Evidence (Midterm)

Pretrial, Jury Selection, Opening Statements, Witness Sequestration, Plaintiff’s Case-in-Chief, Defendant’s Case-in-Chief, Plaintiff’s Rebuttal and Defendant’s Surrebuttal, Motions for Preemptive Judgment, Closing Arguments, Jury Instructions, Jury Deliberations/Verdict

They can only describe what the evidence will show.

Separating witnesses so they do not hear each other’s testimony; exceptions include parties and expert witnesses.

Prove the prima facie case to avoid judgment as a matter of law before the defendant’s case.

After the plaintiff or prosecution meets its burden of production, the defendant may optionally present a case-in-chief.

Plaintiff may offer evidence to rebut or discredit defense evidence/witnesses; defendant may offer evidence only to defend their evidence or witness.

When the judge believes that no reasonable jury could find for a party even if that party met its burden of production.

Plaintiff first, then defendant, then plaintiff’s rebuttal.

The Federal Rules of Evidence (FRE), federal statutes, the Constitution, and Supreme Court rules; FRE codified much of common law and errs on admissibility.

All relevant evidence is admissible unless excluded by the Constitution, federal statute, these rules, or SCOTUS rules.

From Chambers v. Mississippi: a defendant has a right to present highly reliable evidence that is critical to an effective defense.

Leading, calls for a narrative, non-responsive answer, assumes facts not in evidence, argumentative, harassing the witness, compound question, vague/ambiguous/confusing, misstates the evidence, asked and answered/cumulative, calls for speculation, no foundation.

The standard of proof required and allocation of the risk that the fact-finder will not be persuaded to that degree.

The judge’s determination whether a party has produced enough evidence to merit continuing the case (i.e., submission to the jury).

The burdened party must present sufficient evidence to show a reasonable jury could find for it; need not prove the case but must meet production standard.

Preponderance of the evidence, clear and convincing evidence, and beyond a reasonable doubt.

Essentially 50% + 1; tipped “ever so slightly.”

A middle ground standard without a precise definition; higher than preponderance, lower than beyond a reasonable doubt.

No precise definition in rule; generally a very high standard just below absolute certainty required in criminal cases.

General: evidence introduced such that a reasonable juror could find the ultimate facts by the applicable burden; includes secondary rules like single witness, circumstantial evidence rules, disbelief of opposing witness rule, waiver by introducing evidence, no directed verdict against criminal defendant rule, occasional corroboration requirements.

Generally, a single witness’s testimony, if believed by the factfinder, is sufficient to establish a fact, but exceptions (treason, uncorroborated confessions, accomplice testimony, etc.) exist.

Adjudicative facts “not subject to reasonable dispute” that a court may recognize without formal proof.

Not subject to reasonable dispute; generally known or easily verifiable within the court’s jurisdiction; source’s accuracy cannot reasonably be questioned; can be taken at any point; parties have a right to be heard; civil jurors must accept noticed facts while criminal jurors may accept them.

Adjudicative facts concern parties/specific events; legislative facts are general facts courts use in lawmaking or policy reasoning.

Judicial notice may be taken of facts of common knowledge or verifiable by authoritative sources, but parties must be notified and allowed to be heard if the fact is not of general common knowledge.

A rule that establishing one fact legally establishes the existence of another fact (if X true, then Y true).

A rebuttable presumption which, if not rebutted, is deemed conclusive and the jury is instructed the presumed fact is true.

(1) Offer evidence meeting burden of production for foundational facts; (2) jury decides if foundational facts are true; (3) opposing party may offer proof to rebut the presumed fact.

No evidence; rebut foundational facts only; rebut presumed fact only; rebut both foundational and presumed facts.

Thayer: shifts burden of production; Morgan: shifts burden of persuasion as well.

Evidence to rebut the presumed fact itself “bursts the bubble,” requiring the jury to find against the presumed fact even if foundational facts remain true.

Evidence rebutting the presumed fact shifts the burden of persuasion as to the presumed fact to the party who invoked the presumption.

Apply the presumption founded on weightier policy and logic; if neither satisfies, disregard both presumptions.

FRE 301 and FRE 302.

Unless a federal statute provides otherwise, the party against whom a presumption is directed has the burden of producing evidence to rebut the presumption, but the burden of persuasion remains with the original party.

State law governs the effect of a presumption regarding a fact for which state law supplies the rule of decision in federal diversity cases.

In a will contest, the burden of proof on undue influence remains on the contestant throughout trial; Rule 301 is a default subject to statutory exceptions.

In re Winship requires proof beyond a reasonable doubt on every element; permissive presumptions may be constitutional if they don't usurp the factfinder’s role, while mandatory presumptions are generally unconstitutional (Ulster County, Sandstrom, Francis).

Evidence that has any tendency to make a fact of consequence more or less probable than without the evidence.

Relevance is binary — evidence either is or is not relevant.

Whether the fact the evidence tends to prove is an issue in the case (i.e., whether it is a fact of consequence).

The degree to which evidence makes a material fact more or less probable; exists on a scale from strongly probative to weakly probative.

Balance probative value against prejudicial counterweights (unfair prejudice, confusion, waste of time, emotional appeal, etc.) and may exclude relevant evidence if prejudice substantially outweighs probative value.

Abuse of discretion.

Evidence such as matching blood type may be admissible unless its potential prejudice outweighs probative value.

Courts can consider other available evidence in conducting the prejudice-versus-probative-value balancing.

A court may exclude evidence only if its probative value is substantially outweighed by unfair prejudice; prejudice must be actually unfair.

An erroneous admission/exclusion must be prejudicial and affect substantial rights to be reversible; courts examine factors like trial length, closeness, materiality, prejudicial effect, instructions, corroboration, cumulative nature, and counsel’s reliance.

If one cannot say with fair assurance that the judgment was not substantially swayed by the error, the error is not harmless.

Subject to harmless-beyond-a-reasonable-doubt standard per Chapman v. California.

Violations of Amendments 4, 5, 6, and 14; rights to impartial jury and counsel; confrontation rights.

Evidence may be admissible for one specific purpose but inadmissible for others; the jury should be instructed on limited use.

When evidence is admissible for one purpose but not another, the court should give a limiting instruction on how the evidence may be used.

Generally irrelevant to liability except in exceptional circumstances (creditor/debtor issues, damages, motive in limited cases).

Evidence that a person was or was not insured against liability is inadmissible to prove negligence or wrongdoing but may be admissible for other purposes like ownership, control, bias, or agency.

Using settlement offers/statements made in compromise negotiations to prove the validity, invalidity, or value of a claim; also generally inadmissible for impeachment per 2006 clarification.

Statements to public officials used in subsequent criminal proceedings; settlement of undisputed claims; business negotiations (non-compromise); statements that are the subject of the action; evidence offered for other purposes such as bias or delay.

Plea negotiation statements are inadmissible against the accused in criminal and civil cases; withdrawn guilty pleas inadmissible; non-withdrawn pleas admissible as ordinary admissions; no contest pleas inadmissible in both.

Defendants may waive protection against plea evidence.

No official rule for or against; some argue FRE 402/403 may bar use against the prosecution.

Evidence of paying medical expenses is inadmissible to prove liability, though it may be admissible for other purposes such as mitigation of damages.

Apologies are generally admissible unless barred by specific state “apology statutes” that exclude them for policy reasons.

Actions taken after an incident (repairs, remedial or precautionary measures) are inadmissible to prove negligence or fault, but admissible for other purposes (ownership/control, feasibility, causation, impeachment, etc.).

To show ownership/control, explain exhibits, show feasibility of precautions, causation, punitive damages issues, or to impeach.

Common law governs claims of privilege in federal courts unless the Constitution, a federal statute, or court rules provide otherwise; in civil cases state law governs privileges where state law provides rule of decision.

The holder of the privilege (e.g., the client for attorney-client privilege).

The burden of proving the privilege applies rests with the party asserting it.

Privilege against self-incrimination protecting a witness from testimony that could incriminate them; applies to questions and answers, only protects against criminal prosecution, is personal to the witness, and applies only to testimony (not other acts).

Privilege against adverse spousal testimony (control shifted under Trammell to witness-spouse) and privileges concerning out-of-court statements with varying rules on holder and waiver.

It shifted control of the privilege to the witness-spouse (rather than the defendant spouse) in many contexts.

Physician/psychotherapist communications for diagnosis/treatment are generally confidential and inadmissible; Jaffee v. Redmond recognized psychotherapist privilege for diagnosis/treatment communications.

Generally protects journalists from revealing sources and sometimes work product/notes; recognized in many states and some federal courts.

State secrets privilege, executive privilege, informer’s privilege, and various statutory privileges.

Protects materials prepared in anticipation of litigation from discovery or being used against a party; related to but distinct from attorney-client privilege.

Legal advice sought; from a professional legal adviser in that capacity; communications made for that purpose; made in confidence; by the client; permanently protected unless waived.

Applies if legal advice was sought from a prospective lawyer; communications to prospective counsel for legal advice can be privileged.

Presence of unnecessary third parties destroys privilege; permissible third parties include agents necessary to facilitate communication (secretaries, interpreters, investigators) and courts often uphold privilege if client reasonably believed confidentiality and presence was necessary.

Communications to a lawyer for joint clients are privileged against outsiders but not privileged between the joint clients if they later become adversaries.

Historically privilege survives if an outsider overhears without consent provided reasonable precautions were taken.

The lawyer (or prospective lawyer), lawyer’s staff, and outside experts hired to assist the lawyer if communications are for preparing legal advice.

If the expert is hired to help give legal advice (not hired to testify), communications may be privileged; if hired to testify as a witness, usually not privileged.

Communication must be made for the purpose of securing legal advice; dominant purpose test applies for mixed communications.

By putting material in issue, intentional disclosure, or inadvertent disclosure under some circumstances.

The fact of employment, the client’s identity, and payment of fees (unless disclosure would reveal confidential communications or incriminate the client).

Communications seeking aid or advice in furtherance of a present or future crime are not privileged.

A judge may, upon proper showing, examine allegedly privileged materials in camera to determine whether they are privileged.

Generally yes; privilege is held by the client’s estate or successor in interest and survives the client’s death.

Attorney-client privilege survives the client’s death even in criminal investigations of the decedent’s conduct.

An extrajudicial disclosure not later used in judicial proceedings does not waive privilege as to undisclosed portions of the communication.

Priest-penitent, parent-child (rare), accountant-client (in some states but not federal), and other statutory privileges.

In diversity cases, state privilege law applies; in federal-question cases, federal common law (Rule 501) governs privilege.

Preservation of evidentiary objections, error preservation for appeal, and requirements for making the record clear for appeal.

Pretrial motions to exclude or admit evidence; rulings may be final or require renewed objection at trial depending on court practice.

To appeal a denial of a motion in limine to prohibit impeachment with prior convictions, the defendant must testify and be impeached with those convictions to preserve the issue for appeal.

A defendant waives a pretrial objection by testifying to the subject on direct examination (e.g., testifying to the conviction).

When an objection is sustained, the proponent must make an offer of proof (narrative or Q&A) to show the natureelevance/substance of the excluded evidence for the record.

Preliminary questions of admissibility decided by the judge, who may use a preponderance standard and may use inadmissible evidence to decide.

Conditional relevance: when evidence’s relevance depends on whether a fact exists, proof sufficient to support a finding of that fact must be introduced; the court may admit evidence conditionally pending later proof; the judge may not use inadmissible evidence to determine the conditional fact.

Everyone is competent to be a witness unless rules provide otherwise; federal rules apply in federal cases; state law may govern in civil cases where state law supplies rule of decision.

Mental handicap considerations, Dead Man’s Statute, child competency issues where state substantive law governs, and racist juror exception for juror testimony under Pena-Rodriguez.

If a juror makes a clear statement showing reliance on racial bias in reaching a verdict, an exception to the no-impeachment rule allows jurors to testify about deliberations to determine bias affecting impartiality.

The judge presiding at a trial may not testify as a witness at that trial.

A juror is generally not competent to testify about statements made or incidents that occurred during jury deliberations (including post-trial), but juror testimony is permitted about extraneous prejudicial information, outside influences, mistakes in entering the verdict, and racial bias (per Pena-Rodriguez v. Colorado).

Witnesses must take an oath or affirmation to testify truthfully before testifying.

Witnesses must have personal knowledge of the matters they testify about, proven by their own testimony or other evidence.

Lay opinion testimony must be rationally based on perception, helpful to understanding/determining facts, and not based on scientific, technical, or specialized knowledge.

Fact testimony, lay opinion, expert testimony.

Rock v. Arkansas held an absolute ban unconstitutional; listed factors for reliability and allowed courts to admit such testimony with safeguards.

Expert testimony is admissible if based on sufficient facts/data, reliable principles/methods, and the witness applied them reliably to the facts.

Expert scientific testimony admissible if generally accepted in the relevant scientific community.

Expert evidence must be reliable, tested, subject to peer review, have standards/controls, known error rate, and be generally accepted.

Exclusion of expert evidence reviewed under abuse of discretion standard.

Extended Daubert’s reliability requirements to all expert testimony, not just scientific.

Daubert applies to nonscientific testimony (factual basis, method, application must be reliable).

Facts/data they personally observed, presented in court, or reasonably relied upon by experts in the field (even if inadmissible).

Experts may state opinions and reasons without first disclosing underlying facts/data, but must disclose them on cross-examination if asked.

Probabilities testimony can mislead the jury; court excluded statistical evidence due to prejudice outweighing probative value.

Expert opinions are not objectionable for embracing ultimate issues, except that experts in criminal cases cannot opine on whether the defendant had the mental state constituting an element of the crime.

Factfinders may not base an inference solely on another inference without supporting facts; must avoid impermissible “inference on inference.”

A defendant has a constitutional right to present evidence of third-party guilt if sufficiently reliable and not substantially outweighed by prejudice or confusion.

Authentication is used to prove authorship, while identification applies in all other circumstances.

The judge screens evidence to determine whether it should be admitted to the factfinder.

The factfinder decides whether the evidence is actually authentic.

Tangible evidence used only to illustrate a witness’s testimony.

The witness must show familiarity with the subject and testify that the exhibit fairly and accurately represents it.

Tangible evidence that has probative value beyond the witness’s testimony.

Tangible evidence with probative value because it directly relates to the case or incident.

By showing the item is the actual one from the event and has not undergone significant changes.

Through a complete chain of custody.

Enough evidence to support, by a preponderance of the evidence, that the item is what the proponent claims it to be.

A six-day break in the chain of custody of drugs was enough to make admission of the evidence error.

If authentication does not match the purpose of admission, the exhibit may be denied.

A witness must testify that it fairly and accurately represents what happened.

A photograph can be admitted without a witness if other evidence proves its reliability.

A qualified technician who testifies about equipment, timing, and proper procedures.

They follow the same foundation requirements as photographs.

They are admissible only if in-court testimony cannot convey the same information.

They are admissible unless the opponent shows specific problems with the film.

Device capability, operator competence, authenticity, no changes, proper preservation, speaker identification, and voluntary conversation.

Anyone familiar with the voice, even if familiarity was gained for litigation.

Through a witness with firsthand knowledge that the document is what it purports to be.

A document is authenticated if it is 20+ years old, in proper condition, and found where expected.

Through circumstantial evidence or IP address links.

Yes, under Rule 902(5).

Official, public, or acknowledged documents whose source authenticity is evident.

The attesting witness rule—some signed documents, like wills, require a witness.

When they fairly represent the events described.

An experiment seeks to show a specific result, while a reenactment simply demonstrates events.

They are admissible if devoid of drama and accompanied by cautionary instructions.

Proof that the computer functioned properly, data was accurate, and software was accepted by experts.

When a jury is taken to view a scene in person.

An original writing, recording, or photograph to prove its content.

Only when trying to prove the truth of a recording’s contents.

Mechanically Produced Duplicates; Certified Copies of Public Records; Admissions

When originals are lost, destroyed, or unobtainable without bad faith.

They may be admitted if helpful, and the source documents are available for inspection. The summary itself need not be shown to the other party before trial.

The best evidence rule requires submitting original drawings as evidence.

Character cannot be used to show action in conformity with that character.

Character shows general disposition; habit shows specific, repeated behavior.

Yes.

Courts must consider prejudice versus probative value in the context of other available evidence (for example, the ability of less prejudicial evidence to prove the same thing).

It is admissible if a jury could reasonably find that the conduct occurred.

Provide notice of the acts and the non-propensity purpose for offering them.

When it helps explain the defendant’s reason for committing the charged crime.

Motive; Opportunity; Knowledge; Preparation; Modus Operand; The Doctrine of Chances; Common Plan or Scheme; Intent; Absence of Mistake or Accident; Identity; Background; Complete Story Principle; Intrinsic Acts; Prior Sex Acts

A defendant’s use of another person’s prior bad acts to show that person committed the crime.

Allows evidence of prior sexual assaults in criminal sexual assault cases.

Allows evidence of prior child molestation acts in criminal cases.

Extends Rules 413 and 414 to civil sexual misconduct cases.

No, prior acts may be admitted even without a conviction.

Preponderance of the evidence.

When it is pertinent to the charge; if so, the prosecution may rebut it.

Rebut with evidence supporting the victim’s character or attacking the defendant’s.

When the defense claims the victim was the first aggressor.

Reputation and opinion testimony, with specific acts only on cross-examination.

Specific instances of conduct only.

A person’s reputation in the community or among associates.

Yes, but it falls under a hearsay exception.

A witness may testify that they have never heard anything bad about the person, which supports good character.