What are the 4 principal Daubert factors that courts use to determine the reliability of experts’ principles and methodologies?
TRAP:
- Testing of principle or methodology;
- Rate of error;
- Acceptance by experts in the same discipline
- Peer review and publication.
NOTE: Courts have discretion to consider a wide variety of factors.
Most common non-propensity purposes for offering evidence of a defendant’s other crimes or misconduct?
MIMIC:
- Motive
- Intent
- Mistake (absence of)
- Identity
- Common plan or scheme
In order for a defendant’s prior misconduct to be admissible for some relevant non-character purpose (motive, intent, etc.), there must be:
Sufficient evidence to support a jury finding that the defendant committed the prior misconduct
Whenever a witness has used a writing to refresh their memory while on the stand, an adverse party is entitled to:
- Have writing produced
- Cross-examine the witness with it
- Introduce portions into evidence
Where a witness states that they have insufficient recollection of an event to enable them to testify fully and accurately, even after they have consulted a memorandum or other record given to them on the stand, the record itself may be read into evidence if a proper foundation is laid. The foundation must include proof that:
- Insufficient recollection;
- Personal knowledge of the facts in the record when the record was made;
- Record made by witness (or under their direction, or it was adopted by the witness);
- Record made when the matter was fresh in the witness’s mind; and
- Record accurately reflects the witness’s knowledge.
- Satisfied if witness vouches for the accuracy of the record at the time it was made or adopted.
- NOTE: A record may be read into evidence and heard by the jury, but it cannot be admitted into evidence as an exhibit unless offered by an adverse party.
What is the Best Evidence Rule?
- To prove the content of a writing, the original must be produced if the terms are material.
- Secondary evidence is admissible only if the proponent has a good excuse for not producing the original.
In what two situations does the Best Evidence Rule apply?
1: Where the writing is legally operative or dispositive;
2: Where the knowledge of a witness concerning a fact results from having read it in the writing.
What are 4 exceptions to the Best Evidence Rule?
1: Summaries of voluminous records
2: Certified public records
3: Writing is of minor importance
4: Opponent testified or gave written admission about contents of writing
All hearsay exceptions & nonhearsay?
NON-HEARSAY (declarant must testify and be subject to cross):
1. Admission by party-opponent (FAB FIVE)
- Party’s own words? POW!
- Adoptive admission
- Statement by person with authority
- Statement by agent
- Statement by co-conspirator
2. Certain prior statements by witness: (TERRIFIC TRIO)
- Prior inconsistent statement (sworn)
- Prior consistent statement (rebut lying/motive)
- Prior identification
HEARSAY EXCEPTIONS (declarant availability irrelevant): (SUPER SEVEN)
1. Present sense impression
2. Excited utterance
3. Statements of then-existing PEM condition
4. Medical diagnosis purposes
5. Past recollection recorded
6. Business records exception
7. Public records exception
HEARSAY EXCEPTIONS (declarant must be unavailable): (TRUANT TRIFECTA)
1. Former testimony
2. Dying declaration
3. Declaration against interest
For hearsay exceptions where the declarant must be unavailable, what are the permissible circumstances of unavailability?
PRISM:
- Privilege (assertion of)
- Refuse to testify
- Incapacity
- Subpoena (failure to comply)
- Memory (lack of)
When is evidence relevant?
When it has any tendency to make the existence of any fact of consequence to the determination more probable or less probable than it would be without the evidence. In other words, it must be:
Probative: tends to prove or disprove a fact; and
Material: must be “of consequence in the case.
What is the Rule 403 test for the Court’s discretion to exclude relevant evidence?
A trial judge has broad discretion to exclude relevant evidence if its probative value is substantially outweighed by the danger of one or more of the following:
- Danger of unfair prejudice
- Confusion of the issues
- Misleading the jury
- Undue delay
- Waste of time
- Needless presentation of cumulative evidence
Generally, other accidents involving D are inadmissible because they only show D’s general character for carelessness, UNLESS occurred under substantially similar circumstances to prove:
- The existence of a dangerous condition,
- That the dangerous condition was the cause of the present injury, and
- That D had notice of the dangerous condition.
What are the 5 public policy evidence exclusions?
- Liability Insurance
- Subsequent remedial measures
- Settlement offers or negotiations
- Offers to pay and payment of medical expenses
- Withdrawn guilty pleas and offers to plead guilty
NOTE that each of these has some admissible exceptions, see notes.
Character evidence may be offered for these purposes:
- When character is directly in issue (essential element of claim or defense) - RARE
- Propensity - ONLY SOME SITUATIONS
- Impeachment - TRUTHFULNESS
When may character evidence be offered in a civil case?
Generally inadmissible, except when an essential element of claim or defense:
- Defamation cases where truth is a defense (P’s character at issue)
- Negligent hiring or entrustment (hired/entrusted person’s character at issue)
- Child custody cases (parents’ character is at issue)
What are the general conditions of admissibility for real evidence?
Authentication:
1. Testimony of witness that they recognize the object as what the proponent claims it is.
2. Substantially unbroken chain of possession.
Condition of object:
- if significant, must be shown to be in substantially same condition at trial.
What are the 3 requirements for silence in the face of an accusatory statement to qualify as an adoptive statement of an opposing party?
- party must have heard and understood the statement;
- party must have been physically and mentally capable of denying the statement, and
- a reasonable person would have denied toe accusation under the same circumstances.
A party may be held vicariously responsible for the statement of someone with any of the following relationships to the party
- Authorized spokesperson;
- Partner;
- Co-conspirator;
- Principal-agent
Prior statements of testifying witness are hearsay unless:
- Prior statements of identification
- Prior inconsistent statements made under oath
- Certain prior consistent statements
–When accused of lying for motive, statement predates motive
–When witness impeached on other non-character ground, such as faulty memory
When can an out-of-court statement of an employee or agent be attributed to an employer?
If statement:
- Concerned matter within scope of employment
- Was made during relationship
