Chapter 6 six evidence civ lit 2nd

328 views
255 views

Published on

0 Comments
0 Likes
Statistics
Notes
  • Be the first to comment

  • Be the first to like this

No Downloads
Views
Total views
328
On SlideShare
0
From Embeds
0
Number of Embeds
4
Actions
Shares
0
Downloads
10
Comments
0
Likes
0
Embeds 0
No embeds

No notes for slide

Chapter 6 six evidence civ lit 2nd

  1. 1. Civil Litigation:Process and Procedures Chapter Six Evidence
  2. 2. 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 factCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 2
  3. 3. 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 hypotheticalCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 3
  4. 4. 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 defendantCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 4
  5. 5. 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”Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 5
  6. 6. 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)Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 6
  7. 7. 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 filesCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 7
  8. 8. Demonstrative Evidence  Tangible item that depicts, displays or demonstrates a fact  Photograph  Model  Magnetized board for accident depiction  Electronic presentations  Animations  VideosCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 8
  9. 9. 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 lockerCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 9
  10. 10. 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 evidenceCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 10
  11. 11. 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 questionsCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 11
  12. 12. 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 questionsCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 12
  13. 13. 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 perceivedCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 13
  14. 14. 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 eventCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 14
  15. 15. 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  ExperienceCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 15
  16. 16. 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 experienceCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 16
  17. 17. 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 expertCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 17
  18. 18. 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  ImprisonmentCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 18
  19. 19. 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 objectionsCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 19
  20. 20. Challenging Credibility  Raises doubts about  Accuracy  Truthfulness  Tools used are  Prior history of dishonesty  Prior conduct  Prior statements inconsistent with current testimonyCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 20
  21. 21. 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 testimonyCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 21
  22. 22. 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 usedCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 22
  23. 23. 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 observationsCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 23
  24. 24. 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-examinedCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 24
  25. 25. 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 interestsCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 25
  26. 26. 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 historyCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 26
  27. 27. 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-servingCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 27
  28. 28. 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 beliefCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 28
  29. 29. 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 problemsCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 29
  30. 30. 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 memoryCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 30
  31. 31. Records of Regularly Conducted Activity  Records  Kept in the regular course of business  Made contemporaneously with the business activity  Paper or electronicCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 31
  32. 32. Public Records  Vital statistics  Birth certificates  Death certificates  Marriage certificates  Property records – deeds  Activities of a public office or agencyCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 32
  33. 33. 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 litigationCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 33
  34. 34. 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 testimonyCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 34
  35. 35. 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 itCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 35

×