EVIDENCE I. Burdens & Presumptions a. Burden of Production i. Offer or produce information to fact finder ii.

Civil: Plaintiff has burden iii. Criminal: State has burden b. Burden of Persuasion i. Civil: Preponderance of the Evidence: >50% 1. Fraud: Clear & Convincing Evidence: more than civil, less than criminal ii. Criminal: Beyond a Reasonable Doubt: Certainty, 99.9% c. Presumptions: not conclusive because a jury can disregard i. Presumption can be rebutted d. Judicial Notice i. Judicially noticed fact is conclusive in a civil case, but not criminal Witnesses a. Witness competency i. Elements 1. Understand oath 2. 1st hand knowledge a. Except expert & admission by party opponent b. Witnesses credibility: char evidence can be used to impeach or rehabilitate i. Bias ii. Reputation For Truth & Veracity: Personal Opinion iii. Other Specific Acts: Felony Conviction, Misdemeanor If Involves Dishonesty Or False Statement c. Examination of Witnesses i. Leading Question = t words (isnt it true...) 1. On cross, not direct ii. Refreshing Memory: you can use anything to refresh, but can only be offered into evidence by party-opponent iii. Past Recollection Refreshed 1. Requires: a. Lacks present memory b. Statement made when fresh c. Accurate when made 2. Admissible by party-opponent iv. Privileges 1. Physician-Patient Privilege 2. Husband-Wife Privilege 3. Clergy Privilege Relevancy: Mandatory Exclusion: a. Liability Insurance: not admiss. for negligence or wrongful act. Admiss. to prove agency, ownership, bias b. Sub. Rem. Meas.: inadmissible for negligence; admiss for ownership/control, feasibility of precautionary measures, impeachment of Ds testimony c. Offer To Compromise

II.

III.

IV.

d. Medical Bills i. admissions made in connection with medical expenses are admissible e. Plea Offers f. Character Evidence.: inadmissible to prove conduct on particular occ. Except: i. Habit, impeach a witness, rep. to rebut, (motive-intent-opportunity, knowledge, identity, plan) ii. Admissible other than to prove conduct V. Character: a. Types i. Reputation ii. Opinion iii. Other Acts b. Is it used to prove conduct? i. Character As An Issue: cause of action for claim, defense ii. Knowledge of character: negligent entrustment c. If yes, is it an exception? i. Character Of Accused: can offer testimony of good rep. or opinion to prove innocence in criminal case ii. Victims Character Offered By Accused: 1. Can include in rape to prove not source of semen, & past acts to show consent iii. Motive-Intent-Opportunity-Knowledge-Identity-Plan VI. Opinion a. Layman i. FL: Allowed only if: 1. witness cant testify what they perceived without opinion 2. testimony wont mislead trier of fact 3. opinions dont require special knowledge or training ii. FL: Opinion as to mental condition or state (intoxication) is proper if the witness had an opportunity to observe b. Expert i. FL: Expert need not base his opinion on a hypothetical question. The basis for experts opinion can be inquired into on cross-exam ii. FL: expert opinion may be in hypothetical form, but must relate to the facts in evidence VII. Docs - BER: to prove the contents of a writing, the original must be produced or unavailable by proponent of secondary evidence, unless writing refers to collateral issue. Burden on proponent. a. Prove contents of writing i. Writing has Indep. Legal Significance: will, K, lease, etc b. Original i. Writing itself ii. Duplicate original made by copy or impression; carbon copy iii. Duplicate can be used unless authenticity of document is questioned c. Unavailable: i. Lost or destroyed ii. Unobtainable iii. Possession of party opponent iv. Impracticality VIII. Hearsay

a. Out of court statement, testified to in court, to prove the truth of the matter asserted b. Written, oral, or assertive conduct; intended to communicate IX. Hearsay EXEMPTIONS NOT HEARSAY b/c not made to prove truth of matter asserted a. Legally Operative Words: proving elements b. State of Mind i. Effect on listener and speaker ii. To find intent, knowledge, attitude, belief iii. Knowledge of a dangerous condition c. Prior Statements: person must be in court i. Prior Inconsistent Testimony 1. FL: cant be used as substantive testimony unless made under oath during trial, hearing, proceeding, or deposition. a. Only admissible to attack credibility ii. Prior Consistent Statements 1. Rehabilitate & substantive evidence 2. FL: witness must have opportunity to explain or deny PIS before extrinsic evidence is admissible iii. Prior Identification 1. Available to testify 2. Truth of matter presented d. Admissions: i. Admissions By Party Opponent 1. Anything said is admissible, but only against the party who made the statement 2. FL: Guilty plea offered by adverse party in subsequent litigation is an admission by party opponent, thus admissible 3. FL: Withdrawn plea inadmissible 4. FL: Party asking witness to testify falsely is an admission ii. Adoptive Admissions 1. Doesnt deny when a reasonable person would 2. Not applicable if they are in custody iii. Vicarious Admission Of Party-Opponent 1. Agent or spokesperson 2. Binding on corporation & admissible against them 3. During course of & in scope of employment iv. Admission By Co-Conspirator 1. In course of & furtherance of conspiracy 2. Doesnt count after conspiracy is over, i.e. crime has been committed & is over X. Exceptions to Hearsay: ADMISSIBLE a. Unavailable Declarant: i. Unavailable means declarant has: 1. Invoked privilege 2. Refuses to testify 3. No memory 4. Physically ill 5. Beyond subpoena power 6. Dead

Former Testimony: gave at a prior court proceeding for same motive & similar event 1. Unavailable 2. Opportunity to cross examine 3. Same motive iii. Declaration Against Interest 1. Unavailable 2. Unaware it was against their interests a. Pecuniary Interest b. Proprietary Interest c. Penal Interest 3. Bruton Problem: a. Criminal: statement to police may not be admissible b/c 1 criminal blames another to get themselves out of hot water: they have an interest in making a false statement iv. Dying Declaration 1. Unavailable 2. Believed death was imminent 3. Statement about circumstances of death 4. Criminal: homicide only; Civil: any COA v. Statement Of Family History vi. Forfeiture By Wrongdoing b. Spontaneous Exceptions i. Present Physical Condition ii. Present Mental Condition iii. Statement For Medical Diagnosis Or Treatment iv. Present Sense Impression: Present Conditions Narration v. Learned Treatises: used for direct & cross; can be read but not admitted into evidence 1. FL: can only be used for impeachment c. Records Exceptions i. Past Recollection Recorded 1. Requires: a. Lack of memory b. Recorded when memory was fresh c. Doesnt presently remember 2. May be read into evidence, but not admitted ii. Business Record iii. Public Record iv. Documents Affecting Interest In Land v. Judgment Of A Felony Conviction: 10 yrs. Back 1. FL: certified copy of prior conviction offered for the truth of matter asserted, his conviction, so it is hearsay. Not admissible under FL rules as substantive evidence, only to impeach. 2. FL: Conviction is admissible even if its been pardoned. Pardon can be used to rehabilitate vi. Ancient Documents
ii.