TEST:

1) Does it tend to prove or disprove a material fact?

2) Does the probative value of the evidence substantially outweigh its risk of unfair prejudice, confusing the jury, mislead the jury, waste time, delay, or is it needlessly cumulative? 

(Court's discretionary exclusion based on these factors).  

Subsequent Remedial Measures

Settlement Offers and Withdrawn Guilty Pleas

Offers to Pay Medical Expenses

Evidence of Liability Insurance

Evidence of routine practice of a person or organization is relevant to prove that conduct on a particular occasion was in conformity with the habit or routine practice.  

Distinguish from Propensity Evidence

General Rule: Not allowed b/c too prejudicial

Civil- not unless character is directly at issue- defamation

Criminal- not unless Defendant opens the door

Admissible when it is directly in issue: Reputation in Community, Witness's opinion who knows person, specific bad acts.  

1. Prosecution can cross examine witness, but not offer independent evidence of past misconduct

2. Call witnesses to counter character witnesses

D can introduce reputation or opinion evidence of a bad character trait when relevant to show innocence.  

Prosecution can then counter with evidence of victim's good character or evidence of D's bad character for same trait (violence in a self-defense case).  

No past sexual history information, unless to show past consensual encounters, that someone else is source of semen, another person caused injury, Prior False Claims (character for truthfulness)  

Specific Acts of Misconduct

MIMIC

Inadmissible if offered to show a criminal disposition or bad character-propensity

Admissible if independently relevant for:

Motive

Intent

Mistake (absence of)

Identity

Common Plan or Scheme

(also opportunity, knowledge, preparation)

Evidence must be sufficient to show D committed prior act, and probative value must not be substantially outweighed by its risk of unfair prejudice

Rape, child molestation- admissible if so disclosed 15 days prior to trial.  

Should be accompanied by D's request for a limiting instruction.  

Recognition of fact as true without formal presentation of evidence.  

Indisputable facts or common knowledge- jury can accept or reject in a criminal case, binding in civil. 

Court can do by itself or at request of parties.  

Objects, Documents, Writings, Voice

Must be relevant and competent, also:

Authenticated

By a witness that recognizes it as what it is claimed to be 

Evidence held in a substantially unbroken chain of possession

If condition is important, must be substantially the same at trial.  

Authentication must be sufficient to show a reasonable juror that evidence is genuine.  

Relevant and Competent

Authenticated

By stipulation

By admission or acts of other party

Eyewitness Testimony

Handwriting Verifications

Self-Authenticating- certified copies of public records, official publications, commercial paper, certified business records

Photos- need witness or photographer

X-Ray- requires specs and custody 

to prove terms of the document, must have original (photocopies count).  Secondary reproductions only admissible if original is unavailable by:

Loss or destruction of original

3rd party has original outside jurisdiction of ct

In possession of adversary and fails to respond to request for.  

Ct decides admissibility, jury decides if evidence offered reflects contents of the original.  

When ct finds an agreement to be an integration, evidence of any prior writings or oral communications are inadmissible except to show:

explaining ambiguous terms, nonconflicting additional terms, mistakes, or to show voidable.  

Competency, Capacity to:

1. Observe

2. Recollect

3. Communicate

4. Appreciate obligation to speak truthfully

a. Witness must have personal knowledge

b. Declare he will testify truthfully

Using A Writing to Refresh Witness' Memory

Cannot be an exhibit (can be in WI), but cross examiner has right to review and impeach

 Insufficient memory to testify fully and accurately, and:

1. Witness had personal knowledge at one time, and,

2. Writing is accurate,

3. was timely made when memory was fresh, and

4. was written or adopted by Witness

Generally Inadmissible, except when:

1. Rationally based on a witness' perceptions

2. Helps to clarify a fact in issue

3. Not based on specialized knowledge

1. Voice handwriting recognition,

2. Sensory perceptions

3. Observations on condition of a person

4. Whether behavior was rational or irrational

5. Value of own services

6. Level of Intoxication

7. Speed of an object

8. State of emotion

Expert Testimony

Daubert (TAPE)

or Helpfulness (WI) Considering Daubert Factors

Tested theory

Acceptance, generally by scientific community

Peer reviewed, published

Error rate

Qualified based on Special SKEET

Skills, Knowledge, Experience, Education, Training

Where specialized knowledge would assist trier of fact. 

Opinion is reasonably reliable on the issue, and

supported by proper factual basis, based on:

1. Personal Observations

2. Facts made known to expert at trial

3. Facts of type reasonably relied upon by experts in the particular field.  

4. Hypotheticals

Can testify to ultimate issue in a case, except cannot say whether Def had requisite mental state in criminal case, provide legal conclusions?, or about lying of another.  

Use of texts:

When on the stand, can read relevant excerpts into evidence, but not received as exhibit.  (hearsay exception)

Attorney/ Client

Spousal Privilege-only during marriage- witness spouse can elect not to testify, all communications are privileged (either can invoke)

Psychotherapist/ Social Worker

(WI) Dr./ Patient

Privilege belongs to the client, is only person that can waive privilege.  No privilege when client uses attorney to aid in commission of crime.  

Failure to claim, 

Voluntary disclosure, 

Expressed consent for other to disclose

Eavesdroppers- if presence known, privilege waived.  If presence unknown, and no negligence by either party, privilege remains and eavesdropper prohibited from testifying

By judge's order or by request of either party, witnesses can be excluded from courtroom.  

Cannot exclude:

1. A party or designated officer of a party

2. Person whose presence is crucial to presentation of case

3. Statutorily authorized person

Leading Questions for Background Information, where to assist develop testimony, disability, or HAW:

1) Hostile, 2) Adverse, 3) Witness for Opponent

Leading Questions ok (no guaranteed right) 

Scope- limited to topics of direct and reasonable inferences that can be drawn from it

Collateral Matters-bias, credibility, interest @ ct's discretion.  

(EXCEPT-WI) Scope can extend to anything relevant, to extent:

1) Convenient to Witness,

2) Of Limited time,

3) Not confusing to jury.  

Failure to object is considered a waiver

General Objections- if overruled, will be upheld on appeal unless evidence was inadmissible for all circumstances and purposes.  If sustained, will be upheld on appeal if there was any ground for objeciton.  

Specific Objections- sustained will be upheld on appeal only if stated ground was correct or if the evidence was not competent and could not be made so.  

If court rejects evidence, losing party should make offer of proof to preserve a record for appeal

Cannot accredit or bolster the testimony of a witness until impeached, anyone can impeach if:

1. Party is adverse party or identified with AP

2. Hostile and affirmatively uncooperative

3. Party is required by law to call

4. Surprise harmful testimony

Can be impeached by cross exam or by extrinsic evidence, BUT for foundation:

Must give witness opportunity to explain or deny their statements, actions.

Sensory Deficiencies

Bias Or Interest

Any crime involving dishonesty- ct must admit

Others: ct has discretion to exclude felony convictions if:

1. Witness is a criminal Def and Pros has not shown that probative value outweighs unfair prejudice

2. All other witnesses- court determines that conviction's probative value is substantially outweighed by prejudicial effect.

Rarely if ever usable if:

Older than ten years

Juvenile Convicition

Pardoned.  

Questioned if probative of truthfulness, veracity for truth.  

Cross Examiner MUST inquire in GOOD FAITH.  

No extrinsic evidence of bad acts can be admitted

Impeaching witness can be called to refute a witness' character for truth and state opinion about witness, but not about prior bad acts.  

1. Bias, Prejudice, Interest, Motive

2. Perception Deficiencies, Disability, Memory

3. Specific Contradiction on Material Issue (extrinsic evidence allowed)

4. Prior Inconsistent Statements (extrinsic evidence allowed once allowed opportunity to explain, deny)

5. Character for Truth, Veracity (no specific acts, just opinion)

6. Dishonesty- specific acts (w/ a good faith basis, no extrinsic evidence allowed)

7. Prior conviction- last ten years, felony or dishonesty only.

8. If good character witness offered, they can be cross examined about knowledge of specific acts in good faith, no extrinsic evidence.  

Any out-of-court statement made by someone other than declarant in court, offered as evidence to prove truth of the matter asserted.  (oral, written, or assertive conduct)

All hearsay that is not covered by a specific exception must be:

1. Trustworthy

2. Strictly necessary

3. Notice is given to adversary as to nature of statement

1. Legally operative- K language or defamatory statements

2. Statements offered to show effect on reader, notice in a negligence case

3. Circumstantial evidence of state of mind (to show intent, malice, reckless)

1. Prior statements by testifying witness

(Inconsistent, Consistent, Idenitfication)

2. Admissions by party opponent

(In previous case, informally, or Adoptive)

3. Vicarious Admissions

(authorized spokesperson, agent within scope of duties, co-partners, co-conspirators, Joint tenants)

Adoptive Admissions

Silence

Where reasonable person would have responded and denied, and:

Party heard and understood statement

Capable of denying statement

NOT IN A CRIMINAL CASE

Hearsay Exceptions

28

23 Regular

5 When Witness Unavailable

1. Present state impression,

2. Excited utterance,

3. Current State of Mind,

4. Physical State,

5. Past recollection recorded,

6. Biz Records,

7. Absence of Biz Records,

8. Public Records,

9. Absence of Public Records,

10. Family Records,

11. Ancient Docs,

12. Commercial Publications,

13. Learned Treatises,

14. Vital Statistics,

15. Church Records,

16. Marriage, Birth, Certs.,

17. Property Records,

18. Statements in Property Records,

19. Personal, Family Reputation,

20. Boundaries, General History

21. Character Reputation,

22. Previous Convictions-Judgment,

23. Judgments on personal, family, general history

Hearsay

When Declarant Can't Competently Testify

Due to: Death, Beyond reach of subpoena power, refuses to testify, privilege (from testifying), Lack of Memory

1. Dying Declarations, 

2. Former Testimony (under oath, same Subject Matter)

3. Statements against interest

4. Personal or family history (close to family)

5. Intentional Unavailability (hiding or whacking witnesses)