Evidence

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apgiering
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161262
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Evidence
Updated:
2012-07-06 16:30:43
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  1. What evidence is admissible?
    Only relevant evidence.
  2. Relevance
    Evidence that has any tendency to make a material fact more probable or less probable than it would be without the evidence.
  3. When can relevant evidence be excluded?
    When its probative value is substantially outweighed by the danger of:

    • 1) Unfair prejudice
    • 2) Confusion of the issues
    • 3) Misleading the jury
    • 4) Undue delay
    • 5) Waste of time
    • 6) Cumulative evidence
  4. Are prior acts admissible?
    No, generally prior specific acts are not admissible.

    • Exceptions:
    • 1) Pattern of Conduct (fraud)
    • 2) Extent of Injuries
  5. Which prior events are admissible?
    Other accidents involving the same instrumentality which occured under the same or similar circumstances are admissible.
  6. Is habit evidence admissible?
    Habit of a person to act in a certain way is relevant to show that the person acted in the same way on the occasion in question.

    Business Routine -- the routine practice of an organization is admissible, just like habit

    Industrial or Trade Custom -- admissible as non-conclusive evidence of a standard of care
  7. Is evidence of business routine admissible?
    Yes, it is relevant to show that the business acted in the same way on the occasion in question.
  8. Is evidence of industrial or trade custom admissible?
    Yes, as non-conclusive evidence of a standard of care.
  9. Is evidence of whether a person or business carried liability insurance admissible?
    Non-admissible to show that a person acted negligently or wrongfully or to show ability to pay.
  10. Is evidence of subsequent remedial measures admissible?
    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.

    Admissible to show ownership or control or to impeach a claim regarding feasibility of precautionary measures.
  11. For what purposes is evidence of subsequent remedial measures not admissible?
    • Negligence
    • Culpable conduct
    • Defect in a product
    • Defect in a product's design
    • Need for warning or instruction
  12. For what purpose is evidence of subsequent remedial measures admissible?
    • Ownership or control
    • Impeach a claim regarding feasibility of precautionary measures
  13. Is evidence of settlement discussions admissible?
    Not admissible to prove fault, liability, or amount of damages.

    • This exception covers:
    • 1) Actual compromise
    • 2) Offers to compromise
    • 3) Offers to plead guilty in a criminal case
    • 4) Withdrawn pleas of guilty
    • 5) Pleas of nolo contendere

    • Limitations:
    • 1) There must be a claim at the time
    • 2) The claim must be disputed as to either liability or amount

    EXCEPTION: An offer to pay medical expenses 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.
  14. What is the exception to the rule that evidence of settlement discussions is not admissible?
    An offer to pay medical expenses 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.
  15. What preliminary fact questions can be determined by the court?
    • Qualification of a person to be a witness
    • Existence of a privilege
    • Admissibility of evidence
    • NOTE: In making its determination, the court is not bound by the rules of evidence
  16. What are the three methods of proving character?
    • Specific acts of conduct
    • Opinion
    • Reputation
  17. In a civil case, is character evidence admissible when offered as circumstantial evidence to infer conduct at the time of the litigated event?
    No.
  18. When is character evidence admissible in a civil case?
    When the character of a person (party) is itself a material issue in the case.
  19. When is character evidence admissible in a criminal case?
    Bad character, whether in the form of specific acts of prior misconduct, prior crimes or convictions, bad opinion or bad reputation, is not admissible at the initiative of the prosecution if the sole purpose is to show criminal disposition in order to infer guilt from disposition UNLESS and UNTIL the accused is permitted to offer evidence of good character for the pertinent trait in the form of reputation and opinion to show disposition in order to infer innocence.  Only then, after the defendant has "opened the door," may the prosecution respond bty showing the bad character of the accused.
  20. When can a criminal defendant offer evidence as to the character of the victim?
    In homicide or assault cases, as circumstantial evidence to infer that on the occasion in question the alleged victim was the first aggressor.

    In sexual misconduct cases, the defendant can offer evidence of the alleged victim's sexual history to prove consent, BUT

    • 1) No opinion or reputation
    • 2) Specific instances of sexual behavior are admissible only, if offered to prove:

    • A) That a third party was source of semen, injury, or other physical evidence
    • B) To show prior acts of consensual intercourse between the alleged victim and the accused
    • C) If exclusion would violate the constitutional rights of the accused.
  21. Can a criminal defendant offer evidence as to the character of the victim in homicide or assault cases?
    Yes, as circumstantial evidence to infer that on the occasion in question the alleged victim was the first aggressor.
  22. Can a criminal defendant offer evidence as to the character of the victim in a sexual misconduct case?
    The defendant may offer evidence of the alleged victim's sexual history to prove consent, BUT

    • 1) No opinion or reputation
    • 2) Specific instances of sexual behavior are admissible only, if offered to prove:

    • A) That a third party was source of semen, injury, or other physical evidence;
    • B) To show prior acts of consensual intercourse between the alleged victim and the accused;
    • C) If exclusion would violate the constitutional rights of the accused.
  23. When can evidence of the sexual disposition or behavior of the alleged victim be admissible in a civil case?
    Only if the probative value substantially outweighs the danger of harm to the victim and unfair prejudice to any party.
  24. Are specific acts of prior misconduct by the accused admissible during the prosecution's case in chief?
    Not if the only purpose is to prove criminal disposition, BUT prior crimes or prior acts of misconduct may be admitted at the initiative of the prosecution when the misconduct is relevant to prove a material fact other than character or disposition, such as:

    • Motive
    • Identity
    • Mistake, lack thereof
    • Intent
    • Common scheme or purpose
  25. Are writings admissible?
    A writing is not admissible until it has been authenticated.
  26. How can you authenticate a writing?
    • Admission
    • Eyewitness testimony
    • Handwriting proof (lay witness; expert witness; jury comparison)
  27. When is a writing admissible without authentication under the ancient document rule?
    • 20 or more years old
    • Regular on its face
    • Found in a place of natural custody
  28. When is an writing admissible without authentication under the solicited reply doctrine?
    The disputed document came in response to prior communication.
  29. Which documents are considered self-authenticating?
    • Certified copies of public or business records
    • Official publications
    • Newspapers and periodicals
    • Trade inscriptions or labels
    • Acknowledged documents
    • Signatures on certain commercial documents
  30. Best Evidence Rule
    • Requires that a party seeking to prove the content of a writing must either
    • A) Produce the original document, or
    • B) Account for the absence of the original
  31. What writings does the Best Evidence Rule apply to?
    • Legally operative documents -- documents that by their existence create or destroy a legal relationship that is in dispute
    • Witness's sole knowledge comes from a document
  32. What are some exceptions/modifications to the Best Evidence Rule?
    • Public Records - certified copies admissible in place of originals
    • Voluminous documents - if originals are too voluminous to be produced in court, summaries, charts or calculations are admissible in place of originals as long as A) originals would be admissible if offered, and B) originals are made accessible to opposing party
    • Duplicates - in place of original
  33. If originals are too voluminous to be produced in court, are summaries, charts or calculations admissible in place of originals (best evidence rule)?
    Yes, so long as

    • A) Orginals would be admissible if offered, and
    • B) Originals are made accessible to opposing party
  34. What is a duplicate (best evidence rule)?
    A copy produced by any technique which avoids casual errors and "accurately reproduces the original."

    • A duplicate is admissible to the same extent as the original unless
    • A) A genuine question is raised about the authenticity of the original, or
    • B) It would be unfair to admit the duplicate in lieu of the original
  35. Is a duplicate admissible to the same extent as the original (best evidence rule)?
    Yes, unless:

    • A) A genuine question is raised about the authenticity of the original, or
    • B) It would be unfair to admit the duplicate in lieu of the original
  36. What goes to a witness's competency to give testimonial evidence?
    • Personal knowledge
    • Oath
    • Perception
    • Memory
    • Communication
    • Sincerity
  37. Dead Man Act
    An interested survivor cannot testify for his interest against the decedent or decedent's representatives about communications or transactions with the decedent in a civil case unless there is a waiver.

    (There is no Federal or CT Dead Man Statute!)

    • Elements:
    • 1) Interested
    • 2) For interest (testifying)
    • 3) Against decedent
    • 4) Transaction or communication
    • 5) Civil cases ONLY
    • 6) Waived with no objection to testimony or have decedent's deposition
  38. What lines of witness questioning are objectionable?
    • Narrative
    • Leading

    • Except for:
    • 1) Transitional
    • 2) Preliminary matters
    • 3) Difficult witness
    • 4) Adverse party

    Misleading or Compound or Argumentative
  39. When can you lead a witness?
    • Transitional
    • Preliminary matters
    • Difficult witness
    • Adverse party
  40. When can you use writings to refresh a witness's recollection?
    When witness memory fails, anything can be used to jog the memory of the witness.
  41. Recorded Recollection
    If witness is unable 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.

    • Foundation for recorded recollection requires a showing that:
    • 1) Witness once had personal knowledge
    • 2) Writing is prepared by witness
    • 3) Timely after events
    • 4) Reliable
    • 5) Necessary
  42. What is the required foundation for recorded recollection (i.e., admitting a writing in place of a witness's testimony)?
    • Witness once had personal knowledge
    • Writing is prepared by witness
    • Timely after events
    • Reliable
    • Necessary
  43. Is opinion testimony by a lay witness admissible?
    Admissible if rationally based on the perception of the witness and helpful to the trier of fact.
  44. When is opinion testimony by an expert witness admissible?
    • The subject matter is appropriate (methodology must be reliable and the opinion must be relevant)
    • Witness is qualified
    • Witness's opinion has a reasonable degree of certainty
    • Proper factual basis
  45. What is a proper factual basis for opinion testimony by an expert witness?
    • Personal knowledge of the expert
    • Acquired knowledge by sitting in trial and listening to evidence
    • Hypothetical question -- all facts subsumed in hypothetical and introduced into evidence (facts need not be in evidence, can be given via hearsay, to serve as basis.  Has to be of kind expert relies upon in his practice)
  46. Can an expert use a hypothetical question as a proper factual basis for opinion testimony?
    Yes.  All facts must be subsumed in hypothetical and introduced into evidence.  Facts need not be in evidence, but can be given via hearsay, to serve as a basis. Must be of kind expert relies upon in his practice.
  47. Can you impeach an expert witness with a learned treatise?
    • Yes, but the treatise must be authoritative.
    • A) Expert relied on it on direct
    • B) Expert agrees on cross that it is authoritative
    • C) Expert denies, but call your own expert
    • D) Judicial notice
  48. How can you show that a learned treatise is authoritative in order to use it to impeach an expert witness?
    • Expert relied on it on direct
    • Expert agrees on cross that it is authoritative
    • Expert denies, but call your own expert
    • Judicial notice
  49. When is a learned treatise admissible as substantive evidence?
    • A learned text, treatise, or article concerning a relevant discipline is admissible as an exception to the rule against hearsay if established as reliable by
    • A) Reliance by your expert on direct examination
    • B) Admission on cross-examination of your opposing expert
    • C) Testimony of any expert, or
    • D) Judicial notice

    • Limitations:
    • 1) Expert must testify unless judge takes judicial notice
    • 2) Treatise is admitted by being read to the jury; text itself is not received as evidence
  50. What are the limitations to the admissibility of a learned treatise as substantive evidence?
    • Expert must testify unless judge takes judicial notice
    • Treatise is admitted by being read to the jury; text itself is not received as evidence
  51. When is there a right to cross-examination of opposing counsel's witness?
    Party has an absolute right to cross-examine a witness who testifies live.

    Cross-examination should not exceed the scope of direct.
  52. Collateral matters doctrine
    Impeachment by contradiction of the witness is limited; no extrinsic evidence is allowed to contradict a witness as to a collateral matter.
  53. Can you offer extrinsic evidence to contradict a witness as to a collateral matter?
    No, impeachment by contradiction of the witness is limited by the collateral matters doctrine.
  54. Accrediting your witness
    • No bolstering your witness unless there has first been an appropriate impeachment
    • Identification -- a prior out-of-court statement of identification that was made by a witness who testifies at trial is excluded from the definition of hearsay
  55. Impeachment by prior inconsistent statements
    The credibility of a witness may be impeached by showing that on some prior occasion the witness made a statement different from and inconsistent with a material portion of the witness's present in-court testimony.

    Extrinsic evidence is admissible.

    Witness should be afforded an opportunity to explain or deny the making of the inconsistent statement.
  56. Can you offer extrinsic evidence to impeach a witness by showing bias, interest and motive?
    Yes.
  57. For what types of prior convictions can you offer extrinsic evidence thereof to impeach a witness?
    • Any crime if it involves dishonesty or false statement
    • A felony not involving dishonest or false statement is admissible at the discretion of the court (but cannot be too remote, i.e., older than 10 years).
  58. Can you impeach a witness for specific acts of deceit and untruthfulness?
    • Good faith required
    • Act inquired about must involve deceit or lying
    • No extrinsic evidence permitted
  59. How can you rehabilitate a witness?
    • Good reputation for truth may be shown if impeachment involved a character attack
    • Prior consistent statement to rebut an express or implied charge of recent fabrication or improper influence or motive
  60. When can you offer evidence of good reputation for a witness?
    When impeachment involved a character attack.
  61. When can you offer a prior consistent statement for a witness?
    To rebut an express or implied charge of recent fabrication or improper influence or motive.
  62. What special privilege does CT recognize?
    Connecticut has battered or sexual abuse-counselor counselor privilege.
  63. Is there a battered or sexual abuse victim-counselor  privilegein CT?
    Yes.
  64. Attorney-client privilege
    Confidential communications between attorney and client made during professional legal consultation are privileged from disclosure unless waived by the client or the representative of the deceased client.

    • Elements:
    • 1) The right parties
    • 2) Confidential communication
    • 3) Professional legal relationship:
    •     A) Intent by client to establish a professional legal relationship
    •     B) Predominantly legal advice must be sought

    • Exceptions:
    • 1) Future crime or fraud
    • 2) At issue exception
    • 3) Disputes between the parties to professional relationship
    • 4) Joint client exception
  65. What is required to invoke attorney-client privilege?
    • The right parties
    • Confidential communication
    • Professional legal relationship (intent by client to establish; predominantly legal advice sought)
  66. What are the exceptions to the attorney-client privilege?
    • Future crime or fraud
    • At issue exception
    • Disputes between the parties to professional relationship
    • Joint client exception
  67. Physician/Psychiatrist-Patient privilege
    The patient has a privilege against disclosure of confidential information acquired by the physician/phychiatrist in a professional relationship entered into for the purpose of obtaining treatment

    • Elements:
    • 1) Patient must be seeking treatment
    • 2) Information acquired must be confidential and necessary to facilitate professional treatment

    WAIVER: Patient sues or defends by putting physical or mental condition in issue
  68. How can you waive your physician/psychiatrist patient privilege?
    • Patient sues
    • Defends by putting physical or mental condition in issue
  69. What are the 2 husband-wife spousal privileges?
    • Spousal Immunity Privilege (criminal only, spouses at time of trial, holder is witness spouse)
    • Confidential Marital Communinations Privilege (married at time of communication)
  70. Spousal Immunity Privilege
    One spouse cannot be forced to give adverse testimony in a criminal case.

    • Elements:
    • 1) Valid marriage at time of trial
    • 2) Protects against any and all testimony
    • 3) Holder of privilege is witness spouse, not party spouse
    • 4) Applies only in a criminal case
  71. Confidential Marital Communications privilege
    A husband or a wife shall not be required or, without the consent of the other, shall not be allowed to disclose a confidential communication made by one to the other during the marriage.

    • Elements:
    • 1) Married not necessarily at time of trial but at time of protected communication
    • 2) Protects only confidences, not all testimony
    • 3) Holder of privilege is either spouse, not just witness spouse
  72. What are the 3 situations in which state evidence law will apply in federal court IF state substantive law applies?
    • Presumptions and burdens of proof
    • Competency of witnesses
    • Privileges-"shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience"
  73. Hearsay
    An out-of-court statement offered for the purpose of establishing the truth of the matter asserted.
  74. What are always non-hearsay?
    • Verbal acts or legally operative facts - where the words spoken or written have relevant legal significance in the case by virtue of being spoken or written
    • Out-of-court statements offered for its effect on the listener
    • Out-of-court statemet as circumstantial evidence of declarant's relevant state of mind
    • Prior inconsistent/consistent statements of a witness; prior statements of identification by a witness
    • Admission of party (or vicarious admission)
  75. What prior statements of a witness are not hearsay?
    • Prior Inconsistent Statements given under oath at a trial, hearing, other proceeding, or deposition
    • Prior Consistent Statements - to rebut charges of recent fabrication or improper influence or motive
    • Prior statements of identification made by a witness
  76. What are the major hearsay exceptions?
    • Former testimony (requires unavailability)
    • Statement against interest (requires unavailability)
    • Dying declaration
    • Spontaneous statement
    • Business records
    • Present state of mind
    • Statement of existing intent to prove intended act
    • Excited utterance
    • Present sense impression
    • Declaration of present physical condition
    • Declaration of past physical condition to medical professional
  77. Former testimony (hearsay exception)
    Testimony given in an earlier proceeding by a person who is now unavailable is admissible if

    • 1) Party against whom testimony is offered had, during earlier proceeding, an opportunity to examine that person and motive to conduct exam was- similar to the motive it has now, or
    • 2) A civil case, party against whom testimony is offered was in privity (or a predecessor in interest) with a party to earlier proceeding who had opportunity and similar motive to examine
  78. Statement against interest (hearsay exception)
    Declaration of a person, now unavailable as a witness, against that person's pecuniary, proprietary or penal interest (or statement which would expose declarant to civil liability or which would tent to defeat a civil claim by declarant) at the time the statement was made.

    EXCEPTION: A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless "corroborating circumstances clearly indicate the trustworthiness of the statement."
  79. Dying declaration (hearsay exception)
    In a prosecution for homicide or in a civil action or proceeding, a statement made by a declarant while believing that the declarant's death was imminent, concerning the cause or circumstances of the impending death
  80. Excited utterance (hearsay exception)
    Statement relating to startling event or condition is admissible when made while declarant was still under stress of excitement caused by the event or condition
  81. Present sense impression (hearsay exception)
    A statement describing or explaining an event or condition made while declarant was perceiving the event or condition or immediately thereafter
  82. Declaration of past physical condition to medical professional (hearsay exception)
    Statement made for purposes of diagnosis or treatment and describing medical history or past symptoms or the general character of the cause or external source of the symptoms insofar as reasonably pertinent to diagnosis or treatment
  83. Business records (hearsay exception)
    Records made at or near the time by, or from information transmitted by, a person with knowledge are admissible if kept in the regular course of business and if it was the regular course of business to make the record unless the source of information or the circumstances of preparation indicate a lack of trustworthiness
  84. How do you impeach a hearsay declarant?
    When a hearsay statement has been admitted in evidence, the credibility of the declarant may be attacked by any evidence which would be admissible for that purpose if declarant had testified as a live witness.
  85. Can an out-of-court statement that qualifies as an exception to the rule against hearsay nonetheless be rendered admissible by the accused's Sixth Amendment right of confrontation in a criminal case?
    Yes.

    The Supreme Court in Crawford v. Washington recently held that ouf-of-court statements, even if they fit a hearsay exception, will not be admitted under certain circumstances.
  86. Under Crawford v. Washington, when will out-of-court statements not be admitted, even if they fit a hearsay exception?
    • The out-of-court statement is offered against the accused in a criminal case, AND
    • The declarant is unavailable at trial, AND
    • The out-of-court statement was testimonial, AND
    • The accused had no opportunity to cross-examine the declarant's "testimonial" statement when it was made
    • Unless the prosecution demonstrates that the defendant has forfeited his Confrontation clause objetion by wrongdoing that prevented the declarant from testifying at trial
    • Defintion of testiominal: A hearsay statement is testimonial if declarant makes a statement that he or she anticipates will be used in the prosecution or investigation of the crime
  87. Testimonial (6th Amendment right to confrontation)
    A hearsay statement is testimonial if declarant makes a statement that he or she anticipates will be used in the prosecution or investigation of the crime
  88. Do records prepared by laboratory technicians indicating blood, alcohol, DNA or drug test results violate the Confrontation Clause?
    Yes, lab analysts certificates have to be backed up with live testimony.

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