1
Q
Relevance
A
- Material
- Probative
Low bar
2
Q
General Rule of Admissibility
A
All relevant evidence is admissible, unless:
- it it kept out by some specific exclusionary rule of evidence
- the court uses its rule 403 discretion
3
Q
Rule 403 Discretion
A
- A trial judge can exclude relevant evidence if its probative value is substantially outweighed by its prejudicial effect
4
Q
403 Considerations
A
- Danger of unfair prejudice
- Confusion of the issues
- Misleading the jury
- Delay
- Waste of time
- Needless presentation of cumulative evidence
5
Q
Similar Accidents Caused by Same Event or Condition
A
- Evidence of prior accidents or injuries caused under the same event or condition and occurring under substantially similar circumstances is admissible to prove: (1) the existence of a dangerous condition, (2) the dangerous condition caused the present injury, (3) D had notice of the dangerous condition
- Admissible to prove intent
6
Q
Habit/Business Routine Evidence
A
- Admissible that the person acted in accordance with the habit
- Describes a person’s regular response to a specific set of circumstances. Has to be frequent conduct and particular circumstances.
7
Q
Liability Insurance Exclusion
A
- Evidence of liability insurance is not admissible to show that the party acted negligently
- Admissible to prove ownership or control, to impeach a witness, and as part of an admission of liability
8
Q
Subsequent Remedial Measures Exclusion
A
- Evidence of repairs or precautionary measures made following an injury is not admissible prove negligence, culpable conduct, defect in a product, need for a warning or instruction
- Admissible to prove ownership or control, to rebut a claim that a precaution was not feasible, or to prove that the opposing party has destroyed evidence
9
Q
Settlement Negotiations Exclusion
A
- Offer to compromise is inadmissible to prove or disprove the validity of an amount of a claim, or impeach a witness by prior inconsistent statement. All statements made in the course of negotiations are also inadmissible.
- Must be a disputed claim or indication that a claim is coming
10
Q
Plea Discussions Exclusion
A
- Inadmissible in any criminal or civil case against the defendant who made the plea or participated in the discussions:
- Offer to plead guilty;
- withdrawn guilty please;
- No contest pleas;
- Statements of fact made during any of the above plea discussions
11
Q
Offers to Pay Medical Expenses
A
- Evidence that a party has paid or offered to pay an injured person’s medical bills is inadmissible to prove liability for the injury.
- Admissions of fact accompanying those payments are admissible
12
Q
Allowed Methods of Proving Character
A
- Evidence of the person’s specific acts
- Opinion testimony of a witness who knows the person; and
- testimony as to the person’s general rep in the community
13
Q
D’s Character in Criminal Case
A
- Prosecution cannot initiate evidence of D’s bad character to show similar conduct
- D can introduce evidence of good character opening door for prosecution
14
Q
How D proves character in criminal case
A
- Character witness for D to testify as to the D’s good rep for a pertinent trait
- May give their personal opinion concerning that trait of the D
15
Q
Prosecution Proof of Character (Criminal Case)
A
- Cross-examine the defendant’s character witness with questions about defendant’s bad acts to impeach. No extrinsic evidence
- Prosecution can call its own character witnesses to provide reputation or opinion evidence
16
Q
Victim’s Character in Criminal Cases
A
- can be initiated by the defendant to show reputation or opinion evidence that may prove D’s innocence.
- Once D has introduced may rebut with evidence of good character for same trait or D’s bad character for same trait
- Used in self-defense cases
- Never available in rape and sexual assault
17
Q
Character Evidence in Civil Cases
A
- not admissible unless proof of a person’s character is directly at issue then all forms are admissible:
- Defamation
- Negligent hiring or entrustment
- Child custody cases
18
Q
Other Misconduct for Non-Character Purpose
A
- Evidence of a person’s other crimes, wrongs, or acts are inadmissible if offered solely to prove conduct in conformity/propensity
- Admissible if relevant to MIMIC evidence
18
Q
MIMIC Evidence
A
- Motive
- Intent
- Mistake (Absence of)
- Identity
- Common Plan or Scheme
19
Q
Requirements for Admissibility for MIMIC Evidence
A
- Misconduct must be proved by sufficient evidence to support a finding
- Evidence of the misconduct is subject to the usual rule 403 standard
- Must provide notice in criminal trials
20
Q
Sex-Crime Misconduct Exception
A
- Evidence of a D’s prior sexual assaults or child molestation charges are admissible in a criminal or civil case where the D is accused of such
- Must be disclosed 15 days before trial
21
Q
Writing Methods of Authentication
A
- Opponent’s admission
- Eyewitness Testimony
- Handwriting Verification (either by expert or lay person who is familiar, or the jury comparing)
- Ancient Documents (over 20 years old, condition that shows authenticity, found in a place where writing would likely be kept)
- Reply letter doctrine
- Photos and videos verified by a witness
- X-rays and EKGs
22
Q
Authentication of Oral Statements
A
- Voice Identification (by anyone who has heard the voice)
- Telephone Convos where the other person can verify
23
Q
Self-Authenticating Documents
A
- Domestic public documents bearing a seal, official foreign public documents
- Official publications
- Certified copies of public records or private record on file in public office
- newspapers and periodicals
- Trade inscriptions and labels
- Notarized documents
- Commercial paper and related documents; and
- Business records if they are certified and the proponent gives the adverse party reasonable notice and opp. for inspection
24
Best Evidence (Original Document) Rule
- to prove the content of a writing, recording, or photograph the original writing must be produced if the terms of the writign are material.
- Secondary evidence only admissible if proponent provides a satisfactory excuse for the original's absence
25
When Best Evidence Rule Applies
- Where the writing is a legally operative or dispositive instrument; or
- where the knowledge of a witness concerning a fact results from having read it in the writing
- Does not apply when witness has personal knowledge of the facts
26
Definition of Original
- The writing itself or anything that is supposed to be an original
27
Definition of Duplicate
- An exact copy of an original made by mechanical means
- Admissible to the same extent as originals
28
Satisfactory Excuses for Non-Production of Original
- Loss or destruction
- Cannot be obtained by any available judicial process
- The original is in the possession of an adversary, who after due notice, fails to produce the original
29
Exceptions to Best Evidence Rule
- Summaries of Voluminous Records
- Certified Public Records
- Writing is collateral to issue
- Testimony of written admission of opponent
30
Questions of Evidence Fact for the Jury
- Whether the original ever existed
- Whether a writing produced at trial is an original
- Whether the evidence offered correctly reflects the contents of the original
31
Real Evidence
- Actual physical evidence addressed directly to the trier of fact
- Admissible if relevant
- Can be authenticated through testimony of a witness and evidence that the object has been held in a substantially unbroken chain of possession
32
Competency of Witnesses
- Generally presumed to be competent
- Must have personal knowledge of the matter that they are testifying about
- Must do it under oath
33
Jurors Testifying
- Not competent to testify unless testifying about: Whether any extraneous prejudicial information was improperly brought to the jury's attention; any outside influence; mistake on the verdict form; whether a juror was racist
34
Leading Questions
- generally only allowed on cross-examination
- Allowed on direct to elicit preliminary or introductory matter, when the witness needs help responding because of some sort of memory loss or mental deficiency, hostile witness
35
Scope of Cross
Limited to the scope of direct examination and the matters that test the credibility of the witness
36
Refreshing Recollection
- A witness may use any writing or object for the purpose of refreshing their present recollection. Usually may not read from the writing because not in evidence
37
Adverse Party Options for Refreshing Recollection
- Entitled to have the writing produced at trial; cross-examine the witness about the writing; and introduce portions of the writing relating to the witness's testimony into evidence
- If prosecution fails to produce writing in criminal case, testimony must be stricken
38
Past Recollection Recorded
- Where the witness states that they have insufficient recollection and reading the writing does not refresh their memory, the record may be read into evidence if proper foundation is laid
- Can be read but not admitted unless by adverse party
39
Foundation for Recorded Recollection
- The witness has insufficient recollection to testify fully and accurately
- The witness had personal knowledge of the facts in the record
- the record was made by the witness or under their direction, or was adopted by the witness
- record was made when the matter was fresh in the witness's mind
- record accurately reflects the witness's knowledge.
40
Lay Witness Opinion Testimony
- Generally inadmissible. Only admissible when:
- Rationally based on the witness's perception;
- helpful to a clear understanding of the witness's testimony or helpful in determination of the fact at issue; and not based on specialized knowledge
41
Situations where Lay Witness Testimony Admissible
- General appearance of a person
- State of emotion of a person
- Matters involving sense recognition
- Voice or handwriting identification
- speed of a moving object
- the value of the witness's own services or property
- the rational nature of another's conduct
- a person's intoxication
42
Requirements for admissibility of expert testimony
- The subject matter is one where specialized knowledge assists the trier of fact;
- The opinion is based on sufficient facts or data
- the opinion is the product of reliable principles and methods
- the expert's opinion reflects a reliable application of the principles and methods to the facts of the case
43
Proper Factual Basis for Expert Testimony
- based on expert's personal observation
- facts made known to the expert at trial
- Facts supplied to the experts outside the courtroom of type reasonably relied upon by other experts in the field (facts will not be admitted unless probative value substantially outweighs prejudicial effect)
44
Bolstering Witness Testimony
- Party is not permitted to bolster or accredit the testimony of their witness until the witness has been impeached
45
Impeachment Methods
- Cross-examination to discredit the witnesses testimony; or
- extrinsic evidence (calling other witnesses or documents proving impeaching facts)
46
Impeachment Methods Specific to the Current Case
- Prior Inconsistent Statements
- Bias
- Sensory Deficiencies
- Contradiction
47
Prior Inconsistent Statements Impeaching
- A party may show by cross or extrinsic evidence that the witness has on another occasion made statements inconsistent with their present testimony
- Proper foundation must be laid and the statement must be relevant to some issue in the case
- If made under oath admissible as substantive evidence
48
Foundation for Extrinsic Evidence
- Can be introduced to prove a prior inconsistent statement only if, at some point:
- the witness is given an opportunity to explain or deny the statement; and
- the adverse party is given an opportunity to examine the witness about the statement
49
Exceptions to Foundation Requirement
- Opposing party statement
- Used to impeach a hearsay declarant
- Court can dispense where justice requires
50
Bias or Interest
- Evidence that a witness is biased or has an interest in the outcome of a case tends to show that the witness has a motive to lie
- Foundation up to the court's discretion
- Majority rule before a witness can be impeached by extrinsic evidence, they must first be asked about the facts on cross.
51
Opinion or Reputation Evidence for Untruthfulness
- Witness can be impeached with rep or opinion evidence usually through a character witness
52
Impeachment by Crime of Untruthfulness
- A witness may be impeached by any crime requiring an act of dishonesty. Court has no discretion to bar
53
Impeachment by Crimes not Involving Dishonesty
- Court has discretion to exclude
- Balancing test for criminal defendant court will exclude unless the probative value outweighs its prejudicial effect
- For all others its the standard rule 403 balancing test
- Not admissible if its been more than 10 years
- No foundation required
54
Effect of Pardon
- Conviction cannot be used ti impeach a witness if the conviction was pardoned and the pardon was based on rehabilitation and they haven't committed any other crimes, or based on innocence.
55
Bad Acts Involving Untruthfulness
- Can be asked on cross
- Cannot be proved by extrinsic evidence
56
Impeachment of Hearsay Declarant
- Can be impeached by any of the impeachment methods and does not need an opportunity to explain or deny
57
Grounds for Unavailability
- Death or physical or mental illness
- Are exempt from testifying because of privilege
- Refuse to testify despite a court order
- Testify they don't remember
- Are absent beyond the reach of subpoena
