Evidence Essay Outline 1. Form of the Question a. Leading Question – generally improper on direct examination, however permitted. . . i. on cross-examination ii. to elicit preliminary or introductory matter iii. witness needs aid to respond (loss of memory, immaturity, or physical or mental weakness) iv. witness is hostile b. Compound Question – requiring a single answer to more than one question c. Misleading/Confusing – cannot be answered without making an unintended admission d. Argumentative – contests testimony without seeking information e. Conclusionary f. Cumulative g. Non-responsive Answer h. Unduly Harassing or Embarrassing i. Assumes Facts Not in Evidence 2. Purpose a. Logical Relevance i. Evidence is relevant if it tends to make the existence of any fact of consequence to the outcome of the action more probable than it would be without the evidence. ii. In general, it must relate to the time (proximity to current events), event, or person involved in the present litigation. b. Legal Relevance i. Discretionary Exclusion 1. A trial judge has broad discretion to exclude relevant evidence if. . . a. its probative value is substantially outweighed by the danger of unfair prejudice, b. confusion of issues, c. misleading the jury, d. undue delay, or e. waste of time. ii. Public Policy Exclusion 1. Liability Insurance (encourage insurance) a. Not admissible i. to show negligence ii. or ability to pay a substantial judgment b. Admissible i. to prove ownership or control, ii. to impeach, or iii. as part of an admission 2. Subsequent Remedial Conduct (promote safety) a. Not admissible i. to prove negligence, ii. culpable conduct, iii. a defect in a product or its design, or iv. a need for a warning or instruction. b. Admissible i. to prove ownership or control, ii. to rebut a claim that the precaution was not feasible, or iii. to prove that the opposing party has destroyed evidence. 3. Settlement Offers/Pleas of nolo contendere/Plea Bargains/Withdrawn Guilty Pleas (encourage settlement offers) a. Not admissible to prove liability for, or invalidity of, a claim disputed as to validity or amount. i. Even direct admissions are not admissible. 4. Payment or offer to pay medical expenses (humanitarian motive to pay expenses) a. Not Admissible i. To prove culpable conduct. b. Admissible i. Admissions of fact accompanying offers to pay medical expenses. 3. Presentation a. Competency of Witness i. Required Attributes (personal knowledge and oath) 1. Observe 2. Recollect 3. Communicate 4. Appreciate obligation to speak truthfully ii. Classes 1. Maybe Competent a. Child – depending on capacity and intelligence b. Insanity – depending on appreciation to testify truthfully and capacity for accuracy 2. Not Competent a. Dead Man Act (must be a state law applied under Erie) – A person, or his predecessor, interested (stands to gain by the judgment) in the suit cannot testify against interest of deceased or his estate concerning a personal transaction or communication with the deceased. b. Lack of religious belief c. Conviction of a crime d. Interest in the law suit b. Impeachment – casting an adverse reflection on the veracity of the witness i. A witness may be impeached by any party ii. Bias or Intent (Prejudice) is always admissible to impeach – tends to show a motive to lie iii. Truth, Veracity, Dishonesty 1. Reputation – for untruthfulness 2. Opinion – by a witness who is familiar, opinion of general truthfulness 3. Specific bad acts – only on cross, cannot present extrinsic evidence, stuck with answer. iv. Defects in memory, perception, knowledge v. Conviction of a crime (within 10 years from the date of conviction) 1. Admitted – crimes of dishonesty or false statements 2. Discretion to admit – felonies, if probative value outweighs its prejudicial effect vi. Inconsistent Statements 1. Prior inconsistent statements are usually hearsay, but are admissible to impeach 2. Statements given under oath during a prior proceeding are nonhearsay: they are admissible as substantive proof and impeachment evidence. c. Character Evidence – may be offered as substantive, rather than impeachment, evidence if: i. Civil 1. Evidence of character is generally not admissible if offered solely to establish the conduct of a person in the litigated event. 2. Exceptions a. Habit b. Character in issue by virtue of the case (reputation, opinion, specific acts) i. Defamation ii. Negligent Hiring iii. Negligent entrustment ii. Criminal 1. Evidence of past crimes or misconduct is inadmissible if offered solely to establish a. a criminal disposition or b. bad character. 2. Exceptions a. Admissible if relevant to some issue other than disposition or bad character, including: i. Motive ii. Intent iii. Mistake (absence of mistake or accident) iv. Identity v. Common Scheme or Plan b. Open door rule by D i. Defendant 1. Witness testimony of D’s good reputation, and 2. opinion concerning D’s character. ii. Prosecution 1. May then cross W concerning specific bad acts within scope of direct (must stick with answers) 2. May call qualified witnesses to testify concerning a. D’s bad reputation, or b. opinion concerning D’s character. c. Prosecutions for sexual assault or molestation 3. Evidence of Victim’s bad character trait offered by D to show D’s innocence a. D i. Reputation ii. Opinion b. P i. Victim’s good character 1. Reputation 2. Opinion ii. D’s bad character concerning same trait 1. Reputation 2. Opinion d. Opinion testimony i. Lay 1. opinion would be helpful to trier of fact, 2. opinion is based on the perception of the witness, and 3. subject is within ordinary understanding of a lay person a. weather b. temperature c. speed d. intoxication e. sanity f. handwriting g. distance ii. Expert 1. opinion would be helpful to a trier of fact 2. opinion is based upon matters upon which an expert might reasonably rely 3. expert is qualified based on education, training, or experience e. Judicial Notice i. Court takes recognition of a fact as true without formal presentation of evidence ii. FRE – indisputable facts that are 1. matters of common knowledge in the community or 2. capable of verification by resort to easily accessible sources of unquestionable accuracy. 4. Hearsay a. Rule: Out of court statement by declarant offered into evidence to prove the truth of the matter asserted in the statement. b. Exceptions/Nonhearsay i. Nonhearsay 1. Verbal acts or legally operative facts (e.g., words of contract, defamatory words) 2. Statements offered to show their effect on the hearer or reader (e.g., warnings, accusations) 3. Statements offered as circumstantial evidence of a declarant’s state of mind (e.g., evidence of insanity or knowledge) 4. Admissions – a statement by a party against that party at trial. a. Vicarious – statement by agent within scope of and during employment b. Party opponent c. Co-conspirator d. Adoptive – silence where a reasonable person would speak ii. Unavailability Exceptions (exempt by privilege, refuses to testify, lack of memory, death or physical or mental illness, or absent (beyond reach of subpoena)) 1. Dying Declaration a. A statement made while believing death is imminent, b. concerning the cause or circumstances of the impending death, c. by declarant in a homicide or civil action, d. unavailability of declarant. 2. Statement against interest a. A statement by declarant adverse to pecuniary, penal, or proprietary interest b. at time statement was made, c. unavailability of declarant. 3. Former testimony a. Statement made under oath at same or different proceeding, b. opposition had a motive and opportunity to develop testimony (cross-examine), c. unavailability of declarant. iii. Documentary Exceptions a. Authentication – proof that a “writing” is what the proponent claims it is (sufficient to support a jury finding of genuineness) b. Best Evidence Rule – original “writing” (duplicates, recordings, and photos included) must be submitted if its terms are material. i. Rule not applicable 1. Facts to be proved exist independent of writing 2. Writing is collateral to litigated issues 3. Summaries of voluminous records 4. Public records ii. Secondary Evidence – if original is unavailable, secondary evidence (oral, notes, handwritten copies) of the writings contents may be offered if satisfactory excuse for nonproduction (unless authenticity of original is in dispute): 1. lost or destroyed, 2. with a third party outside the jurisdiction, or 3. adverse party fails to produce iii. Recorded Recollection iv. Present Recollection Refreshed (not admitted into evidence) 2. Business Records a. Writing made in the regular course of business (e.g., hospital diagnosis, but not cause of injury) b. consisting of matters within the personal knowledge c. of one with a business duty to transmit d. and entry made at or near the time of the transaction or event. 3. Recorded Recollection a. Witness at one time had personal knowledge of the facts in the writing b. writing was made by, adopted by, or made under direction of witness, c. writing was timely made d. writing is accurate e. witness has insufficient recollection to testify fully and accurately. 4. Official Records 5. Ancient Documents a. At least 20 years old, b. in a condition free from suspicion as to authenticity, c. found in a place where such writing would likely be kept. iv. Reliability Exceptions 1. State of Mind (usually used to show intent) a. Statement offered as direct evidence b. of then-existing state of mind, c. emotion, d. sensation, e. or physical condition. 2. Excited Utterance a. A startling event, b. statement made while under the stress of excitement c. relating to the startling event. 3. Present Sense Impression a. Statement made concurrently with a sense impression of an event. b. There is little time for a calculated misstatement, contemporaneous nature of statement makes it reliable. 4. Declarations of Physical Condition a. Present Bodily Condition – admissible b. Past Bodily Condition – normally not admissible, unless during medical exam for purpose of diagnosis or treatment. v. Other Exceptions 1. Learned Treatises 2. Documents Affecting Property Interests – Deeds, wills, etc. 3. Reputation – character, personal or family history, land boundaries, 4. Family Records – family Bibles, jewelry engravings, tombstones, etc. 5. Market Reports – generally relied upon by the public or professionals. 6. Federal Catch-All Exception a. Statement possesses circumstantial guarantees of trustworthiness, b. statement is strictly necessary, and c. notice given to adversary as to the nature of the statement. 5. Privileges a. Patient-Physician Privilege i. Rule: 1. Professional relationship exists, 2. information shared during course of treatment, 3. information is necessary for treatment. ii. Privilege does not apply: 1. patient puts his physical condition in issue (personal injury suit) 2. physician’s assistance sough to aid wrongdoing (commission of a crime or tort) 3. dispute between physician and patient (regarding breach of duty) 4. patient agreed by contract (insurance policy) 5. federal law b. Attorney Client Privilege i. Rule: 1. Attorney-client relationship 2. confidential communication. ii. Client holds privilege iii. Privilege applied indefinitely iv. Privilege does not apply:’ 1. attorney’s services for crime or fraud 2. parties claiming through same deceased client 3. dispute between the attorney and the client 4. attorney acts for both clients c. Martial i. Spousal Testimonial Privilege 1. criminal, 2. may not testify, 3. individual privilege, 4. must be married at time of testimony ii. Confidential Marital Communications 1. criminal or civil, 2. either may prohibit testimony, 3. married at time of confidential communication 4. made in reliance of intimacy of marriage. d. Waiver – failure to raise privilege is waiver.