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Evidence
| Question | Answer |
|---|---|
| Relevant/Competent Evidence | Relevant evidence tends to prove (probativeness) any fact of consequence to the action (is material). Evidence is competent if it doesn't violate any exclusionary rule. |
| Relevant Similar Occurrences | a) Causation b) Prior False Claims or Same Bodily Injury c) Similar Accidents/Injuries Caused by Same Event d) Previous Similar Acts to Show Intent e) Rebutting Impossibility f) Sales of Similar Properties g) Habit h) Biz. Routine i) Industry Cus |
| Discretionary Exclusion of Relevant Evidence | OK if probative value substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading jury, undue delay or waste of time. Unfair surprise not a valid ground for exclusion. |
| Exclusion of Relevant Evidence for Public Policy Reasons | 1) Liability Insurance 2) Subsequent Remedial Measures 3) Settlement Offers and Withdrawn Guilty Pleas 4) Offers to Pay Medical Expenses |
| Excluded (Policy): Liability Insurance | Excluded to show negligence or ability to pay. Admissible for 1) to prove ownership or control 2) to impeach 3) as part of an admission. |
| Excluded (Policy): Subsequent Remedial Measures | Excluded to show negligence, culpable conduct, a defect, or need for warning. Admissible to 1) Prove ownership 2) Rebut a claim precaution wasn't feasible 3) Prove opposing party had destroyed evidence. |
| Excluded (Policy): Settlement Offers / Withdrawn Guilty Pleas | Compromise or offer to compromise not admissible to prove liability for a disputed claim (validity or amount). Not even direct admissions of guilt. Must be at least indication a party will make a claim; that claim must be in dispute as to liability/amount |
| Excluded (Policy): Offers to Pay Medical Expenses | Payments or offers to pay are inadmissible. But any accompanying admissions of fact are admissible. |
| Character Evidence: When is it Admissible? | 1) To prove character as ultimate issue, or 2) In some cases to serve as circumstantial evidence of how person probably acted |
| Character Evidence: Civil Cases | Generally not admissible by either party to prove conduct of any person. |
| Character Evidence: Criminal Cases | Generally only defense can initiate. Can testify to reputation or opinion. This puts witness credibility in question (as well as defendant character). |
| Character Evidence: Criminal Cases: Prosecution Rebuttal | 1) Can cross-exam character witness, either basis for testimony or whether they've heard (any) instances of D misconduct. No extrinsic evidence of D misconduct allowed. 2) Can call witnesses to testify for D's bad reputation/opinion. |
| Character Evidence: Criminal Cases: Victim (non rape) | D can show reputation or opinion on victim if relevant to show D innocence. Once door opened, P can use reputation/opinion for 1) victim's good character or for 2) D's bad character for the same trait. |
| Character Evidence: Criminal Cases: Victim (rape) | Generally inadmissible. In criminal cases, can use behavior to show someone other than D is source of semen, injury, etc; specific sexual behavior between victim and D admissible by P for any reason and by D to show consent. |
| Character Evidence: Civil Cases: Victim (rape) | Evidence admissible if not otherwise excluded and probative value substantially outweighs danger of harm to victim / unfair prejudice. |
| Character Evidence: Criminal Homicide: Self-defense: Victim | If D pleads self-defense and shows any evidence of victim being first aggressor, that opens the door to victim's good character for peacefulness. Doesn't matter if D has introduced evidence on victim's character for violence. |
| Character Evidence: Specific Acts of Misconduct | Admissible if Independently Relevant (to issue other than disposition to commit crime). MIMIC: Motive, Intent, Mistake, Identity, Common scheme Must be sufficient evidence to find D committed prior act, and not unfairly prejudice jury. |
| Character Evidence: Prior Acts of Sexual Assault / Child Molestation | Admissible if D accused of these crimes. Party to introduce must disclose so 15 days before trial. |
| Judicial Notice | Civil: fact is conclusive. Criminal: jury may accept as conclusive, not required to. Court must take notice of federal and state law; may take notice of municipal ordinance, private acts/resolutions, foreign laws. |
| Real Evidence: Admissibility | Must be authenticated - either a witness testifying she recognizes the object as what it's claimed to be or evidence of unbroken chain of possession. If condition significant, must be in substantially same condition. Balancing test for relevance. |
| Real Evidence: Some Examples | 1) Reproductions/Explanatory Evidence (photos, maps, diagrams...) OK but usually not admitted into evidence. 2) Maps, charts, models - need authentication 3) Showing child - paternity suit 4) Showing injuries 5) Jury view of scene 6) Demonstrations |
| Documentary Evidence: Authentication: Admission | Party who evidence offered against admits authenticity or acts upon it as authentic |
| Documentary Evidence: Authentication: Eyewitness Testimony | Someone who sees it executed or hears it acknowledged testifies |
| Documentary Evidence: Authentication: Handwriting Verifications | Can be a a) nonexpert with personal knowledge b) expert who's compared writing to samples c) trier of fact comparing samples. A non-expert without personal handwriting knowledge can't become familiar for purpose of testifying. |
| Documentary Evidence: Authentication: Ancient Documents | 1) Document at least 20 years old 2) In condition as to be free from suspicion to authenticity 3) Was found in a place where such a writing would be kept |
| Documentary Evidence: Authentication: Reply Letter Doctrine | A writing may be authenticated with evidence showing it was a reply to a communication sent to the claimed author |
| Documentary Evidence: Authentication: Photographs | Generally must be identified by a witness as an accurate portrayal of facts relevant to issue, anyone familiar with that scene. An unattended camera can be authenticated by showing it was working properly. |
| Documentary Evidence: Authentication: X-ray | To authenticate, must show process used was accurate, machine was working, technician was qualified and also show chain of custody of X-ray. |
| Documentary Evidence: Authentication: Voice | Voice can be ID'ed by anyone who's heard the voice at any time, including during litigation. |
| Documentary Evidence: Authentication: Telephone Conversations | Statements made during conversation can be authenticated by a party to the call who testifies 1) recognized other person's voice 2) speaker knew facts only particular person would 3) called particular person's number and someone answered as him (or a b |
| Documentary Evidence: Authentication: Self-Authenticating Documents | 1) Certified copies of public records 2) official publications 3) newspapers/periodicals 4) trade inscriptions 5) acknowledged documents 6) commercial paper 7) certified business records |
| Best Evidence Rule | To prove the terms of a writing (including recording or X-ray), original must be produced; secondary evidence only OK if original unavailable. Applies when 1) writing is legally operative or 2) a witness's knowledge is from reading the document. |
| Best Evidence Rule: Admissibility of Secondary Evidence (when is it OK?) | 1) Loss or destruction of the original 2) 3rd party has the document outside the jurisdiction + unobtainable OR 3) An adversary has document, fails to produce it after due notice. OR can prove contents by admission of party writing is offered against |
| Competency of Witness | Witness must have personal knowledge of the matter and declare he will testify truthfully. Infancy: Judge determines capacity to testify. Insanity: Must understand obligation for truth and have capacity to testify accurately. Judge/jury can't testify. |
| Form of Examination: Leading Questions | OK only on: 1) Cross-examination, 2) Eliciting preliminary matters, 3) Witness needs aid for memory loss, etc., 4) Witness is hostile. |
| Form of Examination: Improper Q&A | Questions can't be misleading, compound, argumentative, conclusionary, harassing, or speculation. Answers without foundation (personal knowledge) or non-responsive can be stricken. |
| Form of Examination: Use of Memoranda by Witness | Generally can't read testimony, except: 1) Present Recollection Revived 2) Past Recollection Recorded An adverse party can have writing produced at trial and cross-examine witness thereon. |
| Form of Examination: Present Recollection Revived (Not Hearsay) | Witness can use any writing to refresh her own current memory. May not read from writing and writing isn't entered into evidence (so no hearsay problem). |
| Form of Examination: Past Recollection Recorded (Hearsay Exception) | A witness can read writing into evidence if: 1) Witness had personal knowledge of facts in writing at one time 2) Writing made or adopted by witness 3) Writing timely made with matters fresh 4) Writing accurate 5) Witness has insufficient recollecti |
| Opinion Testimony of Lay Witness, Generally | Generally Inadmissible, unless 1) rationally based on witness perception 2) helpful to a clear understanding of his testimony or to determining a fact in issue, and 3) not based on scientific or specialized knowledge |
| Opinion Testimony of Lay Witness, Admissible Situations | Opinion Admissible for 1) The general appearance/condition of a person, 2) State of emotion of a person, 3) A sense recognition, 4) Voice or handwriting, 5) Speed of an object, 6) Value of his services, 7) Rationality of another's conduct 8) Intox |
| Opinion Testimony of Expert Witnesses | 1) Subject matter is one where specialized knowledge would help trier of fact 2) Witness is qualified 3) Expert has reasonable probability about his opinion 4) Has proper factual basis |
| Opinion Testimony of Expert Witnesses: Ultimate Issues | OK, except in a criminal trial where the defendant's mental state constitutes an element of the crime or defense - then can't state an opinion on whether accused had that mental state. |
| Opinion Testimony of Expert Witnesses: Texts/Treatises | Expert Witness can be cross-examined using an excerpt from a determined reliable authority but 1) an expert must be on stand when reading from treatise, and 2) relevant portion read into evidence but not made an exhibit. |
| Limits on Cross-Examination | Limited to 1) scope of direct examination and 2) testing witness credibility. Examiner is bound by witness response to collateral matters (no extrinsic evidence). Certain impeachment matters (bias, interest, a conviction) allow extrinsic evidence. |
| Impeachment Basics | A witness can be impeached by any party. A party may not bolster testimony of his witness until witness has been impeached. But you can show evidence of prior ID or a timely complaint. |
| Impeachment: Prior Inconsistent Statement | Prove by cross or extrinsic evidence. Needs foundation (witness has some opportunity to explain inconsistency, whenever). Don't need foundation for hearsay declarants. This is hearsay, only admissible to impeach, unless prior statement made under oath. |
| Impeachment: Bias or Interest | Foundation: must first be asked about facts that show bias. Cross-exam or extrinsic evidence. |
| Impeachment: Conviction of a Crime | 1) Any crime (felony or misdemeanor) involving dishonesty. 2) Felony not involving dishonesty. Court can exclude if witness is: -Criminal D and P hasn't shown probative>bias -Other witness and court says probative<bias No juvie or 10+ yr. old convicti |
| Impeachment: Bad Acts | Can ask witness about his prior bad acts that are probative of truthfulness (in good faith only). No extrinsic evidence allowed (ask on cross only). |
| Impeachment: Opinion/Reputation Evidence for Truthfulness | An impeaching witness can state his own opinion as to character of the witness for truthfulness. Can be evidence in community or business circles. |
| Impeachment: Sensory Deficiencies | Cross or extrinsic evidence OK; a showing that witness faculties so impaired as to make it doubtful he perceived those facts. Can also impeach that witness doesn't have knowledge as to facts he testified. |
| Impeachment: Contradictory Facts | This is extrinsic evidence of facts showing testimony was wrong or lie. OK if: 1) fact is material issue in case, 2) testimony is significant on credibility, OR 3) opposing party is precluded from offering evidence on the subject. |
| Impeachment of Hearsay Declarant | Credibility of someone who's out of court statement is being offered may be attacked/supported same as if they had testified. Declarant can be called for cross, doesn't need opp. to explain inconsistent statement. |
| Rehabilitation of an Impeached Witness | 1) Explanation on redirect 2) Call witnesses to testify good reputation for truthfulness 3) Prior consistent statement - ONLY OK to rebut charges of lying. |
| General/Specific Objections | General objections (no grounds stated) upheld if there was any grounds. Specific upheld only if the correct ground stated. |
| Federal Privileges | 1) attorney-client 2) spousal communications 3) psychotherapist-social worker No party may comment on a claim of privilege. Privilege waived by failure to claim, voluntary disclosure, or contractual waiving. Not by eavesdropping. |
| Attorney-Client Privilege | Client must be seeking pro. services of atty at time of communication. Disclosure contemplating representation also covered. No privilege between two represented parties. Applies even after death of client. |
| Attorney-Client Privilege: Does Not Apply | 1) Attorney's services sought to aid what client should've known was crime or fraud 2) Two parties claiming through same deceased client 3) Dispute between attorney and client |
| Physician-Patient Privilege | 1) A professional relationship exists 2) Info acquired during treatment 3) Info necessary for treatment |
| Physican-Patient Privilege Doesn't Apply When | 1) Patient puts physical condition at issue 2) Physician's aid sought to aid wrongdoing 3) Dispute between physician/patient 4) Patient contractually agreed to waive 5) Federal case applying federal laws of privilege |
| Psychotherapist/Social Worker-Patient Privilege | Operates same as attorney-client privilege and is federally recognized. |
| Spousal Immunity | A person can't be called as a witness by prosecution when spouse is D in criminal trial. Can't be compelled to testify against spouse in any criminal proceeding. Person can choose to testify if she wants. |
| Privilege For Confidential Marital Communications | Statements between spouses (made in reliance upon their intimacy) are privileged - civil and criminal trials. Privilege survives divorce, but statements thereafter aren't privileged. Both spouses can assert privilege. |
| Hearsay | A statement, other than one made by the declarant while testifying, offered to prove the truth of the matter asserted. If we don't care if speaker is telling the truth, it's not hearsay. Must be made by a person. |
| What isn't offered to prove the truth of the matter? | a) Verbal acts / legally operative facts (words of contract, defamation) b) Statements offered to show effect on reader (to show notice) c) Statements offered as circumstantial evidence of declarant's state of mind (I'm Batman) |
| Not Hearsay | 1) Prior Statement by Witness 2) Admissions by Party-Opponent 3) Vicarious Admissions |
| Not Hearsay: Prior Statements by Witness | Not hearsay if any: 1) Prior statement was under oath and is inconsistent w/ in-court testimony 2) Prior statement consistent, used to rebut biases, made before motive for possible bias arose 3) Prior statement of identification |
| Not Hearsay: Admissions of Party-Opponent | Anything a party said, offered against that party, is not hearsay. Admissions under oath are conclusive, others can be explained. |
| Not Hearsay: Admissions of Party-Opponent: Silence | Silence is an admission if 1) party heard and understood the statement 2) party was capable of denying the statement 3) a reasonable person would have denied. Silence in face of criminal accusation by police never counts. |
| Not Hearsay: Admissions of Party-Opponent: Vicarious Admissions | 1) Co-parties (at trial): not receivable 2) Authorized Spokesperson 3) Principal-Agent, w/in scope of agency 4) Partners, w/in scope of partnership 5) Co-conspirators Court must make prelim. determination of relationship of declarant + party. |
| What is 'unavailable'? | 1) Exempt from testifying because of privilege 2) Refuses to testify despite court order 3) Testifies to lack of memory on subject 4) Can't testify: death, mental illness 5) Absent (beyond subpoena reach) and proponent can't procure attendance reason |
| Hearsay Exceptions: Declarant Unavailable | 1) Former Testimony, 2) Statements Against Interest, 3) Dying Declarations, 4) Statements of Personal/Family History, 5) Statements Offered Against Party That Made Decalarant Unavailable |
| Hearsay Exceptions: Declarant Unavailable: Former Testimony | 1) Party testimony offered against must have been a party to past action 2) Former action had same subject matter 3) Testimony was under oath 4) Party whom testimony offered against had opp. to examine or cross-examine at past action (not grand jury) |
| Hearsay Exceptions: Declarant Unavailable: Statements Against Interest | Statement of a person against their pecuniary, proprietary or penal interest when made. Declarant must've had personal knowledge and known statement was was against interest. In criminal cases, need corroborating circumstances indicating trustworthiness |
| Hearsay Exceptions: Declarant Unavailable: Dying Declaration | Only in a civil action or homicide case: 1) Declarant believed death was imminent (need not die) and 2) Statement concerns cause or circumstances of what he believed to be his impending death |
| Hearsay Exceptions: Declarant Unavailable: Statement of Personal/Family History | Statements of now-unavailable declarant about births, marriage, divorce... of a family where 1) Declarant is a member of family or intimately associated with it, and 2) Statements based on personal knowledge |
| Hearsay Exceptions: Declarant Unavailable: Statements OFfered Against Party That Made Declarant Unavailable | Statement of a person A, offered against person B, when B intentionally made the declarant (A) unavailable. |
| Hearsay Exceptions: Declarant Availability Immaterial | 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 8) Ancient Documents 9) Treatises 10) Reputation 11) Family R |
| Hearsay Exceptions: Declarant Availability Immaterial: Present State of Mind | Not admissible to prove truth of the fact remembered or believed, but offered to establish intent or as circumstantial evidence was carried out |
| Hearsay Exceptions: Declarant Availability Immaterial: Excited Utterances | A statement relating to a startling event, made under the stress of excitement from the event (before time for reflection) is admissible. |
| Hearsay Exceptions: Declarant Availability Immaterial: Present Sense Impressions | Comments mad concurrently with the sense impression of an event may be admissible; little time for a calculated misstatement. |
| Hearsay Exceptions: Declarant Availability Immaterial: Present Bodily Condition | A spontaneous declaration of present bodily condition is always admissible, even not made to a physician. |
| Hearsay Exceptions: Declarant Availability Immaterial: Past Bodily Condition | Admissible if made to assist a physician diagnosing or treating the condition. Even statements about the source of condition OK if pertinent to treatment/diagnosis. |
| Hearsay Exceptions: Declarant Availability Immaterial: Business Records | Must be made as customary part of business by (or with knowledge from) someone with personal knowledge of event who had duty to record (not witness testimony). Must be near time of event and authenticated by custodian of the record. |
| Hearsay Exceptions: Declarant Availability Immaterial: Past Recollection Recorded | If witness's memory can't be revived, party can introduce a memo witness made near time of event. Writing itself isn't admissible, it must be read to the jury. |
| Hearsay Exceptions: Declarant Availability Immaterial: Public Recordings/Reports | Records of activities of agency, recordings of matters observed pursuant to a duty by law. (But not police reports.) In civil cases or cases against govt., factual findings from a lawful investigation. |
| Hearsay Exceptions: Declarant Availability Immaterial: Ancient Documents | Statements in any authenticated document 20+ years old are admissible, as well as those in any document affecting a property interest, regardless of age. |
| Hearsay Exceptions: Declarant Availability Immaterial: Learned Treatises | Admissible substantively if 1) Called to the attention of or relied upon by an expert witness, AND 2) Established as reliable authority (witness or expert testimony or judicial notice). |
| Hearsay Exception: Catch-all | 1) Hearsay statement has circumstantial guarantees of trustworthiness, 2) Statement is necessary, AND 3) Notice given to adversary as to nature of statement |
| Hearsay: Constitutional Rule | Hearsay statement can't be admitted if: 1) Statement offered against the criminal accused, 2) Declarant unavailable 3) Statement was "testimonial" 4) Accused had no opportunity to cross-examine declarant |
| Hearsay: Constitutionally Banned | Affidavits or Written Reports of Forensics are testimonial, not admitted unless analyst unavailable + defendant had opportunity to cross examine him. |
| Burdens of Proof | Burden of Production: Burden to make next move in case. Originally on party bringing suit to make prima facie case, etc. Burden of Persuasion/Proof: Ultimate burden of proof in case. Presumptions only shift burden of production. |
| Specific Presumptions | Legitimacy, Against suicide, sanity, death from absence (7 years), car (driver was owner or an agent thereof), chastity, mail delivery, solvency, bailee's negligence (when goods not returned in same condition), marriage (with certificate) |
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