Evidence

Documents

Relevance: 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.

Hearsay

Real Evidence

Witness

Privileges: governed by common law

A court has the discretion to exclude relevant evidence if its probative value is substantially outweighed by the danger:

misleading the jury

consideration of undue delay

confusion of the issues

waste of time

unfair prejudice

needless presentation of cumulative evidence

Exceptions

Policy-based

Prior similar event

causation

similar accidents or injuries caused by the same event

similar acts admissible to prove intent, habit, and industrial custom or routine

Settlement offers

withdraw guilty pleas

subsequent remedial measures are not admissible to prove negligence, but may be admissible to prove ownership or control, or to prove destruction of evidence

Liability Insurance may be admissible to prove ownership or control, although it is not admissible tos how negligence or ability to pay

Character Evidence: offered to prove something about the witness's character. Considerations include: purpose for the offer of character evidence; means of proving character.

CIvil

Criminal

Direct Examination

Cross-examination

Direct Examination

Cross-Examination

Prosecution cannot initiation

Generally not admissible. Only admissible when character directly at issue: child custody, defamation, etc.

Party: defendant can introduce evidence of good character to help prove innocence

Party or Witness: Impeachment

Party or witness: only for impeachment.

Admissible?

Non-hearsay

Definition - state the rule for hearsay and definition. Then identify whether the declarant is a party.

Exceptions

Declarant unavailability: results from

Lack of Memory

Death or physical/mental illness

Refusing to testify

Absent beyond the reach of the court's subpoena power and the proponent of the statement has been unable to procure attendance or testimony.

Privilege

Declarant availability irrelevant

Declarant required to be unavailable

dying declarations

statement of personal or family history

statement against interest

statement offered against party procuring declarant's unavailability

former testimony

offered against a party who had an opportunity and similar motive to develop it by direct, cross, or redirect examination

Given as a witness at a trial, hearing, or lawful deposition

contrary to declarant's proprietary or pecuniary interest

supported by corroborating circumstances that clearly indicate its trustworthiness

reasonable person in the declarant's position would have made only if the person believed it to be true

statement made by declarant believing that declarant's death was imminent

statement about its cause or circumstances

Present state of mind or physical condition

must be then-existing state of mind or emotional, sensory, or physical condition

not including a statement of memory or belief

Excited utterance

statement relating to a startling event or condition

Made while under the stress of excitement that it caused

Present sense impression

statement describing or explaining an event or condition

made while or immediately after the declarant perceived it

Business records

making the record was a regular practice of that activity

shown by a custodian's testimony or by certification

kept in the course of a regularly conducted activity or a business or organization

made at or near the time by someone with knowledge

neither the source of information nor the method of preparation indicate a lack of trustworthiness

Public records

of a matter observed while under a legal duty to report

neither the source of information or other circumstances indicate a lack of trustworthiness

Record sets out the office's activities

Past recorded recollection

is on a matter the witness once knew about but now cannot recall

was made or adopted by the witness when the matter was fresh in the witness's memory

accurately reflects the witness's knowledge

May be read into evidence

May only be received as an exhibit if offered by an adverse party

Authentication: the document is what the proponent claims it to be

Best evidence rule: original writing, recording, or photograph is required to prove its contents. Applies only if the contents fo the writing are at issue

Relevant?

Hearsay?

Self-authentication: documents that are automatically authenticated by nature of what they are

Certified public documents (by clerk or agency or court that had custody

Acknowledged documents signed before notary, sworn to truth, content, and execution (except wills)

Label, tag, or trademark affixed 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 the public authority

Relevance

Opinion

Competency: requires that the witness have personal knowledge and must declare he will testify truthfully. A witness must:

Privileges

Character: see other flowchart

Impeachment: used to cast an adverse reflection on a witness's testimony

Hearsay

to recollect

to communicate

have the capacity to observe

to appreciate the obligation to speak truthfully

lay opinion: generally inadmissible, though allowed if no better evidence exists. If this happens, then the opinion must be:

Expert opinion

helpful for a clear understanding of a fact at issue

not based on scientific, technical, or other specialized knowledge

based on the witness's perception

is the opinion supported by a proper factual basis

Is the subject matter appropriate for an expert opinion? These include:

opinion backed with reasonable certainty

opinion supported by a proper factual basis

witness qualifies as expert

other specialized knowledge

technical knowledge

Facts made known outside of court

Scientific knowledge

Need not be admissible in court

of the kind that are reasonably relied upon by experts in the field

personal knowledge

facts made known at trial

cross-examination

extrinsic evidence

bias or interest

criminal convictions

prior inconsistent statement

felonies not involving dishonesty: court has discretion to exclude. Must not be too remote or over ten years since the date of conviction

Crimes involving dishonesty

balancing test: for the accused the government must show the probative value as impeachment is not outweighed by its prejudicial effect.

bad acts: FRE 608 is the rule associated. Interrogation about bad acts is admissible within the court's discretion. Must be probative of truthfulness

repudiation: done by introducing evidence from a witness in the community or business circle. They usually state their personal opinion of the impeached witness, at the court's discretion

Must be relevant

the object must be authenticated by recognition testimony or chain of custody.

Physician, psychotherapist, or social worker-patient privilege: confidential communications made for the purpose of diagnosis or treatment of the patient's physical, mental, or emotional condition.

Spousal privilege

Attorney-client privilege

includes the attorney and its representatives

can only be waived by the client

Client may refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of rendition of professional legal services of the client

Marital communication privilege: provides that either spouse has a privilege to refuse to disclose and to prevent her spouse from disclosing a confidential communication made between spouses while they were husband and wife

spousal testimony privilege: A spouse may not be called a witness by the prosecution against his spouse in a criminal case and may not be compelled to testify against his spouse in any criminal proceeding including those where the spouse is not the defendant.