“relevant” evidence
Evidence is relevant if it tends to make a fact of consequence of the case more or less probable than it would be without the evidence.
relevant evidence can be excluded if “Pro SOUP”
It’s probative value is substantially outweighed by the danger of unfair prejudice
Character Evidence in CRIMINAL cases: Rule for Defendant
- Defendant: can introduce evidence of her own pertinent good character. Reputation and Opinion only. Has to be from the person who has the opinion or reputation or made about the community as a whole. *Then P can either cross this witness with reputation and opinion and specific incidences. OR may call own witness to testify about the trait in question - reputation and opinion only
- *Note P can’t address D’s character until D opens the door (except limited exception of sex assault/child molestation – and only evidence of the same)
- *Direct - reputation and opinion
- *Cross - reputation and opinion and specific instances
Character Evidence in CRIMINAL cases: Rule for Plaintiff
- P can only introduce evidence of D’s character if D offers evidence of victim’s character (homicide/self defense) or in sex assault/child molestation
(1) If D offers evidence of victim’s character - P can offer evidence that D has same character trait - *Direct - reputation and opinion
- *Cross - reputation and opinion and specific instances
(2) sex assault/child molestation - can offer evidence of D’s prior similar acts of sex assault/child mol
Self-Authenticating documents
NON-FLIPS
N - newspapers
O - official publications or records of state/fed govt
N - notarized docs (except wills)
F - foreign records (w/ US embassy certification)
L - labels, tagged, trademarked products
I - negotiable instruments and commercial paper
P - copies of public docs (certified by clerk/court)
S - docs with govt seal
Ancient Documents - requirements for being self-authenticating
- non-suspicious condition
- was in a place would likely be if authentic
- in existence for 20 years or more
Original Document Rule
When contents of the document are IN DISPUTE then original must be produced.
Copies are ok as long as authenticity isn’t disputed. Does not need to be satisfied with a minor, uncontested, collateral issue.
Original Document Rule - Exception
Original doesn’t have to be produced if its absence can be explained by A-DOPE.
A - contents judicially ADMITTED
D - it was DESTROYED or lost
O - its outside court’s subpoena jurisdiction
P - its a PUBLIC record so certified copy ok
E - original is under EXCLUSIVE possession of opposing party
Prior Recorded Recollection - admissible?
Once testifying witness acknowledges its accuracy, its contents can be read into evidence. Actual record not admitted into evidence but it can be by opposing party.
Expert Testimony on novel scientific procedures, principles, theories - Frye Test vs. Daubert Test
- Frye Test - only allowed if it has gained “general acceptance”
- Daubert Test (majority and federal) - ok if not generally accepted, judge just needs to consider CRAPE (confirmed by testing, reviewed by peers, widely accepted in profession, published, confirmed rate of error)
Leading Questions - generally only permitted on cross-examination but are allowed on direct in these circumstances:
When the witness is HAIRY
H - HOSTILE, unwilling, or bias
A - an ADVERSE party
I - witness IDENTIFIED or associated w/ the adverse party
R - witness unable to RECALL facts, need to refresh rec
Y - witness very YOUNG or old w/ a communication prob
**also ok to bring out pedigree
Prior bad acts of D - generally inadmissible by P to show character. Exceptions -
- Sexual Assault/Child Molestation cases - evidence of these prior instances ok
- MIMIC - motive, intent, mistake, identity, common plan or scheme
- *note - prior bad act always subject to Pro SOUP balancing
IMPEACHMENT - Methods
CRIB PIC C - CONTRADICTION R - bad REPUTATION for truthfulness I - prior vicious IMMORAL criminal (VIC) acts (Bad Acts) that bear on truthfulness B - BIAS P - PRIOR inconsistent statement I - INFLUENCE of drug/alcohol C - prior CRIMES
IMPEACHMENT by prior VIC acts (bad acts) that bear on truthfulness
- no extrinsic evidence allowed (even if W denies)
* can’t speak to arrest, indictment
IMPEACHMENT by prior convictions
- felonies and misdemeanors bearing on fraud/deceit - always in!
- other misdemeanors - NO
- other felonies - maybe. If against D then govt needs to show probative value outweighs unfair prejudice first. If against regular W, then YES but judge can exclude if probative value does not outweigh unfair prejudice.
* *if any of the above are more than 10 years old then not admissible unless judge weights and notice given to adverse party (10 years from conviction or release from jail, whatever is later)
Rehabilitation after Impeachment
- With a prior consistent statement (can be used for all methods of impeachment)
- Reputation for truthfulness - after impeachment methods: bad acts bearing on truthfulness, bad reputation for truthfulness, prior convictions
Hearsay - definition
Hearsay is an out of court statement offered for the truth of the matter asserted.
- if it is offered for a different purpose then it is not hearsay (i.e. state of mind of listener)
- must be made by a person (not an animal)
- includes expressive gestures
- doesn’t include crying
FOUR PRIORS - not hearsay and can be offered into evidence provided the declarant TAKES THE STAND can be cross-examined
- PRIOR recorded recollection - can be read into evidence but not physically admitted
- PRIOR oral/written out of court identification of D
- PRIOR consistent statement - when used to rehabilitate a witness (doesn’t have to have been given under oath)
- PRIOR inconsistent statement when made UNDER OATH. Admissible to impeach and for truth of its content
***2-4 are NOT hearsay. They are exemptions. Admission of a party opponent is also not hearsay
CONFRONTATION CLAUSE
Criminal Cases - an otherwise admissible out of court statement will be excluded if:
- Declarant is currently unavailable
- D had no prior opportunity to cross-examine the declarant
- the statement is testimonial in nature
* *exception - won’t be excluded if D’s fault the witness is unavailable
CONFRONTATION CLAUSE - “testimonial” statements
*testimonial statements - statements made during court proceedings or in furtherance of a police investigation
exception - statements made to police during an ongoing emergency are not testimonial
CONFRONTATION CLAUSE - non-testimonial hearsay. no confrontation clause issues
BEAD B - business records E - excited utterances A - admissions by co-conspirator in furtherance of conspiracy D - dying declaration
HEARSAY Exceptions (mnemonic)
ARIES DWARFS
*DWARFS requires the declarant to be MR POD unavailable
HEARSAY - “MR POD” unavailable
M - no MEMORY R - REFUSES to testify P - invoked PRIVILEGE O - OUTSIDE court's subpoena power D - DEAD or too sick
HEARSAY Exceptions - List (declarant availability irrelevant)
ARIES DWARFS A - ADMISSIONS of an opposing party** R - business/public RECORD I - present sense IMPRESSION E - EXCITED utterance S - declarant's existing STATE of mind
