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Latest revision as of 06:18, November 19, 2017
Relevance[edit | edit source]
E is relevant if it has any tendency to make a fact of consequence more or less probable
- All relevant E = ADM unless
(1) excluded by other rule, by statute, or by state or federal constitution or (2) if probative worth is substantially outweighed by one or more of the following dangers : (a) Unfair prejudice (b) confusion of issues (c) misleading jury (d) undue delay (e) waste of time (f) unduly cumulative
Similar occurrence - if E concerns other {time; place; event} = INADM unless 5:
- P’s accident history – ADM to prove damages only, not guilt as that would be character E
- D’s accident history – ADM to show {dangerous condition; causation; prior notice}
- Where intent is at issue – e.g. hiring no prior women to show discriminatory intent
- Comp. sales in property cases
- Habit – of person or organization – repetitive response to very specific circumstances ADM
Policy-based exclusions
- Liability insurance – E of insurance INADM to show fault, ADM to impeach or prove ownership
- Subsequent remedial measures – as above and ADM if D controverts the feasibility of safer condition
- Settlements (incl. offers and stmts of fact) – INADM where claim is disputed, more on paper
- Offer to pay meds – INADM but not accompanying stmts of fact (e.g., “my fault, let me pay”)
Character Evidence = E of general propensity or disposition
- D’s character @ crim – INADM during case-in-chief
- But may be introduced by D – R&O only, not specific acts – opens door to rebuttal
- Character trait must be relevant to crime, except generalized E of “law-abiding-ness”
- Prosecution can cross W on specific acts that contradict, but cannot prove them if denied
- But may be introduced by D – R&O only, not specific acts – opens door to rebuttal
- Victim’s character – in a self-defense case – R&O ADM to show aggressive character
- Opens door to rebuttal and R&O evidence of D’s violent character
- @ civil = INADM unless character is essential element of claim, e.g. defamation – even specific acts ADM
Other crimes – INADM to prove propensity except for sexual assault crimes or unless falls under MIMIC 5:
- Motive – e.g. cop X investigated OC and now D on trial for the murder of cop X
- Intent – e.g. intent to sell may be establish via E of prior selling
- Absense of Mistake or Accident – e.g. E of trying to kill mom before ADM to disprove accident theory
- Identity – same mask
- Common scheme
- Enough to prove by “conditional relevancy” – sufficient E from which reasonable juror can concluded D committed the crime.
- May be required to give pre-trial notice of intention to introduce MIMIC crime E
- Must also not be overly prejudicial independently of the MIMIC determination
Writings[edit | edit source]
Authentication – could be stipulated to, or needs to be proven by the following methods:
- Direct E – W has knowledge and saw D sign the K
- Direct: Proof of handwriting – either {opinion of regularly familiar layperson; expert opinion; jury comparison}
- Circumstantial: Ancient doc rule – 20 yrs old, regular on its face, found in natural place
- Circumstantial: Solicited reply doctrine – e.g. written acceptance in response to a previously made offer
Self-authenticating documents – prima facie subject to rebuttal:
- Official publications
- certified copies of public records
- newspapers
- trade labels
- notarized docs
- commercial paper
Best evidence rule – if seeks to prove contents of writing, must provide original or excuse
- BER applies when if W testifies to facts he learned solely from doc
- BER does not apply if W testifies from personal knowledge independent of a writing that corroborates same
- Xerox ok. Collateral doc ok.
- Excuse if {unavailable to subpoena; lost; destroyed; opponent won’t bring it}
Witnesses[edit | edit source]
Competency – personal knowledge; oath - except judge, jury, state dead man statute
Leading questions – not ok on direct except preliminary matters, youthful, forgetful, hostile, adverse party
Writings – W can’t read from, but may show to W to refresh memory – must show to Opp which he can introduce
- Recorded recollection – HX – can be read into E is meets 5:
- Showing to W fails to jog memory
- W had personal knowledge before
- Writing was made or adopted by W
- Adoption happened while the event was fresh in W’s mind
- W can vouch for its accuracy
Opinion evidence
- Layperson – non-technical ADM if based on W’s perception and helpful to the jury in deciding a disputed fact
- Expert – must meet 4:
- Proper subject matter – specialized and helpful as above
- Adequate {education; hands-on experience}
- Reliable – Daubert – testing, error, acceptance, peer review – judge decides
- Basis for opinion – could be either:
- Personal knowledge – treating doctor
- E from the record
- Outside-of-record materials that are usually relied on in that field – “learned treatises” HX
Cross examination – w/in scope of direct or in order to impeach
Credibility and impeachment
- Cred E of one’s own W = INADM until attacked, but it’s ok to impeach one’s own W if he turns coat
- Prior consistent stmt INADM except W’s prior identification of a person, often @ crim
Methods of impeachment
- Prior inconsistent stmt – oral or written, ADM to impeach by H so cannot be introduced, except
- ADM if given under oath at a proceeding – if so, must give oppty to explain/deny, later is ok
- E of bias
- E of sensory deficiency – perception or memory – e.g. blind, drugs, alcohol, mental, etc.
- R&O E of lack of truthfulness
- Prior convictions – 10 year limit from release (unless substantial probative value, like perjury)
- Any type involving dishonesty ADM – must be required element of convict per 609 amendment
- Else, must be a felony, and court has discretion – must weigh prejudicial effect.
- Prior bad acts, no conviction – ADM w/in discretion only if reflects adversely on char for truthfulness
- May inquire, but not allowed to prove with extrinsic E – bound by answer
Rehabilitation – may show character for truthfulness or introduce (HX) prior consistent stmt to rebut fabrication, if made before motive to fabricate arose
Hearsay[edit | edit source]
Hearsay = out of court stmt made orally or in writing offered to prove TOTMA – generally INADM
- ADM if offered not to prove TOTMA
Not hearsay
- Verbal act – acceptance of K, creation of gift, etc.
- Words used to show effect on a person – TOTMA immaterial, but evidence that words were heard by X could be introduced when the state of X’s mind is at issue
- Circumstantial E of D’s state of mind – if he claimed to be Elvis, he must be crazy
Witness’ prior stmt – still H & INADM unless either one of 3:
- Prior identification
- Inconsistent stmt made at a hearing
- Consistent stmt used to rebut charge of fabrication
Party admission – any stmt by a party ADM against interest – incl. vicarious if w/in scope of and during agency
Confrontation right – 6th Amendment – Crawford v. WA – if testimonial, INADM if D had no oppty to cross declarant
- Testimonial = 4: Sworn T from Grand Jury, prior trial, or prelim hrg, or unsworn replies to cops (but not 911)
- This is waived where witness is unavailable due to D’s wrongdoing – murder, intimidation
H exceptions, declarant unavailable
- Unavailable = death, illness, absence from jxn, privilege, 5th Amend., stubborn refusal, lack of memory
- Former T = ADM if: 1. unavailable; 2. delivered at proceeding, and 3. had oppty to cross declarant
- Stmts against interest – by anyone incl. parties – must be against interest now
- Dying decl. – must believe in impending and certain death - @crim ltd. to homicide cases – need not die
H exceptions, declarant availability immaterial
- Excited utterance – made under stress
- Present sense impression – 30 seconds – describe event while occurring
- Present state of mind – feelings, emotions at the moment – not “I felt x”
- Declaration of intent
- Present physical condition – ow! my back hurts!
- Stmt made for purpose of medical treatment or diagnosis
- Business records – 5 factors:
- Any type of business – incl. police and illegal businesses
- Records kept in regular course of affairs – info is germane to business
- Kept regularly
- At or about the time of the event testified about
- Contains either info observed by employees, or stmt that falls into another HX
- Public records – any public office – ADM if contains either:
- Activities of the office itself, or
- Matters observed per statutory duty, or
- Fact-finding and opinion resulting from an investigation authorized by law (e.g. NTSB)
- Even if they interview people from outside, which is hearsay
- Except gov’t reports prepared for prosecutorial purposes INADM against crim defendants
Privileges[edit | edit source]
- Attorney-client – except where advice is at issue
- Doctor-patient – does not exist except at diversity
- Spousal – immunity and confidentiality – two different beasts