Chapter 6 six evidence civ lit 2nd

Civil Litigation:Process and Procedures

Chapter SixEvidence

Civil Litigation: Process and Procedures Goldman/Hughes

© 2009 Pearson Education, Upper Saddle River, NJ 07458.

All Rights Reserved.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 fact




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




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




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”




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)




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




Demonstrative Evidence Tangible item that depicts, displays

or demonstrates a fact Photograph Model Magnetized board for accident

depiction Electronic presentations

Animations Videos




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




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




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




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




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




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




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




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




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




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




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




Challenging Credibility Raises doubts about

Accuracy Truthfulness

Tools used are Prior history of dishonesty Prior conduct Prior statements inconsistent with

current testimony




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




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




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




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




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




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




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




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




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




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




Records of Regularly Conducted Activity Records

Kept in the regular course of business Made contemporaneously with the

business activity Paper or electronic




Public Records Vital statistics

Birth certificates Death certificates Marriage certificates

Property records – deeds Activities of a public office or

agency




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




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




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

Chapter 6 six evidence civ lit 2nd

Documents

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destruction of evidence

types of evidence

inadmissible evidence

electroniccivil litigation

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hypotheticalcivil litigation