Evidence I

I. Relevance

A. Logical Relevance - evidence that has any tendency to make a material fact more or less probable.

* similar occurrences (so, different time/event/person, which normally are not relevant) may be used to

• prove cause and effect
  (show prior accidents or claims) to show a common plan or scheme of fraud, or where the prior accident/claim is relevant on the issue of damage
  NB: accidents involving the same instrumentality and occurred under the same or similar circumstances are admissible to whos notice to or knowledge of a D, or that the instrumentality is dangerous
  
• show intent or state of mind in issue (e.g., discrim intent)
  
• to rebut a defense of impossibility
  
• to establish value of chattels or parcels of real property
  must be of same general description, sales about the same time period, and in about the same location
  
• to show habit (specific, detailed conduct, and recurring often enough to be automatic - always, automatically) (NOT IN MASS)
  
• to show business routine
  
• to show industrial or trade custom, but non-conclusive as to standard of care

B. Pragmatic/Policy/Discretionary Relevance - even relevant evidence may be excluded if its probative value is substantially outweighed by the danger of:

1. unfair prejudice
2. confusion of the issues
3. misleading jury
4. undue delay
5. waste of time
6. cumulative evidence

NB: "unfair surprise" is not on this list.

* Liability Insurance - not to show negligence, wrongful act, or ability to pay
but, show ownership or control, or impeach witness by showing interest or bias/motive.
* Subsequent Remedial Measures - not to show negligence, culpability, defect in product, or need for warning

• but, show ownership or control, or to rebut/impeach statements re: feasibility of precautionary measures

(MASS: in products liability cases, subseq. rem. measures are on the table automatically, don't have to wait to rebut.)
* Settlements - not to prove fault, liability, or amount of damage

• Admissions of fact, liability, or damage made in the course of an offer are not admissible - not severable from offer itself. MASS DOES NOT FOLLOW THIS RULE. Unseverable only if you say "for settlement purposes only".
• There must be a claim, with dispute as to either liability or amount.
• A naked offer to pay medical expenses is not admissible, even though it's not a settlement offer. But a fact accompanying it is severable and may be admitted.

II. Character Evidence (as substantial evidence -- to show disposition or propensity to commit the act in question)

Always ask:
* purpose of offer of character evidence

• character is directly in issue in case (direct evidence)
• character is circumstantial (offered to prove conduct in conformity w/character)
• character used to impeach a witness (i.e., propensity for untruthfulness)

* method of proving character

• specific acts
• opinion (of witness)
• reputation (in community)

* type of case (civil v. criminal)
* what trait of character is involved (peacefulness/violence for assault, truthfulness for perjury)


A. Civil Cases (basically, not going to happen)

1. Not admissible as circumstantial evidence
2. Admissible as direct evidence when character in issue (rare)

• defamation action where truth is defense
• negligent entrustment case
• wrongful death action (what kind of spouse was the deceased?)

3. when admissible, use opinion, reputation, specific acts - any of the three methods.

B. Criminal Cases (MASS - reputation only) - Character in criminal cases is not on the table until D puts it there

1. Bad character is not admissible by P if to show action in conformity w/that bad character, unless the D opens the door by offering evidence of good character for the pertinent trait.
P may then cross a W giving that good char evidence, by asking if they've heard of acts that D has committed that would tarnish reputation (or opinion, under FRE). Naturally, W can still be impeached as any W can be impeached. P may also call prosecution Ws to testify to bad opinion/reputation, now that "door is open".

2. Victim's character, by D, in cases of self-defense argument. P can then cross, impeach, call other Ws to testify to good opinion/rep. And, may now attack D's character on the same trait. MASS: specific acts of V OK, but not reputation for violence.

3. Victim's character in sex cases
Specific acts only, to prove some 3d party source of semen/injury/physical evidence, or to show prior consensual intercourse b/w V and D.

MASS: reputation of V for violence may not be admitted (state of mind of D upon hearing rep still OK)
specific acts of V's violence may be admitted to infer that V was first aggressor in a self-defense case.

4. Specific Acts of prior misconduct may not be offered during P's case in chief to show criminal disposition, but may to show some other material fact, i.e., motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.

• Motive
• Intent
• Mistake, absence of
• Identity (including by m.o.)
• Common Plan or Scheme

NB: still could be outweighed by prejudicial nature, etc., of evidence, and excluded.

NB: Prior Similar Acts Allowed to Show Propensity in Sexual Assault and Child Molestation Cases.

III. Writings - authentication


A. Writing must be authenticated to admit as evidence. Must lay foundation that writing is what it purports to be.

1. Methods to Authenticate

Admission
Eyewitness Testimony
Handwriting Proof

• lay witness (recognize signature from pre-existing familiarity - not familiarity acquired just for litigation)
• expert witness (compare disputed signature with known genuine one)
• jury comparison (ditto)

Ancient Document rule (if it's 20 yrs (MASS: 30), regular on its face, and found in place of natural custody)
Solicited Reply Doctrine: disputed document came in reply to some prior communication.

2. How much authentication? Sufficient evidence to justify a jury finding of genuineness. Rsble jury could find genuine.

3. Self-Authenticating documents

• certified copies of public or business records
• official publications
• newspapers/periodicals
• trade inscriptions or labels (to indicate ownershop or control)
• acknowledged documents (certificate of acknowledge attached to a contract)
• signatures on certain commercial paper under UCC

4. Authenticating Photographs
Witness testimony that photo is a "fair and accurate representation" of the thing/place in the photo.

Store surveillance camera - photo speaks for itself.

• Need proof operating properly
• Need proof of time it was functioning
• Need proof how film was handled up until time of trial