Evidence Analysis and Approach 1. All relevant evidence is admissible unless a specific rule keeps it out. 2.

Character Evidence a. Evidence that tells us about the type of person someone is. b. Types of character evidence i. Reputation evidence. ii. Opinion Evidence iii. Evidence of specific conduct engaged in by that person in the past. c. 5 Rules in Criminal Cases i. Prosecutor CANNOT introduce evidence of D bad character if purpose is to show he probably acted in conformity with his character and committed the crime charged. 1. Prosecutor cannot use character evidence to show D has propensity to commit the crime. ii. D is allowed to present evidence of relevant good character traits to try and establish he acted in conformity with his good character and did not commit the crime. 1. Limited to reputation or opinion evidence. iii. If D presents evidence of good character, door is open and P can introduce evidence of bad character. 1. Reputation or opinion evidence. iv. Evidence of prior crimes or prior bad acts are never admissible to show D probably acted in conformity. But are admissible for other reasons. 1. Remember MIMIC a. Motive b. Intent c. Mistake (Absence thereof) d. Identity e. Common scheme v. If D testifies, he automatically places his character for truthfulness at question. d. 3 Rules in Civil Cases i. Cant introduce any evidence of character trait of party, to show that party probably acted in conformity with that character trait. ii. If a litigant has some other purpose for the introduction of character evidence and it is relevant, then the rule prohibiting character evidence will not keep it out. 1. E.G. Showing negligent entrustment 2. E.g. In defense of Defamation suit. a. Evidence of reputation would be admissible to demonstrate the truthfulness of the statement made. iii. If a party testifies they automatically place their character of truthfulness at issue. 3. Impeachment of Witness a. Evidence presented to show a jury for the purpose of showing the jury why a witness who has testified should not be believed.

b. Always relevant evidence. c. 6 Impeachment efforts i. Prior inconsistent statements 1. That before the testimony the witness made statements inconsistent with the testimony. 2. Either through cross-examination or other evidence showing prior inconsistent statements. (Extrinsic Evidence) a. Extrinsic evidence of prior inconsistent statement is not admissible if it is for a very minor point of the testimony. b. If Extrinsic evidence of prior inconsistent statement is being used, the witness must be given the opportunity to give a statement on the extrinsic evidence. i. But this can be done either before or after the introduction of the extrinsic evidence. ii. If it qualifies as an admission by the party, dont have to give them the opportunity to comment on the extrinsic evidence. ii. Bias 1. Witness can be impeached with evidence that shows the witness might be inclined to favor the side the witness has testified for. iii. Some prior criminal convictions 1. Certain crimes only: a. Any criminal conviction, felony or misdemeanor, involving dishonesty or false statement can always be used to impeach. b. Any other felony can be used to impeach unless the judge finds it is too prejudicial. (either during cross or with extrinsic evidence.) iv. Prior bad acts. 1. Bad acts which did not result in conviction but that reflect unfavorably on the witnesses truthfulness. 2. Can only be elicited on cross examination. (no extrinsic evidence, even if witness denies the bad act). v. Reputation or opinion for untruthfulness 1. ok vi. Contradiction. 1. Evidence that contradicts the testimony of the person being impeached. 2. On cross can attempt to get witness to contradict himself on any point given in the testimony. 3. Extrinsic evidence of contradiction will only be allowed for major contradictions, (not minor contradictions.) 4. Heresay: all heresay is inadmissible unless it qualifies under an exception. a. Heresay = Statement other than the one made by the witness while testifying at the trial offered to into evidence to prove the truth of the matter asserted.

b. 3 textbook examples, not offered for truth of matter asserted, so not heresay and not excluded. i. Verbal acts = out of court statements that all by themselves change rights. (e.g. acceptance of offer that validates the K.) ii. Statements made out of court to show knowledge of the listener, when knowledge of listener is a relevant issue in the case. iii. Prior inconsistent statement offered to impeach. c. Several statements removed from definition, (non-heresay from get go) even if offered to prove the truth of the matter asserted. i. Admission by a party; (statement by a party opponent) ii. Prior inconsistent statement of a witness, given under oath at legal proceeding. iii. Prior identification made by person who is witness to the current case. d. 9 exceptions i. Present sense impression ii. Excited utterance iii. Statement showing state of mind, or physical condition. iv. Statements for purposes of medical treatment or diagnosis. v. Recorded recollection vi. Business records. vii. Former testimony. (only useable when person is unavailable to testify) viii. Dying declarations. (only useable when person is unavailable to testify) ix. Statements against interest. (only useable when person is unavailable to testify) 5. 3 step approach: a. determine if out of court statement is offered for truth of matter asserted. b. Is the statement removed from definition. c. Does it qualify under one of the exceptions to the heresay rule. 6. General Notes a. Judicial notice i. Judicial review: Appropriate when fact is indisputable or can be verified with scientific principles. ii. Must Determine if it is a Criminal or Civil case: 1. Criminal judge says jury may but does not have to accept the fact judicially noticed. a. Prosecutors burden of producing evidence is satisfied. 2. Civil case: fact judicially noticed is conclusively established. b. Expert Witness: Judge gets to decide if a person is an expert. c. Judge has responsibility for deciding whether an out of court statement qualifies as exception to heresay rule. d. Documents used to refresh recollection i. Anything can be used to refresh the recollection of the witness. 1. Including paper with exact info.

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ii. If you use a document to refresh recollection, you must make that document available to your opponent. They can introduce it and you cannot object to the introduction of that piece of evidence. Habit: Evidence of a habit is admissible to show the person probably acted the same way again. i. Habit = repeated response to a particular set of circumstances. Rule of exclusion on subsequent repairs. i. Evidence of repairs is not admissible for purpose of establishing negligence, lack of due care, or for establishing strict liability for the sale of the unreasonably dangerous defective product. ii. If P has any other legitimate purpose, then the evidence will not be excluded. 1. To prove ownership or control over the condition that caused the damage, when that is an issue in the case. 2. To prove it was possible to have a safer condition, if the Defense is that it was not possible to make it safer than it was. 3. When inadmissible under basic rule, answer will usually read inadmissible for reasons of public policy. There is a rule excluding bolstering credibility of your own witness; becomes moot if there is any other reason for evidence, then rule for bolstering is thrown out. Rehabilitation; i. If witness was impeached for prior bad acts, bad reputation for truthfulness, or prior crimes; counsel can attempt to rehabilitate the witness with evidence of good reputation for truthfulness. If, the witness has been impeached through any other method, rule is ambiguous over whether evidence of good reputation can be used for rehabilitation. Admission of a party i. 3 types of admission (relevant statement by a party of an action, or employee of party speaking in scope of appointment, made at any previous time and offered into evidence by the party. 1. Basic Admission 2. Admission by an employee 3. Admission by silence ii. Ask yourself: 1. Was that made by a party, or an employee of a party speaking in scope of employment? 2. Was the out of court statement offered by the opposing party? 3. Is it relevant? iii. If yes to the above, then you have an admission, that removes it from heresay rule. iv. Admission by silence: If at a previous time a party heard an accusation and failed to protest, and a reasonable person would have protested, then the both the accusation and the silence can be admitted as an adopted admission, or admission by silence For Impeachment and substantive

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i. Two situations where a prior inconsistent statement of a witness can be used both to impeach and to prove the truthfulness of the facts. 1. Prior inconsistent statement was given under oath and a legal agreement. 2. Of if the prior inconsistent statement qualifies itself as an exception to the heresay rules. ii. Has to be set up by giving you the in court testimony and must ask about prior inconsistent statement. 1. Ask if it was given at a legal proceeding or if it falls under an exception. Impeachment if not testifying i. If a person making an out of court statement does not take the witness stand, you can impeach them exactly the same way you could have impeached them had they taken the witness stand. Dying Declaration i. Only criminal cases where you can use a dying declaration are where someone is dead. Business Records. i. Person making the record does not have to have first hand knowledge of the information being recorded in that business record. ii. If a document qualifies as a business record, it is admissible to prove what is in it and what is not in it. Hillman rule i. Out of court statements of intention in the future are admissible, for what they are worth, to help establish that the person actually carried out that intention. Items before being admitted as evidence have to be authenticated. i. Sufficient to support a finding that the item is what the proponent claims. ii. Laymans terms: Enough additional evidence so that the jury can legitimately conclude if they wanted to that the object is what the proponent claims it is. Expert Testimony i. Experts can give testimony on info received from any source as long as it is something on which they reasonably rely on in the course of their profession. ii. Even I it would not ordinarily be admissible. Spousal immunity. i. Federal court in a criminal case, a spouse cannot be forced to testify against a spouse. 1. May testify if they want to testify, just cant be forced to testify. 2. Doesnt matter what the evidence is, or when they learned about the evidence. ii. Spouse can refuse to disclose or keep the spouse from disclosing (in civil or criminal case)