Evidence
Marjorie Cohn
1. Relevancy-The tendency to prove a proposition that is properly provable in a case.ayHa
I. Relevant to issue or background matter?
II. Probative Value
2. Competency- Determines who is eligible to testify. Witness must have a personal knowledge of the matter and take an oath or affirmation. Federal Criminal cases uses Federal rule saying all witnesses are presumed to be competent. Federal civil cases uses the state rules
I. Mental Incapacity- Insanity
i. Knowledge and appreciation of the oath and of the consequences of lying and
ii. Ability to tell an intelligent story
II. Mental Incapacity- Infancy
i. Understand the nature of the oath and the consequences of lying and
ii. Capacity to observe, recollect, and communicate
III. Intoxication- At the time of testimony
i. Use rules for insanity
ii. Intoxication at the time of the incident bears on credibility not competency
IV. Marital Relationship- No longer presumed incompetent, may be barred by spousal privilege
V. Judge- Incompetent absolutely to testify in the instant matter
VI. Juror-Cannot testify in the instant case if objection, can only testify about extraneous prejudicial information, influences, or mistake in entering the verdict form
VII. Hypnosis-
I. Prosecution in Criminal Cases or all Civil Case Witnesses- No testimony of hypnotically induced recall
II. Defense Witnesses in Criminal Cases- No per se exclusion, but corroboration and safeguards are needed
3. Authentication
I. Exhibit must be authenticated by extrinsic evidence or witness
II. Must be relevant, what it purports to be
III. Preliminary admissibility is decided by the judge, and then authenticated by the jury
IV. If there is an objection to authenticity the judge should admit it and then the jury decides
i. Ancient Documents Rule- A document that is….. is admissible if
a. More than 20 years old
b. Not suspicious
c. Found in a likely place
ii. Self- Authenticating
a. Newspaper or periodical
b. Trade labels affixed in the course of business to show ownership, origin of control
iii. Telephone Calls
a. Personal Calls
a) Made to the assigned number and
b) The person who answers identifies themselves as the person called
b. Business Calls
a) Made to a place of business
b) Number assigned to business
c) Conversation related to business reasonably transacted over the phone
iv. Contents, Circumstances, or Familiarity with Handwriting
4. Best Evidence Rule- To prove content of writing, recording, or photograph (X-Rays and Film), the original must be produced or an excuse for non- production must be shown
I. Excuses for Non-Production
i. Evidence Lost
ii. Beyond the court’s Subpoena Power
iii. In Opponents Possession
iv. Destroyed in Good Faith
II. Duplicate- Sufficient as original even without the showing of an excuse, unless
i. There is a genuine issue of Authenticity
ii. Unfair to admit the duplicate
5. Opinion and Expert Opinion
I. Lay Opinion- Non- Expert may give opinion if,
i. Rationally based on perception, i.e. personal knowledge
ii. Helpful to clear understanding of testimony or issue in the case
iii. Not based on scientific, technical, or other specialized knowledge
iv. Opinion may be concrete if it was otherwise hard to describe, “he was drunk” “I smelled Smoke”
II. Expert Opinion
i. Qualified- In a relevant field an expert must have
a. Skill
b. Knowledge
c. Experience
d. Opponent may stipulate to qualifications
ii. Helpful
a. Testimony must assist the trier of fact
b. Expert must have a reasonable degree of certainty
iii. Opinion- Opinion must concern the proper subject
a. Testimony on ultimate issue not per se excluded
b. Inadmissible if on mental state or condition of Criminal Defendant, (i.e. Intent knowledge, purpose, premeditation in homicide cases, lack of predisposition in entrapment cases)
iv. Foundation- What data can an expert rely on?
a. Personal Observation
b. Sufficient Facts or data, reliable principles, and methods applied reliably to the facts
c. Facts not in evidence, admissible if reasonably relied upon
e
iii. Otherwise discoverable evidence not excluded even though introduced during settlement negotiations
iv. Federal Rules- Offers to pay medical or hospital bills excluded to prove liability, but statements are admissible
v. Watch Out for Agency Questions- Does the offeror have the authority to settle the case
Exceptions
a. Bias- A side agreement by P’s and D’s that show why someone is going after someone else
b. Bad Faith- Insurance company
IV. Withdrawn Guilty Pleas/ Offers to Plead Guilty
i. Inadmissible to prove liability or nonliability, amount of claim, impeachment, party’s own settlement statements
ii. Federal Courts also exclude no contest pleas
iii. May be admissible to prove perjury or false statement
V. Prior Sexual Conduct
i. May be relevant but is excluded for policy reasons (Rape Shield Statutes)
ii. Criminal Cases- Complainants Sexual Behavior or predisposition inadmissible except:
a. Prior Sexual Behavior With the Defendant when offered by the defendant to show consent or by prosecution
b. Prior sexual Behavior with others to show consequences, such as the source of a injury, presence of semen, or other physical evidence
c. Exclusion would violate the defendant’s 6th amendment right to confront and cross examine witnesses. I.E. impeaching credibility of complainant regarding motive to fabricate
a) If Exception applies then only Specific Acts. Reputation and Opinion inadmissible
iii. Civil Cases- Prior Sexual Behavior or predisposition is admissible where
a. Probative value substantially outweighs danger of harm to any victim and of unfair prejudice to a party
b. Reputation Admissible only if first raised by the complainant
8. Character Evidence- is a person’s propensity to act in a certain way under certain circumstances
I. General Prohibition against Character Evidence to prove action in conformity with pertinent character trait.
