Evidence Mini Review

Remember: All RELEVANT evidence is admissible unless a specific rule keeps it out. Big Issues: a) Relevancy and rules of exclusion b) Impeachment c) Hearsay

Character Evidence Rules Insurance Policy

CRIMINAL CASES: 1) Prosecution cant introduce any evidence to s bad character if purpose is to show he probably acted in conformity with his bad character and committed the crime charged. Prosecution cant present evidence to show defendants criminal propensity. 2) Defendant is allowed to present evidence of good character traits to try to establish that he acted in conformity with his good character and didnt commit a crime. But only reputation or opinion evidence. 3) If Defendant opened the door with evidence of good character, Prosecution can present evidence of bad character (reputation or opinion) and on cross exam the prosecution can also use bad acts, asking Have you heard of Defendants specific bad act. 4) Evidence of prior crimes or bad acts are never admissible to show defendants criminal propensity, to show defendant committed the crime charged, but it is admissible to establish: MIMIC Motive Identity Mistake, Absence of Intent Common Plan or Scheme 5) If defendant testifies, he automatically places his character in issue in terms of truthfulness, and prosecution can present evidence that defendant witness is not trustworthy (i.e. impeach) CIVIL CASES: 1) No character evidence to show that party probably acted in conformity with that character trait during event that gave rise to litigation. 2) However, if evidence is for other purposes, i.e. if character of defendant is the issue in the case, can be admissible. On MBE: a. Negligent Entrustment: bad reputation evidence will be OK to show defendant didnt exercise reasonable care when he lent car to a bum. b. Defamation: Issue in case is whether or not is a thief. Evidence is to directly establish a central issue in this case and evidence admissible. 3) If party testifies as a witness they automatically place their truthfulness in issue, so other side can present evidence to show witness is not truthful person, i.e. impeach.

Impeachment Evidence (5 Ways)

1) PRIOR INCONSISTENT STATEMENT: Witness can be impeached with evidence of prior inconsistent statement through cross exam or extrinsic evidence (evidence offered to show prior inconsistent statement has been made.) If extrinsic evidence is used, witness must be given opportunity to comment before or after prior inconsistent statement is introduced, UNLESS PIS also qualifies as an admission of a party, then opportunity to comment is not required. 2) BIAS: Witness can be impeached with evidence that shows that witness might be motivated due to bias. 3) PRIOR CRIMINAL CONVICTIONS: 2 GROUPS of CRIMES (extrinsic evidence is OK to show convictions for impeachment!) a. Any criminal conviction (whether felony or misdemeanor) involving dishonesty or false statement can always be used to impeach b. ANY other felony unless court finds its prejudicial (a misdemeanor not involving dishonesty or false statement is not admissible to impeach) 4) PRIOR BAD ACTS: where no conviction, prior bad acts which reflect unfavorably on the truthfulness of the witness can be used to impeach on ONLY on cross exam (BUT no extrinsic evidence unless prior bad act to show BIAS) 5) REPUTATION FOR UNTRUTHFULNESS

Hearsay
Always inadmissible unless removed from definition or fits into one of exceptions PROCESS FOR APPROACHING HEARSAY QUESTIONS: 1) Does it meet definition of hearsay? 2) Is statement removed from the definition (i.e. is it non-hearsay)? 3) Does statement qualify as an exception to the hearsay rule)? Hearsay: statement other than one made by witness at trial offered into evidence to prove truth of matter asserted. If to prove any other purpose, it will not be a violation of the hearsay rule. NON-HEARSAY -- 3 textbook examples. LOP. NOT OFFERED FOR TRUTH 1) Legal acts: out of court statement that all by itself changes legal rights, such as a K. I.e. I accept your offer. 2) Out of court statement offered to show knowledge on part of listener (i.e. notice) when knowledge on part of listener is important issue in the case. 3) Prior inconsistent statement (not under oath) offered to impeach credibility. NON-HEARSAY 3 textbook examples. PPA. OFFERED FOR TRUTH. 1) Prior Identification (if declarant is witness at trial)

2) Prior Inconsistent Statement (1) when prior statement under oath in a hearing or deposition or (2) prior statement that qualifies under some individual exception under the hearsay rule 3) Admission: relevant statement made by party to action (or employee in scope of employment) made at any previous time and offered into evidence by opposing party. EXCEPTIONS TO HEARSAY RULE For first 6 doesnt matter whether declarant is available or not. BCREPP FSD 1) Business records 2) Current physical or medical condition 3) Recorded recollection 4) Excited utterance 5) Present sense impression 6) Past statement of physical condition for purpose of medical treatment ---------------------------------------7) Former testimony (unavailability required) 8) Statement against interest (unavailability required) 9) Dying declarations (unavailability required)

Spousal Privileges
1) In federal court in CRIMINAL CASE, a spouse cant be forced to testify against their spouse but can if they choose to. Does not matter when they learned the info as long as they are still married. 2) In federal court in criminal or civil case, spouse can refuse to disclose or keep other spouse from disclosing confidential marital communications made ONLY during marriage.

Business Record Exception

1) Judge can reject business record if she determines the source of info or method of preparation is untrustworthy. 2) Person making record doesnt have to have first hand knowledge of information recorded if from another business employee.

Expert Witnesses
1) Federal Rules allow expert witnesses to use info from any source to base an opinion provided its the kind of info reasonably relied upon by experts in that field 2) Judge determines whether qualified to be an expert witness.

QUESTIONS
JUDICIAL NOTICE (Q40) Judicial notice is appropriate if:

a. fact is indisputable b. fact can be verified through scientific principles. In Criminal Case, judge will tell jury that they MAY but are not obligated to accept the fact that is judicially noticed. In Civil Case, the fact judicially noticed is conclusively established.

JUDICIAL PRELIMINARY RULING ON ADMISSIBILITY OF EVIDENCE Appropriate to determine: 1) whether witness is an expert witness 2) whether hospital records were made as a regular business activity of the hospital staff 3) whether victims statement before dying was made under sense of impending death and therefore was a dying declaration PRESENT RECOLLECTION RECORDED (Q50) 1) Anything can be used to refresh recollection 2) If party uses a document to refresh recollection of the witness, party must make that document available to the opposing party RELEVANCE OF CIRCUMSTANTIAL EVIDENCE (Q179) QUESTION 179: D on trial for murder for shooting of rival gang member. D claims gun accidentally discharged. Prosecution seeks to offer testimony of W, an experienced police officer in the gang crimes unit who interrogated D. W wants to testify that he saw a distinctive tattoo on Ds leg and that it is a tattoo that is worn by members of a gang that is a rival of the victims gang. Testimony admissible? YES! Testimony admissible because it is relevant. It is circumstantial evidence that helps establish that Denny was a member of the rival gang. 1) Circumstantial evidence in the form of opinion testimony by a lay witness is admissible when (i) it is based on perception of witness, (ii) it is helpful to a clear understanding of his testimony or to the determination of a fact in issue, or (iii) it is not based on scientific, technical, or other specialized knowledge 2) WRONG ANSWER: Testimony is not kept out on basis that W does not have personal knowledge that D is in gang. W can testify that, based on his experience and observation, Ds tattoo was gangs symbol. REHABILITATION OF AN IMPEACHED WITNESS (Q187) Question 187: Plaintiffs witness is impeached by defendant with evidence of a conviction for aggravated battery. Can plaintiff call someone else to testify as to witnesss good reputation for truthfulness?

YES! if witness has been impeached with evidence of bad reputation for truthfulness with prior crimes or prior bad acts, Witness can be rehabilitated with evidence of good reputation. 1) Court will admit rehabilitation testimony of a witnesss good reputation for truthfulness if her credibility was attacked by conviction of a felony. 2) when witnesss general character for truth and veracity has been attacked, the party for whom the impeached witness has testified may call other witnesses to testify to the good reputation for truth of the impeached witness or to give their opinion as to the truthfulness of the impeached witness. 3) If impeaching credibility of witness with a felony conviction, crime doesnt have to involve dishonesty or false statement 4) If impeaching credibility of witness with a non-felony conviction, crime must involve dishonesty or false statement ADMISSIBILITY OF CHARACTER EVIDENCE TO SHOW ANOTHER ISSUE Question 100: Bank hired security guard away from other bank after doing a routing background check of references and gave him a gun. He shot someone while off duty in road rage. Plaintiff victim brought action against Security Guard and against Bank for negligent entrustment of weapon to SG. Plaintiff offers testimony of W, who worked with SG and says he had a reputation for threatening people with his gun while off duty. Admissible testimony? Yes! Not offered to prove that SG acted in conformity with his character on this occasion but for another purpose, because SGs character itself is issue in the case. Ws testimony is character evidence admissible against Bank whether or not Bank knew of SGs reputation to show Bank didnt exercise reasonable care in researching SGs reputation and in entrusting him with gun. HABIT EVIDENCE IS ADMISSIBLE (Q181) 1) Evidence of prior similar occurrences and character evidence is generally not admissible if offered to show that defendant acted the same way again. 2) HOWEVER, evidence of habit is admissible to show a person acted in conformity with a habit (something that happened over and over and over again.) DEFENDANTS OFFERING OF GOOD CHARACTER EVIDENCE HAS TO BE RELEVANT Question: At defendants trial for assault with a deadly weapon, defendant calls a witness to stand and asks him about the defendants reputation for honesty and veracity in the community. Prosecution objects. Admissible? NO! Evidence of honesty and veracity is irrelevant to any material issue in this assault case. 1) Defendant can introduce evidence to show in criminal case that he is not type of person who would commit crime defendant has been charged with.

2) But evidence has to be relevant, i.e. evidence of honesty is not relevant to show that defendant would not be violent. Evidence of peacefulness is another story. PRIOR ACTS/CONVICTIONS TO SHOW MIMIC ARE ADMISSIBLE Question 83: At trial for armed robbery prosecutor offers evidence to show that defendant committed two other armed robberies and that he committed all three to obtain money for his heroin habit. Admissible? Yes! Shows motive! Admissible unless court determines that probative value of evidence is substantially outweighed by its prejudicial effect. 1) Both convictions (and prior bad acts) are admissible to show MIMIC IMPEACHMENT/MIMIC Question 91: In a criminal action for battery witness for defendant has testified that defendant is peaceful and law abiding citizen. Can prosecution, trying to impeach, offer certified copy of defendants two year old felony conviction? No! Cant impeach witness with extrinsic evidence of specific prior crimes. However, you can ask the character witness, have you heard that defendant was convicted of two felonies? In civil fraud action for making false and misleading statements in a stock offering, can plaintiff offer evidence that defendant had made intentional misrepresentations on other stock offerings? Yes, probably! In order to show intent. 1) In civil and criminal cases, evidence of other crimes or misconduct is admissible if these acts are relevant to some issue other than defendants character or disposition to commit act charged. 2) In cases such as fraud, where intent of defendant is typically a key issue, evidence that defendant committed prior similar intentional misrepresentations is admissible to establish fraudulent intent (or absence of mistake) SETTLEMENT OFFERS GENERALLY INADMISSIBLE IF ACTUAL DISPUTE 1) Settlement offers are inadmissible if offered to establish liability in validity of claim provided that there is a dispute (lawsuit or threat of lawsuit) 2) Evidence of payment or offer to pay medical bills is inadmissible if offered to show defendants liability for injury. 3) But evidence of statements made in conjunction with offer to pay medical bills are NOT INadmissible (usually admissible as a Party Admission)

SUBSEQUENT REMEDIAL MEASURES GENERALLY INADMISSIBLE (Q123) 1) Subsequent remedial measures are generally not admissible for establishing negligence (or strict liability in tort for sale of defective product) 2) BUT, they are admissible to prove: a. Ownership or control over condition that caused damage when that was issue in case b. If defendant claims accident couldnt have been avoided by means of a remedial measure, then admissible to show the feasibility of a making condition safer IMPEACHMENT: PRIOR INCONSISTENT STATEMENTS (Q57) 1) For impeachment purposes, party may show that the witness has made prior statements that are inconsistent with some material part of her present testimony 2) Under FRE, a prior inconsistent statement may be proved either by cross-exam or extrinsic evidence (which is admissible only if the witness is given an opportunity to explain or deny allegedly inconsistent statement either before or after introduction of statement through extrinsic evidence) DECLARATIONS OF BODILY CONDITION (Q57) 1) Declarations of PRESENT bodily condition are admissible as exception to the hearsay rule when made to anyone 2) Declarations of PAST bodily condition are admissible as exception to hearsay only if made to medical personnel to assist in diagnosing or treating the condition. IMPEACHING WITNESS Question 200: Car accident. P sues D claiming that D was driving too fast and went through red light. P calls W to testify that he observe accident and Ps car was traveling at low speed with green light. What of following is admissible to impeach W? 1) Certificate of conviction for felony assault? YES as long as probative value not substantially outweighed by prejudice (extrinsic evidence ok for prior conviction of felony or misdemeanor involving fraud or deceit) 2) Record of arrest for embezzlement? NO, not without conviction. No extrinsic evidence for prior bad acts. Prior bad acts probative of truthfulness can be asked about during cross exam. But if witness denies, no extrinsic evidence can be used to contradict. 3) Prior inconsistent statement? YES. CRIMINAL DEFENDANT CAN PRESENT GOOD CHARACTER EVIDENCE 1) Criminal defendant is allowed to present relevant character evidence to help establish that he may not have committed crime charged. 2) Evidence that defendant had reputation for being an honest person would be admissible to show he might not have embezzled funds. Evidence that defendant had reputation as a peaceful person would be admissible to show he might not have committed battery.

WRONG ANSWER ALERT: Inadmissible because you cannot bolster the credibility of your own witness unless the credibility of the witness has been acted. This is often wrong answer. If any other legitimate reason for introduction of evidence of good reputation, this is probably wrong answer. PRIOR BAD ACT SHOWING EVIDENCE OF BIAS (Q32) 1) Witness can be impeached, either in cross exam OR by extrinsic evidence, with evidence that suggests a bias on the part of the witness, because it tends to show that the witness has a motive to life. 2) USUALLY, prior bad acts offered to impeach may be inquired into on cross exam but not proven with extrinsic evidence. 3) Supreme Court has held that, when a prior bad act also shows bias, extrinsic evidence is permitted. IF EVIDENCE OFFERED NOT TO SHOW TRUTH BUT TO SHOW NOTICE = ADMISSIBLE NONHEARSAY (Q33) STATEMENT OF EMPLOYEE CAN BE ADMISSION, I.E. ADMISSIBLE NON HEARSAY (Q5) 1) Plaintiff must offer evidence to establish that the hearsay declarant is employee of company and that the employee made statement during and in scope of his employment with the company ADMISSION BY SILENCE (Q120) 1) If at any previous time a party hears an accusation and doesnt contest, and judge determines that a reasonable person would have said something, then both accusation and silence are admissible against that party PRIOR IDENTIFICATION (Q121): Defendant charged with arson. Prosecution offers to introduce the testimony of police officer, who will testify that he showed a photographic lineup containing defendants picture to a witness who saw the arsonist run from the burning building. Witness is unavailable to testify. Is testimony admissible? NO! Testimony is being offered to prove the truth of the matter asserted, that the witness saw D commit arson and run. 1) Testimony is hearsay not within an exception. 2) HOWEVER a statement of prior identification of a declarant made after perceiving the person is not hearsay IF such prior statement was made by a testifying witness who is subject to cross examination. 3) Here witness who made prior ID is not testifying.

WITNESS QUOTING HERSELF IS HEARSAY UNLESS EXCEPTION APPLIES Question 122: Evidence introduced that defendant had flammable liquid in her closet. On direct exam, defendant testifies that she told the officers that she uses liquid to clean her paint brushes. Admissible testimony? NO! (1) Out of court statement made to prove the truth of the matter asserted or hearsay. (2) It is not removed from the definition (by LOP or PPA). (3) It doesnt fall into one of the hearsay exceptions (BCREPP FSD) WRONG ANSWER ALERT: For the prosecution because it is a self-serving statement. ALWAYS wrong answer. PRIOR INCONSISTENT ST. ALMOST ALWAYS JUST TO IMPEACH (Q96) EXCEPTION: 1) previous statement made under oath at a prior deposition or hearing (then it becomes nonhearsay) OR 2) previous statement qualifies under exceptions to hearsay rule HEARSAY DECLARANT CAN BE IMPEACHED JUST LIKE ANY OTHER WITNESS (Q113) 1) OK to present evidence of out of court inconsistent statement for impeachment only (if not offered for truth, not hearsay) 2) Declarant need not be given opportunity to explain or deny statements that are inconsistent DYING DECLARATIONS (Q189) 1) In CRIMINAL CASE, admissible only for homicides (i.e. if declarant dies) 2) In CIVIL CASE, dying declaration can be admissible if declarant lives BUSINESS RECORDS EXCEPTION TO HEARSAY RULE (Q76) Any writing or record of any act or transaction is admissible as proof of that act or transaction if the record was made in the regular course of a business and if it was customary to make the type of record involved (i.e. the entrant was under a business duty to make the entry) AUTHENTICATION OF EVIDENCE (Q162) 1) Before object is admissible, proponent must introduce extra evidence to make the object relevant and what proponent claims it is 2) All that is required is just enough evidence sufficient to support finding by jury that thats the coat, if jury wanted to. (Someone testified under oath. Thats enough). EXPERT NOT REQUIRED TO IDENTIFY VOICE OR HANDWRITING 1) A voice may be identified by opinion of anyone who has heard the voice at any time.

2) As long as a foundation is laid to show familiarity with the voice, a lay opinion as to identity of speaker is admissible 3) FOR VOICE, a person can become familiar with it after litigation has begun and for sole purpose of testifying 4) FOR HANDWRITING, person must be familiar with writing before litigation begins EXPERT WITNESS MAY BASE HER OPINION ON FACTS THAT ARE OF A TYPE REASONABLY RELIED UPON BY EXPERTS IN THAT FIELD (Q137) 1) Expert testimony is admissible when subject matter is one where specialized knowledge will assist the trier of fact in determining a fact in issue. 2) Expert witness may base her opinion on facts not in evidence, that were supplied to her out of court, and that are of a type reasonably relied upon by experts in that particular field in forming opinions on the subject. These facts need not be in evidence or even of a type admissible in evidence COLLATERAL MATTERS DOCTRINE (Q 138) 1) When a witness makes a statement not directly relevant to the issues in the case, the rule against impeachment on a collateral matter bars his opponent from proving the statement untrue either by extrinsic evidence or prior inconsistent statement 2) This is because minimal relevance is substantially outweighed by considerations of waste of time and confusion OUT OF COURT STATEMENTS OF INTENTIONS/PLANS FOR FUTURE ARE ADMISSIBLE UNDER STATE OF MIND EXCEPTION 1) Declarations of existing state of mind are admissible when declarants state of mind is directly in issue 2) IN ADDITION, the declarations of intent are admissible when offered to show subsequent acts of the declarant; i.e. a declaration of intent to do something in the future is offered as circumstantial evidence tending to show that the intent was carried out.

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