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Evidence - Coggle Diagram
Evidence
Witness
Competency
Witness must have the capacity to: (1) observe, (2) recollect, (3) communicate, (4) appreciate the obligation to speak truthfully [602,603]
Relevance
Opinion
Lay Witness
Generally inadmissible; may be allowed if no better evidence exists-- then the lay opinion must be: based on the witness's perception; helpful to clear a misunderstanding of fact; and not based on scientific/techical/ or other spcialized knowledge [701]
Expert Witness
Subject matter: scientific, technical, other specialized knowledge
Witness qualifies as expert
Opinion backed with reasonable certainty
Opinion supported by proper factual basis, via: personal knowledge, facts made known at trial, facts made known outside of court
Character
On direct exam at a criminal trial, character evidence is not allowed to prove conformity with a party's character, but can be used for: motive, opportunity, intent, preparation, common scheme/plan, knowledge, identity, absence of mistake/accident
Impeachment
Two methods
Cross-examination
Prior inconstant statements; bias/interest, and criminal convictons
Extrinsic evidence
Admissible only if the witness has an opportunity to explain the statement and an adverse party has the opportunity to examine the witness about it if justice requires [doesn't apply to admission by a party opponent (801(d)(2)]
Bad acts not permitted
Privileges
Governed by common law (501)
Attorney-client privilege; physician/psychotherapist/ social worker-patient privilege; spousal privilege
Hearsay
Relevance
Definition
Relevant evidence
: evidence having any tendency to make the existence of any fact of consequence to the action more probable than without the evidence
Legal relevance
FRE 403: court has discretion to exclude relevant evidence if it’s probstive value is substantially outweighed by the danger of unfair prejudice; confusion of issues; misleading jury; etc
Exceptions
Causation; similar accidents/injuriescaused by same event; and similar acts admissible to prove intent, habit, and industrial custom/routine
Character Evidence
Criminal or civil case?
Is the testimony being offered on direct or cross exam?
refer to attached chart
Hearsay
Definition
An out of court statement offered to prove the truth of a matter. Hearsay is inadmissible without an exception.
Nonhearsay
Hearsay Exceptions— declarant available
Unavailability results from: privilege; refusing to testify; lack of memory; death or physical/mental illness; etc
Exceptions: former testimony (804(a)); statements against interest (804(b)(3)); dying declarations (804(b)(2)); statement of personal/family history (804(b)(4)); statement offered afainst party procuring declarant's unavailability (804(b)(6)
Hearsay Exceptions — declarant availability immaterial
Exceptions: present state of mind/physical condition (803(3)); excited utterance (803(2)); presence sense impression (803(1)); business records (803(6)); public records (803(8)); past recollection recorded (803(5))
Documents
Are they relevant?
Have they been authenticated?
Def: the document is what the proponent claims it to be
Self-authenticating documents (902): [OIL CANS]
O
fficial publications;
I
nstruments (negotiable and commercial paper);
L
abel/tag/trademark;
C
ertified public documents;
A
knnowledged document signed before notary (except wills);
N
ewspapers
Best evidence rule-- (only applies to documents) requires the "original writing, recording, or photograph...to prove its content."
Hearsay?
Real Evidence
Must be relevant
Must be authenticated
Chain of custody or testimony