Evidence

Evidence is relevant if it has any tendency to make a fact more probable than would be the case without the evidence

• Court determines probative value is substantially outweighed by:
• a. Danger of unfair prejudice
• b. Confussion of issues
• c. Misleading Jury
• d. Undue Delay
• e. Waste of Time
• f. Unduley Cummulative

• Generally evidence of past conduct not admitted to prove current conduct. Sometimes it is of probative value:
• 1. Causation
• 2. Prior False Claim
• 3. Similar injuries
• 4. Previous similar act - to prove intent
• 5. Rebutting claim of impossibility
• 6. Habit
• 7. Business Routine
• 8. Industry Customs

• Generally: not admissable because it shows nothing other than P is accident prone.
• Exception: if the cause of P's injury is in question (like if he has a hurt back and you want to show he hurt it in a prior accident)

• May be able to show prior accidents for the limited purpose of showing:
• 1. Existance of a dangerous condition
• 2. Causation of accident
• 3. Prior Notice to D

• Prior similar conduct may be admitted for limited use to show an intent on a later occasion.
• Example: In a gender discrimination suit, can show D never hired women in the past in order to establish his present intent.

You can show the selling price of similar property to establish the value of your property

Habit is a repeditive response to a particular set of circumstances.  It is not about a persons general disposition, but rather the guy runs the red stop sign every single morning.

Can use evidence of how others in the industry handle a situation in order to establish a standard of care for D.

Evidence of insurance not admissable to show fault or negligence.  However, it may be used to show ownership or control if that is in issue.

Inadmissable: to show negligence, product defect, culpability.

Admissable: to show control or feasibility, but only if in dispute.

Cannot use offers or statements of fact said in settlement negotitations. Only applies if there is a true dispute (cannot say I am guilty dont sue if I pay you $10k) - can be a dispute of just damages

You can show the a settlement occured between D and W, for the purpose of showing W is biased.

Civil Settlements with regulatory agency can be disclosed and used in a criminal prosecution.

Offer/acceptance/withdraw and nolo contendre cannot be admissable at trial.

But Plea of Guilty, not withdrawn, can be used at a subsequent litigation, based on the same facts under Party Admission.

Cannot offer evidence that D offerred to pay medical bills.  But can admit evidence of other speech like "I ran the red light, I'll pay your medical".  Party admission, just strip the part about medical bills.

Not admissable by P in his case in chief.  But if D opens the door durring his case, then:

• 1. P can cross-exam the W and ask specific Relevant (to the crime) questions about D (but needs to take W word for it - no extrinsic evidence)
• 2. Can have a W2 testify that W1 has bad character of truthfulness
• 3. P can call its own witnesses to testify as to the general nature of D's reputation/opinion

• Defendant is able to call charactor witnesses to testify of a relevant character trait by opinion or reputation. 
• But, he opens the door to P to introduce character evidence that he otherwise is prohibited from.

In D's self defense, he can introduce character evidence of V to show V was the aggressor.  W can only comment on W's reputation for violence and W's personal opinion. D opens the door for P.

• If D opens the door to V's Character P can:
• 1. Introduce W of V's peaceful Character; and
• 2. May now call witnesses to testify about D's reputation for violence
• 3. If D enters any evidence against V, not just reputation (like W says V pulled a gun), then P can bring character witnesses for V.

• NO: Can only prove character with opinion and reputation, not specific acts
• However: Can admit the testimony if the purpose is to show that D knew that V attacked W, because then the evidence is to show D's state of mind (fear)

• Rape Shield Law: Cannot have evidence of V's sexual reputation.  But may admit evidence to show:
• 1. Specific sexual behavior to show someone else was source of semen
• 2. Prior sexual activity with D to try to show consent
• 3. Where exclusion so important it would violate D's due process

• No character witnesses for either side. Unless it is an essential element of a claim or defense, then can use reputation, opinion and specific acts.  Like:
• 1. Negligent hiring: show the character of the employee to establish D was negligent to hire him
• 2. Defamation: To show that it is true D needs to introduce evidence of P's character
• 3. Child Custody: Need to show the spouses character

• Cannot use other crimes to show because D did it in the past D must have done it now. But can use for MIMIC in criminal and civil:
• 1. Motive: Show the cop he killed arrested him 5 years prior
• 2. Intent: Sold drugs at same corner
• 3. Mistake/Accident: If defense is mistake then to show it was not a mistake
• 4. Identity:
• 5. Common Scheme or plan: - prior act part of this crime

• 1. Cross-Examination
• 2. Extrinsic Evidence - need foundation

• 1. Prior Inconsistant Statements
• 2. Bias, Interest Hostility
• 3. Conviction of a Crime
• 4. Bad Conduct
• 5. Opinion or reputation for truth
• 6. Sensory deficiencies

Can be used for non-hearsay purposes.  Give opportunity to explain

• 1. Any crime involving honesty (no discretion)
• 2. Felony not involving honesty (court discretion) - Less than 10 years

Bias, interest, hostility.  Give opportunity to explain

• 1. Probative for truthfullness
• 2. Inquire in good faith
• 3. Take his word for it, no extrinsic evidence
• 4. Cannot ask about an arrest

If hearsay is allowed into evidence, you can impeach the out of court declarant

Can have a W2 give his opinion or reputation of whether W1 is truthful

Can show he could not see or hear well enough to be compitent

• You can rehabilitate an impeached witness by:
• 1. Explanation on Re-direct
• 2. W2 to testify W1 has a good reputation for truth
• 3. Prior consistant statement.  Not normally admissable, but is to rehabilitate an impeachment for fabricated bias

• 1. Personal Knowledge
• 2. Testify truthfully
• 3. ability to percieve and communicate

• 1. Leading Questions
• 2. Objections
• 3. Refreshing recollection
• 4. Past recollection Recorded

• 1. Cross Exam
• 2. Preliminary - Get things started
• 3. W needs help
• 4. Hostile W
• 5. Adverse W

• 1. Non-responsive
• 2. leading
• 3. Calls for a narrative
• 4. Argumentitive
• 5. Compound Question
• 6. Irrelevant
• 7. Hearsay

• 1. Rationally based on W's perception (speed, appearence, state of emotion, drunk)
• 2. Helpful to jury

• 1. Subject Matter is technical
• 2. W qualified
• 3. Probable his opinion is true
• 4. Sufficient factual basis: a) personal observation; b) facts made known at trial; c) facts made known outside trial and reasonably relied on in the field

• 1. Related to direct examination
• 2. Impeachment (bias, interest, conviction)

May use writing to jog a persons memory.  Can be any writing. Cannot be read into evidence.

• A witness's out of court statement can be read into court (hearsay exception) if:
• 1. His recollection cannot be refreshed
• 2. At one time had personal knowledge of the contents of the writing
• 3. He made or adopted the writing
• 4. Writing was timely made when fresh in his head
• 5. Reasonably accurate

• 1. Attorney/Client
• 2. Doctor/Client
• 3. Spousal Privledge
• 4. Confidential Marital Communications

• 1. Spousal Privledge: Must be married at trial. Can't perputrate fraud - belongs to W not D
• 2. Confidential Marital Communications: Survives marriage - D can invoke it

Out of Court Statement offered into evidence to prove the truth of the statement

Not hearsay and can be used to prove the truth of the matter asserted

1. Party Admission: includes adoptive, vicarious (employee), co-conspirators

2. Prior Statements of Witnesses: a) prior ID's; and b) Inconsistant statements under oath

• 1. Unavailability Exceptions
• 2. Reliability Exceptions
• 3. Documentary Exceptions
• 4. Books Exceptions

• 1. Dying Declaration
• 2. Declarations against interest
• 3. Former Testimony under oath

• Doesn't matter if available
• 1. Excited Utterance
• 2. Present Sense Impression
• 3. Bodily condition
• 4. Present state of mind
• 5. Catch all - judge has discretion to allow anything if he thinks it is relaible

• 1. Business Records
• 2. Official records
• 3. Past recollection recorded

• 1. Ancient Documents (20 years)
• 2. Learned Treatises

• 1. Authentication
• 2. Best Evidence Rule
• 3. Parol Evidence Rule

• 1. Real Evidence
• 2. Writings
• 3. Recordings

• 1. Admission of other party
• 2. Eyewitness Testimony Handwriting Testimony
• 3. Ancient Document

X-rays requires testimony that the machine works and chain of title

• 1. W identifies voice
• 2. W confirms a telephone call
• 3. Called the number and the person stated his name

• 1. Certified Copies of Public Records
• 2. Official Publications
• 3. Newspapers/Magazines
• 4. Trade Names (labels)

• 1. Authentication: W testifies it is what it purports to be and chain of title
• 2. Condition: same condition at trial
• 3. Balance Test: Probative value v. inconvenience, prejudice, indecency

Balance Test: Probative value v. inconvenience, prejudice, indecency

Applicable when D is trying to prove what is in the document, like a contract

Prior or contemporanious agreements not admissable to prove the contents of the K