Comprehensive

Question 1

With respect to preliminary questions of admissibility, what is the burden of persuasion?

Answer 1

must convince the judge/jury by preponderance of evidence

Question 2

When is habit evidence admissible

Answer 2

to prove that the person acted in accordance with their habit on a particular occasion

Question 3

What five hearsay exceptions only apply when the hearsay declarant is unavailable?

Answer 3

(1) Former testimony;
(2) Dying declaration;
(3) Statement against interest;
(4) Statement of personal or family history;
(5) Statement offered against a party that wrongfully caused the declarant’s unavailability

Question 4

When may the prosecution offer evidence of an alleged victim’s good character in a criminal case?

Answer 4

• when D introduced evidence of V’s bad chacater
• when evidence of peaceful character can rebut accusation that V was first aggressor

Question 5

When is a witnesses not excluded from the courtroom to prevent them from hearing the testimony of other witnesses?

Answer 5

• a party
• a party allowed by statute (victim)
• a party who’s presence is neccessary
• who’s been designated as a party’s rep

Question 6

When may a judge take notice of an adjudicative fact?

Answer 6

The fact is not subject to reasonable dispute

Question 7

At what time can a court take judicial notice?

Answer 7

Judicial notice can be taken at any time during a proceeding, including on appeal, whether upon request of a party or by the court’s own initiative

Question 8

What are the present sense impression and excited utterance hearsay exceptions? Distinguish them

Answer 8

Present Sense Impression: A statement describing or explaining an event or condition that is made while or immediately after the declarant perceived it

Excited Utterance: A statement made about a startling event or condition while the declarant is under the stress of excitement that it caused

A present sense impression must be a description of the event, whereas an excited utterance need only relate to the exciting event.

Question 9

How may a party to a telephone conversation authenticate statements made during that conversation as having been made by a particular individual?

Answer 9

By testifying that:
(i) The caller recognized the speaker’s voice;
(ii) The speaker knew facts that only a particular person would know;
(iii) The caller dialed a number believed to be the speaker’s, and the speaker identified himself upon answering; or
(iv) The caller dialed a business and spoke to the person who answered about business regularly conducted over the phone.

Question 10

What does the best evidence rule require, and what are its exceptions?

Answer 10

If the contents of a document are at issue, or a witness is relying on the contents of the document, the best evidence rule requires that the original document be produced to prove its contents, unless:
(i) All of the originals are lost or destroyed, and not by the proponent acting in bad faith;
(ii) The original cannot be obtained by any available judicial process;
(iii) The party against whom the original would be offered (a) had control of the original, (b) was on notice that the original would be the subject of proof, and (c) failed to produce it at the trial or hearing; or
(iv) The document is not closely related to a controlling issue

Question 11

What are three ways in which tangible evidence (e.g., murder weapon) may be authenticated?

Answer 11

1. By testimony of personal knowledge of the object;
2. By testimony of its distinctive characteristics;
3. By chain of custody when a physical object that could easily be tampered with or confused with a similar item (e.g., a blood sample)

Question 12

What are three instances in which specific acts are admissible in criminal cases?

Answer 12

1. When character is an essential element of a charged crime and a defendant offers specific acts inconsistent with the crime;
2. For non-propensity purposes (e.g., “MIMIC” evidence (Motive, Intent, absence of Mistake, Identity, or Common plan)); and
3. When a character witness is asked on cross-examination about specific acts committed by the person about whom the witness is testifying

Question 13

What are five non-hearsay uses for out-of-court statements (i.e. uses that prove something other than the truth of the matter asserted)?

Answer 13

A statement is non-hearsay if offered:
(1) To prove that the statement was made (i.e., as legally operative fact);
(2) To show the effect on the recipient;
(3) As circumstantial evidence of the declarant’s state of mind;
(4) As circumstantial evidence of identity; or
(5) Solely to impeach or rehabilitate.

Question 14

D’s prior crimes/bad acts are admissible if used for non-character evidence such as:

Answer 14

MIMIC

Motive

To show purpose for committing charged crime

Intent

To establish guilty mind or negate good faith

Absence of Mistake

To negate mistake or accident & prove deliberate act

Identity

To connect defendant to crime with unique pattern of behavior (ie, criminal signature)

Common plan or scheme

To show preparation or planning

Other

To show knowledge of crime, opportunity to commit crime, consciousness of guilt, etc

Question 15

when is evidence admissible for impeachment?
- intrinsic
- extrinsic

Answer 15

intrinsic - anytime
extrinsic - only when witness has opportunity to explain or deny and other party can examine the witness

Question 16

can a defendant waive privilege of immunity from plea negotiations being used against him?

Answer 16

yes, if knowingly and voluntarily

Question 17

specific acts can be introduced as extrinsic or intrinsic?
- felony or crime about dishonesty
- bad acts

Answer 17

felony or crime about dishonesty -> extrinsic allowed

bad acts -> only intrinsic allowed

Question 18

criminal defendant’s prior bad acts or crime is admissible? if so, when?

Answer 18

generally not admissible unless for some other purpose (MIMIC)

Question 19

rebuttable presumption

Answer 19

if one party produces evidence that a fact occured, then there’s a presumption for it. If the opposing party produces evidence that contradicts, such presumption “bursts” and the jury must weigh the evidence and find the facts

Question 20

Any item may be used to refresh a witness’s memory when (1) the witness once had personal knowledge of a matter but is now unable to recall it and (2) the item will help the witness recall that matter

Question 21

to authenticated an x-ray image, must prove:

Answer 21

the process for creating the evidence was accurate
the machine that produced the evidence was working properly and
the operator of the machine was qualified to operate it

Question 22

what’s one limitation on authenticating a hand writing by a lay witness with personal knowledge?

Answer 22

must not acquire handwriting knowledge in prep for litigation

Question 23

when the relevance of evidence depends on whether a fact exists, proof must be introduced to allow the court to determine whether the jury could reasonably find the conditional fact by a preponderance of the evidence.

However, the court may admit the proposed evidence on the condition that such proof be introduced later.