Evidence - Bryan

  1. Judicial Notice
    • A judge can take judicial notice of Legislative or Adjudicative Facts (not subject to
    • reasonable dispute based on common knowledge generally known in jurisdiction or
    • where accuracy is easily determinable)
  2. Relevance
    Evidence is relevant if it has any tendency to make a material fact more or less likely. Relevant evidence may be excluded if its value is substantially outweighed by the risk of unfair prejudice, confusion of the issues, waste of time, or cumulative.
  3. Pubic Policy Exclusions
    • 1. Character evidence
    • 2. Remedial Measures
    • 3. Offers of Compromise/Pleas
    • 4. Offers to pay medical expenses
    • 5. Liability Insurance
  4. Remedial Measures
    • Evidence D fixed problem or allegedly dangerous condition after accident/injury inadmissible unless D
    • denies feasibility, ownership, or control.
  5. Character Evidence in Civil Case
    • Evidence of character is not admissible to show conformity on a specific occasion. In civil cases, admissible only when specific trait of character is directly at issue in the case. libel, slander, negligent
    • hiring, or entrustment of car.
  6. Character of Defendant in Criminal Case (by Defense)
    • May be used anytime it is relevant, in the form of reputation testimony only. Criminal defendant may call character
    • witnesses to provide reputation (not opinion) concerning “pertinent” trait of the case.
  7. Character Evidence of D (by Prosecution)
    • Defendant must first open door on particular trait. Prosecution may impeach defense character witness by asking whether
    • she has heard of specific acts by D that are inconsistent with trait raised by defense witness. Or, prosecution may call its own character witness to testify concerning D’s reputation for trait raised by D.
  8. Prior Bad Acts
    • Not admissible to show conformity or propensity, but may be admitted for another purposes (allowed for conformity for prior
    • sexual misconduct).
  9. Permissible "Other" Purposes for Prior Bad Acts
    CRIIMS 1. Common plan or scheme; 2. Res Gestae; 3. Intent/accident/lack of mistake; 4. Identification (modus operandi); 5. Motive; 6. Sex offenses
  10. Character Evidence - Balancing Test
    Court Must identify purpose for admission (for all exceptions), determine relevance to prove an essential element of crime, balance on the record the probative value vs. unfair prejudice, & give limiting instruction.
  11. Character of Victim in Crim. Case
    • may be raised by D if relevant (self defense)
    • (except Rape Shield Statute)
  12. Rape Shield
    excludes sexual history of rape victim, unless D has history w/victim & consent is issue
  13. Character Evidence of Witness
    witness’ credibility can be attacked by character evidence only: 1.By evidence of character for untruthfulness 2. By evidence in form of reputation, or in discretion of court, specific acts (but not by extrinsic evidence) Once attacked, evidence of truthful character may be introduced
  14. Witness Impeachment
    • 1. Prior Inconsistent Statement
    • 2. Bias
    • 3. Conviction of Crime (next card)
  15. Witness Impeachment by Previous Crime
    • w/possibility of death or >1 year sentence; or Conviction of crime involving dishonesty/false statement (no balancing test required – automatically admissible) WA: ALL crimes of theft qualify
    • (BUT, not admissible if more than 10 years old; pardoned/annulled) Party who wants to use must give notice.
  16. Habit
    semi-automatic response to specific stimulus; habit evidence is admissible to show conformity on a specific occasion.
  17. Privileges (generally)
    • 1. Must be a special relationship; 2. Made in confidence 3. Asserted at the first opportunity. 4. no disclosure to 3rd
    • person (unless also in privileged relationship)
  18. Attorney/Client Privilege
    • Holder is client and atty has ethical obligation to assert.
    • Exceptions: identity of party and future crimes
    • Corporate client: control group test
  19. Physician/Patient Privilege
    • all doctors; patient must be seen for diagnosis, treatment, or medical advice. Unrelated information not protected.
    • a. Waived by statute 90 days after filing PI claim
  20. Marital Communication
    • Protects confid. communications made during marriage. If conduct meant as communic.= covered. Either spouse may assert
    • privilege, even if divorced when asserted. (Must be asserted in confidence)
  21. Spousal Incompetancy
    Spouse can’t testify (or beforced to) against spouse while married/must be married @ time of trial [EXCEPTION: domestic abuse or child abuse] [Irrelevant whether obtained in confidence]
  22. Witness Competancy
    • Witnesses are incompetent if incapable of receiving facts or relating facts and impressions truthfully
    • 1. Children - may require competency hearing
    • 2. Dead Man's Statute: Interested parties may not testify against interest of someone who derives his right from deceased person,
    • when the only person who could contradict the testimony is dead.
  23. Leading Questions
    OK on cross-exam and for hostile witness (or for preliminary information, to refresh memory, with children, or experts)
  24. Lay Opinion Testimony
    Must be rationally based on sense perceptions & helpful to fact-finder (height/weight/speed estimates; witness must have adequate bases for opinion & can’t guess/speculate

    Permissible lay opinions include: 1)Weather; 2) Speed; 3) Physical Description; 4) Sanity; 5) Handwriting/voice identification
  25. Expert Testimony
    • An expert qualified by knowledge, skill, training, education or experience may testify to subjects beyond the
    • understanding of the average juror. Not allowed to testify based on novel scientific theories unless generally accepted within the relevant scientific community.

    Must be qualified expert by knowledge, skill, training, education, or experience (court can appoint w/notice to parties)
  26. Hearsay
    is an out-of-court statement being offered in court to prove the truth of the matter asserted. Generally inadmissible unless exception applies that provides independent indicia of reliability
  27. Not Hearsay if...
    • It isn't hearsay if it ISN'T being use to prove the truth of the matter asserted!
    • i. Indirect evidence of mental state ii. Notice iii. Duress v. Impeachment v. Words that have operative legal effect
  28. Non-Hearsay
    • Remember: TAPPIOCAS
    • 1. Tacit admissions; 2. Admissions by party; 3. Prior Inconsistent Statement; 4. Prior Consistent Statement; 5. ID; 6. Opposing party's Deposition; 7. Co-Conspirator Statement; 8. Adoptive statements; 9. Speaking Agent/Vicarious
  29. Tacit Admission
    • failure to respond to a statement where a reasonable person would have
    • responded if accusation was false (but this doesn’t apply where a cop is within
    • earshot due to 5th Amendment)
  30. Admission by Party Opponent
    • Statement made by a party offered against that party’s interest at trial (may have been self-serving when made/ *only
    • needs to be against interest at trial
  31. Prior Inconsistent Statements
    to impeach under oath
  32. Prior Consistent Statements
    • offered to rebut allegation of recent fabrication, only
    • if made before motive to lie formed
  33. Co-Conspirator's Statement
    • co-conspirators implicitly act as speaking agents to each other. 1. must establish conspiracy by
    • substantial, independent evidence (unlike fed. court), 2. both parties part of
    • conspiracy, 3. statement made during course of conspiracy (leniently
    • interpreted), & in furtherance of it (not a confession to the police)
  34. Adoptive Statements
    • by conduct or silence: the statement is made by someone else, but
    • the court is willing to assume you adopted it as true (ex. repeating someone
    • else’s statement as your own)
  35. Speaking Agent
    • admissions by an employee against an employer, for example. Under federal law, admissions by
    • employee against employer much easier. In WA, employee must have “speaking
    • agent” authority
  36. Hearsay Exceptions - Declarant Unavailable (5)
    • 1. Former Testimony (given under oath, and party against whom offered had similar opportunity & interest to develop testimony)
    • 2. Dying Declaration (speaker believed death was imminent & certain; concern cause of statement; admissible only in civil & homicide cases)
    • 3. Statements against Interest (against declarant's interests when made)
    • 4. Family history
    • 5. Child victim of abuse
  37. Hearsay Exceptions (Declarant Availability Immaterial)
    • Remember: PRRO IMBALMER
    • 1. Past Recorded Recollection
    • 2. Other exceptions
    • 3. Impressions (present sense sense)
    • 3. Mental State
    • 4. Business records
    • 5. Ancient Records (20 years)
    • 6. Learned treatise
    • 7. Medical treatment statements
    • 8. Excited utterance
    • 9. Records (Public) under seal
  38. Confrontation Clause
    • Crawford prohibits introduction of “testimonial” out-of-court statements against a crim. D
    • unless declarant: Appears as a witness at trial OR Is unavailable and the D had a prior
    • opportunity to cross-examine the declarant concerning the statement
  39. "Testimonial"
    • prior testimony under oath (prelim, grand jury, former trial OR police interrogation) [assist in criminal
    • prosecution or to gather evidence]
  40. "Non-Testimonial"
    • made in course of police interrogation under circumstances objectively indicating primary purpose is to
    • meet an ongoing emergency
  41. Authentication
    physical evidence being offered must be first authenticated. Proponent must provide sufficient proof to permit a reasonable juror to find in favor of its admissibility (“prima facia proof” lowest level of proof: whether a reasonable juror could find it to be authentic, not whether the judge personally thinks it is authentic)
  42. Methods of Authentication (physical evidence)
    • Chain of custody: 2 ways: 1. Testimony of every person who had possession; 2. witness who placed an identifying mark or
    • seal on the evidence
  43. Authenticating Document (or recording)
    Handwriting; voice ID; request for admission; distinctive characteristic; self-authenticating; judicial notice; ancient documents
  44. Handwriting
    • Judge or handwriting expert can compare handwriting to a sample; or someone familiar w/ the purported
    • author’s handwriting, so long as the witness has a basis for familiarity with handwriting.
  45. Request for Admission
    • In civil, the following deemed authentic and admissible if numbered/indexed & served within 30 days of trial & opposing party doesn’t object within 14 days: A bill/treatment/supply record from healthcare provider on letterhead; PD estimate on letterhead; weather/traffic signal report or U.S. govt. table; photo, x-ray, drawing, map, blueprint or any other that has equiv. circum.
    • guaranties of trustworthiness.
  46. Self-Authenticating
    deemed authentic (newspapers, periodicals, public documents under seal (etc)
  47. Ancient Documents
    20+ years old
  48. Best Evidence Rule
    requires production of original document. However, a duplicate is admissible unless authenticity is at issue or it is otherwise unfair. (Only applies when content at issue & the witness’ testimony is based upon the preserved communication)

    Secondary evidence allowed if original is lost or destroyed without bad faith
Card Set
Evidence - Bryan
Bryan and Sacha's