Evidence (short outline)
Relevance
E is relevant if it has any tendency to make a material fact more or less probable
- All relevant E = ADM unless excluded by other rule or, at discretion, is outweighed by 6:
- Unfair prejudice
- confusing
- misleading
- delay
- waste of time
- 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
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
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
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
- Attorney-client – except where advice is at issue
- Doctor-patient – does not exist except at diversity
- Spousal – immunity and confidentiality – two different beasts