Law Of Evidence

Front 1

Exceptions to General Rule of Character Evidence

Back 1

Character evidence ADMISSABLE when offered to show ACTION IN CONFORMITY WITH CHARACTER when offered:
1. By D to show HIS GOOD CHARACTER
(Or by PROSECUTION TO REBUT)

2. By D to show the VICTIM'S BAD CHARACTER (Not in RAPE CASES)
(Or by PROSECUTION to REBUT)

3. By PROSECUTION to show D's bad character AFTER D attacks SAME CHARACTER TRAIT of VICTIM

4. To reflect on CREDIBILITY OF WITNESS

5. To show person's COMMISSION OF OTHER SEX CRIMES - in sexual assault of molestation case


Rep Evidence and (FRE) OPINION evidence - NEVER SPECIFIC ACTS

Front 2

Preliminary Determinations Concerning Admissibility

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BURDEN OF PROOF of preliminary fact
-Proponnent of Evidence or claimant of privilege has burden of proof

MODERNLY: Trial judge makes ALL preliminary fact determinations relating to the admissibility of Evidence.

Jury Presence is at Judge's discretion (Except for admissibility of D's confessions, MUST be determined outside the presence of jurors)

Front 3

Evidence Excluded by EXTRINSIC POLICIES

Back 3

- Subsequent Remedial Measures (Repairs)
- When used to prove NEGLIGENCE, DEFECT, OR NEED FOR WARNING
- OFFERS TO COMPROMISE to prove liability
-LIABILITY INSURANCE to prove NEGLIGENCE or WRONGDOING
-Withdrawn or offers of GUILTY PLEA against D who made Plea or offer
-STATEMENT MADE DURING PLEA BARGAINING - against a D who made statements during Plea Bargaining to a GOV'T ATTORNEY

Front 4

Relevancy of Other Contracts

Back 4

SAME PARTIES - May be admissible to INTERPRET TERMS of present contract but usually not to prove FORMATION of present contract

THIRD PERSONS - Usually admissible to show COMMON PLAN, SCHEME, HABIT or USAGE in all of D's contracts. INADMISSIBLE as to FORMATION of present Contract

Front 5

Relevancy of Previous Tort Claims by Plaintiff

Back 5

Generally considered IRRELEVANT in a personal injury case
EXCEPTIONS - Similar injuraies, Prior False Claims or Fraudulent Schemes, may be relevant under certain circumstances

Front 6

Character Evidence Falling OUTSIDE of General Rule

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1. Crimes and acts offered for purpose other than showing character (KIPPOMIA)

2. Must introduce enough Evidence to permit REASONABLE JURY to decided in PROPONENTS FAVOR (Proof of guilt not required)

3. When character itself in IN ISSUE - May be proved ONLY by Witness' testimony as to the party's reputation in the community
- Reputation, Specific Instances, and (modernly) Opinion

Front 7

Admissibility of Statements Made During Plea Bargaining

Back 7

INADMISSIBLE - Against a D who made statement during Please Bargaining to A GOV'T ATTORNEY.

ADMISSIBLE
-Against ANOTHER PERSON; or
-Against D who made Plea Bargaining statement to POLICE (NOT PROSECUTOR)

Front 8

Admissibility of Withdrawn guilty Please or Offers to Plead Guilty

Back 8

INADMISSIBLE - Against the D who made the plea or offer
ADMISSIBLE
-Against ANOTHER PERSON or
-Where D OPENS THE DOOR by ALLUDING to subject

Front 9

Sales of Same or Similar Property to SHOW VALUE

Back 9

REAL PROPERTY- Usually ADMISSIBLE when the issue is the VALUE OF THE LAND; price paid for that particular land, recent prices paid for SIMILAR prop in area

PERSONAL PROPERTY - When issue is VALUE: Evidence of prices paid for similar property is almost always admitted

SALES v OFFERS - Prices must be SALES PRICES, not merely offers. Offers may be admissIble is used as ADMISSIONS

FEES FOR SIMILAR SERVICES - Admissible to determine the VALUE of services in present transaction

Front 10

Rules of Admissibility

Back 10

All RELEVANT evidence is ADMISSIBLE unless EXCLUDED by some SPECIFIC RULE

DOCTRINE OF LIMITED ADMISSIBILITY - Relevancy and thus admissibility depends on PURPOSE

RULE OF LIMITED ADMISSIBILITY - Evidence that is INADMISSIBLE for 1 purpose or as to 1 party is not necessarily inadmissible for another purpose or as to another party. Special instructions to jury or SEVERANCE appropriate if HIGHLY PREJUDICIAL

Front 11

Evidence falling OUTSIDE of General Rule of Character Evidence

Back 11

Evidence of OTHER CRIMES AND ACTS is admissible if offered to show:
Knowledge
Identity
Plan
Preparation
Opportunity
Motive
Intent
Absence of Mistake

Evidence of other CRIMES is admissible if proponent introduces enough Evidence to permit REASONABLE JURY to DECIDE IN ITS FAVOR (In some Jxs even if ACQUITTED)

Front 12

Discretionary Exclusion of Evidence

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Trial Judge has BROAD DISCRETION to exclude even relevant evidence when PROBATIVE VALUE is SUBSTANTIALLY OUTWEIGHED by danger or"
-Unfair Prejudice
-Confusion of Issues
-Misleading the Jury
-Undue Delay
-Waste of Time
- Needless presentation of Cumulative Evidence

UNFAIR surprise not recognized by FRE

Front 13

General Rule of Character Evidence

Back 13

Evidence of a general human trait such as honest, violence, etc. (aka - propensity) is generally INADMISSIBLE to show ACTION IN CONFORMITY W/ CHARACTER.




Admissibility depends on PURPOSE

Front 14

Types of Character Evidence

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1. OPINION

2. REPUTATION - Testimony as to the person's REPUTATION in the community; and

3. SPECIFIC ACTS - Testimony or proof as to the specific acts of the person that reflects on trait

Front 15

Relevancy of Accidents and Injuries to others in Negligence Cases

Back 15

PRIOR ACCIDENTS
Traditionally ADMISSIBLE if:
1. Substantial Identity of CONDITIONS
2. Substantial identity of BEHAVIORS
3. No serious DANGER OF CONFUSION OF ISSUES

Federal Approach - Considers PURPOSE. Balance of PROBATIVE VALUE and Dangers of Prejudice

SUBSEQUENT ACCIDENTS - Inadmissible to prove causation or knowledge but ADMISSABLE to show existence of a DANGEROUS condition at time of accident

ABSENCE OF OF PRIOR ACCIDENTS - INADMISSIBLE to prove that nonexistence of the dangerous condition or the likelihood that the condition caused P's present injury

Front 16

Rape Shield Legislation

Back 16

Prevents a person charged with Rape from introducing a Victim's PRIOR SEXUAL ACTIVITIES to show consent.
ONLY ADMISSIBLE to show;
- Evidence of prior sexual activity WITH DEFENDANT
- Consent to show PREGNANCY, DISEASE, ETC.

Front 17

Character Evidence to Reflect on Witness's Credibility

Back 17

Any witness may be impeached by showing:
-Poor reputation for TRUTH AND VERACITY; or
- Prior FELONY CONVICTION

Witness my be REHABILITATED by showing her good reputation for VERACITY

Front 18

Admissibility of SEX CRIMES as Character Evidence

Back 18

FRE 413 -415

Specifically allows testimony of PRIOR ACTS of CRIMES OF SEXUAL ASSAULT or CHILD MOLESTATION

Do NOT provide for REPUTATION or OPINION Evidence

Front 19

Admissibility of Character of ANIMALS

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Evidence of an animals' character (or habit) to show CONFORMITY therewith is more OFTEN ADMISSIBLLE

Ex. Ev that a dog has bitten before is relevant to its propensity to bite

Front 20

Habit Evidence

Back 20

A person's SPECIFIC ROUTINE AND CONTINUOUS BEHAVIOR in particular situations

May be proved by OPINION EVIDENCE or SPECIFIC PAST ACTS

Admissible to Prove:
-DOING OF A PARTICULAR ACT in accordance with bait; &
-To show STANDARD OF CARE in NEGLIGENCE cases; &
- To illuminate the TERMS OF A CONTRACT

Front 21

Admissibility of Subsequent Remedial Measures

Back 21

Evidence of REPAIRS made or PRECAUTIONS taken after is:
INADMISSIBLE to prove:
-NEGLIGENCE (culpable conduct)
-DEFECT in product or design
- Need for a WARNING OR INSTRUCTION (Strict Liability)

ADMISSIBLE to:
-IMPEACH D's witnesses as to SAFETY OF CONDITION
- Prove OWNERSHIP OR CONTROL
- Prove D was ATTEMPTING TO CONCEAL OR DESTROY EVIDENCE
- Prove PRECAUTIONARY MEASURES were FEASIBLE

Front 22

Admissibility of Offers to Compromise

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INADMISSIBLE to prove LIABILITY of DISPUTED CLAIM

ADMISSIBLE for other purposes - ADMISSIONS OF FACTS accompanying an offer to pay MED EXPENSES are ADMISSIBLE

Most Jxs exclude ANY STATEMENT OR CONDUCT made during negotiations

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Admissibility of D's Settlement w/ 3rd Person

Back 23

Out of SAME INCIDENT - Excluded

Front 24

Admissibility of Failure to Meet Professional or Company Standards

Back 24

1. Violation of COMPANY RULES
- Respondeat Superior action - Evidence that employeed violated a a company rule IS generally admissible (Minority view contra)

2. Violation of MEDICAL STANDARDS
- Reports of medical staff committees (etc. ) as to whether particular acts met required standard or care general inadmissible

Front 25

Admissibility of Liability Insurance

Back 25

INADMISSIBLE
- To prove NEGLIGENCE or WRONGDOING

ADMISSIBLE
-For other purposed
-PART OF AN ADMISSION
-Prove OWNERSHIP and CONTROL
-Prove BIAS
-On VOIR DIRE examination of Jurors to determine PREJUDICE

Such evidence is exclude because it is irrelevant, prejudicIal, and against PUBLIC POLICY.

Front 26

Basic of Witness' Testimony

Back 26

Witness's testimony may be based on:
1. Witness' PERSON (DIRECT) KNOWLEDGE of facts involved (Admissible if RELEVANT);

2, Witness' OPINIONS, CONCLUSIONS, or ESTIMATES, of those facts (Usually NOT admissible);

3. Reports of facts obtained by the Witness from other sources or persons (Subject to Rules Against HEARSAY)

Personal Direct Knowledge - Admissible if RELEVANT
Opinions, co

Front 27

General Rule Against HEARSAY

Back 27

Hearsay, GENERALLY INADMISSIBLE

(Trustworthiness and Reliability fuel the rule)

Front 28

Hearsay

Back 28

An OUT-OF-COURT statement, made by the Declarant, and offered into Evidence to PROVE THE TRUTH OF THE MATTER

Statements include ORAL, IN WRITING, and ASSERTIVE (in place of words)

Front 29

Admissible Non-Hearsay Statements

Back 29

The following statements are considered NON-HEARSAY statements as they are not offered to provide the TRUTH OF THE MATTER and thus ADMISSIBLE:
1. Words of Legal Significance (Offer, Acceptance, Etc. )
2. Offered to show EFFECT on reader/hearer
3. Offered as CIRCUMSTANTIAL evidence of Declarant's STATE OF MIND
4. PRIOR STATEMENTS by Witness affecting credibility
-Inconsistent Statements offered to impeach
-Consistent Statements offered to Rehabilitate

Front 30

Hearsay Exemptions

Back 30

FRE 801(d) - Exemptions considered NON-Hearsay

Evidence falling into 1 0f 4 categories is usable as NON HEARSAY SUBSTANTIVE EVIDENCE if relevant:
1. PRIOR INCONSISTENT STATEMENT made by Witness under OATH;
2. PRIOR CONSISTENT STATEMENT of Witness, whether or not under oath;
3. Witness' prior statement of IDENTIFICATION of a person;
4. ADMISSIONS by a PARTY OPPONENT

Front 31

"HEARSAY ON HEARSAY"
(AKA - Double Hearsay)

Back 31

OUT-OF-COURT words or conduct that INCORPORATES HEARSAY is admissible only where each part of the statements comes within an exception.

Front 32

Former Testimony
(Hearsay Exception)

Back 32

Transcripts of Testimony given by a Witness at a former TRIAL, HEARING, or DEPOSITION (under oath) in the same or another case, with opportunity for cross examination is admissible when;
1. IDENTITY OF PARTIES
-Traditional - Proponent of Evidence and Adversary parties to former action
-Modern Trend - Requires ONLY idenetity of INTEREST AND MOTIVE
-FRE - Party against whom former testimony is offered or party or predecessor in interest who has opportunity to Cross X and similar MOTIVE to develop Witness' testimony.
2. IDENTITY OF ISSUES - Issues at both trial SUBSTANTIALLY SAME
3. UNAVAILABILITY of witness is PRESENT PROCEEDING. May be due to witness' death, physica or mental capacity, or non-contrived absence absence, refusal to testify.

Front 33

Unavailability of Witness

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Witness' unavailability accepted for following reasons:
1. Death of Witness
2. Witness' physical or mental capacity
3. Witness' non-contrived absence; or
4. Witness' inability or refusal to testify

Front 34

Ancient Documents
(Hearsay Exception)

Back 34

Documents 20 years old or more, must be relevant and subsequent dealing CONSISTENT with unrelated facts

TRADITIONAL VIEW - Docs must be
-30 years Old
-Free From suspicious appearances
-Been in proper custody
-Been accepted by person with interest in property

FRE - More liberal (20 years)

Includes ancient deeds, mortgages, wills, or other property disposing documents

Front 35

Reputation
(Hearsay Exception)

Back 35

Reputation evidence concerning a person's character, pr PERSONAL FAMILY HISTORY, land BOUNDARIES, or a COMMUNITY'S GENERAL HISTORY
-Not TITLE DISPUTES
-Community reputation may be established by testimony or accepted historical works (Judicial Notice)

Front 36

Records to Prove " Pedigree"
(Hearsay Exception)

Back 36

Statements of fact found in FAMILY BIBLES, JEWELRY ENGRAVING, TOMBSTONES, ETC. or regulatory kept RECORDS OF RELIGIOUS OGRANIZATION
-Must be properly AUTHENTICATED

Front 37

Declaration of Family History
(Hearsay Exception)

Back 37

Statement of PERSONAL or FAMILY HISTORY MABE BY A FAMILY MEMBER or 1 INTIMATELY ASSOCIATED regarding birth, death, marriage, etc.

If Declarant's own family history, evidence of declarant's statements only admissible if declarant unavailable

DECLARATION BY OTHERS - admissible to prove questioned relationship:
1. Must be some INDEPENDENT PROOF of relationship to family
2. Declarant must be UNAVAILABLE
3. Declaration must pertain to facts of family history
4. Need not have PERSONAL KNOWLEDGE
5. Declaration must be made BEFORE controversy arose (Not applicable under FRE)

Front 38

Statutory Exceptions to Admissibility of Prior CIVIL JUDGEMENTS
(Hearsay Exception)

Back 38

Admissible civil judgment include FINAL judgment AGAINST 3rd PERSONS when liability of that person in issue
-Prior judgments establishing liability are admissible for ENFORCEMENT OF INDEMNITY agreements or proof of PERSONAL MATTERS (EX - land boundaries) when such matters are provable by Reputation evidence

Front 39

Judgment
(Hearsay Exception)

Back 39

Judgment of a PRIOR FELONY CONVICTION is admissable in a CIVIL CASE to prove any fact essential to judgment. In a CRIMINAL CASE may be used by GOVERNMENT for this purpose only against accussed
-Must involve same facts upon which criminal trial based
-Conviction treated MERELY AS EVIDENCE not conclusive PROOF
-No court permits judgment against 3rd person to implicate in criminal case
-Acquittal of based on very same facts a civil not admissible
-Civil Judgment admissible in subsequent criminal proceeding
-Inadmissible when asserted by a stranger unless collateral estoppel appropriate

Front 40

Official Records
(Hearsay Exception)

Back 40

Statements and documents prepared by PUBLIC OFFICIALS in the performance of OFFICIAL DUTIES (Records and reports of PUBLIC AGENCIES)

Absence of Public Record admissible to show non-existence of matter

REQUIREMENTS FOR ADMISSIBILITY
-Prepared by Public Employee
-Acting within SCOPE OF OFFICIAL DUTIES
-Record must be based on 1st hand knowledge of events
* Exception - vital statistics (Birth, Death, Marriage)
Federal Exception encompasses "factual findings made pursuant to investigation

Front 41

Authentication of Business Records
(Hearsay Exception)

Back 41

Custodian of other QUALIFIED witness must appear in court and authenticate records
-Some states permit affidavit authentication for records of a NONPARTY
-FRE permits admissibility with out a sponsoring witness is records are properly certified

Front 42

Business Records
(Hearsay Exception)

Back 42

Writing made in the REGULAR COURSE OF BUSINESS, consisting of matters with in the PERSONAL KNOWLEDGE of one with a BUSINESS DUTY to record

LACK of such writing may be used to prove non-occurrence of event

Must appear maintained as part of the PRIMARY ACTIVITIES. Thus;
*Hospital Records admissible ONLY is concern TREATMENT AND DIAGNOSIS
* Accident Reports prepared in preparation of litigation INADMISSIBLE
-Allows entries of FACTS, ACTS, CONDITIONS, OPINIONS, or DIAGNOSES
-Must be AUTHENTICATE by CUSTODIAN
-Must have PERSONAL KNOWLEDGE or TRANSMITTED to entrant by someone with PERSONAL KNOWLEDGE and BUSINESS DUTY

Front 43

"Parties' Shop-Book Doctrine

Back 43

At common law in a suit by a creditor against a debtor the creditor (a party) was INCOMPETENT to testify on his own behalf, thus the creditor's Business Records were allowed in to Evidence to prove the DEBT

Front 44

Past Recollection Recorded
(Hearsay Exception)

Back 44

Writing by witness who cannot NOW remember the facts, made while facts fresh in mind
-Writing itself generally not admitted
REQUIREMENTS
-Documents must have been PREPARED or ADOPTED by Witness
-Must have been prepared/adopted while FRESH IN WITNESS' MEMORY
-Document must CORRECTLY REFLECT what was remembered when made
-Witness must have INSUFFICIENT MEMORY to testify FULLY ON MATTER
-Document must be the AUTHENTIC UNALTERED WRITING

Front 45

Mental Condition (AKA -State of MInd)
(Hearsay Exception)

Back 45

Statement of THEN-EXISTING STATE OF MIND (Emotion, sensation, or physical condition)

Usually introduce to establish INTENT, Admissible when state of mind is a MATERIAL ISSUE or to show SUBSEQUENT ACTS of declarant (Probability)
-Cannot be used to implicate or reflect on conduct of 3rd parties
-Declarations made in present about past state of mind INADMISSIBLE
--Exception - when issue related to EXECUTION, REVOCATION, OR INTERPRETATION of DECENDENT'S WILL AND GRANTOR OR DEED (Statements made before and after ADMISSIBLE)

Front 46

Physical Condition (AKA - State of Body)
(Hearsay Exception)

Back 46

Statement made to MEDICAL PERSONNEL for the purpose of DIAGNOSIS or TREATMENT

PRESENT CONDITION
When physical condition at a SPECIFIED TIME in issue that person's SPONTANEOUS statement MAFE AT THAT TIME admissible to prove condition

PAST CONDITION
Traditionally - Inadmissible
FRE - allows if made for MED TREATMENT or DIAGNOSIS
CA - Allows if PAST CONDITION itself is at issue

Front 47

Excited Utterance
(Hearsay Exception)

Back 47

Statement made WHILE UNDER STRESS OF EXCITEMENT OF STARTLING EVENT
-Must be an occurrence STARTLING enough to produce SHOCK AND EXCITEMENT
-While under STRESS OF said SHOCK AND EXCITEMENT
-& in most Jxs must be RELATED TO THAT EVENT
-Declarant must have had PERSONAL OBSERVATION of event

Some courts allow OPINION others ONLY FACTS
No requirement for COMPETENCY, UNAVAILABILITY OR IDENTITY

Front 48

Present Sense Impression
(Hearsay Exception)

Back 48

Statement made CONCURRENTLY WITH PERCEPTION OF EVENT described (not necessarily "exciting")
-Declarant need not be UNAVAILABLE OR IDENTIFIED
-Made WHILE declarant was perceiving event (Most Jx)
-FRE also admits statements made IMMEDIATELY after the event
-Must be SPONTANEOUS (Assures Trustworthiness)

Front 49

Dying Declaration

Back 49

Statement made while declarant BELEIVED DEATH WAS IMMINENT,CONCERNING THE CAUSE or CIRCUMSTANCES of the impending death
FRE admits in Civil Cases and HOMICIDE Criminal Cases
1. Statement must be made by VICTIM, not 3rd person
2.Statement must be made while beleiving death is IMMINENT
3. Must have had the USUAL CAPACITIES of witness at time of declaration
4. Statement must relate to facts related to CAUSE or CIRCUMSTANCES of Death
5.FRE Requires declarant to be unavailable as long as he believed death was imminent when statement made. Some Jxs require death.