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EVIDENCE - Coggle Diagram

- - - - RULE 702
      - daubert test factors
        
        Known error rate
        
        Standards of techniques operation
        
        Has is been subject to peer review
        
        Has theory been generally accepted
        
        Can theory be tested
      - what makes an expert qualified
        
        skill
        
        experience
        
        knowledge
        
        education
        
        personal knowledge
- - - - (2) to disprove that validity or amount;
      - (3) to impeach a witness’s testimony through a prior inconsistent
        statement or contradiction.
      - (1) to prove the validity or amount of a claim;
  - - - subsequent
        
        after injury occurs
      - remedial measures
        
        switch label
        
        change product design
        
        recall
      - measure
    - - impeachment
      - OR IF DISPUTED!!!
        
        ownership/control
        
        feasability
- - - - pertinent character trait
      - pertinent
        
        relevance to charged crime
    - - similar to 608/ BUT THAT IS TRUTH FOR IMPEACHMENT
      - no extrinsic evidence
      - REPUTATION/OPINION EVIDENCE ONLY
  - - - defeamation
      - child custody
      - crim entrapment
      - negligent entrustment
  - - - EXCEPTIONS
        
        ALLOWED TO PROVE CONSENT
        
        ALLOWED TO PROVE OTHER POSSIBLE INJURY/ EVIDENCE CAUSATION
      - doesnt allow character evidence for sexual misconduct cases
    - - KNOWLEDGE
      - MISTAKE ABSENCE
      - INTENT
      - COMMON SCHEME /PLAN
      - MOTIVE
      - MIMIC QUESTION
        
        criminal case
        
        offered by prosection
        
        prosecution rebuttal
        
        acts can have occurred before during or after\
  - - - ELEMENT OF CASE TYPES OF CASES
        
        child custody
        
        fraud/
        
        Defamation
        
        negligent entrustnent
        
        opens door for specific acts by victim
        LIMITED CIRCUMSTNCES!!!
      - can use ROSA
        
        REPUTATION
        
        OPINION
        
        SPECIFIC ACTS
    - - 3 EXCPECTIONS CRIM
        
        def presents evidence of victims chaaracer
        
        HOMICIDE CASE: Def presents self-defense at all
        
        def presents evidence of their own character
      - opens door/ mercy rule
        
        OPENS DOOR can only rebut with opposite trait
      - 404(a)(2)
      - can use R & O reputation and opinion only
        
        OPINION
        
        REPUTATION
- - - - fed statute
      - these rules
      - US Constitution right
      - rules by SCOTUS
    - - MATERIALITY (b) the fact is of consequence in determining the action.
        
        facts vary based on legal theory
        
        the rules of evidence exclude PROPENSITY
        
        NOT DISPUTED
        
        “The fact to which the evidence is directed need not be in dispute.” Evidence, in other words, is relevant even if it addresses a matter that the opponent concedes
      - PROBATIVE (a) it has any tendency to make a fact more or less probable than it be would without the evidence; and
      - IS IT RELEVANT???
        
        NO=UNADMISSIBLE-IRRELEVANT
        
        YES= ADMISSIBLE UNLESS
        
        habit evidence Rule 406.
  - - - judges may exclude evidence if probative value is outweighed by
        
        confusing the issues
        
        undue delay wasting time, needlessy presenting cumulative evidence
        
        unfair prejudice
        
        PRISM
        
        SETTLEMENT
        
        dispute
        
        ADVERSARIAL/DISPUTED
        
        ONE MAD AND THE OTHER AGREES IS NOT DISPUTE--> ELLE WOODS DEFAULT EXAMPLE
        
        claim
        
        LITIGATION
        
        FILE SUIT/THREATEN LITIGATION
        
        negotiation
        
        BILATERAL
        
        : “In accordance with our prior discussions and without prejudice to our clients’ respective legal positions, I am taking the liberty of setting forth below summary of the damages suffered by Harmonay ….” After listing items of damage, the letter concluded by requesting “your client’s earliest response.”
        
        MEDICAL EXPENSE OFFERS
        
        INSURANCE
        
        liability insurance
        
        REMEDIAL MEASURES
        
        PLEAS
      - MORE OR LESS PROBABLE
        
        FACT OF CONSEQUENCE
        
        NO NEGATIVE EVIDENCE; ABSENCE OF SOMETHING= NOTHING DONE
      - OLD CHIEF CASE
        
        2
        
        3
        
        stipulation/ conceding does not make evidence irrelevant or inadmisible
        
        1
        
        Rule 403’s balancing test requires the court to evaluate unfair prejudice
        
        and probative value in the context of the full evidentiary record. The availability of alternative
        
        evidence, including stipulations, affects the Rule 403 balance.
- - - - BE COMPETENT RULE 602
        
        (2) A witness must make an oath or
        affirmation to testify truthfully (Rule 603);
        
        (1) A witness may only testify
        about matters within her personal knowledge (Rule 602)
        
        (3) When state law supplies the rule of decision,
        as in a civil diversity case, state law also determines competence (Rule 601).
      - PERSONAL KNOWLEDGE
      - RULE 602
    - - DIRECT EXAMINATION
        
        introduce
        
        lay foundation
        
        examination by attorney who called witness
        
        RULE
        
        LEADING QEUSTIONS NOT USED ON DIRECT EXCEPT
        
        AS NECESSARY TO DEVELOP WITNESSES TESTIMONY
      - cross examination
        
        by opposing attorney
        
        RULE
        
        SHOULD NOTTT GO
        
        CREDIBILITY
        
        BEYOND SUBJECT MATTER
        
        ALLOWED LEADING QUESTIONS!!
      - 612 RECOLLECT & REFRESH
        
        STEPS
        
        Show memory jogger to witness
        
        TAKE JOGGER AWAY
        
        Show memory jogger to opposing counsel
        
        "DID THAT REFRESH UR MEMORY??"
        
        Identify “memory jogger” and ask witness if that might refresh
        
        WITNESS TESTOFY FROM MEMORY
        
        Witness says she can’t recall
        
        RULE 612
        
        ADVERSE PARTY CAN NOW...
        
        USE @ CROSS EXAM
        
        INTRODUCE INTO EVIDENCE/ DESPITE PRIVILEGES
        
        INSPECT
  - - - REPUTATION: witness only
        
        liar
        
        dishonest now
      - CRIMINAL CONVICTION: record and or ask
        
        liar
        
        dishonest now
        
        WHO ARE WE QUESTIONING?
        
        403 test unfair prejudice enough lower bar
        
        probative value must substantially outweigh prejudice
        
        MORE THAN 10 YEARS?
        
        YES
        
        NO
        
        CRIME OF FALSITY??
        
        YES-> ADMISSIBLE 609(a)(2)
        
        NO
        
        1 more item...
      - BAD ACTS / PRIOR BAD ACTS
        
        liar
        
        being dishonest now
        
        probative value to truthfulness/untrthfulness of witness
        
        no extrinsic evidence allowed= ANSWER BOUND IF DENIED
        
        EXAMPLES:
        
        fraud
        
        forgery
        
        fake id/ tax evasion
    - - BIAS
        
        EXTRINSIC EVIDENCE ALWAYS ALLOWED TO SHOW BIAS
        
        examples: business family money jobs grudges
      - INCONSISTENCY/ PRIOR INCONSISTENT STATEMENTS
        
        OF CONSEQUENCE
        
        RULE 613 PRIOR STATEMENTS
        
        foundational requirements
        
        witness opportunity to explain inconsistency
        
        opposing party opporunity to interrogate ANY TIME
        
        interest if justice must require
        
        EXTRINSIC EVIDENCE IS GENERALLY NOT ADMISSIBLE UNLESS...
        
        THIS DOES NOT APPLY TO ADMISSIONS BY A PARTY. THIS IT TO IMPEACH A WITNESS IF IT IS A PARTY GIVING A PRIOR INCONSISTENT STATEMENT IT IS AN ADMISSION
        
        COLLATERAL MATTER RULE; EXTRINSIC EVIDENCE IS NOT ADMISSIBLE TO CHALLENGE COLLATERAL MATTERS
        not admissible
        
        EXTRINISIC
        
        ONLY FOR NON-COLLATERAL MATTER THIS IS EVIDENCE THAT HAS TO DO WITH FACTS OF CONSEQUENCE IN THE CASE; PASS RED LIGHT, HEARD MAN SCREAM, SAW STAB
        
        generally not admissible unless
        
        EXAMPLES
      - PERCEPTION
        
        extrensic/external evidence
        
        sensory defects are always material never collateral
        
        note: drug addict is a legal status NOT PERCEPTION
    - - EXTRENSIC EVIDENCE
      - COLLATERAL MATTER
        
        solely impeachment
      - NONCOLLATERAL MATTER
      - SUBSTANTIVE MATTER
- - - - PRESENCE SENSE IMPRESSION 803(1)
        
        description
        
        made while perceiving
        
        or immediately after perceiving
        
        rationale
        
        accuracy sincerity and utility
      - EXCITED UTTERANCE 803(2)
        
        rationale
        
        utility
        
        sincerity
        
        accuracy
        
        ELEMENTS
        
        EXCITEMENT
        
        STATEMENT EVENT RELATED
      - 803(5) RECORDED RECOLLECTION
        
        witness reads the recollection
        
        witness made/adopted themselves
        
        cross exam
      - 803(4) MEDICAL RECORDS
        
        present/past symptoms
        
        medical personnel/bbelief qualified edical personnel
        
        STATEMENTS MADE FOR PURPOSE OF OBTAINING TREATMENT
        
        NOT FOR BLAME
      - PUBLIC RECORDS 803(8)
        
        ii)matter observed while under a legal duty to report but not including in a crim case matter observed by law enforcement
        
        i) sets offices activities
        
        10 FACTORS
        
        EXCEPT NOT LAW ENFORCEMENT VS CRIMINAL DEFENDANT
        
        RESULTS OF INVESTIGATION NOT AGAINST CRIM DEFENDANT
        
        NEUTAL OBSERVATION WEATHER'
        
        FACTUAL FINDINGS resulting from investigation include opinions and conclusions
        
        records of activities admissible without much restriction
        
        IF REFERENCES EXTERNAL NOT OBSERVED NOT APPLIES
        
        RECORDS NOT ADMISSIBLLE IF THEY LACK TRUSTWORTHINESS
        
        if you do have pub record MUST SATISY 803(8)
        
        make sure public record EX: NOT DEM CONVENTION
        
        STATEMENTS BY 3RD PARTIES REQUIRE SEPARATE HEARSAY EXCEPTION 2 LEVELS
      - 803(10) absence of public records
        
        proponent must show records containing the omission usually kept
        
        DILIGENT SEARCH MADE & NO RECORDS FOUND
    - - 804(b)(1)
      - dying declaratiom
        
        CUBA
        
        CAUSE OF DEATH
        
        UNAVAILABLE
        
        BELIEF DEATH IS IMMINENT
        
        ANY CIVIL CASE/ HOMICIDE CRIM CASE
      - UNAVAILABILITY 804(A)
        
        dead
        
        absent
        
        medically/mentally ill
        
        refuses to testofy
      - FROMER TESTIMONY
        
        NO GRAND JURY TESTIMONY
        
        unavailable declarant
        
        opportunity to cross examine
        
        previous litigation same motive & ability to cross examine
      - STATEMENTS AGAINST INTEREST
        
        NON PARTY
        
        against own interest @ time statement was made
        
        penal pecuniary or propietary
      - CONFRONTATION CLAUSE
        
        TESTIMONIAL EVIDENCE: PERJURY, WITNESS TESTOMONY, POLICE REPORT FOR
        
        PURPOSE OF PROSECUTION: I REPORT A MAN ASSAULTED ME TO INVESTUGATE THE ASSAULT
    - - PRIOR CONSISTENT
        
        AVAILABLE FOR CROSS EXAMINATION
        
        DECLARANT MUST TESTIFY
        
        REBUTTAL AFTER CROSS EXAM
        
        YOU DO NOT GET ADMITTED UNLESS THE PRIOR STATEMENT PREDATES MOTIVE TO FABRICATE
      - PRIOR IDENTIFICATION
        
        testify
        
        subject to cross
        
        nature of statement is identification
        
        must be the person themselves who priorly identified the def
      - PRIOR CINCON
        
        DECLARANT MUST TESTOFY
        
        AVALAIABLE FOR CROSS EXAMINATION
        
        inconsistent under penalty of perjury at proceeding
        
        trial
        
        deposition
        
        other proceeding
        
        NOT ADMISSIBLE
        
        AFFIDAVIT
        
        POLICE SWORN STATEMENT
        
        coroners request
      - ADMISSION
        
        ADOPTIVE: C & S
        
        silence: it would have been REASONABLE TO DENY @ TIME
        
        conduct
        
        ADOTPIVE
        
        2.capabe of denying it at the time
        
        1.heard/understood
        
        AUTHORIZED ADMISSION
        
        AUTHORIZE SOMONE TO SPEAK FOR YOU
        
        ex:attorney
        
        express or implied
        
        DIRECT
        
        statement by party offered by other party
        
        statements of fact or opinion
        
        VICARIOUS ADMISSIONS
        
        statements by employee offered against party
        
        statement made during employment
        
        matter within scope of employment
      - 801(3) STATE OF MIND
        
        present v future
        
        intent motive emotion
        
        KIAB KNOWLEDGE INTENT ATTIITUDE OR BELIEF
        
        INTENTA
        
        ATTITUDE
        
        KNOWLEDGE
        
        BELIEF
        
        EXAMPLE: NEGILGENCE CASE "i told that man his stairs were slippery before that victim fell"
- - - - Parties may file motions in limine either to exclude an opponent’s piece of evidence or to secure
        permission to introduce a potentially contested piece of their own evidence
    - - evidence was illegally obtained
- - - - Rulings on Evidence
        
        (b) Not Needing to Renew an Objection or Offer of Proof. Once the court rules definitively on the
        
        record—either before or at trial—a party need not renew an objection or offer of proof to preserve a
        
        claim of error for appeal.
    - - curative instruction
        
        curative instruction. This type of instruction tells the jury to disregard evidence, sometimes explaining why
      - redact
        
        (eliminate) portions of the document violating an evidentiary rule,
        while admitting the rest of the document.
    - - offer of proof
    - - (1) if the ruling admits evidence, a party, on the record:
        (A) timely objects or moves to strike; and
        
        OBJECTIION
        
        An objection occurs before the potentially offending evidence emerges fully
        
        MOTION TO STRIKE
        
        Motions to strike occur after disputed evidence has already entered the record.