Definition of relevance
any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence
Discretion to exclude relevant evidence standard
Court may exclude relevant evidence if probative value is substantially outweighed by unfair prejudice, confusion, or waste of time
Exclusion of relevant evidence for policy reasons (and exceptions)
- Liability insurance (showing respondeat superior)
- Subsequent remedial measures or repairs (rebutting defense of no feasible alternative)
- Settlements, offers, and pleas (when offered before claim is brought/ where there is no dispute of liability or damages)
- Payments or offers to pay medical expenses (other statements made in conjunction can be admissible)
When is evidence about other people or events relevant?
- When there are certain similarities between evidence and the people & events at issue:
- Similar occurrences sometimes admissible to prove causation (ex. same restaurant, same time, sick)
- Pattern of fraudulent claims
- Used to show preexisting condition (already hurt his back)
- Used to show intent (100 other women passed over for job, intent to discriminate)
- Used to rebut defense of impossibility (opens the door to other occurrences)
- Comparable sales to establish value
- Habit evidence (defendant always stops is ok; defendant is careful is not)
- Routine practice
- Industrial custom relevant to prove standard of care (acted just like all other companies)
Definition of character evidence
- any testimony or document submitted for the purpose of proving that a person acted in a particular way on a particular occasion based on the character or disposition of that person.
- Irrelevant unless related to a pertinent character trait
When is character evidence admissible in civil cases
- Where character is at issue:
- Defamation of character (truth of 'harmful' statement is defense)
- Negligent entrustment
- Child custody
- Consortium (as in wrongful death)
When is character evidence admissible in criminal cases
- Only once D opens the door
- (except in Sex.Assault or Child Molestation cases / after D has said Victim is violent, Prosec. can say D has the same trait)
- About D - only after D opens door
- About victim - only after D opens door:
- On direct: reputation and opinion is admissible, not specific instances of conduct
- On Cross: reputation, opinion, and specific instances of conduct
Rape Shield Statute and character evidence
- Civil: Reputation, opinion, and specific instances are admissible if probative value substantially outweighs unfair prejudice and P put her reputation in issue.
- Criminal: Reputation and opinion evidence inadmissible; specific instances of victim's conduct only admissible to prove:
- - 3rd party is source of semen/injury
- - prior consensual acts
What can specific instances of D's conduct be admitted to prove?
- Mistake - absense thereof
- Identify - unique way to commit the crime
- Modus operandi
- Court will always balance probative value with unfair prejudice
Testimonial evidence - four requirements for competency to testify?
- Personal knowledge: does the fact testified to equal the fact perceived?
- Present recollection: Witness testifies from present recollection, not from a recording about what the witness once knew but since forgot
- Communication: must be able to relate perception either directly or through interpretation
- Sincerity: under oath or affirm to tell the truth
Objections to form of testimony and questions
- Calls for narrative
- Leading question
- Assumes facts not in evidence
When is use of leading questions ok/not ok?
- Usually no leading on direct (except with adverse/hostile witness or witness needs help)
- Leading OK on cross
Witness use of documents during testimony? - refreshing recollection
- (watch for hearsay issues)
- Refreshing recollection: witness reading a document to refresh recollection - cannot read the document to fact finder
- - opponent may inspect it, and then may offer it as evidence
Recorded recollection exception to heresay rule (5 elements):
- 1) witness had personal knowledge
- 2) document was made by witness, under direction of witness, or was adopted by witness
- 3) document was written/adopted at a time with the facts were fresh in witness's mind
- 4) document was accurate when made
- 5) witness now has insufficient recollection to testify to the matter contained in the document
Admissibility of lay opinion
- Admissible if rationally based on the witness' perceptions and helpful to the trier of fact
- Usually admissible: speed of auto, sanity, intoxication, emotions, value of witness' property
Admissibility of expert opinion (5 requirements)
- Helpful to jury (via use of specialized knowledge)
- Witness must be qualified (basis for specialized knowledge)
- Witness must believe in opinion to be of a reasonable degree of certainty
- Opinion must be supported by a property factual basis
- Opinion must be based on reliable principals reliably applied
Admissiblity of expert opinion - Opinion must be supported by a property factual basis
- Three possibilities:
- 1) based on admitted evidence;
- 2) personal knowledge; or
- 3) inadmissible evidence reasonably relied upon (type of evidence relied upon by experts in the field)
- (look at the facts given to the expert)
Daubert/Kumho standard of reliability for scientific evidence
- Scientific evidence is reliable if:
- Peer reviewed?
- Subject to re-testing?
- Low error rate?
- Reasonable acceptance by scientists?
When are prior consistent statements admissible?
- Not hearsay and admissible for all purposes when:
- if made before the bribe
- rehabilitates witness credibility when attacked on other ground
- OTHERWISE inadmissible for any purpose
Definition of extrinsic evidence
- any evidence other than testimony given at proceeding by the witness being impeached
- Ex. testimony of different witness, writing, prior statement of witness testifying
Three key questions to admissibility of impeachment evidence
- 1) Is source of impeachment extrinsic evidence or testimony of this witness at this proceeding?
- 2) If extrinsic, is it admissible given impeachment technique?
- 3) Any other foundational requirements?
Impeachment by contradiction
- Extrinsic evidence is inadmissible to contradict on collateral (immaterial) matter
- Must say something about the credibility of the witness' ability to testify about the matters in issue
Impeachment by Prior Inconsistent Statement
- Not heresay when used to impeach the witness
- PIS of witness who testifies at trial = not heresay if PIS was given under oath at trial or deposition
- Otherwise inadmissible IF offered to prove the truth of matter asserted
- Cannot be collateral matter
- Foundation - witness must be given chance to explain
Impeachment with Evidence of Bias, Interest, Motive
- A relationship between the witness and a party – or some other interest in the outcome of the litigation that could cause the witness to lie.
- Foundation requirement - witness must have opportunity to explain or deny
Impeachment with conviction for Crime Involving False Statement
- All convictions for crimes of false statements are admissible.
- Balancing test for unfair prejudice with convictions older than 10 years
- Crimes involving falsity - perjury, fraud, forgery
Impeachment with conviction for Crime NOT Involving False Statement
- Felonies that do not involve false statement may be admissible to impeach but court may exclude for unfair prejudice
- Misdemeanors are not admissible to impeach
Impeachment with Non-Conviction Misconduct
- Non-conviction act are admissible if they involve lying
- Extrinsic evidence cannot be used
- Applies to both civil and criminal
Impeachment with Reputation and Opinion Regarding Truthfullness
- Extrinsic evidence is available
- Foundation for witness must be laid
Definitions of Hearsay & Statement
- Hearsay - Out of court statement offered to prove the truth of the matter asserted in that statement
- Statement - verbal or written expression of a person or conduct by a person intended to communicate (assertive conduct)
Three step approach to tell whether a statement is offered for the truth of the matter asserted
- 1) Find the statement
- 2) As what it is offered to prove? (How would the evidence be useful to the offering party's case)
- 3) Would the jury/court be misled if the speaker was lying or mistaken?
Out of court statements that are not hearsay
- Independent Legal Significance: words that create legal obligations/liability - ex. "I accept your offer" or tortious words
- Statement offered to show effect on listener: (ex. negligence case where used to show notice)
- Statement offered to show speaker's/writer's knowledge of facts stated: (writer of a note said the same thing in court)
- Statement is circumstantial evidence of state of mind: (ex. insanity defense - person said crazy stuff at the time of the murder)
Opposing party statement
- Hearsay exemption (not hearsay)
- Statement by a party, or by someone whose statement is attributable to a party, offered by a party opponent
- Distinguish from statement against interest exceptionNot subject to personal knowledge requirement or opinion rule
- Vicarious opposing party statement: made by (i) authorized agent, (ii) employee of party concerning matter within scope of employment and made during employment relationship, (iii) co-conspirator (during conspiracy and in furtherance of), or (iv) adoptive opposing party statement (party indicates belief in what was said)
Four exemptions from Hearsay
- Opposing party statement
- Prior inconsistent statement given under oath at trial or deposition
- Prior consistent statement offered to rebut charge of recent fabrication or improper influence or motive or to rebut another attack on credibility
- Statement of identification of a person made after perceiving the person ('That's the guy who robbed me')
- NONE ARE HEARSAY
Former testimony exception from Hearsay
- Given by a person at a previous proceeding/depo is admissible if:
- 1) the party against whom it is being offered had an opportunity to examine the speaker and the motive to examine the speaker was similar to current motive; or
- 2) in civil case, a predecessor in interest had an opportunity and similar motive to examine the witness
- Declarant must be unavailable
When is a declarant unavailable?
- Court exempts declarant from testifying due to privilege
- declarant is sick
- proponent of statement cannot procure declarant's attendance by process or other reasonable means
- declarant refuses to testify despite court order
- declarant's memory fails
Declaration against interest Hearsay exception
- Hearsay statement is admissible if, at the time it was made, it was against he financial interest of declarant or would have subjected declarant to criminal liability
- Declarant must not be available
Dying Declaration Hearsay Exception
- Hearsay statement by one believing he is about to die and describing cause or circumstances leading to impending death
- is admissible in civil action and in homice prosecution
- Declarant need not die, but must be unavailable
Excited Utterance Hearsay Exception
- Hearsay statement relating to a startling event or condition is admissible when made while declarant was still under stress of excitement caused by event or condition.
- No need to show declarant unavailable.
- Duration: until the person is no longer under the stress of the situation (look for exclamation point)
Present Sense Impression Hearsay Exception
- Hearsay statement is admissible if describing or explaining an event or condition made while declarant was perceiving the event or condition or immediately afterwards
- Describing the facts while perceiving the facts
- "Joe just walked in..."
- Declarant does not need to be unavailable
Declaration of Then Existing Physical or Mental Condition Hearsay Exception
- Hearsay statement of declarant's then existing physical or mental condition or state of mind is admissible to show the condition or state of mindNot admissible to prove the fat remembered or believed.
- "I intend to give Joe..."
- Declarant does not need to be unavailable
Statement of Past or Present Mental or Physical Condition made for Medical Diagnosis or Treatment Hearsay Exception
- Hearsay statement by one person concerning the past or present mental or physical condition, or its cause, of that person or any other person, is admissible if made for and pertinent to medical diagnosis or treatment
- No need to show declarant is unavailable
- ex. To doctor: "My back is killing me."
Business Records Hearsay Exception
- Hearsay is admissible if it is:
- 1) a record of events, conditions, opinions or diagnosis
- 2) kept in course of regularly conducted business activity
- 3) made at or near time of matters described
- 4) by person with knowledge
- 5) regular practice of business to make such record
- 6) opponent does not show untrustworthy
- No need to show declarant is unavailable
- Can cover multiple layers of hearsay
Public Record Hearsay Exception
- Hearsay record of a public office is admissible if within one of the following categories:
- describes activities/policies of the office
- describes matters observed pursuant to a duty imposed by law (not police reports)
- records contain factual findings resulting from investigation made pursuant to authority granted by law, unless opponent demonstrates untrustworthiness (cannot be used by prosecution)
- Declarant need not be unavailable
Judgment of Previous Conviction Hearsay Exception
- Hearsay statement describing felony conviction is admissible in both civil and criminal cases to prove any fact essential to the judgment
- when offered by prosecution for non-impeachment purposes, judgment against other than the accused are inadmissible
- No need to show declarant unavailable
Confrontation Clause Objection
- Out of court statement offered by prosecution against D is excluded if:
- Declarant does not testify at trial,
- Declarant is unavailable,
- The statement is "testimonial", and
- Defendant did not have an opportunity to cross-examine declarant
Definition of authentication
- Proving that an item of non-testimonial evidence is what the proponent of that evidence claims it to be.
- "Sufficient to sustain a finding" (less than preponderance)
Ways of authenticating non-testimonial evidence
- Eyewitness testimony
- Expert opinion
- Lay opinion
- Circumstantial evidence
- A genuine exemplar
Ancient documents rule
- Authenticity of a document is established if:
- 1) document is older than 20 yrs.
- 2) Does not on its face present irregularities.
- 3) found in a place of natural custody (where it should be).
- authentication is unecessary
- Trade inscription (logo on bottle)
- certified copies of records
- acknowledged documents (signed before notary)
- official publications
- business records
Authentication of photos
- Does the witness have the personal knowledge necessary?
- "Fairly and accurately depict...?" - if the witness saw the situation in the photo, then yes
- "Is this a photo taken at the time of the accident?" - might not know about whether the photo was taken then.
Authentication of non-unique items
- How do you authenticate items that are facially indistinguishable from other like items
- Show chain of custody
- Demonstrate that this is the item it is claimed to be
Best Evidence Rule
- Where evidence is offered to prove the contents of a writing, the original is required unless:
- - Voluminous documents
- - original is destroyed/lost (unless in bad faith)
- Duplicates are usually also admissible (unless original's authenticity is in question)
- Look for cases that rely on:
- - content of a written document
- - knowledge obtained from writing ("I had a letter that said...")
Attorney Client Privilege
- Communication between attorney and client or their representatives intended by client to be confidential and made to facilitate legal services is privileged unless waived
- Corp.: when the employee/agent is authorized to communicate to the lawyer on behalf of the corporation
- Can be between client's rep and attorney's rep
- Intent for confidentiality is judged objectively: reasonable person standard
Two Exceptions to Attorney Client Privilege
- Services sought were to further a crime or fraud
- Breach of duty between lawyer and client
- Two or more parties consult an attorney on a matter of common interest and the communication is offered by one of the parties against another
- Testimonial - married (at time of trial) spouse may refuse to testify
- - witness holds the privilege
- - applies only in criminal cases
- Confidential Communication made during marriage
- - apllies in both criminal and civil cases
- - held by both spouses
- - do not need to be married at time of trial
- Exception - cases between spouses
- Communication between psychotherapist and patient, or licensed social worker and client, intended by patient/client to be confidential and made to facilitate rendition of professional psychological services is privileged
- Can only be waived by patient
- No FRE privilege (only used in diversity cases using state law)
- Patient conveyed the information for the purpose of obtaining diagnosis or treatment and the information was pertinent to diagnosis or treatment.
- Must intend to be confidential
- Information given to expert witness doctor is not privileged
- - when patient puts physical condition in issue
- - where physician's services sought to aid a crime or fraud or escape capture after crime/tort
- - when a breach of duty arising from patient-client relationship is at issue
- penitent conveyed the information for the purpose of obtaining spiritual guidance and the information was pertinent to that.
- Must intend to be confidential
Social Worker - Client Privilege
Patient conveyed the information for the purpose of obtaining diagnosis or treatment and the information was pertinent to diagnosis or treatment.Must intend to be confidential
What facts are appropriate for Judicial Notice?
- Generally known facts, or
- Capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned
- Procedure: party must request judicial notice to compel judicial notice, otherwise crt. has discretion
- Civil: jury is required to accept noticed fact as true
- Criminal: jury may, but is not required, to accept noticed fact as true
- May occur at any time, even on appeal
When can D (crim) introduce character evidence to show propensity to not commit crime & what kind can be introduced?
- D can introduce character evidence at any time (even when presenting case)
- D can only use opinion and reputation in case in chief (not specific instances)
Under what 2 circumstances can a prior inconsistent statement be used for both substantive and impeachment evidence
- the prior inconsistent statement was given under oath at a prior proceeding
- If the prior inconsistent statement itself falls within a hearsay exception (ex. excited utterance)
For which hearsay exceptions must the witness be unavailable?
- Declarations against interest
- Dying declaration (CA- only homicide cases)
- Former testimony
What 5 questions do you ask for privileges?
- Confidential communication?
- Who holds the privilege?
- Any exceptions?