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Evidence Part 1


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Two Types of Relevance
Relevance = starting point
1) Logical Relevance
2) Discretionary/Policy based
Logical Relevance -Defined
Evidence that has any tendency to make a material fact more probable or less probable than it would be without the evidence.
Warning Signals (3) of when evidence may NOT be logically relevant
If evidence involves some other:
1. Time
2. Event
3. Person...than the one involved directly in litigation
Six ways relevant evidence may be excluded
It's probative value is subst'lly outweighed by the danger of:
1. unfair prejudice
2. confusion of issues
3. misleading jury
4. undue delay
5. waste of time
6. cumulative evidence ***NO mention of unfair surprise!
6 times evidence = admissible EVEN THOUGH it involves some other time/event/person not involved in the litigation:
1. causation
2. prior accident or claims
3. intent or state of mind in issue
4. rebuttal evidence
5. comparable sales to estb value
6. habit evidence
involving other time/event/person:

CAUSATION allowed:
to prove cause and effect - ex. showing evidence that others who ate same food at same time at bk got sick
involving other time/event/person:

PRIOR ACCIDENTS/CLAIMS (of P)allowed: (rule and 2 exceptions)
General Rule is that P's prior accidents or claims NOT admissible UNLESS
1) relevant to show common plan or scheme of fraud
2) where relevant on issue of damage to P (P really hurt himself during another accident)
General Rule regarding admissibility of Prior Accidents or Claims:
other accidents involving the SAME instrumentality which occurred under the SAME or SIMILAR circumstances are admissible
What the prior accidents or claims show (2)
1. shows notice/knowledge of D
2. shows that instrumentality is dangerous or defective
involving other time/event/person:

to infer intent from prior conduct - ex. P is allowed to show that other well-qualifed women were denied employment in gender discrimination case when D said women weren't hired bc not qualified. shows discriminatory intent
involving other time/event/person:

to rebut defense of IMPOSSIBILITY: if opponent adopts a particular position, that opponent can "open the door" to your evidence - ex. P ingests mouse from coke-bottler denies saying impossible-P can show evid of another recent incident where mouse found in coke.
involving other

sale price of other chattels or parcels of real ppty admissible if:
1. those other chattles were of same general description
2. sales took place in same time period
3. sales occurred in same geographic area
inolving other time/event/person:

habit of person to act in certain way is relevant to show that person acted in the same way on the occassion in question - acted in conformity with past behavior
Admissibility Rule of Disposition Evidence
NOT ADMISSIBLE - to show or infer conduct at time in question
Admissibility Rule of Prior Act Evidence
NOT ADMISSIBLE - to infer conduct on occassion in question
Key Descriptive words of HABIT:
1. Specificity (not generalized)
2. Recurrence (automatic)
Language of HABIT- magic words used in phrase of question:
always, instinctively, invariable, automatically
involving different time/event/person

the routine practice of an organization is admissible just like habit
Admissibilty of Industrial Trade or Custom
Admissible as non-conclusive evidence of standard of care-interested in what others in the same trade/business have done. - though not exonerated as matter of law.
Discretionary Police-Based Relevance - 3 areas of importance
1)liability insurance
2)subsequent remedial measures
General Rule and Exceptions (2) for LIABILITY INSURANCE
Rule: not admissible to show person acted negligently or wrongfully or to show ability to pay.
Exceptions -admissible when relevant to:
a)show ownership or control
b)impeach credibility of W by showing interest or bias. (stake in the outcome)
General Rule and Exceptions (2) for SUBSEQUENT REMEDIAL MEASURES
Rule: not admissible to show negligence, culpable conduct, a defect in a product, a defect in a product's design or a need for a warning or instruction.
Exceptions: admissible to show
a)ownership and control (when in dispute)
b)impeachment-feasibility of precautionary measures (when feasibility is in dispute)
Admissibility of Settlements - Rule, Areas it covers (5)
Rule - not admissible to prove fault, liability, or amount of damage.
-actual compromises
-offers to compromise
-offers to plead guilty in a criminal case
-withdrawn pleas of guilty
-pleas of nolo contendere
*Admissions of fact, liability or damage made in course of offer to compromise a claim disputed as to liability or as to amt - NOT admissible
Limitations of Settlement Rule - 2 requirements for it's exclusionary nature to operate:
1) must be a "claim" : not necessarily litigiation, but must be an identifiable client who is or is likely to make a claim
2)the claim must be disputed as to either liability or amount
Admissibility of Offer to Pay Medical Expenses - Rule
the offer is NOT admissible even though it is not a settlement offer BUT if an admission of fact accompanies a naked offer to pay hospital or medical expenses, the admission may be admitted.
4 Prelim Questions to ask Re: CHARACTER EVIDENCE
1)purpose of offer of character evidence
2)method of proving character
3)type of case - civil/crim
4)what trait of character is involved?
3 Potential purposes of offer of CHARACTER EVIDENCE
1. Character directly at issue
2. Character as circumstantial evidence of person's conduct at time of litigated event. (infer conduct from character)
3.character to impeach the credibility of W (bad character for truthfulness)
3 Methods/Techinques to prove CHARACTER
1)specific acts of conduct (so can infer character)
2)opinion (given to show character)
3)reputation (to show character)
Why inquire as to TRAIT of CHARACTER sought to be shown?
bc to be admissible - it must be a SPECIFIC trait which is SUBSTANTIVELY in issue in the case. (assault - peaceful or violent?)
CHARACTER in CIVIL case - admissibility as circumstantial evidence?
NOT ADMISSIBLE when offered as circumstantial evidence to infer conduct at the time of the litigated event - bc attempt to suggest disposition to prove behavior.
CIVIL - if CHARACTER is directly in issue and admissible - how may it be proved?
specific acts
Character in CRIM cases - Basic Rule
bad character, whether in teh form of specific acts of prior misconduct, prior crimes, or convictions, bad opinion or bad reputation is NOT admissible at the initiate of the prosecution IF the sole purpose is to show criminal disposition in order to infer guilt from disposition UNLESS and UNTIL-
EXCEPTION to Character in Crim Cases - Basic Rule
UNLESS and UNTIL the accuased is permitted to offer evidence of good character for the pertinent trait in the form of reputation to show disposition in order to infer innocence-ONLY then may the prosec respond by showing bad character of accused.
What methods/techinques can D use to show his good character as circumstantial evidence?
NOT specific acts! (to infer conduct) - but rather - opinoin and reputation allowed.
After the accused offers evidence (W) of good character - what may prosecution do?
may respond by INQUIRY (only!) on cross-examination of the accused's good character W about ANY SPECIFIC ACTS which would tarnish the accused's reputation or would affect opinion of W -**prosec is just testing W's knowledge of reputation/personal knowledge!
Victim Character-allowable evidence brought by D seeking self defense plea-RULE
accused may take the iniative in homicide/assult cases as part of self-defense to show the character of hte victim as circumstantial evidence to infer that on occassion in question the alleged victim was the first aggressor--through REPUTATION OR OPINION
Once D brings in victim-character evidence for his self-defense plea, what may prosecution do?
prosecutor could respond by showing good reputation or opinion concerning the victim or by showing the bad reputation or bad opinion regarding the accused himself.
CRIM case alleging sexual misconduct-what defense may show as evidence of victim's sexual history to prove consent:
a)NO opinion or reputation
b)Specific instances of sexual behavior of the alleged victim are admissible ONLY (i)if offered to prove that third party was source of semen, injury, or other physical evidence, (ii)to show prior acts of consensual intercourse btw alleged victim and the accused or (iii)if exclusion would violate const'l rights of the accused. *D must give notice and in camera hearing held
CIVIL cases alleging sexual misconduct- when is evidence of sexual disposition/behavior of victim admissible?
ONLY if probative value substantially outweighs the danger of harm to the victim and unfiar prejudice to any party. *defense must give notice and in camara hearing held.
When are prior crimes/acts of misconduct of D allowed at prosecution's initiative?
when the misconduct is relevant to prove a material fact OTHER than character/disposition such as motive, opp, intent, prep, plan, knowledge, identity or absence of mistake or accident
prosecution can show this which may expose prior acts - ex. D charged w/murder of detective; prosecution can show evid that Detective was about to arrest D for murder of wife
or state of mind of D at issue- Specific Intent crime! ex. D charged with receiving stolen goods -claims unaware they were stolen;prosec can show D received stolen goods from same thief 5 separate times
allowed to show other crime was relevant to connect D to current crime - ex. victim found with gun next to him; same gun was stolen from X, D was the person who stole the gun - that act can be used to link D with this crime of murder
another way to prove identity-D is accused of a crime distinctive and unusual in its detail - "Signature" crime - can show prior crimes that have same uniqueness.
prior acts allowed to show all part of same transaction - ex.D charged w/bank robbery; prosecution can show D stole a truck day before and same truck used in bank robbery
prior acts allowed into evidence and do NOT show D's disposition (character): Motive,Intent,Mistake-absence of,Identity,Common Plan/Scheme *applicable in civil AND criminal cases!*
MIMIC rule's limitation
may be excluded if trial judge believes that probative value is substantially outweighed by danger of unfair prejudce (must be EXTREME for exclusion)
Special Rule for Cases involving sexual assault/child molestation - prior similar acts
allowed to show propensity; in civil OR crim cases - D's prior acts of sexual assault or child molestation may be shown by prosecution or plaintiff- DISPOSITIONAL evidence!
General Rule of Authentication & Writings
a writing is NOT admissible UNTIL it has been authenticated. A FOUNDATION must be laid showing that the writing is what it purports to be = genuine.
*Testimonial foundation required!
Methods of Authentication:

Forms of Direct Evidence (3)
Eye W Testimony
Handwriting Proof
Rules of Authentication & Handwriting Proof
-Lay Ws
-Expert Ws
-Jury Comparison
-Lay Ws: only W familiar w/signature can give opinion
-Expert Ws: comparing disputed signature w/genuine speciman signature in evidence
-Jury comparison:genuine speciman signature in evidence used to compare
Methods of Authentication

Forms of Circumstantial Evidence (2)
1) Ancient Doc Rule

2) Solicited Reply Doctrine
Ancient Document Rule
1) 20+ yrs old
2) regular (no alterations) on its face
3) found in a place of natural custody
*foundation for authentication then laid
Solicited Reply Doctrine Rule
Proof that disputed document came in response to prior communcation.
*foundation for authentication then laid.
Authentication of Writings - How much evidence is necessary to lay a proper foundation?
SUFFICIENT evidence to justify jury finding of genuineness -- *Note:could have an evenly balanced dispute re: genuineness as long as sufficient std met.
Self-Authenticating Doc-General Rule & 6 Exceptions
Documents are NOT self authenticating. EXCEPT
1.Certified Copies of Public/Business Records
2.Official Publications
4.Trade Inscriptions/Labels
5.Acknowledged Docs-affid
6.Signatures on Certain Commercial Docs (UCC)
How do you authenticate a photograph w/W?
proper foundation requires W to show it's a fair and accurate representation of what is being portrayed.
How do you authenticate a photograph when there is no W?
show that the camera was functioning properly, the time at which teh camera was functioning properly, and how the film was hnadled up until time of court (chain of custody)
Best Evidence Rule
Requires that a party seeking to prove the content of a writing (includes films, photos, X-rays and recordings) must either 1)produce the original doc OR 2)account for the absence of the original-if = reasonable-foundation laid for secondary evience-then a copy or oral testimony can be admitted to prove content of original.
What does the Best Evidence Rule Apply to?
1)Legally operative documents: docs that by their existence create or destroy a legal relationship that is in dispute (deed,divorce decree,will,written K)
2)W's sole knowledge comes from a doc-lacks personal knowledge
2 EXCEPTIONS to Best Evidence Rule - where it does NOT apply
1)Facts independent of the writing: W has personal knowledge -no need produce writing or explain its absence
2)Collateral Docs: minor importance to issue of the case
Modifications to Best Evidence Rule: 3 areas where substitutes are acceptable
1)Public Records-certified copies admissible in place of originals
2)Voluminous Docs-summaries/charts/calculations can replace so long as orig admiss if offered and made accessible to opposing party
3) Duplicates - accurately reproduces original
When is a duplicate NOT admissible to the same extent of the original document (2)
1)a genuine question is raised about authenticity of the original OR
2)it would be unfair to admit the duplicate in lieu of original
Ws and testimonial evidence: 4 Requirements of Compentency
2)Memory:can remember at least some of what was observed
3)Communication:able to do so
4)Sincerity (oath or affirmation)
DEAD MAN ACTS - Typical Statute
An interested survivor cannot testify for his interest against decedent or decedent's representatives about communications or transactions with the decedent in a CIVIL case unless there is waiver.
Elements of DEAD MAN ACTS (6)
1)W on stand must be interested W
2)Even if have interested W, she must be testifying FOR her interest
3)even if (1) and (2)-must be testifying vs. decedent
4)interested W can only be barred from communications or transactions w/decedent
5)strictly civil
6)even if all reqs met-can waive
How can the DEAD MAN ACT be waived?
decedent's testimony gets before jury (taken prior to death-i.e. at depo)
2)if it's a copy/oral T-consider Best Evidence Rule-foundation for no orig?
3)Hearsay -if yes - exceptions? (admission of party,business records, recorded recollections)
Examining the W: 3 Objectionable Question Forms
1) Narrative: tell us everything that happened
3)Misleading or Compound or Arugmentative
When is leading permitted? 4 situations
1)cross examination
2)convenient/appropriate to ask - Direct re: prelim matters
3)W is old/immature/dumb
4)adverse party or someone under her control or genuinely hostile W
W's use of writings in Aid of Testimony - Basic Rule
W usually cannot read testimony from previously prepared doc BUT may use a writing in aid of oral testimony in two situations when W can't remember: (1)refreshing recollection (2)recorded recollection
Refreshing Recollection
when W's memory fails, ANYTHING can be used to jog the memory of W - even hearsay! even the atty's notes! W must say "I don't remember"
If document is used to refresh recollection may defense counsel use it? see it? introduce into evidence?
YES - opposing counsel can
1) see it
2) use it in cross exam
3) put in evidence
Recorded Recollection
if W is uanble to remember all or part of the details of a transaction about which she once had personal knowledge, her own writing shown to be reliable may be admitted in place of her testimony. -*MUST LAY FOUNDATION
Foundation for recorded recollection requires a showing that: (5)
1)at one time W had personal knowledge
2)you must show writing was made by W, under her supervision or adopted by W at time written
3)writing was timely made-fresh
4)estb reliability of writing-is it accurate?
5)Necessity-W must be unable to remember all or part of transaction details
When is Lay Opinion Admissible? 2 requirements
1)Rationally based on the perception of the W AND
2)Helpful to trier of fact
FOUR basic requirements for expert testimony
1)subject matter must be appropriate for expert test
2)W must be qualified as expert
3)expert should possess reasonable certainty or probability regarding opinion
4)opinion must be supported by a proper factual basis
Expert Opinion - 2 requirements of "appropriate subject matter"
1)methodology must be RELIABLE
2) opinion must be RELEVANT
Expert Opinion - Qualifications
W can be an expert based solely on experience
Expert must possess reasonable certainy or probability regarding the opinion-
opinion should be elicited in a form to show judge it's not just a guess
Facts necessary to support Expert Opinion - (3 types)
1)Facts within personal knowledge of the expert
2)Facts which are supplied to expert in Ct by evidence, usually thru a hypo question
3)Facts NOT within personal knowledge of expert or admissible in evid, as long as they are the type experts in that field would reasonable relyupon making out of ct stmts.

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