Evidence Chart
Opinion
Common Law / FRE / CECWitness Opinion / Generally not allowed to draw any conclusions or inferences. Collectivism allowed: opinions regarding their common knowledge or experiences (i.e. Speed of car, Drunk)
Expert Opinion / An expert may be used for scientific, technical, or other specialized knowledge.
-must be w/in experts expertise
-a foundation of qualifications must be established by other experts
-may use the reliable work of others as a basis of opinion / A Phd. May give final opinions, before only Md’s (Texas).
Scientific & Demonstrative Evidence
Common Law / FRE / CECScientific Evidence / Needs to be agreed on by the scientific community
Blocks out minority positions / Daubert Test:
1) sufficient fact or data
2) reliable principles and methods
3) applies the principles to the facts / Same as CL
Demonstrative Evidence / As long as there is some relevancy, then it will be admissible.
Similar Happenings – Civil Cases
Common Law / FRE / CECSimilar Happenings not based on character / Admissible: must be a substantial identity of material circumstances. Does not need to be identical.
In cases of non-similar happenings, the # of non-happenings needs to be very high to = 1 happening. This is a Hearsay Issue/prior non-statements.
-Requires recordation of non-happenings.
Subsequent Repairs
Common Law / FRE / CECSubsequent Repairs in Negligence cases / Not admissible if offered to show liability or fault.
May offer it in a liability case for impeachment w/ a limiting instruction. / Will allow it in Strict Liability Cases.
Compromise
Common Law / FRE / CECSettlement/Compromise or Offers of Such / Inadmissible / Inadmissible / Inadmissible
Admissions made during settlement/ compromise or offers of such / Admissible / Inadmissible / Inadmissible
Payment of or offers to pay medical expenses / Admissible / Inadmissible / Admissible, unless made out of humanitarian motives
Admissions made during offers to pay medical expenses / Admissible / Admissible / Admissible, unless made out of humanitarian motives
Payments or offers made out of humanitarian motives / Admissible / Admissible, unless offer to pay medical expenses / Inadmissible
Admissions made during offers made out of humanitarian motives / Admissible / Admissible / Inadmissible
Guilty Pleas
Common Law / FRE / CECGuilty Plea Withdrawn / Inadmissible
- Civil and Crim Cases
Minority: admissible / Inadmissible
- Crim cases
Nolo Contendere = no contest / Inadmissible
Guilty Plea NOT a Nolo Contendere / Admissible, if the jdx does not have a nolo contendere plea (NY – ando v. woodberry)
Presumptions
Common Law / FRE / CECRebuttable Presumptions: if not properly rebutted they will be viewed as conclusive presumptions / MAJORITY: Bursting Bubble Theory- if the person w/ the burden of rebutting offers enough evidence that the presumption is completely gone, it burst the presumption and it will be up to the jury.
MINORITY: Lingering on theory – if the presumption is rebutted, it does not disappear, it shifts the normal burden back to the P and needs to disprove every fact by a preponderance of evidence (YOU MUST REBUT THE REBUTTAL). / If there is an underlying public policy issue the you follow the MINORITY: lingering on theory, otherwise, follow the MAJORITY: bursting bubble theory
Hearsay Exceptions
Common Law / FRE / CECFormer Testimony
Crim To Civil Allowed
Civil To Crim Not Allowed / More strict than FRE b/c can only be used against the unavailable Declarant, not a co-party with the same identity of interest. / 1) Unavailability
2) Under oath
3) Opportunity for X-ex
4) Identity of interest in X-ex (issues and parties) / Same as FRE.
Dying Declarations / Can only be used for criminal cases, not civil.
* Demands death / 1) Unavailability (i.e. coma sufficient)
2) Declarant must believe she was dying
3) must believe death was imminent
4) statement must describe the cause and circumstances leading to her death. / Same as FRE.
* Demands death
Spontaneous Exclamations/ Excited Utterance / 1) Declarant was in shock
2) Declarant was somehow involved in the startling event
3) Made while excited
- subtract time while
unconscious
4) Must be a description / Same as FRE.
* Need independent proof that event was exciting, aside from statement.
Present Sense Impression / Required presence of 3rd party who heard the statement. / 1) Declarant sees an event and describes it soon afterwards
Note:
-No req. for presence of 3rd party w/ the same opportunity to observe. / “Bomb Diffusing Exception”
1) Declarant must be involved in the conduct (Much more narrow than FRE)
2) Statement must be made to another with the same opportunity to observe
3) Declarant must be describing his own behavior.
Nicole Brown Exception / A diary or any writing can be used by and against the party that exhibits threats.
Time limit of 5 years.
Admissions by Partied Opponent / Non-Hearsay for all admissions exceptions.
Admissible against the party who said it, if the only objection left is hearsay
Adoptive Admission / Adoptive Admission
Statement the party has manifested an adoption or belief in its truth.
* If response ambiguous, then no adoptive admission.
Admission by Silence
1)It would have been normal for the party to respond, and
2)The party fails to respond
* The party must have heard the statement that he failed to respond to.
Authorized Admission / Need actual authorization / “Scope of Employment”
* Must be made while still employed
* 2 step process where judge decides if the statement can be used to prove scope of employment, then the evidence goes to the jury; however, there must be other evidence, in addition to the statement, to get the judge to consider it. / “Scope of Employment”
* Can be made by former employees, even after termination of employment
* Need more than statement to prove scope of employment
Admission by Co-conspirators / Need evidence independent of the statement. / Judge can use statement, along with other evidence, to make a foundational decision on whether there is a conspiracy. / Need evidence independent of the statement.
Scope of the exception:
1)Statement must be made in furtherance and within the scope and course of the conspiracy.
Minority: any statement by co-conspirator is admissible.
2)When 1 conspirator is arrested, the conspiracy has ended. Therefore, admission after that not is admissible against the non-admitting conspirator.
Declarations Against Interest (Ws only) / Mississippi: No exception for Declaration of Criminal Liability / 1) Unavailability
2) Made against money, property, civil, or criminal interests only
3) Trustworthiness
(ONLY needed in criminal cases; corroborating circumstances ) / 1) Unavailability
2) Made against money, property, civil, criminal, or social disgrace interests.
State of Mind / (Non-Hearsay)
Physical condition not included. / 1) Statement must be about present state of mind or physical condition
2) Includes statement of plan, motive, and design
* Can only use declarant’s statement of state of mind to prove declarant’s conduct. / 1) Trustworthiness
2) Statement must be about present state of mind or physical condition.
If statement is of past state of mind or physical condition, then only admissible to prove ONLY the past state of mind of Declarant, and Declarant must be unavailable.
3) Includes statement of plan, motive, and design
* Can admit even to prove future conduct of someone other than the Declarant.
Majority: Statement Orientated Approach
- not hearsay
Minority: Declarant Orientated Approach
- hearsay b/c becomes “I believe I am the Pope”, thus
use state of mind exception
Sheppard’s Rule: a statement of belief or memory to prove the fact remembered or believed is inadmissible; NOT within the state of mind exception.
Exception: Wills and Trusts
Physical Condition or Pain / Only statements made to a doctor. / Past State of Mind or Condition:
1) Statement must be made for medical diagnosis or treatment (to someone in the medical field).
* More narrow than CA b/c statement must be made for purpose of medical diagnosis or treatment.
* More broad than CA b/c doesn’t require unavailability. / Incorporated into the state of mind exception
Separate exception for children under 12 describing abuse for treatment.
Past Recollection Recorded / 1)Absence of memory
2)Recorded by the W or under his direction
3)Fresh in W’s mind at time of recording
4)W must be physically available and present in court to testify that he recorded it accurately
* Can read it into record, but can’t submit it as an exhibit unless done by adverse party.
Business Records / 1)Trustworthiness
- No police reports in criminal cases
2)Recorded in the ordinary course of business
3)In writing
4)Recorded at the time or near time of event
5)Custodian of Record must be in court to testify
Medical or Official records don’t require custodian or record in court.
Medical Records: Allows in statements regarding injury and causation but not fault.
New Hampshire Rule: only state that allows oral statements under business records.
Prior Identification / (Non-Hearsay)
1) Declarant available for cross examination
2) Statement must be one of ID.
* Much broader than CEC / 1) Declarant available to state that the ID was a true reflection of his opinion at the time.
2) ID was made when the crime or occurrence is still fresh in the declarant’s mind.
- IDs made at lineups
deemed fresh
Expanding Hearsay Exception / 1) Statement must have equivalent trustworthiness as other exceptions
2) Strong necessity must be shown
3) Topic on which the statement is relevant must be important
4) Justice and purpose of evidence rules served by the admission
5) The proponent must have given notice of intention to use the rule. / None
Ancient Records Exception / Any document over 30 years of age, and for that entire time, it has been acted upon as if they are reliable and accurate by those parties with an interest in the subject matter of those documents.
New Rule: 20 years
Prior Inconsistent Statements / (Non-Hearsay)
None / (Non-Hearsay)
1) Declarant available now for cross examination
2) Prior statement must be under oath if using prior statement for its truth
- No need of prior
opportunity to cross
examine
* If for impeachment, no need for prior statement to be made under oath / 1) Declarant available
2) Prior inconsistent statement can be used for its truth or to impeach, regardless if it was made under oath
Confrontation Clause / Voucher Rule: Can’t impeach your own W b/c you are vouching for them when you put them on the stand.
CA & FRE: can impeach your own W by designating them as hostile Ws.
* Chambers Rule: D should be able to admit any evidence in furtherance of his defense regardless of evidence rules. / 1) Available
- Lack of memory
doesn’t make you
unavailable.
2) Opportunity to cross-examine
* All “firmly rooted” hearsay exceptions are presumed to be constitutional; however, expanding hearsay exceptions need to pass the confrontation clause.
Ohio: Allowed in former testimony even though need opportunity to cross examine b/c W testified on direct. / Same as FRE
Prior identification, admissions, and prior inconsistent statements: non-hearsay
Character Evidence – Must be relevant to the trait involved in the case.
Common Law / FRE / CECCharacter Itself is the Issue
Civil Cases:
Negligent Entrustment
Defamation
Child Custody
Criminal Cases: Entrapment / Specific Acts / Reputation
Opinion
Specific Acts / Reputation
Opinion
Specific Acts
P’s ability to bring in D or V’s character based Propensities without D first opening the door. / Never / Never, exception: D’s prior sex crimes in a sexual offense case. / Never, exception: D’s prior sex crimes or domestic violence in a sexual offense or domestic violence case.
Mercy Rule (Criminal Cases Only) / D can only use Reputation.
In return, P can use Reputation, and can use Specific Acts of the W when cross-examining the W’s D put forth. / D can use Reputation and Opinion.
In return, P can use Reputation and Opinion, and can use Specific Acts of the W when cross-examining the W’s D put forth. / D can use Reputation and Opinion.
In return, P can use Reputation and Opinion, and can use Specific Acts of the W when cross-examining the W’s D put forth.
Victim’s Rule (Criminal Cases Only)
Self Defense claim itself is an attack of the victim’s character / D can only use Victim’s Reputation.
In return, P can only use Reputation. / D can use Victim’s Reputation and Opinion.
In return, P can use Reputation and Opinion, and can use Specific Acts when cross-examining the W’s D put forth. / D can use Victim’s Reputation, Opinion, and Specific Acts.
In return, P can use all 3.
Motive, M.O., Intent, Credibility, and Identity / Specific Acts / Specific Acts / Specific Acts
Habit (Criminal and Civil Cases) / Specific Acts / Specific Acts / Specific Acts
Impeachment
Common Law / FRE / CECBad Character: Unconvicted Prior Bad Acts Not Regarding Dishonesty / Yes, can use extrinsic evidence. / No. / No.
Bad Character: Unconvicted Prior Bad Acts Regarding Dishonesty / Yes, can use extrinsic evidence. / Subject to FRE 403.
No Extrinsic Evidence. / No.
Bad Character: Prior Convictions Regarding Dishonesty / Yes, can use extrinsic evidence. / Any Felonies or Misdemeanors.
10 year limit. / Felonies, but consider Beagle & Castro (basically CEC 352)
Beagle (Criminal D is also the W):
1)The more similar the prior crime is to the present crime, the more likely it shouldn’t be admitted.
2)The longer ago it was, less likely to admit.
3)If evidence will prevent D from testifying, then less likely to admit.
4)If prior conviction has nothing to do with honesty and veracity, then it shouldn’t be admitted.
Castro (All other cases): subject to CEC 352.
Misdemeanors, but consider Harris, subject to CEC 352
Time Limit: Not too old:
Note: CEC uses the term “untrustworthiness”, which is narrower than “dishonesty”.
Bad Character: Prior Conviction Not Regarding Dishonesty / Yes, can use extrinsic evidence. / Felonies only.
If W is the criminal defendant, then admissible unless probative value outweighed by risk of prejudice.
If W is NOT the D in a Crim, then admissible unless probative value substantially outweighed.
Other W not in a crim case, subject to FRE 403 – unfair prejudice rule. / Felonies, but consider Beagle & Castro (basically CEC 352)
Misdemeanors, but consider Harris, subject to CDC 352
Time Limit: Not too old
Defective Capacity / Allows extrinsic evidence / Allows extrinsic evidence / Allows extrinsic evidence
Specific Unrelated Error (Impeachment by Contradiction) / No extrinsic evidence. / No extrinsic evidence. / Governed by CEC 352.
Bias / Must first lay proper foundation (time, place, person, statement, etc…)
Allows extrinsic evidence. / Subject to FRE 402.
Allows extrinsic evidence. / Subject to CEC 352.
Allows extrinsic evidence.
Prior Inconsistent Statements / Must first lay proper foundation. (If PIS was a writing, then must show W the writing first before questioning about it.)
Can’t be offered for its truth b/c no hearsay evidence under common law.
Prior Consistent Statements: Statements by W consistent with subsequent testimony prior to the point in time when W’s alleged motive to fabricate existed are admissible while statements after that point are not. / May impeach even if prior statement was NOT under oath.
Use extrinsic evidence but W must later be allowed to deny or explain, if requested, except in interest of justice.
Prior Consistent Statements: Look at point in time under CL and the day opposition claims W made prior inconsistent statement. The earlier point in time wins. / Can be offered for its truth or to impeach.
Use extrinsic evidence only if W not excused except in the interest of justice.
Prior Consistent Statements: Look at point in time under CL and the day opposition claims W made prior inconsistent statement. The earlier point in time wins.
Authentication and the Best Evidence Rule
Authentication: Must prove the evidence is what the proponent claims it is.Common Law / FRE / CEC
Authentication by Content / Self Authentication (10 things)
Authentication by Content
Ways to authenticate
1)signature
2)phone conversation
Best Evidence Rule
Step 1: Is the content of the writing at issue?
If yes, must bring in original, but can bring in secondary evidence if the reason the reason is not available is not do to the fault of the proponent.
Step 2: Is the secondary evidence admissible?
No presumption that secondary evidence is reliable. Thus, burden on the proponent to prove that it is reliable. / Presumption that secondary evidence is reliable. Thus, burden on opponent to prove that it was unreliable. / Presumption that secondary evidence is reliable. Thus, burden on opponent to prove that it was unreliable.
In civil and criminal, can use secondary evidence even if original is available unless the opponent proves it is unreliable or admission of the secondary evidence would be unfair.
In criminal cases, if the original is in the possession or custody or control of the proponent (reasonable attempt), then secondary evidence will not be admitted.
EXCEPTION: photocopy or equivalent.
Oral Testimony Exception:Can admit oral testimony if original writing is lost or destroyed, and does not have control of a copy. Also, can admit oral testimony, regardless of availability, if it is not closely related to the controlling issue and it would be inexpedient (large burden) to produce the writing.
Privileges
No privileges in FRE / Common Law / CECAttorney-Client / Applies to any lawyer who the client reasonably believed to be an attorney with reasonable expectation of confidentiality, and the purpose of the communication must be for legal advice.
Who’s Covered?
• 3rd party experts and interpreters if not used as expert witnesses
• employees instructed to talk to attorney or his agents by senior management and the conversation was w/in the scope of his employment and pertinent to the litigation, and not incidentally noticed.
Privilege inapplicable if in furtherance of an on-going or future criminal activity. / Exception:
1)Attorney believes serious bodily harm will result
2)Crime/Fraud must be sought by the client.
Doctor-Patient / Must be for purpose of diagnosis or curative treatment.
Doctor is anyone the patient reasonably believes to be a doctor.
Patient Litigant Exception: No privilege if Patient offers his mental or physical condition into evidence. / No Doctor-Patient Privilege for criminal cases.
Exception: Serious bodily harm includes property.
Psychotherapist-Patient / Includes:
1)Psychiatrist
• whoever they reasonably believe
2)Psychologist, Licensed Social Workers, Counselors, etc… privilege only applies if they are who they are.
Patient Litigant Exception: but must be an essential part of the litigation.
Menendez Brother Exception: reasonable belief that the patient is a danger to himself or others; disclosure limited to what is necessary to prevent the danger. / Available in both civil and criminal cases.