissibility of Evidence of Victim's Character
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-Prosecution cannot be first to offer evidence
-Trial begins with door to victim's character CLOSED |
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How can D open the door to admit evidence of victim's character? What can the prosecution then do?
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1-If D offers evidence of victim's character, prosecution may rebut. FRE or ORE
2-If D offers evidence VICTIM ATTACKED FIRST, prosecution may offer evidence of victim's character for PEACEFULNESS. FRE-homicide only. ORE-any criminal case |
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After D offers evidence of victim's violent character, prosecution offers evidence of D's violent character. Admissible?
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-FRE-->Admissible. D opened victim's character door. Prosecution allowed to show D violent
-ORE-->Inadmissible. When D opened victim's character door, the other door LOCKED. |
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When do the rules for character evidence apply
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-Character rules apply ONLY if evidence offered to prove CHARACTER.
-Remember, there are other reasons why something may be offered into evidence (i.e. State of Mind in a self-defense case) |
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Rape Shield Statute - Criminal Cases
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-Reputation and Opinion evidence INADMISSIBLE.
-SPECIFIC INSTANCES of alleged victim's conduct admissible ONLY to prove: 1-3rd party is source of semen or injury 2-Prior acts of consensual intercourse between D and alleged victim |
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Rape Shield Statute - Civil Cases
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-Reputation, Opinion, and Specific Instances evidence is ADMISSIBLE if probative value substantially outweighs unfair prejudice, and
-in the case of reputation evidence, P put her reputation in issue |
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Specific Instances of D's Bad Conduct
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-May be admitted to prove ANYTHING OTHER THAN CHARACTER that is RELEVANT
-M.I.M.I.C. -Motive -Intent -(absence of) Mistake -Identity -Common plan or scheme |
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What else is needed to admit evidence about D's Identity?
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-Similarity and Uniqueness
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TESTIMONIAL EVIDENCE - COMPETENCY. Who can testify? REQUIREMENTS.
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1-Personal Knowledge
2-Present Recollection 3-Communication 4-Sincerity |
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TESTIMONIAL EVIDENCE - COMPETENCY. Who can testify? REQUIREMENTS - Personal Knowledge.
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-Distinguish between Personal Knowledge and Hearsay Exceptions. Ask: Does the fact perceived equal the fact testified to? If not, P.K. is objection. Ask: does the witness quote someone or refer to someone's out-of-court statement? If so, hearsay
-Perceptions may be limited! Still admissible |
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TESTIMONIAL EVIDENCE - COMPETENCY. Who can testify? REQUIREMENTS-Present Recollection
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-Witness must testify from present recollection
-NOT from some record regarding matters the witness once knew but has now forgotten |
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TESTIMONIAL EVIDENCE - COMPETENCY. Who can testify? REQUIREMENTS-Communication
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Witness must be able to relate perception either directly or through interpreter
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TESTIMONIAL EVIDENCE - COMPETENCY. Who can testify? REQUIREMENTS-Sincerity
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Witness must take oath or make affirmation to tell truth
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Witness admits to being an atheist and states he does not believe he will be punished by God if he lies. Is the witness competent?
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-Yes
-Evidence of religious belief inadmissible to impeach or support credibility. |
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Witness was convicted of perjury and psychiatrist says witness is insane, a pathological liar, and a member of Congress. Witness competent?
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-Yes
-Everybody's competent, for the most part |
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What are the requirements for objections to form of TESTIMONY and QUESTIONS
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-MUST be TIMELY and SPECIFIC or the objection is waived.
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What are the types of objections to form of TESTIMONY and QUESTIONS
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1-Calls for narrative
2-Unresponsive 3-Leading Questions (cannot lead on direct, ok on cross-must stay within scope of direct) 4-Assumes facts not in evidence (misleading) 5-Argumentative 6-Compound (asking more than one question at the same time) |
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Witness use of documents during testimony
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-Watch for Hearsay issues
-Can use for REFRESHING RECOLLECTION. If witness says "I remember" it's permissible -ANYTHING can be used to refresh recollection -Opponent may inspect |
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Recorded Recollection Exception to the Hearsay Rule (if you establish these, you can READ the document to the jury)
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1-Witness had PERSONAL KNOWLEDGE of the facts
2-Document was MADE by the witness OR UNDER THE WITNESS' DIRECTION or was ADOPTED by the witness. (Adoption=another person made the record and witness did or said something to indicate they agreed with contents) 3-Document was written or adopted at a time when the facts were FRESH IN THE WITNESS' MEMORY 4-Document was ACCURATE when made 5-The witness now has INSUFFICIENT RECOLLECTION to testify as to the matters contained in the document |
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Opinion Testimony
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-Normally Inadmissible
-May be admitted under certain circumstances |
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When can a lay opinion be admitted?
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-If rationally based on the witness' perceptions and helpful to the trier of fact (gives jury more information than perceptions only)
-Legal conclusions are NOT HELPFUL |
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When can an expert opinion be admitted?
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-5 REQUIREMENTS-opinion must be
1-Helpful to jury 2-Witness must be qualified 3-Witness must believe in opinion to reasonable degree of certainty 4-Opinion must be supported by a proper factual basis 5-Opinion must be based on reliable principles that were reliably applied -"Helpful"=Expert uses specialized knowledge to reach conclusion that the average juror could not figure out for themself. |
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Opinion must be BASED on:
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1-Admitted Evidence
2-Personal Knowledge 3-Inadmissible Evidence Relied Upon -Reliable Principles That Were Reasonably Applied (Daubert/Kumho) |
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What are the criteria under Daubert/Kumho for judging the reliability of scientific evidence?
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-Opinion must be based on reliable principles that were reliably applied
1-Peer Reviewed and Published in Scientific Journals 2-Tested and Subject to Retesting 3-Low Error Rate 4-A Reasonable Level of Acceptance |
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Learned Treatise Hearsay Exception
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-FRE only
-Learned Treatise is admissible to prove anything stated therein if it is an accepted authority in the field. |
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Evidence of Witness Credibility-Supporting Evidence
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-Remember to watch for Hearsay issues
1-Evidence to support credibility 1a-Prior consistent statement |
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Evidence of Witness Credibility-Impeachment
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1-Impeachment by contradiction
2-Impeachment by prior inconsistent statements 3-Impeachment with evidence of Bias, Interest, or Motive 4-Impeachment with conviction for crime involving false statement 5-Impeachment with conviction for a crime not involving a false statement 6-Impeachment with non-conviction misconduct evidence bearing on truthfulness 7-Impeachment with reputation and opinion regarding truthfulness |
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Evidence of Witness Credibility-Evidence to Support Credibility
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-Inadmissible UNLESS credibility is attacked first
-Prior CONSISTENT statement is ADMISSIBLE (NOT Hearsay) for all purposes IF made BEFORE either a bribe or the inconsistent statement |
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Evidence of Witness Credibility-Impeachment
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-Three-step approach
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? |
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Extrinsic Evidence
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Any evidence OTHER THAN testimony given at this proceeding by the witness being impeached
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Examples of Extrinsic Evidence
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-Testimony of other witnesses
-Writings -Prior statements of the witness who is now testifying |
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Evidence of Witness Credibility-Impeachment. Impeachment by Contradiction
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Extrinsic evidence inadmissible to impeach on COLLATERAL MATTER
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Collateral Matter
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A fact not material to the issues in the case that says NOTHING about witness' credibility other than to contradict the witness
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Evidence of Witness Credibility-Impeachment. Impeachment by Prior Inconsistent Statement (PIS)
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-PIS of witness who testifies at trial is NOT HEARSAY if given under oath at trial or deposition
-Otherwise, hearsay and inadmissible if offered to prove truth -EXTRINSIC evidence of PIS admissible to impeach on collateral matter |
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Evidence of Witness Credibility-Impeachment. Impeachment by Prior Inconsistent Statement (PIS)-FOUNDATION REQUIREMENT
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Extrinsic evidence admisisble ONLY IF witness given opportunity to EXPLAIN or DENY
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Evidence of Witness Credibility-Impeachment. Impeachment with evidence of Bias, Interest, or Motive.
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-FOUNDATION requirement: extrinsic evidence admissible if witness given opportunity to explain or deny
-ORE: extrinsic evidence of bias inadmissible if witness admits bias. |
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Evidence of Witness Credibility-Impeachment. Impeachment with Conviction for Crime Involving False Statement
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-All convictions (felonies and misdemeanors) for crimes of FALSE STATEMENT (perjury, forgery, fraud) are ADMISSIBLE
-No balancing of unfair prejudice against probative value except for old convictions |
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Evidence of Witness Credibility-Impeachment. Impeachment with Conviction for Crime NOT Involving False Statement
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-Felonies that do not involve false statement (murder, robbery, rape) may be admissible to impeach
-Court MAY exclude for unfair prejudice under FRE, but not ORE -Misdemeanors that do not involve false statement are inadmissible to impeach |
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Evidence of Witness Credibility-Impeachment. Impeachment with NON-conviction misconduct evidence bearing on truthfulness
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-Acts of misconduct that did not result in conviction are admissible under FRE to impeach if the misconduct involved lying
-Extrinsic evidence to prove the acts is INADMISSIBLE -Impeacher may only cross-examine witness about their misconduct -Not available in OR |
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Evidence of Witness Credibility-Impeachment. Impeachment with reputation and opinion regarding truthfulness
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-Extrinsic evidence ADMISSIBLE
-EX: personal injury action. P testifies they suffer back pain because of accident. D witness testifies lives in O's community and has known P for years. Witness testifies that he believes P is a liar and is known in neighborhood as "shifty"-->ADMISSIBLE! |
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Hearsay
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An out of court statement offered to prove the truth of the matter asserted in that statement
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"Statement"?
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Verbal or written expression of a person (NOT a dog) or conduct by a person intended to communicate ("assertive conduct")
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"Out of court"?
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Out of the court where the evidence is NOW being offered
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"Offered to prove the truth of the matter asserted"?
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-Three-step approach:
1-find the statement 2-Ask what it is offered to prove(Does the question tell you?If not, who offered the evidence and what would it be relevant to prove in that party's case?-->THAT is what the statement os offered to prove) 3-Given what it's offered to prove, will jury be misled if the out of court speaker was lying or mistaken? If yes=Hearsay |
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Things that are NOT HEARSAY, because they are offered to show...
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1-Independent Legal Significance
2-Effect on Listener 3-Speaker's Knowledge of Facts Stated 4-Circumstantial Evidence of State of Mind |
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Exceptions and Exemptions to the HEARSAY rule - explanation
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-EXEMPTION-->Admissible because it is NOT hearsay ("admissible because not hearsay")
-EXCEPTION-->Evidence is hearsay, but it is still admissible ("hearsay but admissible") |
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What do you do with multiple hearsay or hearsay within hearsay issues?
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Each level of hearsay must be within the exception or exemption
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HEARSAY EXEMPTIONS
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1-Admission of Party Opponent
2-Prior Inconsistent Statement(declarant testifying at trial) 3-Prior Consistent Statement Offered to Rebut the Charge of Recent Fabrication of Improper Influence or Motive (declarant testifying at trial) 4-Statement of Identification of a Person Made After Perceiving the person (declarant testifying at trial) |
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HEARSAY EXCEPTIONS
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1-Former Testimony
2-Declaration Against Interest 3-Dying Declaration 4-Excited Utterance 5-Present Sense Impression 6-Declaration of Then Existing Physical or Mental Condition 7-Statement of Past/Present Mental or Physical Condition Made For Medical Diagnosis or Treatment 8-Business Records 9-Public Records 10-Judgment of Previous Conviction 11-Catchall |
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HEARSAY-When is the declarant unavailable?
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Declarant unavailable if:
1-Court exempts testifying due to privilege 2-Declarant is dead or sick 3-Proponent of statement cannot procure declarant's attendance by process or reasonable means 4-Declarant refuses to testify despite court order 5-Declarant's memory fails |
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Hearsay Exception - Former Testimony (Declarant Unavailable)
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Testimony given by a person in earlier proceeding or depo is admissible IF:
1-Party AGAINST whom testimony now offered had, during the earlier proceeding, AN OPPORTUNITY TO EXAMINE that person and the MOTIVE to conduct that exam was similar to the motive the party has now, or 2-Civil case, party against whom the testimony now offered was NOT present in earlier proceeding, but has a close privity-type relationship with a "predecessor in interest" |
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"Predecessor in Interest"
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Someone who was a party to the earlier proceeding and who had an opportunity and a similar motive to examine the witness in that earlier proveeding
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Hearsay Exception-Declaration Against Interest (Declarant Unavailable)
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-Hearsay statement admissible if, at time it was made, it was against the financial interest of declarant or would have subjected declarant to criminal liability
-If the statement is offered to exculpate the accused (by showing someone else confessed), there must be CORROBORATING EVIDENCE to admit the statement |
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How does a Declaration Against Interest differ from a Party Admission?
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-Party Admission-->Statement of party, or statement of another person attributed to a party. Does not need to be against interest when made.
-Declaration Against Interest-->Can be made by anyone. MUST BE AGAINST INTEREST WHEN MADE |
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Hearsay Exception-Dying Declaration (Declarant Unavailable)
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-Hearsay statement by one believing he is about to die and describing cause or circumstances leading to impending death
-Admissible in civil and homicide prosecutions(FRE) or all cases(ORE) -Declarant need not be dead, but must be unavailable |
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Hearsay Exception-Excited Utterance
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-Hearsay statement relating to startling event or condition
-Admissible when made while declarant was still under stress of excitement caused by event or condition -No need to show declarant unavailable |
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Hearsay Exception-Present Sense Impression
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-DOES NOT EXIST UNDER ORE
-Hearsay statement admissible if describing or explaining an event or condition made while declarant was perceiving the event or condition or immediately thereafter |
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Hearsay Exception-Exception for Declaration of Then Existing Physical or Mental Condition
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-Hearsay statement of declarant's then existing physical or mental condition or state of mind is ADMISSIBLE TO SHOW THE CONDITION OR STATE OF MIND.
-BUT a statement describing a memory or belief is NOT ADMISSIBLE TO PROVE THE FACT REMEMBERED OR BELIEVED -Thus, "I remember/believe that the D shot the victim" is NOT admissible to prove D shot the victim |
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Hearsay Exception-Exception for Statement of Past or Present Physical or Mental Condition Made for Medical Diagnosis or Treatment
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-Hearsay statement by one person concerning the past or present physical or mental condition, or its cause, of that person or any other person, is admissible if made for and pertinent to medical diagnosis or treatment
-EX: "My back is killing me" |
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Hearsay Exception-Business Records
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Hearsay admissible if:
1-Record of events, conditions, diagnoses, or opinions 2-kept in course of regularly conducted business activity 3-made at or near the time of matters described 4-by person with knowledge of the facts in that record 5-it was regular practice of business to make such record -Court MAY exclude if untrustworthy -Can cover MULTIPLE layers of hearsay |
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Hearsay Exception-Public Records-(hearsay record of public office admissible if within ONE of the following categories)
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1-Record describes activities of the office
2-Record describes matters observed pursuant to duty imposed by law 3-Record contains factual findings resulting from investigation made pursuant to authority granted by law, unless untrustworthy **prosecution can't use 2 or 3 in criminal case |
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Hearsay Exception-Judgment of Previous Conviction
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-Hearsay statement describing felony conviction (copy of the judgment) is admissible in both civil and criminal cases to prove any fact essential to the judgment
-BUT when offered by prosecution for purposes other than impeachment, judgments against persons other than the accused are INADMISSIBLE |
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ORE Only Exceptions
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1-Statement admissible if made at or near the time of a transaction by a person in a position to know the facts and acting in professional capacity and in ordinary course of business (MUST be unavailable)
2-Complaint of sexual misconduct made by witness after commission of alleged misconduct (to show complaint made) 3-Sexual misconduct made by victim who is a child or developmentally disabled 4-describing an event of domestic violence, made by victim within 24-hours |
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Confrontation Clause
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Excludes an out-of-court statement if declarant:
1-Does not testify at the trial 2-Is now unavailable 3-Statement is testimonial 4-D had no chance to cross-examine declarant about the statement when it was made |
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"Testimonial"
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-Applies to statements made in court and statements made to further a police investigation aimed at producing evidence for a prosecution
-Statements to police dealing with an ongoing emergency are non-testimonial and their admission does not violate Confrontation Clause |
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Authentication-Signatures. How are they authenticated?
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1-Admission
2-Eyewitness Testimony 3-Expert Opinion 4-Lay Opinion 5-Circumstantial Evidence |
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Authentication-Ancient Documents Rule
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Authenticity is established if:
1-Document is 20 years old or more 2-Does not on its face present any irregularities (erasures) 3-Was found in a place of natural custody -EX:Will found in the testator's safe deposit box |
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Authentication-Self Authenticating Writings (No Authentication required)
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1-Deeds and other certified copies of public documents
2-Acknowledged documents (notarized) 3-Official publications (gov't pamphlets) 4-Newspapers, Periodicals, Biz records, trade inscriptions 5-ORE-->Data recorded by Oregon State Police |
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Authentication-Self Authenticating Writings (No Authentication required)-Trade Inscription
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Tag or label that purports to have been attached in course of business and indicates ownership, control, or origin
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Authentication-Photos
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-Watch for Personal Knowledge problem
-Does the fact testified to equal the fact perceived? |
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Authentication of non-unique items
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-Bag of white powder
-Generic handgun -Establish CHAIN OF CUSTODY to demonstrate that this is the specific item the proponent claims it to be. |
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Best Evidence Rule
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-aka Original Document Rule
-Applies only where evidence offered to prove the CONTENTS of a writing -Writing=any tangible collection of data |
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Assuming the Best Evidence Rule applies, what type of evidence is admissible to prove the contents of a "writing?"
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1-Originals
2-Duplicates (not handwritten duplicates and not where there is a genuine question as to authenticity) |
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PRIVILEGES
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1-Attorney-Client
2-Psychotherapist-Patient & Social Worker-Client 3-Doctor-Patient 4-Spousal |
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Attorney-Client Privilege
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-Intended by client to be confidential (objective standard)
-Purpose must be to facilitate professional legal services |
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When is a communication from a corporation employee to the corporation's attorney privileged?
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-FRE-->Applies if the corporation authorized the employee/agent to communicate to the lawyer
-ORE-->Applies even to those not authorized so long as information provided to lawyer was acquired DURING COURSE OF or result of relationship with corporation |
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Exceptions to Attorney-Client Privilege
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-Professional services sought to further what client knew or should have known to be a CRIME OR FRAUD
-Communication relates to alleged BREACH OF DUTY between lawyer and client -2 or more parties consult an attorney on a MATTER OF COMMON INTEREST, and the communication is offered by one of these parties against another |
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Psychotherapist-Patient & Social Worker-Client Privilege
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-Intent by patient/client to be confidential and made to facilitate rendition of professional psychological services
-Privileged in all proceedings unless waived -ORE-->Communications to NURSES also privileged |
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Doctor-Patient Privilege
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-No privilege under FRE
-Most states, including OR, have adopted -Intent to be confidential -Purpose of obtaining diagnosis or treatment -Information pertinent to diagnosis or treatment -OR-->privilege extends to family members participating in treatment. |
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Is there a Dentist-Patient Privilege?
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In Oregon.
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Exceptions to Doctor-Patient Privilege
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Privilege DOES NOT APPLY where:
1-Patient puts his physical condition in issue, as in a personal injury suit 2-Where Dr's services sought to aid in crime or fraud or to escape capture after a crime or tort 3-In case alleging breach of this duty, such as in malpractice action |
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Spousal Privilege
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-Permits witness to refuse to testify against spouse as to ANYTHING (criminal cases)
-Confidential communication privilege protects spousal communications ONLY DURING MARRIAGE (criminal and civil) |
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DETERMINING ADMISSIBILITY OF EVIDENCE
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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? -If YES to all-->ADMISSIBLE |
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Admissible Opinions of Lay Witnesses
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1-General appearance or Condition of Person
2-state of Emotion 3-Matters Involving Sense Recognition 4-Voice or Handwriting Identification (foundation required) 5-Speed of Moving Object 6-Value of Own Services 7-Rational or Irrational Nature of Another's Conduct 8-Intoxication |
