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Evidence - Coggle Diagram
Evidence
Relevance
Legal Relevance
Relevant evidence may still be excluded for public policy reasons including
legal relevance.
Under FRE 403, a court has the discretion to exclude relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice; confusion of the issues; misleading the jury; or by consideration of undue delay, waste of time, or needless presentation of cumulative evidence
Remember that the requirement is
unfair
prejudice, not just prejudice. Evidence is always prejudicial to the party objecting to the evidence, but that doesn't mean it rises to the level of unfair prejudice
Exceptions
Evidence may be admitted that does not relate to the particular event but is a
prior similar event
Includes causation; similar accidents or injuries caused by the same event; and similar acts admissible to prove intent, habit, and industrial custom or routine
Liability insurance
may be admissible to prove ownership or control, although it is not admissible to show negligence or ability to pay
Subsequent remedial measures
are not admissible to prove negligence, but may be admissible to prove ownership or control, or to prove destruction of evidence
Settlement offers
and
withdrawn guilty pleas
are also inadmissible to prove responsibility, although they may be admissible for other purposes
Definition: Evidence having any tendency to make the existence of any fact of consequence to the action more probable than it would be without the evidence
Character evidence
Considerations include the purpose for the offer of character evidence and the means of proving character
Criminal
Direct Examination: Prosecution cannot initiate
Cross-Examination
Party: Defendant can introduce evidence of good character to help prove innocence
Party or witness: Impeachment
Civil
Direct Examination: Generally not admissible. Only when character directly at issue: child custody, defamation, etc.
Cross-Examination
Party or witness: Only for impeachment
Witnesses
Privileges
No specific provision of the FRE provides for federal privileges. FRE 501 states that privileges are governed by common law. The federal courts have recognized these privileges in states that provide for them and thus should be your focus
Attorney-client privilege
Client may refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of rendition of professional legal services to the client
Includes the attorney and its representatives
Only the client can waive the privilege
Physician, psychotherapist, or social worker-patient privilege
Confidential communications made for the purpose of diagnosis or treatment of the patient's physical, mental, or emotional condition
Spousal privilege
Marital communication privilege - provides that either spouse has a privilege to refuse to disclose and to prevent her spouse from disclosing a confidential communication made between spouses while they were married
Spousal testimony privilege - a spouse may not be called as a witness by the prosecution against his spouse in a criminal case and may not be compelled to testify against his spouse in any criminal proceeding including those where the spouse is not the defendant
Competency
The witness must have the capacity to observe, to recollect, to communicate, and to appreciate the obligation to speak truthfully
FRE requires that the witnesses have personal knowledge and must declare he will testify truthfully
Impeachment
The purpose is to cast an adverse reflection on a witness's truthfulness. Two methods are cross-examination and extrinsic evidence, which is by asking the witness directly or by admitting other evidence, such as another witness or a document
Impeachment through cross-examination also includes prior inconsistent statements, bias or interest, and criminal convictions
A party need not show a prior inconsistent statement to a witness. On request, the party must show it to an adverse party's attorney
Extrinsic evidence
is admissible only if the witness has the opportunity to explain the statement and an adverse party has the opportunity to examine the witness about it or if justice requires. This rule does not apply to admissions by a party opponent under FRE 801(d)(2)
Two categories of crimes
Crimes involving dishonesty
(e.g., fraud or perjury)
The court has no discretion to exclude these crimes and there is no time limitation on how old the crime is
Felonies not involving dishonesty
The court has discretion to exclude the conviction. The crime must not be too remote. Generally, if it has been over 10 years since the date of conviction or release from confinement imposed for the conviction, the conviction is excluded
The court imposes a balancing test.
For the accused, the government must show the probative value as impeachment is not outweighed by its prejudicial effect. The standard is "outweighs" not "substantially outweighs." This standard favors excluding the felony conviction of an accused
For a witness other than the accused, the balancing test is FRE 403 and requires that the probative value be substantially outweighed by the danger of unfair prejudice. This favors admission and extrinsic evidence of the crime is permitted
Extrinsic evidence is most prevalent as an issue when dealing with
prior bad acts
(FRE 608)
Interrogation
about prior bad acts is admissible within the court's discretion. The bad act must be probative of truthfulness
Extrinsic evidence of bad acts is not permitted. Thus, if the witness denies the act, the cross-examiner cannot refute the testimony by calling other witnesses or by producing other evidence
Reputation
evidence
A witness may be impeached by showing a poor reputation for truthfulness. This is done by calling another witness from the community where the impeached person lives or from his business circle. The impeaching witness may also state her personal opinion based on acquaintance, subject to the court's discretion
Impeachment is not allowed on a collateral matter, but impeachment is allowed of a hearsay declarant
Relevance
Character
Criminal trial
On direct examination in a criminal trial, character evidence is not allowed to prove conformity with the party's character
It is allowed for other purposes including motive, opportunity, intent, preparation, common scheme or plan, knowledge, identity, absence of mistake, or accident
Civil trial
Character evidence is not allowed unless character is at issue, such as child custody cases.
Character evidence issues also arise with impeachment
Opinion
Lay witness (generally inadmissible)
May be allowed if no better evidence exists. In those situations, the lay opinion must be:
Based on the witness's perception;
Helpful for a clear understanding of a fact at issue; and
Not based on scientific, technical, or other specialized knowledge
Expert witness
Commonly tested whether expert testimony is needed (subject matter). Another area tested is whether the opinion is supported by a proper factual basis
Subject matter appropriate for expert opinion
Technical knowledge
Other specialized knowledge
Scientific knowledge
Witness qualifies as expert
Opinion backed with reasonable certainty
Opinion supported by a proper factual basis
Personal knowledge
Facts made known at trial
Facts made known outside of court
Facts need not be admissible in court
Of the kind that are reasonably relied upon by experts in the field
Hearsay
Definition
First, state rule: Hearsay is inadmissible without an exception.
Define:
Hearsay is an out-of-court statement offered to prove the truth of the matter asserted
Party? Then it is an
admission
of a party-opponent
If not a party, analyze both parts of the rule: out-of-court statement and offered for the truth of the matter
Remember that a document can also be hearsay
Double or triple hearsay
: Each level of hearsay must be analyzed separately. Look for documents and individuals
Non-Hearsay
Admissible?
Exceptions: Only address whether a hearsay exception applies after you have determined that it is hearsay and not a party-admission (sometimes multiple exceptions apply). Be careful to look for admissions in all double and triple hearsay questions
Declarant unavailability (privilege; refusing to testify; lack of memory; death or physical/mental illness; absent beyond the reach of the court's subpoena power and the proponent of the statement has been unable to procure attendance or testimony
Five exceptions that require the declarant to be unavailable
Dying declarations
Statement made by declarant believing that declarant's death was imminent;
Statement about its cause or its circumstances
Statement of personal or family history
Statements against interest
Reasonable person in the declarant's position would have made only if the person believed it to be true;
Contrary to declarant's proprietary or pecuniary interest;
Supported by corroborating circumstances that clearly indicate its trustworthiness
Statement offered against party procuring declarant's unavailability
Former testimony
Given as a witness at a trial, hearing, or lawful deposition;
Offered against a party who had an opportunity and a similar motive to develop it by direct, cross-,, or redirect examination
Declarant unavailability immaterial?
Present state of mind or physical condition
Must be then-existing state of mind or emotional, sensory, or physical condition;
Not including a statement of memory or belief
Excited utterance
Statement relating to a startling event or condition
Made while under the stress of excitement that it caused
Present sense impressions
Statement describing or explaining an event or condition;
Made while or immediately after the declarant perceived it
Business records
Kept in the course of a regularly conducted activity of a business or organization;
Making the record was a regular practice of that activity;
Made at or near the time by someone with knowledge;
Shown by the 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 legal duty to report;
Neither the source of information nor other circumstances indicate a lack of trustworthiness
Record sets out the office's activities;
Past recollection recorded
A record that:
Was made or adopted by the witness when the matter was fresh in the witness's memory; and
Accurately reflects the witness's knowledge
Is on a matter the witness once knew about but now cannot recall;
May be read into evidence
May only be received as an exhibit if offered by an adverse party
Real Evidence
Must be relevant
The object must be authenticated - that it is what its proponent claims it to be
Accomplished by recognition testimony or chain of custody. A witness may authenticate an object if it has significant features that make it identifiable under inspection. Otherwise, the proponent must present evidence of the chain of custody of the object and that it has been held in a substantially unbroken chain of possession
Documents
Authentication
Means that the document is what the proponent claims it to be
While a few writings are self-authenticating, most writings require a testimonial sponsor to prove that the writing was made, signed, or adopted by the particular relevant person
One frequent issue is photographs. Photos must be identified by a witness as both a portrayal of relevant facts and a correct representation of those facts. The witness needs to be familiar with the scene or object depicted. Neither the photographer nor an expert is required
OIL CANS
(self-authenticating documents)
Official publications issued by public authority
Instruments - negotiable and commercial paper
Label, tag, or trademark affixed on item in regular course of business
Certified public documents (by clerk of agency or court that had custody)
Acknowledged documents signed before notary, sworn to truth, content, and execution (except wills)
Newspapers and periodicals with reasonably wide circulation
Sealed documents (government certified)
Do not conclude that evidence is inadmissible for lack of authentication. Except for photographs, handwriting, and self-authenticating documents, authentication is a non-issue. Just state "assuming proper authentication"
Best evidence rule
Only applies to documents
Look for best evidence rule issues with operative or dispositive instruments such as contracts, deeds, and wills
Any multiple-choice question that has a response that indicates testimony unrelated to a document is inadmissible as it violates the best evidence rule is incorrect
Requires the "original writing, recording, or photograph... to prove its content." Thus, the rule applies only if the contents of the writing are at issue
Relevant?
Hearsay?