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116 Cards in this Set
- Front
- Back
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Relevant Evidence
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Tends to prove (probativeness) any fact of consequence to the action (materiality).
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Determining Relevance
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Generally, the evidence must relate to the time, event, or person involved in the present litigation; otherwise, it is not relevant.
Previous similar occurrences may be relevant if their probative value outweighs the risk of unfair prejudice (must still be material). |
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Examples of Similar Occurrences
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(1) 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).
(2) Prior False Claims or Same Bodily Injury - usually relevant to prove that present claim is likely to be false or the plaintiff's condition is attributable in whole or part to the prior injury. (3) Similar Accidents or Injuries Caused by Same Event or Condition - admissible to prove the existence of a dangerous condition, that the defendant had knowledge of the dangerous condition, and that the dangerous condition was the cause of the present injury. (4) Previous Similar Acts Admissible to Prove Intent (5) Needed to Rebut Claim of Impossibility (6) Sales of Similar Property - admissible to prove value (7) Habit - admissible to prove the conduct of a person on a particular occasion was in conformity with the habit (8) Industrial or Business Routine - admissible as tending to show that a particular event occurred (9) Industry Custom as Evidence of Standard of Care |
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Discretionary Exclusion of Relevant Evidence
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A trial judge has broad discretion to exclude relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, undue delay, or waste of time (but NOT unfair surprise).
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Exclusion of Relevant Evidence for Public Policy Reasons
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(1) Liability Insurance - not admissible to show negligence or ability to pay a substantial judgment; however, may be admissible to prove ownership/control, to impeach, or as part of an admission.
(2) Subsequent Remedial Measures - not admissible to prove negligence, culpable conduct, a defect in a product or its design, or a need for a warning or instruction; however, may be admissible to prove ownership/control, rebut a claim that the precaution was not feasible, or prove that the opposing party has destroyed evidence. (3) Settlement Offers and Withdrawn Guilty Pleas - not admissible to prove liability for, or invalidity of, a claim that is disputed as to validity or amount. (4) Offers to Pay Medical Expenses - not admissible, but admissions of fact accompanying these offers to pay medical expenses are admissible (unlike negotiations during settlement offers/plea agreements). |
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Character Evidence
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May be offered as substantive, rather than impeachment, evidence to:
(1) prove character when it is the ultimate issue in the case, or (2) serve as circumstantial evidence of how a person probably acted (more heavily tested than the previous). |
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Means of Proving Character
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Depending on the jurisdiction, the purpose of the offer, and the nature of the case, one or all of the following methods of proving character may be available:
(1) Evidence of specific acts. (2) Opinion testimony of a witness who knows the person. (3) Testimony as to the person's general reputation in the community. |
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Is character evidence admissible in a civil case?
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Generally, no, unless it is directly in issue (e.g., defamation).
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Can the prosecution introduce evidence as to the defendant's character?
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Not merely to show that she is more likely to have committed the crime. However, may be able to introduce it for other reasons. Also, if the defendant opens the door by introducing evidence of her good character, it's fair game.
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How Defendant Proves Character
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Under the Federal Rules of Evidence (FRE), a witness for the defendant may testify as to the defendant's good reputation for the trait in question and may give his personal opinion concerning the trait of the defendant.
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How Prosecution Rebuts Defendant's Character Evidence
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Once the defendant opens the door by introducing character evidence, the prosecution may rebut it by:
(1) Cross-examining the character witness regarding the basis for his testimony, including whether he knows or has heard of specific instances of the defendant's misconduct (may ask about ANY misconduct - but may not introduce extrinsic evidence). (2) Calling qualified witnesses to testify to the defendant's bad reputation or give their opinions of the defendant's character. |
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Victim in Criminal Case
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Defendant may introduce (except in rape cases) reputation or opinion evidence regarding victim's character when relevant to show defendant's innocence. Prosecution may counter with reputation/opinion evidence of victim's good character, or the defendant's bad character (only for the same trait, though).
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Rape Victim's Past Behavior
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Generally inadmissible (in any civil or criminal proceeding) when offered to prove the sexual behavior or disposition of the victim. However, in a criminal case, evidence is admissible to prove that someone other than the defendant was the source of the evidence (semen, injury, etc). Also, specific instances of sexual behavior between the victim and the accused are admissible by prosecution for any reason and by the defense to prove consent.
In a civil case, evidence of the victim's sexual behavior is admissible if it is not excluded by any other rule and its probative value substantially outweighs the danger of harm to the victim and of unfair prejudice to any party. |
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Specific Acts of Misconduct
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Evidence of a person's other crimes or misconduct is inadmissible if offered solely to establish a criminal disposition or bad character.
If the acts are relevant to some other issue than the defendant's character or disposition to commit the crime - admissible. Such issues include motive, absence of mistake/accident, identity, or common plan or scheme. If it's a criminal case, the prosecution must, upon request, provide reasonable notice prior to trial as to the general nature of any of this type of evidence it tends to introduce. To be admissible: (1) there must be sufficient evidence to support a jury finding that the defendant committed the prior act, AND (2) its probative value must not be substantially outweighed by the danger of unfair prejudice. |
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MIMIC
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Mnemonic device to remember the issues for which evidence of prior acts of misconduct is admissible:
Motive Intent Mistake (absence of) Identity Common plan or scheme |
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Prior Acts of Sexual Assault or Child Molestation
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This evidence is admissible in a case where the defendant is accused of sexual assault or child molestation. The party intending to offer this evidence must disclose it to the defendant 15 days before trial (or later with good cause).
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Judicial Notice of Fact
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Recognition of a fact as true without formal presentation of evidence.
Indisputable facts that are either matters of common knowledge in the community (notorious facts) or capable of verification by resort to easily accessible sources of unquestionable accuracy (manifest facts). If a court doesn't take judicial notice of its own accord, party must formally request such notice. May be taken for the first time on appeal. A judicially noticed fact is conclusive in a civil case, but not in a criminal case - and jury is instructed accordingly. FRE governs only judicial notice of "adjudicative" facts (those relating to particular case). Legislative facts (those relating to legal reasoning and law-making), such as the rationale behind the spousal privilege, need not fit into these requirements. |
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Real (Demonstrative) Evidence
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Actual physical evidence addressed directly to the trier of fact. May be direct, circumstantial, original, or prepared (demonstrative).
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General Conditions of Admissibility - Real Evidence
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(1) Authentication - must be identified as what the proponent claims it to be, either by:
(a) testimony of a witness that she recognizes the object as what the proponent claims it is; or (b) Evidence that the object has been held in a substantially unbroken chain of possession. (2) Condition of Object - If the condition is significant, it must be shown in substantially the same condition at trial. (3) Balancing Test (Legal Relevance) - Some auxiliary policy or principle may outweigh the need to admit the real evidence. Such policies include physical inconvenience of bringing the object into the courtroom, indecency or impropriety, or undue prejudice. |
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Particular Types of Real Evidence
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(1) Reproductions and Explanatory Real Evidence - photographs, diagrams, maps, etc.
(2) Maps, Charts, Models, Etc - must be authenticated. (3) Exhibition of Child in Paternity Suits - to show whether he/she is the race of the putative father, but courts are divided as to whether this is admissible to show physical resemblance to the putative father. (4) Exhibition of Injuries (5) Jury View of the Scene (6) Demonstrations |
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Authentication of Documentary Evidence
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Proof of authentication must be sufficient to support a jury finding of genuineness.
May be submitted by pleadings or by stipulation. Evidence of authenticity includes admissions, eyewitness testimony, handwriting verification, ancient documents, reply letter doctrine, or in regard to photos, x-rays, and such, must prove that it's a correct representation (camera was working, etc) and, for x-rays, a chain of custody must be established. |
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Ancient Documents
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A document may be authenticated by evidence that it:
(1) is at least 20 years old; (2) is in such condition as to be free from suspicion as to authenticity; and (3) was found in a place where such a writing would likely be kept. |
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Reply Letter Doctrine
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A writing may be authenticated by evidence that it was written in response to a communication sent to the claimed author.
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Authentication of Oral Statements
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When a statement is admissible only if said by a particular person (e.g., admission by a party), authentication as to the identity of the speaker is required.
(1) Voice ID - 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. (2) Telephone Conversations - May be authenticated by one of the parties to the call testifying that he recognized the other party's voice, the speaker had knowledge of certain facts that only a particular person would have, he called particular person's number and a voice answered as that person or that person's residence, or he called a business and talked with the person answering the phone about matters relevant to the business. |
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Self-Authenticating Documents
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Certain writings are said to "prove themselves." Extrinsic evidence of authenticity is not required for the following:
(1) certified copies of public records, (2) official publications, (3) newspapers and periodicals, (4) trade inscriptions, (5) acknowledged documents, (6) commercial paper and related documents, and (7) certified business records. |
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Best Evidence Rule
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This rule is more accurately called the "original document rule." To prove the terms of a writing, including a recording, photograph, or X-ray, 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.
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Applicability of the Best Evidence Rule
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Applies to two classes of situations: (1) the writing is a legally operative or dispositive instrument, or (2) the knowledge of a witness concerning a fact results from having read it in the document.
Does NOT apply in the following situations: (1) The fact to be proved has an existence independent of any writing. (2) Writing is of minor importance to the controversy. (3) Doesn't apply to summaries of voluminous records (charts, summaries, reports). (4) Doesn't apply to public records. |
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Definitions of Original and Duplicate
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Original - the writing itself or any duplicate that is intended by the person executing it to have the same effect as an original.
Duplicate - an exact copy of an original, such as a carbon copy (admissible unless authenticity of the original is challenged or unfairness would result). |
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Admissibility of Secondary Evidence of Contacts
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If the original cannot be produced, may offer secondary evidence of its contents if a satisfactory explanation is given for the nonproduction of the original.
Satisfactory foundation: (1) Loss or destruction of the original; (2) The original is in possession of a third party outside the jurisdiction and is unobtainable; (3) The original is in possession of an adversary who, after due notice, fails to produce the original. Degrees of secondary evidence are abolished upon satisfactory foundation. A proponent may prove the contents of a writing, recording or photograph through the testimony, deposition, or written admission of the party against whom it is offered, and need not account for the nonproduction of the original. |
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Parol Evidence Rule
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If an agreement is reduced to writing, that writing is the agreement and hence constitutes the only evidence of it. Prior or contemporaneous negotiations or agreements are merged into the written agreement, and they are inadmissible to vary the terms of the writing.
(1) Rule doesn't apply in the following circumstances: (a) Incomplete or Ambiguous Contract (b) Reformation of Contract (c) Challenge to Validity of Contract Parol evidence rule only applies to negotiations prior to or at the time of the agreement. Parol evidence is admissible to show subsequent modification are discharge of the written contract. |
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Competency of Witnesses
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Must possess to some degree the four basic testimonial attributes: the capacity to observe, to recollect, to communicate, and to appreciate the obligation to speak truthfully.
FRE specifies these two limitations: (1) The witness must have PERSONAL knowledge of the matter about which he is to testify, and (2) The witness must declare he will testify truthfully. If a witness requires an interpreter, the interpreter must be qualified and take an oath to make a true translation. |
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Infancy and Competency of Witnesses
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Depends on the capacity and intelligence of the particular child as determined by the trial judge.
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Insanity and Competency of Witnesses
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An insane person may testify, provided he understands the obligation to speak truthfully and has the capacity to testify accurately.
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Can judges or jurors testify?
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Not if the judge is the judge presiding over that case, and not if the jurors are sitting for the case.
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Dead Man Acts
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Most states have these. Provides 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.
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Leading Questions
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Questions that suggest the answer desired. These are improper on direct examination, however permitted:
(1) On cross-examination; (2) To elicit preliminary or introductory matter; (3) When the witness needs aid to respond because of loss of memory, immaturity, or physical or mental weakness; or (4) When the witness is hostile. |
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Improper Questions and Answers
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Questions that are misleading, compound, argumentative, conclusionary, cumulative, unduly harassing or embarrassing, call for a narrative answer or speculation, or that assume facts not in evidence are improper and not admitted.
Answers that lack foundation or are nonresponsive may be stricken. |
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Use of Memoranda by Witness
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A witness cannot read her testimony from a prepared memorandum. However, a memorandum may be used in certain circumstances: refreshing memory, recorded recollection, or inspection and use on cross-examination.
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Recorded Recollection
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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. The foundation must include proof that:
(1) the witness at one time had personal knowledge of the facts in the writing; (2) the writing was made by the witness or under her direction, or it 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. |
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Opinion Testimony by Lay Witnesses
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Opinions by lay witnesses are generally inadmissible. However, there are many cases where no better evidence can be obtained, so it is admissible when it is:
(1) rationally based on the witness's perception; (2) helpful to a clear understanding of his testimony or helpful to the determination of a fact in issue, and (3) not based on scientific, technical, or other specialized knowledge. |
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Situations Where Opinions of Lay Witnesses Are Admissible
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Generally admissible with respect to:
(1) general appearance or condition of a person; (2) state of emotion of a person; (3) matters involving sense recognition; (4) voice or handwriting identification; (5) speed of a moving object; (6) value of his own services; (7) rational or irrational nature of another's conduct; and (8) intoxication of another. NOT admissible with regard to whether one acted as an agent or whether an agreement was made. |
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Opinion Testimony by Expert Witnesses
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Expert may state an opinion or conclusion provided:
(1) the subject matter is one where scientific, technical, or other specialized knowledge would assist the trier of fact; (2) the witness is qualified as an expert; (3) the expert possesses a reasonable probability regarding his opinion; and (4) the opinion is supported by a proper factual basis (personal observation, facts made known to expert at trial, or facts not known personally but supplied outside the courtroom and of a type reasonably relied on by experts in the particular field). |
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Authoritative Texts and Treatises
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Can be used to impeach experts, but also may be used as substantive evidence, subject to the following limitations:
(1) expert must be on the stand when an excerpt is read from a treatise; and (2) relevant portion is read into evidence but is not received as an exhibit. |
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Cross-Examination
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A matter of right in every trial of a disputed issue of fact, but the scope of cross-examination is frequently a matter of judicial discretion.
Generally limited to: (1) the scope of direct examination, including all reasonable inferences that may be drawn from it; and (2) testing the credibility of the witness. Cross-examiner may not impeach as to collateral matters. |
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Impeachment
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Under FRE, a witness may be impeached by ANY party, including the party calling him.
Generally, a party may not bolster or accredit the testimony of his witness until the witness has been impeached. |
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Impeachment Methods
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(1) Prior Inconsistent Statements - must lay proper foundation (even hearsay is admissible for this purpose).
(2) Bias or Interest - 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. (3) Proof of Conviction of a Crime - only these types of crime: those involving dishonesty or felonies (but judge may exclude). Juvenile, remote (more than 10 years old), or constitutional defective convictions are not admissible. No foundation required. (4) Bad Acts - only if act is probative or truthfulness (no extrinsic evidence permitted, though). (5) Opinion or Reputation Evidence as to Truthfulness of Witness (6) Sensory Deficiencies (that witness was so impaired that it is doubtful he could have perceived those facts. |
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Impeachment of Hearsay Declarant
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Under FRE, 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. In addition, the party against whom the out-of-court statement was offered may call the declarant as a witness and cross-examine him about the statement.
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Rehabilitation of Impeached Witness
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Methods:
(1) Explanation on redirect. (2) Good reputation for truth. (3) Prior consistent statement. |
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Objections
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Should be made after the question, but before the answer, if the question calls for inadmissible matter. Otherwise, a motion to strike must be made as soon as an answer emerges as inadmissible. At a deposition, objections to the form of a question, or to a testimonial privilege, should be made when the question is asked or it may be waived. Objections based on the substance of a question or answer may be postponed until the deposition is offered into evidence.
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General Objection
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One that does not state the grounds of the objection.
A sustained general objection will be upheld on appeal if there was any ground for the objection. An overruled general objection will be upheld on appeal unless the evidence was not admissible under any circumstances for any purpose. |
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Specific Objection
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One which states the reason for the objection.
A sustained specific objection will be upheld on appeal only if the ground stated was correct or if the evidence excluded was not competent and could not be made so. |
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Partially Introduced Transaction
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Where part of a conversation, act, or writing is introduced into evidence, the adverse party may require the proponent of the evidence to introduce any other part that ought in fairness to be considered.
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Motion to Strike - Unresponsive Answers
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Examining counsel may move to strike an unresponsive answer, but opposing counsel may NOT.
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Exceptions
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It is not necessary for a party to "except" from a trial ruling in order to preserve the issue for appeal in most states.
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Offers of Proof
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An offer of proof may be made, disclosing the nature, purpose, and admissibility of rejected evidence, to persuade the trial court to hear the evidence and preserve the evidence for review on appeal. It may be made by witness testimony, a lawyer's narration, or tangible evidence marked and offered.
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Testimonial Privileges
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Permit one to refuse to disclose, and prohibit others from disclosing, certain confidential information in judicial proceedings.
FRE has no specific privilege provisions - governed by common law principles. Federal courts currently recognize: (1) attorney-client privilege; (2) spousal communications privilege; and (3) psychotherapist/social worker-client privilege. |
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General Privilege Considerations
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A privilege is personal to the holder. Sometimes the person with whom the confidence was shared may assert the privilege on the holder's behalf.
To be privileged, a communication must be shown or presumed to have been made in confidence. Neither counsel for the parties nor the judge may comment on a claim of privilege. Any privilege is waived by: (1) failure to claim the privilege; (2) voluntary disclosure of the privileged matter by the privilege holder; or (3) contractual provision waiving in advance the right to claim a privilege. Privilege based on confidential communications is not abrogated because it was overheard by someone whose presence is unknown to the parties. Under the modern view, in the absence of negligence by the one claiming privilege, even the eavesdropper would be prohibited from testifying. |
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Attorney-Client Privilege
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Client must be seeking the professional services of the attorney at the time of the communication. Corporations are clients within the meaning of privilege.
Communication must be confidential, but representatives of the attorney or client may be present without destroying the privilege; otherwise, communications made in the known presence and hearing of a stranger are not privileged. Communications made to third persons (e.g., secretaries, etc) are confidential and covered by the privilege if necessary to transmit information between the attorney and client. Client holds privilege and only she may waive it. Attorney-client privilege applies indefinitely - even after client's death. Documents prepared by attorney for his own use in a case are not protected by privilege, but they are not subject to discovery except in cases of necessity. |
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Exceptions to Attorney-Client Privilege
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No privilege in these three situations:
(1) Attorney's services were sought to aid in the planning or commission of something the client should have known was a crime or fraud; (2) Regarding communication relevant to an issue between parties claiming through the same deceased client; and (3) For a communication relevant to an issue of breach of duty in a dispute against attorney and client. |
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Physician-Patient Privilege
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Belongs to the patient, and he may decide to claim or waive it. Protected, provided that:
(1) A professional relationship exists; (2) Information is acquired while attending the patient in the course of treatment; and (3) Information is necessary for treatment (non-medical information is not privileged). |
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When Physician-Patient Privilege Does Not Apply
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The physician-patient privilege does not apply (or is impliedly waived) if:
(1) The patient puts his physical condition in issue (e.g., personal injury suit); (2) Physician's assistance was sought to aid wrongdoing (e.g., commission of a crime or tort); (3) Communication is relevant to an issue of breach of duty in a dispute between the physician and patient; (4) Patient agreed by contract (e.g., insurance policy) to waive the privilege; or (5) It is a federal case applying the federal law of privilege. In some states, privilege applies in both civil and criminal cases, while in others it cannot be invoked in criminal cases. In still other states, privilege is denied in felony cases, and in a few states, only denied in homicide cases. |
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Psychotherapist/Social Worker-Client Privilege
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Federal courts and virtually all of the states recognize a privilege for this type of confidential communication. In most particulars, it operates in the same way as attorney-client privilege.
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Husband-Wife Privilege
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Two types of spousal privileges:
(1) Spousal Immunity (2) Privilege for Confidential Marital Communications Neither privilege applies in actions between the spouses or in cases involving crimes against the testifying spouse or either spouse's children. |
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Spousal Immunity
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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. Must be a valid marriage for the privilege to apply, and the privilege only lasts during marriage.
Privilege belongs to the witness-spouse in federal court. Thus, the witness-spouse may choose to testify. However, most state courts say the privilege belongs to the party-spouse. |
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Privilege for Confidential Marital Communications
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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. Divorce will not terminate the privilege, but communications after divorce are not privileged. In addition, the communication must be made in reliance upon the intimacy of the marital relationship (confidential).
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Clergy or Accountant Privilege
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A privilege exists for statements made to a member of the clergy or an accountant, the elements of which are very similar to the attorney-client privilege.
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Professional Journalist Privilege
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There is no constitutional right for a professional journalist to protect his source of information, so any privilege in this area is limited to individual state statutes on the subject.
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Governmental Privileges
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Official information not otherwise open to the public or the identity of an informer may be protected by a privilege for the government. No privilege exists if the identity of the informer is voluntarily disclosed by a holder of the privilege.
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Exclusion and Sequestration of Witnesses
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Upon a party's request, the trial judge will order witnesses excluded from the courtroom. The judge may also do this on his own motion. The judge, however, may not exclude:
(1) a party or a designated officer or employee of a party; (2) a person whose presence is essential to the presentation of a party's case; or (3) a person statutorily authorized to be present. (Invoking "the Rule") |
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Hearsay Rule
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FRE 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 applies, the evidence must be excluded upon appropriate objection. The reason for excluding is that the adverse party was denied the opportunity to cross-examine the declarant. |
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Hearsay on Hearsay (or Double Hearsay)
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An out-of-court statement that incorporates other hearsay. Admissible only if each part of the statement falls within an exception to the rule. If any part is inadmissible, the entire statement is inadmissible.
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"Statement"
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For purposes of the hearsay rule, a "statement" is an oral or written assertion or nonverbal conduct intended as an assertion (e.g., a nod of the head).
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"Offered to Prove the Truth of the Matter"
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A statement is not hearsay if offered for any purpose other than to prove the truth of the matter asserted. The following statements are not hearsay:
(1) Verbal acts or legally operative facts (e.g., words of contract; defamatory words); (2) Statements offered to show their effect on the hearer or reader (e.g., to prove notice in a negligence case); and (3) Statements offered as circumstantial evidence of the declarant's state of mind (e.g., evidence of insanity or knowledge). |
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Non-Human Declarations
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There is no such thing as animal or machine hearsay; there must be an out-of-court statement by a person. Thus, testimony about what a radar gun "said" or what a drug-sniffing dog did is NOT HEARSAY.
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Prior Statements by Witness
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Not hearsay if:
(1) The prior statement is inconsistent with the declarant's in-court testimony and was given under oath at a prior proceeding; (2) 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 motive (and the statement was made before any motive to lie or exaggerate arose); or (3) The prior statement is one of identification of a person made after perceiving him. |
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Admissions by Party-Opponent
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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. Admissions of a party-opponent are NOT HEARSAY under the FRE.
To be an admission, the statement need not have been against the declarant's interest when made, and may even be in the form of an opinion. Personal knowledge if not required; the admission may be predicated on hearsay. |
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Judicial and Extrajudicial Admissions
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Formal judicial admissions (e.g., in pleadings, stipulations, etc.) are conclusive. Information judicial admissions made during testimony and extrajudicial (evidentiary) admissions are not conclusive and can be explained.
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Adoptive Admissions
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A party may make an admission by expressly or impliedly adopting or acquiescing in the statement of another.
Silence - If a reasonable person would have responded, and a party remains silent in the face of accusatory statements, his silence may be considered an implied admission. Silence is treated as an admission only if: (1) The party heard and understood the statement; (2) The party was physically and mentally capable of denying the statement; and (3) A reasonable person would have denied the accusation. Note that silence in the face of accusations by police in a criminal case is almost NEVER considered an admission of a crime. |
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Vicarious Admissions
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(1) Co-Parties - Admissions of a party are not receivable against her co-parties merely because they happen to be joined as parties.
(2) Principal-Agent - Under 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. (3) Partners - After partnership shown to exist, an admission of one partner relating to matters within the scope of the partnership business is binding upon her co-partners. (4) Co-Conspirators - 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. However, testimonial admissions of a conspirator are admissible against another conspirator only if there was an opportunity to cross-examine the hearsay declarant. (5) Joint Tenants - In most state courts, admissions of each joint owner are admissible against the other. Similarly, admissions of a former owner of real property made at the time she held title are admissible against those claiming under her. Not in the FRE - but might try statements against interest. |
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Hearsay Exceptions - Declarant Unavailable
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(1) Former Testimony
(2) Statements Against Interest (3) Dying Declarations (4) Statements of Personal or Family History (5) Statements Offered Against Party Procuring Declarant's Unavailability |
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"Unavailable"
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A declarant is unavailable if he:
(1) is exempt from testifying because of privilege; (2) refuses to testify concerning the statement despite a court order; (3) testifies to lack of memory of the subject matter of the statement; (4) is unable to testify due to death or physical or mental illness; or (5) is absent (beyond the reach of the court's subpoena), and the proponent is unable to procure his attendance by reasonable means. |
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Former Testimony (Hearsay Exception - Declarant Unavailable)
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The testimony of a now-unavailable witness, given at another hearing or deposition, is admissible if:
(1) The party against whom the testimony is offered was a party or in privity (e.g., grantor-grantee, life tenant-remainderman) with a party in the former action; (2) The former action involved the same subject matter (causes of action need not be identical); (3) The testimony was given under oath; and (4) The party against whom the testimony is offered had an opportunity at the prior proceeding to develop the declarant's testimony (i.e., by direct, cross, or redirect). |
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Statements Against Interest (Hearsay Exception - Declarant Unavailable)
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Statement of a person, now unavailable as a witness, against that person's pecuniary, proprietary, or penal interest WHEN MADE, as well as collateral facts contained in the statement, is admissible under the statement against interest exception to the hearsay rule. The declarant must also have had personal knowledge of the fact, and must have been aware that the statement was against her interest when she made it.
Note that when a criminal defendant wishes to show her innocence by introducing another's statements admitting to the crime, corroborating circumstances indicating the trustworthiness of the statements are required. "Statement" means single remark - the ONLY remarks covered by this exceptions are those that inculpate the declarant, and not any collateral remarks. |
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Dying Declarations (Hearsay Exception - Declarant Unavailable)
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In a homicide prosecution or a civil action, a statement made by a now unavailable declarant is inadmissible if:
(1) The declarant believed his death was imminent (he need not actually die); and (2) The statement concerned the cause or circumstances of what he believed to be his impending death. Traditional rule was that the declarant had to ultimately die of the injury and the statement could ONLY be used in homicide prosecutions. |
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Statements of Personal or Family History (Hearsay Exception - Declarant Unavailable)
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Statements by a now unavailable declarant concerning births, marriages, divorces, relationship, genealogical status, etc., are admissible provided that:
(1) The declarant is a member of the family in question or intimately associated with it; and (2) The statements are based on the declarant's personal knowledge of the facts or her knowledge of family reputation. |
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Statements Offered Against Party Procuring Declarant's Unavailability (Hearsay Exception - Declarant Unavailable)
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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 declarant's unavailability.
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Hearsay Exceptions - Availability Immaterial
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(1) Present State of Mind
(2) Excited Utterances (3) Present Sense Impressions (4) Declarations of Physical Condition (5) Business Records (6) Past Recollection Recorded (7) Official Records and Other Official Writings (8) Ancient Documents and Documents Affecting Property Interests (9) Learned Treatises (10) Reputation (11) Family Records (12) Market Reports |
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Present State of Mind (Hearsay Exception - Availability Immaterial)
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A statement of a declarant's then-existing state of mind, emotion, sensation, or physical condition is admissible. It is usually offered to establish a person's intent or as circumstantial evidence that the intent was carried out. Except as to certain facts concerning the declarant's will, however, a statement of memory or belief is not admissible to prove the truth of the fact remembered or believed.
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Excited Utterance (Hearsay Exception - Availability Immaterial)
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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.
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Present Sense Impressions (Hearsay Exception - Availability Immaterial)
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A spontaneous declaration of present bodily condition is admissible as an exception to the hearsay rule even though not made to a physician.
Generally, declarations of past physical condition are inadmissible hearsay. Under FRE, however, these declarations are admissible if made to medical personnel to assist in diagnosing or treating the condition. Even declarations about the cause or source of the condition are admissible if pertinent to diagnosis or treatment. |
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Business Records (Hearsay Exception - Availability Immaterial)
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Any writing or record made as a memorandum of any act or transaction is admissible in evidence as proof of that act or transaction. Under FRE and modern statutes, the main requirements for admissibility are as follows:
(1) Business - includes every association, profession, occupation, or calling of any kind, whether or not conducted for profit. (2) Entry Made in Regular Course of Business - must appear that the record was made in the course of a regularly conducted business activity, and that it was customary to make the type of entry involved. (3) Personal Knowledge - Must consist of matters within the personal knowledge of the entrant or within the knowledge of someone with a duty to transmit such matters to the entrant. (4) Entry Made Near Time of Event (5) Authentication - May be established by the custodian testifying that the record is a business record or certifying in writing as such. |
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Past Recollection Recorded (Hearsay Exception - Availability Immaterial)
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If the 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.
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Official Records and Other Official Writings (Hearsay Exception - Availability Immaterial)
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Public Records and Reports - records setting forth the activities of the office/agency, recordings of matters observed pursuant to a duty imposed by law (except police observations in criminal cases), or in civil actions and against the government in criminal cases, records of factual findings resulting from an investigation authorized by law are all admissible. 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.
Records of Vital Statistics - Admissible if the report was made to a public officer pursuant to requirements of law. Statement of Absence of Public Record - admissible to prove that the matter was not recorded, or inferentially that the matter did not occur. Judgments - Certified copy of judgment is always admissible as proof that a judgment was entered. Felony convictions admissible, but prior criminal acquittals are not. Civil judgments are clearly inadmissible in subsequent criminal proceedings, and generally inadmissible in subsequent civil proceedings. |
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Ancient Documents and Documents Affecting Property Interests (Hearsay Exception - Availability Immaterial)
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Under FRE, statements in any authenticated document 20 years old or more are admissible, as are statements in any document affecting an interest in property, regardless of age.
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Learned Treatises (Hearsay Exception - Availability Immaterial)
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Treatises are admissible as substantive proof under the FRE if:
(1) Called to the attention of, or relied upon by, an expert witness; and (2) Established as reliable authority by the testimony of that witness, other expert testimony, or judicial notice. |
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Reputation (Hearsay Exception - Availability Immaterial)
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Reputation evidence is admissible, under several exceptions to the hearsay rule, as evidence of the following:
(1) character; (2) personal or family history; (3) land boundaries; and (4) a community's general history. |
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Family Records (Hearsay Exception - Availability Immaterial)
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Statements of fact concerning personal or family history contained in family Bibles, jewelry engravings, genealogies, tombstone engravings, etc., are admissible.
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Market Reports (Hearsay Exception - Availability Immaterial)
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Market reports and other published compilations are admissible if generally used and relied upon by the public or by persons in a particular occupation.
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Residual "Catch-All" Exception to Hearsay
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For a hearsay statement that is not covered by a specific exception to be admitted, the FRE provide a catch-all exception, which requires:
(1) That the hearsay statement possess circumstantial guarantees of trustworthiness; (2) That the statement be strictly necessary; and (3) That notice be given to the adversary as to the nature of the statement. |
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Burdens of Proof
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The burden of proof encompasses the burden of producing or going forward with the evidence, and the burden of persuasion.
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Burden of Producing Evidence
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The party who has the burden of pleading usually has the burden of producing or going forward with evidence sufficient to make out a prima facie case (i.e., create a fact question of issue for the trier of fact). Once the party has satisfied the burden of going forward with evidence, it is incumbent upon the other side to come forward with evidence to rebut the accepted evidence.
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Burden of Persuasion (Proof)
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After the parties have sustained their burden of production of evidence, the question is whether the party with the burden of persuasion has satisfied it. The burden of persuasion for civil cases is usually by a preponderance of the evidence (more probably true than not true), although some civil cases require proof of clear and convincing evidence (high probability). The burden of persuasion for criminal cases is beyond a reasonable doubt.
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Presumptions
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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.
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Effect of Presumption
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A presumption operates, until rebutted, to shift the burden of production to the party against whom the presumption operates.
REMEMBER: This does NOT shift the burden of persuasion! |
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Rebutting a Presumption
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A presumption is overcome or destroyed when the adversary produces some evidence contradicting the presumed fact. Once sufficient contrary evidence is admitted, the presumption is of no force or effect.
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Permissible Inferences
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May allow the party to meet his burden of production (e.g., make a prima facie case), but does not shift the burden to the adversary. Examples include the inference of negligence arising from res ipsa loquitur, the inference that destroyed evidence was unfavorable to the spoliator, and the inference of undue influence when a will's drafter is also the principal beneficiary.
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"Presumptions" in Criminal Cases
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The presumption of innocence in criminal cases is merely a permissible inference. The burden of production NEVER shifts to the accused.
The judge cannot instruct the jury that it MUST find a presumed fact against the accused; he must instruct them that they may regard the basic facts as sufficient evidence of the presumed fact. |
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True Presumptions
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The rebuttable type - not to be confused with inferences and rules of substantive law.
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Conclusive Presumptions
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Because it cannot be rebutted, a conclusive presumption (e.g., that a child under age seven cannot commit a crime) is really a rule of substantive law.
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Specific Presumptions
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Common rebuttable presumptions:
(1) Legitimacy - Every person is presumed to be legitimate. (2) Against Suicide - When cause of death is in dispute, there is a presumption in civil cases that it was not suicide. (3) Sanity - Every person is presumed sane in civil and criminal cases until the contrary is shown. (4) Death from Absence - If a person is unexplainably absent for a continuous period of seven years and he has not been heard from, he is presumed dead. (5) Ownership of Car (Agent Driver) - Proof of ownership of a motor vehicle creates the presumption that the owner was the driver or that the driver was the owner's agent. (6) Chastity - Every person is presumed chaste and virtuous. (7) Regularity - It is presumed that person acting in an official office are properly performing their duties. (8) Continuance - Proof of the existence of a person or condition at a given time raises a presumption that it continued for as long as it is usual with things of that nature. (9) Mail Delivery - A letter, properly addressed, stamped, and mailed, is presumed to have been delivered. (10) Solvency - A person is presumed solvent, and every debt is presumed collectible. (11) Bailee's Negligence - Proof of delivery of goods in good condition to a bailee and failure of the bailee to return the goods in the same condition create the presumption that the bailee was negligent. (12) Marriage - Upon proof of a marriage ceremony, a marriage is presumed valid. |
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Conflicting Presumptions
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When two or more conflicting presumptions arise, the judge should apply the presumption founded on the weightier considerations of policy and logic.
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Responsibilities of Judge and Jury
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Judge - Questions of Law
Jury - Questions of Fact |
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Preliminary Facts Decided by Jury
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Things like agency, authenticity of a document, credibility of a witness, and personal knowledge.
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Preliminary Facts Decided by Judge
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Facts affecting the competency of the evidence must be determined by the trial judge. Requirements for hearsay exceptions, privileges, and expert testimony, as well as mental competence, must also be decided by the judge.
FRE allows trial judge to consider any relevant evidence, even though not otherwise admissible. Most state courts provide that inadmissible evidence may not be used, though. Discretion of the trial judge is used to determine whether the jury should be excused during the determination. |
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Does testimony by the accused as to a preliminary matter waive the privilege against self-incrimination?
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No - an accused may testify on any preliminary matter without subjecting herself to testifying at trial.
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Judicial Powers
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Judge may call and interrogate witnesses on her own initiative.
A judge may comment on the weight of the evidence in federal courts, but generally not in state courts. A trial judge has an obligation to rule promptly on counsel's evidentiary objections and, upon request, to state the grounds for her rulings. |
