MBE: Evidence

Relevance: Any evidence that has any tendency to make a material fact more/less probable than it would be iwthout the evidence.

• Relevant evidence may be excluded if:
• (1) unfair prejudice
• (2) confusion of the issues
• (3) misleading jury
• (4) undue delay
• (5) waste of time
• (6) cumulative evidence
• Strict Standard: probative value must be substantially outweighed by danger of prejudice.

Potential Problems: evidence concerning another time, event or person.

• Similar occurrences may be admissible to prove:
• >> Causation (ie. sick at a restaurant)
• >> Prior accidents/claims: other accidents involving the same instrumentality which occurred under same/sim circumstances are admissible to show
• ----- (1) knowledge/awareness of problem, and/or
• ----- (2) that the instrumentality is dangerous/defective.
• ----- NOTE: plaintiff's prior/accidents claims not admissible unless:
• --------- (1) common plan/scheme of fraud, OR
• --------- (2) damage to plaintiff from prior accidents calls into question the causation of the injury.
• >> Intent or State of Mind at Issue: Admissible to show inference of prior conduct. Ie. Employ discrim, show intent.
• >> Rebuttal Evidence: Rebut Defense of Impossibility (ie. D claims impossible, P tries to show otherwise)
• >> Comparable Sales to Establish Value: Requires same gen description, relevant time period, geo area.
• >> Habit Evidence: Habit of a person to act in a certain way is relevant to show that the person acted in the same way
• on the occasion in question.
• Keys: Specificity and Recurrence (instinctively, invariably, automatically)
• Note: disposition (character trait) and prior act ≠ admissible here.
• >> Business Routine: Routine practice of an org
• >> Industrial/Trade Custom: Admissible as non-conclusive evidence of standard of care (ie. company wants to show that specific safety device not used by similar companies, does not evidence breach of care).

• GEN: Not admissible to show person acted negligently or wrongfully or to show ability to pay.
• EXCEPTIONS:
• (1) show ownership/control (ie. carry plan for bdg).
• (2) Impeach credibility of witnesses by showing interest/bias (ie. witness is claim manager for D's insurance company)

• GEN: Not admissible to show negligence, culpable conduct, defect in product, defect in design, or a need for a warning.
• EXCEPTIONS:
• (1) Ownership/control: but only when disputed.
• (2) Impeachment -- feasibility of precautionary measures: only when contraverted (ie. D denies that property could be safer).

• GEN: Not admissible to prove liability, fault, or amount of damage. Includes actual promises, offers to compromise, offers to plead in a crim case, withdrawn pleas of guilty, pleas of nolo contedere.
• NOTE: Must be a claim for rules of exclusion to operate -- ie. claim made or about to be made.
• NOTE: Claim must be disputed as to either liability or amount.

Offer to pay medical expenses is NOT admissible even though not a settlement offer. But if an admission of fact accompanies a naked offer to pay hospital bills, the admission may be admitted.

IE. "It was all my fault. Let me pay your hospital bill." Only first sentence admissible.

ISSUES:

• (1) Purpose of offer of character evidence;
• >> Character directly in issue.
• >> Character as circumstantial evidence of a person's conduct at the time of the litigated event (prove conduct in conformity).
• >> Character to impeach witness credibility (bad char. for truthfulness).
• (2) Method of proving character;
• >> Specific Acts
• >> Opinion
• >> Reputation
• (3) Type of case -- civil or criminal; AND
• >> Civil or Criminal
• (4) What trait of character is involved.
• >> Must be specific, permanent, relevant (ie. assault - violence; fraud - dishonesty)

• Inferring Conduct (NO): No character evidence as circumstantial evidence to infer conduct in a civil case.
• Material Issue (YES): Admissible when character is a material issue (ie. defamation). In suct cases, can use specific acts, opinion and reputation.

• GEN: Bad character is NOT admissible at the initiative of the prosecution if the sole purpose is to show crim disposition in order to infer guilty disposition.
• BUT: If accused places character into question (reputation/opinion to infer innocence), then the prosecutor may respond by showing the bad character of the accused. Prosecutor, on cross, can inquire about specific acts, but must take the evidence of the witness. Prosecution can also call witnesses to testify as to bad opinions/reputation re: accused.

ALSO: Can use character evidence to impeach the accused's credibility.

When D puts character at issue: may only present relevant character evidence (ie. peacefulness in assault case), and can only present opinion/reputation evidence, NOT specific acts.

• If accused makes a self-defense argument, he may take the initiative and present circumstantial evidence re: character of victim as an aggressor. Can only use reputation/opinion.
• BUT: Opens door. Prosecutor can respond by showing good reputation/opinion re: victim or by showing bad reputation/opinion re: the accused.
• NOTE: Back door re: specific acts can be the "state of mind" exception -- prove that witness had reason to fear harm (violent disposition).

• CRIM CASE:
• No opinion/reputation.
• Specific acts only admissible: (1) if offered to prove that a third party was the source of the semen/injury/ect., (2) to show prior acts of consensual intercourse between the alleged victim and the accused or (3) if exclusion would violate accused's constitutional rights.

CIV CASE: Evidence of sex disposition/behavior of the alleged victim is admissible only if probative value substantially outweighs danger of harm to victim and unfair prejudice to any party.

ALSO: Defense must give notice and have an in camera hearing.

• GEN (Civil and Criminal): If prior bad act or a criminal record is relevant for a reason other than to show propensity for a crime, may be admitted.
• >> MIMIC

• VALID REASONS:
• Motive
• Intent: ie. to prove absence of mistake/accident. Expertise to show knowledge (ie. received stolen goods in the past)
• Modus Operandi (another way to show identity)
• Identity: IE. gun in prosecuted crime obtained when D robbed a house a year earlier.
• Common Plan/Scheme: ie. stealing of a truck earlier in the wk that was used in the prosecuted crime.
• NOTE: Above list not exclusive. Ie. could add "opportutnity" or "preparation" or an other relevant, permissible purpose.

Writings require testimonial sponsorship -- Authentication.

• METHODS
• Direct Evidence: Admission, eyewitness testimony, handwriting proof (signature).
• For handwriting proof, any witness familiar with the signature (or recording) may authenticate. Need not see the item in question be signed. BUT -- cannot become familiar with the signature merely for the purposes of litigation.
• Circumstantial: ancient document rule (20 yrs, natural custody), solicited reply (doc response to prior comm),
• Quantum of Proof: sufficient evidence to justify a jury finding of genuineness -- reas. jury find it to be genuine.
• >> IE. Photo -- Witness looks at photo, states that it's a fair/accurate representation. If no witness, then show that equipment taking picture working, film properly handled bwn time of shot and presentation in court.
• Self-Authenticating Docs: Certified pub/biz records, official publications, newspapers, trade inscriptions, acknowledged documents (incl. certificate of ackn.), signatures on certain commercial documents.

Party seeking to prove the content of a writing must either (1) produce the original document OR (2) account for the absence of the original. If absence accounted for, then either a copy or oral testimony may be admitted to prove the content of the original.

Application: legally operative documents (deeds, divorce decree, written contract) and when witness' sole knowledge comes from a document (also: witness has no personal knowledge).

• NOTE: Facts having existence independent of a writing.
• >> If witness has personal knowledge of a fact that also happens to be in a writing, no need to produce writing.

ALSO: Best evidence rule ≠ apply to writings of minor importance (collateral documents).

• Public Records: certified copies ok in lieu of originals.
• Voluminous Docs: summaries, charts, ect. admissible in place IF (1) originals would be admissible if offered, AND (2) originals are made accessible to opposing party. Usually offered through an expert.
• Duplicates: duplicates admissible to the same extent as the original unless(1) genuine question is raised re: authenticity of original, OR (2) it would be unfair to admite the duplicate in lieu of the original. Opposing party must show misrep/unfair.

Only issue: whether the testimony will be helpful.

• GEN: Shuts mouth of survivor by declaring him incompetent.
• NOTE: Interested survivor (wills, contracts, ect.) cannot testify for his interest against the decedent or decedent's representatives about communications/transactions with the decedent in a civil case UNLESS there is a waiver.
• REQS:
• (1) Interested witness on stand.
• (2) Testifying for his interest.
• (3) Dead Man Statute in jdx
• (4) Subject matter -- comm w/ a descedant.
• (5) Civil case
• (6) Consider waiver: if descedant's testimony somehow gets b/f jury.

• GEN: Witness memory fails. Anything can be used to jog his memory, but not admitted into evidence. Also: opposing counsel can see/use it and even put it into evidence.
• Magic words: "I can't remember" or "I can't recall."

• GEN: If witness unable to remember all or part of the details of a transaction about which she once had personal knowledge, her own writing shown to be reliable may be admitted in place of her testimony.
• EFFECT: Writing may be read to jury, but not received as an exhibit; they don't get to see/read it.
• REQ:
• (1) Witness had personal knowledge (at one time).
• (2) Writing made by witness or under witness' supervision. If made by another, must be adopted by the witness.
• (3) Writing timely made and reliable.
• (4) Reference to writing necessary: witness must show that can't remember all/part of the transaction details.

• REQS:
• (1) Subject matter must be appropriate for expert testimony.
• >> Reliable and relevant (fit facts of the case). Judge = gatekeeper.
• (2) Qualified as an expert.
• (3) Expert should possess reasonable certainty re: opinion.
• (4) Opinion must be supported by a proper factual basis.
• >> Facts w/in personal knowledge of the expert
• >> Facts not w/in PK, but supplied in court to expert by evidence (ie. hypos)
• >> Facts of a type that experts in the field would reasonably rely upon in making out-of-court professional decisions (ok if based on hearsay, ie. doctor reliance on radiologist's description of x rays).

GEN: Learned treatises can be used (to impeach contrary opinion or for its truth) once established as authoritative.

• METHODS:
• (1) Opposing expert relies on text(s).
• (2) Eliciting admission on cross -- familiar, authoritative.
• (3) Own expert states they are authoritative or reliable.
• (4) Judicial notice.

NOTE: Treatise admitted by being read to jury; text itself not received into evidence.

• GEN: Cross-examiners limited by the answers given by the witness as to collateral matters.
• >> No extrinsic evidence is allowed to contradict witness re: collateral matter.
• Collateral Matter: only purpose is to contradict the witness.

No bolstering your own witness unless there has first been an appropriate impeachment. Bad must precede good.

Prior Consistent Statement of Identification: if made by a witness who testifies at trial, excluded from hearsay and may be admitted.

NOTE: Individual who made the identification AND anyone (ie. police) who heard such identification can testify about it as a prior consistent statement, but only if the individual who made the identification has or will also testify. (Otherwise, hearsay and CC violation).

• Basic Impeachment Techniques:
• (1) Prior Inconsistent Statements
• >> Offer only to show contradiction, not truth.
• >> BUT: if statemnt given under oath and at a trial/hearing/deposition, statement admissible for its truth.
• >> Extrinsic evidence admissible to prove prior inconsistent statement.
• >> Foundation: must be proper. Witness in most cases must be given the opp to explain/deny the statement unless made by the hearsay declarant.
• (2) Bias/Motive
• >> Foundation: Witness must be asked about the facts that show bias/interest.
• (3) Prior Conviction of a Crime
• >> Includes: any crime involving dishonesty, AND by any felony. A court may exclude the latter if (1) the witness impeached is a criminal defendant and prosecution has not shown that the conviction's probative value outweighs prej.; and (2) for other witnesses, the court finds that the conviction's probative value is substantially outweighed by its prejudicial effect.
• >> Excludes: Juvenile offenses and convictions that occurred 10 yrs ago (or where release was 10 yrs ago).
• >> Foundation: None needed.
• (4) Specific Acts of Deceit/Lying
• >> REQ: Good faith inquiry.
• >> No extrinsic evidence of bad acts.
• >> NOTE: Asking about "bad acts" okay (ie. embezzlement), but NOT arrests.
• (5) Bad Reputation/Opinion for Truth/Veracity
• (6) Sensory Deficiencies
• >> Impairment or disability.

KEY Qs: (1) Can you use extrinsic evidence, and if so, do you first have to lay a foundation?

GEN: Can't do it.

If an unavailable witness' out of court statement is introduced, it may be attacked (and supported) by evidence that would be admissible if the declarant had testified as a witness.

• Usually not allowed, but if testimony of witness has been attacked by a charge that he lied/exaggerated b/c of a motive, previous statement admissible to show that it was said before motive arrived.
• NOTE: Admissible for its truth!

Reputation for truth may be shown if impeachment involved a direct character attack (ie. prior conviction, act of deceit/lying, bad reputation or opinion for truth.

• GEN: Confidential communications between A-C made during prof legal consultation are privileged from disclosure unless waived by the client or the rep of the deceased client.
• ELEMENTS: A and C, confidential communication, professional legal relationship (intent by client to establish relationship coupled with predominantly legal advice).
• EXCEPTIONS:
• (1) Future crime/fraud
• (2) At issue -- client puts it at issue.
• (3) Disputes bwn parties
• (4) Joint client exception -- 2+ parties communicate w/ a lawyer about a matter of common interest. No priv bwn them.

• KEY: Patient must be seeking treatment AND info acquired must be confidential/necessary to facilitate prof treatment.
• NOTE: Court-ordered exam ≠ privileged.
• WAIVER: priv waived if patient sues or defends by putting physical or mental condition in issue!

• Spousal Immunity Privilege (CRM): One spouse can't be forced to give adverse testimony against the other in a criminal case.
• REQS:
• (1) Valid marriage at time of trial.
• (2) Protects against any testimony.
• (3) Holder of privilege is witness spouse, not party spouse.

• Confidential Marital Communications Privilege (CIV + CRIM): Neither H or W required -- or without the consent of the other, shall not be allowed -- to disclose confidential communications made by one to the other during marriage.
• REQ:
• (1) Married not necessarily at time of trial but at time of protected communication -- outlasts marriage.
• (2) Protects only confidences, not other testimony.
• (3) Holder of privilege is either spouse, not just witness spouse.

• If state substantive law applies, the following may apply:
• (1) Presumptions and BoP
• (2) Competency of witnesses -- think: Dead Man Statutes
• (3) Privileges
• KEY: Look for diversity. If fed question, then not relevant.

• GEN: A GJ statement is admissible both as impeachment and substantive evidence.
• >> A prior inconsistent statement made under oath at a prior proceeding or deposition is ADMISSIBLE NON-HEARSAY and thus may be used as substantive evidence as well as for impeachment.

NOTE: If the statement had been merely inconsistent but not given in a prior proceeding under oath, then it is deemed hearsay and admissible only to the extent it's used for impeachment.

• BUT: if a declarant who testified before a GJ is unavailable, that testimony is NOT admissible in the subsequent trial.
• RAT: GJ doesn't allow cross, and the party against whom the testimony is offered had the opp to develop the testimony at the prior proceeding by direct/cross/redirect.

• GEN: Criminal judgments fall within the hearsay exception for records of felony convictions.
• >> Felony convictions admissible in both criminal and civil actions to prove any fact essential to the judgment, whether the judgment arose after trial or upon a plea of guilty.

Verbal Acts or Legally Operative Facts: where words spoken or written have relevant legal signif in the case by virtue of being spoken/written (ie. offer, acceptance, defamation).

Effect on Listener: ie. show notice to, or GF of, or reason for action/inaction by person who heard/read the out of court stmt.

State of Mind (circumstantial evidence):

Party-Admissions

• GEN: Witness' own prior statements = inadmissible hearsay.
• EXCEPTIONS:
• (1) Prior Inconsistent Statements: Given under oath at another hearing/proceeding.
• >> If given under oath at a prior proceeding, can be used for impeachment AND substantive evidence.
• (2) Prior Consistent Statements: rebut charge of recent fabrication or improper influence/motive.
• (3) Prior Statement of ID:

• GEN: Declaration of a party offered against a party.
• >> Admissions by party-opponents = NON-HEARSAY.
• NOTE: Need not be against interest at the time the statement was made. Need not be based on personal knowledge. And can be in the form of a legal conclusion ("I was negligent.").
• NOTE: Statement made by a party's agent or servant re: matter w/in scope of employment during existence of relationship = ABPO.

• GEN: Testimony given in an earlier proceeding by a person now unavailable is admissible IF:
• (1) party against whom testimony is being offered had, during an earlier proceeding, an opp to examine that person AND a motive to conduct exam was similar to the motive it has now; OR
• (2) In civil cases, the party against whom the testimony is offered was in privity w/ party to earlier proceeding who had the opp and a similar motive to examine.

NOTE: Unavailable includes refusal to answer qs or a failure of memory.

• GEN: Declaration of person, now unavailable as a witness, against that person's interest (pecuniary, proprietary, penal) at the time it was made.
• REQ: Corroborating circums clearly indicating the trustworthiness of the statement. Just crim???
• DIFF FROM PARTY ADMISSION: Here, statement must be against interest at the time it was made. Need not be from a party -- can be from any witness. Requires personal knowledge and witness unavailability.

• Available only in homicide or civil cases.
• Content limitation: must concern cause or circumstances of impending death. Something collateral cannot be admitted.

• Declaration of existing state of mind
• >> Declaration of existing intent to do something in future offered to infer that intended future act done
• Excited utterance
• >> Statement relating to a startling event/condition when made under stress of excitement caused by event/condition.
• >> Consider: nature of event, lapse of time (excitement worn off? note: waking up from a 2-day coma can still create an excited utterance), language of excitement.
• Present Sense Impression
• >> REQ: Precise contemporaneous.
• >> Statement describing event/condition made while declarant perceiving the event/condition or immediately thereafter. Need not be the result of a startling even, but must be contemporaneous.
• Declaration of Present Pain/Suffering/Condition
• >> Declaration re: physical condition admissible to show condition.
• Declaration of Past Physical Condition
• >> Statement made to medical personnel AND pertinent to either diagnosis or treatment -- even if diagnosis merely for purpose of giving testimony.

• RULE: When a hearsay statement has been admitted in evidence, the credibility of the declarant may be attacked by any evidence which would be admissible for that purpose if declarant had testified as a live witness.
• NOTE: Impeachment usually involves prior inconsistent statements. Such statements NOT subject to the usual foundation req.

• GEN: Records made at/near the time by a person w/ knowledge are admissible if kept in the reg course of business to make the record unless the source of info or circums of preparation indicate a lack of trustworthiness.
• NOTE: Issues usually turn on whether the entry is germane to business.

PROB: Hearsay w/in hearsay. If biz record has add'l hearsay in it, statement not admissible unless that internal hearsay falls within an exception.

• Out of court statements ≠ admitted if::
• (1) statement is offered against the accused in a criminal case;
• (2) the declarant is unavailable at the trial;
• (3) the out-of-court statement was "testimonial"; AND
• (4) the accused had not opp to cross the declarant's testimonial statement when it was made.
• EXCEPTION: prosecution demonstrates that D forfeited CC objection by wrongdoing that prevented the declarant from testifying at trial.
• (5) pro