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PMBR MBE FC Evidence

QuestionAnswer
Approach to Evidence Questions • Underline the Cause of Action - Civil or Criminal? • Situate the Proceeding - Direct or Redirect - Party or Witness • Purpose for Evidence - Substantive use - Impeachment use
Relevant Evidence Evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.
Admissions • Statement of a party -Oral or Written Assertion/Conduct • Used against them by their opponent • Can be anything (words, letters, documents)
FRE 1002: Best Evidence Rule • To prove the contents of a writing (recording, photograph, X ray) the original must be produced unless shown to be unavailable • Rule applies where contents are in issue: i.e where the testimony is reliant on the writing, not on personal knowledge
Preliminary Questions of Admissibility Questions concerning qualification of a person to be a witness, existence of a privilege, or admissibility of evidence shall be determined by the court.
Burdens • Civil Action -Burden of proof on Plaintiff -Burden of persuasion- preponderance of the Evidence • Criminal Action -Burden of proof on Prosecution -Burden of persuasion- beyond a reasonable doubt
Habit Evidence Evidence of the habit of a person, or the routine practice of an organization is admissible to prove conduct. Corroboration is not required.
Subsequent Remedial Measures Evidence of subsequent remedial measures is inadmissible to prove negligence. Exceptions: Ownership Control
Settlement Offer Offers to settle claims in “dispute” are inadmissible. Admissions are NOT Severed (inadmissible)
Offers to Pay Meds Offers to pay medical expenses of another are inadmissible. Admissions ARE Severed (admissible)
Character Evidence in Criminal Cases- Character of Defendant Defendant may open the door with reputation or opinion evidence (not specific acts) of his good character to prove his innocence and the prosecution may so rebut.
Character Evidence in Criminal Cases- Character of Victim Where evidence of a pertinent trait of character of the alleged victim is offered by the accused, the prosecution may rebut the same way.
Character Evidence in Civil Cases Defamation Negligent Hiring Negligence Entrustment Child Custody
Character Approach Criminal Civil Door Opened? Character in Issue? Trait? Big 4? Reputation/Opinion R, O, SA
4 Ways to Impeach • Bias/Prejudice • Prior Inconsistent Statement • Sensory Defects • Character to Impeach
Bias/Prejudice • Bias of a witness is always considered relevant. • A witness can be impeached by showing that he has a reason for lying/misrepresenting facts, because he is -biased in favor of a party, -prejudiced against a party, or -has an interest in the outco
Prior Inconsistent Statement Admissible substantively in 3 cases: 1. If “sworn” under FRE 801(d)(1) 2. As an admission under FRE 801(d)(2), or 3. If a Hearsay Exception applies
Sensory Defects Any sensory or mental defect that might affect a witness’s capacity to observe, recall, or relate the events about which the witness has testified is admissible to impeach.
Prior Bad Act Impeachment •Reputation or opinion testimony about the witness involving truthfulness •Questions regarding specific instances of conduct allowed on cross-examination
Convictions to Impeach •Felony conviction •Convictions involving dishonesty or false statements
FRE 404 (b): “Mimic Rule” Evidence of other crimes/wrongs/acts is not admissible to prove the character of a person in order to show action in conformity therewith. But may be admissible 4 other purposes: M otive I ntent M bsence of Mistake/Knowledge I dentity C ommon Plan/S
Approach to Hearsay 1. Isolate the statement 2. Determine who is the declarant 3. Purpose for which the evidence is being offered: - for its truth = hearsay - not for its truth= not hearsay 4. Apply the hearsay exceptions
Effect on Listener FRE 803 (3) - not hearsay Not Hearsay Circumstantial evidence offered to show: - Knowledge - Intent - Attitude - Belief !! Of the declarant or of the listener
Effect on Listener FRE 803 (3) - Hearsay Exception Statement of then existing state of mind or physical condition - Intent - Design - Plan - Motive !! Offered for its truth
Statement Made for Medical Diagnosis or Treatment Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or external source thereof insofar as reasonably pertinent to diagnosis or treatment.
FRE 803 (6): Business Record • Report or record concerning act or event • Made at or near the time • By a person with knowledge • Kept in the regular course of business
Past Recollection Recorded • the witness once had personal knowledge of the writing; • now forgets, and showing doesn't jog memory; • the writing was made/adopted by the witness; • was made when the event was fresh in the memory • witness say: when made, the writing was accura
Absence of Entry in a Business Record Lack of a record to prove that a transaction or occurrence had not taken place, is admissible if it was the regular practice of the business to record such events if they had actually occurred
FRE 803 (2): Excited Utterance Statement relating to a startling event made while declarant was under the stress of excitement caused by the event.
FRE 804 (b)(2): Dying Declaration 1. Statement must concern cause or circumstances of death 2. Unavailable declarant 3. Criminal homicide or any civil case 4. Declarant’s belief of imminent death
The Confrontation Clause requires that Confrontation Clause • In a criminal case • Where the declarant is unavailable “Testimonial” evidence is inadmissible unless defendant is given a prior opportunity to cross-examine the declarant.
Davis v. Washington v. Hammon v. Indiana Davis v. Washington -Not Testimonial- Primary purpose is to obtain police assistance to meet an ongoing emergency. Hammon v. Indiana -Testimonial- Primary purpose of the interrogation is to establish or prove past events relevant to later prosecution.
FRE 804 (b)(3): Declaration Against Interest Statement of an: 1. Unavailable 2. Non-party (generally) 3. Against interest when made (penal, pecuniary or proprietary)
FRE 804 (b)(1): Former Testimony • Testimony from the same or different proceeding, or in a deposition • Unavailable declarant • Opportunity and similar motive to develop the testimony on direct, cross, or redirect
FRE 804 (b)(4): Statement of Pedigree A statement concerning declarant’s own relationship by blood, adoption, or marriage or other similar fact of personal or family history.
Leading Questions Appropriate when: • On Cross • Hostile or adverse witnesses • Questioning children • Refreshing a witness • Preliminary background matters
Spousal Provelege 1. Protects communications Before AND during marriage(impressions/observations) 2. Privilege lost at divorce 3. Criminal cases ONLY 4. Holder: - Common Law - Party spouse - Federal Courts (Majority) - Witness spouse
Marital Privilege 1. Protects communications only DURING marriage. 2. Privilege survives divorce. 3. Both Civil and Criminal 4. Holder: Both Spouses
Attorney Client Privilege • Client-Atty communications are inadmissible. • Rationale- By assuring confidentiality the privilege encourages clients to make "full and frank" disclosures to their attorneys who are then better able to provide candid advice and effective representatio
Opinion Testimony Lay witnesses may offer opinion testimony if: - Opinions must be based on first-hand knowledge or perception; and - Helpful to the finder of fact
Created by: shigal