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Terms in this set (26)
Excluding Relevant Evidence
Relevant evidence can be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.
The general rule is that evidence must be relevant to be admissible, and all relevant evidence is admissible unless excluded by a specific rule or law.
Character Evidence in Criminal Cases
Evidence of a person's character is generally INADMISSIBLE to prove they acted in conformity with that character on a given occasion.
In criminal cases, Defendant may introduce evidence of her character (reputation and opinion only), which the prosecution may rebut; with limited exceptions.
The DEFENSE MAY introduce evidence of pertinent good character in a criminal case.
The character must be pertinent to the charged crime (e.g. D's reputation for peacefulness is irrelevant to a forgery charge). Defendant may call a witness to testify to defendant's good character based on reputation or opinion (but not specific instances)
Defendant "opens the door" w/character evidence
the Prosecution may rebut by:
(1) Cross examining defendant's witness (including knowledge of specific instances of defendant's misconduct or prior arrests; OR
(2) Calling witnesses to testify to defendant's bad character, limited to defendant's character for the trait in question
The Prosecution may NOT "open the door"
(1) In cases of sexual assault/child molestation the Prosecution can offer evidence of Defendant's other acts of sexual assault or child molestation; OR
(2) If Defendant offers evidence of Victim's character, Prosecution can offer evidence that Defendant has the same character trait.
**Direct: Reputation and opinion evidence is admissible; evidence of specific instances is inadmissible
**Cross: Reputation, opinon, and specific instances are admissible
Bad Acts Prior Crimes Are Not Admissible to prove
Bad Act Prior Crimes Are Admissible for
motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident ("MIMIC")
Character must be proved by
reputation or opinion
not specific acts
generally not admissible
EXCEPT if on cross, the party who is testifying has given R/O testimony, counsel may ask about specific acts of the person whom the witness is testifying to impeach
An artist is on trial for arson. The prosecution also wants to have a bartender testify that the artist told him, "I know I'm a terrible artist. Maybe the dealer can sell a piece or two, but I'll make more money by burning the place to the ground."
Opposing party statement.
Generally, a party may not impeach the credibility of a witness by introducing extrinsic evidence of a collateral matter. Instead, the party must accept the witness's testimony (even if relevant).
A defendant was charged with illegal possession of a firearm. The defendant called a police officer to the stand in order to impeach a witness to testify that D had NOT fired first. The D tried to introduce a statement from police officer at a prior hearing where he told made a contradictory statement.
collateral matter. not admissible.
prior sexual misconduct of a victim in a civil case
not admissible unless the probative value substantially outweighs the danger of harm or unfair prejudice .
court may admit reputation evidence only if victim places it in controversy.
When a court erroneously admits evidence, the court may permit the introduction of additional inadmissible evidence to rebut the previously admitted evidence.
witness may examine any item, even if the witness did not create the item. Item does not need to be admitted into evidence. Witness must then testify. Only testimony is admitted, not the item itself (witness cannot read directly from the thing)
Present Sense Impression
A statement describing or explaining an event that is made while the declarant is perceiving the event, or immediately thereafter
A defendant was charged with possession of prescription drugs without a prescription. At trial, the defendant testified that he received the drugs from a friend and believed they were an acceptable over-the-counter medication. The prosecutor intends to ask the defendant about his previous three misdemeanor convictions in the last five years for possession of the same type of prescription drugs without a prescription.Should the court allow the prosecutor to ask about the defendant's previous convictions?
Yes, to show that the defendant knew the prescription drugs were not an over-the-counter medication. (MIMIC evidence)
type of opposing party statement. A statement made by a party's agent or employee constitutes an opposing party's statement if it was made concerning a matter within the scope of and during the course of the relationship.
A plaintiff sued a company for damages incurred when the company's delivery truck drove through the plaintiff's storefront. The plaintiff wants to testify that the driver, a permanent employee of the company, told the plaintiff, "I kept telling my boss these brakes were on their last miles, but they were not fixed. They failed as I turned that corner." The company owns the truck.Is the plaintiff's testimony regarding the truck driver's statements likely admissible?
Yes. Opposing party statement (vicarious admission)
Evidence from Expert Testimony
If the expert relied on it, it may be used, but the entire document can't come in (ex: an entire journal or periodical) the piece the expert relied on may be admitted as non-hearsay
like when you created exhibits for expert reports
Offers to Pay Medical Expenses
Not admissible to prove liability for the injury. Such evidence is excluded based on public policy.
Federal Inadvertent Waiver Rule
applies to the disclosure of information covered by the attorney work-product protection as well as communications covered by the attorney-client privilege.
competency of evidence
Judge Decides. Includes prelim questions like admissibility of evidence, whether privilege exists, and whether a person is qualified to be a witness. The court is not bound by the Federal Rules in deciding these questions, except with respect to privileges, and it may consider otherwise inadmissible evidence.
inadmissible to show negligence.
totally admissible to show bias, control, ownership.
alway relevant to the credibility of the witness/possibilty of being impeached
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