Judges have discretion to exclude relevant evidence:
- If the probative value of the evidence is substantially outweighed by danger of unfair prejudice
- Cumulative evidence
- Waste of time
- Confuses the issues
Effect of Judicial Notice
In civil case, that fact is conclusive on the jury.
In criminal case, prosecution’s burden of producing evidence on that point is satisfied.
Handwriting Identification
Can be authenticated by:
- A person w/ familiarity of the handwriting before trial
- An expert
- Trier of fact (jury)
Voice Identification
Can be authenticated by:
- Someone with familiarity, either before trial or gained for purposes of trial
- Expert
- Trier of fact
Impeachment
Can impeach by showing:
- Prior inconsistent statement
- Bias or motive to misrepresent
- Prior conviction
- Specific acts of misconduct which bear on truthfulness
- Bad reputation for truthfulness
Prior inconsistent statement
Generally only be allowed to impeach and not as substantive evidence.
Exceptions - can use to impeach AND as substantive evidence:
- Prior inconsistent statement given under oath (nonhearsay).
- If prior inconsistent statement also falls under a different hearsay exception.
Bias or motive to misrepresent
Always admissible
Will even allow extrinsic evidence if witness denies it
Prior conviction
- If it’s a conviction involving dishonesty or false statement, can come in if felony or misdemeanor
- Judge has discretion to allow felony that resulted in conviction of more than one year
- If too remote, cannot be entered (10 years from release)
Specific acts of misconduct which bear on truthfulness
- May be inquired into on cross-examination to impeach, but ct can use its discretion to exclude
- No extrinsic evidence is allowed if witness denies the act
Bad reputation for truthfulness
May be proven by extrinsic evidence
Hearsay Exceptions - available or unavailable witness
- Present sense impression
- Excited utterance
- Statement concerning mental or physical health
- Mental diagnoses or treatment
Business record exception
Hearsay Exceptions - unavailable witness
- Former testimony
- Dying declaration - need belief that death is imminent and statement concerning what happened to cause death - any civil case and ONLY HOMICIDE for crim (attempted homicide doesn’t count)
- Statement against interest
Non-hearsay
Out-of-ct statement that will come in for substantive truth if the declarant testifies at trial and is subject to cross-examination:
- Admissions
- Prior sworn inconsistent statement
- Prior consistent statement
- Prior identification
Expert Witness
Can give testimony based on:
- Personal observations
- Authoritative text
- Facts reasonably relied upon by other experts in field (even if what the statement made on inadmissible)
Refreshing Memory of Witness
- Anything can be used to refresh memory of witness.
- If you use a document to refresh recollection, must make that document available to opposing party. Opposing party can introduce it if she wants to.
Prior Similar Occurrences
Evidence of prior similar occurrences is not admissible to show that party probably acted same way again at time of event that gave rise to litigation
Habit Evidence
Evidence of a habit is admissible to show that party probably acted same way again at time of event that gave rise to litigation
Statement by Party Opponent
- Nonhearsay
- A relevant statement by party or ee of party speaking in scope of employment made at any previous time entered into evidence by opposing party
- Silence:
If at any previous time, a party to lawsuit heard and accusation and failed to protest and judge finds that reasonable person would have said something, then accusation and silence become admissible as admission
Business Records
- Person making record does not have to have first hand knowledge of the info obtained in record
- Admissible to prove what is in record AND what is not in record
State of Mind
- Hearsay exception
- Out of court statements of intention of the future are admissible to show that that person actually did what they intended to do
Authentication
Need enough additional evidence sufficient to support finding that the item is what the proponent claims.
- Not a high standard
