NCA Evidence cheat sheet

Burden of production: party must introduce enough evidence that a reasonable factfinder could find the element satisfied; failure permits judgment as a matter of law.

Burden of persuasion: party bearing it must convince the trier to the required degree; in criminal cases the prosecution bears it on every element.

Standards of proof ranked: preponderance of the evidence (more likely than not, >50%); clear and convincing (highly probable); beyond a reasonable doubt (near certitude).

Preponderance compares the weight of opposing evidence; it is not a headcount of witnesses and is satisfied by the marginally heavier side.

Clear and convincing requires evidence that produces firm belief or conviction; it applies to fraud, termination of parental rights, and similar civil matters.

Beyond a reasonable doubt is reserved for criminal conviction and does not require mathematical certainty; it excludes every reasonable hypothesis of innocence.

Presumptions shift the burden of production; conclusive presumptions and true burden-shifting presumptions are disfavored and limited by due process.

Direct evidence proves a fact without inference (eyewitness observation); circumstantial evidence requires an inference and is legally sufficient alone to convict.

Judicial notice: court accepts adjudicative facts not subject to reasonable dispute because generally known or accurately determinable from reliable sources.

Relevance test: evidence has any tendency to make a fact of consequence more or less probable than it would be without the evidence; materiality plus probative value.

Rule 403 balance: relevant evidence may be excluded if probative value is substantially outweighed by unfair prejudice, confusion, misleading the jury, delay, waste, or cumulative presentation.

Unfair prejudice means an improper basis for decision (emotion, bias), not merely damaging evidence; damaging evidence is admissible.

Subsequent remedial measures are inadmissible to prove negligence or culpable conduct, but admissible for impeachment, ownership/control, or feasibility when disputed.

Offers to compromise and conduct during settlement negotiations are inadmissible to prove liability or amount; statements in negotiation are protected.

Payment or offer to pay medical expenses is inadmissible to prove liability; accompanying admissions are not shielded by that rule alone.

Pleas and plea discussions: withdrawn guilty pleas, nolo contendere pleas, and statements in plea negotiations are generally inadmissible against the defendant.

Liability insurance evidence is inadmissible to prove negligence or ability to pay; admissible for agency, ownership, control, or bias of a witness.

Character evidence is barred to prove conduct in conformity; exceptions include defendant's or victim's character in criminal cases and character essential to a claim or defense.

Competency requires personal knowledge of the matter, an oath or affirmation, and capacity to perceive, recall, and communicate; age alone is not disqualifying.

Lay opinion testimony is admissible if rationally based on the witness's perception, helpful to clear understanding, and not based on specialized knowledge.

Expert testimony requires qualified expertise, reliable methodology, and helpfulness; reliability turns on testability, error rate, peer review, and general acceptance.

Experts may base opinions on facts personally observed, admitted evidence, or data reasonably relied upon by experts in the field; underlying facts need not be admissible.

Cross-examination may impeach by prior inconsistent statements, bias, interest, motive, sensory or mental capacity defects, and contradiction.

Prior inconsistent statements under oath at a proceeding are substantive evidence; unsworn prior inconsistent statements are admissible only to impeach, with limiting instruction.

Impeachment by prior conviction: crimes involving dishonesty are generally admissible; other felonies are subject to a Rule 403-style balance; misdemeanors generally excluded.

Specific instances of truthful conduct are not admissible to support credibility; reputation or opinion for truthfulness is admissible only after character for truthfulness is attacked.

A party may impeach its own witness; leading questions are permitted on cross-examination and for hostile, adverse, or forgetful witnesses.

Hearsay is an out-of-court statement offered to prove the truth of the matter asserted; not hearsay if offered for effect on the listener or as circumstantial evidence of state of mind.

Nonhearsay categories include verbal acts with independent legal significance, prior consistent statements rebutting fabrication, and prior identifications after testifying.

Party-opponent statements are nonhearsay: made by a party, adopted, authorized, by an agent within scope, or by a co-conspirator during and in furtherance of the conspiracy.

Present sense impression: statement describing or explaining an event made while or immediately after the declarant perceived it.

Excited utterance: statement relating to a startling event made while under the stress of excitement; the declarant need not be available.

Then-existing mental, emotional, or physical condition is admissible to prove that condition, but not memory or belief to prove a remembered fact, except wills cases.

Statements for medical diagnosis or treatment are admissible if reasonably pertinent to diagnosis or treatment, including past symptoms and their cause.

Business records require a record of a regularly conducted activity, made at or near the time by someone with knowledge, kept in the course of business, with foundation and no lack of trustworthiness.

Residual exception requires materiality, necessity, and equivalent circumstantial guarantees of trustworthiness; the declarant generally must be unavailable.

Attorney-client privilege protects confidential communications between client and lawyer for legal advice; it survives the relationship and does not cover crime-fraud communications.

Privilege belongs to the client, who may waive it; disclosure to third parties generally waives it, and inadvertent disclosure may or may not waive depending on precautions taken.

Work product protection shields materials prepared in anticipation of litigation; it is qualified and can be overcome by substantial need and undue hardship.

Physician-patient privilege is statutory and varies by jurisdiction; it typically covers confidential information for diagnosis or treatment and has public-safety exceptions.

Psychotherapist-patient privilege is recognized and protects confidential communications; danger-to-self-or-others and court-ordered evaluation are typical exceptions.

Spousal testimonial privilege permits a witness-spouse to refuse to testify against a spouse in criminal proceedings during a valid marriage in many jurisdictions.

Spousal confidential communications privilege protects private communications made during the marriage and generally survives divorce.

Clergy-penitent privilege protects confidential communications made to a religious advisor acting in that role for spiritual counsel.

Exclusionary rule and constitutional exclusions bar evidence obtained through unlawful search or seizure or coerced statements; good-faith, inevitable-discovery, and attenuation doctrines may permit admission.