When is character evidence allowed in civil case?
Only when it is an essential element of a claim or defense (e.g., defamation, negligent hiring, child custody). Can be reputation/opinion or specific acts.
When is testimony about a criminal defendant’s character allowed?
- D can introduce evidence of his own character to show it is inconsistent with crime (rep/opinion only)
- To rebut, P can can 1) cross-examine D’s witness and ask about rep, opinion, or specific bad acts (no extrinsic evidence) or 2) call a witness to rebut claims with reputation/opinion testimony
When is reputation testimony about a victim’s character allowed?
- D can introduce if it’s relevant to defense (rep/opinion) (unless sexual conduct protected by rape shield law)
- If D opens door, P can rebut (rep/opinion) and attack D’s character regarding the same trait
When can specific bad acts be used as evidence?
- Against D if they open the door in criminal case
- MIMIC (Motive, Intent, (Absence of) Mistake, Identity (MO), Common Plan)
- NEVER admissible to show propensity (except in criminal sex cases)
- May be required to give notice in writing if criminal D requests
When is habit evidence allowed?
Evidence of a person’s habit or an organization’s routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice.
When is lay opinion admissible?
A lay opinion is admissible if it is
* rationally based on the witness’s perception
* helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and
* not based on scientific, technical, or other specialized knowledge
* E.g. speeding of a vehicle
What can a witness be impeached on?
- Character for truthfulness (rep/opinion testimony, or specific acts on cross), including certain convictions
- Prior inconsistent statements
- Bias
- Sensory competence
- Impeachment of hearsay declarant
What is required for a present recollection refreshed?
- Witness uses item to refresh recollection, then testifies based on refreshed memory (not item)
- Adverse party can inspect item and enter relevant portions as evidence
What is required for past recollection recorded?
When a witness has inadequate memory to testify about a matter for which a record exists, the witness may read the record to the jury if:
* The record concerns a matter about which the witness once had knowledge;
* The record was prepared or adopted by the witness when the matter was fresh;
* The record accurately reflects the witness’s knowledge; and
* The witness testifies he has insufficient memory of the event to testify fully and accurately (even after consulting the writing while on the stand)
* Can be read to jury, but not introduced (unless by opponent)
What is required for expert witness testimony?
- Allowed if scientific, technical, or specialized testimony will help the trier of fact, and:
- Qualified by knowledge, skill, training, experience, or education;
- Based on sufficient facts or data personally observed or made aware of;
- Product of reliable methods reasonably relied on by experts in the field;
- Applied the methods and principles reliably to the facts; and
- Reasonably certain in her opinion (probably true, no guessing).
- May embrace ultimate issue but not criminal defendant’s mental state
What are the qualifications for an expert? (Daubert)
- Qualified as an expert by knowledge, skill, experience, training, or education
- Testimony based on sufficient facts/data
- Testimony product of reliable principles and methods
- Testimony reflects reliable application of principles/methods to facts of case, and
- Reasonable degree of certainty (i.e., “probably”)
When can criminal convictions be introduced for impeachment purposes?
- Must be felony (1+ year imprisonment) or crime of dishonesty (e.g., embezzlement)
- If convicted or released 10+ years ago, its inadmissible unless probative value must substantially outweigh prejudicial effect
- Otherwise, if felony and a criminal D, its inadmissible unless probative value outweights prejudical effect
- If felony and not criminal D, admissible unless prejudicial effect substantially outweighs probative value
- If crime of dishonesty and less than 10 years ago, admissible
- Pardon—conviction not admissible if subject of a pardon, annulment, or other action based on a finding of innocence; pending appeal does not prevent impeachment
- Juvenile adjudication—not admissible to impeach D; may impeach other witness’s character for truthfulness in criminal case if an adult conviction for that offense would be admissible and admitting it is necessary to determine guilt or innocence
What is the best evidence rule?
- Original document (or reliable duplicate)—must be produced to prove contents of writing when contents are at issue or witness is relying on contents when testifying
- Original not required when originals are lost or destroyed in good faith, party against whom original would be offered failed to produce it, or document not closely related to controlling issue
How can you rehabilitate impeached witness?
- Explanation during redirect
- Reputation or opinion testimony on truthfulness
- Prior consistent statement
How can you authenticate tangible evidence?
- Testimony/personal knoweldge
- Physical Objects: Distinctive characteristics or chain of custody
- Documents: Stipulation, handwriting verification
- Public records/ancient documents exception
- Oral Statements: Voice ID (anyone who heard the voice at any time), Telephone
How can you authenticate via handwriting?
- Trier of fact or expert compares exhibit with verified handwriting sample
- Nonexpert with personal knowledge not acquired through litigation testifies
How can you authenticate phone conversation?
- Caller recognized the speaker’s voice;
- Speaker knew facts that only a particular person would know;
- Caller dialed number believed to be speaker’s, and speaker identified himself upon answering; or
- Caller dialed a business and spoke about business regularly conducted over the phone
What does the attorney/client privilege cover?
Confidential communication between client (who holds privilege) and attorney for the purpose of obtaining or providing legal advice or representation (attorney doesn’t need to give advice or agree to representation)
What are privileges that may be asserted?
- A/C privilege
- Spousal privilege (either immunity or confidential communications)
- Physician-patient privilege (state/diversity only) –> for purpose of obtaining medical treatment
- Psychotherapist-patient privilege
- 5th Amendment self-incrimination
- Clergy-penitent
- Accountant-client
- Gov’t privilege against disclosing informant identity
What are the public policy exclusions to admissible evidence?
- Subsequent remedial measures (to prove liability/negligence)
- Compromise offers (to prove validity of claim or to be used as prior inconsistent statement)
- Liability insurance (to prove liability/negligence)
- Victim’s sexual conduct (unless needed for physical evidence, or civil case where PV outweights UP)
What are the categories of “non-hearsay”?
- Prior Inconsistent Statements (if declarant testifies, and prior statement was under oath at trial/hearing)
- Prior Consistent Statements (if declarant testifies)
- Prior Statement of Identification (if declarant testifies)
- Admissions of a Party Opponent (including adoptions, vicarious admissions, and co-conspirator statements)
What are the hearsay exceptions that require the declarant to be unavailable?
- Former Testimony (if party opponent had opportunity + motive to develop testimony previously)
- Dying Declaration (believes she’s dying, death is imminent, and statement relates to cause of death)
- Statements Against Interest (reasonable person would not have made otherwise)
- Statements of Personal or Family History
- Forfeiture by Misconduct (Declarant Unavailable Due to Party’s Wrongdoing) - if party makes declarant unavailable, anything by declarant comes in
What are the primary hearsay exceptions that do not require the declarant to be unavailable?
- Present Sense Impression (statement made while D was perceiving the event that describes/explains event)
- Excited Utterance (statement relating to startling event while declarant is still under stress of event)
- State of Mind (statement of D’s then existing physical/mental condition can prove condition and conduct in conformity with intent)
- Statements Made for Purposes of Medical Diagnosis or Treatment
- Past Recollection Recorded
- Business Records (regularly conducted business acitivty, at or near time of event, by person with knowledge)
- Public Records
- Learned Treatises
- Judgment of Previous Conviction
- Reputation/Character Evidence
When is a statement testimonial and when can it be admitted against a criminal D?
- Statement is testimonial when it is made w/primary purpose of ascertaining past criminal conduct (getting help doesn’t count)
- Can still be admitted if declarant is now unavailable and D had prior opportunity to cross-examine
