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EVIDENCE - Coggle Diagram

- - - - misleading the jury
      - consideration of undue delay
      - confusion of the issues
      - waste of time
      - unfair prejudice
      - needless presentation of cumulative evidence.
  - - - Similar accidents or injuries caused by the same event
      - Similar acts admissible to prove:
        
        Intent
        
        Habit (406)
        
        highly specific and regularly repeated activity
        
        To prove conduct of person on a particular occasion was in conformity with the habit or routine practice
        
        Industry Custom/ Routine
      - Causation
    - - Offers to Pay Medical/Other Expenses (407)
        
        Not admissible
      - Subsequent Remedial Measures (407)
        
        Admissible to prove ownership or control or destruction of evidence
        
        Not admissible to prove negligence
      - Liability Insurance (411)
        
        admissible to prove ownership or control
        
        Not admissible to show negligence or ability to pay
      - Settlement Offers (408)
        
        Not admissible
      - Pleas, Plea Discussions, and related Statements (410)
        
        Not admissible
  - - - Direct Exam
        
        Prosecution cannot initiate character evidence
      - Cross Exam
        
        Party
        
        Defendant can introduce evidence of good character to help prove innocence
        
        Any party can use to impeach
        
        Witness
        
        To Impeach
    - - Cross Exam
        
        Used to impeach party or witness
        
        Direct Exam
        
        Generally not admissible
        
        Admissible when character is directly at issue (child custody, defamation, etc.)
- - - - Yes- Party Admission
      - No- Analyze both parts of the rule
    - - Declarant-witness's prior statement
        
        Declarant testifies and is subject to cross exam about a prior statement and the statement is:
        
        Inconsistent with the declarant's testimony and was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition
        
        Is consistent with the declarant's testimony and is offer to either:
        
        Rebut expert testimony that declarant recently fabricated it or acted from a recent improper influence or motive in so testifying OR
        
        Rehabilitate the declarant's credibility as witness when attacked on another ground OR
        
        Identifies a person as someone the declarant perceived earlier
      - Opposing Party Statements
        
        Offered against an opposing party and was either:
        
        Is one the party manifested that it adopted or believed to be true
        
        Made by party's agent or employee on a matter within the scope of that relationship while it existed OR
        
        Made by party in an individual or representative capacity
        
        Made by co-conspirator during and in furtherance of conspiracy
  - - - Dying Declarations
        
        Statement made by declarant believing that declarant's death was imminent
        
        Statement about its cause or circumstances
      - Statement of Person or Family History
        
        Statement of personal or family history made by a family member or one intimately associated with the family
      - Statements Against Interest
        
        Reasonable person in declarant's position would have made only if person believe it to be true
        
        Contrary to declarant's propriety, penal, or pecuniary interest
        
        Supported by corroborating circumstances that clearly indicate its trustworthiness
      - Statement Offered Against Party Procuring declarant's unavailability
      - Former Testimony
        
        Given as witness at a trial, hearing or deposition
        
        Offered against party who had opportunity and similar motive to develop it by direct, cross, or redirect exam
    - - Business Records
        
        Made at or near the time by someone with knowledge
        
        Kept in the course of regular conducted business activity of a business or organization
        
        Making the record was a regular practice of that activity
        
        Shown by a custodian's testimony or by certification
        
        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 nor other circumstances indicate a lack of trustworthiness
        
        Record sets out the office's activities
      - Present Sense Impressions
        
        Statement describing or explaining an event or condition made while or immediately after declarant perceived it
      - Documents affecting Property Rights
      - Excited Utterance
        
        Statement relating to a startling event or condition made while under stress of excitement that is caused
      - Ancient Documents
        
        More than 20 yrs old
      - Present State of Mind or Present Condition
        
        Must be then existing state of mind or emotional, sensory, or physical condition
        
        Not including statements made by declarant
      - Past Recollection Recorded
        
        A record that is (1) on the matter the witness once knew about but now cannot recall, (2) was made or adopted by the witness when the matter was fresh in the witness's memory, and (3) Accurately reflects the witness's knowledge
        
        May be read into evidence
        
        May only be received as an exhibit if offered by an adverse party
      - Medical Treatment or Diagnosis
        
        Statement made to medical personnel for the purpose of diagnosis or treatment
      - Judgements
        
        Copy of judgment of a felony conviction admissible to prove any fact essential to judgment
        
        Only used against accused in a criminal case
      - Learned Treatises
        
        Statements from authoritative works admitted if called to attention of an expert witness and established as reliable by that authority
      - Reputation
        
        Evidence concerning a person's character, history, land boundaries, community's general history
      - Family Records
      - Market reports
- - - - Witness may authenticate an object if it has significant features that make it identifiable upon inspection
      - Proponent must present evidence of chain of custody of the object and that it has been held in a substantially unbroken chain
      - Is the document what the proponent claims it to be
      - Photographs?
        
        Must be identified by witness as both a portrayal of relevant facts and a correct representation of those facts
        
        Witness must be familiar with scene or object depicted
      - Self Authenticating
        
        OIL CANS
        
        Instruments (Negotiable and commercial papers)
        
        Label, tag, or trademark affixed on item in reg. course of business
        
        Official publication issued by public authority
        
        Certified Public Documents (clerk of agency or court that has custody)
        
        Acknowledged documents signed before notary, sworn to truth, content, and execution (Except Wills)
        
        Newspapers and periodicals with reasonably wide circulation
        
        Sealed documents that are government certified
    - - Requires original writing, copy, recording, or photograph--to prove its contents (only applies if contents of writing are at issue)
- - - - Generally Inadmissible
      - May be allowed if no better evidence exists
        
        Based on witness's perception
        
        Helpful for a clear understanding of a fact at issue
        
        Not based on scientific, technical, or other specialized knowledge
    - - Witness qualified as expert
      - Opinion backed with reasonable certainty
      - Subject matter appropriate for expert opinion (Scientific, technical, or other specialized knowledge)
      - Opinion supported by a proper factual basis
        
        Personal Knowledge
        
        Facts (relied upon by experts) made known outside of court
      - if needed and supported by proper factual basis
  - - - Bias or interests
      - Criminal Convictions
        
        Felonies not involving dishonesty
        
        Crime must not be remote (excluded after 10 years since date of release from confinement imposed for the conviction
        
        Balancing Test: Gov must show probative value as impeachment is not outweighed by its prejudicial effect
        
        For witnesses other than the accused apply FRE 403 (Probative value substantially outweighed by the danger of unfair prejudice)
        
        Extrinsic Evidence permitted
        
        Prior Bad Acts
        
        Interrogation (Admissible if probative of truthfulness)
        
        Extrinsic Evidence is inadmissible
        
        Crimes involving dishonesty
        
        Court has no discretion to exclude these convictions (no time limitation)
      - Prior Inconsistent statements (must show to adverse parties attorney)
    - - Reputation
        
        Impeachment is not allowed on a collateral matter unless its a hearsay declarant
        
        The impeaching witness may state personal opinion based on acquaintance of subject to the court's discretion
      - Admissible If: witness has opportunity to explain statement and adverse party has opportunity to examine witness about it OR if justice requires (DOES NOT apply to admissions by party opponent
- - - - Identify out of court declarant to determine if something is hearsay
        
        Must have declarant if evidence is a statement. If not, then item cannot be hearsay
      - Hearsay is an out of court statement offered to prove the truth of matter asserted
    - - Determine whether admissible or inadmissible (402)
      - Determine why evidence is being admitted/ for what purpose is it being offered
      - Only relevant if direct or circumstantial
        
        Direct: if believed resolves the issue and no inferences needed
        
        Circumstantial: even if believed, does not resolve the issue without additional points of reason, relies on inference because it is indirect, and will be scrutinzed more carefully by judge, so condier circumstantial evidence for relevance more carefully
      - policy exclusions, writings, recordings, and photographs
    - - "inadmissible as testimony on ultimate issues" is never the right answer
      - "Testimony admissible due to self-serving nature" is never the answer
      - Usually a witness cannot testify because of bias/trustworthiness, not because of competence
  - - - Public Policy
      - Hearsay
      - Character v. Habit
      - Hearsay Exceptions
      - Relevance
    - - Privileges
      - Writings, recordings, and photographs
      - Relevancy
      - Hearsay
      - Presentation of Evidence