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Evidence (Witness (Opinion (Lay witness - Generally inadmissible; may be…
Evidence
Witness
Opinion
Lay witness - Generally inadmissible; may be admitted if no better evidence exists and is 1. based on witness's perception; 2. helpful for a clear understanding of a fact at issue, and; 3. not based on scientific, technical, or specialized knowledge.
Expert witness - 1. Subject matter is appropriate for expert opinion; 2. Witness qualifies as expert; 3. Opinion backed with reasonable certainty; 4. Opinion supported by a proper factual basis.
Character - not allowed to prove conformity with the party's character. Is allowed for motive, opportunity, intent, preparation, common plan, knowledge, identity, absence or mistake.
Relevance
Impeachment - cast adverse reflection on a witness's truthfulness through cross-examination and extrinsic evidence
Competency - witness must have capacity to observe, recollect, communicate, and appreciate obligation to speak truthfully.
Privileges - 1. Attorney-client privilege; 2. Physician-patient privilege; 3. Spousal privilege
Hearsay
Relevance
Legal Relevance - FRE 403, court has the discretion to exclude relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice; confusion of the issue; misleading the jury; or by consideration of undue delay, cumulative evidence.
Exceptions - 1. Prior similar event; 2. Liability insurance; 3. Subsequent remedial measures; 4. Settlement offers/withdrawn guilty please.
Definition - Evidence having any tendency to make the existence of any fact of consequence to the action more probable than it would be without the evidence.
Character
Criminal
Direct Examination - Prosecution cannot initiate.
Cross-Examination - Party: Def. can introduce evidence of good character to help prove innocence.
Party or Witness: Impeachment.
Civil
Direct Examination - Generally not admissible. Only when character directly at issue: child custody, defamation, etc.
Cross-Examination - Party or Witness: Only for impeachment.
Hearsay
Exceptions
Declarant unavailability required - 1. Former testimony; 2. Statements against interest; 3. Dying declarations; 4. Statement of personal/family history; 5. Statement offered against party procuring declarant's unavailability.
Declarant unavailability immaterial - 1. Present state of mind/physical condition; 2. Excited utterance; 3. Present sense impressions; 4. Business records; 5. Public records; 6. Past recollection recorded.
Definition - An out of court statement offered to prove the truth of the matter
Admissible? - Hearsay is inadmissible without an exception.
Non hearsay
Documents
Authentication
Self-authenticating
Certified public documents
Acknowledged documents signed before notary (except wills)
Label, tag, or trademark on item in regular course of business
Newspapers and periodicals with reasonably wide circulation
Instruments -- negotiable and commercial paper
Sealed documents (government certified)
Official publications issued by public authority
Real Evidence
1.Must be relevant. 2. Must be authenticated. 3. Best Evidence Rule. 4. Hearsay?