Legal Relevance

1.  Prejudicial Impact v. Probative Value:  relevant evidence may be excluded if its probative value is substantially outweighed by the danger of:  unfair prejudice; confusion of issues; misleading the jury; undue delay; waste of time

Extrinsic Social Policy Exclusions

a.  liability insurance:  not admissible to show person acted negligently or wrongfully or to show ability to pay

b.  subsequent remedial conduct:  evidence of repairs or other precautionary measures made following an injury is not admissible to prove negligence, culpable conduct, a defect in product or design, or a need for a warning

c.  settlement offers:  not admissible to prove liability for a claim that is disputed as to validity or amount

d.  payment or offers to pay medical expenses: inadmissible; but admissions of fact accompanying offers are admissible

1. Habit

2. Character is an essential element of the case

3. Used for impeachment of witness

4. prior crimes or acts of misconduct

Habit

used to impeach the character of a witness:  can use opinion or reputation of character for untruthfulness.  Specific instances can be used if:

a.  cross-examiner has a good faith basis for the inquiry; and

b.  the evidence is limited to the witnesses answers (no extrinsic evidence to counter what the witness testifies to)

c.  Note:  common impeachment techniques include:

   i.  prior inconsistent statement:  admissible only for impeachment—not for the truth of the matter asserted

   ii.  bias:  can use extrinsic evidence of bias, because bias is never a collateral matter

   iii.  prior conviction of a crime:  requires less than 10 yrs since conviction or date of release; crime must involve deceit or be a felony (felony means imprisonment of at least 1 year)

   iv.  bad reputation for the truth:  use extrinsic evidence in form of opinion or reputation

1.  to impeach the character of a witness:  can use opinion or reputation of character for untruthfulness.  Specific instances can be used if:

   a.  cross-examiner has a good faith basis for the inquiry; and

   b.  the evidence is limited to the witnesses answers (no extrinsic evidence to counter what the witness testifies to)

2.  prior crimes or prior acts of misconduct:  used when the misconduct is relevant to prove a material fact other than the character or disposition of the witness to show (KIPPOMIA): knowledge, intent, preparation, plan, opportunity, motive, identity, absence of mistake or accident.  Note:  KIPPOMIA may be excluded if the trial judge believes that the probative value is substantially outweighed by the danger of unfair prejudice.

3.  special rule for cases involving sexual assault and child molestation:  prior similar acts are allowed to show propensity

JUDICIAL NOTICE:  the recognition of a fact as true without formal presentation of evidence

A.  Facts appropriate for Judicial Notice:  courts take judicial notice of indisputable facts that are either matters of common knowledge in the community or capable of verification by resort to easily accessible sources of unquestionable accuracy. 

B.  Procedure:  a party must formally request that notice be taken of a particular fact (may be taken for the 1st time on appeal)

   1.  civil case:  Federal Rules provide that a judicially noticed fact is conclusive in a civil case

Authentication:  a writing is not admissible until it has been authenticated.  Authentication is proof that shows the writing is what the proponent claims it to be.  Proof of authentication:

1.  handwriting verification:  evidence of genuineness by either a nonexpert with personal knowledge or an expert

2.  eyewitness testimony:  testimony of one who sees the document executed or hears it acknowledged

3.  admission by party:  a party against whom the document is offered has either admitted to its authenticity or acted on it

4.  ancient document rule:  may be authenticated if:

   a.  it is at least 20 years old;

   b.  is in such a condition as to be free from suspicion of authenticity; and

   c.  it was found in a place where such a writing would likely be kept

5.  photographs:  admissible only if identified by a witness as a portrayal of certain facts relevant to the issue and verified by a witness as a correct representation of those facts

Non-Hearsay:  the following are not hearsay, and are therefore admissible as substantive evidence:

1.  Admission of a party opponent:  declaration of a party offered against another party (e.g. “I was negligent”; guilty plea)

2.  Verbal acts or legally operative facts:  statements that have a legal significance by virtue of being spoken (e.g. offer; acceptance; bribery; waiver)

3.  Impeachment by a prior statement:  prior under oath statement is inconsistent with declarant’s present in-court testimony

4.  knowledge on the part of the listener:  if knowledge of listener is relevant

5.  Statement offered to show the effect it had on the listener:  when statement offered to show notice, or the reason for action or inaction by the person who heard or read the out-of-court statement

6.  Statement offered to show the declarant’s state of mind:  if offered to show why person did what they did and not to prove the truth of the matter asserted

7.  prior consistent statement:  to rebut a charge of recent fabrication or improper influence or motive

Exceptions to hearsay which require the declarant to be unavailable:  a declarant can be unavailable by (1) privilege; (2) refusing to testify; (3) lack of memory; (4) death or physical/mental illness; (5) absent without leave of the court

1.  statement against interest:  requires that declarant had personal knowledge of thing spoken, and statement was against the declarant’s interest at the time spoken   

2.  dying declaration:  requires statement to be made when declarant believed death was imminent and concern the cause of what the declarant believed to be impending death (note:  for criminal case, declarant must actually die)

Exceptions to hearsay which do not require the declarant to be unavailable:

1.  excited utterance:  statement relating to a startling event made while under the stress of the excitement of the event

2.  present sense impression:  comments made concurrently with the sense impression of an event

3.  state of mind:  statement of declarant’s then existing state of mind, emotion, sensation or physical condition

4.  bodily conditions:  a spontaneous declaration of a present bodily condition is admissible; declaration of past physical condition is usually inadmissible, however, admissible if made to a medical personnel to assist diagnosis or treatment

5.  present intent to do something in the future:  admissible to infer the intended future act was done

6.  documentary exceptions:  no requirement for unavailability for these, either

   a.  past recollection recorded:  if witness’s memory cannot be revived, a party may introduce a memorandum that witness made at or near the time of the event.  Writing itself is not admissible, but must be read to the jury.

   b.  business records:  record must be made in the course of regularly conducted business activity and that it was customary to make the type of entry involved.  (self-serving records prepared for litigation are inadmissible)

   c.  official records:  records setting forth the activities of an office or agency, and recordings of matters observed pursuant to a duty imposed by law (except:  police observations in criminal cases)

   d.  ancient documents:  any authenticated document 20 years old or more, or documents affecting property are admissible

Attorney—Client Privilege:  requires a confidential communication for purposes of legal representation.  Privilege survives death.   No privilege for future crime or fraud.

Husband/Wife Spousal Privilege:  two types of privileges

1.  Spousal Testimonial Privilege:  requires a criminal case; valid marriage at time of trial; holder of the privilege is the witness spouse, not the testifying spouse (note:  protects against any and all testimony)