Character Trait Evidence - Rule 404
- Generally, evidence of a persons’ character trait isn’t admissible to show action in conformity therewith, except:
- -Essential Element
- -Circumstantial Evidence
- 1. Character of accused, Character of victim.
Essential Element - 405(b)
If a character trait is an essential element of a charge claim or a defense, you can prove it in civil and criminal trials, during case in chief, with Testimony as to reputation (i.e. by member of community) Testimony as to opinion (i.e. by someone familiar with person) Testimony as to specific instances of conduct
Circumstantial Evidence - 405(a)
If a case falls under one of the exceptions below(character of accused or of Victim), character traits can be shown only in criminal trials with Testimony as to reputation Testimony as to opinion Testimony as to specific acts only on cross and only to rebut character traits already offered (i.e. have you heard?)
Character of accused 404(a)(1)
1.Character trait of accused offered by accused Character trait offered by prosecution to rebut trait offered by accused. If accused offers trait of victim, prosecution may show evidence that accused has same trait (not in AZ)
Character of Victim 404(a)(2)
Character trait of victim offered by accused Character trait of victim offered by prosecution to rebut trait offered by accused. Self defense clause: If , in a murder case, accused says that victim was first aggressor, prosecution can introduce evidence of peacefulness of victim.
Special Relevance - Other Acts Rule 404(b)
Generally, you can’t introduce evidence of facts of other crimes, wrongs or acts (by a preponderance (Fed.) or clear and convincing (AZ) that it was done) to show propensity therewith, unlessIf intrinsic to the case (i.e. speeding away from an accident), or part of the act in question admissible; or if extrinsic to the case it can prove
Special Relevance - Other purpose (b) 404(b)
Other crimes, wrongs or acts admissible to show motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, state of mind, consciousness of guilt, actual commission, etc., if an issue of consequence in the case
Special Relevance - Habit or routine practice Rule 406
- Evidence of habit or routine practice by person or organization, regardless of corroboration or witnesses, is relevant to show behavior in conformity therewith. Means
- 1.One’s regular response to a repeated specific situation.
- 2.Can be habit, business practice, or industry custom.
Special Relevance - Sexual Predisposition of Victim Rule 412
- Can’t admit evidence to show that victim 1.Engaged in other sexual behaviors; or
- 2.To prove victim’s sexual predisposition
- But you can introduce it to show
- 1.That someone other than accused was source of injury, semen, etc.
- 2.Consent; or
- 3. if Defendant’s constitutional rights would be violated.Must file a motion 14 days before trial.
Special Relevance - Evidence of Similar Crimes: Assault; Molestation Rule 413,414
In a criminal sexual assault or molestation case, evidence of another sexual assault or molestation committed by defendant is admissible for bearing on any relevant matter. 15 days notice is required.
Evidence of Similar Acts: Civil - Rule 415
If civil case recovery depends on an act under 413 or 414, previous acts of the same kind is admissible (if it would be under those rules). 15 days notice required.
Subsequent Remedial Measures - Rule 407
- Means steps taken by a party & after injury that would have made the harm less likely to occur.
- 1.Can’t use to show guilt, liability, etc.
- 2.Can use to show ownership, control, feasibility, etc. if controverted
- 3.Can use for impeachment
Compromise - Rule 408
- Evidence of a an intended settlement or compromise if the claim or amount is disputed
- 1. Can’t use it to show validity, invalidity, amount, terms, or conduct in settlement. 2.Can use it if it is for another proper purpose (i.e. impeachment), or if it otherwise discoverable.
Payment of Medical Expenses- Rule 409
- Payment or offer to pay for medical or like expenses from an injury.
- 1.Can’t use to show liability
- 2.Can use factual statements within offer to pay for expenses (i.e. “it was my fault”)
Pleas & Plea Discussions - Rule 410
- Withdrawn guilty plea, plea of no contest, statement made during the course of plea discussions with a prosecuting attorney that didn’t result in guilty plea or result in a withdrawn guilty plea.
- 1.Can’t use against defendant making the plea/statements
- 2. Can use if statement was made during plea and the rest should be considered with it.
- 3.In a perjury/false statement trial if statement was made with counsel, on record and under oath.
Liability Insurance - Rule 411
- Evidence that person is or isn’t insured against liability
- 1.Can’t use to show negligence or wrongful action
- 2.Can use to show agency, ownership, control, bias, prejudice
Privileges - How to look at a problem
- 1.What law (thus privilege law) controls (Federal / State)?
- 2.Who is the holder (person benefiting from privilege and can assert or waive it)?
- 3.What constitutes a waiver (explicit or implicit words or actions inconsistent with privilege)?
- 4.What constitutes termination (i.e. ending of relationship)?
- Law Fed:
- A. Only applies to criminal cases; State: Depends
- B. Usually only applies to matters occurring during marriage
- C. Usually inapplicable in cases where testimony is essential (i.e. domestic violence, often only witnesses)
- 2. Holder Fed: Testifying spouse; Common law / States: Party spouse
- 3.Termination Begins and ends with the start and termination of marriage
Arizona Spousal Bar
Criminal: what happened during marriage; Civil: anything if still wed; party spouse holds
- Law (Almost all states same as Fed)
- A. Protects confidential communications (reasonable steps to keep conf.)
- B.Protects these communications between lawfully married people during marriage
- C. Doesn’t apply to crimes committed by both spouses, domestic violence
- 2.Holder Fed/Some states: Declarant spouse; Other States: Both
- 3.Termination: Never
Attorney - Client
- A.Law Protects communications intended confidential when made and afterwards (reasonable steps)
- B.Communications must be between attorney & client (includes potential clients) C.Communications relating to legal services during time of attny-client relationship 1.Corporations: Control Group test (higher-ups=clients); Federal test (& AZ) (lower employees incl. if about litigation) 2.Partnerships: If partners had a joint lawyer and sue each other, no privilege
Holder: Client Waiver Lawyer/client crimes; lawyer/client suits; acts inconsistent w/privilege;
Doctor - Patient
- Law (Almost all states same as Fed)
- A. Protects confidential communications (reasonable steps to keep conf.)
- B. Protects communications between patient and psychotherapist
Wavier Holder calls doctor to testify; Holder puts medical question at issue; waive as to one doctor that dealt w/ same treatment NOT if doctor inadvertently discloses
Party Opponent Statements - 801 (d) (2)
1. Being offered against opponent
- 2. Statement:
- A.Made by party
- B.Adopted as true by party Made by person authorized by party to make such statements
- C.Made by party’s agent during relationship about scope of employment
- D.Made by coconspirator during and to further conspiracy
3.Contents of the statement can be sued but aren’t enough alone to establish the relationship between party and declarant
Prior Statements By Witness - 801 (d) (1)
1. Statement given under oath/in depo that is inconsistent with same declarant’s trial testimony
- 2.Consistent with declarant’s trial testimony and used to rebut express or implied charge of fabrication, influence, or motive.
- A. Statement must have been made before event giving rise to charged fabrication, influence, etc.
3. Statement made to ID someone after perceiving the person
Present Sense Impressions - Rule 803 (1)
- 1.Statement describes or explains event or condition
- 2.Made while perceiving event or condition, or immediately thereafter.
- A.Did the declarant have time to contemplate and fabricate an answer?
- B.Show that declarant had personal knowledge of event in question
Excited Utterances - Rule 803 (2)
1.Statement relates to startling event
- 2.Subjective test Made while under stress caused by event
- A. Did declarant have time to think and fabricate (reqs. relaxed in sex assault / child cases).
Medical Diagnosis or Treatment- Rule 803 (4)
- 1. Made for that purpose (admissibility is broad)
- 2. Describe past medical history or past or present symptoms
- 3.Can include cause of condition if related to diagnosis or treatment.
Then existing state of mind - Rule 803 (3)
1.Declarant statement about existing state of mind, emotion, condition, etc (look for use of present tense).
2.Doesn’t include statement of memory or belief unless used to prove something in regards to a will.
3.Can be use as Direct evidence of physical or emotional condition; or Circumstantial evidence of future conduct
Business Records - 803 (6)-(7)
- 1. Made by person with knowledge
- A. At or near time of event
- B. With a duty to keep accurate records (i.e. employee)
2.Kept in course of normally conducted business activity
3. Regular practice to make such a record
4.Certified by custodian through testimony or 902 certification
5.Unless source lacks trustworthiness. I.e. Made in anticipation of litigation
6.Also, the absence of such a record can prove it if it would normally have been kept
Public Records 803 (8)-(10)
- 1.Made by person with knowledge, about
- A.What the office is there to do
- B.Matters observed pursuant to duty of law Except that observed by police in a criminal trial
- C.In civil actions and against govn’t in criminal, factual findings made pursuant to law.
2.Unless there is a lack of trustworthiness.
3.Also, the absence of such a record can prove it if it would normally have been kept, and the agency certifies or testifies that the record doesn’t exist.
4.Watch for opinions
Recorded Recollection - 803(5)
- 1.Declarant once had knowledge, but now has insufficient recollection to testify fully and accurately
- 2.Assertion was made and adopted when the matter was fresh in the declarant’s mind and to reflect the knowledge correctly
- 3.If admitted, only read to jury.
Statement Against Interest - Rule 804(b)(3)
- 1.At time of making, statement is so far against declarant’s pecuniary or penal interests that a reasonable person wouldn’t have said it if it weren’t true.
- 2.If it exculpates the accused and subjects the declarant to criminal punishment, you need some corroboration.
Former Testimony - 804 (b) (1)
- 1.Testimony was given at a prior proceeding, depo, etc.
- 2.Opposing party had an opportunity and similar motive to examine witness.
Dying Declaration - 804 (b) (1)
1.Homicide or civil case
2.Statement made when declarant though his death was imminent (subjective belief)
- 3. Statement about the circumstances that caused his death
- A.No historical events, exculpatory statements
- B.Opinion with personal knowledge okay
2.Evidence offered for its truth against a criminal defendant
3.Defendant must have opportunity to cross examine testimonial