Evidence

• Relevance


  Evidence must be relevant for it to be admissible. It is relevant if it tends to prove/disprove a material fact
• Legal relevance


  FRE 403 applies to balance probative value (PV) with risk of prejudice. A judge has broad discretion to exclude relevant evidence if its PV is substantially outweighed by the danger of unfair prejudice, confusion of the issues, waste of time, or misleading the jury
• Reasons for excluding relevant evidence for public policy

  • Subsequent remedial measure
  • Settlement offers or negotiation (FRE 408)
  • Offers to pay medical expenses (FRE 409)
  • Withdrawn guilty pleas
  • Liability insurance ("I have insurance") or lack of
• Preliminary facts


  • Judge is not limited by evidence rules when determining preliminary facts (e.g., competency) except privileges
  • Authentication requires proof to support a jury finding that it is what the proponent claims
  • Best evidence rule requires the original to be introduced if available to prove the content of a writing or other tangible collection of data relevant to proving some material fact
  • Competency of witness requires personal knowledge of the matter and affirmation/swearing to testify truthfully
  • Conditional relevancy requires the judge to make a threshold determination that a reasonably jury could find the necessary fact
  • Judicial notice allows a party to "prove" an adjudicative fact by the court's recognition
  • Rule of completeness allows the other party to require introduction of any other part of a writing or recorded statement in fairness
• Character evidence


  Character describes one's disposition with respect to general traits. Character evidence is generally inadmissible to prove conduct in conformity therewith
• Ways to prove character

  • Reputation
  • Opinion
  • Specific acts
• Exceptions for character evidence

  • Defendant opens the door or alleges self-defense in homicide
  • Other purposes - Defendant's MIMIC (FRE 404(b)) or prior act of sexual assault (413–415)
  • Defense or cause of action where character is an element at issue
  • Habit evidence
• Hearsay


  An out-of-court statement made by the declarant offered to prove the truth of the matter asserted. It is inadmissible upon proper objection unless an exemption/exception applies
• Non-hearsay exemptions


  • Prior inconsistent statements
  • Prior consistent statements
  • Prior statements identifying a person after perceiving him
  • Admissions by party
• Hearsay exceptions (declarant unavailable)


  • Statements against interest
  • Former testimony
  • Dying declarations
  • Pedigree/family
  • Forfeiture by wrongdoing
• Hearsay exceptions (declarant available or unavailable)

  • Excited utterance
  • Present sense impression
  • Then-existing state of mind, emotion, sensation, physical condition
  • Declarations of physical condition
  • Business records
• Startling event


  Event that causes excitement
• Present sense impression


  Statement of what was perceived at time of event or immediately after
• Then-existing state of mind

  Forward-looking intent, emotion, sensation, physical condition
• Statements of memory or belief

  Inadmissible to prove its truth (except declarant's will)
• Declarations of physical condition

  Portion of statement imputing fault not admissible if unrelated
• Present bodily condition

  Made spontaneously admissible even if not made to a physician
• Past bodily condition

  Admissible only if made to medical personnel for diagnosis, treatment, or testimony
• Business records

  Records of acts, conditions, events, transactions, opinions, or diagnoses made at or near the time of event with personal knowledge of matters during regular course of business
• Entrant

  Must have had a business duty to make the entry (e.g., not crime witnesses)
• Authentication of business records

  • Requires testimony of custodian or written certification
  • Excludes reports prepared for litigation, or by outsider (unless via a different exception)
• Absence of entry in records

  Negative purposes allowed to prove nonoccurrence of matter if it was regular practice to record all such matters, if witness is familiar + diligent search
• Discretion to exclude business records

  If source of information or circumstances indicate lack of trustworthiness (those prepared in anticipation of litigation)
• Present recollection revived

  Testifying witness can refresh memory by looking at any evidence (not a hearsay issue because writing not authenticated + not in evidence)
• Past recollection recorded

  A record that is on a matter 1) testifying witness once had personal knowledge of but now cannot recall well enough (refreshing attempted and fails), 2) was made or adopted by W when the matter was fresh in memory, and 3) accurately reflects W's knowledge
• Public records

  A record of public office made w/in scope of duty of public employee, admissible if it sets out 1) activities of office, 2) matter observed pursuant to duty (NOT if police observations in crim case), or 3) factual findings from investigation (in civil case or against gov't in crim case)
• Absence of public records

  Custodian may testify that diligent search failed to find a record to show that the matter was not recorded or did not occur
• Prior judgments

  Prior felony judgment admissible to prove a fact essential to judgment
• Ancient documents

  Statements in 20YO+ document are admissible and self-authenticating
• Family records

  Statements of fact concerning personal or family history found in family keepsakes
• Learned treatises

  Statements from authorities established as reliable by expert testimony or judicial notice
• Catch-all exception

  Trustworthy + necessary in interests of justice (probative, material) + notice to adversary
• Lay witness testimony

  Opinion testimony or inferences by lay witness admissible only if 1) rationally based on W's perception (personal knowledge, 5 senses), 2) helpful to clear understanding W's testimony or to determining a fact in issue, 3) not based on scientific, technical, or other specialized knowledge (unless grossly apparent)
• Expert witness testimony


  Opinion or conclusion is admissible only if: 1) Specialized knowledge helpful to jury, 2) qualified as expert, 3) reasonable certainty of opinion, 4) based on proper facts or data, 5) based on reliable principles and methods
• Reliability factors for expert testimony

  • Generally accepted in relevant scientific community, 2) peer reviewed (capable of retesting), 3) published, 4) low error rate, 5) generally accepted in relevant field
• Impeachment


  Casting of an adverse reflection of the truthfulness of a witness to discredit him
• Impeachment methods


  • Prior inconsistent statements
  • Prior bad acts re: truthfulness
  • Poor reputation or opinion for truthfulness
  • Prior convictions
  • Bias, motive to lie, defective senses
• Leading questions

  Allowed on cross-examination, but limited to 1) matters brought out on direct exam and inferences naturally drawn therefrom and 2) matters affecting the credibility of the witness
• Attorney-client privilege

  Communication between client and attorney (or representative assisting with legal services, e.g., physician examining client) intended by client to be confidential and made with purpose to seek legal advice is privileged (may refuse to disclose) indefinitely, even after death, unless waived by client
• Spousal testimonial privilege

  Privilege not to testify against spouse in criminal cases, held by witness, must be married at time of testimony, covers observations and communications