1. Relevance
    evidence is relevant if it make the existence of any fact or consequenct to the outcome of the action more probable than not.

    3 dimensions: time, event, person involved
  2. Circumstances where relevant
    • To prove:
    • -causation
    • -prior false claim or same bodily injury: shows 1) present claim is likely to be false 2) plaintiff's condition is attributable in whole or part to prior injury
    • - similar accidents or injuries caused by same event or condition: 1) existence of dangerous condition, 2) defendant had knowledge of the dangerous condition, 3) dangerous condition caused the present injury
    • -previous acts admissible to prove intent: show motive or intent
    • -rebutting claim of impossibility
    • -sales of similar property:
    • -habit: regular response to a specific set of circumstances. (instinctual or automatic)
    • -industrial or businss routine: show a particular event occured
    • -industry custom for standard of care: not conclusive of liability
  3. Relevance exclusion for public policy reasons
    • Liability insurance: prove ownership, impeach, part of an admission
    • Subsequent remedial measures: prove ownership or control, rebut claim that precaution was not feasible, prove opposing party has destroyed evidence.
    • Settlement Offers and Withdrawn Guilty Pleas: must be valid claim or dispute as to liability or amount.
    • Offers to pay medical expenses: not if make admissions of fault though
  4. Ways to prove character
    specific acts, opinion testimony, reputation

    • On cross: specific acts WITHOUT extrinsic evidence
    • Calling a witness: opinion or reputation testimony

    • Victim may counter with:
    • 1) victim's good character 2) bad character of defendant in the same trait
  5. Rape character exception
    Not admissible to prove sexual behavior or sexual disposition

    • Admissible for:
    • 1) prove other than defendant is source of semen, injury, or other physical evidence
    • 2) prior sexual behavior between victim and accused to prove consent
  6. Specific acts that are indepednantly relevant
    • evidence of other crimes or misconduct if relevant to some other issue than defendant's character or disposition:
    • -motive
    • -intent
    • -Mistake (absense of)
    • -identity (modus operandi)
    • -common plan or scheme

    probative value must not be substantially outweighed by unfair prejudice (judge's discretion)
  7. Judicial notice
    indisputable facts that are matters of common knowledge or capable of verification to source of unquestionable accuracy.

    • adjudicative facts: facts relating to the case
    • legislative facts: relating to legal reasoning and law making
    • must take judicial notice on federal and state law, but may on municiple or foreign law.
  8. Ways to authenticate a document
    • Admission
    • Eyewitness testimony
    • Handwriting varification
    • Ancient Documents
    • Reply letter doctrine
    • Photographs
    • X-ray pictures, electrocardio grams
    • Voice identification
    • Self authenticating documents
  9. Handwriting verification
    • -nonexpert with personal knowledge of the alleged writer's handwriting
    • -opinion by an expert who has compared the writing to samples from the alleged writer
    • -the trier of fact through comparison of samples
    • -NOT A LAY WITNESS who just recently obtained knowledge for the purpose of trial
  10. Ancient document rule
    • -20 years old
    • -such a condition as the be free from suspicion as to authenticity
    • -found in place where writing woudl likely be kept
  11. X-ray pictures, electrocardiograms, pictures of people, video cameras,...
    • -show that process is accurate
    • -machine is in working order and operator was qualified to operate it
    • -show evidence not tampered with till trial
  12. Voice identification
    voice may be authenticated by anyone who heard the voice at any time

    • telephone:
    • -recognized the other party's voice
    • -speaker had personal knowledge of certain facts that only a particular person woudl have
    • -called a particular person's number and a voice answered as that person or that person's residence
    • -called a business and talked with a person answering the phone about matters relevant to business
  13. Self authenticating documents
    • -certified copies of public records
    • -official publications
    • -newspapers and periodicals
    • -trade inscriptions
    • -acknowledged documetns
    • -certified business records
  14. Best evidence rule
    • -Either produce the document itself OR
    • -if writing unavailable, have a reasonably explanation for its unavailability.

    • Exceptions:
    • -facts proved exist independently of writing
    • -writing is collateral to litigated issues (of minor importance)
    • -summaries of voluminous records: 1) inconvenient to examine voluminous collections of writings in court AND 2) other party has access to records
    • -public record
  15. Satisfactory explanation for secondary evidence when original writing in not available
    • -loss or destruction
    • -original in possession of a third party outside the jurisdiction or unatainable
    • -original is in possession of an adversary who failed to produce it after due notice
  16. Determinations for admissibility of secondary evidence under best evidence rule
    • the court make determinations of fact for admissibility, but the
    • following are reserved
    • Exceptions for jury:
    • -whether original ever existed
    • -whether writing, recording or photograph produced at trial is original
    • -whether evidence offered correctly reflects the contents of the original.
  17. Where parol evidence does not apply:
    • -incomplete or ambiguous contracts
    • -reformation of contracts (ie due to mistake
    • -challenging the validity of hte contract to show void or voidable
    • -subsequent modifications or discharge of a written contract
  18. Attributes of a competent witness
    • Generally:
    • -observe
    • -recollect
    • -communicate
    • -appreciate the obligation to speak truthfully

    • Federal requirements:
    • -personal knowledge of matter about which he will testify
    • -declare he will testify trusthfully

    Areas no longer limitation: religious belief, conviction of crime, interest in suit, infancy, insanity
  19. Dead man acts
    • Party or person interest is incompetent to testify to:
    • -apersonal transaction or communication with a deceased
    • -when such testimony is offered agaisnt the representative or successor in interest of the deceased.

    Applies through Erie doctrine
  20. Where can use leading questions?
    • -cross examination
    • -elicit preliminary or introductory matter
    • -when the witness needs aid to respond becuase of loss of memory, immaturity, or physical or mentla weakness OR
    • -when the witness is hostile
  21. Grounds of improper questions and answers
    • -misleading questions (cannot be answered without making an admission)
    • -compound
    • -argumentative
    • -conclusionary
    • -cumulative
    • -unduly harassing
    • -call for narrative answer
    • -lack of foundation (witness lacks personal knowledge)
    • -nonresponsive answer (do not answer the specific question)
  22. Refreshing recollection
    May use any writing or thing to refresh recollection, but cannot read the writing. Used when the witness is having trouble remembering.

    If refreshed in court, then opposing counsel can inspect and cross as to this. They can also have it entered into evidence.
  23. Recorded recollection
    • -the witness at one time had personal knowledge of the facts in the writing
    • -the writing was made by the witness or under her direction, or was adopted by the witness
    • -the writing was made timely whent he matter was fresh int eh witness's mind
    • -the writing is accurate
    • -witness has insufficient recollection to testify fully and accurately

    May read the writing on the stand into the court transcript

    Opposing party has a right to see, cross and enter it into evidence.
  24. Lay opinion testimony allowed when
    • -rationally based on witness's perception
    • -helpful to a clear understanding of his testimony or helpful to the determinatino of a fact in issue AND
    • -not based on scientific, technical, or other specialized knowledge

    • Examples:
    • -general appearance or condition of a person
    • -state of emotion of a person
    • -matters involving sense recognition
    • -voice or handwriting identification
    • -the speed of moving objects
    • -value of his own services
    • -rational or irrational nature of another's conduct AND
    • -intoxication of another

    Not allowed to: 1) acting as an agent, 2) contract was made
  25. Expert testimony allowed when
    • -subject matter is one where scientific, technical, or other specialized knowledge would assist the trier of fact
    • -witness is qualified as an expert (possesses special knowledge, skill, experience, training or education)
    • -expert possesses reasonable probability regarding his opinion AND
    • - opinion has a proper factual basis: 1)personal observation, 2)facts mad eknown to the expert at trial, OR 3)facts not known personally but supplied to him outside the courtroom and of a type reasonably relied upon by experts in a particular field.

    • Ultimate issue:
    • -may UNLESS goes to mental state where it is an element of a crime or defense
  26. Authorititive texts and treatises
    • Used to cross-examine an expert to a statement in a publication established as a reliable authority by:
    • -opposing expert relied on it in his testimony
    • -illicit an admission
    • -call your own witness to say it is a standard work in the field
    • -judicial notice

    • Usually meant for impeachment, but may be substantive evidence read in the court transcript if:
    • -expert on the stand when excerpt is read from the treatise AND
    • -relevant portion is read into evidence, but not received as an exhibit
  27. Ways to impeach a witness
    • -prior inconsistent statement
    • -bias or interest
    • -conviction of a crime
    • -specific instance of misconduct: only if probative of truthfulness and must be asked in good faith
    • -opinion or reputation evidence for truthfulness
    • -showing a sensory deficiency as to ability to observe and remember

    These get around hearsay as offered for purpose of impeachment and not substantive truth
  28. Convictions of crime for impreachment of a witness
    Crime involving dishonestly: felony or misdemeanor requiring an act of dishonesty. Court has no discretion

    • Felony not involving dishonesty: court has discretion to exclude if
    • -criminal defendant witness and prosecution has not shown the conviction's probabive value outweighs its prejudicial effect OR
    • -for all other witnesses, allowed unless the court determines the probative value is substantially outweighed by its prejudicial effect.

    • 10 year rule: if conviction or release from incarceration more than 10 years ago, then not admissible.
    • Misdemeanors NOT allowed.
  29. Rehabilitation from impeachment
    • On redirect:
    • -good reputation for truthfulness
    • -prior consistent statements to rebut lying or exaggeration of an accused motive
  30. Motion to strike for unresponsive
    examining counsel may move to strice, but opposing counsel may not.
  31. Privileges
    Federal rules have no specific privilege provisions but recognize 1)attorney-client privilege, privilege of spousal commmunications, and psychotherapist/social worker-client privilege. In diversity cases state privileges apply through the Erie doctrine

    • -Attorney-client privilege
    • -Physician-patient privilege
    • -Psychotherapist/social worker-client privilege
    • -Husband Wife privilege (spousal immunity and privilege for confidential marital communications)
    • -Privilege against self-incrimination: 5th amendment
    • -Clergy or Accountant privilege
    • -Governmental privileges: information not otherwise open to the public.
  32. Waiver of privilege if:
    • -failure to claim the privilege
    • -voluntary disclosure by privilege holder
    • -contractual provision waiving in advance the right to claim a privilege

    • Not a confidential communication:
    • -made in a public place, but if in private and eavesdropper hears, it is not fatal
  33. Attorney-client privilege
    • -attorney client relationship: seeking professional services of the attorney at the time of the communication
    • -confidential communication: not intended to be heard by third parties. If a third party agent of the attorney is there this is not waived.
    • -client holds the privilege
    • -privilege applies indefinitely

    • Does not apply if:
    • -attorney's services sought to aid in plannign or commission of somthing the client should have known was a crime or fraud
    • -regarding a communication relevant to an issue between parties claiming through the same deceased client AND
    • -dispute between attorney and the client
  34. Attorney's work product
    Through the attorney-client privilege, the attorney's tangible things prepared in anticipation of litigation unless the other party has substantial need and is unable to obtain the information without undue hardship.

    Can never get mental impressions or opinions made in anticipation of the case.
  35. Physician-patient relationship
    • Physician patient privilege belongs to the patient and such confidential communicatinos may be protected if:
    • -professional relationship exists
    • -information given in the course of treatment
    • -information necessary for treatment

    • Does not apply if:
    • -patient puts his physical condition in issue of hte case
    • -physician assistance sought to aid wrongdoing
    • -dispute between physician and patient
    • -patient agreed to waive it py contract OR
    • -federal case where state privilege is not in federal law
  36. Husband-wife privilege
    Spousal immunity: spouses cannot be forced to testify against one another in criminal cases while married. The privilege belongs to either spouse, so if the spouse volunteers then it can be waived. This does not apply after divorce.

    Privilege for confidential marital communication: confidential communications between a husband and wife are privileged. A marital relationship must exist when teh communication was made adn divorce will not terminate the privilege. Both spouses hold this privilege so both are needed for one spouse to unilaterally waive it.
  37. Hearsay
    a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.
  38. Offered to prove the truth of the matter
    • This is a hearsay exclusion and not hearsay usual for:
    • -verbal acts or legally operative facts (acceptance of contract)
    • -statements offered to show their effect on the hearer or reader
    • -statements offered as circumstantial evidence of declarant's state of mind
  39. Prior statements by witness
    • This is not hearsay
    • -prior statement inconsistant statement with the declarant's in-court testimony and was given under oath in a prior proceeding
    • -prior statement is consistent with declarant's in-court testimony and offered to rebut a charge of motive
    • -prior statemnt is one of identificatin of a person made after perceiving him
  40. Admission by party opponent
    • -statement made or act that amounts to prior acknowledgment by one of hte parties of one of the relevants facts. This is not hearsay under federal rules as a hearsay exclusion, but is hearsay and excepted under most state laws.
    • -the statement need not have been against the party's interest at the time said, but against the current contentions.

    • Two types:
    • -judicial admissions: conclusive on the party
    • -extrajudicial admissions: not conclusive, but can be explained.

    • Silence may be an adoptive admission if (silence to police is not an admission to a crime):
    • -party heard and understood the statement
    • -the party was physically adn mentally capable of denying the statement AND
    • -a reasonable person woudl have denied the accusation.

    Vicarious admissions apply
  41. Vicarious admissions
    • Co-parties: not receivable merely because joint parties
    • Authorized spokesperson: can be admitted if the person can speak on the party's behalf
    • Principal-agent: Statements by an agent concerning matters within scope of agency are admissions
    • Partners: admission by one partner is binding on other co-partners
    • Co-conspirators: admissions by one conspirator made to a third party in the furtherance of a conspiracy to commit a crime or civil wrong when the declarat participated in teh conspiracy ard admissible against co-conspirator. Generally, the party must be given a chance to cross-examine the hearsay declarant.
  42. Unavailability hearsay exceptions
    • Former testimony: 1) now-unavailable witness, 2) party against whom offered was a party to the former action, 3) same subject matter involved, 4) testimony was under oath, and 5) party against whome the testimony is offered had an opportunity at the prior proceeding to develop the declarant's testimony.
    • Statement against interest: 1) unavailable, 2) made a statement against his/her pecuniary, proprietary, or penal interest when made, and 3) declarant must have personal knowledge of the facts. For criminal liability there needs to be corroborating circumstances indicating trustworthiness of the statement.
    • Dying declaration: 1) homicide or civil action, 2) declarant believed his death was imminent (need not actually die), 3) statement concerend the cause or circumstances of what he believed to be his impending death.
    • Statement of personal or family history: births, marriages, divorces, relathionship,... if declarant is member of the family in question or intimately associeted with it AND has personal knowledge of the relationship.
    • Statemtn offered against party procuring declarant's unavailability: if intentionally procured the declarant's unavailability then it will be admitted.
  43. Availability immaterial hearsay exceptions
    • present state of mind: statement showing then existing state of mind, emotion, sensations, ro physical conditions.
    • excited utterances: statement relating to a startling event before the declarant had time to reflect upon it
    • present sense impression: comments made with a sense of impression made contemporaneously with an event.
    • declaration of physical condition:
    • -present bodily condition
    • -past bodily condition: if to assist diagnotis or treatment
    • Business records:
    • Past recollection recorded:
    • Officiall records and other official writings:
    • Ancient document and documents affecting property interests
    • Learned treatise
    • Reputation
    • Family records
    • Market reports
    • Residual Catch all exception: 1) hearsay statement possesses circumstantial guarantees of trustworthiness 2) statement is strictly necessary 3) notice given to the adversary as to the nature of the statement.
  44. Business records hearsay exception
    • 1) authentic entry made in regular course of business,
    • 2) by someone with personal knowledge
    • 3) a duty to transmit such material
    • 4) made near the time of the event,
    • 5) information is germane to the business
  45. Officiall records and other official writings:
    • records of vital statitstics
    • statement of absence of public record
    • judgments
  46. Judgments official record hearsay exception
    • -felony convisions admissible in criminal and civil actions to prove any fact essential to the judgment. In criminal cases this may
    • only be used for the accused and impeachment for others
    • -prior criminal acquittals excluded
    • -judgement in former civil case inadmissible in criminal cases and
    • usually inadmissible in civil proceedings.
  47. Constitutional issues with hearsay
    May violate a criminal defendant's right to face adverse witnesses under the Sixth Amendment. However, defendant forfeits his right if he intentionally procured the witness's unavailability.
  48. Preliminary determination of admissibility
    • Jury decides:
    • -agency
    • -authenticity of documents
    • -credibility of a witness
    • -personal knowlege

    • Judge decides:
    • -hearsay exceptions,
    • -privileges
    • -expert testimony
    • -mental competence
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