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Evidence, Character? Habit? Other wrongs? Social policy? Similar…

- - - - Similar Occurrences: GR: if evidence involves some time, event, or person other than that involved in the present case, it is inadmissible (rationale: doesnt survive 403).
        
        Exception: P's Accident History, Prior False Claim, or Same Bodily Injury. Admissible to show something other than carelessness: show previous similar false claims that would indicate present claim is likely false. Evidence of PRIOR ACCIDENTS admissible if P injured the same part of the body.
        
        Exception: Similar Accidents or Injuries Caused by Same Event or Condition. Must occur under substantially similar circumstances, and would be admissible to prove: 1) the existence of dangerous condition 2) that dangerous condition was cause of present injury 3) the defendant had notice of dangerous condition.
        
        Exception: Previous Similar Acts to Prove Intent.
        
        Exception: Sales of Similar Property: admissible to prove the property's value. However, prices quoted in mere offers to purchase are generally inadmissible
        
        Exception: Rebutting Claim of Impossibility
        
        Exception: To Prove Complex Causation
        
        Exception: Habit describes a person's regular response to a specific set of circumstances. Test: 1) frequency of conduct and 2) particularity of circumstances** DISTINGUISH FROM CHARACTER EVIDENCE
        
        Exception: Industry Custom to show standard of care, but its not conclusive
      - Public Policy Exclusions (you have to bring up the policy rationale for each one on MEE)
        
        Subsequent remedial measures: evidence of repairs or other precautionary measures made following an injury is not admissible to prove negligence, culpable conduct, a defect in a product or its design, or a need for a warning or instruction. POLICY: courts do not want to discourage defendants from taking steps that further safety.
        
        Inadmissible: to prove negligence, culpable conduct, defect, need for warning
        
        Admissible: to prove owenrship or control to rebut a claim of impossibility, or prove destruction of evidence
        
        Settlement offers and accompanying admissions of fact: only kicks in if there was a claim or some indication that a party was going to make a claim (although the party need not have actually filed suit). The claim must have been in dispute as to either 1) liability or 2) amount.
        
        Inadmissible: to prove or disprove validity or amount of disputed claim, or to impeach by prior inconsistent statement or contradiction. Conduct or statements made in the course of negotiating a compromise (including direct admissions of liability), are also inadmissible for these purposes.
        
        Admissible: for all other purposes, and preexisting information is not protected. Admissible to impeach a witness on the ground of bias.
        
        POLICY: encourage litigants to settle their cases.
        
        Limited exception: civil dispute with government authority: not excluded in criminal case.
        
        Liability Insurance: evidence of a party's insurance against liability (or lack thereof) is NOT admissible to show whether the party acted negligently or otherwise wrongful. POLICY: As a society, we encourage people to buy liability insurance and not have it used against them in court
        
        Inadmissible: to prove negligence or ability to pay (meaning that it is inadmissible to show the party's fault or absence of fault)
        
        Admissible: to prove ownership or control, as impeachment, or as part of an admission of liability
        
        Payments or offers to pay medical expenses: evidence that a party has paid or offered to pay an injured person's medical, hospital, or similar expenses is inadmissible to prove liability for the injury. However, unlike the situation with settlement negotiations, admission of accompanying facts (payments and offers) are admissible!
        
        Inadmissible: to prove culpable conduct
        
        Admissible: for all other purposes
        
        POLICY: courts do not want to discourage parties responsible for injuring others from paying for the treatment of those injuries,
        
        Withdrawn guilty pleas and accompanying statements: generally inadmissible in any criminal or civil case against the defendant who made the plea or participated in the discussions. Ex. Offers to plead guilty, withdrawn guilty pleas, actual please of solo contenders (no contest), or statements of fact made during any of the above plea discussions.
        
        Inadmissible: for nearly all purposes
        
        POLICY: encourage plea bargaining
      - Character Evidence: refers to a person's general propensity or disposition (such as for honesty, fairness, peacefulness, violence). 1) Could be offered as substantive evidence for the following purposes: character directly at issue as an element of a claim or defense (never crime, and this is rare). 2) To serve as circumstantial evidence of how a person probably acted. 3) Witness bad character for untruthfulness may be brought up for impeachment purposes
        
        Civil (Generally Inadmissible)
        
        Exception: when proof of a person's character is directly at issue as a matter of substantive law as an essential element of a claim or defense (Defamation, fraud, Negligent hiring or entrustment, Child custody).
        
        All forms of character evidence allowed (reputation, opinion, specific acts)
        
        if party testifies, automatically places their character for truthfulness or untruthfulness at issue (same as in criminal case)
        
        Criminal
        
        Defednant's Character (Prosecution cannot initiate any reputation or opinion evidence of D's bad character during their case in chief, if to show propensity. D must open the door by introducing evidence of their own RELEVANT (reputation or opinion evidence only, no specific acts or instances )good character to show that they acted in conformity with that trait to show innocence first).
        
        D can testify about about their own good reputation for a pertinent trait and may give their personal opinion concerning that pertinent trait
        
        Prosecution, once D Opened door:
        
        Cross examine D's character witness: can ask "have you heard" or "did you know?" questions about D's specific acts that show D's character for trait in question. Purpose: show witnesses' lack of knowledge
        
        Prosecution can call its own character witness to provide reputation or opinion testimony about D's bad character.
        
        Victim's Character
        
        Prosecution initiate: Homicide case-->if D pleads self defense-->evidence of ANY kind that the victim was the first aggressor opens the door to evidence that the victim had a good character for peacefulness.
        
        Defendant initiates: except in sexual assault cases, reputation or opinion of victim bad character if relevant to show D's innocence.
        
        Prosecution can rebut with: 1) victim's good character for same trait or 2) D's bad character for the same trait
        
        Rape Victim: generally inadmissible.
        
        Criminal cases: admissible to prove that someone other than D is the source of semen, injury, or other physical evidence. Specific instances of sexual behavior between the victim and the defendant are admissible by the prosecution for any reason and by the defense to prove consent.
        
        Civil cases: Probative value must outweigh the danger of harm to the victim and unfair prejudice to any party. reverse 403
        
        If D testifies, the prosecution can attack their credibility
        
        Methods: 1) Specific Acts 2) Opinion 3) Testimony of reputation
      - Other Misconduct for Non Character Purpose: other crimes, wrongs, or acts are generally inadmissible if offered to prove conduct in conformity/propensity.
        
        Admissible for non-character purposes such as motive, intent, absence of mistake, identity, or common plan or scheme. MIMIC
        
        There must be sufficient evidence to support a jury finding that the D committed the other misconduct AND 403 relevance test.
        
        Notice requirement in ciminal cases
        
        . In a criminal case, evidence of the defendant's other crimes or misconduct is inadmissible if offered solely to establish criminal disposition. A broad exception to the general rule permits evidence of other crimes or misconduct to be admitted if such acts are relevant to some issue other than the character of the defendant to commit the crime charged
      - Writing? Could also be a hearsay issue
        
        Authentication : must occur by proof that shows that the writing is what the proponent claims it is. Occurs via the following methods:
        
        Opponent's Admission
        
        Eyewitness testimony
        
        Handwritting verification: can be authenticated by 1) person with familiarity before trial 2) expert witness 3) trier of fact (jury)
        
        Ancient documents (more than 20 years old)
        
        Reply letter doctrine
        
        Photographs and Videos
        
        For a photograph that is used as demonstrative evidence, authentication is by testimony that the photo is a faithful reproduction of the object or scene depicted
        
        X-ray pictures
        
        Oral statements: need voice identification.
        
        There are also self authenticating documents
        
        Voice authentication: 1) someone with familiarity for purpose of trial or just before trial 2) expert witness 3) trier of fact comparison. CANT rely on someone else's assertion (hearsay). We are looking for PERSONAL familiarity
        
        Real evidence presents an object in issue directly to the trier of fact. One of the general requirements for admissibility of real evidence is that it be authenticated; i.e., that it be identified as being what its proponent claims it is. If the evidence is of a type that is likely to be confused or can be easily tampered with, the proponent of the object must present evidence of chain of custody. The proponent must show that the object has been held in a substantially unbroken chain of possession. It is not necessary to negate all possibilities of substitution or tampering; rather, what is required is to show adherence to some system of identification and custody.
        
        All that is necessary is proof sufficient to support a jury finding of genuineness. The authenticity of a document is a preliminary fact to be decided by the jury.
        
        Best Evidence Rule: to prove the content of a writing, recording or photograph, the original writing must be produced if the terms of the writing are material. OR must be shown that original is unavailable.
        
        Secondary writing: admissible only if the proponent provides satisfactory excuse for the original's absence.
        
        Applies: 1) writing is a legally operative or dispositive instrument OR 2) knowledge of a witness concerning a fact results from having read it in the writing.
        
        DOES NOT APPLY: witness has personal knowledge of the facts. Oral testimony is fine
      - Witnesses Rules
        
        Must be competent: personal knowledge PLUS oath of affirmation
        
        Forms of questioning
        
        Leading Questions: generally allowed on cross examination
        
        Scope of cross: limited to the scope of direct examination and for matters that test the witness's credibility.
        
        A witness may be interrogated upon cross-examination with respect to an act of misconduct only if it is probative of truthfulness. An assault is not probative of truthfulness, so it would not be proper impeachment evidence. Had the witness been convicted of the assault, the conviction would have been admissible, provided it was a felony.
        
        Using Documents to Aid Oral Testimony
        
        GR: witnesses cannot read their testimony from a prepared memorandum: must testify on the basis of their current recollection.
        
        Refreshing Recollection: A witness may use any writing or object for the purposes of refreshing their present recollection. Not offered as substantive evidence,
        
        Adverse party can then have that writing produced at trail, cross examine W about writing, introduce portions of the writing related to witness testimony as evidence.
        
        Recorded Recollection: where a witness states that they have insufficient recollection of an event to enable them to testify fully and accurately even after they have consulted a memorandum or other record given to them on the stand the record itself may be read into evidence if power foundation is laid
        
        Foundation: insufficient recollection, had personal knowledge, made or adopted by the witness, made when matter was fresh, witness vouches for accuracy of record
        
        Opinion Testimony
        
        Lay: admissible if rationally based on witness's perception, helpful to a clear understanding of the witness's testimony or helpful to the determination of fact act issue, and NOT based on scientific, technical, or other specialized knowledge
        
        Not admissible when asked to give opinion about legally operative issues such as agency or contracts. BUT can testify as to surrounding facts
        
        Lay opinion testimony is admissible when: (i) it is rationally based on the perception of the witness; (ii) it is helpful to a clear understanding of his testimony or to the determination of a fact in issue; and (iii) it is not based on scientific, technical, or other specialized knowledge. [Fed. R. Evid. 701] One matter about which a lay witness may testify is the general appearance or condition of a person. In contrast, expert opinion testimony is called for when the subject matter is such that technical or other specialized knowledge will assist the jury in understanding the evidence or determining a fact in issue.
        
        Expert
        
        Reqs for admission: 1) subject matter must be scientific, technical, or other specialized knowledge 2) must be based on sufficient facts or data 3) opinion must be based on reliable principles and methods 4) reliably apply principles to fact of case
        
        Qualification: special knowledge, skill, experience, training, OR education
        
        Proper factual basis: personal observations, made known to expert at trial, facts reasonably relied on by other experts in the field (those facts need not be admissible as evidence)
        
        Reasonable proability regarding their opinion, cant just be speculation
        
        Reliability
        
        Daubert: Testing of principle or method, Rate of error, Acceptance by experts in the same discipline, Peer Review and publication
        
        Civil: can give opinion on ultimate issues. Criminal: not if involves D's mental state if part of crime element
        
        Evidence of pretrial experiments that does not require expert testimony is treated no differently under the Federal Rules from other evidence. It will be admissible if it is relevant (i.e., if it has any tendency to prove or disprove a fact that is of consequence to the action) and if it is not barred by a specific exclusionary rule or the general balancing test of Rule 403
      - Impeachment Methods: cross examination or extrinsic evidence
        
        Prior Inconsistent Statements: statements that are inconsistent with their present testimony. Generally do not come in for substantive truth, only for impeachment purposes. Cross or extrinsic evidence
        
        usually are hearsay, except when the statement was given under oath at prior proceeding-->admissible as substantive evidence
        
        Foundation for extrinsic evidence: at some point, witness was given opportunity to to explain or deny statement, and the adverse party is given an opportunity to examine witness about statement.
        
        Exception: if statement is opposing party's statement
        
        Exception: inconsistent statment by a hearsay declarant can be used to impeach the hearsay declarant despite lack of foundation
        
        Exception: where justice so requires
        
        Bias or motive to misrepresent(or has an interest in outcome of case) shows motive to lie
        
        Foundation for extrinsic: must first be asked about the facts that show bias on cross.
        
        Sensory Deficiencies (no foundation requirement)
        
        Contradiction
        
        If witness admits the mistake or lie, they have been impeached by contradiction. Extrinsic evidence is permitted unless the fact is collateral
        
        Opinion or reputation evidence for truthfulness: a witness can be impeached with reputation or opinion evidence of their own bad character for truthfulness, to suggest that they were not telling the trust while on the stand. May be proven by extrinsic evidence
        
        Prior Convictions: a witness may be impeached by proof of a conviction for certain crimes. Pending review or appeal does not affect the use of a conviction for impeachment.
        
        Any crime involving Dishonesty or False Statement: court has no discretion to bar impeachment. It's coming in
        
        Felony (punishable by more than 1 year) (not misdemeanors) not involving dishonesty or false statement Court has Discretion
        
        All other witnesses-->regular 403
        
        If witness being impeached is a criminal defendant, inclusion of conviction depends on whether probative value substantially outweighs the prejudicial effect (jury thinks guilty)-->reverse 403, rigged in favor of exclusion.
        
        Keep in mind: "Too remote if 1more than 10 years elapsed from date of release from confinement for conviction" conviction must have happened less than 10 years ago. But can still be admitted in extraordinary circumstances
        
        Bad Acts: impeach W on cross with a question inquiring into an uncnvoicted prior bad act that bears on truthfulness. Arrest itself doest count (does not bear on truthfulness). No extrinsic evidence allowed, if W denies specific act
        
        Learned treatises can be used either for impeachment or as substantive evidence. One way the credibility of an expert witness may be attacked is by cross-examining him as to his general knowledge of the field in which he is claiming to be an expert. This can be done by cross-examining the expert on statements contained in any scientific publication that is established as reliable authority. Reliability of a publication may be established by: (i) the direct testimony or cross-examination admission of the expert, (ii) the testimony of another expert, or (iii) judicial notice. The Federal Rules recognize an exception to the hearsay rule for learned treatises and admit them as substantive evidence if: (i) the expert is on the stand and it is called to his attention, and (ii) it is established as reliable authority
      - Hearsay
        
        Definition: an out of court statement a statement (other than one made by declarant while testifying at the current trial or hearing,) offered in evidence to prove the truth of the matter asserted
        
        Look out for hearsay within hearsay: every level of hearsay must meet an exception in order to be admitted into court
        
        Statement: 1) oral or written assertion 2)nonverbal conduct intended to be an assertion. NO SUCH thing as nonhuman declarations
        
        when only a portion of a statement is introduced, the other party is entitled to introduce the other portion of it as a matter of fairness
        
        Offered to Prove the Truth of the Matter Asserted: if its being offered to prove the truth of the matter asserted in the statement. Look out for non-truth purposes.
        
        Ex. Verbal acts or legally operative facts, effect on listener, circumstantial evidence of D's state of mind,
        
        If the statement meets the definition of hearsay, and does not fall into any of the exemptions or exceptions to the rule against hearsay, that statement is inadmissible
        
        Hearsay Exemptions
        
        Prior Statements of Witness: GR a witnesses' prior out of court statement is hearsay unless exception applies. BUT if witness is present and subject to cross examination, the statement is not hearsay if:
        
        Prior consistent statement: consistent with the D's in court testimony and is offered to 1) rebut a charge that the witness is lying or exaggerating because of some motive or 2) offered to rehabilitate a witness whose credibility has been impeached on some other ground.
        
        the statement is one of prior identification that she identified a person after perceiving them, provided she testified
        
        the prior statement is inconsistent with D's in court testimony given under oath in prior proceeding.
        
        Statements by or Attributable to Opposing Party: anything said by a party can be used against them
        
        a co-conspirator's statement to qualify as a vicarious statement of an opposing party, the statement must have been in furtherance of the conspiracy by a participant in it. Statements that would thwart the conspiracy itself do not count.
        
        Hearsay Exceptions
        
        Availability Immaterial
        
        Excited Utterance: statement made under the stress of excitement. Because: we believe that the condition that created excitement precludes capacity to lie. Personal knowledge required. Made while D is stressed. time to cool down? does not apply
        
        Then existing physcial, emotional, or mental condition: "my back hurts" "im going to Colorado" NOT "I had a terrible back ache last night". Under the state of mind exception to the hearsay rule, a declaration of intent to do something in the future is admissible as circumstantial evidence tending to show that the intent was carried out.
        
        Medical excdeption: for purposes of medical diagnosis or treatment. Present or past medical condition. Generally if admit fault. Concerns the nature or the injury or medical condition usually made to medical personnel, but only if its related to diagnosis or treatment.
        
        Past Recollection Recorded: attempt to refresh recollection must have been attempted and fail.d Then can read into evidence where cant remember. Writing itself must have been made or adopted by witness when event was fresh in mind. Witness can read it into evidence if cant remember. WRITING ITSELF is not admitted-->unless offered by other party
        
        Present Sense Impression: come in for their truth, because it is unlikely that someone could fabricate these. if made contemporeanseoisly or after perceiving the event (seconds. Personal knoweel. Indicia of sponteneity. No time to reflect.
        
        Business Records: if the record was created as routine practice. Needs to be made by person with knowledge, business duty to record, at or near the time of recording of act, based on event or condition. Regular course of business
        
        Public record exception: 1) record of activity of public agency 2) matters observed pursuant to duty imposed by law 3) factual findings of official investigation
        
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        Felony Convictions: judgments of felony convictions are admissible in both criminal and civil actions to prove any fact essential to the judgment, whether the judgment arose after trial or upon a plea of guilty. [Fed. R. Evid. 803(22)] For purposes of this Rule, a felony is any crime punishable by death or imprisonment in excess of one year.
        
        D Unavailable (privilege, refusal to testify, incapacity, subpoena, memory) PRISM (i) she is exempted from testifying because the court rules that a privilege applies, (ii) she refuses to testify concerning the statement despite a court order to do so, (iii) she testifies to not remembering the subject matter of the statement, (iv) she cannot testify because she has died or is ill, or (v) she is absent and the statement's proponent is unable to procure her attendance or testimony by process or other reasonable means
        
        Former Testimony: think prior deposition, same D Opportunity and similar motive to develop testimony.
        
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        Dying declaration: declarant statement must concern cause or circumstance of death, believe death is imminent, exception only applies to civil case and criminal homicide cases.
        
        Declaration against interests: Under the Federal Rules, statements of a person, now unavailable as a witness, against that person’s pecuniary, proprietary, or penal interest when made are admissible as an exception to the hearsay rule
        
        "catch-all" exception. Before evidence can be admitted under this exception, however, an elaborate pretrial notice procedure must be followed to assure that the other party has an opportunity to prepare to meet the hearsay evidence.
        
        Under the Confrontation Clause, an accused has the right to be confronted by the witnesses against him. A hearsay statement will not be admitted-even if it falls within a hearsay exception-when: (i) the statement is offered against the accused in a criminal case; (ii) the declarant is unavailable; (iii) the statement was testimonial in nature; and (iv) the accused had no opportunity to cross-examine the declarant's "testimonial" statement prior to trial. The Supreme Court has established that if the primary purpose of police interrogation is to enable the police to help in an ongoing emergency, statements made in the course of the interrogation are nontestimonial. When the primary purpose of the interrogation is to establish or prove past events potentially relevant to a later criminal prosecution, statements are testimonia
      - REAL EVIDENCE
      - When part of an act, conversation, or writing is introduced into evidence, the Federal Rules provide that the adverse party may compel the proponent of the evidence to introduce any part thereof that ought, in fairness, to be considered at the same time.