Chapter 6 six evidence civ lit 2nd

Civil Litigation:
Process and Procedures

Chapter Six
Evidence

Fact and Law
 Fact – an event or occurrence
 Law – determines what is proof, is
necessary to establish a cause of action
 Must identify all facts that will be
needed to prove a case
 The rules of evidence control what may
be presented to the trier of fact

Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 2

Admissible Evidence
 Relevant – convinces the trier of fact to
believe one side (tends to prove the
existence of facts that are important to the
plaintiff‟s prima facie case, or a defense)
 Reliable – trustworthy & believable, but
not binding or irrefutable
 Real – such as physical evidence, not
hypothetical

Goldman/Hughes 3

Probative Value
 Is relevant, reliable & real, but its ability
to prove a central issue must be greater
than its:
 Possible prejudicial effect on the trier of
fact, resulting in too much sympathy for a
victim
 Possible prejudice based upon a desire to
punish the defendant

Goldman/Hughes 4

Inadmissible Evidence
 Could create a negative inference
 Society does not wish to discourage this
conduct
 Subsequent remedial measures – making repairs
after an incident
 Offers of compromise or payment of medical
expenses– not necessarily an admission of fault
 Existence of liability insurance – doesn‟t affect
liability, but can encourage dipping into “deep
pockets”

Goldman/Hughes 5

Types of Evidence
 Witness testimony
 Tangible evidence – documents &
business records, demonstrative
evidence, physical items
 Documentary evidence – writings,
recordings, photographs (including x-
rays), electronic recordings, data
compilations (paper or electronic)
Goldman/Hughes 6

Authentication
 By the document custodian or witness who
can attest to its authenticity
 Best evidence rule – preference for originals
over copies, but copies acceptable in many
instances with proper assurance of accuracy
 Self-authenticating – rules of evidence specify
some categories as self-authenticating, such
as domestic public documents from
government files

Goldman/Hughes 7

Demonstrative Evidence
 Tangible item that depicts, displays or
demonstrates a fact
 Photograph
 Model
 Magnetized board for accident depiction
 Electronic presentations
 Animations
 Videos

Goldman/Hughes 8

Physical Evidence
 Physical items at the heart of a lawsuit
 Must preserve a chain of custody,
creating a record
 Establishing who had access to or control
of the item
 That the item remains in the same
condition as at the time of the incident
 Maintain a log, keep a secure evidence
locker
Goldman/Hughes 9

Spoliation
 Intentional alteration or destruction of
evidence
 Sanction possible -- A jury charge that
they may make a negative inference
from the fact a party destroyed
evidence

Goldman/Hughes 10

Witness Testimony
 Usually oral, testimony given under oath
(religious context) or affirmation (affirm
without reference to religion), designed to
awaken the conscience of the witness to the
serious nature of the event
 Attorneys call witnesses to support their
cases – cannot suborn perjury
 Directed by attorney questions

Goldman/Hughes 11

Witnesses
 Party with the burden of proof presents
their evidence first
 Reluctant witnesses are deemed to be
hostile, permitting the use of leading
questions
 Cross-examination of the other side‟s
witnesses can include leading questions

Goldman/Hughes 12

Lay Witnesses
 Also, fact witnesses
 Have personal knowledge about the
matter before the court
 Can give opinion testimony based on
personal knowledge & observations
 Cannot give opinions based on specialized
or technical knowledge; usually called to
relate facts they personally perceived

Goldman/Hughes 13

Qualifying a Fact Witness
 The potential witness
 Has personal knowledge
 Is competent to testify
 Physically & mentally capable of understanding
the oath
 Capable of recollecting & communicating details
of the event

Goldman/Hughes 14

Expert Witnesses
 Used to explain
 To the fact finder
 An area that is outside the scope of an average
individual‟s training or experiences
 Does not have personal knowledge of the
event
 Qualified by
 Special knowledge
 Training
 Experience
Goldman/Hughes 15

Experts
 Provides informed opinions
 Cannot answer the ultimate question of
fact (the driver was negligent) but can
address an element (the car was
speeding)
 Credentials can include academic
degrees, publications, etc., but will
frequently be based upon experience
Goldman/Hughes 16

Qualifying an Expert
 Must be accepted as an expert by the
court
 Stipulated by both parties
 Initial testimony establishes the
credentials, then the attorney will request
the witness be accepted as an expert

Goldman/Hughes 17

Prerecorded Testimony
 Witness is unavailable to appear at trial
 Physically incapable
 Expert who cannot schedule court time
 Deposition testimony may be used (Fed.)
if witness is unable to appear
 Age
 Illness
 Infirmity
 Imprisonment
Goldman/Hughes 18

Deposition Testimony
 Must be recorded under oath
 Audio
 Audio/video
 Stenographic transcript
 Both sides must have an opportunity
 To examine the witness
 Make objections
 Edit presentation to eliminate evidence excluded
by sustained objections

Goldman/Hughes 19

Challenging Credibility
 Raises doubts about
 Accuracy
 Truthfulness
 Tools used are
 Prior history of dishonesty
 Prior conduct
 Prior statements inconsistent with current
testimony

Goldman/Hughes 20

Prior Statements
 Out-of-court statement
 Under oath, or not
 Various reports (police, insurance, etc.)
 Statements overheard by other witnesses
 Depositions, witness affidavits, interviews
 Prior inconsistent statements
 Jury must decide which to believe
 Could undercut the value of the testimony

Goldman/Hughes 21

Attacking Credibility
 The legal team investigates potential
witnesses for other means of attacking
credibility
 Criminal history
 Conviction involving dishonesty or perjury, false
statements
 Less than 10 years ago (longer is possible with
notice & an opportunity to dispute it)
 Religious beliefs cannot be used

Goldman/Hughes 22

Impeaching
with Character, Habit
 Character evidence
 Is not admissible to demonstrate specific
behavior
 Is based upon witnesses‟ reputations in their
community for truthfulness, only if their
credibility has been attacked
 Reputation ONLY, not specific instances
 Can testify about habits, based upon
personal observations

Goldman/Hughes 23

Hearsay
 An out-of-court statement
 Made by someone other than the witness
 Offered into evidence to prove the truth of the
matter asserted
 “He said, „The butler did it.‟” – hearsay, if offered to
prove the butler did it.
 “He said, „The butler did it.‟” – not hearsay, if
offered to prove the victim was still alive when the
witness entered the room
 Not reliable, since the speaker cannot be
cross-examined
Goldman/Hughes 24

Hearsay Exceptions
 Situations in which people are unlikely to
fabricate self-serving statements
 Enhances the credibility of the statement
 Present sense impression or then-existing
mental, emotional or physical condition
 Excited utterance, statement against interest,
or statement made in belief of impending
death, statement against interests

Goldman/Hughes 25

More Exceptions
 Statements that are
 Made for the purpose of medical diagnosis
 Recorded recollections
 Records (or absence of records)
 Regularly conducted activity, market reports, learned
treatises
 Public records, vital statistics, of religious
organizations, boundaries, property interests, prior
convictions
 Family records, ancient documents, character
reputation, personal or family history

Goldman/Hughes 26

Present Sense Impression
 Contemporaneous account of an event
 Personal perceptions
 Reliability based upon the lack of
opportunity for the declarant to:
 Shade or fabricate a story
 Anticipate future litigation
 Be self-serving

Goldman/Hughes 27

Excited Utterances,
Dying Declarations
 Excited utterances
 Are made under the stress of the excitement
of the event
 Must be validated by the circumstances
 Dying declarations
 Belief in impending death
 Resulting in psychological & physical stress
 Less likelihood of fabrication
 Witness need not be correct in his or her belief

Goldman/Hughes 28

Statements for
Purpose of Medical Treatment
 Based upon the perceived fear of mis-
diagnosis and/or treatment
 Statements to medical personnel may
include
 Past or present symptoms
 Pain
 Previous medical problems

Goldman/Hughes 29

Recorded Recollections
 Recorded Recollections are writings
used to refresh a witness‟s memory
 May be read into the record
 Must have been fresh in the witness‟s
memory at the time recorded
 Must accurately reflect their memory

Goldman/Hughes 30

Records of
Regularly Conducted Activity
 Records
 Kept in the regular course of business
 Made contemporaneously with the
business activity
 Paper or electronic

Goldman/Hughes 31

Public Records
 Vital statistics
 Birth certificates
 Death certificates
 Marriage certificates
 Property records – deeds
 Activities of a public office or agency

Goldman/Hughes 32

Family and
Ancient Documents
 Family history may not be officially
recorded
 Family records, such as family trees,
memoirs
 Genealogies
 Photographs
 Ancient documents were not prepared
in anticipation of this particular litigation

Goldman/Hughes 33

Statement Against
Interest, Non-Hearsay
 A statement against one‟s own interest
is deemed reliable
 Not self-serving
 Probably would not be made if not true
 A statement is non-hearsay if the
declarant is available for cross-
examination, even if the statement is
part of another witness‟s testimony

Goldman/Hughes 34

Objections
 Objections must be made
 In a timely manner (at the moment the
questionable testimony is offered)
 As often as the statement if offered, in
order to preserve it
 Failure to do so can constitute waiver
 A permanent objection will preserve it

Goldman/Hughes 35

Chapter 6 six evidence civ lit 2nd

Recommandé

Recommandé

Contenu connexe

Tendances

Tendances (20)

En vedette

En vedette (11)

Similaire à Chapter 6 six evidence civ lit 2nd

Similaire à Chapter 6 six evidence civ lit 2nd (16)

Plus de difordham

Plus de difordham (20)

Chapter 6 six evidence civ lit 2nd