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University of North Carolina School of Law
Mosteller, Robert P.

Evidence Mosteller Fall 2016

Is the evidence ADMISSIBLE?

Proper FORM? (Leading?)

Logical relevance: must tend to prove or disprove material issue in dispute. Remember similar happenings
Legal relevance: Should relevant evidence nonetheless be excluded?

JUDICIAL DISCRETION: probative value substantially outweighs risk of unfair prejudice
PUBLIC POLICY: liability insurance, subsequent remedial conduct, settlement offers, payment or offer to pay medical expenses, guilty pleas


CIVIL CASE: generally inadmissible to prove negligence, fault, or a person’s conduct on a given occasion. But, admissible if character is in issue for impeachment.

Criminal case: generally admissible to show MIMIC or for impeachment. But, evidence of the D’s bad character is inadmissible at the prosecution’s initiative to show propensity to commit a crime unless and until the D opens the door by presenting evidence of his good character to show innocence of the crime. Then and only then may P may present evidence of D’s bad character the specific trait mentioned by the D.
V’s bad character: admissible when it is relevant to show D’s innocence.

Note special rules for rape cases.

Proper presentation?

Documentary evidence:

Best evidence rule: In proving the contents of a writing, the original writing itself must be produced or shown to be unavailable, unless the writing refers to a collateral matter.

Testimonial evidence: witness must be reliable – must have personal knowledge

Opinion – Expert or Lay?

Character evidence for truth or veracity.

Prior felony conviction or crime involving truth (no foundation needed)
Specific acts of deceit of lying (only on cross; no extrinsic evidence)

Prior inconsistent statements (need opportunity to explain)
Evidence of bias, falsity (first need opportunity to explain or deny)

Refresh recollection (can use anything)
Recorded recollection (read writing into evidence)

Other concerns: judicial notice, burdens of proof, presumptions


Out of court statement?
Offered to prove the truth of the matter asserted?

Non-hearsay use?

State of mind (to show impact on the hearer or declarant’s state of mind)
Verbal act?

Exempted from the hearsay rule?

Prior inconsistent statements made under oath?
Prior consistent statements offered to rebut charge of bias?

Does an exception apply?

Declarant must be unavailable

Former testimony?

Statements against interest?
Dying declaration?
Spontaneous statements: then existing state of mind; excited utterance; present0sense impression; then existing physical condition; past physical condition
Business recordsf?



HEAR à Hearsay

P à Privileges

A àAuthentication

B àBest Evidence Rule

R àRelevance

O àOpinion Testimony

W àWitnesses

N àNotice (Judicial Notice)

Also look for: (1) Presumption Issues and (2) Procedural Matters

Short Outline


< >RolesJUDGE: UmpireJURY: FactfinderTimelines and SpecificityHave to state a grounds for objecting; if not, then do not preserve it for appealHave to object in a timely manner- when it is raisedMotion In Limine: a means by which the parties can anticipate evidence issuesPreserving the Error for Appeal: Need to have a record for the appellate court to look overFOUR WAYS TO MAKE AN OFFER OF PROOF: (1) the proponent may examine the witness before the court and have the answers reported on the record; (2) a statement of counsel as to what the testimony would be; (3) statement written by examining counsel describing the answers the proposed witness would give it permitted to testify; (4) written statement of the witness’s testimony signed by the witness and offered as part of the record.B.HEARSAY< >A statement offered to prove the truth of the matter asserted (if YES to all that follow à hearsay)OUT OF COURT STATEMENT?What is it BEING OFFERED TO PROVE?Does probative value of the statement depend on DECLARANT’S CREDIBILITY?FIVE CATEGORIES OF HEARSAY: (1) Explicit verbal assertion; (2) Non-verbal conduct intended as assertion; (3) Non-verbal conduct NOT intended as an assertion; (4) Non-assertive verbal conduct (ex: question); (5) verbal assertions used inferentiallyEXCEPTIONS: BAD SPLITS PEPPI FB àBusiness Records: IF meet requirements (KRAP) à (1) regular practice of the business to keep these records; (2) Made in the regular course of the business; (3) Made at or near the time of the thing recorded; (4) Made by someone with a business duty or personal knowledge NEED TRUSTWORTHINESS à no reports made w/ eye of litgationA àAdmission by Adverse Party: A party made not object on hearsay grounds when the opponent offers a statement made

problem if hearsay declarant is cross-examined at trialTestimonial Hearsay à Need (1) unavailability and (2) prior opportunity to cross examineC.PRIVILEGES< >Attorney-Client: allows a client to prevent the attorney and others from disclosing confidential communications, made between the attorney and client or their representatives, for the purposes of legal servicesIf client reasonably believes that the individual is a lawyer, then it is okApplies to consultation (no need to be paid)Applies to all communications, not actions or personal letters à MUST BE GERMAINEOnly applies to their communications in relation to legal servicesMUST be confidential à no presence of third parties (intent of client is what governs)ExceptionsBreach of duty action à no privilegeJoint clients à no privilegeCrime fraudDoctor-Patient: Jaffee à germane communications made (including results of tests)EXCEPTION: patient litigant (puts it in issue, then no privilege)Marital: (1) Confidential Communication à Communications during marriage are privileged(2) Testimonial Privilege à (CRIMINAL) do not want to testify cannot, if want to à go aheadTERMINATES AT END OF MARRIAGED.AUTHENTICATION< >Comes up largely w. writing à needs to be established that it is what it says to beTANGIBLE OBJECTSALSO arises w/ voice identificationMust establish that the item is what it purports to beStandard is low à only enough evidence for a reasonable juror to find that it isHOW?Illustrative à testify to fair and accurate representation at the relevant timeTangible Object à call a witness w/ personal knowledge of itemCHAIN OF CUSTODY à attempt to call each person w/ control of item (substantial)Documents à testify of person with personal knowledge or circumstantial evidenceCIRCUMSTANTIAL à handwriting analysis (have jurors compare, have someone who is an expert compare); old documents –> (1) Ancient (20 years at least), (2) Must be in such condition as to be free of suspicion, (3) found where it is likely to be kept; By reply à by contents of the letterSELF-AUTHENTICATING: Just need to present item, nothing to prove; CONTACC à Commercial PaperO à Official Publications (ex: statutes)N à Newspapers and Periodicals