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1 EVIDENCE GUIDE Formal/Foundational Requirements: 1. Best Evidence Rule (1001-

1 EVIDENCE GUIDE Formal/Foundational Requirements: 1. Best Evidence Rule (1001-1008) a. Original b. Duplicate c. Exceptions (lost, destroyed, unobtainable) 2. Witness Competency (601) 3. Witness Person Knowledge (602) 4. Documents Authenticated (901, 902) a. Chain of Custody b. Process c. Witness w/ Knowledge d. Self-Authentication (902) Relevancy of Evidence Offered: 1. Material & Probative (401, 402) 2. Prejudicial (403) Exclusions Even if Relevant: 1. Remedial Measures 2. Insurance 3. Pleas (410) 4. Offers to Settle (408) 5. Offer to Pay Medical Costs (409) WITNESSES Competency (601) Personal Knowledge (602) Prior Inconsistent Statements Lay Witness Expert Witness  must be specifically qualified Hearsay Impeachment (607, 608, 609) Rehabilitation DOCUMENTS Authentication (901, 902) Self-Authentication (902) Best Evidence Rule (1001-1008) 2 GENERAL PROVISIONS 1. Preliminary Questions a. 104(a)  Judge decides preliminary question about whether evidence is admissible by preponderance of the evidence  Not bound to rules of evidence  Legal Determination 1. I.e., privilege exists, witness qualified, evidence is admissible b. 104(b)  Would jury find by a preponderance of the evidence that fact exists  Conditional Evidence 1. Proof must be sufficient to support finding that the fact exists 2. Limiting Instruction a. 105  restrict the evidence to its proper scope and instruct jury accordingly PRESUMPTIONS IN CIVIL CASES 1. 301  Party against who presumption is directed – has burden of producing evidence to rebut presumption a. Burden of persuasion remains on person who originally had it 2. 302  State law governs the presumption RELEVANCE 1. Relevant Evidence a. 401 i. Propensity  tendency to make fact more or less probable than it would be w/o the evidence ii. Material  fact is of consequence in determining the action 1. Element, Credibility, Context b. 402  General Rule i. Relevant evidence is admissible; Irrelevant evidence is inadmissible 2. Exclusion of Relevant Evidence a. 403 i. Probative value is substantially outweighed by danger of: 1. Unfair prejudice 2. Confusing the issues 3. Misleading the jury 4. Undue delay 5. Wasting time 6. Needlessly presenting Cumulative evidence 3 CHARACTER EVIDENCE 1. Character Evidence a. 404(a)  PROPENSITY to act in accord w/Trait: Inadmissible to prove that on particular occasion person acted in accordance with the character or trait i. EXCEPTIONS FOR DEFENDANT OR VICTIM IN CRIMINAL TRIAL 1. 404(a)(2)(A)  REBUT DEFENDANT a. Defendant may offer evidence of defendant’s pertinent trait b. If evidence is admitted c. Prosecutor may offer evidence to rebut it 2. 404(a)(2)(B)  REBUT VICTIM a. Defendant may offer evidence of victim’s pertinent trait b. If evidence is admitted c. Prosecutor may offer evidence: i. To rebut it ii. Of the defendant’s same trait 3. 404(a)(2)(C)  IN HOMICIDE CASE – 1st Aggressor a. Prosecutor may offer evidence of victim’s trait of peacefulness i. To Rebut Evidence that victim was 1st aggressor b. 404(b)  Crime, Wrongs, or Other Acts i. Inadmissible to prove Propensity  on particular occasion person acted in accordance w/ character ii. EXCEPTION: 1. Admissible for other purpose a. Motive, Opportunity, Intent, Preparation, Plan, Knowledge, Identity, Absence of Mistake, Lack of Accident 2. Method of Proving Character a. 405(a)  Reputation or Opinion (only applies to 404(a)) i. If character or character trait is admissible ii. It may be proved by 1. Testimony of person’s reputation; or 2. Testimony in form of an opinion 3. Specific Instances of Conduct a. 405(b)  Relevant Specific Instances of conduct = admissible IF i. Character or character trait = an Essential Element of 1. A Charge, Claim, or Defense (character must actually be stated in the elements) 2. Test for Essential Element a. Would proof of character trait by itself satisfy an element of charge, claim, or defense? 4. Habit; Routine Practice a. 406  Habit = Admissible to Prove i. On particular occasion, person/organization acted in accordance w/ habit or organization’s routine practice 1. No need for corroboration or eyewitness 2. Custom of Business Organization = Regular and Uniform ii. Standard = specific, regular, sufficiently similar 4 DEFINITIONS 1. Character = Generalized description of a person’s disposition in respect to a general trait (tendency) 2. Essential Element = trait on its own would satisfy an element of the charge/claim/defense 3. Habit = Regular response to a repeated situation/specific response for specific instance w/o much deliberation a. Can’t be too generalized b. Must be specific, regular, often, and particular c. Automatic response to particular occasion d. MUST be sufficiently similar e. Routine = regular and uniform 4. Opinion = Any statement of fact at base 5. Pertinent Character Trait = Relevant to the particular crime being dealt with 6. Preliminary Facts = Facts to be established prior to determining whether piece of evidence will be admitted or not 7. Propensity = tendency to act in conformity with certain behavior/character/action a. On particular occasion person acted in accordance w/ character 8. Relevant = tendency to make a fact more or less probable 9. Reputation = Any knowledge of person the witness is testifying about 5 WHAT TO ASK YOURSELF FOR CHARACTER EVIDENCE 1. Is this character evidence being used to show propensity? [Rule 404(a)] a. YES  Inadmissible (Except Below) i. Is this a Criminal Trial? 1. YES a. Did the defendant make his pertinent trait an issue? (Open door) i. YES  Prosecutor can present rebuttal evidence of bad character b. Did defendant make victim’s pertinent trait an issue? (Open door) i. YES  Prosecutor can present rebuttal evidence of defendant’s own bad character or other rebuttal evidence ii. Is this a Homicide Trial? 1. YES a. Did defendant present evidence that victim was 1st aggressor? i. YES 1. Prosecutor can present rebuttal evidence to show victim’s trait of peacefulness b. NO  Then are you using it to show other things? (Motive, M.O., etc.) i. YES  ADMISSIBLE ONLY IF in form of opinion or testimony of reputation 2. Is this evidence a Specific Instance of a crime, wrong, or other act? [Rule 404(b)] a. YES i. Is it to show propensity 1. YES  INADMISSIBLE a. Huddleston Exception: sufficient evidence of prior acts to show that a reasonable jury would believe defendant in fact did the act  Then, Admissible 2. NO a. Is it for other purpose? (Motive, opportunity, intent, preparation, etc.) i. YES  Admissible 3. Is the evidence of character trait a Specific Instance of Conduct? [Rule 405(b)] a. YES i. Is it relevant? 1. YES a. Is the character trait an essential element of the charge/claim/defense? i. YES  ADMISSIBLE 4. Is this evidence of a Habit/Routine? [Rule 406] a. YES i. Is it being used to prove that on a particular occasion, the person/organization acted in accordance with the habit or routine practice? 1. YES  Admissible 6 TRIAL ISSUES 1. Subsequent Remedial Measures: a. 407  Measures are taken after accident, which would have made an earlier injury or harm less likely to occur i. Measures = INADMISSIBLE to prove (N.C.D.N) 1. Need for warning or instruction 2. Culpability 3. Defect in product of its design 4. Negligence ii. Measures = ADMISSIBLE for other purposes if disputed (I.C.O.F.) 1. Impeachment 2. Control 3. Ownership 4. Feasibility of precautionary measure b. Literal language covers 3rd parties c. Even if 407 DOESN’T APPLY i. 401 ALWAYS APPLIES 2. Compromise Offers & Negotiations: a. 408 – Evidence Below = INADMISSIBLE i. Furnishing, promising, or offering (accepting, promise to accept, or offering to accept) a valuable consideration in compromising or attempting to compromise a disputed claim to (1) prove or disprove validity of amount or (2) impeach by prior inconsistent statement or contradiction ii. Conduct or statement made during compromise negotiations about the claim (communication) b. Conduct or Statement made during Negotiation = ADMISSIBLE IF i. Offered in CRIMINAL CASE; AND ii. Negotiations are related to a claim by a public office in exercise of its regulatory, investigative, or enforcement authority c. ADMISSIBLE IF i. Used to 1. Prove witness’s bias or prejudice 2. Negate a contention of undue delay 3. Prove an effort to obstruct a criminal investigation or prosecution d. Must still make a 403 Argument! 3. Offers to Pay Medical & Similar Expenses: a. 409  Evidence of furnishing, offer to pay, or promise to pay medical, hospital, or similar expenses resulting from an injury i. INADMISSIBLE IF 1. Used to prove Liability for injury 4. Pleas a. 410  INADMISSIBLE UNLESS another statement made during same plea discussion has been introduced and should be considered together or if in criminal case for perjury D made false statement under oath 5. Liability Insurance a. 411 – Evidence that person was or was not insured against liability i. INADMISSIBLE IF 1. Used to prove whether person acted negligently or wrongfully ii. ADMISSIBLE IF 1. Used to prove witness’s bias or prejudice 2. Used to prove agency, ownership, or control 7 SEXUAL CRIMES 1. Victim’s Sexual Behavior or Predisposition a. 412  In case involving alleged sexual misconduct, the evidence is INADMISSIBLE IF i. Offered to prove victim engaged uploads/Litterature/ evidence-exam-guide.pdf