Evidence

Judicial Notice of Fact

A court may take judicial notice of a fact on its own accord. In instances where the court does not do so, then a party must formally request that notice be taken. Judicial notice may be taken for the first time on appeal. A reviewing court is required to take judicial notice of any matter that the trial court properly noticed or was obliged to notice. Federal Rule 201(f) provides that a judicially noticed fact is conclusive in a civil case but not in a criminal case.

Hearsay

An out-of-court statement offered to prove the truth of the matter asserted. In these examples, you must look at the purpose in offering the evidence. "Statement" includes oral declarations such as when the witness testifies about what someone (including the witness himself) said; writings such as police reports including statements from witnesses; and conduct that is intended to be a substitute for words ("assertive conduct").

Industry Custom

Custom of the industry is admissible to prove the actions of other persons in the same industry in an attempt to show adherence to or deviance from an industry-wide standard of care. In some cases, custom may also be introduced by either party as tending to establish a standard by which reasonable or ordinary care may be judged. However, business routine should be distinguished from industrial custom. Business routine is specific to the business and event in question, and is admissible only to show that a particular event occurred.

Present State of Mind Exception to Hearsay Rule

Declarations of existing state of mind are admissible (i) when declarant's state of mind is directly in issue, or (ii) if they are declarations of intent offered to show subsequent acts of the declarant. This statement would be offered to show the subsequent act of the declarant; i.e., that he actually stayed at home.

Deposition Objections

Failure to make a timely objection to evidence often waives any ground for objection. However, in a deposition, objections as to relevance are not waived if they are not made during the deposition. Objections going to the substance of a question or answer (e.g., relevance, hearsay) can be postponed until the deposition is offered in evidence. Objections to the form of a question, such as leading or compound questions, are waived unless made during the deposition, when counsel would have an opportunity to correct the form of the question. An objection based on a testimonial privilege should also be made during the deposition.

Previous Similar False Claims

If evidence is introduced that the party has made previous similar false claims, such evidence is usually relevant, under a common scheme or plan theory, to prove that the present claim is likely to be false.

Circumstantial Evidence

Indirect and relies on inference. It is evidence of a subsidiary or collateral fact from which, alone or in conjunction with a cluster of other facts, the existence of the material issue can be inferred. For example, a witness testifies, "Don told me he hated Paul."

Admissibility of Duplicates

Ordinarily, it is for the court (i.e., the judge) to make the determinations of fact that govern the admissibility of duplicates, other copies, and oral testimony as to the contents of an original. However, the Federal Rules specifically reserve three questions of preliminary fact for the jury: 1) Whether the original ever existed; 2) Whether a writing, recording, or photograph produced at trial is an original; and 3) Whether the evidence offered correctly reflects the contents of the original.

Relevance

Relevant evidence is concerned with materiality (whether the disputed fact is at issue in the case) and probativeness (whether the evidence makes the existence of the fact more probable or less probable than it would be without the evidence). (Not concerned with the form or manner of the evidence, but rather its substance and content).

Declarations of Past Bodily Condition

The Federal Rules allow declarations regarding the cause or source of the past bodily condition when the cause or source of the condition is reasonably pertinent to diagnosis or treatment.

Business Records Exception to Hearsay

To be admissible, a business record must be made in the regular course of any business, where it was the regular course of such business to make it at the time of the transaction or within a reasonable time thereafter, and it must consist of matters within the personal knowledge of the entrant or within the personal knowledge of someone with a business duty to transmit such matters to the entrant. The record must also have been made at or near the time of the transaction.

Ancient Documents

Under the Federal Rules, statements in any authenticated document 20 years old or more are admissible under an exception to the hearsay rule. (Certain states may have different time requirements, e.g., 30, 10, or 25 years.)

Dying Declarations

Under the Federal Rules, the exception for dying declarations is available only in homicide prosecutions and civil actions. (The traditional view, which is still followed by some states, recognizes this exception only in homicide prosecutions.)

Judge vs. Jury

Under the Federal Rules, the jury decides questions of relevancy of evidence, while the judge decides questions of the competency of relevant evidence. A jury may decide certain preliminary facts regarding authenticity because this issue goes to relevancy.

Criminal Defendant's Withdrawal of Guilty Plea

Under the Federal Rules, withdrawn guilty pleas are never admissible against the criminal defendant who made the withdrawn plea. This is true in both criminal and civil proceedings. The rationale for this rule is that the evidentiary value of a withdrawn guilty plea (e.g., defendant's admission of guilt) is deemed offset by the prejudicial effect of the evidence.

Spousal Immunity

When the privilege of spousal immunity is invoked, a married person whose spouse is the defendant in a criminal case may not be called as a witness by the prosecution, and a married person may not be compelled to testify against his spouse in any criminal proceeding. Spousal immunity may be invoked in criminal cases only.

Evidence of Liability Insurance

Where ownership or control over a property or item is in dispute, evidence that a party had liability insurance on the property or item may be admissible. Also may be admissible when used for the limited purpose of impeaching a witness (e.g., for bias). Not admissible to prove that a party acted intentionally, negligently, or otherwise wrongfully, nor to show that the party is able to pay a substantial judgment.

Evidence of Similar Accidents/Injuries

Where similar accidents or injuries were caused by the same event or condition, evidence of those prior accidents or injuries is admissible to prove that a defect or dangerous condition existed, that the defendant had knowledge of the defect or dangerous condition, and that the defect or dangerous condition was the cause of the present injury. (Not admissible to prove the defendant's carelessness or any other character trait).

Bolstering Witness

A party may not bolster or accredit the testimony of his witness if he merely anticipates that the witness will be impeached. Rather, he may bolster the witness's testimony only once the witness has been impeached. There are exceptions to this rule. In certain cases a party may prove that the witness made a timely complaint, in order to bolster the party's credibility (e.g., a prompt complaint by a rape victim to show that she is telling the truth). Furthermore, evidence of any prior statement of identification made by a witness is admissible not only to bolster the witness's testimony, but also as substantive evidence that the identification was correct.

Burden of Producing Evidence

A party's burden of producing evidence is the burden of introducing sufficient evidence to avoid judgment against her as a matter of law. There must be enough evidence to create a fact question of the issue involved, so that the issue may appropriately reach the jury.

Permissible Inference vs. True Presumption

A permissible inference will allow a party to meet the burden of production, but will not shift the burden to the adversary. In contrast, a true presumption shifts the burden to the opposing party, and a conclusive presumption (which is really a rule of substantive law) cannot be rebutted by the opposing party.

Habit

A person's regular response to a specific set of circumstances (e.g., wearing a seatbelt every time he gets in a car), is considered habit evidence. Habits are specific and particularized and thus may be introduced in circumstances when character evidence would not be permissible.

Presumption

A presumption is a rule that requires that a particular inference be drawn from an ascertained set of facts. It is a form of substitute proof or evidentiary shortcut, in that proof of the presumed fact is rendered unnecessary once evidence has been introduced of the basic fact that gives rise to the presumption. If two or more conflicting presumptions arise, the judge, not the jury, must apply the presumption that is founded on the weightier considerations of policy and logic. There is no automatic application of the presumption most favorable to the defendant.

Establishing a Publication as Reliable

A publication may be established as reliable by: 1) The direct testimony or cross-examination admission of the expert, 2) The testimony of another expert, or 3) Judicial notice.

Leading During Direct Examination

A question is leading and generally objectionable on direct examination when it suggests to the witness the fact that the examiner expects and wants to have confirmed. However, trial judges will usually allow leading questions on direct examination in non-crucial areas if no objection is made: 1) If used to elicit preliminary or introductory matter; 2) When the witness needs aid to respond because of loss of memory, immaturity, or physical or mental weakness; or 3) When the witness is hostile and improperly uncooperative, an adverse party, or a person identified with an adverse party.

Statements of Offers to Settle/Pay Medical Expenses

An admission of fact accompanying an offer to pay medical expenses is admissible. This differs from the rule regarding compromise negotiations, where such admissions are inadmissible if certain requirements are met.

Testimony of Insane

An insane person, even one who has been adjudicated incompetent, may testify, provided he understands the obligation to speak truthfully and possesses the capacity to give a correct account of what he has perceived in reference to the issue in dispute.

Dead Man Acts

Dead Man Acts generally provide that a party or person interested in the event, or his predecessor in interest, is incompetent to testify to a personal transaction or communication with a deceased, when such testimony is offered against the representative or successors in interest of the deceased. The Acts are designed to protect estates from perjured claims. Thus, the bar to competency applies only to civil cases and has no application in criminal cases (e.g., homicide cases).

Marital Communications Privilege

Either spouse (whether a party or not) can prevent any other person from disclosing the confidential communication (or can refuse to disclose the communication). The privilege applies to communications made during the marriage.

Competent Evidence

Evidence is competent if to does not violate an exclusionary rule.

D's Prior Acts of Sexual Assault/Child Molestation

Evidence of a defendant's prior acts of sexual assault or child molestation is admissible in a civil OR criminal case where the defendant is accused of committing an act of sexual assault or child molestation. The party who intends to offer this evidence must disclose the evidence to the defendant 15 days before trial (or later with good cause).

Extrinsic Evidence of D's Other Crimes

Evidence of other crimes or misconduct is admissible if these acts are relevant to some issue other than the defendant's character or disposition to commit the crime charged (e.g., to show motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident) whenever these issues are relevant.

Evidence of Other Crimes/Misconduct

Evidence of other crimes or misconduct is generally admissible if these acts are relevant to some issue other than the accused's disposition to commit the crime charged. 1) Prior misconduct may be admissible as evidence of a motive to commit the crime for which the defendant is accused. 2) For some crimes where intent is at issue, evidence that the defendant committed prior, similar wrongful acts is admissible to establish guilty knowledge and to negate good faith. 3) Evidence that the accused committed prior criminal acts that are so distinctive as to operate as a "signature" to identify him (modus operandi) may be introduced to prove that the accused committed the act in question.

Subsequent Repairs

Evidence of subsequent repairs may by admissible to establish the feasibility of such repairs when such feasibility is disputed.

Subsequent Repairs

Evidence of subsequent repairs performed by the defendant may be introduced to prove the defendant's ownership or control of the product.

Sexual Disposition/Behavior of Alleged Victim (Criminal)

Evidence offered to prove the sexual disposition or behavior of the alleged victim may be admissible in criminal cases only in specific instances, such as where evidence of specific instances of sexual behavior by the victim is offered to prove that a person other than the accused was the source of semen, injury, or other physical evidence, or when specific instances of sexual behavior between the victim and the accused (not with someone other than D) are admissible to prove consent.

Established Business Routine

Evidence that a business or firm had an established business routine is relevant as tending to show that a particular event occurred. Such evidence is not admissible for more general purposes, such as to show that the business is respectable and unlikely to be responsible for the injury in the case.

Accusatory Statement as Admission

For silence to be an admission the following requirements must be met: (i) The party must have heard and understood the statement; (ii) The party must have been physically and mentally capable of denying the statement; and (iii) A reasonable person would have denied the accusation under the same circumstances.

Statements of Personal & Family History Exception

For the exception for statements concerning personal or family history to apply, the declarant must be unavailable for trial. The declarant must be a member of the family in question or otherwise intimately associated with the family. Although most jurisdictions require that the declarant be related by blood or marriage to the family whose history is involved, the Federal Rules have extended this requirement to admit statements by declarants who are so intimately associated with the family that they are likely to have accurate information concerning the matters declared (e.g., the family doctor). The Federal Rules require that the basis of the declarant's statements be either her own personal knowledge of the facts involved or on her knowledge of family reputation.

Physician-Patient Privilege

For the physician-patient privilege to apply, the information must be acquired while the physician is attending the patient in the course of treatment. The privilege does not apply to information obtained by the professional in some other way. In cases where state law does not supply the rule of privilege (i.e., most federal question cases), the federal courts do not recognize any physician-patient privilege.

Defendant's Credibility

If a criminal defendant takes the stand, she puts her credibility in issue and is subject to impeachment. However, the defendant does not put her character in issue merely by testifying, and therefore the prosecution may not introduce evidence of her bad character or criminal propensity to show she acted in conformity with her character and committed the crime charged.

Limiting Evidence

If evidence is admissible for one purpose (or against one party), it is not always excluded because of a danger that the jury will consider it for another incompetent purpose (or against another party). The court may restrict the evidence to its proper scope and instruct the jury accordingly. Evidence is often admissible against one party but not against another. Similarly, evidence may be admissible for one purpose but not for another. In each of these cases, the court (upon timely request) should restrict the evidence to its proper scope and instruct the jury accordingly.

D Putting Character in Issue

If the defendant puts her character in issue, the prosecution may rebut the defendant's character evidence by calling qualified witnesses to testify to the defendant's bad reputation for the particular trait involved. The witness may also testify as to his own personal opinion regarding the trait at issue of the defendant. However, calling another witness to testify about specific acts by the defendant is not allowed. The prosecution may test the character witness by cross-examination regarding the basis for his opinion or knowledge of the reputation that he has testified about (i.e., whether the witness knows of or has heard about specific instances of conduct by the defendant). If the witness denies knowledge of these specific instances of conduct, however, the prosecutor may NOT prove them by extrinsic evidence.

Excluding Relevant Evidence

If the evidence's probative value is substantially outweighed by one of the following, it will be excluded: 1) Danger of unfair prejudice, confusion of issues, or misleading the jury; or 2) Undue delay, waste of time, or needless presentation of cumulative evidence.

Confrontation Clause

If the primary purpose of police interrogation is to enable the police to help in an ongoing emergency, statements made in the course of the interrogation are nontestimonial (e.g., statements made during a 911 call about the identity of the perpetrators in the course of a home invasion).

Common Rebuttable Presumptions

In both criminal and civil cases, every person is presumed sane until the contrary is shown. Where legitimacy is in dispute, the law presumes that every person is legitimate. The mere fact of birth gives rise to the presumption. The presumption is destroyed by evidence of illegitimacy that is "clear and convincing." Proof of ownership of a car gives rise to the presumption that the owner was the driver or that the driver was the owner's agent. (When the property or estate of a missing person is involved, a presumption of death arises only if the person is inexplicably absent for a continuous period of seven years and she has not been heard from by those with whom she would normally be expected to communicate).

Sexual Disposition/Behavior of Alleged Victim (Civil)

In civil cases, evidence of an alleged victim's reputation is admissible only if it has been placed in controversy by the victim. In civil cases involving sexual assault, evidence offered to prove the sexual disposition or behavior of the alleged victim is admissible if it is otherwise admissible under the Federal Rules and its probative value substantially outweighs the danger of harm to the victim and of unfair prejudice to any party.

Authentication of a Writing

In general, a writing may be authenticated by any evidence that serves to establish its authenticity. The Federal Rules do not limit the methods of authentication, but rather list several examples of proper authentication.

Opinion Testimony by Lay Witness

In most jurisdictions and under the Federal Rules, opinion testimony by lay witnesses is admissible when: 1) It is rationally based on the perception of the witness; 2) It is helpful to a clear understanding of her testimony or to the determination of a fact in issue; and 3) It is NOT based on scientific, technical, or other specialized knowledge. This applies to any perceptions of the witness, including things the witness has both seen and heard (but not to things learned from others).

Jury Viewings of a Scene

In the trial court's discretion, jury viewings of a scene are permitted, sparingly, in both civil and criminal cases. The importance of information that could be obtained by a view, and the ease with which photographs, diagrams, or maps could be substituted for such a view, will be pivotal considerations to the trial judge. The trial judge usually need not be present during a jury view (but is not forbidden from attending).

Mandatory Judicial Notice

Judicial notice is mandatory (i.e., the court must take notice without request) for federal public law (e.g., the United States Constitution, federal treaties), state public law (e.g., public state statutes), and official regulations. Most courts may, upon being supplied with sufficient information, take judicial notice of municipal ordinances, private acts or resolutions of Congress and of the local state legislature, or the laws of foreign countries.

D Evidence of Character of Alleged Victim

Once the defendant has introduced evidence of a bad character trait of the alleged victim, the prosecution may counter with reputation or opinion (but not specific acts) evidence of the defendant's bad character for the same trait. (Character evidence is admissible in civil cases only when character is directly at issue in the case, but this rule is not applicable to criminal cases).

Official Records Exception to Hearsay

One requirement of the business records exception is that the record must be made in the course of a regularly conducted business activity. Certain records, however, are found to be prepared "in anticipation of litigation." The Federal Rules have dealt with the problem of records prepared "in anticipation of litigation" by granting the trial court discretion to exclude any business record if the source of information or other circumstances indicate the record lacks trustworthiness. The Federal Rules provide that in a criminal case, the government may use a judgment of a prior felony conviction to prove any fact essential to the judgment, but only against the accused. (The government may still use a judgment of felony conviction against a witness other than the accused for impeachment purposes.)

Self-Authenticating Documents

The Federal Rules of Evidence specifically provide that extrinsic evidence of authenticity as a condition to admissibility is not required as to the following: 1) Domestic public documents that are signed and sealed; 2) Foreign public documents signed by a person authorized by the laws of that country; 3) Certified copies of public records (an uncertified copy would not qualify); 4) Official publications (i.e., books, pamphlets, or other publications purporting to be issued by a public authority); 5) Printed materials purporting to be newspapers or periodicals; 6) Trade inscriptions, signs, tags, or labels purporting to have been affixed in the course of business and indicating ownership, control, or origin; 7) Documents accompanied by a certificate of acknowledgment executed in the manner provided by law by a notary public or other officer authorized by law to take acknowledgments; 8) Commercial paper, signatures thereon, and documents relating thereto, to the extent provided by general commercial law; and 9) Business records certified as such by a custodian or other qualified person.

Best Evidence Rule

The best evidence rule expresses a preference for the original writing. However, secondary evidence of a writing, such as oral testimony regarding the writing's contents, is permitted if it has been shown that the original is unavailable for some reason other than the serious misconduct of the proponent.

Privileges

The federal courts currently recognize three privileges: the attorney-client privilege, the privilege for spousal communications, and the psychotherapist/social worker-client privilege. Note, however, that in civil actions when state law supplies the rule of decision as to an element of a claim or defense, the state law applies with respect to testimonial privileges as well. Thus, in diversity cases, the state law of privilege applies. The federal courts do not currently recognize the physician-patient, professional journalist, or accountant-client privileges.

Admitting a Past Recollection Writing

The foundation for receipt of the writing into evidence must include proof that the writing is accurate (i.e., the witness must vouch for the accuracy of the writing). The foundation must also include proof that: 1) The witness at one time had personal knowledge of the facts recited in the writing; 2) The writing was made by the witness or was made under her direction or was adopted by the witness (i.e., she was involved in the creation of the writing); 3) The writing was timely made when the matter was fresh in the mind of the witness; and 4) The witness has insufficient recollection to testify fully and accurately regarding the event at issue. If the witness on the stand currently remembers the facts contained in the document enough to testify fully and accurately regarding the event, the memorandum will not be admitted as evidence of a past recollection.

Parol Evidence

The parol evidence rule does not bar admission of parol evidence to show that what appears to be a contractual obligation is, in fact, no obligation at all. Thus, evidence is admissible to show that the contract was void or voidable and has been avoided, or was made subject to a valid condition precedent that has not been satisfied. Parol evidence is admissible to show subsequent modification or discharge of the written contract. Parol evidence is not admissible to prove prior or contemporaneous negotiations or agreements. Under the parol evidence rule, such negotiations and agreements are merged into the agreement as written.

Catch-All Hearsay Exception

The statement must have "circumstantial guarantees of trustworthiness." (Does not have to be corroborated by other evidence). The statement must be more probative as to a material fact than any other evidence which the proponent can reasonably produce so that the "interests of justice" will be served by its admission. Finally, the proponent must give notice in advance of trial to the adverse party as to the nature of the statement.

Burden of Proof

The term "burden of proof" encompasses two separate burdens: the burden of producing evidence and the burden of persuasion. 1) The burden of producing evidence is the burden of introducing sufficient evidence to avoid judgment as a matter of law against the party bearing the burden. There must be enough evidence to create a fact question of the issue involved, so that the issue may appropriately reach the jury. 2)The burden of persuasion comes into play after the evidence has been introduced. If, after all the proof is in, the issue is equally balanced in the minds of the jury, then the party with the burden of persuasion must lose.

Inadmissibility of Settlement Negotiations

There must be an indication that a party will make a claim for admissions of fact made in compromise negotiations to be excluded. However, the filing of a lawsuit is not a prerequisite.

Admissible Evidence

To be admissible, evidence must be competent, material, and probative. 1) Material evidence relates to a fact of consequence to the determination of the action. 2) Evidence is probative if it contributes to proving or disproving a material issue. 3) Evidence is competent if it does not violate an exclusionary rule. Credibility is not a requirement of admissible evidence. Credibility may be challenged by the opposing party and ultimately is determined by the fact-finder.

Extrinsic Evidence to Prove Prior Inconsistent Statement

To prove a prior inconsistent statement by extrinsic evidence, certain requirements must first be met. It is not enough that the prior inconsistent statement cast doubt on the witness's credibility. Instead, the statement must be relevant to the case; i.e., it cannot be a collateral matter. Furthermore, the witness generally must be given an opportunity to explain or deny her statement at some point during trial. There are certain exceptions to this foundational requirement. For instance, if the inconsistent statement was made by a hearsay declarant, the declarant may be impeached despite the lack of a foundation.

Judicial Notice of Scientific Test

Trial courts have increasingly taken judicial notice of scientific principles as a type of manifest fact. Once a particular scientific test or principle has become sufficiently well-established (i.e., generally accepted among the scientific community), courts no longer require proof (expert testimony) of the underlying basis of the test. The results of such a test are therefore admissible into evidence.

Writing to Refresh Memory

Under Federal Rule 612, whenever a witness has used a writing to refresh her memorymon the stand, an adverse party is entitled to have the writing produced at trial, to inspect it, to cross-examine the witness thereon, and to introduce into evidence those portions that relate to the witness's testimony.

Expert Testimony

Under Federal Rule 702, expert opinion testimony is admissible if the subject matter is one where scientific, technical, or other specialized knowledge would help the trier of fact understand the evidence or determine a fact in issue. Under Federal Rule 703, the expert may base an opinion upon facts not known personally but supplied to him outside the courtroom, and such facts need not be in evidence or even of a type admissible in evidence, as long as the facts are of a kind reasonably relied upon by experts in the particular field. However, if the facts are of a type inadmissible in evidence, the proponent of the expert opinion must not disclose those facts to the jury unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect.

Admissible Character Evidence

When proof of a person's character, as a matter of substantive law, is an essential element of a claim or defense in a civil action, it is said that character is "directly in issue." Although character is rarely an essential issue in a civil case, character evidence is admissible in such circumstances. Under the Federal Rules, any of the types of evidence (reputation, opinion, or specific acts) may be used to prove character when character is directly in issue.

Direct Evidence

When the very facts in dispute are communicated by one who has actual knowledge of those facts by means of his senses. For example, a witness testifies, "I saw Don hit Paul."

Evidence of Lack of Similar Accidents

Where a defendant seeks to prove that he lacked knowledge of any danger, he may introduce evidence of his safety record and absence of prior complaints. Most courts are reluctant to admit evidence of the absence of similar accidents to generally show absence of negligence.