Documentary Evidence and Witnesses

Question 1

Authentication

Answer 1

All evidence, other than testimony, must be authenticated. Authentication is proof the item is what the proponent claims it is.

Question 2

How can a handwriting be authenticated?

Answer 2

1. Handwriting expert
2. Layperson already familiar with the persons handwriting
3. Handwriting exemplars shown to jury

Question 3

How can a handwriting be authenticated?

Answer 3

1. Handwriting expert
2. Layperson already familiar with the persons handwriting
3. Handwriting exemplars shown to jury

Question 4

How can real evidence/Physical Evidence (gun, drug etc) be authenticated?

Answer 4

1. Distinctive characteristics
2. Chain of custody OR
3. Personal knowledge
4. Comparison (By expert or trier of fact)

Question 5

How can real evidence (gun, drug etc) be authenticated?

Answer 5

1. Distinctive characteristics
2. Chain of custody OR
3. Personal knowledge

Question 6

What are exceptions to the BER?

Answer 6

The BER will not bar admission of evidence if
1. Its a duplicate
2. Proof of unavailability: If original unavailable, then oral testimony or other evidence admissible to prove the contents of the writing
3. Testimonial evidence (Witness has first hand knowledge. Eg shipping address)
4. Collateral matter
5. Summary of voluminous record
6. Public Record

Question 7

Rule of completeness

Answer 7

When a party introduces part of a writing or recorded statement, the other party may require the introduction of any other part to establish the full context

Question 8

Absence of Entry (BER)

Answer 8

Records can be admitted to show the absence of an entry to prove the nonoccurrence of the event.

Question 9

When is the ONLY time BER applies?

Answer 9

When a party is trying to prove the CONTENTS of a writing

Question 10

Can a presiding judge testify?

Answer 10

Under FRE NO!

Question 11

When is a juror allowed to testify under the FRE?

Answer 11

Jurors can testify for the limited person of identifying whether
1. Improper outside influence was bought in
2. Improper extraneous prejudicial information, or
3. Error on the verdict form

Question 12

Present Recollection Refreshed

Answer 12

Technique that allows any item (photo, report, notes) to be used to refresh a witness’s memory. W can only testify from their refreshed memory.

Remember that it is NOT evidence unless adversary brings it in

Question 13

Present recollection refreshed: Adversary’s right to inspect and admit

Answer 13

-Item used to refresh W WHILE testifying: Adversary can inspect item, cross examine, and admit pertinent portions into evidence

-Item used BEFORE testifying: Right is at courts discretion.

PROPONENT CANNOT ADMIT ITEM INTO EVIDENCE UNLESS ITS OTHERWISE ADMISSIBLE.

Question 14

Expert Opinion

Answer 14

Expert Opinion is testimony by a person qualified as an expert in their field. Expert testimony admissible if:
1. Helpful to jury
2. Expert is qualified
3. Reasonable certain opinion
4. Opinion supported by a proper factual basis
5. Reliable principles and methods

Question 15

Marital Privileges: What are the two types?

Answer 15

Spousal immunity and Marital confidential communications

Question 16

What are the different ways to offer character evidence?

Answer 16

Opinion, reputation, specific instances of conduct

Question 17

What type of character evidence is allowed on direct examination?

Answer 17

Reputation or opinion!

Question 18

Character evidence on cross examination rule

Answer 18

A party may use Specific instance of conduct, reputation and opinion

Question 19

Character evidence is not admissible to prove conduct in conformity. What are the limited circumstances in which character evidence can come in though?

Answer 19

D opens the door, D is claiming self defense, Exceptions apply, rape shield, habit evidence

Question 20

How can D open the door to his character?

Answer 20

1. He introduces evidence of his own character
2. D opens door by introducing evidence of victims character

Question 21

How can D properly introduce evidence of his own character trait?

Answer 21

1. D offers the evidence (can be himself or witness D calls W)
2. Evidence is regarding D character trait
3. Character trait offered is RELEVANT to current charges
4. Evidence is in the form of OPINION or REPUTATION testimony

Question 22

Defendant has introduced evidence of his character. How can the prosecution respond?

Answer 22

1. Cross examine the defendants character witness
   -Reputation or opinion
   -Can inquire about specific bad acts if asked in
   good faith
   -NO EXTRINSIC EVIDENCE
2. Call their own witness
   -The new W is on direct. Reputation or opinion
   evidence only.

Question 23

Character evidence “other purposes”

Answer 23

Intent
Preparation
ID
Knowledge
Absence of mistake
Motive
Opportunity
Plan or scheme

IPIKAMOP

Question 24

Nonfalsi crime + Within 10 years. Allowed?

Answer 24

Allowed if the probative value is greater than the prejudicial effect.

If it is the same or similar crime, then the court likely won’t let it in bc its too prejudicial

Question 25

7 Methods of Impeachment

Answer 25

1. Bias/Motive 2. Sensory or mental defect 3. Contradiction 4. PIS 5. Conviction 6. Prior bad acts regarding truthfulness 7. Calling own witness Triple [CCC BS P]ill

Question 26

Extrinsic evidence of a prior inconsistent statement is allowed when....

Answer 26

The witness has or had an opportunity to explain or deny the alleged inconsistent statement [EXCEPTION: If PIS is coming in under a hearsay exception, then we might allow extrinsic evidence]

Question 27

NonHearsay

Answer 27

1. Declarant SOM 2. Effect on Listener 3. Legally operative fact Hint: SEL. Studying Every Law

Question 28

Hearsay Exemptions

Answer 28

Prior statements and Party admissions

Question 29

Recorded Recollection

Answer 29

Declarant availability immaterial. Allows record to be read into evidence if 1. Concerns a matter W once knew but cannot recall 2. Was made or adopted by W when the matter was fresh in her mind 3. Personal Knowledge Notes: Can be voice recording, can be played to jury.

Question 30

Declarant Unavailable Exceptions

Answer 30

Statement against interest Former testimony Dying Declaration Forfeiture

Question 31

Hearsay Exceptions: Declarant availability immaterial

Answer 31

Present Sense Impression Excited Utterance Statement for Medical Diagnosis Then existing state of mind PEST! Witnesses are PESTs so it doesn't matter if they are here or not.

Question 32

Present Sense Impression

Answer 32

Declarant availability immaterial 1. Describes an event 2. Made WHILE declarant is perceiving it or immediately after

Question 33

Excited Utterance

Answer 33

Declarant availability immaterial 1. Relating to a startling or exciting event 2. Made while declarant is still under the stress of such event

Question 34

Privilege against self incrimination

Answer 34

Allows W to refuse to testify if the witness's testimony will subject W to possible charges.

Question 35

Hearsay Exception for Absence of Public Records

Answer 35

Testimony by a public official that a diligent search failed to disclose a public record is admissible to prove 1. The record does not exist or the matter did not occur IF the public office regularly kept records for a matter of that kind :)

Question 36

Federal Inadvertent Waiver Rule

Answer 36

Disclosure of communication protected by the a/c privilege or work product does not operate as a waiver if -Disclosure made in federal proceeding -Inadvertent -Reasonable steps to prevent disclosure AND -privilege holder took reasonable steps to rectify EX: Defense Lawyer inadvertently, despite reasonable efforts, releases privileged material. Case is in federal court for diversity jdx. It is not waived and still protected!

Question 37

Learned Treatise Hearsay Exception

Answer 37

A statement in publication is admissible substantively if 1. Statement is called to the attention of, or relied upon, by an experty during examination AND 2. The publication is established as reliable authority by any party's expert or judicial notice Ex: Malpractice case. Plaintiff has expert witness who testifies to SOC. Defendant cross examines and asks her to read to the jury passages from the treatise on SOC options. The treatise can be read into evidence as substantive evidence under the hearsay exception. BUT THE TREATISE ITSELF CANNOT BE RECEIVED AS AN EXHIBIT!

Question 38

Confrontation clause

Answer 38

Limits the admissibility of testimonial evidence (Evidence made primarily for use in a criminal investigation). Such evidence is inadmissible UNLESS 1. Declarant is unavailable as a witness AND 2. Defendant had a prior opportunity to cross examine W. EX: Transcripts of a sworn grand jury testimony, police lineups, videotapes of eyewitnesses, are primarily for use in criminal investigation. To be admitted, D had to have an opportunity to cross examine them.

Question 39

What are some examples of nontestimonial evidence?

Answer 39

Witness statements made before apprehension of suspect, 911 calls, statements made to help police in ongoing emergency, jail booking records Remember: 6th amendment secures D right to confront witnesses offerign TESTIMONIAL evidence

Question 40

Compromise Negotiations

Answer 40

Inadmissible to 1. Prove or disprove the validity of a disputed claim or 2. Impeach by a PIS or contraditction Admissible for other purpose tough -Proving bias -Negating contention of undue delay -Obstruction of justice