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147 Cards in this Set

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What is the Definition of Relevant Evidence?
Evidence is relevant if it has the tendency to make the existence of any fact of consequence to the determination of the action more probable or less probable than it would be without the evidence
What is the Discretionary Exclusion of Relevant Evidence?
Under FRE 403, Although evidence is relevant, it may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, undue delay, waste of time, or needless presentation of cumulative evidence
In what two instances may Character Evidence be offered as substantive evidence?
(i) to prove character when it is the ultimate issue in the case.
(ii) serve as circumstantial evidence of how a person probably acted.
What are the three ways of Proving Character?
a. Evidence of specific acts
b. Opinion evidence; and
c. testimony as to a person's general reputation in the community.
How does a defendant prove character?
A witness for the D may testify as to the D's good reputation for the trait in question and may give his personal opinion concerning that trait of the D.
What is Real Evidence?
Real or demonstrative evidence is actual physical evidence (as opposed to testimonial, documentary) addressed directly to the trier of fact (a gun).
~ Real evidence may be direct, circumstantial, original, or prepared (demonstrative).
In what two ways may Real Evidence be authenticated?
The object must be identified as what the proponent claims it to be, either by:
a. Testimony of witness that she recognizes the object as what the proponent claims it is (e.g., witness testifies that a gun is the one found at the crime scene); or
b. Evidence that the object has been held in a substantially unbroken chain of possession (e.g., blood taken for blood-alcohol test).
How is Documentary Evidence Authenticated?
Awriting is authenticated by proof that shows that the writing is what the proponent claims it is.
~ proof must be sufficient to support a jury finding of genuineness
How are Ancient Documents authenticated?
Ancient documents are authenticated on a showing that:
1) the document is at least 20 years old
2) it is in such condition as to be free from suspicion as to authenticity; and
3) it was found in a place where such a writing would likely be kept.
What is the Reply Letter Doctrine?
The Reply Doctrine states that a writing may be authenticated by evidence that it was written in response to a communication sent to the claimed author.
How are Photographs authenticated?
Photographs are admissible only if identified by a witness as a portrayal of certain facts relevant to the issue and verified by the witness as a correct representation of those facts.
How are Photographs taken with an Unattended Camera authenticated?
If a photograph is taken when no person who could authenticate the scene is present, the photograph may be admitted upon a showing that the camera was properly operating at the relevant time and that the photograph was developed from film obtained from that camera.
How may a Voice be identified as who a proponent says he is?
A voice may be identified by the opinion of anyone who has heard the voice at any time, including after litigation has begun for the sole purpose of testifying.
What is the Best Evidence Rule?
The Best Evidence Rule says that to prove the terms of a writing, the original writing must be produced if the terms of the writing are material.
~ Secondary evidence of the writing (e.g. oral testimony) is admissible only if the original is unavailable.
The Best Evidence Rule Applies in what two situations?
(i) the writing is a legally operative or dispositive instrument, or
(ii) the knowledge of a witness concerning a fact results from having read it in the document.
What is the Parol Evidence Rule?
The Parol Evidence rule says that prior or contemporaneous negotiations or agreements are inadmissible to vary the terms of the writing.
~ Prior or contemporaneous negotiations or agreements are merged into the written agreement, and they are inadmissible to vary the terms of the writing.
In what three main areas does the Parol Evidence Rule not apply?
a. if the contract is Incomplete or Ambiguous
b. Reformation of Contract
(e.g., mistake) entitling him to reformation.
c. in a Challenge to the Validity of a Contract - this is where Parol evidence is allowed to show that the contract is void or voidable, or was made subject to a valid condition precedent that has not been satisfied.
What are the two Competency Requirements under the Federal Rules ?
(i) personal knowledge of the matter about which he is to testify; (FRE 602)
(ii) witness must declare that he will testify truthfully by oath or affirmation. (FRE 603)
What is the Past Recollection Recorded rule?
The past recollection recorded rule states that Where a witness states that she has insufficient recollection of an event to enable her to testify fully and accurately, even after she has consulted a writing given to her on the stand, the writing itself may be read into evidence if a proper foundation is laid.
What is the proper foundation for Past Recollection Recorded exception to the hearsay rule?
the proper foundation for Past Recollection Recorded exception must contain proof that:
1) the witness had personal knowledge of the facts in the writing;
2) the writing was made by the witness or under her direction, or 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; and
5) The witness now has insufficient recollection to testify fully and accurately.
What is the general rule on Opininon Testimony?
The general policy is to prohibit admissibility of opinion evidence except in cases where the courts are sure that it will be necessary or at least helpful.
When is Opinion testimony by Lay Witnesses available?
Opinion testimony by Lay Witnesses is admissible when three criteria are met:
(i) the opinions or inferences are rationally based on the witness's perception
(ii) the testimony is helpful to a clear understanding of his testimony or helpful to a determination of a fact in issue; and
(iii) the testimony is not based on scientific facts, technical or other specialized knowledge
Under FRE 702, when may an expert state an opinion or conclusion?
An expert may state an opinion or conclusion, provided:
(i) The subject matter is one where specialized knowledge would assist the trier of fact,
(ii) a witness is qualified as an expert;
(iii) The expert possesses reasonable probability regarding his opinion; and
(iv) The opinion is supported by a proper factual basis
4 requirements
What are the 3 sources of information upon which an expert's opinion may be based?
1) personal observation
2) facts made known to the expert at trial, or
3) facts not known personally but supplied to him outside the courtroom and of a type reasonably relied upon by experts in the particular field.
What two areas are Cross-examination generally limited to?
(i) the scope of direct examination, including all reasonable inferences that may be drawn from it, and
(ii) testing the credibility of the witness.
What is the definition of Impeachment?
Impeachment means the casting of an adverse reflection on the veracity of a witness.
What Impeachment Methods may be used to show prior Inconsistent Statements?
A party may show, by cross-examination or extrinsic evidence, that the witness has, on another occasion, made statements inconsistent with his present testimony.
~ To prove the statement by extrinsic evidence, a proper foundation must be laid and the statement must be relevant to some issue in the case
What is the necessary foundation for Prior Inconsistent Statements?
Extrinsic evidence can be introduced to prove a prior inconsistent statement only if the witness is, at some point, given an opportunity to explain or deny the statement.
~ The exception to the rule is that inconsistent statements by hearsay declarants may be used to impeach despite the lack of a foundation.
What is the exception to the rule on the foundation of Prior Inconsistent Statements?
Inconsistent statements by hearsay declarants may be used to impeach despite the lack of a foundation.
What is the Evidentiary Effect of Prior Inconsistent Statements?
Usually, prior inconsistent statements are hearsay, admissible only for impeachment purposes.
~ If, however, the statement was made under oath at a prior proceeding, it is admissible nonhearsay and may be admitted as substantive evidence of the facts stated.
What types of impeachment method(s) are allowed to show Bias, Interest, or Hostility?
Cross or Extrinsic evidence
~ Evidence that a witness is biased or has an interest in the outcome of a suit tends to show that the witness has a motive to lie.
What type of foundation is necessary for extrinsic evidence proferred to show Bias, Interest, or Hostility?
Before a witness can be impeached by extrinsic evidence of bias or interest, he must first be asked about the facts that show bias or interest on cross-examination.
~ If these facts are admitted on cross-examination, admissibility of extrinsic evidence is within the court's discretion.
What impeachment means may be used to show Conviction of a Crime?
Cross-examination or Record of Judgment may be used to show conviction of a crime.
A witness may be impeached by proof of a conviction (arrest or indictment is not sufficient) for certain crimes.
~ A pending review or appeal does not affect the use of a conviction for impeachment.
Whay types of Crimes may be used to impeach a witness?
a) Any Crime Involving Dishonesty or False Statement (misdemeanor also)
~ The court has no discretion to bar impeachment by these crimes.
b) Felony not involving dishonesty
~ the court does have discretion here to exclude
When attempting to impeach a criminal defendant, when can the court exclude a felony conviction not based on dishonesty?
When the prosecution has not shown that the conviction's probative value outweighs its prejudicial effect
When attempting to impeach a witness who's not the criminal defendant, when can the court exclude a conviction not involving dishonesty?
When the court determines that the conviction's probative value is substantially outweighed by its prejudicial effect.
~ i.e., the court makes the determination whereas for the criminal defendant the prosecution must prove the probative value substantially outweighs the prejudicial effect
When is a remote conviction inadmissible?
Generally, if more than 10 years have elapsed since the date of conviction or the date of release from confinement (whichever is later), the conviction is inadmissible unless the court determines that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.
What type of foundation is Required for Extrinsic Evidence of a conviction of a crime?
A prior conviction may be shown either by cross-examination or by introducing a record of the judgment. No foundation is necessary.
What is the Effect of a Pardon on the introduction of a conviction for impeachment purposes?
A conviction may not be used to impeach a witness if the witness has been pardoned and:
(i) the pardon is based on innocence, or
(ii) the person pardoned has not been convicted of a subsequent felony.
What is the rule for impeaching a witness on Specific Instances of Misconduct?
Under the FRE, subject to discretionary control of the trial judge, a witness may be interrogated upon cross-examination with respect to an act of misconduct only if the act is probative of truthfulness (i.e., is an act of deceit or lying).
~ However, the cross-examiner must inquire in good faith.
~ Further, extrinsic evidence of "bad acts" to prove misconduct is not permitted - A specific act of misconduct relevant to impair credibility can be elicited only on cross-examination of the witness.
How is a witness impeached regarding his Reputation for Truthfulness?
A witness is impeached in this manner by the testimony of other witnesses;
~ This may include evidence of reputation in business circles as well as in the community in which the witness resides.
~ Under the FRE, an impeaching witness may state his own opinion as to the character of a witness for truth.
How is a witness impeached regarding Sensory Deficiencies?
A witness may be impeached by showing, either on cross-examination or by extrinsic evidence, that his faculties of perception and recollection were so impaired as to make it doubtful that he could have perceived those facts.
~ A witness may also be impeached by showing that he had no knowledge of the facts to which he testified.
Under the Federal Rules, how is the credibility of someone who does not testify but whose out-of-court statement is introduced attacked?
Under the Federal Rules, the credibility of someone who does not testify but whose out-of-court statement is introduced at trial may be attacked (and if attacked, may be supported) by evidence that would be admissible if the declarant had testified as a witness.
~ The declarant need not be given the opportunity to explain or deny a prior inconsistent statement.
When is it allowable to rehabilitate a witness with a Prior Consistent Statement?
A party may not ordinarily rehabilitate a witness by showing a prior consistent statement. This is true even when the witness has been impeached by showing a prior inconsistent statement.
~ However, if the testimony of the witness has been attacked by an express or implied charge that the witness is lying or exaggerating because of some motive, a previous consistent statement is admissible to rebut this evidence.
~ This previous statement also is substantive evidence of the truth of its contents.
What are the important elements of the Attorney-Client Privilege?
1. An attorney-Client relationship - The client must be seeking the professional services of the attorney at the time of the communication.
2. confidential communications - the communications must have been made in confidence
Physician-Patient Privilege
(3 elements)
(i) a professional relationship exists;
(ii) the information is acquired while attending the patient in the course of treatment; and
(iii) the information is necessary for treatment. (Nonmedical information is not privileged).
What is the Psychotherapist/Social Worker-Client Privilege?
~ In most particulars, this privilege operates in the same manner as the attorney-client privilege.
The U.S. Supreme Court recognizes a federal privilege for communications between a psychotherapist (psychiatrist or psychologist) or licensed social worker and his client.
What are the two Husband-Wife Privilege?
a. Spousal Immunity (criminal cases)
b. Privilege for Confidential Marital Communications
What is Spousal Immunity (criminal cases)?
Spousal immunity may be invoked where a married person whose spouse is a defendant in a criminal case may not be called as a witness by the prosecution.
Moreover, a married person may not be compelled to testify against his spouse in any criminal proceeding, regardless of whether the spouse is the defendant.
~ There must be a valid marriage for the privilege to apply, and the privilege lasts only during the marriage.
How long does spousal immunity last?
the privilege lasts only during the marriage.
Who holds the privilege to invoke spousal immunity?
In federal court, the privilege belongs to the witness-spouse (Thus, the witness-spouse cannot be compelled to testify, but may choose to do so)
~ In most state courts, however, the privilege belongs to the party-spouse. [check CA]
What is the Privilege for Confidential Marital Communications?
In any civil or criminal case, confidential communications between a husband and wife during a valid marriage are privileged.
~ For this privilege to apply, the marital relationship must exist when the communication is made. The communications must also have been made in reliance on the marital relationship (i.e., confidential).
~ Divorce will not terminate the privilege, but communications after divorce are not privileged.
How long does the Privilege for Confidential Marital Communications last?
Forever - Divorce will not terminate the privilege, but communications after divorce are not privileged.
What is Hearsay?
Federal Rule 801 defines hearsay as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted."
~ If a statement is hearsay, and no exception to the rule applies, the evidence must be excluded upon appropriate objection.
What qualifies as a Statement (2) under the Hearsay rule?
For purposes of the hearsay rule, a "statement" is
(i) an oral or written assertion, or
(ii) nonverbal conduct intended as an assertion
What two categories are specifically codified as NonHearsay under the Federal Rules (2)?
1. Prior Statements by Witnesses currently testifying; and
2. Admissions by Party Opponent
What are the three flavors of Prior Statements by a Witness currently testifying that are nonhearsay?
1. Inconsistent
2. Consistent
3. Prior Statement of Identification
Under what circumstances will a Prior Inconsistent Statement be recognized as Nonhearsay?
If the prior statement of a witness, given under oath at a previous proceeding, is inconsistent with the declarant's in-court testimony ("The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement"), the statement will be admissible.
~ usually, prior inconsistent statements would be hearsay, admissible only for impeachment purposes
For what purposes are prior inconsistent statements given under oath admissible?
Substantively and for impeachment purposes
Is grand jury testimony admissible as a prior inconsitent statement?
Yes
When will a Prior Consistent Statement be recognized as admissible Nonhearsay?
If 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 bias or improper motive (and the statement was made before any motive to lie or exaggerate arose)
When will a Prior Statement of Identification be recognized as Nonhearsay?
The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and

The prior statement is one of identification of a person made after perceiving him.
What is the definition of an Admission?
An admission is a statement made or act that amounts to a prior acknowledgment by one of the parties of one of the relevant facts.
Does the admission have to be against the declarant's interest when made?
No, and it may even have been an opinion.
~ Further, Personal knowledge is not required; and the admission may have been predicated on hearsay.
What types of admissions are conclusive?
Formal Judicial admissions (e.g., pleadings, stipulations, etc.)
~ Informal judicial admissions made during testimony and extrajudicial (evidentiary) admissions are not conclusive and can be explained.
What is an Adoptive Admissions?
An adoptive admission results if a reasonable person would have responded, and a party remains silent in the face of accusatory statements; here, his silence may be considered an implied admission.
What are the elements of an Adoptive Admissions (3 of them)?
i- the party heard and understood the statement;
ii- the party was physically and mentally capable of denying the statement;
iii- a reasonable person would have denied the accusation.
Are admissions of one party Admissible against co-parties?
No, admissions of a party are not receivable against her co-parties merely because they happen to be joined as parties.
What is the Principal/Agent Rule (for vicarious admissions)?
Under the FRE, an agent's statements concerning any matter within the scope of her agency, made while the employment relationship exists, are not hearsay and are admissible against the principal.
What is the rule for admissions by partners?
After a partnership is shown to exist, an admission of one partner relating to matters within the scope of the partnership business is binding upon her co-partners.
What is the rule for Co-Conspirators admissions?
Admissions of one conspirator, made to a third party in furtherance of a conspiracy to commit a crime or civil wrong at a time when the declarant was participating in the conspiracy, are admissible against co-conspirators.
What are the five exceptions to the hearsay rule that are only available if the Declarant is Unavailable?
FSaiD
1. Former Testimony
2. Statements Against Interest
3. Dying Declarations
4. Statements of Personal or Family Interest
5. Forfeiture by wrongdoing
What is the Former Testimony exception to the hearsay rule?
(4 elements)
The statement of a now unavailable declarant is admissible if:
a. the party against whom the testimony is offered was a party or in privity with a party in the former action.
b. the former action involved substantially similar subject matter
c. the previous testimony was under oath; and
d. the party had an opportunity at the prior proceeding to develop the declarant's testimony (i.e., by direct, cross, or re-direct examination)
Do Grand Jury proceedings qualify under the Former Testimony hearsay exception?
No - there was no opportunity to cross-examine a declarant on the testimony
What is the Statement Against Interest exception to the Hearsay Rule?
The statement of a person (now unavailable as a witness) against the person's pecuniary, proprietary, or penal interest when made, as well as collateral facts contained in the statement, is an exception to the hearsay rule.
For the Statement Against Interest exception to apply, must the declarant have had personal knowledge of the statement when he made it?
Yes
For the Statement Against Interest exception to apply, must the statement have been against the declarant's interest when made?
Yes
What is the Dying Declarations exception to the hearsay rule? (2 elements)
A Statement by a now unavailable declarant is admissible if:
a. The declarant believed his death was imminent; and
b. the statement concerned what he believed were the causes or circumstances surrounding his death.
To what causes of action does the Dying Declarations exception apply?
Homicide prosecutions or civil actions
For the Dying Declarations exception to apply, must the declarant die?
No
What is the Statement of Personal or Family Interest exception to the hearsay rule?
(2 elements)
A now unavailable declarant's statement concerning births, marriages, divorces, relationships, genealogical status (re descent, ancestry), etc., will be admissible provided:
a. the declarant is a member of the family or intimately associated with it; and
b. The Statement(s) are based on personal knowledge
What is the Forfeiture by Wrongdoing exception to the hearsay rule?
The statement of a person (now unavailable as a witness) is admissible when offered against a party who has engaged or acquiesced in wrongdoing that intentionally procured the defendant's unavailability.
1. What is the Present State of Mind exception to the Hearsay Rule?
A statement of declarant's then-existing state of mind, emotion, sensation, or physical condition is admissible.
~ It is usually used to establish a person's intent or as circumstantial evidence the intent was carried out.
2. What is the Excited Utterance exception to the hearsay rule?
An out-of-court statement relating to a startling event, made while under the stress of the excitement from the event (i.e., before the declarant had time to reflect upon it), is admissible.
3. What is the Present Sense Impression exception to the hearsay rule?
Comments made concurrently with the sense impression of an event that is not necessarily exciting may be admissible.
~ There is little time for a calculated misstatment, and the contemporaneous nature of the statement makes it reliable.
4. What is the Declaration of Physical Condition exception to the hearsay rule?
~(2 flavors)
a. Statements regarding Present Bodily Condition - Spontaneious Statements regarding a present bodily condition are Admissible even though not made to a physician.
b. Statements of Past Bodily Condition - these statements are Admissible if said to medical personnel to Assist Diagnosis or Treatment
~ Generally, declarations of past physical condition are inadmissible.
~ Under the exception, however, Even declarations about the cause or source of the condition are admissible if pertinent to diagnosis or treatment.
5. What is the Business Records exception to the hearsay rule?
Main elements (5)
a. there has to be a "Business" (liberally defined)
b. the Entry has to be made in the regular course of business and that it was customary to make the type of entry involved (i.e., the entrant had a duty to make the entry).
c. the person entering the statement has to have had Personal Knowledge of the entry
d. the Entry has to have been made near the time of the event
e. the Authenticity of the record must be established - This can be accomplished by the custodian (i) testifying that the record is a business record or (ii) certifying in writing that the record is a business record.
6. What is the Past Recollection Recorded exception to the hearsay rule?
If witness's memory cannot be revived, a party may introduce a memorandum that the witness made at or near the time of the event. The writing itself is not admissible, it must be read to the jury. The foundation must include evidence that:
1) the witness had personal knowledge of the facts in the writing;
2) The writing was made by the witness or under her direction, or 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; and
5) The witness has insufficient recollection to testify fully and accurately.
7. What is admissible under the Public Records and Reports exception to the hearsay rule?
The following are admissible:
(1) Records setting forth the activities of the office or agency;
(2) recordings of matters observed pursuant to a duty imposed by law (except police observations in criminal cases);
(3) in civil actions and against the government in criminal cases, records of factual findings resulting from an investigation authorized by law.
~ The writing must have been made by and within the scope of the duty of the public employee, and it must have been made at or near the time of the event.
7. Under the Official Records and Other Official Writings exception to the hearsay rule, what are the requirements for the writing to be admitted?
The writing must have been made by and within the scope of the duty of the public employee, and it must have been made at or near the time of the event.
Under the Official Records and Other Official Writings exception to the hearsay rule, for what purpose are prior Felony Convictions admissible?
Under the FRE, judgments of felony convictions are admissible in criminal and civil actions to prove any fact essential to the judgment. In a criminal case, the government may use the judgment for this purpose only against the accused; it may be used only for impeachment purposes against others.
For Judgments of Felony Conviction, Who may the government use the judgment against in a criminal case?
the government may use the judgment to prove any fact essential to the judgment only against the accused; it may be used only for impeachment purposes against others.
May prior criminal acquittals be used?
No - exclusionary rule still applies to prior criminal acquittals.
When may Judgments in former civil cases be used?
They clearly inadmissible in a subsequent criminal proceeding and generally inadmissible in subsequent civil proceedings.
8. What is the Ancient Documents and Documents Affecting Property Interests exception to the hearsay Rule?
Under the FRE, statements in any authenticated document 20 years old or older are admissible, as are statements in any document affecting an interest in property, regardless of age.
9. What is the Learned Treatises exception to the hearsay Rule?
Learned treatises Are admissible as substantive proof under the FRE if:
a. Called to the attention of, or relied upon by an expert witness; and
b. Established as reliable authority by the testimony of that witness, other expert testimony, or judicial notice.
10. When is Reputation evidence admissible as an exception to the hearsay rule?
(four areas)
Reputation evidence is admissible, under several exceptions to the hearsay rule, as evidence of the following:
(i) character, (ii) personal or family history; (iii) land boundaries; and (iv) a community's general history.
11. What is the Family Records exception and in what situations is this evidence commonly admissible?
Statements of fact concerning personal or family history contained in family Bibles, jewelry engravings, genealogies, tombstone engravings, etc. are admissible.
12. What is the Market Reports exception to the hearsay Rule?
Market reports and other published compilations are admissible if generally used and relied upon by the public or by persons in a particular occupation.
What does the Burden of Proof encompass?
The burden of proof encompasses the burden of producing or going forward with the evidence, and the burden of persuasion.
What is the definition of a Presumption?
A presumption is a rule that requires that a particular inference be drawn from an ascertained set of facts.
It is a form of substitute proof in that proof of the presumed fact is rendered unnecessary once evidence has been introduced of the basic fact that gives rise to the presumption.
What is the residual Catch-all Exception to the hearsay rule?
(3 elements)
The Federal Rules provide a catch-all exception, which requires:
1. hearsay statement possess circumstantial guarantees of trustworthiness;
2. statement is strictly necessary; and
3. notice be given to adversary
What is the Effect of a Presumption?
A presumption operates, until rebutted, to shift the burden of production to the party against whom the presumption operates.
What is direct evidence?
Direct evidence involves no inferences; it is testimony or real evidence that speaks directly to a material issue in the case
What is circumstantial evidence?
Circumstantial evidence: is indirect and relies on inference. It is evidence of a subsidiary or collateral fact from which, alone or in conjunction with other facts, the existence of a material issue can be inferred.
What is the concept of Limited Admissibility?
evidence may be admissible for one purpose but not another, or admissible against one party but not another.
~ In these situations, the court must, upon request, restrict the evidence to its proper scope and instruct the jury accordingly. (FRE 105)
What is the General Rule as it relates to evidence?
Generally, the evidence must relate to time, event, or person involved in the present litigation; otherwise, it is not relevant.
What is the exception to the General Rule of evidence relating to causation?
complicated issues of causation may be established by evidence concerning other times, events, or persons (e.g., damage to nearby homes caused by D's blasting is relevant to prove D's blasting damaged P's home).
What is the exception to the General rule of evidence relating to Prior False Claims or Same Bodily Injury?
Evidence that a person has filed similar tort claims or has been involved in prior accidents is generally inadmissible to show the invalidity of the present claim.
But evidence that the party has made previous similar false claims or claims involving the same bodily injury is usually relevant to prove that:
(i) the present claim is likely to be false, or
(ii) the plaintiff's condition is attributable in whole or in part to the prior injury.
When is evidence of Similar Accidents or Injuries Caused by the Same Event or Condition admissible?
Evidence of prior accidents or injuries caused by the same event or condition is admissible to prove:
(i) the existence of a dangerous condition,
(ii) that the D had knowledge of the dangerous condition, and
(iii) that the dangerous condition was the cause of the present injury
Rule re absence of similar accidents?
Absence of Similar Accidents: Many courts are reluctant to admit evidence of the absence of similar accidents to show absence of negligence or lack of a defect.
~ However, evidence of the absence of complaints is admissible to show the defendant's lack of knowledge of the danger.
Are Previous Similar Acts Admissible to Prove Intent?
Yes, Similar conduct previously committed by a party may be introduced to prove the party's present motive or intent when such elements are relevant (e.g., history of school segregation admissible to show motive for current exclusion of minorities).
What is the rule regarding Rebutting a Claim of Impossibility
The requirement that prior occurrences be similar to the litigated act may be relaxed when used to rebut a claim of impossibility (e.g. D's claim that car will not go above 50 mph can be rebutted by showing occasions when car went more than 50 m.p.h.).
What is the rule regarding Sales of Similar Property?
Evidence of sales of similar personal or real property that are not too remote in time is admissible to prove value.
~ Prices quoted in mere offers to purchase are not admissible.
~ However, evidence of unaccepted offers by a party to the action to buy or sell the property may be used against him as an admission.
What are habit and character?
Habit describes a person's regular response to a specific set of circumstances.
~ In contrast, character describes one's disposition in respect to general traits.
~ Under FRE 406, evidence of the habit of a person is relevant to prove that the conduct of the person on a particular occasion was in conformity with the habit.
Is Industrial or Business Routine relevant?
Yes, Evidence that a particular business had an established business routine is relevant as tending to show that a particular event occurred.
May Industry Custom be used as Evidence of a particular Standard of Care?
Yes. Industry custom may be offered to show adherence to or deviance from an industry-wide standard of care. However, industry custom is not conclusive on this point (an entire industry may be acting negligently).
What may evidence of Liability Insurance be used to show? What is not allowed to be used for?
(3 uses)
It may be admissible to show: (i) ownership or control; (ii) to impeach; or (iii) as part of an admission.
Evidence of insurance against liability is not admissible to prove negligence or ability to pay a subsequent judgment;
What is the general rule regarding Subsequent Remedial Measures - Federal Rule 407?
Evidence of repairs or other precautionary measures made following an injury is not admissible to prove negligence, culpable conduct, a defect in a product or its design, or a need for a warning or instruction;
What may Subsequent Remedial Measures be used to show?
However, it may be admissible to:
(i) prove ownership or control;
(ii) to rebut a claim that precautions were not feasible, if controverted; or
(iii) to prove that the opposing party has destroyed evidence.
What are Settlement Offers or Negotiations not admissible to show?
Evidence of compromises or offers to compromise is not admissible to prove liability for, or invalidity of, a claim that is disputed as to validity or amount.
~ not even direct admissions of liability during compromise negotiations are admissible.
~ Likewise, withdrawn guilty pleas and offers to plead guilty are inadmissible.
What is the rule on the admissibility of Withdrawn Guilty Pleas and Offers to Plead Guilty?
They are Inadmissible for nearly all purposes.
What is the rule on Offers to Pay and Payment of Medical Expenses?
Payment of or offers to pay the injured party's medical expenses are inadmissible to prove culpable conduct.
~ However, unlike the situation with compromise negotiations, admissions of fact accompanying offers to pay medical expenses are admissible.
Admissions of fact accompanying an offer to pay medical expenses are admissible.
Yes
Is character evidence admissible in civil cases?
No, Unless character is directly in issue (e.g. defamation, negligent hiring, negligent entrustment), evidence of character offered by either party to prove the conduct of a person in the litigated event is generally not admissible in a civil case.
Who initiates evidence of character in a criminal case?
Generally Only the Accused Can Initiate;
The prosecution cannot initiate evidence of bad character of the defendant merely to show that she is more likely to have committed the crime.
(Although the prosecution may introduce evidence of prior misconduct for reasons other than propensity to commit the crime.
How does Defendant Prove Character?
Under the FRE, a witness for the defendant may testify as to the D's good reputation for the trait in question and may give his personal opinion concerning that trait of the defendant.
taking the stand places the D's credibility (as opposed to character) in issue; i.e., the prosecution is limited to impeachment evidence rather than substantive evidence)
How does the Prosecution Rebut the D's Character Evidence?
Once the defendant opens the door by introducing character evidence, the prosecution may rebut it by:
1) Cross-examining the D's character witness (including whether he knows or has heard of specific instances of the defendant's misconduct)
2) Calling Qualified Witnesses - to testify to the defendant's bad reputation or give their opinions of the defendant's character.
Specific Acts of Misconduct - when are they admissible?
Evidence of a person's other crimes or misconduct is inadmissible if offered solely to establish a criminal disposition or bad character.
Specific Acts of Misconduct are Admissible if Independently Relevant (Evidence of other crimes or misconduct is admissible if these acts are relevant to some issue other than the defendant's character or disposition to commit the crime or act charged). MIMIC
What are the Requirements for Admissibility for Prior Specific Acts?
To be admissible:
(i) there must be sufficient evidence to support a jury finding that the D committed the prior act, and
(ii) its probative value must not be substantially outweighed by the danger of unfair prejudice (or the judge, in her discretion, may exclude it).
How are Telephone Conversations authenticated?
Statements made during a telephone conversation may be authenticated by one of the parties to the call who testifies that:
(i) he recognized the other party's voice;
(ii) the speaker had knowledge of certain facts that only a particular person would have;
(iii) he called a particular person's number and a voice answered as that person or that person's residence; or
(iv) he called a business and talked with the person answering the phone about matters relevant to the business.
The Best Evidence Rule Does not apply in what circumstances?
1. Fact to Be Proved Exists Independently of Writing
2. Writing is Collateral to Litigated issue
3. Summaries of voluminous records
4. Public records - copies of public records that are certified as correct or testified to as correct.
As applied to the Best Evidence Rule, what is the definition of a writing?
An Original is the writing itself or any duplicate that is intended by the person executing it to have the same effect as an original.
As applied to the Best Evidence Rule, what is the definition of a duplicate?
A duplicate is an exact copy of an original, such as a carbon copy.
~ Duplicates are admissible in federal courts unless the authenticity of the original is challenged or unfairness would result.
What is the rule re the Admissibility of Secondary Evidence of Contents?
If the proponent cannot produce the original writing in court, he may offer secondary evidence of its contents (handwritten copies, notes, oral testimony) if a satisfactory explanation is given for the nonproduction of the original.
What is the rule on Degrees of Secondary Evidence?
Upon satisfactory foundation, the Federal Rules permit a party to prove the contents of a writing by any kind of secondary evidence, thus abolishing degrees of secondary evidence.
When is the competency of a witness be determined in accordance with State law?
in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the competency of a witness shall be determined in accordance with State law.
Generally, a witness must possess what basic testimonial attibutes?
~ Witnesses must possess to some degree four basic testimonial attributes: the capacity to observe, to recollect, to communicate, and to appreciate the obligation to speak truthfully.
What are Dead Man Acts?
Dead Man Acts provide that a party or person interested in the event is incompetent to testify to a personal transaction or communication with a deceased, when such testimony is offered against the representative or successors in interest of the deceased.
~ A person is "interested" if he stands to gain or lose by the judgment or the judgment may be used for or against him in a subsequent action.
~ A predecessor in interest of the interested party is also disqualified.
What about Dead Man Acts and the FRE, and when will one apply in a federal case?
There is no Dead Man Act in the FRE, but a state Act will apply in federal cases where state law, under the Erie doctrine, provides the rule of decision (e.g., diversity cases).
What are Leading Questions?
questions that suggest the answer desired
What is Present Recollection Revived/Refreshing Recollection?
A Witness may use any writing (or photograph) for the purpose of refreshing her present recollection.
~ A Witness usually may not read from the writing while she actually testifies because the writing is not authenticated and not in evidence.
~ there is no hearsay problem, because item is not entered into evidence
Under the FRE may an expert give an Opinion on Ultimate Issues?
under the FRE, an expert may render an opinion as to the ultimate issue in the case.
~ However, in a criminal case in which the defendant's mental state constitutes an element of the crime or defense, an expert may not, under the FRE, state an opinion as to whether the accused did or did not have the mental state in issue.
What is the FRE rule on experts and Authoritative Texts and Treatises?
An expert may be cross-examined regarding statements contained in any publication established as reliable authority either by the testimony of this expert or another expert, or by judicial notice.
~ Under the FRE, these texts and treatises can be used not only to impeach experts, but also as substantive evidence
What are the limitations on crossing an expert on authoritative texts and treatises?
1) an expert must be on the stand when an excerpt is read from a treatise; and
2) the relevant portion is read into evidence but is not received as an exhibit.
What is the rule for Impeachment on Collateral Matters?
Where a witness makes a statement not directly relevant to the issue in the case, the rule against impeachment on a collateral matter applies to bar his opponent from proving the statement untrue either by extrinsic evidence or by a prior inconsistent statement.
How may a witness who has been impeached be rehabilitated?
a. Explanation on Redirect: The witness on redirect may explain or clarify facts brought out on cross-examination.
Good Reputation for Truth: When the witness's character for truth and veracity has been attacked, other witnesses may be called to testify to the good reputation for truth of the impeached witness or to give their opinions as to the truthfulness of the impeached witness.
Prior Consistent Statements (limited)