Evidence Analysis and Approach

7/29/2019 Evidence Analysis and Approach

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Evidence Analysis and Approach

1. All relevant evidence is admissible unless a specific rule keeps it out.2. Character Evidence

a. Evidence that tells us about the type of person someone is.b. Types of character evidence

i. Reputation evidence.ii. Opinion Evidenceiii. Evidence of specific conduct engaged in by that person in the past.

c. 5 Rules in Criminal Casesi. Prosecutor CANNOT introduce evidence of D bad character if purpose is

to show he probably acted in conformity with his character and

committed the crime charged.

1. Prosecutor cannot use character evidence to show D haspropensity to commit the crime.

ii. D is allowed to present evidence of relevant good character traits to tryand establish he acted in conformity with his good character and did not

commit the crime.1. Limited to reputation or opinion evidence.

iii. If D presents evidence of good character, door is open and P canintroduce evidence of bad character.

1. Reputation or opinion evidence.iv. Evidence of prior crimes or prior bad acts are never admissible to show

D probably acted in conformity. But are admissible for other reasons.

1. Remember MIMICa. Motiveb. Intentc. Mistake (Absence thereof)d. Identitye. Common scheme

v. If D testifies, he automatically places his character for truthfulness atquestion.

d. 3 Rules in Civil Casesi. Cant introduce any evidence of character trait of party, to show that

party probably acted in conformity with that character trait.

ii. If a litigant has some other purpose for the introduction of characterevidence and it is relevant, then the rule prohibiting character evidence

will not keep it out.

1. E.G. Showing negligent entrustment2. E.g. In defense of Defamation suit.

a. Evidence of reputation would be admissible to demonstratethe truthfulness of the statement made.

iii. If a party testifies they automatically place their character oftruthfulness at issue.

3. Impeachment of Witnessa. Evidence presented to show a jury for the purpose of showing the jury why a

witness who has testified should not be believed.


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b. Always relevant evidence.c. 6 Impeachment efforts

i. Prior inconsistent statements1. That before the testimony the witness made statements

inconsistent with the testimony.

2. Either through cross-examination or other evidence showingprior inconsistent statements. (Extrinsic Evidence)a. Extrinsic evidence of prior inconsistent statement is not

admissible if it is for a very minor point of the testimony.

b. If Extrinsic evidence of prior inconsistent statement isbeing used, the witness must be given the opportunity to

give a statement on the extrinsic evidence.

i. But this can be done either before or after theintroduction of the extrinsic evidence.

ii. If it qualifies as an admission by the party, donthave to give them the opportunity to comment

on the extrinsic evidence.ii. Bias

1. Witness can be impeached with evidence that shows the witnessmight be inclined to favor the side the witness has testified for.

iii. Some prior criminal convictions1. Certain crimes only:

a. Any criminal conviction, felony or misdemeanor, involvingdishonesty or false statement can always be used to

impeach.

b. Any other felony can be used to impeach unless the judgefinds it is too prejudicial. (either during cross or with

extrinsic evidence.)iv. Prior bad acts.

1. Bad acts which did not result in conviction but that reflectunfavorably on the witnesses truthfulness.

2. Can only be elicited on cross examination. (no extrinsic evidence,even if witness denies the bad act).

v. Reputation or opinion for untruthfulness1. ok

vi. Contradiction.1. Evidence that contradicts the testimony of the person being

impeached.

2. On cross can attempt to get witness to contradict himself on anypoint given in the testimony.

3. Extrinsic evidence of contradiction will only be allowed formajor contradictions, (not minor contradictions.)

4. Heresay: all heresay is inadmissible unless it qualifies under an exception.a. Heresay = Statement other than the one made by the witness while testifying

at the trial offered to into evidence to prove the truth of the matter asserted.


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b. 3 textbook examples, not offered for truth of matter asserted, so not heresayand not excluded.

i. Verbal acts = out of court statements that all by themselves changerights. (e.g. acceptance of offer that validates the K.)

ii. Statements made out of court to show knowledge of the listener, whenknowledge of listener is a relevant issue in the case.

iii. Prior inconsistent statement offered to impeach.c. Several statements removed from definition, (non-heresay from get go) even

if offered to prove the truth of the matter asserted.

i. Admission by a party; (statement by a party opponent)ii. Prior inconsistent statement of a witness, given under oath at legal

proceeding.

iii. Prior identification made by person who is witness to the current case.d. 9 exceptions

i. Present sense impressionii. Excited utterance

iii. Statement showing state of mind, or physical condition.iv. Statements for purposes of medical treatment or diagnosis.v. Recorded recollection

vi. Business records.vii. Former testimony. (only useable when person is unavailable to testify)

viii. Dying declarations. (only useable when person is unavailable to testify)ix. Statements against interest. (only useable when person is unavailable to

testify)

5. 3 step approach:a. determine if out of court statement is offered for truth of matter asserted.b. Is the statement removed from definition.c. Does it qualify under one of the exceptions to the heresay rule.

6. General Notesa. Judicial notice

i. Judicial review: Appropriate when fact is indisputable or can be verifiedwith scientific principles.

ii. Must Determine if it is a Criminal or Civil case:1. Criminal judge says jury may but does not have to accept the fact

judicially noticed.

a. Prosecutors burden of producing evidence is satisfied.2. Civil case: fact judicially noticed is conclusively established.

b. Expert Witness: Judge gets to decide if a person is an expert.c. Judge has responsibility for deciding whether an out of court statement

qualifies as exception to heresay rule.

d. Documents used to refresh recollectioni. Anything can be used to refresh the recollection of the witness.

1. Including paper with exact info.


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ii. If you use a document to refresh recollection, you must make thatdocument available to your opponent. They can introduce it and you

cannot object to the introduction of that piece of evidence.

e. Habit: Evidence of a habit is admissible to show the person probably acted thesame way again.

i. Habit = repeated response to a particular set of circumstances.f. Rule of exclusion on subsequent repairs.i. Evidence of repairs is not admissible for purpose of establishing

negligence, lack of due care, or for establishing strict liability for the sale

of the unreasonably dangerous defective product.

ii. If P has any other legitimate purpose, then the evidence will not beexcluded.

1. To prove ownership or control over the condition that causedthe damage, when that is an issue in the case.

2. To prove it was possible to have a safer condition, if the Defenseis that it was not possible to make it safer than it was.

3. When inadmissible under basic rule, answer will usually readinadmissible for reasons of public policy.g. There is a rule excluding bolstering credibility of your own witness; becomes

moot if there is any other reason for evidence, then rule for bolstering is

thrown out.

h. Rehabilitation;i. If witness was impeached for prior bad acts, bad reputation for

truthfulness, or prior crimes; counsel can attempt to rehabilitate the

witness with evidence of good reputation for truthfulness. If, the witness

has been impeached through any other method, rule is ambiguous over

whether evidence of good reputation can be used for rehabilitation.

i. Admission of a partyi. 3 types of admission (relevant statement by a party of an action, or

employee of party speaking in scope of appointment, made at any

previous time and offered into evidence by the party.

1. Basic Admission2. Admission by an employee3. Admission by silence

ii. Ask yourself:1. Was that made by a party, or an employee of a party speaking in

scope of employment?

2. Was the out of court statement offered by the opposing party?3. Is it relevant?

iii. If yes to the above, then you have an admission, that removes it fromheresay rule.

iv. Admission by silence: If at a previous time a party heard an accusationand failed to protest, and a reasonable person would have protested,

then the both the accusation and the silence can be admitted as an

adopted admission, or admission by silence

j. For Impeachment and substantive


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i. Two situations where a prior inconsistent statement of a witness can beused both to impeach and to prove the truthfulness of the facts.

1. Prior inconsistent statement was given under oath and a legalagreement.

2. Of if the prior inconsistent statement qualifies itself as anexception to the heresay rules.

ii. Has to be set up by giving you the in court testimony and must ask aboutprior inconsistent statement.

1. Ask if it was given at a legal proceeding or if it falls under anexception.

k. Impeachment if not testifyingi. If a person making an out of court statement does not take the witness

stand, you can impeach them exactly the same way you could have

impeached them had they taken the witness stand.

l. Dying Declarationi. Only criminal cases where you can use a dying declaration are where

someone is dead.m. Business Records.

i. Person making the record does not have to have first hand knowledge ofthe information being recorded in that business record.

ii. If a document qualifies as a business record, it is admissible to provewhat is in it and what is not in it.

n. Hillman rulei. Out of court statements of intention in the future are admissible, for

what they are worth, to help establish that the person actually carried

out that intention.

o. Items before being admitted as evidence have to be authenticated.i. Sufficient to support a finding that the item is what the proponent

claims.

ii. Laymans terms: Enough additional evidence so that the jury canlegitimately conclude if they wanted to that the object is what the

proponent claims it is.

p. Expert Testimonyi. Experts can give testimony on info received from any source as long as

it is something on which they reasonably rely on in the course of their

profession.

ii. Even I it would not ordinarily be admissible.q. Spousal immunity.

i. Federal court in a criminal case, a spouse cannot be forced to testifyagainst a spouse.

1. May testify if they want to testify, just cant be forced to testify.2. Doesnt matter what the evidence is, or when they learned about

the evidence.

ii. Spouse can refuse to disclose or keep the spouse from disclosing (in civilor criminal case)