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Evidence (short outline)

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Relevance

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:

  1. P’s accident history – ADM to prove damages only, not guilt as that would be character E
  2. D’s accident history – ADM to show {dangerous condition; causation; prior notice}
  3. Where intent is at issue – e.g. hiring no prior women to show discriminatory intent
  4. Comp. sales in property cases
  5. Habit – of person or organization – repetitive response to very specific circumstances ADM

Policy-based exclusions

  1. Liability insurance – E of insurance INADM to show fault, ADM to impeach or prove ownership
  2. Subsequent remedial measures – as above and ADM if D controverts the feasibility of safer condition
  3. Settlements (incl. offers and stmts of fact) – INADM where claim is disputed, more on paper
  4. 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

  1. 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
  2. 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
  3. @ 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:

  1. Motive – e.g. cop X investigated OC and now D on trial for the murder of cop X
  2. Intent – e.g. intent to sell may be establish via E of prior selling
  3. Absense of Mistake or Accident – e.g. E of trying to kill mom before ADM to disprove accident theory
  4. Identity – same mask
  5. 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:

  1. Direct E – W has knowledge and saw D sign the K
  2. Direct: Proof of handwriting – either {opinion of regularly familiar layperson; expert opinion; jury comparison}
  3. Circumstantial: Ancient doc rule – 20 yrs old, regular on its face, found in natural place
  4. Circumstantial: Solicited reply doctrine – e.g. written acceptance in response to a previously made offer

Self-authenticating documents – prima facie subject to rebuttal:

  1. Official publications
  2. certified copies of public records
  3. newspapers
  4. trade labels
  5. notarized docs
  6. 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:
  1. Showing to W fails to jog memory
  2. W had personal knowledge before
  3. Writing was made or adopted by W
  4. Adoption happened while the event was fresh in W’s mind
  5. 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:
  1. Proper subject matter – specialized and helpful as above
  2. Adequate {education; hands-on experience}
  3. Reliable – Daubert – testing, error, acceptance, peer review – judge decides
  4. 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

  1. 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
  2. E of bias
  3. E of sensory deficiency – perception or memory – e.g. blind, drugs, alcohol, mental, etc.
  4. R&O E of lack of truthfulness
  5. 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.
  6. 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

  1. Verbal act – acceptance of K, creation of gift, etc.
  2. 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
  3. 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:

  1. Prior identification
  2. Inconsistent stmt made at a hearing
  3. 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
  1. Former T = ADM if: 1. unavailable; 2. delivered at proceeding, and 3. had oppty to cross declarant
  2. Stmts against interest – by anyone incl. parties – must be against interest now
  3. Dying decl. – must believe in impending and certain death - @crim ltd. to homicide cases – need not die

H exceptions, declarant availability immaterial

  1. Excited utterance – made under stress
  2. Present sense impression – 30 seconds – describe event while occurring
  3. Present state of mind – feelings, emotions at the moment – not “I felt x”
  4. Declaration of intent
  5. Present physical condition – ow! my back hurts!
  6. Stmt made for purpose of medical treatment or diagnosis
  7. Business records – 5 factors:
    1. Any type of business – incl. police and illegal businesses
    2. Records kept in regular course of affairs – info is germane to business
    3. Kept regularly
    4. At or about the time of the event testified about
    5. Contains either info observed by employees, or stmt that falls into another HX
  8. Public records – any public office – ADM if contains either:
    1. Activities of the office itself, or
    2. Matters observed per statutory duty, or
    3. Fact-finding and opinion resulting from an investigation authorized by law (e.g. NTSB)
      • Even if they interview people from outside, which is hearsay
    4. 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