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C o u r t r o o m®

Game of Legal Intrigue

 

Rules of Evidence



Rules of Evidence Card 1


IRRELEVANT


Evidence is irrelevant when it has no tendency to prove or disprove the issues involved. Relevant evidence must bear a relationship to the facts to be proven.

Direct evidence is relevant. Circumstantial evidence is relevant if it has some tendency to prove a fact or consequence. Circumstantial evidence of unrelated events, if relevant, can be used if it can be shown that the circumstances under which the other events and the event at issue occurred were similar.

Exceptions where relevant evidence is disallowed: a. Gruesome or gory evidence; b. Statistical probabilities.

Relevant evidence is also inadmissible if the proposition it tends to prove is outweighed by the danger or considerations of:
  1. Unfair prejudicial impact upon the jury;
  2. Confusion of the Issues;
  3. Misleading the jury;
  4. Undue delay or waste of time.

Statements showing that a defendant took remedial measures, made an offer to compromise, or pay medical or hospital bills of another party, are not admissible to prove liability.


HEARSAY


Evidence not proceeding directly from the personal knowledge of the witness, but from knowledge of what someone else told him. "Second-hand knowledge."

Exceptions where hearsay evidence is admissible:
  1. If the statement is not being offered for its truth - for example, to show that the words were actually spoken, not whether the words spoken are true or not.
  2. A declaration against one's own self-interest.
  3. Excited Utterance - a spontaneous statement, related to a startling event or condition, made under stress of excitement.
  4. Dying Declaration - a statement made under the belief that death was imminent.
  5. Statements which directly describe or state the present or past physical, mental or emotional condition of the person making the statement.
  6. Statements for purposes of medical diagnosis or treatment.
  7. Statements of family history.
  8. Business records, reports and records of public offices and agencies, and hospital and medical records.
  9. Official written statements, such as, records of vital statistics, records of religious organizations, marriage and baptismal certificates, family records and property documents.
  10. Prior Testimony - Courtroom testimony made by an unavailable witness.
  11. Recorded Recollection - Statement made by the witness previously, and recorded, that he is presently unable to recall.
  12. Reputation in a community, or concerning personal or family history.
  13. Evidence of previous conviction of serious crimes.





Rules of Evidence Card 2


PRIVILEGE


No one can refuse to be a witness or give testimony. However, certain communications are privileged. For instance, a wife cannot be forced to testify against her husband, and vice-versa. Former spouses are also protected from revelation of confidential communications.

Other privileged communications are those between a lawyer and his client, between a doctor or psychotherapist and his patient, and a member of the clergy and a penitent.

Witnesses may also refuse to disclose trade secrets, political votes, the identity of informers, and confidential state secrets (classified information).


CHARACTER


In general, evidence of a person's character is inadmissible to prove conduct on a particular occasion. Exceptions In Proving Conduct:
  1. Past felony convictions, and those misdemeanor convictions which involve dishonesty, can be used to prove conduct.
  2. Evidence may be offered of the good reputation of a defendant.
  3. Evidence may be elicited of the poor character of an alleged victim or specific relevant instances of conduct by him.
  4. Reputation, opinion and specific acts are admissible where the defendant's character is an essential element of the Issue at hand.
  5. Evidence of a particular business routine or personal habit is admissible to prove conduct on a particular occasion was in conformity with that habit or routine.


OPINION


Opinion testimony falls into two categories - expert and non-expert.

Non-expert opinions and conclusions are permitted if they are rationally based on the perception of the witness, and helpful to a clear understanding of his testimony or the determination of a fact at issue.

Allowable non-expert testimony includes perceptions of measurements (height, weight, speed, distances); sensory descriptions (odors, sounds, colors, taste, temperature); physical, emotional and mental conditions of others and oneself (intoxication, sanity, injury, fear, sorrow); personal history; identifications (persons, handwriting); and value of one's own property or services ("My jewelry was worth $4500.")

Not allowable - split second judgements and perceptions, and legal conclusions (alcoholic, specific injury or psychological diagnosis)

Sometimes Allowable - Testimony giving an opinion of the meaning of another's conduct ("nodding yes," "started a fight").

To qualify as an expert, a witness must have special experience or training in the subject to which the opinion relates. An expert may rely upon hearsay testimony.

Exception - the expert may not give an opinion about the mental state of the defendant if it is an essential element of the crime or issue to be proved.





Rules of Evidence Card 3


AUTHENTICATION & IDENTIFICATION


Tangible evidence, to be admissible, must be authenticated or identified, so that the court is assured it is what its proponent claims it is.

Physical objects, voices and writings may be authenticated by someone with personal knowledge of the object, voice or writing.

Handwriting can be authenticated by someone who is familiar with that handwriting. An expert is not required. Voices also may be identified by non-experts. Voices and physical objects may be identified by distinctive markings or characteristics.

Physical objects can be authenticated if witnesses can testify to a continuous chain of possession, accounting for the objects' whereabouts from the time of an Incident to the present.

Documents which by their nature are self-authenticating and therefore admissible include newspapers and Periodicals, trade inscriptions, notarized documents, commercial paper, Acts of Congress, official publications, domestic public documents bearing a seal, foreign public documents, certified copies of public documents, and any document (Ancient Documents) more than twenty years old that is unsuspicious in nature.

Polygraph tests are inadmissible as evidence.


CONTENTS OF WRITINGS, RECORDINGS & PHOTOGRAPHS


To prove the content of a writing, recording, or photograph, the original is generally required.

"Originals" includes such items as negatives and prints of photographs, carbon copies, and photocopies of business records.

Exceptions:
  1. Duplicates are admissible if the original is unavailable and there is no question as to the authenticity of the original.
  2. Other evidence of contents is admissible if the originals were lost, destroyed, not obtainable, it is impractical to produce them or they are in the possession on one's opponent (e.g., the opponent was put on notice that the document would be required at the hearing, and he does not produce the document at the hearing).
  3. When a witness without personal knowledge of an event testifies, he must produce the document (a receipt to prove payment, an x-ray to prove injury, a transcript to prove testimony at a former trial.)
  4. When the witness has first-hand knowledge of an event, he does not need to produce the verifying documentation - for example, a doctor would not need to produce a medical report to prove his findings at a medical examination.
  5. The "Best Evidence" available must be used to prove the contents of a writing or recording. If the original is available, it must be produced. If the original is not available, then a copy must be produced. If a copy can not be produced, oral testimony concerning the issue may be taken.





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