Evidence Chart - Loyola Law School
Evidence Chart
Opinion
| |Common Law |FRE |CEC |
|Witness Opinion |Generally not allowed to draw any conclusions or inferences. Collectivism allowed: opinions regarding |
| |their common knowledge or experiences (i.e. Speed of car, Drunk) |
|Expert Opinion | |An expert may be used for |A Phd. May give final opinions, |
| | |scientific, technical, or other |before only Md’s (Texas). |
| | |specialized knowledge. | |
| | |must be w/in experts expertise | |
| | |a foundation of qualifications must| |
| | |be established by other experts | |
| | |may use the reliable work of others| |
| | |as a basis of opinion | |
Scientific & Demonstrative Evidence
| |Common Law |FRE |CEC |
|Scientific Evidence |Needs to be agreed on by the |Daubert Test: |Same as CL |
| |scientific community |1) sufficient fact or data | |
| | |2) reliable principles and methods | |
| |Blocks out minority positions |3) applies the principles to the | |
| | |facts | |
|Demonstrative Evidence |As long as there is some relevancy,| | |
| |then it will be admissible. | | |
Similar Happenings – Civil Cases
| |Common Law |FRE |CEC |
|Similar Happenings not based on |Admissible: must be a substantial identity of material circumstances. Does not need to be identical. |
|character | |
| | |
| |In cases of non-similar happenings, the # of non-happenings needs to be very high to = 1 happening. This |
| |is a Hearsay Issue/prior non-statements. |
| |Requires recordation of non-happenings. |
Subsequent Repairs
| |Common Law |FRE |CEC |
|Subsequent Repairs in Negligence | |Not admissible if offered to show |Will allow it in Strict Liability |
|cases | |liability or fault. |Cases. |
| | | | |
| | |May offer it in a liability case | |
| | |for impeachment w/ a limiting | |
| | |instruction. | |
Compromise
| |Common Law |FRE |CEC |
|Settlement/Compromise or Offers of Such |Inadmissible |Inadmissible |Inadmissible |
|Admissions made during settlement/ |Admissible |Inadmissible |Inadmissible |
|compromise or offers of such | | | |
|Payment of or offers to pay medical |Admissible |Inadmissible |Admissible, unless made out of |
|expenses | | |humanitarian motives |
|Admissions made during offers to pay |Admissible |Admissible |Admissible, unless made out of |
|medical expenses | | |humanitarian motives |
|Payments or offers made out of |Admissible |Admissible, unless offer to pay |Inadmissible |
|humanitarian motives | |medical expenses | |
|Admissions made during offers made out of|Admissible |Admissible |Inadmissible |
|humanitarian motives | | | |
Guilty Pleas
| |Common Law |FRE |CEC |
|Guilty Plea Withdrawn | |Inadmissible |Inadmissible |
| | |- Civil and Crim Cases |- Crim cases |
| | | | |
| | |Minority: admissible | |
|Nolo Contendere = no contest | |Inadmissible | |
|Guilty Plea NOT a Nolo Contendere | |Admissible, if the jdx does not | |
| | |have a nolo contendere plea (NY | |
| | |– ando v. woodberry) | |
Presumptions
| |Common Law |FRE |CEC |
|Rebuttable Presumptions: if not properly |MAJORITY: Bursting Bubble Theory- if the person w/ the burden of |If there is an underlying public|
|rebutted they will be viewed as |rebutting offers enough evidence that the presumption is |policy issue the you follow the |
|conclusive presumptions |completely gone, it burst the presumption and it will be up to |MINORITY: lingering on theory, |
| |the jury. |otherwise, follow the MAJORITY: |
| | |bursting bubble theory |
| |MINORITY: Lingering on theory – if the presumption is rebutted, | |
| |it does not disappear, it shifts the normal burden back to the P | |
| |and needs to disprove every fact by a preponderance of evidence | |
| |(YOU MUST REBUT THE REBUTTAL). | |
Hearsay Exceptions
| |Common Law |FRE |CEC |
|Former Testimony |More strict than FRE b/c can only |1) Unavailability |Same as FRE. |
|Crim To Civil Allowed |be used against the unavailable |2) Under oath | |
| |Declarant, not a co-party with the |3) Opportunity for X-ex | |
|Civil To Crim Not Allowed |same identity of interest. |4) Identity of interest in X-ex | |
| | |(issues and parties) | |
|Dying Declarations |Can only be used for criminal |1) Unavailability (i.e. coma |Same as FRE. |
| |cases, not civil. |sufficient) |* Demands death |
| | |2) Declarant must believe she was | |
| |* Demands death |dying | |
| | |3) must believe death was imminent | |
| | |4) statement must describe the | |
| | |cause and circumstances leading to | |
| | |her death. | |
|Spontaneous Exclamations/ Excited | |1) Declarant was in shock |Same as FRE. |
|Utterance | |2) Declarant was somehow involved | |
| | |in the startling event |* Need independent proof that event|
| | |3) Made while excited |was exciting, aside from statement.|
| | |- subtract time while | |
| | |unconscious | |
| | |4) Must be a description | |
|Present Sense Impression |Required presence of 3rd party who |1) Declarant sees an event and |“Bomb Diffusing Exception” |
| |heard the statement. |describes it soon afterwards | |
| | | |1) Declarant must be involved in |
| | |Note: |the conduct (Much more narrow than |
| | |No req. for presence of 3rd party |FRE) |
| | |w/ the same opportunity to observe.|2) Statement must be made to |
| | | |another with the same opportunity |
| | | |to observe |
| | | |3) Declarant must be describing his|
| | | |own behavior. |
|Nicole Brown Exception | | |A diary or any writing can be used |
| | | |by and against the party that |
| | | |exhibits threats. |
| | | | |
| | | |Time limit of 5 years. |
|Admissions by Partied Opponent | |Non-Hearsay for all admissions | |
| | |exceptions. | |
| | |Admissible against the party who | |
| | |said it, if the only objection left| |
| | |is hearsay | |
|Adoptive Admission |Adoptive Admission |
| |Statement the party has manifested an adoption or belief in its truth. |
| |* If response ambiguous, then no adoptive admission. |
| | |
| |Admission by Silence |
| |It would have been normal for the party to respond, and |
| |The party fails to respond |
| |* The party must have heard the statement that he failed to respond to. |
|Authorized Admission |Need actual authorization |“Scope of Employment” |“Scope of Employment” |
| | |* Must be made while still employed|* Can be made by former employees, |
| | | |even after termination of |
| | |* 2 step process where judge |employment |
| | |decides if the statement can be | |
| | |used to prove scope of employment, |* Need more than statement to prove|
| | |then the evidence goes to the jury;|scope of employment |
| | |however, there must be other | |
| | |evidence, in addition to the | |
| | |statement, to get the judge to | |
| | |consider it. | |
|Admission by Co-conspirators |Need evidence independent of the |Judge can use statement, along with|Need evidence independent of the |
| |statement. |other evidence, to make a |statement. |
| | |foundational decision on whether | |
| | |there is a conspiracy. | |
| |Scope of the exception: |
| |Statement must be made in furtherance and within the scope and course of the conspiracy. |
| |Minority: any statement by co-conspirator is admissible. |
| |When 1 conspirator is arrested, the conspiracy has ended. Therefore, admission after that not is |
| |admissible against the non-admitting conspirator. |
|Declarations Against Interest (Ws |Mississippi: No exception for |1) Unavailability |1) Unavailability |
|only) |Declaration of Criminal Liability |2) Made against money, property, |2) Made against money, property, |
| | |civil, or criminal interests only |civil, criminal, or social disgrace|
| | |3) Trustworthiness |interests. |
| | |(ONLY needed in criminal cases; | |
| | |corroborating circumstances ) | |
|State of Mind |(Non-Hearsay) |1) Statement must be about present |1) Trustworthiness |
| | |state of mind or physical condition|2) Statement must be about present |
| |Physical condition not included. |2) Includes statement of plan, |state of mind or physical |
| | |motive, and design |condition. |
| | | | |
| | |* Can only use declarant’s |If statement is of past state of |
| | |statement of state of mind to prove|mind or physical condition, then |
| | |declarant’s conduct. |only admissible to prove ONLY the |
| | | |past state of mind of Declarant, |
| | | |and Declarant must be unavailable. |
| | | | |
| | | |3) Includes statement of plan, |
| | | |motive, and design |
| | | | |
| | | |* Can admit even to prove future |
| | | |conduct of someone other than the |
| | | |Declarant. |
| | |Majority: Statement Orientated Approach |
| | |- not hearsay |
| | |Minority: Declarant Orientated Approach |
| | |- hearsay b/c becomes “I believe I am the Pope”, thus |
| | |use state of mind exception |
| | |Sheppard’s Rule: a statement of belief or memory to prove the fact |
| | |remembered or believed is inadmissible; NOT within the state of mind |
| | |exception. |
| | |Exception: Wills and Trusts |
|Physical Condition or Pain |Only statements made to a doctor. |Past State of Mind or Condition: |Incorporated into the state of mind|
| | |1) Statement must be made for |exception |
| | |medical diagnosis or treatment (to | |
| | |someone in the medical field). |Separate exception for children |
| | | |under 12 describing abuse for |
| | |* More narrow than CA b/c statement|treatment. |
| | |must be made for purpose of medical| |
| | |diagnosis or treatment. | |
| | | | |
| | |* More broad than CA b/c doesn’t | |
| | |require unavailability. | |
|Past Recollection Recorded | |Absence of memory |
| | |Recorded by the W or under his direction |
| | |Fresh in W’s mind at time of recording |
| | |W must be physically available and present in court to testify that he|
| | |recorded it accurately |
| | | |
| | |* Can read it into record, but can’t submit it as an exhibit unless |
| | |done by adverse party. |
|Business Records | |Trustworthiness |
| | |- No police reports in criminal cases |
| | |Recorded in the ordinary course of business |
| | |In writing |
| | |Recorded at the time or near time of event |
| | |Custodian of Record must be in court to testify |
| | | |
| | |Medical or Official records don’t require custodian or record in |
| | |court. |
| | | |
| | |Medical Records: Allows in statements regarding injury and causation |
| | |but not fault. |
| | | |
| | |New Hampshire Rule: only state that allows oral statements under |
| | |business records. |
|Prior Identification | |(Non-Hearsay) |1) Declarant available to state |
| | |1) Declarant available for cross |that the ID was a true reflection |
| | |examination |of his opinion at the time. |
| | |2) Statement must be one of ID. |2) ID was made when the crime or |
| | | |occurrence is still fresh in the |
| | |* Much broader than CEC |declarant’s mind. |
| | | |- IDs made at lineups |
| | | |deemed fresh |
|Expanding Hearsay Exception | |1) Statement must have equivalent |None |
| | |trustworthiness as other exceptions| |
| | |2) Strong necessity must be shown | |
| | |3) Topic on which the statement is | |
| | |relevant must be important | |
| | |4) Justice and purpose of evidence | |
| | |rules served by the admission | |
| | |5) The proponent must have given | |
| | |notice of intention to use the | |
| | |rule. | |
|Ancient Records Exception |Any document over 30 years of age, | | |
| |and for that entire time, it has | | |
| |been acted upon as if they are | | |
| |reliable and accurate by those | | |
| |parties with an interest in the | | |
| |subject matter of those documents. | | |
| | | | |
| |New Rule: 20 years | | |
|Prior Inconsistent Statements |(Non-Hearsay) |(Non-Hearsay) |1) Declarant available |
| |None |1) Declarant available now for |2) Prior inconsistent statement can|
| | |cross examination |be used for its truth or to |
| | |2) Prior statement must be under |impeach, regardless if it was made |
| | |oath if using prior statement for |under oath |
| | |its truth | |
| | |- No need of prior | |
| | |opportunity to cross | |
| | |examine | |
| | | | |
| | |* If for impeachment, no need for | |
| | |prior statement to be made under | |
| | |oath | |
|Confrontation Clause |Voucher Rule: Can’t impeach your |1) Available |Same as FRE |
| |own W b/c you are vouching for them|- Lack of memory | |
| |when you put them on the stand. |doesn’t make you | |
| | |unavailable. | |
| |CA & FRE: can impeach your own W by|2) Opportunity to cross-examine | |
| |designating them as hostile Ws. | | |
| | |* All “firmly rooted” hearsay | |
| |* Chambers Rule: D should be able |exceptions are presumed to be | |
| |to admit any evidence in |constitutional; however, expanding | |
| |furtherance of his defense |hearsay exceptions need to pass the| |
| |regardless of evidence rules. |confrontation clause. | |
| | | | |
| | |Ohio: Allowed in former testimony | |
| | |even though need opportunity to | |
| | |cross examine b/c W testified on | |
| | |direct. | |
| | | | |
Prior identification, admissions, and prior inconsistent statements: non-hearsay
Character Evidence – Must be relevant to the trait involved in the case.
| |Common Law |FRE |CEC |
|Character Itself is the Issue |Specific Acts |Reputation |Reputation |
|Civil Cases: | |Opinion |Opinion |
|Negligent Entrustment | |Specific Acts |Specific Acts |
|Defamation | | | |
|Child Custody | | | |
| | | | |
|Criminal Cases: Entrapment | | | |
|P’s ability to bring in D or V’s |Never |Never, exception: D’s prior sex |Never, exception: D’s prior sex |
|character based Propensities | |crimes in a sexual offense case. |crimes or domestic violence in a |
|without D first opening the door. | | |sexual offense or domestic violence|
| | | |case. |
|Mercy Rule (Criminal Cases Only) |D can only use Reputation. |D can use Reputation and Opinion. |D can use Reputation and Opinion. |
| | | | |
| |In return, P can use Reputation, |In return, P can use Reputation and|In return, P can use Reputation and|
| |and can use Specific Acts of the W |Opinion, and can use Specific Acts |Opinion, and can use Specific Acts |
| |when cross-examining the W’s D put |of the W when cross-examining the |of the W when cross-examining the |
| |forth. |W’s D put forth. |W’s D put forth. |
|Victim’s Rule (Criminal Cases Only)|D can only use Victim’s Reputation.|D can use Victim’s Reputation and |D can use Victim’s Reputation, |
| | |Opinion. |Opinion, and Specific Acts. |
|Self Defense claim itself is an |In return, P can only use | | |
|attack of the victim’s character |Reputation. |In return, P can use Reputation and|In return, P can use all 3. |
| | |Opinion, and can use Specific Acts | |
| | |when cross-examining the W’s D put | |
| | |forth. | |
|Motive, M.O., Intent, Credibility, |Specific Acts |Specific Acts |Specific Acts |
|and Identity | | | |
|Habit (Criminal and Civil Cases) |Specific Acts |Specific Acts |Specific Acts |
Impeachment
| |Common Law |FRE |CEC |
|Bad Character: Unconvicted Prior |Yes, can use extrinsic evidence. |No. |No. |
|Bad Acts Not Regarding Dishonesty | | | |
|Bad Character: Unconvicted Prior |Yes, can use extrinsic evidence. |Subject to FRE 403. |No. |
|Bad Acts Regarding Dishonesty | | | |
| | |No Extrinsic Evidence. | |
|Bad Character: Prior Convictions |Yes, can use extrinsic evidence. |Any Felonies or Misdemeanors. |Felonies, but consider Beagle & |
|Regarding Dishonesty | | |Castro (basically CEC 352) |
| | |10 year limit. | |
| | | |Beagle (Criminal D is also the W): |
| | | |The more similar the prior crime is|
| | | |to the present crime, the more |
| | | |likely it shouldn’t be admitted. |
| | | |The longer ago it was, less likely |
| | | |to admit. |
| | | |If evidence will prevent D from |
| | | |testifying, then less likely to |
| | | |admit. |
| | | |If prior conviction has nothing to |
| | | |do with honesty and veracity, then |
| | | |it shouldn’t be admitted. |
| | | | |
| | | |Castro (All other cases): subject |
| | | |to CEC 352. |
| | | | |
| | | |Misdemeanors, but consider Harris, |
| | | |subject to CEC 352 |
| | | | |
| | | |Time Limit: Not too old: |
| | | | |
| | | |Note: CEC uses the term |
| | | |“untrustworthiness”, which is |
| | | |narrower than “dishonesty”. |
| | | | |
| | | | |
|Bad Character: Prior Conviction Not|Yes, can use extrinsic evidence. |Felonies only. |Felonies, but consider Beagle & |
|Regarding Dishonesty | | |Castro (basically CEC 352) |
| | |If W is the criminal defendant, | |
| | |then admissible unless probative |Misdemeanors, but consider Harris, |
| | |value outweighed by risk of |subject to CDC 352 |
| | |prejudice. | |
| | | |Time Limit: Not too old |
| | |If W is NOT the D in a Crim, then | |
| | |admissible unless probative value | |
| | |substantially outweighed. | |
| | | | |
| | |Other W not in a crim case, subject| |
| | |to FRE 403 – unfair prejudice rule.| |
|Defective Capacity |Allows extrinsic evidence |Allows extrinsic evidence |Allows extrinsic evidence |
|Specific Unrelated Error |No extrinsic evidence. |No extrinsic evidence. |Governed by CEC 352. |
|(Impeachment by Contradiction) | | | |
|Bias |Must first lay proper foundation |Subject to FRE 402. |Subject to CEC 352. |
| |(time, place, person, statement, | | |
| |etc…) |Allows extrinsic evidence. |Allows extrinsic evidence. |
| | | | |
| |Allows extrinsic evidence. | | |
|Prior Inconsistent Statements |Must first lay proper foundation. |May impeach even if prior |Can be offered for its truth or to |
| |(If PIS was a writing, then must |statement was NOT under oath. |impeach. |
| |show W the writing first before | | |
| |questioning about it.) |Use extrinsic evidence but W must |Use extrinsic evidence only if W |
| |Can’t be offered for its truth b/c |later be allowed to deny or |not excused except in the interest |
| |no hearsay evidence under common |explain, if requested, except in |of justice. |
| |law. |interest of justice. | |
| | | |Prior Consistent Statements: Look |
| |Prior Consistent Statements: |Prior Consistent Statements: Look |at point in time under CL and the |
| |Statements by W consistent with |at point in time under CL and the |day opposition claims W made prior |
| |subsequent testimony prior to the |day opposition claims W made prior |inconsistent statement. The |
| |point in time when W’s alleged |inconsistent statement. The |earlier point in time wins. |
| |motive to fabricate existed are |earlier point in time wins. | |
| |admissible while statements after | | |
| |that point are not. | | |
Authentication and the Best Evidence Rule
|Authentication: Must prove the evidence is what the proponent claims it is. |
|Common Law |FRE |CEC |
|Authentication by Content |Self Authentication (10 things) | |
| | | |
| |Authentication by Content | |
| | | |
| |Ways to authenticate | |
| |signature | |
| |phone conversation | |
|Best Evidence Rule |
|Step 1: Is the content of the writing at issue? |
|If yes, must bring in original, but can bring in secondary evidence if the reason the reason is not available is not do to the fault of the |
|proponent. |
|Step 2: Is the secondary evidence admissible? |
|No presumption that secondary evidence is |Presumption that secondary evidence is |Presumption that secondary evidence is |
|reliable. Thus, burden on the proponent to |reliable. Thus, burden on opponent to prove |reliable. Thus, burden on opponent to prove |
|prove that it is reliable. |that it was unreliable. |that it was unreliable. |
| | | |
| | |In civil and criminal, can use secondary |
| | |evidence even if original is available unless |
| | |the opponent proves it is unreliable or |
| | |admission of the secondary evidence would be |
| | |unfair. |
| | | |
| | |In criminal cases, if the original is in the |
| | |possession or custody or control of the |
| | |proponent (reasonable attempt), then secondary |
| | |evidence will not be admitted. |
| | |EXCEPTION: photocopy or equivalent. |
| | | |
| | |Oral Testimony Exception: Can admit oral |
| | |testimony if original writing is lost or |
| | |destroyed, and does not have control of a copy.|
| | |Also, can admit oral testimony, regardless of |
| | |availability, if it is not closely related to |
| | |the controlling issue and it would be |
| | |inexpedient (large burden) to produce the |
| | |writing. |
Privileges
|No privileges in FRE |Common Law |CEC |
|Attorney-Client |Applies to any lawyer who the client reasonably |Exception: |
| |believed to be an attorney with reasonable |Attorney believes serious bodily harm will result |
| |expectation of confidentiality, and the purpose of |Crime/Fraud must be sought by the client. |
| |the communication must be for legal advice. | |
| | | |
| |Who’s Covered? | |
| |• 3rd party experts and interpreters if not used as | |
| |expert witnesses | |
| |• employees instructed to talk to attorney or his | |
| |agents by senior management and the conversation was | |
| |w/in the scope of his employment and pertinent to the| |
| |litigation, and not incidentally noticed. | |
| | | |
| |Privilege inapplicable if in furtherance of an | |
| |on-going or future criminal activity. | |
| | | |
| | | |
| | | |
| | | |
|Doctor-Patient |Must be for purpose of diagnosis or curative |No Doctor-Patient Privilege for criminal cases. |
| |treatment. | |
| | |Exception: Serious bodily harm includes property. |
| |Doctor is anyone the patient reasonably believes to | |
| |be a doctor. | |
| | | |
| |Patient Litigant Exception: No privilege if Patient | |
| |offers his mental or physical condition into | |
| |evidence. | |
|Psychotherapist-Patient |Includes: |Available in both civil and criminal cases. |
| |Psychiatrist | |
| |• whoever they reasonably believe | |
| |Psychologist, Licensed Social Workers, Counselors, | |
| |etc… privilege only applies if they are who they are.| |
| | | |
| |Patient Litigant Exception: but must be an essential | |
| |part of the litigation. | |
| | | |
| |Menendez Brother Exception: reasonable belief that | |
| |the patient is a danger to himself or others; | |
| |disclosure limited to what is necessary to prevent | |
| |the danger. | |
|Clergy-Parishioner |Both Clergy and Parishioner if religion has tenet of | |
| |confidentiality. | |
|Reporter |No privilege, contempt as remedy: |Has privilege in CEC and Constitution, but court |
| |Civil Contempt: can be indefinite, but must end when |ignores it. |
| |it will no longer serve the purpose. | |
| |Criminal Contempt: must be definite. |Contempt as remedy: |
| | |Civil Contempt: can be indefinite, but must end when |
| | |it will no longer serve the purpose. |
| | |Criminal Contempt: must be definite. |
|Marital |Criminal Cases ONLY |Exercisable in all cases. |
| | | |
| |FRE has both Disabling and Confidential |Marital Disabling Privilege: |
| |Communications Privilege. |just need to be married at the time of testimony |
| | |W is the sole holder of the privilege. |
| |NY only has the Confidential Marital Communications |Exception: Marriage for the purpose to comply with |
| |Privilege. |rule is not recognized. (None in FRE) |
| |also, willing to allow other 3rd parties to be |Exception: If the crime’s victim (or property) is the|
| |present |spouse, relative, or cohabitant, then the privilege |
| | |does not apply. |
| | | |
| | |Confidential Marital Communications: |
| | |communication |
| | |made in confidence |
| | |married while communication was made |
| | |Both D and W (H & W) can exercise the privilege |
| | |Applies ANY time, even if spouse is not a party |
| | | |
| | |Exception: No privilege if communication was made in |
| | |furtherance of a crime. |
|Governmental |Applies to all Jdx – The Presdent has an executive |Elements: |
| |privilege to keep oval office conversations |formally claim the privilege by the head of the |
| |confidential EXCEPT: |department |
| |conversation is relevant to a criminal prosecution |with some circumstantial evidence to support it. |
| |the conversation does NOT involve military or | |
| |diplomatic content |What can P do to challenge the privilege: |
| | |• In civil cases: nothing |
| | |• In criminal cases where D wants the info, State |
| | |would have to let D go b/c the secrets may clear D of|
| | |the crime (due process). |
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