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EVIDENCE - Coggle Diagram

- - - - 1. former testimony: given as W at trial, hearing, or lawful deposition; offered against a party who had an opportunity and similar motive to develop it by direct, cross, or redirect examination.
      - 2. 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.
      - 3. dying declarations: statement made by the declarant believing that the declarant's death was imminent; a statements about its cause or circumstances.
      - 4. statement of personal or family history
      - 5. statement offered against party procuring declarant's unavailability
- - - - Liability insurance may be admissible to prove ownership or control, to impeach W, or as part of admission of liability; not admissible to prove negligence or ability to pay
      - Subsequent remedial measures are not admissible to prove negligence, culpable conduct, or defect but may be admissible to prove ownership or control or to prove the destruction of evidence.
      - Settlement offers & withdrawn guilty pleas are not admissible to prove/disprove validity or amount of a disputed claim, impeach W by prior inconsistent statement/contradiction; but evidence of settlement is admissible to impeach W for bias.
      - Payments of & offers to pay medical expenses are not admissible to prove liability for the injury. But admission of fact accompanying such payments and offers are admissible.
  - - - Direct exam - generally not admissible; only when a character directly at issue: child custody, defamation, negligent hiring or entrustment.
      - Cross-Exam - party or W: only for impeachment
    - - Direct Exam - prosecution cannot initiate
      - Cross-Exam - D can introduce evidence of good character to help prove innocence and opens the door for prosecution to cross-examine D's character W (Have you heard? Did you know?); prosecution can call it's own character W to provide reputation or opinion about D's bad character for the trait in W. Party or W: impeachment.
    - - except in sexual assault case, D may introduce reputation or opinion evidence of bad character trait of V when it is relevant to show D's innocence (self-defense claims).
      - Prosecution's rebuttal - once V's bad character being introduced, reputation or opinion evidence of V's good character for the same trait or D's bad character trait may be introduced to rebut. In a homicide case in which D pleads self-defense, evidence of any kind that V was first aggressor opened door to evidence that V had a good character for peacefulness.
      - Evidence of V's character may be offered for a non-propensity purpose - to prove D's state of mind at the time of altercation.
      - Rape of V's past behavior generally inadmissible.
- - - - official publications issued by public authority
      - instruments - negotiable & commercial paper
      - label, tag, or trademark affixed on item in regular course of business
      - certified public docs (by clerk of agency or court that had custody)
      - acknowledged docs signed before notary, sworn to truth, content, and execution (except wills)
      - newspapers and periodicals w/reasonably wide circulation
      - sealed docs (gov certified)
    - - Opponent's admission
      - Eyewitness testimony
      - Handwriting verification
      - Ancient Docs (at least 20 years old)
      - Reply Letter doctrine
      - Photos & Videos
      - X-Ray Pics, electrocardiograms
- - - - Cross-Exam Method - prior inconsistent statements, bias or intent, and crim. convictions.
        
        Prior Inconsistent Statement need not be shown to W, but the party must, on request, show it to adverse party's attorney. Admissible as substantive evidence when made under oath at prior proceeding.
        
        Bias or Interest - W must be first asked about the facts that show bias or interest on cross-exam before being impeached.
        
        Sensory Deficiency - no foundation requirement; W can be asked on cross-exam or by extrinsic evidence that their faculties of perception and recollection were so impaired to perceive those facts
        
        Contradictory Facts: if on cross, W admits mistake or lie, they been impeached. If W sticks to their story, contradictory fact can be shown by extrinsic evidence unless it's collateral.
      - Extrinsic evidence method - by asking W directly or by admitting other evidence such as another W or a doc. Admissible only if foundation is laid out: W has the opportunity to explain or deny the statement and an adverse party has an opportunity to examine W about it or if justice so requires. Rule does not apply admissions by a party opponent. Exception: no need for foundation requirement if statement is an opposing party's statement.
        
        Crimes involving dishonesty (fraud or perjury) are admissible, and no time limitation on how old the crime is. Felonies not involving dishonesty - discretion to exclude is based on: cannot be too remote (over 10 years excluded); balancing 403 reverse test in favor of exclusion.
        
        Prior bad acts involving untruthfulness - must be probative of truthfulness. Extrinsic evidence of bad acts is not permitted; if W denies the act, the cross-examiner cannot refute the testimony.
        
        Reputation or Opinion - W can be impeached by showing a poor reputation for truthfulness. Another W from the community can be called to testify
  - - - marital communication: either spouse has a privilege to refuse to disclose and prevent her spouse from disclosing a confidential communication made b/w spouses while they were husband & wife.
      - spousal testimony: a spouse may not be called as W by the prosecution against his spouse in a crim. case and may not be compelled to testify against his spouse in any crim. proceeding including those where the spouse is not D.
  - - - Verbal acts or legal operative facts (words of K or defamatory words)
      - Statements offered to show their effect on the listener or reader (to prove notice in negligence case)
      - Statements offered as circumstantial evidence of declarant's state of mind (when proving insanity or knowledge)
    - - Prior Statement of Testifying W - W's prior out-of-court statement is hearsay and is inadmissible. However, a prior statement is not hearsay when testifying W is subject to cross-X and prior statement is (1) one of identification; (2) inconsistent w/declarant's in-court-testimony, or (3) consistent but is offered to rebut that W is lying or exaggerating, or offered to rehabilitate W
      - Statements by or Attributable to Opposing Party - anything D says can offered against D and vise versa. Adoptive statements are admissible (silence may be implied acquiescence to the truth of the statement). Vicarious statements: co-parties (not admissible); statements by authorized spokesperson, agents and EEs are admissible; partners, co-conspirators.
      - Declarant unavailable: (1) layout grounds for unavailability; and 5 exceptions: former testimony; statements against interest; dying declarations; statements of personal or family history; statements offered against party procuring declarant's unavailability
      - Declarant availability is immaterial: excited utterance; present sense impressions; present state of mind; statements made for purpose of medical diagnosis or treatment; records of regularly conducted activity-business records; official records and other official writings; recorded recollection; learned treaties; ancient docs; docs affecting property interests; reputation; family records; market reports.
    - - Confrontation Clause 6A - hearsay statement is not admitted where it is offered (1) against accused in crim. case; (2) declarant is unavailable; (3) statement was testimonial; and (4) accused had no opportunity to cross-X the declarant.