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Evidence - Coggle Diagram

- - - - Generally, inadmissible
      - Allowed if no better evidence exists. Must be:
        
        (2) helpful for a clear understanding of a fact at issue, and
        
        (3) not based on scientific, technical, or other specialized knowledge
        
        (1) based on witness's perception
    - - (3) Opinion is the product of reliable principles and methods
        
        Courts determine reliability (Daubert)
        
        Peer review and publication
        
        Acceptance by experts in same discipline
        
        Rate of error
        
        Testing
      - (1) Subject matter appropriate for expert opinion (witness must be qualified as expert)
        
        Scientific knowledge
        
        Technical knowledge
        
        Other specialized knowledge
        
        NOT credibility of witness
      - (2) Opinion supported by proper factual basis
        
        Personal knowledge
        
        Facts made known at trial
        
        Facts Outside Court: facts not known personally but supplied to the expert outside the courtroom and of a type reasonably relied upon by other experts in the particular field
        
        need not be admissible in evidence
        
        but if inadmissible, must not disclose to jury unless meet reverse 403 balancing test (probative value substantially outweighs prejudicial effect)
        
        expert need not disclose basis on direct, but may be required to disclose on cross examination
      - (4) expert's opinion reflects reliable application of the principles and methods to the facts of the case
  - - - cross exam
      - extrinsic evidence permitted unless contradictory fact is collateral
        
        collateral = no significant relevance to the case or witness's credibility
    - - call character witness
      - extrinsic evidence allowed
    - - faculties of perception and recollection were so impaired as to make it doubtful that they could have perceived those facts
    - - Any crime involving dishonesty or false statement
        
        must be admitted, no discretion
        
        remoteness
      - Felony not involving dishonesty or false statement
        
        criminal defendant
        
        court will exclude if not shown that probative value outweighs prejudicial effect (Reverse 403)
        
        all other witnesses
        
        court will exclude if probative value is substantially outweighed by its prejudicial effect (standard 403)
        
        Remoteness: generally, exclude if over 10 years ago
    - - even allow extrinsic evidence if witness denies bias
    - - subject to court discretion, bad act probative of truthfulness allowed on cross-exam
      - NO EXTRINSIC EVIDENCE ALLOWED
    - - cross-exam: admissible for impeachment purposes
      - extrinsic evidence if proper foundation
        
        Exceptions
        
        opposing party's statement
        
        hearsay declarant -- can be used to impeach hearsay declarant despite lack of foundation
        
        where justice requires (for example, where witness has left the stand and is unavailable when their inconsistent statement is discovered
        
        at some point:
        
        witness is given an opportunity to explain or deny the statement; and
        
        adverse party is given an opportunity to examine the witness about the statement
      - does NOT come in as substantive evidence unless given under oath as part of a legal proceeding (admissible non-hearsay)
  - - - communicate
      - observe
      - appreciate obligation to speak truthfully
      - recollect
    - - (1) before jury on which they are empaneled
      - (2) post-verdict proceedings as to certain matters regarding jury deliberations
  - - - confidential communications made for the purpose of diagnosis or treatment of the patient's physical, mental, or emotional condition
    - - Martial communication privilege
        
        civil and criminal case
        
        privilege to both spouses
        
        communication made during valid marriage
        
        communication made in reliance of confidence of marriage relationship
      - Spousal testimony privilege (criminal case)
        
        criminal case
        
        witness-spouse has privilege
        
        can only be asserted during existing marriage
      - Exceptions
        
        legal actions between spouses
        
        Cases involving crimes against the testifying spouse or either spouse's children
        
        in furtherance of crime or fraud
    - - 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 client
      - Includes attorney and representatives
      - both att'y and client can assert, Only the client can waive the privilege
- - - - misleading the jury
      - consideration of undue delay
      - confusion of the issue
      - waste of time
      - UNFAIR prejudice
      - needless presentation of cumulative evidence
  - - - similar accidents or injuries caused by same event
        
        (2) Dangerous condition was the cause of the present injury
        
        (3) Defendant had notice of the dangerous condition
        
        (1) existence of a dangerous condition
      - similar acts admissible to prove:
        
        habit
        
        industrial customs or routine
        
        intent
      - causation
        
        injury or accident to same part of body
    - - Subsequent remedial measures
        
        Inadmissible to prove negligence, culpable conduct, or defect
        
        Admissible to prove:
        
        ownership or control
        
        feasibility of repair
        
        destruction of evidence
      - Settlement offers
        
        Inadmissible to prove/disprove:
        
        validity of amount of disputed claim
        
        impeach by prior inconsistent statement or contradiction
        
        Exception: preexisting information not protected
        
        accompanying statements of fact are INADMISSIBLE
        
        Evidence of settlement admissible for bias impeachment
      - Liability Insurance
        
        Admissible to prove:
        
        ownership or control
        
        impeachment
        
        inseparable part of admission of liability
        
        Inadmissible to prove negligence or fault
      - Payments or offers to pay medical expenses
        
        Inadmissible to prove liability
        
        BUT: accompanying statements of fact are ADMISSIBLE
      - Withdrawn guilty please/accompanying statements
        
        generally inadmissible
  - - - Defendant's character
        
        Prosecution cannot initiate
        
        unless specific acts independently relevant (MIMIC)
        
        Mistake (absence of)
        
        Identity
        
        Intent
        
        Common scheme or plan
        
        Motive
        
        D must "open door": offer good evidence of trait
        
        reputation (for pertinent trait)
        
        opinion (witness personal opinion of trait)
        
        If D testifies, character for truthfulness automatically in issue
        
        Prosecution can rebut
        
        cross-examination
        
        specific acts of D bad character for trait in question
        
        NO EXTRINSIC EVIDENCE
        
        Witness
        
        reputation for trait in question
        
        opinion of trait in question
      - Victim's Character
        
        Prosecution may rebut
        
        D's bad character for same trait
        
        victim's good character for same trait
        
        D may introduce bad character of victim if relevant to innocence
    - - Character evidence generally not admissible
      - Admissible when character directly in issue
        
        Negligent hiring / entrustment cases
        
        Child custody
        
        Defamation
        
        fraud
      - Specific acts independently relevant (MIMIC)
        
        Motive
        
        Intent
        
        Mistake (absence of)
        
        Identity
        
        Common scheme or plan
- - - - Prior inconsistent statement of testifying witness - when made under oath at prior proceeding or deposition
      - prior consistent statement of testifying witness - in certain circumstances when offered to rehabilitate an impeached witness
      - prior statement of identification of testifying witness
    - - Statement by or attributable to a party, offered against that party
      - Adoptive statements
        
        Silence
      - Vicarious statements
        
        authorized spokesperson
        
        agent
        
        agent/employee statements within scope of employment/agency
        
        co-conspirator
        
        only if in furtherance of conspiracy
  - - - Unavailability
        
        Lack of memory
        
        Death or physical/mental illness
        
        Refusing to testify
        
        Absent beyond the reach of the court's subpoena power and the proponent of the statement has been unable to procure attendance or testimony
        
        Privilege
        
        Incarceration
      - 5 Exceptions
        
        Former Testimony
        
        given as a witness at a trial, hearing, or lawful deposition
        
        offered against party who had an opportunity and similar motive to develop it by direct, cross, or redirect examination
        
        Statement against interest
        
        Reas person in 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
        
        Dying declarations
        
        Statement made by declarant believing that declarant's death was imminent
        
        Statement about its cause or circumstances
        
        A statement based on mere suspicion rather than actual knowledge DOES NOT constitute a statement concerning the cause or circumstances of "impending death"
        
        Only allowed at civil or homicide trial
        
        Statement about personal or family history
        
        must be member of family or intimately associated with the family
        
        Statement offered against party procuring declarant's unavailability
    - - 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
      - Business records
        
        Made at or near the time by someone with knowledge
        
        declarant must have PERSONAL knowledge OR received information from someone with personal knowledge who transmitted it in the ORDINARY COURSE OF BUSINESS
        
        kept in the course of a regularly conducted activity of a business or organization
        
        making the record was a regular practice of that activity
        
        shown by a custodian's testimony or by certification
        
        neither the source of the info. nor the method of preparation indicate a lack of trustworthiness
      - Present sense impression
        
        Statement describing or explainign an event or condition
        
        made while or immediately after the declarant perceived it
      - Recorded Recollection
        
        A record that:
        
        is on a matter the witness once knew about but now cannot recall ( MUST have attempted and failed to refresh recollection)
        
        was made or adopted by the witness when the matter was fresh in the witness's memory; and
        
        accurately reflects the witnesses' knowledge
        
        May be read into evidence
        
        May only be received as an exhibit if offered by an adverse party
        
        Distinguish refreshing recollection, in which the witness testifies from their own memory after reviewing the document (no hearsay problem)
      - Excited utterance
        
        Statement relating to a startling event or condition
        
        Made while under the stress of the excitement that it caused
      - Official records
        
        Record sets out the office's activities
        
        of a matter observed while under a legal duty to report
        
        neither the source of the info nor other circumstances indicate a lack of trustworthiness
      - Ancient Documents
        
        statements in authenticated documents prepared before 1998
      - Learned Treatises
        
        if used during examination of expert an established as reliable
      - Statements in docs affecting an interest in property
      - Catch-all exception
      - statement made for medical diagnosis or treatment
        
        includes past conditions
        
        made pertinent to obtaining a diagnosis or treatment
  - - - non-truth purposes
        
        Effect on the listener
        
        notice in negligence case
        
        Statements of Independent legal significance
        
        state of mind
    - - both inner and outer hearsay statements must fall within an exception
        
        record: record written of someone else's statement
  - - - Statement was "testimonial" in nature
        
        Statements made in course of police investigation
        
        primary purpose test
        
        establish facts potential relevant to later criminal prosecution = testimonial
        
        ongoing emergency = non-testimonial
        
        Affidavits or written reports of forensic analysis
      - Accused had no opportunity to cross-examine the testimonial statement prior to trial
      - Declarant is unavailable
- - - - witness familiar with scene must identify photo as portrayal of relevant facts and fair and accurate representation of those facts
      - unattended camera: no person who could authenticate scene is present - show properly operating at relevant time and downloaded or developed from film obtained from that camera
    - - testimonial support
        
        Handwriting Verifications
        
        Lay opinion of anyone who has familiarity with alleged writer's handwriting (BEFORE trial - unlike voice identification)
        
        Expert who has compared the writing to samples of the alleged writer's handwriting
        
        Fact-finder's (jury) comparison of the writing to samples of the alleged writer's handwiritng
        
        Eyewitness testimony: anyone who saw it executed or heard it acknowledged
        
        Opponent's admission: evidence that party against whom it is offered has either admitted its authenticity or acted upon it as authentic
      - self-authenticating (OIL CANS)
        
        Acknowledged documents signed before notary, sworn to truth, content, and execution (except wills)
        
        Certified public documents (by clerk of agency or court that had custody)
        
        Label, tag, or trademark affixed on item in regular course of business
        
        Newspapers and periodicals with reasonably wide circulation
        
        Instruments -- negotiable and commercial paper
        
        Sealed Documents (government certified)
        
        Official publications issued by public authority
      - Ancient documents
        
        at least 20 years old when offered into evidence
        
        in a condition that creates no suspicion as to authenticity; and
        
        found in a place where such writing would likely be kept
      - Reply Letter: evidence that it was written in response to a communication sent to the alleged author
  - - - proving content:
        
        knowledge of a witness concerning a fact results from having read it in the writing
        
        writing is legally operative or dispositive instrument (creates rights and obligations)
        
        NOT where witness has personal knowledge of the facts
      - Exceptions
        
        Certified Public Records
        
        Writing is Collateral to Litigated Issue
        
        writing is of minor importance to matter in controversy
        
        Summaries of Voluminous Records
        
        chart or summary where originals/duplicated available for inspection or copying
        
        Testimony or Written Admission of Opponent
      - Excuses
        
        Loss or destruction
        
        cannot be obtained by any available judicial process
        
        original in possession of an adversary who fails to produce original
- - - - Usually admissible for illustrating; must be authenticated by testimonial evidence that they are faithful reproductions
    - - relevant photos, diagrams, maps, or other reproductions are generally admissible
    - - experiment must be performed under conditions substantially similar to those attending original event
    - - generally permitted; court discretion to exclude for unfair prejudice
- - - - fact is generally known within court's jurisdiction
      - fact can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned
      - allowed for "legislative facts" - those relating to legal reasoning and lawmaking
    - - Civil
        
        conclusive - court must instruct jury to accept the judicially noticed fact as conclusive
      - Criminal
        
        not conclusive - jury instructed that it may, but is not required to, accept the judicially noticed fact as conclusive
  - - - even if both statements inadmissible hearsay