Evidence

EXCLUSION of relevant evidence for policy reasons. What evidence?

1. Liability insurance inadmissible to prove culpable conduct (anything else is ok)

2. Subsequent remedial measures inadmissible to prove culpable conduct (and FRE: that design was defective). Admissible for all else, including to rebut defense of no feasible precaution

3. Settlements, offers to settle and pleas inadmissible inc. statements in conjunction with them (CA: mediation too)

4. Payment or offers to pay medical expenses: inadmissible to prove fault, but related statements admissible (except in CA, where also inadmissible!)

5. Offers to plea and related statement: inadmissible in FRE and CA

Habit evidence is admissible to show:

person acted in accordance with the habit on the occasion in question

Admissibility of Def's character evidence in civil case:

Inadmissible to prove conduct except in sexual assault and child molestation cases (i.e., prior acts of such admissible to show here)

Admissible where character is in issue (defamation, negligent entrustment, child custody) > all three types admissible (opinion, reputation, specific acts)

Admissibility of Def's character evidence in criminal cases:

1. Pros can't intro character evidence first. Def has to open the door (except sexual assault and child molestation)

2. if Def opens door by introducing evidence of his character, Pros may rebut using evidence of Def's character (specific acts on cross only)

NOTE: FRE allows Pros to be first to offer evidence of Def's character where Def has raised issue of V's character)

Admissibility of V's character evidence in criminal cases:

Same rules apply as for Def, i.e. Def must open the door

FRE: in homicide case, if Def offers evidence that V attacked first, Pros may intro evidence of V's character for peacefulness

When is evidence of V's character admissible under the rape shield statute?

Criminal:
1. reputation and opinion inadmissible
2. specific instances admissible only to show i) 3rd party is source of semen or injury, and ii) prior acts of consensual sex b/w Def and V

Civil: reputation, opinion and specific acts admissible if probative value outweighs unfair prejudice

What is MIMIC?

Specific acts of Def's bad conduct that are admissible to show anything other than character:

Motive, Intent, Mistake, Identity, Common plan or scheme

*Judge can still balance probative value

4 Reqs for competent witness:

1. Personal knowledge: perceived facts w/ own senses
2. Present recollection
3. Communication
4. Sincerity

5 Reqs for recorded recollection refreshed:

1. W once had PK of facts
2. Doc was made by W or under his direction or adopted by W
3. Doc was written or adopted when facts were fresh in W's memory
4. Doc was accurate when made
5. W now has insufficient recollection to testify as to the matters in the document

Admissibility of lay opinion:

Only if rationally based on W's perceptions and helpful to the jury.

*no scientific knowledge (expert), but ok for: speed of car, sanity, intoxication, emotions, value of W's property

5 Reqs for admissibility of expert opinion:

1. Helpful to jury
2. W must be qualified
3. W must believe in opinion to reasonable degree of certainty
4. Opinion must be supported by a proper factual basis
5. Based on reliable principles that were reliably applied

Expert reliability principles

FRE: Daubert/Kumho standard:
i) publication/peer review
ii) error rate
iii) results are tested and there is ability to retest
iv) reasonable level of acceptance

CA: Kelley/Frye: opinion must be based on principles generally accepted by experts in the field

Learned Treatise Exception

Fill in

Admissibility of prior inconsistent statement by W

Admissible to impeach

Inadmissible to show truth of statement unless in a deposition or trial (it's hearsay otherwise)

*foundation requirement: W must be given chance to explain or deny

Admissibility of evidence of W bias, interest, motive to impeach W:

Admissible but foundation requirement of letting W explain or deny

Impeachment with conviction for crime involving false statement:

all convictions for crimes of false statement (perjury, forgery, fraud) are admissible unless older than 10 years (then balance)

Impeachment with conviction for crime not involving false statement:

may be admissible to impeach if felony, but court may balance. Misdemeanors inadmissible to impeach.

Impeachment w/ reputation and opinion regarding truthfulness

Extrinsic evidence admissible for impeachment

Hearsay Definition:

Out of court statement offered to prove the truth of the matter asserted in that statement

NOT hearsay when:

The statement:

1) has independent legal significance
2) offered to show effect on listener
3) offered to show speaker's knowledge of facts stated
4) is circumstantial evidence of state of mind

4 Exemptions to hearsay (not hearsay at all)

1. Admission by party opponent: statement by a trial party, offered by the opponent

2. Prior inconsistent statement given under oath (trial or deposition)

3. Prior consistent statement offered to rebut charge f recent fabrication or improper influence or motive

4. Statement of identification of person made after perceiving that person

10 Hearsay exceptions:

1. Former testimony (dec unavail)
2. Declaration against interest (dec unvail)
3. Dying declaration (dec unavail)
4. Excited utterance (dec ok)
5. Present sense impression (dec unavail)
6. Declaration of then existing physical or mental condition (dec ok)
7. Statement of past or present mental or physical condition made for medical treatment (dec ok)
8. Business records (dec ok)
9. Public records (dec ok)
10. Judgment of previous condition (dec ok)

Declaration against interest exception:

Hearsay statement admissible if it was against financial interest of OCD or would have subjected OCD to criminal liability

Public records exception:

hearsay admissible if one of:
i) record describes activities of office
ii) record describes matters observed pursuant to duty imposed by law
iii) record contains factual findings resulting from investigation made pursuant to authority granted by law

*Pros cant use 2 and 3 in criminal case