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EVIDENCE, REMEMBER NOT TO START HEARSAY ANALYSIS HERE. Begin with G.R.,…
EVIDENCE
Witness
Witness Competency
Competency. A witness must have capacity to:
recollect
communicate
appreciate obligation to speak truthfully
observe
Personal knowledge
A lay witness must have personal knowledge
An expert witness does NOT need personal knowledge
Opinion:
Lay Person:
Generally inadmissible
Exc: if no better evidence exists. BUT lay opinion must be:
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 other specialized knowledge
Acceptable lay-opinions include
V.E.M.P.S.
V.
Value
of one's own property
E.
Emotional
state of others (happy/sad)
M.
2 more items...
Expert:
Admissible if S.P.O.T.
S.
P.
O.
T.
Proper
Testimony
1 more item...
Proper
Opinion
Opinion based on sufficient facts or data
1 more item...
Proper
Person
The expert is qualified, having the specialized knowledge, skill, training, or experience to the subject matter
Proper
Subject
Matter
subject matter requires scientific, technical, or other specialized knowledge
The testimony must be RELIABLE
Majority Daubert test
1 more item...
Minority Fry Test - only requires general acceptance of the test in the scientific community
Witness Credibility
Impeachment
Impeachment Generally
To cast a witness in an untruthful light. Two methods:
Cross-examination
Prior inconsistent statements
Evidence that directly contradicts the testimony of a witness is admissible if:
2) the testimony is significant on the issue of credibility;
3) the witness volunteered the testimony that is being contradicted; AND
4) it is not a collateral issue
1 more item...
1) the witness’ testimony is about a material issue;
PINS and Hearsay: Prior inconsistent statements can only be used when the witness is testifying subject to cross. Refusal to testify is not testifying. Silence is not inconsistent
Hearsay
Introducing extrinsic evidence
Impeachment evidence is never objectionable because of irrelevance or because it is out of scope
on the bar exam cross-exam = impeachment generally
Rehabilitation
Attempting to repair a witness's reputation, but can only be done AFTER impeachment
normally on rebuttal
rehabbing before impeachment in not allowed: No bolstering!
METHODS OF REHAB
Explain or deny
Prior Consistent Statement
Character evidence for truthfulness by
R.
or
O.
Note on impeachment: Impeachment on a collateral matter (evidence w/ no relevance other than to witness's credibility) the cross-examiner
usually may not use extrinsic evidence
Often stuck with witness's answer even if a lie, because we don't want to derail the trail with a mini-trail
METHODS OF IMPEACHMENT
"Three Eyes For Seeing" = I.I.I.C.C.C.C
I. Interest, Motive, Bias
I. Incapacity to observe, recall, or relate
I. (prior) Inconsistent Statement (
PINS
)
C. Character evidence for truthfulness by
R.
or
O.
2 more items...
PINS offered solely to impeach is limited to that purpose, and the statement can't be used substantively
1 more item...
inability to observe, communicate, or remember - EE Admissible
Extrinsic Evidence (EE) admissible
Examination of Witnesses
Mode and Order of examination of witnesses and presentation of evidence
Judge controls the examination of witnesses and presentation of evidence to ascertain truth and prevent harassment of witnesses
Leading questions
Generally leading questions are not allowed on direct - when examiner and witness are on the same side of the case, leading questions are not allowed
exc.
hostile witnesses
adverse witnesses (cross)
child witnesses
preliminary background info
refreshing recollection of witness
Writing used to Refresh Memory
On direct, the examiner may jog a forgetful witness's memory.
any writing, photo, further questioning, or other form of evidence may be used to refresh
Authentication of writing used is not required
Proponent may
NOT
introduce the writing into evidence
Calling and interrogation of Witness by court
The judge on their own motion may call witnesses, and all parties may examine any witness called by the court
The judge may also interrogate/question anyone they call
Exclusion/Separation of Witnesses
at request by a party, or sua sponte, the court shall order witnesses excluded from the courtroom, so that they cannot hear testimony of other witnesses
Hearsay
Grab easy points here: when you know the answer comes down to a hearsay exception, do not forget to state the hearsay rule
1) state rule; 2) define hearsay; 3) determine if the statement was made by a party; 4) if not, analyze both parts of rule [out-of-court statement, truth of the matter asserted]; 5) conclude if hearsay; 6) check for double hearsay and repeat all steps for each; 7) determine if exceptions apply
Definitions
"
Hearsay
" = An out of court statement mad by a declarant offered for the truth of the matter asserted
What is a statement?
Declarant?
The
person
making the statement - can also be a persons words recorded, or written - a
machine is not a declarant if automated generated
Truth of the Matter Asserted?
When the subject matter of the statement is offered for it's truth
Common non-TOM statements
Verbal acts - an out of court statement not offered for truth, but to clear up ambiguous conduct
Impeachment - evidence offered not for it's truth, but to impeach or rehabilitate the witness's credibility
State of mind
: circumstantially (different than exception) = not hearsay because statement not offered for truth, but as circumstantial evidence of a declarant's state of mind
i.e. W testifies that D said "i can fly" offered in an insanity hearing, not to show D can fly
spoken statements, as well as written, or nonverbal communications intended as a statement
Hearsay evidence is inadmissible UNLESS if falls within an exception or the statements is Exempt from the hearsay rule
Hearsay Exemptions
"sound like hearsay, but are not because we say so" - FRE
Admitted as
substantive evidence
Statement by a Party Opponent (SPO
):
Five types
Statement by a named party
Admissible if:
Made by named party;
Relevant; and
Offered against declarant party by opponent
co-defendants cannot offer each others statements
Note: not admissible if defendant has been given Miranda warning.
post-Miranda silence is inadmissible
Adoptive admission
- either by word, conduct, or silence
There must be evidence sufficient to show part heard AND understood the statement and then adopted it as their own - by express word, conduct, or silence
Admission by conduct or silence
(think
H.O.W.
can silence be a statement?)
an admission by silence may be found where the named party:
3 more items...
3.
Authorized admission
:
Statement by a party's agent, where the principal authorizes the agent to make statements or representations to 3rd parties
Employee admission
; and
A statement by a party's employee during the employment relationship, and within the scope of employment to which the employee had sufficient job related knowledge
Co-conspirator admissions
A statement made by a co-conspirator - whether or not conspiracy is charged - can be used against all other co-conspirators IF:
made by a member of the conspiracy
in furtherance of the conspiracy - moved conspiracy forward; AND
"during the existence" of the conspiracy
NOTE: existence of conspiracy is a prelim fact that must be prove POTE before this exemption can be applied
types 2-5 "vicarious admissions" - treated like named party said it
Prior Statements of Witnesses
Three types of prior witness statements are exempt from hearsay
1. Prior Inconsistent Statements Under Oath in Court
A prior inconsistent statement may be offered
FOR ANY REASON
if it was previously made under penalty of perjury at trial, disposition, or other proceeding
Note: difference between (PINSOC) and (PINS)
PISOC - statement made under oath, and can be offered for the truth of the matter asserted
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PINS - no oath requirement, but it is
limited to impeach character for truthfulness (credibility only)
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Note: sworn statement to police does not qualify - statements made at prelim hearings, and in grand jury proceeding do.
2. Prior Consistent Statements Offered to Rebut Recent Allegations of Fabrication
; and
(PCS) A prior consistent statement can be offered substantively without any oath requirement
3. Statements of Prior Identification
out-of-court statement of identification by a declarant made after perceiving the person is admissible
For all three - witness must testify at trail, and be subject to cross about the statement - otherwise it is hearsay
Hearsay Exceptions
Availability immaterial
Present Sense Impression
Think
Sayin' it as they're seein' it
or
present tense present sense
A statement made by the declarant describing or explaining an event or condition made while perceiving or immediately after
timing: statement must be spontaneous or contemporaneously made
must have had firsthand knowledge when they made the statement
can be oral or written
i.e sport commentator
Excited Utterance
a statement relating to a startling event made about it, while declarant was excited by, or under the stress of it
startling event
statement relates to or describes it
personal knowledge
made while under the stress/excitement - NOTE: no immediacy requirement
Then-Existing Mental, Physical, or Emotional Condition
admissible to show state of mind
at the moment to prove what declarant was
thinking or felling
, or to explain behavior to show motive,
intent, plan, design, mental feeling, etc.
Word tense is key
admissible
"My stomach hurts"
"My leg hurts and I don't know if I'll ever walk again"
"I am pissed"
Inadmissable
"My was not feeling well"
"I did not get any sleep"
EXC:
statements of memory relation to execution, revocation, identification, or other term's of declarant's
will
are admissible
Statements for Medical Diagnosis or Treatment
Statements for med diagnosis/treatment describing
medical history
or
past/present symptoms
,
pain or sensation
or the
cause
are admissible
statements admissible if made to med personnel or family member if for the purpose of seeking treatment
However: statements admitting or assessing fault are NOT included
If statement in writing, then that section is redacted
Past Recollection Recorded
if a witness has diminished memory and documented something (or signed/adopted document) within their
personal knowledge
while the matter was fresh in their mind the contents of the document are admissible
Prerequisite - you
must have tried and failed to refresh
the witnesses memory
The document is not a formal exhibit, but it is read into the record. At this point the opponent can use it not just to impeach, but as substantive evidence
Records of Regularly conducted Activity (Business Records)
Reqs.
Memo, record, or report
of business-related acts or events
made at or near the time of the event (contemporaneous)
by a person w/ knowledge
if kept in the course of regular conducted business - record serves some purpose
and the info does not lack trustworthiness
prelim Q for judge
Records cannot be made solely in anticipation of litigation
Also can be use to show the absence of an occurrence (proving a negative)
OTHER:
Family and Personal History Records
Records, or Statements in Documents, That Affect an Interest in Property (Property Docs)
Ancient Docs - docs made pre 1/1/1998 found where they should be
Market Reports + Commercial Publications
Learned Treatise (Expert Exception)
Subject Area - M.A.S.H.
Medicine
to the extent expert relied upon a learned treatise on direct, or was made aware on cross, a statement published treatise, periodical, pamphlet, etc., may be read into evidence, if it is credible, but the treatise won't enter evidence
1 more item...
Art
History
Science
The 3 Reputation Exceptions
reputation is the opinion of others - hearsay
R.
Concerning Personal and Family History, and 2.
R.
Concerning Boundaries and General History
R. CE is admissible for personal and fam history as well as property boundaries
R.
Concerning Character
basically exists to say that reputation about CE is hearsay, but that's it admissible. Other rules limit it's use
Judgement of Previous Conviction (Criminal)
Final judgments of previous convictions for felonies are admissible to prove an essential element of the action
self-authenticate. Think felon in possession of a firearm charge
Declarant Unavailable
"Unavailable" Think
PRISM
P. Privilege
R. Refusal
despite court order
I. Incapacity - death or then-existing physical or mental illness
S. Subpoena
absence of witness despite good faith effort to procure them
M. Memory - witness testifies to lack or memory
Burden of proof for PRISM on the proponent of the testimony
Five total
Former Testimony
Testimony of an unavailable declarant made UNDER OATH while testifying in a proceeding about the same or related subject matter IF:
opponent had previous
opportunity
and
motive
to examine the testimony of the declarant on direct, redirect, or cross
Dying Declaration
(1) In a homicide prosecution or a civil case, a statement that a declarant made
(2) while believing the declarant's death to be imminent
Subjective question for the judge
need not actually die
(3) about its cause or circumstanced of what they though was the cause of impending death
Declarations Against Interest
a party's statement that was against declarant's pecuniary ($), proprietary (property), or penal (jail) interest WHEN MADE is admissible
NOTE: in criminal cases - if someone else's statement is offered to exculpate the defendant that statement must be corroborated to insure trustworthiness
Statements of Personal or Family History
statements concerning the declarant's relationship by blood, adoption, or marriage or other similar fact of personal or family history
Forfeiture by Wrongdoing
a statement offered against a party who engaged in wrongdoing intended to procure the unavailability of the declarant
Hearsay and the Confrontation Clause
The 6th Amendments Confrontation Clause
A Criminal defendant has the right to confront those making claims against them
The Rule:
"Testimonial" hearsay statements are NOT admissible UNLESS
the declarant is unavailable, AND
defendant had an opportunity to cross-examine the declarant about the statement
"Testimonial hearsay"
is a hearsay statement about past events that the
declarant reasonably expected would be used in a subsequent prosecution
, typically, made to police or government employees, or made in a "formal setting, like a courtroom
Testimonial hearsay:
many statements made to police or during police interrogation statements made in court or court-like settings;
affidavits;
depositions
Non-testimonial hearsay:
Many/most hearsay exceptions
EXC:
Some hearsay statements will be admitted even if the declarant is not unavailable or the defendant did not have a chance to cross- examine
Dying declaration
Child witness testifying via closed circuit
Ongoing Emergency:
statements made for the purpose of aiding police during an ONGOING emergency
Chemical Analysis Report with Notice and Demand Statute
Waiver: Forfeiture by wrongdoing
declarant forfeits their confrontation clause rights if declarant's unavailability results from their wrongdoing WITH intent to keep out testimony
Objections
Objections:
Parties may object to the evidence admitted or excluded in error when it substantially effects a
substantial right
of a party AND:
if the ruling
admits
evidence
(2) state specific grounds for objection (" objection hearsay")
general objections are permissible when the grounds are obvious
the party (1) timely objects or moves to strike; and
Note: timely manner doesn't mean immediately
A party might learn testimony was hearsay later that day. Objecting to the testimony would be made in a timely manner when the party learned of its objectionability
Proffer - ruling to
exclude
evidence
a party informs court of the substance of evidence by an offer of proof, unless obvious
Party may then state what the evidence would be orally or in writing
The court may direct that an offer of proof be made in Q&A format w/o the jury
Continuing Objections to appeal
Once court definitively rules on an objection on the record,
a party does not need to preserve objection or proffer for appeal
Waiver of objections
if council fails to object to evidence that it should, the evidence is admitted despite the evidence being objectionable, and the party waived their right to object
Appellate concepts
waiver pt 2:
A waived objection at trail is not considered on appeal, without showing
plain error
Harmless error doctrine
the jury would have reached the same conclusion even without the error; no
substantial rights
affected
objection error ignored
Plain error Doctrine
A highly prejudicial error affecting "substantial rights" of the party
objection error reversed, or ruling reversed
Judicial Notice
A substitute for proof
Where court accepts "adjudicative" facts as true without requiring formal presentation of evidence
2 Kinds
(1) Facts commonly known in the territory
"Everybody knows this!"
A court in Woodstock, knows that Springfield is 50 minutes south, but a court in Oklahoma does not
(2) Easily verifiably facts
Facts capable of accurate and ready determination by resorting to sources not reasonably disputed
"No one knows, but we can easily look it up"
sunrise and sunset times
rainfall accumulation
When raised?
pretrial, during trial, or on appeal
Most tested area
- jury instruction regarding judicial notice
The rule
At CIVIL trial
civil jury must
accept a judicially noticed fact as conclusive
At CRIMINAL trial
Criminal jury may
, but is not required to, accept judicially noticed fact as conclusive
Admissibility
Substantive Admissability
Evidence admissible for any purpose
Limited Admissibility
Evidence may be admitted for limited purposes
Jury instructions serve to inform the jury about the limited purpose of some evidence. The court, on timely request, must restrict evidence to its proper scope
Remainder or Related writing/ Rule of Completeness
Where a party introduces part of a writing or recording, the
adverse party may immediately introduce
other writing or part of the writing that in
fairness
ought to be considered in conjunction
Relevance and its limitations
Relevance Generally
Relevance:
evidence having any tendency to make "a fact of consequence" more or less probable than it would be without the evidence
Irrelevant evidence is inadmissible, but relevancy is a very low bar
Legal Relevance
FRE 403: A court has discretion to exclude relevant evidence IF its
probative value is substantially outweighed by the danger of unfair prejudice
Unfair prejudice:
misleading the jury
consideration of undue delay
waste of time
Needless excessive evidence
Note:
all evidence is prejudicial
. The test is
"unfair prejudice,"
not just prejudice
confusion of issue
Limitations to Relevance
Privilege's
the Four FRE Privileges
Spousal Immunity and Marital Communication (marital):
Spousal Immunity a.k.a. Spousal Testimony Privilege
ONLY IN A CRIMINAL TRAIL
The
witness-spouse
may refuse to testify about anything IF they are married at time of trial
Witness-spouse holds the privilege
and may waive it to testify against the other spouse being prosecuted
Applied to anything before and during a VALID marriage. Divorce destroys this privilege
EXC:
Situation where one spouse is charged with a crime against the other - though in many jurisdictions spousal immunity remains in domestic assault cases
Criminal cases involving a child of either spouse
Marital Communications (during)
Applies in BOTH civil and criminal trial
Both spouses hold this privilege
Only applies to confidential communications DURRING the marriage
Even a divorced spouse may keep the communication confidential provided it happened while they were married
Communications in front of older children and friends are not confidential
Exc:
Victim Spouse or Children: No privilege in criminal cases or intentional tort where the spouse or child are victims
Suits between spouses: divorce proceedings (or any proceeding) between spouses = no privilege
Joint spousal commission of
crime
: when two spouses commit a crime together they may be indicted to reveal communications
NOTE: NOT the same as spouses as co-plaintiff or co-defendants in a civil case
Psychotherapist-patient (mental):
VERY BROAD
confidential communications between a psychotherapist and a patient who is seeking diagnosis or treatment for medical condition
EXC:
statements made regarding commitment proceedings;
statements dealing with court-ordered examinations; and
when med condition is part of the claim
future crime or fraud
extends to - social workers, psychologists, mental health specialists, psychiatrists, marriage counselors.
NOT
education and vocational counselors
Attorney-Cleint (legal):
Client
holds the privilege
Including anyone SEEKING legal services
The privilege
client may refuse to disclose (and prevent others from disclosing) (1)
confidential communications
made (2) in the
purpose of seeking
legal advice
Confidential communications
Confidential
: if communication is reasonably confidential then the communication is privileged
2 more items...
communications
are protected. observations and tangible things generally are not. Communications include written/oral statements, and conduct intended as communication
Fee arrangements are not privileged
Special consideration
: an attorney who sends a client to a doctor for the purpose of having confidential communications
Attorney
: a authorized lawyer, or someone client reasonably believed to be authorized
including agents of the attorney
Waiver:
failure to assert privilege in timely manner results in
partial waiver
Meaning privilege is waived only to the extent to permit reasonable scrutiny of the disclosed information by the opposing party
Total Waiver
:
only if client intentionally waived; and
both the disclosed and undisclosed info concerns the same subject matter
Inadvertent waiver:
Court will find NOT a waiver if:
client did NOT intend to waive privilege;
client took reasonable steps to protect the information; and
the client took timely steps to remedy the disclosure
Exceptions to the privilege
Future crime or fraud
suits between attorney and client
"joint client" exception
1 more item...
Work Product Doctrine
Atty may refuse to share material prepared by the attorney in anticipation of litigation (documents, files, notes, thoughts, or impressions) in discovery
EXC: if a party requesting WP can show "substantial harship" and "no other way of obtaining evidence, " then WP is discoverable
perlim Q for the judge
Clergy-penitent (religeous):
if communication is confidential and given to clergymen their capacity as spiritual advisors it is privileged
both may assert the privilege
Note: no doctor-patient privilege exists under FRE
Key Points
protected relationships
Communication
confidentiality
holder
waiver; and
1 more item...
Character Evidence
General Points
Character Evidence may be:
Macro-character evidence; or
evidence about a general personality trait ("X is a good law-abiding citizen")
Micro-character evidence:
evidence of a specific personality trait (X is a violent, neat, punctual)
offered, typically, in the form of witness testimony
Character witness MUST have sufficient "familiarity" with person/community
Three steps in analyzing CE + Rules
(1) Is it CE at all?
CE comes in the form of R.O.SA.
R.
Reputation
Witness testifies to another's reputation as to character. Reputation is just the collective opinions of others
Reputation evidence is
hearsay
, but a hearsay exception applies FRE 803(21)
O.
Opinion
Witness testifies to their opinion of another's character
Note for a
Character Witness
to testify about any form of CE (R.O.SA.), they
must have sufficient knowledge
3 more items...
SA.
Specific Acts
Witness testifies to specific acts (instances of conduct) of another that reflect the other's character
(2) Why is it being offered, and (2a) Is it admissible for that purpose
CE will be offered for one of three purposes - Think: "he has
I.C.E.
in his veins"
I.
Impeachment
Character Evidence
CE offered to impeach or rehabilitate a witness with
evidence of their character for trustworthiness
Generally admissible
C.
Conformity
character evidence a.k.a. "propensity evidence"
CE offered as circumstantial evidence to show conforming conduct
Generally not admissible
- FRE 404(a)
E.
Element
character evidence - "character at issue"
offered because it's relevant to an essential element of the claim or cause of action
generally admissible
, but rare in civil, and more rare in criminal
analyze in EIC order -
E. first because while rare, it is easy to spotby the cause of action
I. second because impeachment CE ONLY APPLIES when ROSA reflects on a character for truthfulness
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(3) If admissible for that purpose, what method is permitted
E.
Limited application: Civil causes of action where CE is an element:
Darn N.I.C.E.
D
efamation
N
egligent Entrustment, hiring, supervision
1 more item...
Full R.O.SA.
I.
But, admissible in different scenarios depending on ROSA
Impeachment by R. and O.
ON DIRECT - A witness may use extrinsic evidence of R. and O. to impeach (affect character for truthfulness) in civil or criminal trail
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Impeachment by prior bad acts (bad SA.)
ON CROSS EXAMINATION - SA of any testifying witness that are probative for their truthfulness are admissible for attacking or supporting their credibility
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C.
Except in five cases - "
I'll Take Crimes and Sex for Five!
"
"Criminals Attack Victims"
CRIMINAL defendant may offer CE of victim's pertinent character as circumstantial evidence - often violence to show defendants self-defense claim is valid
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"Peaceful Dead Guys"
In CRIMINAL HOMOCIDE CASE the prosecution may offer CE of victim's trait for peacefulness to rebut evidence they were the initial aggressor, EVEN if defense has not offered CE of victims character for violence
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"Rape Shield"
BROAD RULE OF EXCLUSION
1 more item...
"Sexual Predators"
In CRIMINAL case where defendant is accused of child molestation or sexual assault.
SA.
by defendant are admissible and may be considered
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"Good Criminals Go First"
CRIMINAL defendant can always offer testimony about
pertinent
good character - "opening the door" NOTE - can't bulter credibility
2 more items...
Other Crimes Evidence Rule + "CE look-a-likes"
Other Crimes:
Evidence of other crimes, wrongs, or acts is inadmissible as circumstantial evidence to show conforming conduct (essentially same rule as C.)
But
CE Look-A-Likes:
Special Relevance (
MIMIC+ Rule
)
1 more item...
Habit and Routine
A habit or routine is a "repeated response by the individual or organization to a particular situation."
RULE: Evidence of
habit
of a person or
routine
practice of an organization is
relevant to prove conformity
w/ that habit or routine, even w/o corroboration or an eyewitness
TEST TIP: look for questions words like: always, automatically, regularly, instinctively, etc.
Usually, often, frequently, etc. are insufficient for habit
Admissible in the form of O. and SA.
Public Policy Exclusions
Some relevant evidence is inadmissible for public policy purposes
Subsequent Remedial Measures
RULE: Evidence of SRM is inadmissible to prove negligence, culpable conduct, design defect, or need for warning
Because we want to encourage people to fix dangerous conditions and make things sage
Unless SRM evidence is used to
show ownership/control if denied, feasibility of precautionary measures if denied, and to impeach
Compromise
RULE: Evidence of an offer to settle a claim, which is DISPUTED either as to validity to amount, AND statements made in connection therewith are inadmissible to
prove liability or amount
Because we want to encourage out-of-court settlement in civil cases and offers may be made merely to avoid expense and hassle of litigation
Exceptions: admissible to show bias/prejudice, and to negate a contention of undue delay
Note: compromise negotiation evidence cannot be used for impeachment by prior inconsistent statement
Note: DISPUTED statements are inadmissible.
A complete admission of fault it admissible because there is no dispute
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Offer to Pay/Payment of Medical/Similar Expenses
Evidence of offering to pat medical (hospital or similar) bills and paying them are
INADMISSABLE
to prove liability,
BUT
any admissions of fact made in connection are admissible
NO NEED FOR DISPUTE
REDACTION RULE:
Compromise rule says: offers and accompanying statements are inadmissible
IN CONTRAST
Offer to Pay/Med Bills Rule says: only the offer is inadmissible
Pleas, Plea Discussions, and Related Statements
Liability Insurance
Evidence that a person was or was not insured is INADMISSABLE to prove negligence or fault
1 more item...
A plea and any statement made during plea negotiations by a defendant to a prosecutor in a criminal proceeding is inadmissible against the defendant in proceedings IF:
not accepted by court;
later withdrawn by the defendant; or
the defendant pleads nolo contendere
Does NOT exclude evidence if plea is entered
1 more item...
Types of Evidence
4 TYPES
Circumstantial Evidence
Requires inference
i.e. footprints in snow toward where a newspaper was placed - used to show that a person delivered the paper
Real Evidence
Tangible things
Evidence can be real and direct, circumstantial, or demonstrative
Real Evidence Requires
authentication
Demonstrative Evidence
Evidence prepared/anticipated of trial to assist a just or fact-finder
Power-point presentations, photo enlargements, maps
Direct Evidence
Requires no inference
i.e. The murder weapon, testimony: "I saw X shoot Y"
If Evidence is a Document think
B.A.H.
Documents must be:
B. Best Evidence
Generally: to prove the content of a writing, recording, or photograph, the original is required
Issue spotting: look for wills, contracts, and deeds Qs
The rule only applies where the content is at issues. This occurs in two primary scenarios
(1) Legally operative documents
where the writing has independent legal significance (i.e. the writing itself creates of destroys a legal relationship)
i.e. Ks, wills, deeds, mortgages, lease, driver's license, etc.
(2) Document-dependent testimony
Where the testimony is reliant on the writing, not on personal knowledge
Where the BE rule does NOT APPLY - Independent Source Rule
Where a fact being proves has a source independent from the writing then CONTENTS are not in issue and BE rule doesn't apply
What is "Original"
The original itself or one of three possible substitutes
Duplicate (photocopy)
has same authroity as original unless their is genuine questions about authenticity
Certified copy of a public record
summaries of voluminous records
Admissibility of other evidence of Content
Original is not required and other evidence of the contents of a writing, recording, or photograph is admissible, if
C.L.O.T.S.
applies
C. Collateral
where the writing, recording or photo is not closely related to a controlling issue
L. Lost
all originals have been lost or destroyed - unless lost/destroyed by proponent in bad faith
O. opponent
The opponent has possession of the original and refuses to deliver
T. Testimony or admission by opponent
S. subpeona
the original cannot be obtained by any available judicial procedure
A. Authenticated
meaning: The document is what the proponent claims it to be. Only tangible evidence needs to be authenticated
Methods of Authentication
Extrinsic or Intrinsic Method
Extrinsic
generally means a sponsoring witness is required to authenticate the item
Direct evidence
someone w/ personal knowledge of, or familiarity with the item, or a "custodian of records" testifies to authenticate the item
Test for photos and diagrams
: is it a "fair and accurate representation" of what the proponent claims it depicts
1 more item...
Circumstantial evidence
Chain of Custody
: used for undistinguishable items; witness(es) can testify to where item was from the moment that mattered to the moment when offered
1 more item...
Ancient Document rule: old documents (at least 20) found in an anticipated spot in the circumstances suggest authenticity
Intrinsic
generally means the item is
self-authenticating
H. Hearsay - see hearsay rules for documents
REMEMBER NOT TO START HEARSAY ANALYSIS HERE. Begin with G.R., Definitions, and then exceptions, before moving to analysis.