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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