Timely and Specific Objections
Preserve evidence issue for appeal.
Timely: before evidence in, or if after, move to strike, ask for limiting/corrective instruction, or move for mistrial if damage irreparable.
Appropriate if evidence admissible only for limited purpose of against 1 of several parties.
Offer of Proof
Must be made to preserve issue for appeal if judge excludes (waived otherwise). Call witnesses outside presence of jury, state why admissible, why important to case.
Judge can take JN of facts generally known in jurisdiciton or capable of ready determination from unquestionably accurate sources.
Evidence is relevant if it has any tendency to make material fact more or less likely than without. Although relevant, evidence may be excluded if probative value is substantially outweighed by prejudice, leads to confusion of jury, waste of time, or duplicative.
Subsequent remedial measures
evidence of corrected problem or fixed hazard inadmissible unless D denies feasibility, ownership, or control.
Public Policy Exclusions
settlement discussions, plea bargain discussion, payment or offers of payment of medical expenses, liability insurance inadmissible to prove liability.
CE is inadmissible to show conformity on specific occasion.
Character Evidence in Civil Case
Admissible only when character directly at issue in case.
Character of Defendant in Criminal Case
Reputation of pertinent trait admissible by defense when relevant.
Prosecution may impeach D character witness by asking if they have heard of specific acts inconsistent w/ traits in testimony, but only after door opened by D.
Prior Bad Acts
Not admissible for propensity, but OK for motive, ID, common plan or scheme, prior sexual misconduct.
Character of Victim
Admissible if relevant.
Rape Shield Exception: sexual history of rape victim inadmissible unless regarding history with D and consent is at issue.
Semi-automatic response to repeated and specific stimulus.
Character of Witness
Credibility may be attacked on untruthfulness by reputation.
Impeachment by evidence of crime of dishonesty or bearing more than 1 year sentence. Not admissible if more than 10 years since conviction or release. Must be given notice.
Must be able to receive and relate facts and impressions truthfully (no age min.).
Dead Man's Statute
Interested parties may not testify about transaction with, or statements made by, deceased when adverse party is personal representative or successor of the dead.
Confidential information made within certain relationships are protected from revelation in court. Statements must be made in confidence, and privilege must be asserted as first opportunity and not waived.
Attorney Client Privilege
Confidential statements made to attorney by client are privileged.
Upjohn: corporate clients' privilege covers statements from control group and employees with knowledge who are told to report to corporate atty.
Attaches to communication made for purposes of diagnosis, treatment, or medical advice.
Waived if patient puts physical condition at issue, including 90 days after filing PI case. Even if waived, defense atty cannot speak to treating doc w/o permission or at depostion.
Marital Communiation Privilege
Protects confidential communications made during marriage. May be asserted by either spouse, even if subsequently divorced.
Spouse cannot testity against spouse. D can stop testimony unless regarding abuse. Irrelevant if married when info obtained.
Lay Witness Opinion
Permissible if rationally based on sense perception and will be helpful to factfinder. Permissible regarding weather, speed, physical description, handwriting, etc.
Topic must be beyond undestanding of average layperson, and would assits trier of fact to understand evidence. Expert must be qualified by knowledge, skill, training, education, experience.
FRYE: if opinion based on scientific theory, theory must be generally accepted in relvant community.
May answer hypotheticals or base opion on inadmissible evidence, if it's the type reasonably related upon in field.
Opinion on ultimate issue permitted if not incorporating legal opinion.
- OK during cross
- OK in direct if preliminary questions, asking a minor, necessary to refresh recollection, hostile, expert
An out of court statement offered to prove truth of matter asserted is inadmissible unless exception applies.
Prior Inconsistent Statement
Not hearsay, admissible to impeach
Prior Consistent Statement
Not hearsay, admissible rebut allegation of recent fabrication.
Admission by Party Opponent
- Not hearsay. May be self-serving when made and include legal conclusion.
- own prior statement (need not be against interest)
- adoptive (silence)
- vicarious/speaking agent
- statement of co-conspirator (must show conspiracy by substantial independent evidence)
Hearsay exception. Admissible if given under oath, and party against whom statement made had similar opportunity and motive to develop former testimony
Hearsay exception. Speaker must believe death imminent and certain. Admissible only in civil/homicide cases, and must concern cause or circumstances of death.
Statement Against Interest
Hearsay exception. Against pecuniary, property, or penal interest, and must be objectively and subjectively against interest when made. In crim, exculpatory statement not admitted without corroborative evidence.
Statement of family history
Hearsay exception. Admission re parentage, etc.
Child Victim of Abuse
Hearsay exception. If unavailable, and statement only statement available, must have additional indicia of reliability/corroboration. Statements made to kids under 10 apply.
Present Sense Impression
Hearsay exception. Admissible if statement made while speaker sensing event or immediately after.
Hearsay exception. statement related to shocking event made while speaker excited, in shock, or in pain.
Hearsay exception. Statements offered to show speaker's state of mind, emotions, sensations, physical conditional. Must have present state of mind, relevant to issue in case.
HILLMON: statement of intent to do something relevant to show intent
Hearsay exception. Statement made to HCP for diagnosis/treatment. Statement of fault not permissible unless victim of abuse IDing abuser.
Past Recollection Recorded
Hearsay exception. Written/recorded when fresh in declarant's memory, insufficient recollection at trial, can now testify under oath that statement was accurate when made or preserved in unquestionably reliable manner. Read to jury but not introduced into evidence.
Hearsay exception. Authenticated by custodian of records, maintained in regular course of business, created reasonably soon after event, relied upon internally. Only facts, not opinions. If met, absence of notation where normally would be is evidence that event did not occur.
Look for double hearsay.
Hearsay exception. Certified copies of public records admissible as exception, self-authenticating.
Hearsay exception. Used with expert witnesses, not hearsay if used for impeachment. If for substantive purpose, offering party must establish that treatise is authoritative source (witness admits, affidavit from 2 others, or judicial notice). Must be relied on by expert or called to attention on cross. Read into record, but not admitted.
Hearsay exception. Authenticity has been established for documents over 20 years old.
Under 6th Amendment, criminal D has right to confront witnesses against them, and prohibits testimonial out of court statements unless declarant appears as witness at trial (or unavailable but D had prior opportunity).
Testimonial- descriptions of scene, 911 calls, judged by primary purpose of interrogation.
Proponent must provide sufficient proof to permit reasonable juror to find in favor of authentication.
Authentication of Physical Evidence
Chain of custody, or witness who placed IDing mark.
Authentication of Written Document
deemed authentic and admissible if served on opposing party at least 30 days before trial with notice of intent to offer as evidence, and opposing party does not object within 14 days.
Witness to execution of document may authenticate.
Authentication of Handwriting
Judge can compare with known sample, or witness with adequate foundation to be familiar may compare by distinctive characteristics (appearance, contents, substance, internal patterns, circumstances)
Authentication of Voice ID
witness recognizes voice must have reasonable basis to be familiar with voice. Self-ID when answering, internally consistent calls to biz, distinctive characteristics.
Authentication of Ancient Docs or Data Compilation
docs or data which are not suspicious, located in authentic place, and 20 years old.
Public docs under seal, certified copies of public documents, notarized newspapers & periodicals, official publications, signed commercial paper, docs with trade inscriptions.
Best Evidence Rule
When proving content of writing, must offer original unless, through no fault of party, original unavailable. Only applies when content at issue and witness testimony based on preserved communication.
Duplicate OK unless authenticity at issue or otherwise unfair.
Secondary evidence allowed if original lost or destroyed without bad faith.