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114 Cards in this Set

  • Front
  • Back

Logical Relevance 401

Evidence that has any tendency to make a material fact more or less probable than it would be without the evidence.

Legal Relevance 403(b)


Examples of unfair prejudice

Even relevant evidence may be excluded if its probative value is substantially outweighed by its prejudicial effect.



a danger of one or ore of the following
1. Unfair Prejudice
2. Confusion of the Issues
3. Misleading jury
4. Undue delay
5. Wasting time
6. Needlessly presenting cumulative evidence
7. NO UNFAIR SURPRISE (UNFAIR SURPRISE NOT LISTED IN 403)

evidence of similar happenings to prove causation

Proving cause and effect (tends to show)



E.g. everyone who ate at the restaurant that day got sick

similar occurrences to prove prior accidents or claims

not admissible unless:
1. They show common plan and scheme of fraud
2. Prior claims or accidents are relevant on issue of damages (P hurt is back in prior accident)


3. to show instrumentality is defective and dangerous (other accidents involving the same instrumentality occurred under the same circumstances)

Similar occurrences: Intent or State of Mind
To infer intent from prior conduct

Similar Occurrences: Rebuttal Evidence

To rebut defense of impossibility



Found a mouse in coca cola – P introduces mice in other coke cans to show it happens

Similar Occurrences: Comparable Sales to Establish Value

Sale price of other chattels or parcels of real property are admissible if:



1. Same general description
2. Same general time period
3. Same geographic area

Simlar Occurences: Habit Evidence

Admissible to prove that on a particular occasion the person acted in accordance with the habit



Requires:


1. specificity, and


2. reoccurrence



buzzwords: instinctively, invariably, automatically, always

Overlapping Rules to Habit


1. Disposition


2. Prior Act


3. Habit

Disposition evidence – not admissible
Prior Act evidence – Not admissible (person did it once or twice? Cool – not admissible)
Habit Evidence--Admissible

Similar Occurrences: Business Routine

Routine practice admissible to show that the organization acted in accordance with the routine practice

Similar Occurrences: Industrial or Trade Custom

Admissible as non-conclusive evidence of standard of care

The Three Discretionary Policy-Based Relevance Exclusions

Liability Insurance
Subsequent Remedial Measures
Settlements

Liability Insurance

Not admissible to show person acted negligently or wrongfully or to show ability to pay



Exceptions: Admissible when relevant to
1. Show ownership or control (when ownership or control is disputed), or



2. Impeach credibility of witnesses by showing interest or bias (or motive)
Subsequent Remedial Measures

Evidence of the subsequent measure is not admissible to prove negligence, culpable conduct, a defect in the product, a defect in the product’s design, or a need for warning or instruction



Exceptions:
1. Ownership and control (if disputed)



2. Feasibility of precautionary measures (if disputed)

Settlements (general rule)

Not admissible to prove fault, liability or amount of damages.



Limitations:


1. there must be a claim


2. the claim must be disputed as to liability or amount

Offer to pay medical expenses

not admissible, even though not a settlement offer



Limitation:


if an admission of fact accompanies a naked offer to pay, the admission may be admitted.

Character Evidence (Four Preliminary Questions)

1. What is the purpose to offer character evidence?
2. What is the method you are using to prove character?
3. What type of case is this – civil or criminal?
4. What trait of character is involved?

Methods of proving character evidence

1. Specific acts of conduct


2. Opinion


3. Reputation

Character in Civil Cases (General Rule)

Not admissible as propensity evidence (to show party acted in a similar manner for the events in question)

Character in Civil Cases (Exception)

Character is Admissible in a civil case where the character of a person (party) is a material issue in the case:



1. Negligent Hiring
2. Defamation
3. Wrongful Death

Character in Civil Cases: Method of Proof

Method of proof: specific acts, opinion, reputation all admissible!

Character in Criminal Cases (3 steps)

1. offered by prosectution: bad character not admissible to show propensity,


UNLESS and UNTIL


2. If Defendant offers evidence of good character for a relevant trait (reputation or opinion only)


THEN


3. Prosecutor may present evidence of the bad character of the accused (may call witnesses to testify to D's opinion or reputation--NO specific acts)

Victim Character – Self-Defense

As part of self-defense defense:



1. Defendant may show that the victim had bad character for violence by reputation or opinion,



2. Prosecutor can respond with:


A. victim's good reputation or opinion, OR


B. defendant's bad reputation or bad opinion

Victim Character – Sexual Misconduct (criminal Case)

Defenses's evidence of victim's sexual history or sexual predisposition to prove consent is limited:


1. No opinion or reputation;


2. specific instances of sexual behavior only admissible if:


A. offered to prove 3rd party was source of semen or other physical evidence,


B. to show prior acts of consensual intercourse between vic and D, or


C. exclusion would violate constitutional rights of D

Victim Character – Sexual Misconduct (Civil Case)

Only if probative value substantially outweighs danger of harm to victim and unfair prejudice to any party (defense must have in camera hearing)



(Reverse 403(b))

Specific Instances of Prior Misconduct by the Defendant (MIMIC)


Character evidence admissible to prove relevant material fact other than propensity.



Motive – show misconduct – fringe benefits
Intent--guilty knowledge
Modus Operandi – another way to prove identity (must be specific)


Identity – anything that would connect D to crime charged
Common Plan or Scheme – same transaction, scheme, plan or preparation



*Applies to Civil Cases too

Special Rule Involving Sexual Assault and Child Molestation

In Civil or Criminal Cases: Prior Similar Acts are allowed to show propensity

Authentication of a Writing

A writing is not admissible until It has been authenticated. A foundation must be laid showing that the writing is what it purports to be, i.e. that it is genuine.

Methods of Authentication

Direct Evidence in the Form of
1. Admission: witness authenticates
2. Eyewitness testimony: someone witnessed creation of the writing
3. Handwriting Proof (next card)

Handwriting Proof (Authentication)

Can be proved by
1. s – any witness familiar with signature
2. Expert witness – comparing disputed signature with genuine specimen of signature
3. Jury Comparison – Impermissible techniques by lay witness—can’t study for purposes of litigation

Ancient Document Rule
20 or more years
Regular on its Face
Found in a place of natural custody

Solicited Reply Doctrine
Proof that disputed evidence came in response to prior communication

Quantum of Proof
Sufficient evidence that reasonable jury could find genuine
Self-Authenticating Documents


A. Certified Copies of public or business records
B. Official publications (state motor vehicle dep’t – purpoting on face to be from public agency)
C. Newspaper and Periodicals
D. Trade Inscriptions or Labels
E. Acknowledged Documents - signs not just once, but twice. Certificate of authentication.
F. Signatures on certain commercial documents
Authentication of Photographs

1. Have a witness (doesn't have to be photographer) say its fair and accurate depiction of the object
2. But not if it’s a security camera – you’d have to do all kinds of chain of custody (e.g. anything that doesn’t speak for itself)

Best Evidence Rule

Party seeking to prove the content of a writing (film, phots...)


Must either
1. Produce Original Document or
2. Account for absence of original
Accounting for Absence of Original

If reasonable, then lay foundation for secondary evidence
Then a copy or oral testimony may be admitted to prove content of original

Best Evidence Rule Applies to

1. Legally Operative Documents – documents that create or destroy legal relationship in dispute
2. Witness’s knowledge comes from a document – witness wants to recite what he read

Best Evidence Rule does not apply to

1. Facts independent of the writing (e.g. a birth without a birth certificate - can establish it other ways)
2. Collateral Documents (e.g. a doctor’s license when the doctor testifies)
Modifications to Best Evidence Rule

1. Pubic records – certified copies admissible in place of originals



2. Voluminous Documents (can introduce a summary document if originals would be admissible if offered and made accessible to opposing parties)



3. Duplicates (on new slide)
Duplicates

Allowed under BER unless:



1. Genuine Question is raised about authenticity of original, or



2. Circumstances make it unfair to admit duplicate in lieu of original (e.g. Xerox of one sentence of 100 page documents)
Competency to Stand Trial

Personal Knowledge and Oath
1. Perception
2. Memory
3. Communication
4. Sincerity (appreciation for the obligation to tell the truth – oath or affirmation)

Common law Disqualifications Abandoned

1. Lack of Religious Belief
2. Infancy
3. Mental Incompetency
4. Prior Convictions
5. Interest (motivated to lie)

Dead Man Acts

Typical Statute: An interested survivor cannot testify for his interest against the decedent or decedent’s representatives about communications or transactions with the decedent in a civil case unless a waiver
Elements
1. Must be interested witness
2. Must be testifying for his or her own interest
3. Against decedent or representative
4. Rule of competency – subject matter is important (barred from testifying to matters that decedent could contradict – not all matters)
5. Strictly civil
6. Can be waiver
Applicable in federal court only if state whose substantive law applies such a statute
Objectionable Questions

Narrative
Leading
Misleading or Compound or Argumentative (even on Cross)

Leading Questions permitted in Certain Situations (4)

1. Cross Exam
2. on Direct for Preliminary matters
3. Difficulty eliciting testimony (child)
4. Examining Adverse party or Genuinely hostile witness
Witness Use of Writings in Aid of Testimony (basic rule)

Witness usually cannot read testimony from previously prepared document but may use a writing in aid of memory, if:



1. refresh recollection and



2. recorded recollection

Refereshing Recollection

When witness memory fails, anything can be used to jog memory of witness
(song, smell, etc.)



Opposing party can move the item into evidence

Recorded Recollection

if witness unable to remember something she had personal knowledge of, her own writing may be admitted in place of her testimony if:


1. W doesn't remember


2. W made writing or supervised creation


3. made when W's memory was fresh


4. accurate when made


read into evidence

Lay Opinion

Admissible if
1. Rationally Based on Perception of Witness, and
2. Helpful to trier of fact



speed of car, sanity, intoxication, emotions

Experts Opinion testimony


(5 Reqs His Quiet Strength Creates Possibilities)

1. Helpful to jury


2. Qualified


3. Supported by proper Facts


4. Reasonable Certainty


5. based on reliable Principles

Expert Opinion – Supported by Proper Factual Basis

1. Facts within personal knowledge of expert; or
2. Presented to expert in court by evidence; or


3. Facts that are reasonably relied upon making out of court professional decision

Learned Treatise (authoritative if)

if authoritative can be admitted (hearsay exception):



1. Opposing expert relied on text of treatise;
2. Admission on cross exam;
3. Call your own expert witness;
4. Judicial notice

The Learned Treatise used as substantive evidence (limitations)

Text may be offered for its truth as an exception to the rule against hearsay



LIMITS
1. Expert must testify unless judge takes judicial notice
2. Treatise is admitted by being read to the jury – text itself is not received by evidence
Cross-Exam

1. Party has absolute right to cross-exam a witness who testifies live (if the witness refuses to answer any cross-exam questions after testifying on direct – direct is stricken)
2. Cross exam should not exceed the scope of direct
3. Collateral matters doctrine (separate card)
Colalteral Matters Doctrine

Impeachment by Contradiction of Witness is limited. Cross-examiner is bound by the answers given by the witness as to collateral matters


No extrinsic evidence allowed

Extrinsic evidence

documents and witnesses (anything other than asking the witness a question)

Accrediting your own witness

1. No bolstering unless there has been an appropriate impeachment



2. Prior consistent statement admissible if statement is one of identification made by the witness who testifies at trial (excluded from hearsay definition)

Impeaching your own witness
A party may impeach it’s own witness

Five basic impeachment techniques (5)

1. Prior Inconsistent Statement
2. Bias or Interest or motive
3. Prior Conviction of a Crime
4. Specific Acts of Deceit or Lying
5. Bad reputation or opinion for truth and veracity

Prior Inconsistent Statement

1. generally admissible only to impeach – not for it’s truth or substantive evidence,



2. unless given under oath and at a trial hearing or other proceeding--admissible for its truth.



***Extrinsic Evidence is admissible to prove the prior inconsistent statement
*** Foundation – witness has to have the opportunity or deny



3. Prior Inconsistent Statement of a party qualifies as an admission
Bias, Interest, Motive

May be shown by extrinsic evidence after a foundation is laid by inquiry on cross-exam of the target witness
Prior Convictions

Admissible to impeach if:
1. Any crime involving dishonesty (fraud, larceny, by trick, embezzlement, perjury), judge has no discretion to exclude it, OR
2. A felony not involving dishonesty or false statement admissible to impeach in the discretion of the court;
Generally must be within 10 years


Extrinsic evidence OK

Specific Acts of Deceit or Lying

May be asked about in cross-examination
1. Good faith required
3. Act must involve deceit or lying
4. No extrinsic evidence permitted – limited to cross exam

Bad reputation for truth and veracity

Can be used to impeach – can’t bolster it with specific acts

Rehabilitation after impeachment

1. Good reputation (opinion) for truth may be shown if impeachment involved a character attack (prior conviction, act of deceit or lying, bad reputation/opinion for truth)



2. Prior consistent statement

Prior Consistent Statement

Admissible:


To rebut charge of recent fabrication or improper influence or motive (you put someone up in a hotel? They made a prior consistent statement before that)


***Must be pre-motive
***Admissible for its truth
Attorney Client Privilege (defined)

Confidential communications between attorney and client made during professional legal consultation are privileged from disclosure unless waived by the client or the representative of deceased client (privilege survives death of client)
Elements

1. The right parties (atty or representative of atty)
2. Confidential Communications. Not shouted in a crowded elevator, physical evidence or pre-existing documents don’t count.
3. Professional legal relationship

Exceptions to A/C Privilege (this is for all privileges)

1. Future crime or fraud (can’t perpetuate it)



2. At issue exception (when client or patient puts the communication in issue in litigation)



3. Disputes between parties to professional relationship (malpractice suit or action for fees)

Joint Client Exception
1. Can testify to what other client said if client sues each other (no privity between them)
2. But they are privileged if sued together

Physician/Psychiatrists Patient Privilege (defined)
Patient has a privilege against disclosure of confidential info acquired by the physician/psychiatrist in a professional relationship entered into for the purpose of obtaining treatment. Most fed courts recognize only psych-patient and decline to recognize ordinary dr./patient
Physician/Psychiatrists Patient Privilege (Key Elements)
Patient must be seeking treatment (has to seek it himself – not under court order or anything)
Information acquired must be confidential and necessary to facilitate professional treatment
Physician/Psychiatrists Patient Privilege (waiver)
Happens all the time
1. Waived if patient sues or defends by putting physical or mental condition at issue
2. Basically all personal injury suits

Husband-Wife Spousal Privileges (Spousal Immunity)

One Spouse can’t be forced to give adverse testimony against the other in a criminal case
Requirements
1. Valid Marriage at time of trial
2. Protects against any and all testimony
3. Holder of priv is witness spouse not party spouse (e.g. witness spouse can still testify if she wants to)
4. Applies only in criminal case

Confidential Marital Communications Privilege (Defined)

A husband or wife shall not be required or without the consent of another shall not be allowed to disclose a confidential communication by one to the other during the marriage
Confidential Marital Communications Privilege (Requirements)

Also how it is different form spousal immunity
1. Married not necessarily at time of trial but at time of protected communication (privilege outlasts marriage)
2. Protects only confidences, not all testimony
3. Holder of privilege is either spouse, not just a witness spouse
When will state law apply in federal court?

If SUBSTANTIVE LAW APPLIES
1. Presumption and burdens of proof
2. Competency of Witnesses
3. Privileges
Federal Privilege Law in Federal Question or Federal Criminal Cases
Governed by the principles of the common law as they may be interpreted by the courts of the US in light of reason and experience
Hearsay (defined)

Out of court statement offered for the truth of the matter asserted

Declarant

Declarant makes or writes out of court statement

Hearsay Rationale

D doesn’t have an opportunity to cross-examine the person whose perception, memory and sincerity are in issue
Specific Non-hearsay Situations

This is where the out of court statement is not being offered for its truth


1. Verbal Acts or Legally Operative Facts – where words spoken or written have relevant legal significant in the case of virtue of being spoken or written (I accept! Cancel my insurance! Take my car, go to Miami!)



2. Out of court statement offered not for its truth but to show its effect on person listener



3. Out of court statement offered not for its truth but as circumstantial evidence of the declarant’s state of mind (D mounts insanity defense, witness testifies that D said "I am the pope")
Prior Statements of the Witness (Hearsay?)
Yes – a witness’s own prior statements may be hearsay

Prior Statement of a Witness not Hearsay

Excluded: non-hearsay
1. Prior inconsistent statements given under oath at trial, hearing or other proceeding or deposition
2. Prior Consistent Statements to rebut charge of recent fabrication or improper influence or motive
3. Prior statement of identification made by a witness

Hearsay exceptions that require unavailability (3)

1. Former Testimony
2. Statements Against Interest
3. Dying Declaration – Statement Made under Belief of Imminent Death
Admission of Party “Opposing Party’s Statement”

Definition: Statement of a party offered against the party.
Rationale: Estoppel. No special reliability since:
1. Need not be against interest at time of making statement
2. Need not be based on personal knowledge
3. Can be in form of legal conclusion
4. Considered non-hearsay under federal rules of evidence
5. Can be a vicarious admission (statement by party's agent within scope of relationship)
Former Testimony

Definition – testimony given in earlier proceeding by person now unavailable. Admissible if testimony now offered against party who had an opportunity and similar motive to develop it by direct, cross, or redirect.
Requirements
1. Meaningful opportunity for cross (similar issue and motive, some identity of the party)
2. Unavailability (privilege, refusal, dead, sick)
Statements Against Interest

Declaration of a person now unavailable as a witness against that person’s pecuniary, proprietary or penal interest at the time statement was made.
Limitation
A statement that


1. tends to expose declarant to criminal liability and offered in criminal case must be


2.supported by corroborating circumstances that clearly indicate its trustworthiness

Statements Against Interest v. Party Admission

1. SAI must be against interest at time statement made
2. SAI may be made by any person, not necessarily a party
3. SAI requires personal knowledge
4. Requires unavailability
Dying Declaration

Statement Made under belief of imminent death.
Requirements
1. State of mind – you have to actually believe you are dying
2. Need not die but must be unavailable at time of trial
3. Homicide or civil case
4. Must concern cause or circumstances of impending death

Unavailability

Privilege
Refuses to Testify
Memory Fails
Dead or Sick
No Reasonable Means to produce witness

The Spotaneous Statements (unavailability not required)

1. Declaration of existing state of mind in issue
2. Declaration of existing intent to do something in the future offered to infer that the intended act was done
3. Excited Utterance
4. Present Sense Impression
5. Declaration of Present Pain, Suffering or Physical Condition
6. Declaration of Past Physical Condition
Excited utterance (definition)

Statement relating to startling event or condition admissible when made while declarant was still under stress of excitement caused by event or condition
Excited Utterance (requirements)

1. Startling event
2. Statement made under stress of excitement
3. Concerns facts of startling event
Present Sense Impression

A statement describing or explaining an event or condition made while declarant was perceiving the event or condition immediately thereafter
Present Sense Impression v. Excited Utterance

For PSI - unnecessary to have a startling event or excitement
But for PSI must have almost precise contemporaneousness – no appreciable time lapse
Declaration of Present Pain, Suffering or Physical Condition

Declaration of then Present Pain, Suffering or Physical Condition Admissible to show the condition ("It hurts!")



Anyone who heard it can testify!
Declaration of Past Physical Condition

Statement made for medical diagnosis or treatment and describing medical history of past symptoms or sensations, their inception or their general cause insofar as reasonably pertinent to diagnosis or treatment
Requirements:
1. Made to Medical Personnel
2. Pertinent to either diagnosis or treatment (Even if diagnosis is only for the purpose of giving testimony)
Who decides preliminary questions of fact upon which admissibility depends?
The judge. He is not bound by the rules of evidence
Impeaching the hearsay declarant

When a hearsay statement has been admitted in evidence – credibility of declarant may be attacked by any evidence which would be admissible for that purpose if declarant had testified as a live witness
Business records Exception (defined)

Records of a regularly conducted activity
Made at or near the time by or from an information transmitted by a person with knowledge are admissible if kept in the regular course of business

Business records exception (rationale for reliability)
Employees are under a business duty to be accurate in observing, reporting and recording business facts
Business Records Exception (function of the exception)
Allows the record to substitute for the in-court testimony of the employees
Business Records Exception (Typical Problem Areas)
1. Does the first exception apply? Is it germaine to business
Is it double hearsay? Because it’s supposed to substitute testimony for employees it can still have hearsay in it
Sixth Amendment Right of Controntation

Even though an out of court statement qualifies as an exception to the rule against hearsay – the accused’s Sixth Amendment right of confrontation may render the statement inadmissible when it’s offered against the accused in a criminal case
Crawford v. Washington Holding

Out-of-Court statements will be excluded even if they fit within a hearsay exception if:



1. Offered against accused in criminal case, and
2. Declarant is unavailable at trial, and


3. OOC statement was testimonial, and
4. Accused had no opportunity to cross examine declarant’s testimonial statement when it was made, UNLESS
5. Prosecution demonstrates that the D has forfeited his confrontation clause objection by wrongdoing that prevented the declarant from testifying at trial
Testimonial

Hearsay will be testimonial if declarant makes a statement that he or she anticipates will be used in prosecution or investigation of the crime
Testimonial (some examples)

911 Call – no
Signed police statement – yes
Statements Taken by Police officers in course of investigation
Non-testimonial and subject to confrontation clause when they are made under circumstances objectively indicating that primary purpose of interrogation is to meet an ongoing emergency
Statements taken by police officers in course of interrogation are

Testimonial and subject to conference clause when the circumstances objectively indicate that there is no ongoing emergency and primary purpose of interrogation is to establish or prove elements relevant to later criminal prosecution
Testimonial Considerations

very case specific but factors considered
1. Likely motivation and intent of declarant making the statement
2. Likely modification and intent of interrogator
3. Temporal element
4. Identity of person eliciting the statement
5. Degree, amount, circumstances and location of police interrogation (preliminary on scene questions or sustained structured questioning?)
Lab Analysts Certificates

Records prepared by laboratory technicians indicating blood alcohol, DNA or drug test results have in the past been admitted without business or public records exceptions against accused without presence in court of lab technician who prepared it
NOW VIOLATIVE OF CONFERENCE CLAUSE
Forfeiture by wrongdoing

Has to be with specific intent of keeping witness from testifying