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.