Evidence One Sheet FREQUENLY TESTED TOPICS: hearsay, character, impeachment GENERAL PROVISIONS Proceedings FRE do not apply to (1101): preliminary questions of fact regarding admissibility, grand jury proceedings, preliminary hearings, sentencing and probation hearings, obtaining a warrant, bail proceedings, summary contempt. Preserving issues for appeal (103): When ruling excludes evidence, party must make offer of proof. General objection does not preserve appeal. Harmless error does not preserve appeal. Only time a reversal would result from admission of evidence despite objection not being raised: plain error rule - substantial right effected. Preliminary Questions of Admissibility (104(a)): determined by the court: competency, admissibility, privilege. Preponderence of the evidence. Decisions final and binding on jury. Judge not bound by rules of evidence when determine preliminary facts. Conditional Relevancy (104(b)): when admissibility of X is conditioned on relevancy of Y, and judge determines there is enough evidence to find that necessary fact existed, then judge must admit both and let jury determine weight and credibility. Limited Admissibility (105): admissible to one purpose/party, but inadmissible to another. Counsel may request limiting instruction - but this is a strategic decision. Rule of Completeness (106): when part of writing is introduced, adverse party may immediately offer the rest of the writing to put it into context. Common law: does not apply this rule to conversations (some courts do, though). JUDICIAL NOTICE AND PRESUMPTIONS Judicial Notice (201) = substitute to proof. Court accepts without requiring evidence. 1) commonly known facts; 2) facts capable of accurate and ready determination. Mandatory when requested by party and supplied with necessary information. Requires no notice to opposing party. Once issue is judicially noticed, no contradictory evidence is permitted on the issue.
? Civil: jury must accept judicial fact as conclusive.
? Criminal: jury has discretion. Burden of Persuasion LevelsPreponderance of Evidence: Enough evidence to tip scale. Application: general civil standard, preliminary fact determinations by court, some criminal issues like venue, statute of limitations, voluntariness of a confession.Clear and Convincing: stricter - supports finding of fact significantly more likely to be true than not. High probability of truth. Application: fraud, disbarment, validity of deed or will.
? Beyond a Reasonable Doubt - Criminal 1
Presumptions rare and disfavored in criminal cases, since if not rebutted, the result would be a judgment as a matter of law, which violates Constitution. RELEVANCY AND ITS LIMITS (401-415) Exclusion on grouds of prejudice, confusion, waste of time (403): Relevancy substantially outweighed by: 1) danger of unfair prejudice (invites jury to make decision on improper ground; 2) confusion of issues; 3) misleading jury; 4) considerations of undue delay; 5) waste of time; 6) needless presentation of cumulative evidence. Character 404: inadmissible to prove conduct in conformity therewith, except when character is an essential element of cause of action/defense (then you can use specific act, reputation, or opinion)
? Causes of Action where character at issue: defamation, child custody, negligent entrustment, negligent hiring, entrapment. Only criminal: perjury, fraud.
? 494(a)(1): defendant can introduce testimony about pertinent trait. (reputation, opinion). Once door opened, prosecutor can rebut.
? 404(a)2(2): D may offer bad charater of V only to show self defense (reputation, opinion). prosecution may rebut, and attack D for same character trait.
? If D claims self defense, prosecutor may put on evidence of V's peacefulness.
? Specific acts evidence is only admissible on cross examination, as a way of testing the validity of the reputation or opinion evidence.
? 404(b): character admissible to show purpose other than conduct in conformity with character: Motive, Intent, Mistake (or absence of), Identity, Common scheme or plan, as well as knowledge, opportunity, preparation. Habit (406): routine practice of individuals or business. Admissible in form of opinion or specific acts only. Negative habit also admissible. Party may testify to own particular trait. Legal Relevancy (407-411) - barred by public policy, even though relevant.
? Subsequent remedial measures (407)
? Compromise or offer to compromise (408) o Unless used to prove W's bias/prejudice; negating contention of undue delay; proving that effort to obstruct criminal investigation existed
? Payment of Medical or Similar Expenses (409) o Unless it's a fact of consequence to the action
? Pleas, Plea Discussions, Related Statements (401) o Unless it's to prove agency/control/ownership, or bias/prejudice of a W.
? Liability Insurance (411) Sexual Condcut (412-415)
? Sex Offense Cases, Relevance of Victim's Past Sexual Behavior (412) = rape shield law, broad rule of exclusion. Applies to civil or criminal. Not admissible unless: 1) notice to OP; 2) evidence reviewed in camera by judge; 3) evidence alleges sexual misconduct. o In criminal cases, specific acts admissible to show: consent, source of semen, or if exclusion would violate D's Constitutional rights. o In civil cases, 403 balancing used, but reversed - if probative value substantailly outweighs harm to V or unfair prejudice o Doesn't just protect alleged V, but any party or W. 2
Buy the full version of these notes or essay plans and more in our Evidence Outlines.
