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Relevant Evidence Evidence that has ANY TENDENCY to make a material fact more probable or less probable than would be the case w/o the evidence.
Admissibility of Relevant Evidence All relevant evidence is ADMISSIBLE, UNLESS a) some exclusionary rule APPLIES, or b) ct makes a discretionary determination that the probative value is substantially outweighed by one of six considerations.
Considerations that may make Relevant Evidence Inadmissible 1) Unfair Prejudice 2) Confusion of the Issues 3) Misleading Jury 4) Undue Delay 5) Waste of Time 6) Unduly Cumulative
Similar Occurrences GENERALLY, evidence concerning some time, event, or person other than that involved in the case at hand is INADMISSIBLE.
Plaintiff's Accident History GENERALLY, inadmissible b/c only shows that P is accident-prone. EXCEPTION: P's prior accident admissible, if accident that caused P's injury that is in issue.
Similar Accidents Caused by Same Instrumentality/Condition GENERALLY, inadmissible b/c suggest nothing more than general character for carelessness. EXCEPTION: If other accident occurred UNDER SUBSTANTIALLY SIMILAR CIRC, can admit to prove 1) existence of dangerous cond, 2) cause of accident, 3) prior notice to D
Intent in Issue Prior similar conduct of a person may be admissible to raise an inference of person's intent on a later occasion.
Comparable Sales on Issue of Value Selling price of other property of SIMILAR TYPE, in SAME GENERAL LOCATION, and CLOSE IN TIME to period at issue, is some evidence of value of property at issue.
Rule of Habit Habit of a person (or routine of a business org) is ADMISSIBLE as circumstantial evidence of how the person acted on the occasion at issue.
Habit (definition) REPETITIVE response to a PARTICULAR set of circ.
Industrial Custom as Standard of Care Evidence as to how others in the same trade or industry have acted in the recent past may be admitted as some evidence as to how a party in the instant litigation should have acted. (i.e. evidence of appropriate standard of care)
Policy-Based Exclusions 1) Liability Insurance, 2) Subsequent Remedial Measures, 3) Settlements of Disputed Civil Claims, 4) Offer to Pay Hospital or Medical Expenses
Liability Insurance Evidence that a person has (or does not have) liability insurance is INADMISSIBLE for the purpose of PROVING FAULT or ABSENCE OF FAULT.
Exception to Rule in re Liability Insurance Evidence of insurance may be admissible for some other relevant purpose, such as a) proof of OWNERSHIP/CONTROL OF INSTRUMENTALITY OR LOCATION, if disputed; or b) for purpose of IMPEACHING of a witness.
Subsequent Remedial Measures Post-accident repairs, design changes, policy changes are INADMISSIBLE for the purpose of proving NEGLIGENCE, CULPABLE CONDUCT, PRODUCT DEFECT, or NEED FOR WARNING.
Exception to Rule in re Subsequent Remedial Measures May be admissible for some other relevant purpose, such as proof of OWNERSHIP/CONTROL or FEASIBILITY OF SAFER CONDITION. If either is disputed.
Settlement of Disputed Civil Claims In the event of a disputed civil claim, following are inadmissible: SETTLEMENT, OFFER TO SETTLE, STATEMENTS OF FACT made during settlement discussions, for purpose of showing liability or impeachment as prior inconsistent statement.
Exceptions to Rule in re Settlements of Disputed Civil Claims 1) Settlement evidence admissible for the purpose of IMPEACHMENT FOR BIAS. 2) Statements of fact made during settlement discussions in civil litigation w/ Gvt agency admissible in later criminal case (does not apply to settlements or offers to settle).
Requirement for exclusionary rule to apply to settlement discussions Only applies if there is a DISPUTED CLAIM either as to VALIDITY of the claim or the AMOUNT of damages.
Plea Bargaining in Criminal Cases INADMISSIBLE, but plea of Guilty (not w/drawn) is admissible in subsequent litigation based on same facts under rule of party admissions.
Offer to Pay Hospital or Medical Expenses Evidence that a party has paid or offered to pay an accident V's hospital or medical expenses is INADMISSIBLE to prove liability. (does not exclude other statements made in connection w/ offer)
Character Evidence Person's general propensity or disposition.
Potential purposes for the admissibility of character evidence 1) Essential element in the case. 2) prove conduct in conformity w/ character at time of litigated event. 3) W's bad character for truthfulness to impeach credibility.
Defendant's Character in a Criminal Case Evidence of the D's character to prove conduct on a particular occasion INADMISSIBLE during P's case-in-chief. HOWEVER, D, during defense, may intro evidence of RELEVANT CHARACTER TRAIT to prove conduct, which OPENS THE DOOR to rebuttal by P.
How may a Prosecutor rebut when D has "opened the door" by calling character witnesses? 1) by crossing D's character W w/ "have you heard" or "did you know" questions about SPECIFIC ACTS of the D that reflect adversely on the particular character trait that D had intro'd. 2) by calling own reputation/opinion W to contradict D's witness.
Victim's Character in re Self-Defense case In addition to direct evidence that the alleged victim of an assault was the first aggressor, criminal D may intro evidence of V's violent character to prove V's conduct in conformity (i.e. as circ evidence that V was first aggressor).
If D introduces V's character for violence or as first aggressor in Self-Defense Case… Prosecution may rebut w/ evidence of V's good character for peacefulness (reputation/opinion) AND may prove D's character for violence. (Homicide: If D offers any evid that V was 1st Aggressor, P may intro V's good character for peacefulness)
Victim's Character (sexual misconduct case) In both criminal and civil cases, where D is alleged to have engaged in sexual misconduct, the following evidence about the V is ORDINARILY INADMISSIBLE: opinion/reputation of V's sexual propensity, evidence of specific sexual behavior of V.
Exceptions to Victim's Character Rule (sexual misconduct case) In CRIMINAL CASES: 1) specific sexual behavior of V to prove someone other than D was source, 2) V's sexual activity w/ D if defense of consent asserted, 3) exclusion would violate D's rt of due process.
Exceptions to Victim's Character Rule (sexual misconduct case) In CIVIL CASES: Ct may admit evidence of a specific sexual behavior or sexual propensity of the victim if its probative value substantially outweighs the danger of harm to the victim and unfair prejudice to any party.
Character Evidence in Civil Cases Generally INADMISSIBLE to prove person's conduct on a particular occasion.
When is Character Evidence admissible in Civil Cases Where such character is an ESSENTIAL ELEMENT OF A CLAIM OR DEFENSE (provable by reputation, opinion, and specific acts). Only Three Situations: Tort Action alleging negligent hiring/entrustment, Defamation, Child Custody.
Defendant's Other Crimes for Non-Character Purpose GENERAL RULE: Other crimes or specific bad acts of D are NOT admissible during prosecution's case-in-chief if only purpose is to suggest that b/c of D's bad character he is more likely to have committed the crime currently charged.
When may a D's bad acts or other crimes be admissible? To show something specific about crime currently charged. Motive, Intent, Mistake/Accident, Identity, Common scheme/plan.
Method of proof of MIMIC-purpose crimes Conviction OR by evidence that proves crime occurred: Conditional Relevancy Standard – P need only produce sufficient evidence fr which a reasonable juror could conclude that D committed the other crime. (upon D's request, P must give pre-tr notice)
Other sexual misconduct to show propensity in sex-crime prosecution or civil action In case alleging sexual assault/child molestation, PRIOR SPECIFIC SEXUAL MISCONDUCT of D is ADMISSIBLE in case-in-chief of State/Plaintiff for any relevant purpose, including D'S PROPENSITY FOR SEX CRIMES, as circ evid of conduct on the occasion in Q.
Methods of Authentication 1) W's Personal Knowledge 2) Proof of Handwriting 3) Proof by Circumstantial Evidence 4) Ancient Document Rule 5) Solicited Reply Doctrine
Proof of Handwriting 1) Lay person Opinion (on basis of familiarity as result of experience in normal course of affairs) 2) Expert Comparison Opinion 3) Jury Comparison
Ancient Document Rule Authenticity may be inferred if doc is a) at least 20 years old, b) facially free of suspicion, AND c) found in place of natural custody.
Solicited Reply Doctrine Document can be authenticated by evidence that it was received in response to a prior communication to the alleged author.
Conditional Relevancy Standard Document is admissible if ct determines there is SUFFICIENT EVIDENCE from which a reasonable juror could conclude document is genuine.
Self-Authenticating Documents 1) Official Publications 2) Certified copies of public/private records on file in public office 3) Newspapers/Periodicals 4) Trade inscriptions and labels 5) Acknowledged document (e.g. certification by notary) 6) Commercial paper
Authentication of Photographs W may testify on the basis of personal knowledge that the photograph is a FAIR AND ACCURATE REPRESENTATION of the people or objects portrayed.
Best Evidence Rule A party who seeks to prove the contents of a writing must either produce the original writing, or provide acceptable excuse for its absence. If ct finds excuse acceptable, party may then sue 2ndary evidence-oral testimony or a copy.
Writing in re Best Evidence Rule Includes sound recordings, X-rays, and films.
When does best evidence rule applies? When a party is seeking to prove the contents of a writing. 1) Writing is a legally operative doc. 2) W is testifying to facts that she learned solely fr reading about them in a writing (i.e. proving fact by referring to a writing).
When does best evidence rule not apply? When a W w/ personal knowledge testifies to a fact that exists INDEPENDENTLY of a writing that records the fact.
What qualifies as the "original writing"? Whatever parties intended as the original. Any counterpart intended to have the same effect. Any negative of film or print from the negative. Computer print-out.
Duplicate any counterpart produced by any mechanical means that accurately reproduced the original. Duplicate is admissible to same extent as original UNLESS it would be unfair or genuine Q is raised as to authenticity of original.
Excuses for non-production of original. 1) lost or cannot be found w/ due diligence 2) destroyed w/o bad faith 3) cannot be obtained w/ legal process (ct must be persuaded by prep of the evidence)
Escapes (best evidence rule) 1) Voluminous records can be presented through a summary/chart, provided original records would be admissible and they are available for inspection. 2) Certified copies of Public Records. 3) Collateral Docs
Competency of a Witness 1) Personal Knowledge and 2) Oath/Affirmation
Dead Man's Statute Statute may provide that in a CIVIL action, an interested W is incompetent to testify in support of her own interest against the estate of a decedent concerning communications/transactions between the interested W and the decedent.
Leading Questions GENERALLY, not allowed on Direct Examination, but allowed on Cross. BUT allowed on Direct when 1) preliminary introductory matters, 2) youthful/forgetful W, 3) hostile W, 4) Adverse party, or under control of adverse party.
Refreshing Recollection W may not read from prepared memorandum, but must testify on basis of current recollection. BUT if W's memory fails him, he may be shown a memorandum to jog his memory.
Safeguards against abuse of Refreshing Recollection Adversary has right to 1) inspect memory-refresher, 2) use it on cross, 3) introduce it into evidence
Past Recollection Recorded (hearsay exception) 1) Showing writing to W fails to jog memory, 2) W had personal knowledge at former time, 3) Writing was either made or adopted by W, 4) making/adoption occurred while event fresh in W's memory, AND 5) W can vouch for accuracy of writing when made/adopted.
Admissibility of Lay Opinion 1) Rationally based on W's perception, AND 2) helpful to the Jury.
Expert Witness Qualifications Education and/or Experience
Proper Subject Matter of Expert Witness' Testimony Scientific, technical or other specialized knowledge that will be HELPFUL to Jury in deciding a fact.
Basis for Expert Opinion Based on reasonable degree of probability or reasonable certainty. May draw upon three permissible data sources: 1) personal knowledge, 2) other admitted evidence, 3) facts outside record if of a type reasonably relied on by experts in particular field.
To be admissible, expert opinion must be relevant to the issue at hand and SUFFICIENTLY RELIABLE. 1) expert used reliable principles and methods. 2) expert reliably applied those principles and methods.
Daubert gatekeeping factors 1) Testing of Principles and Methods 2) Rate of Error 3) Acceptance by other experts in same profession 4) Peer review/Publication (TRAP)
Learned Treatise on Direct own Expert Relevant portions of treatise, periodical, or pamphlet may be read into evidence as SUBSTANTIVE EVIDENCE, if established as reliable authority.
Learned Treatise on Cross of Opponent's Expert Read into evidence to impeach and contradict opponent's expert. Comes in as substantive evidence. (learned treatise may NOT be introduced as exhibit during Direct or Cross)
Ultimate Issues Opinion testimony is NOT objectionable just b/c it embraces an ultimate issue in the case. BUT, all other requirements for opinion testimony must be satisfied, including the requirement that the opinion is helpful.
Ultimate Issue (criminal case) Still proper objection if expert seeks to give direct opinion that D did or did not have relevant mental state.
Proper Subj-matter of Cross 1) Matters win scope of Direct, AND 2) Matters that test W's Credibility
Bolstering Own Witness NOT allowed until a/f W's credibility has been attacked.
Methods of Impeachment 1) Prior Inconsistent Statements, 2) Bias, 3) Sensory Deficiencies, 4) Bad Reputation/Opinion about W's character for truthfulness, 5) Criminal Convictions, 6) Bad Acts (w/o conviction) in re W's character for truthfulness, 7) Contradiction
Two ways to use Impeachment 1) Ask W about impeaching fact w/ aim of having W admit it (confront the W), OR 2) Prove impeaching fact w/ extrinsic evidence.
The impeaching fact may be proven w/ extrinsic evidence as to all but which impeachment methods? Bad Acts (w/o conviction) in re W's character for truthfulness AND Collateral Contradictions.
For impeachment methods that allow extrinsic evidence, is it necessary to ask the W about the impeaching fact b/f the extrinsic evidence is introduced? NO, except for Bias.
Prior Inconsistent Statements (impeachment) Any W may be impeached by showing that on some prior occasion, she made a MATERIAL STATEMENT TAHT IS INCONSISTENT W/ HER TRIAL TESTIMONY. (substantive evidence if prior statement under oath and part of formal hearing)
Must W be confronted w/ her prior inconsistent statement while still on the stand? No, but a/f proof by extrinsic evidence, W must be given an opportunity at some point to return to stand to explain or deny the prior inconsistent statement. EXCEPTION: no opportunity to explain need be given if W is opposing party.
Bias Any fact that gives W reason to show FAVORITISM or HOSTILITY. W must be confronted and bias may be proven by extrinsic evidence.
Sensory Deficiencies Anything that could affect W's perception or memory. (confrontation is not req'd and extrinsic evidence is allowed)
Bad Reputation/Opinion in re W's Character for Truthfulness Any W is subj to impeachment by this method. Confrontation is NOT req'd and Extrinsic Evidence may be allowed.
Criminal Convictions (impeachment) 1) Conviction of any crime as to which P was req'd to prove false statement as an element. 2) If not, it must be a felony, and ct may exclude if probative value on issue of W credibility is outweighed by danger of unfair prejudice to a party.
Time Limit on Criminal Convictions (impeachment) If conviction or release from prison, whichever is later, is more than 10 years ago, conviction may not be used for impeachment, UNLESS proponent shows probative value is substantial.
Inquiry about Bad Acts (w/o conviction) in re W's character for Truthfulness. Cross-examiner must have good-faith basis for inquiry, and permission to make the inquiry is subj to ct's discretion. Inquiry is limited to act of untruthfulness itself, not its consequences, such as job termination, civil judgment, or arrest.
Contradiction (impeachment) Extrinsic evidence not allowed for purpose of contradiction IF fact at issue is COLLATERAL (i.e. fact has no significant relevance to the case or to the W's credibility).
Rehabilitation When: Only when Impeachment clearly suggests W was lying, not just mistaken. How: Character W
Attorney-Client Privilege 1) Confidential Communication 2) between Attn and Cl 3) during professional, legal conversation; UNLESS waived by cl or exception applies.
Confidential Communications Reasonable Expectation of Confidentiality. Joint clients privileged as to third parties, but privilege does not apply as between them.
Voluntary Waiver (attn-cl priv) Only the CLIENT has power to waive privilege. A/f cl's death, privilege continues and only cl's estate can waive it.
Subject-Matter Waiver (attn-cl priv) A voluntary waiver of the privilege as to some communications will also waive privilege as to other communications if: a) partial disclosure is intentional, b) disclosed and undisclosed communications concern same subj-matter, AND c) fairness req's.
Inadvertent Waiver (attn-cl priv) An inadvertent disclosure of a privileged communication will not waive the privilege so long as privilege-holder: a) took REASONABLE STEPS TO PREVENT DISCLOSURE, and b) takes reasonable steps to CORRECT the error.
Exceptions to Attn-Cl Privilege 1) Future Crime/Fraud, 2) Legal Advice in Issue, 3) Attn-Cl Dispute
Elements of Physician-Patient Privilege 1) Confidential communication or info acquired by physician from patient, 2) for purpose of diagnosis or treatment of medical condition. (federal law only applies to psychotherapists)
Spousal Immunity (criminal only) A spouse cannot be compelled to testify about anything against D-spouse. (holder = witness-spouse).
Confidential Communications Between Spouses (any type of case) A spouse is not req'd, and is not allowed in absence of consent by other spouse, to disclose a confidential communication made by one to the other during marriage. (holder = both spouses).
Exceptions to Spousal Privileges 1) communications in furtherance of jointly-perpetrated future crime or fraud, 2) communications destructive of family unit, 3) litigation between spouses
Non-Hearsay Purposes 1) Verbal Act - (legally operative words) 2) Effect on listener or reader 3) Circumstantial evidence of Speaker's state of mind
Witness-Statement Exclusions from Hearsay 1) Prior statement of ID of a person 2) Prior-inconsistent statement, if ORAL, UNDER OATH, and made during FORMAL TRIAL, hearing, proceeding, or deposition 3) Prior-consistent statement, if being used to rebut charge of RECENT FABRICATION/improper motive
Party Admissions (Statement of an Opposing Party) Any statement made by a party is admissible if it is offered against the parity.
Adoptive Admission If a party expressly/impliedly adopts a statement made by another person, it is as though party made the statement. Adoption by silence occurs when a party who hears another person's statement remains silent under circ in which a reas person would protest
Vicarious Party Admissions Statement by agent/EE is admissible against principal/ER if statement concerns matter win scope of agency/employment and made during existence of agency/employment relationship.
Co-Conspirator's Statement The statement of a co-conspirator is admissible against a party who was a MEMBER OF THE CONSPIRACY if the statement was made 1) DURING and 2) IN FURTHERANCE of the conspiracy.
Hearsay Exceptions 1) Forfeit. by Wrongdoing 2) Former Test 3) St'ment Against Int 4) Dying Declaration 5) Excited Utterance 6) Pres. Sense Impression 7) Pres st-of-mind 8) Declar. of Intent 9) Pres Physical Cond 10) St'ment for purpose of med treat 11) Busi rec 12) Pub rec
Defendant's Right of Confrontation (6th Amend) In the context of hearsay, P may NOT use hearsay against criminal D, if 1) Testimonial, 2) declarant is Unavailable, and 3) D had no opportunity for Cross.
Testimonial 1) Grand Jury Testimony. 2) Statements in response to Police interrogation, if primary purpose of Q'ing was to establish/prove past events potentially relevant to later criminal prosecution.
Non-Testimonial Primary purpose of questioning is to enable police assistance to meet an on-going emergency.
Documents (testimonial) Sworn Affidavits and Forensic Laboratory Reports (if primary purpose is to accuse a targeted individual)
Exception in re Forensic Laboratory Reports No confrontation violation, if P calls test'ing expert who perf'd INDEPENDENT ANALYSIS of data, and test'ing exp only GENERALLY REFERS TO REPORT to show a PARTIAL BASIS for opinion W/O READING REPORT or introducing it as exhibit.
Forfeiture by Wrongdoing Any type of hearsay statement is admissible against a D whose wrongdoing made the W unavailable if ct finds by PREPONDERANCE OF THE EVIDENCE that D's conduct DESIGNED TO PREVENT W FROM TESTIFYING.
Former Testimony (W unavailable) Given at a former proceeding/deposition, is admissible against party who, on prior occasion, had opportunity and motive to cross or develop testimony of W. Issue must be essentially the same.
Grounds of Unavailability 1) Privilege, 2) Absence from Jurisdiction, a) cannot find w/ due diligence or b) beyond ct's subpoena power, 3) Illness/Death 4) Lack of Memory, 5) Stubborn Refusal
Statement Against Interest Unavailable Declarant's statement against 1) pecuniary interest, 2) proprietary interest, or 3) penal interest. (in crim cases, must be supported by circ showing trustworthiness)
Dying Declaration Statement made under a belief of impending and certain death by unavailable declarant concerning cause or surrounding circ of declarant's death. (Homicide or Civil)
Excited Utterance Statement concerning a startling event and made while declarant is still under the stress of excitement caused by the event.
Present Sense Impression Description of an Event made WHILE THE EVENT is occurring or immediately thereafter.
Present State of Mind Contemporaneous Statement concerning declarant's present state of mind, feelings, emotions.
Declaration of Intent Statement of declarant's intent to do something in the future, including the intent to engage in conduct w/ another person.
Present Physical Condition Statement made to anyone about declarant's current physical condition.
Statement made for the purpose of obtaining medical treatment or diagnosis. Statement made to anyone for the purpose of obtaining med treatment, if it concerns declarant's 1) present symptoms, 2) past symptoms, or general cause of cond, BUT NOT including statements describing details of LIABILITY or IDENTIFY of tortfeasor.
Business Records 1) Records of a business, 2) made in regular course of business, 3) the business regularly keeps such records, 4) made contemporaneously, 5) info observed by EE of business or statement w/in independent hearsay exception.
Proving Business records Foundation Call sponsoring W or Written Certification under oath.
Public Records Records of a public office setting forth 1) activities of office, or 2) matters observed pursuant to duty imposed by law, or 3) findings of fact or opinion resulting from an investigation authorized by law.
Exception to Public Records Exception Police reports prepared for PROSECUTORIAL PURPOSES are NOT admissible against the D in a criminal case. Nor is the P in such cases allowed to intro such reports against the D under alternative theory of business records.
Hearsay w/in Hearsay If a hearsay statement is included w/in another hearsay statement, the evidence is inadmissible unless each statement falls w/in a hearsay exception.
Impeachment of Hearsay Declarants Any impeachment method may be used to attack credibility of hearsay declarant whose statement was admitted into evidence. If a prior inconsistent statement, the usual requirement that declarant be given opportunity to explain/deny is waived.
Created by: Sarah_Shore



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