Evidence

Question 1

Hearsay Definition

Answer 1

• an out of court statement
• other than one made by the declarant while testifying at the current trial or hearing
• offered to prove the truth of the matter asserted

Question 2

OPRAH common objections to hearsay

Answer 2

Original Writing Rule

Privilege

Relevancy

Authentication

Hearsay

Question 3

What is a statement for the hearsay rule?

Answer 3

1) Oral or written assertion
2) Conduct intended as an assertion

(has to be a human statement)

Question 4

not offered for its truth or hearsay exemptions

Answer 4

• Impeachment
• Verbal acts
• State of mind (notice, knowledge, motive)
• Exemptions (admissions, prior statements of witnesses)

Question 5

adoptive admission by silence

Answer 5

requires

1) A party hears and understands an accusation against him
2) the party is capable of denying it
3) A reasonable person would have denied it if it was untrue

Question 6

Admissions by party opponent

Answer 6

Statement is by or attributable to a party

Personal knowledge of facts NOT required

Statement need NOT have been against interest when made

Declarant need NOT be unavailable

Question 7

Declaration against interest

Answer 7

Declarant need NOT be a party

Personal knowledge of facts required

Statement must have been against interest when made

Declarant must be unavailable

Question 8

FRE 803 hearsay exceptions

Answer 8

1) Present sense impression
2) excited utterance
3) present mental, emotional, or physical state
4) statements for medical diagnosis or treatment
5) past recollection recorded
6) business records
7) Absence of a business record
8) Public records
9) Vital statistics
10) Absence of a public record

Question 9

Forms of character evidence

Answer 9

1) reputation testimony
2) opinion testimony
3) specific acts

Question 10

character evidence in civil case

Answer 10

INADMISSIBLE to prove that the person acted in conformity with the trait

BUT ADMISSIBLE when character is “in issue”

• defamation (evidence for P)
• child custody
• negligent entrustment
• negligent hiring

Question 11

Main impeachment methods

Answer 11

1) Bias

Always material

The collateral matter rule – which says that extrinsic evidence on collateral matters is inadmissible to impeach – never applies to bias

2) Sensory defects
3) prior inconsistency statements (PINS)

Usually admissible only to impeach; extrinsic evidence may be introduced if a foundation is laid

If the PINS is sworn or falls within another hearsay exception, it is also admissible as substantive evidence

4) Character

• Reputation or opinion testimony
• Bad acts (involving dishonesty)
  may not be proven by extrinsic evidence
• Prior conviction – felony NOT involving dishonesty/false statement
  10 year time limit; court has discretion to exclude
  -Prior conviction – any crime involving dishonesty/false statement
  Automatically admissible, subject to 10-year time limit

Question 12

excited utterance exception

Answer 12

• Statement that relates to a startling event
• Made while the declarant was under stress of the excitement
• Excitement must have been caused by the event
• Personal knowledge by the declarant is required

The declarant need not be unavailable for this exception to apply

Question 13

dying declaration

Answer 13

CUBA

• Concern: statement must concern the cause or circumstances of death
• Unavailable: Declarant must be unavailable
• Belief: Declarant must have believed that death was imminent
• Any: Dying declaration may arise in any civil case or criminal homicide case

Question 14

Unavailability under FRE 804(a)

Answer 14

PRISM

1) Privilege: Court rules that a privilege applies
2) Refusal: Refusal to testify
3) Incapacity: Due to death, illness or injury
4) Subpoena: Failure to comply with/beyond the reach of a subpoena
5) Memory: Lack of memory

Question 15

Definition of Relevance

Answer 15

Evidence is relevant if it has any tendency to make a fact of consequence more probable or less probable than would be the case without the evidence.

can be broken down (low bar here)

Materiality: Proposition must be “of consequence” Need not be the ultimate issue

Probativeness: “Any tendency” to make the proposition more or less likely. Just needs to shift probabilities to any degree whatsoever.

Question 16

Rule 403 Elements - may exclude relevant evidence if:

Answer 16

may exclude relevant evidence if it determines that the probative value of the evidence is substantially outweighed by one or more of the following pragmatic considerations:

• danger of unfair prejudice (jury decides case on emotional basis
• Confusion of the issues (evidence creates side issue)
• Misleading the jury (danger of jury giving undue weight to evidence)
• Undue delay
• Waste of time
• Unduly cumulative

Question 17

Relevance: Similar Accidents Caused by Same Event or Condition

Answer 17

Generally, other acts involving defendant are inadmissible because they suggest nothing more than general character for carelessness. But other accidents involving the same instrumentality or condition, and occurring under substantially similar circumstances, may be admitted for 3 potential purposes:

• Existence of dangerous condition
• Causation
• Prior notice to defendant (if other accident occurred before P’s)

Question 18

Relevance: Habit evidence

Answer 18

Habit of a person (or routine of a business organization) is admissible as circumstantial evidence of how the person (or business) acted on the occasion at issue in the litigation

two distinguishing characteristics of habit:

1) Frequency of conduct
2) Particularity of circumstances

Distinguish Character Evidence*
- Character evidence refers to a particular person’s general disposition or propensity. Character is usually NOT admissible to prove conduct on a particular occasion

Question 19

Relevance: Intent in Issue evidence

Answer 19

Person’s prior conduct may provide inference of intent on later occasion.

Question 20

Relevance: Comparable Sales on Issue of Value

Answer 20

Selling price of other property of similar type, in same general location, and close in time to period at issue, is some evidence of value of property at issue.

Question 21

Relevance: Industrial Custom as Standard of Care

Answer 21

Evidence as to how others in the same trade or indus- try have acted in the recent past may be admitted as some evidence as to how a party in the instant litiga- tion should have acted, i.e., as evidence of the appro- priate standard of care.

Question 22

Public Policy Exclusions: LIABILITY INSURANCE

Answer 22

Evidence that a person has, or does not have, liability insurance is inadmissible to prove the person’s fault or absence of fault.

But evidence of insurance may be admissible for some other relevant purpose, such as:
• Proof of ownership/control of instrumentality or location, if controverted (disputed).
• Impeachment of a witness (usually on the grounds of bias).

A limiting instruction should be given to the jury whenever evidence is admissible for one purpose but not for another. Judge should tell jury to consider the evidence only for the permissible purpose.

Question 23

Public Policy Exclusions: SUBSEQUENT REMEDIAL MEASURES

Answer 23

Post-accident repairs, design changes, policy changes.

Inadmissible for the purpose of proving negligence, culpable conduct, product defect, or need for warn- ing.

Policy: To encourage post-accident repairs, etc., to avoid future accidents.

But such evidence may be admissible for some other relevant purpose, if controverted, such as:
• Proof of ownership/control
• Feasibility of safer condition

Question 24

Public Policy Exclusions: SETTLEMENTS IN CIVIL CASES

Answer 24

Evidence of a settlement (compromise) or offer to set- tle a disputed claim is inadmissible to:
• Prove liability or weakness of a party’s case, or
• Impeach through prior inconsistent statement or
contradiction.

Statements of fact made in the course of settlement
discussions are also inadmissible for these purposes.

Policy: To encourage settlement.

But evidence of settlement may be admissible for purposes of impeaching a witness on the ground of bias.

Question 25

Public Policy Exclusions: Disputed Claim Required

Answer 25

The exclusionary rule only applies if there is a claim that is disputed (at time of settlement discussion) either as to (1) validity or (2) amount of damages.

Question 26

Public Policy Exclusions: PLEA DISCUSSIONS IN CRIMINAL CASES

Answer 26

The following are inadmissible:
• Offer to plead guilty—cannot be used against the defendant in the pending criminal case or in subse- quent civil litigation based on the same facts.
• Withdrawn guilty plea—cannot be used against the defendant in the pending criminal case or in subsequent civil litigation based on the same facts.
• Plea of nolo contendere (“no contest”)—cannot be used against the defendant in subsequent civil litigation based on the same facts.
• Statements of fact made during any of the above plea discussions.

BUT, a plea of guilty (not withdrawn) is admissible in subsequent litigation based on the same facts under the rule of party admissions (discussed in the Hearsay module).

Question 27

Public Policy Exclusions: OFFER TO PAY MEDICAL OR HOSPITAL EXPENSES

Answer 27

Evidence that a party has paid or offered to pay an accident victim’s hospital or medical expenses is inadmissible to prove liability.

Policy: To encourage charity.

No need to show disputed claim—trying to reward generosity.

BUT: statements made in connection with an offer to pay medical expenses, unlike statements made in connection with a settlement offer, are admissible. An offer to pay medical expenses is essentially a unilateral and unconditional humanitarian gesture. Thus, negotiation and discussion are tangential to the offer itself. Consequently, there is little reason to protect from disclosure such statements as the defendant’s careless admission (“letting your driver leave the bar drunk last night”) even though it was accompanied by an offer to pay the passenger’s medical expenses.

Question 28

Character Evidence generally

Answer 28

Character evidence refers to a person’s general propensity or disposition (e.g., honesty, fairness, peacefulness, or violence).
Potential purposes for offering:

• Person’s character is a material element in the
case.
• To prove conduct in conformity with character at the time of the litigated event, a/k/a character as circumstantial evidence of conduct on a particular occasion.
• Witness’s bad character for truthfulness to impeach credibility (discussed in Impeachment module).

Question 29

Character Evidence: CRIMINAL CASES: DEFENDANT’S CHARACTER

Answer 29

Evidence of the defendant’s character to prove con- duct in conformity is not admissible during the prosecution’s case-in-chief.

However, defendant, during the defense, may introduce evidence of a relevant character trait (by reputation or opinion testimony of a character witness) to prove conduct in conformity, thereby opening the door to rebuttal by the prosecution.

Prosecution’s Rebuttal**

If the defendant has “opened the door” by calling character witnesses, the prosecution may rebut:

(1) By cross-examining defendant’s character wit- nesses with “Have you heard” or “Did you know” questions about specific acts of the defendant that reflect adversely on the particular character trait that the defendant has introduced (prosecution must have good faith basis for the question); purpose: to impeach character witness’s knowledge; and/or
(2) By calling its own reputation or opinion witnesses to contradict the defendant’s witnesses.

Question 30

Character Evidence: CRIMINAL CASES: VICTIM’S

CHARACTER IN SELF-DEFENSE CASE

Answer 30

Criminal defendant may introduce evidence of victim’s violent character to prove victim’s conduct in conformity, i.e., as circumstantial evidence that victim was the first aggressor.

Proper method: Character witness may testify to victim’s reputation for violence and may give opinion.

Prosecution Rebuttal
Once defendant has introduced evidence of victim’s violent character, prosecution may rebut with opinion or reputation testimony regarding: (1) victim’s good character for peacefulness, and/or (2) defendant’s bad character for violence.

Separate Rule of Relevance
If the defendant, at the time of the alleged self-defense, was aware of the victim’s violent reputation or prior specific acts of violence, such awareness may be proven to show the defendant’s state of mind—fear—to help prove that he acted reasonably in responding as he did to the victim’s aggression.

Question 31

Character Evidence: CHARACTER EVIDENCE IN CIVIL CASES

Answer 31

Inadmissible to Show Conformity

In civil cases, character evidence is generally inadmissible to prove conduct in conformity.

Admissible When Character Directly in Issue

Evidence of person’s character is admissible in civil action where such character is an essential element of a claim or defense (provable by reputation, opinion, and specific acts). Only a few situations:
• Negligent hiring or entrustment
• Defamation (libel or slander)
• Child custody

Question 32

Character Evidence: DEFENDANT’S OTHER CRIMES OR ACTS FOR NON-CHARACTER PURPOSE

Answer 32

General Rule

Other crimes or specific bad acts of defendant are not admissible during the prosecution’s case-in-chief if the only purpose is to suggest that because of defen- dant’s bad character he is more likely to have commit- ted the crime currently charged.

BUT, if defendant’s other crimes or bad acts show something specific about the crime charged—some- thing more than mere bad character—such evidence may be admissible as evidence bearing on guilt.
Most common non-character purposes:
• Motive
• Intent
• Mistake or accident (absence of)
• Identity
• Common scheme or plan

Method of Proof of Independently Relevant Misconduct
(1) By conviction or (2) by other evidence (witnesses, etc.) that proves the crime or act occurred.
Conditional relevancy standard—prosecution need only produce sufficient evidence from which a rea- sonable juror could conclude that defendant commit- ted the other crime.
In criminal cases, prosecution must give pretrial no- tice of intent to introduce MIMIC evidence. In all cases, court must also weigh probative value vs. prejudice and give limiting instructions if MIMIC evidence is ad- mitted.
If relevant, MIMIC evidence can also be used in civil cases, such as tort actions for fraud or assault.

Question 33

Character Evidence: OTHER SEXUAL MISCONDUCT TO SHOW PROPENSITY IN CRIMINAL OR CIVIL SEX-CRIME CASE

Answer 33

In a case alleging sexual assault or child molestation, prior specific sexual misconduct of the defendant is admissible as part of the case-in-chief of the prosecu- tion (in a criminal case) or of the plaintiff (in a civil ac- tion) for any relevant purpose, including defendant’s propensity for sex crimes, i.e., conduct in conformity with character.

Question 34

Writings: AUTHENTICATION OF WRITINGS

Answer 34

A showing must be made that the writing is authentic (genuine), i.e., that it is what it purports to be. This is the process of authentication.
Standard for Authentication
Conditional relevancy standard—document is admis- sible if court determines there is sufficient evidence from which a reasonable juror could conclude docu- ment is genuine.
Methods of Authentication
Issue: Whether X is the author of a document.
• Witness’s personal knowledge: Witness observed
X sign document.
• Proof of handwriting
- Lay opinion: Lay witness testifies to opinion that X wrote document on basis of familiarity with X’s handwriting as result of experience in normal course of affairs.
~ Lay witness cannot become familiar with X’s handwriting for the sole purpose of testifying.
[Contrast voice identifications: the witness can become familiar with the speaker’s voice under any circumstances.]
- Expert comparison opinion: Handwriting ex- pert testifies to opinion that X wrote document on basis of comparison between document and genuine sample (exemplar) of X’s handwriting.
- Jury comparison: Jury compares document with exemplar of X’s handwriting.
• Ancient document rule: Authenticity may be inferred if document is:
- At least 20 years old
- Facially free of suspicion
- Found in a place of natural custody
• Solicited reply doctrine: Document can be authenticated by evidence that it was received in response to a prior communication to the alleged author.

Authentication of Photographs

Witness may testify on the basis of personal knowl- edge that the photograph is a “fair and accurate repre- sentation” of the people or objects portrayed.

Self-Authenticating Documents

Presumed authentic—no need for foundation testimony:
• Official publications
• Certified copies of public or private records on file in public office
• Newspapers or periodicals
• Trade inscriptions and labels
• Acknowledged documents
• Commercial paper
• Certified business records (with reasonable written notice to adverse party)

Question 35

Writings: BEST EVIDENCE RULE

Answer 35

BER = misnomer. Better described as the “original writings” rule.

Rule: In order to prove the contents of a writing, recording, or photograph, the original must be pro- duced.

Key inquiries:
• What does it mean to “prove the contents” of a writing?
• To what evidence does BER apply?
• What is an “original”?
• What are the exceptions to the BER?

Definition
A party who seeks to prove the contents of a writing (includes sound recordings, X-rays, films), must either produce the original writing or provide an acceptable excuse for its absence. If court finds the excuse is acceptable, the party may then use secondary evi- dence—oral testimony or a copy.

When Best Evidence Rule Applies
Two principal situations:
(1) The writing is a legally operative document; i.e., the writing itself creates rights and obligations.
(2) Witness is testifying to facts that she learned solely from reading about them in a writing.

When Best Evidence Rule Does NOT Apply
When a witness with personal knowledge testifies to a fact that exists independently of a writing that records the fact.

What Qualifies as the “Original” Writing?
• The writing itself; any counterpart intended to have the same effect; any negative of film or print from the negative; computer print-out.
• Duplicate: any counterpart produced by any me- chanical means that accurately reproduced the original (e.g., photocopy, carbon copy).
Rule on duplicates: Duplicate is admissible to same extent as original UNLESS it would be unfair (e.g., photocopy of fuzzy fax), or genuine question is raised as to authenticity of original.

Excuses for Non-Production of Original
• Lost or cannot be found with due diligence
• Destroyed without bad faith
• Cannot be obtained with legal process
Court must be persuaded by preponderance of the evidence that excuse has been established; second- ary evidence is then admissible (e.g., testimony based on memory, handwritten copy).

“Escapes”
• Voluminous records can be presented through a summary or chart, provided the original records would be admissible and they are available for inspection.
• Certified copies of public records.
• Collateral documents.

Question 36

Witnesses Generally

Answer 36

Two Basic Requirements

(1) Personal knowledge.
(2) Oath or affirmation.

“Dead Man Statute”

In general (Multistate rules): Witness is not ordinarily incompetent merely because she has an interest—a direct legal stake—in outcome of the litigation.
But, under a typical state “Dead Man’s Act,” in a civil action, an interested party is incompetent to testify
in support of her own interest against the estate of a decedent concerning communications or transactions between the interested party and the decedent.

Under the FRE, there is no “dead man’s rule.” Thus, on Multistate exam, witnesses ordinarily are not incompetent on this ground. But, if question explicitly states that the particular jurisdiction in which the case arises has a “dead man’s statute,” apply the rule above.

Question 37

Witnesses: Form of Questioning

Answer 37

Leading Questions
Form of question suggests the answer (e.g., “Isn’t it a fact that . . . .”; or unevenly balanced alternatives).
Generally allowed on cross-examination of witness. Generally NOT allowed on direct examination of wit-
ness, unless:
• Preliminary/introductory
• Youthful/forgetful witness
• Hostile witness
• Adverse party

Cross-Examination
Party has a right to cross-examine any opposing wit- ness who testifies at the trial. Significant impairment of this right will result, at minimum, in striking of witness’s testimony.
Proper subject matter:
• Matters within the scope of direct examination, and
• Matters that test the witness’s credibility.

Question 38

Witnesses: WRITINGS IN AID OF ORAL TESTIMONY

Answer 38

Refreshing Recollection
Basic rule: Witness may not read from prepared mem- orandum; must testify on basis of current recollection.
But if witness’s memory fails him, he may be shown a memorandum (or any other tangible item) to jog his memory.

Safeguards Against Abuse
If witness’s recollection is refreshed during testimony, adversary has right:
• To inspect the memory-refresher
• To use it on cross-examination
• To introduce into evidence
If refreshing happens before witness testifies, the adversary is not entitled to these options but the judge has discretion to allow it.

Recorded Recollection (Hearsay Exception)
Foundation for Admissibility of Contents of Document
• Showing document to witness fails to jog mem- ory.
• Witness had personal knowledge at former time.
• Document was either made by witness, or ad- opted by witness.
• Making or adoption occurred when event was fresh in witness’s memory.
• Witness can vouch for accuracy of document when made or adopted.

Question 39

Witnesses: OPINION TESTIMONY

Answer 39

~Lay Witnesses
Admissible if:
• Rationally based on witness’s perception (person- al knowledge).
• Helpful to jury in deciding a fact.
• Not based on scientific, technical, or otherwise specialized knowledge that would require expert testimony.

~Expert Witnesses
Qualifications
Education and/or experience.
Proper Subject Matter
Scientific, technical or other specialized knowledge that will be helpful to jury in deciding a fact.
Basis of Opinion
Expert must have opinion based on reasonable degree of probability or reasonable certainty, and three permissible data sources:
(1) Personal knowledge (e.g., treating physician). (2) Other evidence in the trial record (testimony by
other witnesses, exhibits (medical reports, X-rays))—usually made known to expert by hypothetical question.
(3) Facts outside the record if of a type reasonably relied upon by experts in the particular field in forming opinions.
Reliability
To be admissible, expert opinion must be sufficiently reliable. Court serves as “gatekeeper,” and will use four principal factors to determine reliability of prin- ciples and methodology used by expert (all types) to reach opinion (Daubert)—“TRAP”:
Testing of principles or methodology
Rate of error
Acceptance by experts in the same discipline
Peer review and publication

Learned Treatise in Aid of Expert Testimony (Hearsay
Exception)
Treatises, periodicals, or pamphlets may be used during expert testimony as follows.
On direct examination of party’s own expert: Rele- vant portions of treatise, periodical, or pamphlet may be read into evidence as substantive evidence (to prove truth of matter asserted) if established as reli- able authority.
On cross-examination of opponent’s expert: Read into evidence to impeach and contradict opponent’s expert. Also comes in as substantive evidence.
Read into evidence only: The learned treatise may not be introduced as an exhibit.
Ultimate Issues
Opinion testimony (lay or expert) is permissible even if it addresses an “ultimate issue” in the case (e.g., “X was drunk,” “insane”, “That’s X’s signature on the check”). But:
Criminal cases: “Ultimate issue” is still proper objection if expert seeks to give direct opinion that defendant did or did not have relevant mental state (e.g., “D’s insanity prevented him from understanding that he was shooting at a human being”).

Question 40

Impeachment General

Answer 40

• Bolstering Own Witness
  In general, not allowed until after witness’s credibility has been attacked.

Exception—prior identification of a person: Might seem like hearsay (out-of-court statement offered to prove truth of statement), but prior identification by trial witness is not barred by hearsay rule. It is labeled as “exclusion” from hearsay, and comes in as substantive evidence. Reliability factors: identification was closer in time to event, and witness on stand can be cross-examined.

-Impeaching Own Witness
Permitted, without limitation.

Question 41

Impeachment: IMPEACHMENT METHODS

Answer 41

Overview:
(1) Prior inconsistent statements
(2) Bias, interest, or motive to misrepresent
(3) Sensory deficiencies
(4) Contradiction
Methods showing general bad character for truthfulness:
(5) Bad reputation or opinion about witness’s character for truthfulness
(6) Criminal convictions
(7) Bad acts (without conviction) that reflect adversely on witness’s character for truthfulness
For each method, consider:
• Can impeaching fact be proven by extrinsic evidence (documentary evidence or testimony from other witnesses), or is party bound by witness’s answers to impeaching questions?
• Assuming extrinsic evidence is permissible, must witness first be confronted with impeaching fact as a prerequisite to introduction of extrinsic evi- dence?
Prior Inconsistent Statements
Any witness may be impeached by showing that on some prior occasion, she made a material statement (orally or in writing) that is inconsistent with her trial testimony.
Purpose: To suggest trial testimony is false or mistaken.

When Admissible as Substantive Evidence

Prior inconsistent statements made under oath and as part of a formal hearing, proceeding, trial, or deposition may be admitted both for impeachment and as substantive evidence—to prove the truth of the matter asserted in the prior inconsistent statement.

Confrontation/Extrinsic Evidence Issue

Confrontation timing is flexible. Not required to immediately confront witness. But after proof by extrinsic evidence, witness must be given an opportunity at some point to return to stand to explain or deny the prior inconsistent statement, but not necessarily be- fore proof with extrinsic evidence.

Exception to confrontation requirement:

No confrontation required and no opportunity to explain need be given if witness is opposing party.
Purpose: To suggest testimony is false, slanted, or mis- taken in party’s favor.

Confrontation/extrinsic evidence issue:

• Must witness be confronted with alleged bias while on the stand?
• Within court’s discretion.
• If confrontation requirement is met, may bias be
proven by extrinsic evidence?
• Yes, court has discretion to permit extrinsic evidence even if witness admits the bias.

Sensory Deficiencies

Anything that could affect witness’s perception or memory.
Confrontation required? No. Extrinsic evidence allowed? Yes.

Contradiction

Cross-examiner, through confrontation of witness, may try to obtain admission that she made a mistake or lied about any fact she testified to during direct examination. If the witness admits the mistake or lie, she has been impeached by contradiction. However, if she sticks to her story, the issue becomes whether extrinsic evidence may be introduced to prove the contradictory fact.
Rule: Extrinsic evidence is not allowed for the purpose of contradiction if the fact at issue is collateral. A fact is collateral if it has no significant relevance to the case or to the witness’s credibility.

Bad Reputation or Opinion about Witness’s Character for Truthfulness

Call a character witness to testify that target witness has bad reputation for truthfulness, or that character witness has low opinion of target witness’s character for truthfulness.
Purpose: To suggest that target witness is not telling the truth on the witness stand.
Confrontation required? No. Extrinsic evidence allowed? Yes.

**A specific act of misconduct offered to attack the witness’s character for truthfulness can be elicited only on cross-examination of the witness. If the witness denies it, the cross-examiner cannot refute the answer by calling other witnesses or producing other evidence.

Criminal Convictions

Purpose: To suggest testimony is false.
Rationale: Person who has been convicted of a crime is more likely to lie under oath than is a person with an unblemished record.

Types of crimes and court’s discretion:
• Any crime (felony or misdemeanor) involving dishonesty or false statement may be used to impeach, and the court has NO DISCRETION to exclude such convictions.
• If a conviction does not involve dishonesty or false statement, it must be a felony, and the court has discretion to exclude (generally Rule 403 balancing test—probative value not substantially outweighed by unfair prejudice; stricter balancing test when witness is criminal defendant—probative value must outweigh unfair prejudice).

Must not be too remote: Generally the conviction or release from prison (whichever is later) must be within 10 years of the witness’s testimony. Court can override this if probative value substantially outweighs prejudicial effect (rare).
Method of proof: (1) As witness to admit prior convic- tion, OR (2) introduce record of conviction (extrinsic). Not required to confront witness prior to introduction of record of conviction.
Effect of pardon: Conviction is not admissible if the conviction was subject to a pardon, annulment, or oth- er equivalent procedure, and:
• The pardon was based on a finding of rehabili- tation and witness has not been convicted of a subsequent felony, or
• The pardon was based on a finding of innocence (irrespective of any subsequent convictions).

Prior Bad Acts Involving Untruthfulness

Confrontation on cross-examination is the only per- missible means. No extrinsic evidence is permitted. Cross-examiner must have good-faith basis, and ability to inquire lies in court’s discretion.

Question 42

Impeachment: IMPEACHMENT OF HEARSAY DECLARANT

Answer 42

Opponent may use any of the impeachment methods to attack the credibility of a hearsay declarant.

Question 43

Impeachment: REHABILITATION

Answer 43

Showing Witness’s Good Character for Truthfulness

When allowed: Opponent used methods of attacking witness’s general bad character (bad reputation or opinion; convictions; bad acts).
How: Character witness provides reputation or opinion testimony about witness’s good character for truthfulness.

Prior Consistent Statements

When allowed:
• Witness is charged with fabrication based on a recent motive or improper influence, and the state- ment was made before the motive arose; OR
• The statement rehabilitates a witness impeached on another ground, such as prior inconsistent statement or faulty memory.
Bonus: Prior consistent statements admissible to re- habilitate are also admissible as substantive evidence; i.e., for truth of matter asserted (hearsay exclusion).

Question 44

Hearsay Intro

Answer 44

Two-Part Definition
• Out-of-court statement of a person (oral or writ- ten), AND
• Offered to prove the truth of the matter asserted in the statement.

Hearsay Rule
Hearsay is inadmissible unless an exception applies.
Rationale: So what’s wrong with hearsay? Inability of the opponent to cross-examine the declarant (out-of- court speaker or author) at the time the statement was made. Declarant’s credibility is at issue (perception, memory and sincerity).

Hearsay Within Hearsay
Multiple hearsay is admissible if each statement meets some hearsay exception.

Question 45

Hearsay: NOT HEARSAY—NOT OFFERED FOR TRUTH OF THE MATTER ASSERTED

Answer 45

Some out-of-court statements may look like hearsay at first glance, but are not hearsay if they are not offered to prove the truth of the matter asserted in the statement. An out-of-court statement may be relevant to some issue simply because it was spoken (or written). If offered for some other purpose, credibility of the declarant is irrelevant. On the issue of whether the statement was spoken, the witness on the stand can be cross-examined; or if the statement was in writing, it can be examined as an exhibit.

The major nonhearsay purposes are as follows.

• Verbal Act (Legally Operative Facts)
  Other verbal acts: Contract offer or cancellation, making gift, bribe, perjury, fraud, defamation, words accompanying ambiguous acts (e.g., D is charged with theft of X’s car; D testifies, “As X handed me the keys, he said I could have the car for the weekend.”).
• Effect on Listener or Reader
• Circumstantial Evidence of Declarant’s State of Mind

Question 46

Hearsay: THE HEARSAY EXCLUSIONS—
CERTAIN PRIOR STATEMENTS OF
WITNESSES AND PARTIES

Answer 46

Certain out-of-court statements are specifically excluded from the definition of hearsay. Thus, even if offered for their truth, they are admissible nonhearsay. They are not admissible as a hearsay “exception”; they are simply not hearsay at all.

Prior Statements of Testifying Witnesses

General rule: A witness’s own prior statement, if offered to prove the truth of the matter asserted in the statement, is hearsay and is inadmissible unless an exception applies.
However, the following prior statements of a testifying witness are excluded from the definition of hearsay:
• Witness’s prior statement of identification.
• Witness’s prior inconsistent statement, IF made under oath and during a formal trial, hearing, proceeding, or deposition.
• Witness’s prior consistent statement offered to rehabilitate the witness (see Impeachment module for admissibility of prior consistent statements).

Opposing Party’s Statements
Any statement made by a party (plaintiff or defendant) is admissible against that party. Traditionally called “admissions.”
Theory: Party ought to bear the consequences of what she says. Can explain to jury, and cannot complain about inability to cross-examine self.

Reminder: Called “nonhearsay” or “not hearsay.”

Adoptive statements: Party may adopt the statement of someone else (for example, by remaining silent in the face of an accusation that a reasonable person would deny).
Vicarious opposing party statements: Certain state- ments by some other person are admissible against a party because of the relationship between them. These include:
• Statement by agent/employee admissible against principal/employer if statement concerns matter within scope of agency/employment and is made during the agency/employment.
• Statement of co-conspirator admissible against party if made during and in furtherance of the conspiracy.

Question 47

Hearsay: RULE 804 HEARSAY EXCEPTIONS: DECLARANT MUST BE UNAVAILABLE

Answer 47

Grounds of Unavailability
• Death or illness
• Absence from jurisdiction
• Privilege
• Stubborn refusal
• Lack of memory

Former Testimony
The former testimony of a now-unavailable witness,
if given at a former proceeding or in a deposition, is admissible against a party who, on the prior occasion, had an opportunity and motive to cross-examine or develop the testimony of the witness. Issue in both proceedings must be essentially the same.
Theory: Reliability assured by cross-examination on prior occasion; however, we prefer live testimony, so witness must now be unavailable.

Statements Against Interest
An unavailable declarant’s statement against his:
• Pecuniary interest (money)
• Proprietary interest (property)
• Penal interest (exposure to criminal liability)
Theory: Not going to lie when making a personally damaging statement.
Distinguished from opposing party statements:
• Must be against interest when made.
• Any person (not merely party) can make statement against interest.
• Personal knowledge is required.
• Declarant must be unavailable.
Limitation in Criminal Cases
In criminal cases, statements against penal interest must be corroborated.

Dying Declarations
Statement made under a belief of impending and cer- tain death by a now-unavailable declarant concerning the cause or surrounding circumstances of the declar- ant’s death.
Theory: No one wants to die with a lie on her lips. Type of case:
• Criminal: Homicide only.
• Civil: All types.

Question 48

Hearsay: RULE 803 EXCEPTIONS, MULTIPLE
HEARSAY, AND THE CONFRONTATION
CLAUSE

Answer 48

Rule 803 exceptions are sufficiently reliable, and do NOT require unavailability.

-Excited Utterance
Statement concerning a startling event and made while declarant is still under the stress of excitement caused by the event.
Theory: Excitement suspends one’s capacity to fabricate.

-Present Sense Impression
Description of an event made while the event is occurring or immediately thereafter.
Theory: Declarant has no time to fabricate.

-Then-Existing Mental or Physical Condition (Present State of Mind)
Contemporaneous statement concerning declarant’s own present state of mind, feelings, emotions, or phys- ical condition.
Theory: Contemporaneous statement about matter as to which declarant has unique knowledge.
Includes declarations of intent: “State of mind” includes declarant’s intent to do something in the future, including the intent to engage in conduct with another person.
Includes present physical condition: Statement made to anyone about declarant’s current physical condition.

-Statement for Purposes of Medical Diagnosis or Treatment
Statement made to anyone (but usually involves med- ical personnel) concerning past or present symptoms or general cause of condition for the purpose of treat- ment or diagnosis.
Theory: Motive to be honest and accurate to get good medical assessment.
Note: Statements (1), (2), and (3) would also be ad- missible if Plaintiff was speaking to a physician who was retained solely for the purpose of testifying as an expert witness. “Medical diagnosis” includes diagnosis for the purpose of giving an expert opinion.

-Business Records (Records of Regularly Conducted Activity)
Elements:
• Records of any type of business or organization
(can be nonprofit)
• Made in the regular course of business (germane to business)
• The business regularly keeps such records
• Made at or near the time of the event recorded
• Contents consist of information observed by em- ployees of the business (must have business duty to report)
• A statement by an outsider is only admissible if it falls within an independent hearsay excep- tion (otherwise, it’s inadmissible hearsay within hearsay)
Theory: Businesses depend on accurate, up-to-date record-keeping, and accuracy is likely when employees are under a business duty to make such records. Useful as substitute for in-court testimony of employees.
Proving business records foundation:
• Call sponsoring witness to testify to the elements of business records hearsay exception; witness need not be author of report—can be records custodian or any other knowledgeable person within the business; OR
• Affidavit or unsworn declaration attesting to elements of business records hearsay exception.

-Public Records
Records of a public office or agency setting forth:
• The activities of the office or agency.
• Matters observed pursuant to a duty imposed by law.
• Findings of fact or opinion resulting from an investigation authorized by law.
Exception: Police reports and investigatory findings are not admissible against the defendant in a criminal case. Nor is the prosecution in such cases allowed to introduce a police report against the defendant under the alternative theory of business records.

-Other Exceptions
See Witnesses module for discussion of recorded recollection and learned treatise exceptions. Also be sure to review the less-frequently tested exceptions covered in your outline.

-Hearsay and the Confrontation Clause
Regardless of whether a hearsay exception is satisfied, the Sixth Amendment right of confrontation prohibits the use of “testimonial” hearsay statements against a criminal defendant if the declarant is unavailable and the defendant has had no opportunity for cross-examination.
Defining “Testimonial”: Includes sworn testimony (e.g., grand jury, prior trial, preliminary hearing). But also includes statements to police officers (sworn or unsworn) and certain documents, as discussed below.

-Statements to Law Enforcement—Determine Primary Purpose
• Providing information to aid police in ongoing emergency = nontestimonial.
• Providing information to help police gather information for eventual prosecution = testimonial.
Forensic Analysis Reports
Report that has the effect of accusing a targeted per- son of criminal conduct (e.g., blood alcohol results) is testimonial. If analyst who drafted the report is unavailable to testify, there may be a Confrontation violation.

Question 49

Privileges Generally

Answer 49

Federal Procedure Issue on Multistate Exam
If bar examiners specifically indicate the action is pending in federal court, apply the following procedural rules:

• In federal-court action arising under federal sub- stantive law (all civil cases arising under Consti- tution or federal statutes, and all criminal cases), privileges are governed by federal common law. For the most part, these are the basic rules on privileges as covered in lecture.
• In federal-court action based on diversity jurisdic- tion, where state substantive law applies to parties’ claims and defenses (Erie situation), the federal court must apply privilege law of the state whose substantive law is applicable.

Note: In diversity actions, federal courts also apply state law on competency (e.g., Dead Man’s Stat- utes), burdens of proof, and presumptions. Aside from these exceptions (privileges, competency, burdens of proof, presumptions), FRE apply in all federal-court actions, including diversity cases.

Question 50

Privileges: ATTORNEY-CLIENT PRIVILEGE

Answer 50

Oldest common law privilege. Rationale: To encourage client to speak openly to counsel.

Elements
Privilege applies to:
• Confidential communications
• Between attorney and client (or representative of either)
• Made during professional, legal consultation
• Unless privilege is waived or an exception is applicable

“Confidential Communications”
Client must intend confidentiality (e.g., no privilege if client knows that third party is listening in; or if client asks attorney to disclose the communication to a third party).
Joint client rule: If two or more clients with common interest consult the same attorney, their communica- tions with counsel concerning the common interest are privileged as to third parties. But if the joint cli- ents later have dispute with each other concerning the common interest, privilege does not apply as between them.
“Communication”: Privilege does not apply to under- lying information, pre-existing documents, or physical evidence.

“Attorney”
Member of the bar or person that client reasonably believes is member of the bar.
Representative of the attorney: Any agent reasonably necessary to facilitate the provision of legal services (e.g., accountant working with attorney to “translate” client’s financial matters).

“Client”
Includes person seeking to become client (e.g., priv- ilege attaches at outset of formal consultation with attorney even if client does not retain attorney).
Representative of the client: Agent reasonably necessary to facilitate the provision of legal services (e.g., for corporate client, any employee who communicates with corporation’s attorney to enable attorney to pro- vide legal services to the corporation).

Professional Legal Consultation
Primary purpose of communication must be to obtain or render legal services, not business or social advice.

Waiver
Client is holder of privilege, so client alone has power to waive by disclosure of communication to third party. Privilege continues after attorney-client relationship ends and even after death of client. Client’s estate representative has power to waive privilege after cli- ent’s death.

Exceptions
• Future crime or fraud
• Client puts legal advice in issue
• Attorney-client dispute

Question 51

Privileges: PHYSICIAN-PATIENT PRIVILEGE

Answer 51

Usually created by state statute. Rationale: To encourage candor by patient and to protect privacy.

Elements
Privilege applies to:
• Confidential communication or information ac- quired by physician from patient
• For purpose of diagnosis or treatment of medical condition
Also applicable to psychotherapists (M.D. or other professional certified to diagnose or treat mental/emotional illness).

Federal Distinction
In federal-court actions based solely on federal law, privilege exists for psychotherapists, but not for usual physician-patient confidences (e.g., gallbladder treatment).

General Exception
Privilege does not apply if patient expressly or impliedly puts physical or mental condition in issue.

Question 52

Privileges: PRIVILEGES RELATED TO MARRIAGE

Answer 52

Spousal Immunity
In criminal cases only, a spouse cannot be compelled to testify against the defendant-spouse.
Rationale: To protect harmony of existing marriage at time of trial.
Witness-spouse holds privilege: Witness-spouse, not defendant, is holder of privilege (i.e., witness-spouse may voluntarily testify against the defendant spouse if she chooses).

Confidential Communications between Spouses
In any type of case, a spouse is not required, and is not allowed in the absence of consent by the other spouse, to disclose a confidential communication made by one to the other during the marriage (privilege survives divorce). Both spouses hold this privilege.
Rationale: To encourage candor between husbands and wives during the marriage? Privacy?
Exceptions Applicable to Both Privileges
• Communications or acts in furtherance of future crime or fraud
• Communications or acts destructive of family unit (e.g., spousal or child abuse)

Question 53

Procedural Issues: PRELIMINARY ISSUES OF ADMISSIBILITY

Answer 53

The judge decides:
• Is a witness competent to testify
• Existence of privilege
• Admissibility of evidence

In doing so, the judge is not bound by the rules of evidence—except privilege.

Question 54

Procedural Issues: JUDICIAL NOTICE

Answer 54

Judicial notice is the recognition of a fact as true without formal presentation of evidence.

What Facts May Be Judicially Noticed
A court may judicially notice a fact that is not subject to reasonable dispute because:
• The fact is generally known within the trial court’s jurisdiction (e.g., New York City is located in the State of New York), or
• The fact can be accurately and readily deter- mined from sources whose accuracy cannot reasonably be questioned (e.g., October 10, 2017, was a Tuesday).

Conclusiveness
In a civil case, the court must instruct the jury to accept the judicially noticed fact as conclusive.
In a criminal case, the court must instruct the jury that it may (but is not required to) accept the judicially noticed fact as conclusive.

Question 55

Procedural Issues: PRESUMPTIONS

Answer 55

A presumption is a rule that requires a particular inference to be drawn from an ascertained set of facts.

Destroying Presumptions in Civil Cases
A presumption is destroyed when the adversary pro- duces evidence to rebut the presumption.

Destroying Presumptions in Criminal Cases
A defendant in a criminal case does not need to pro- duce evidence to rebut a presumption (i.e., there are no mandatory presumptions against criminal defen- dants).

Question 56

Procedural Issues: LIMITED ADMISSIBILITY

Answer 56

The doctrine of limited admissibility allows the court to admit evidence to be used for one purpose but not another (e.g., for impeachment but not as substantive evidence), or against one party but not another. If the court admits evidence for a limited purpose, the court must, on timely request, issue a limiting instruction.

Question 57

Prior Identification

Answer 57

**Under Rule 801 of the Federal Rules, a prior identification can be admissible nonhearsay, and the sketch could be deemed a prior identification by the witness. However, the hearsay exclusion for prior identifications only applies when the declarant is testifying at trial and subject to cross-examination.

Question 58

Admitting the entirety of a statement on “fairness” grounds

Answer 58

Federal Rule 106 provides that, when a statement or part of a statement is introduced, the adverse party may introduce any other statement or part of the statement which ought, in fairness, to be considered at the same time.

Question 59

Refresher on state of mind evidence

Answer 59

A declaration of intent to do something in the future is admissible as circumstantial evidence tending to show that the intent was carried out.

Question 60

Is evidence of religious beliefs admissible to impair witness credibility?

Answer 60

No. Lack of religious belief is no longer a basis for excluding a witness. Not only are a person’s religious convictions irrelevant in determining the competence of a witness, Federal Rule 610 provides that a witness’s religious beliefs or opinions are not admissible to show that the witness’s credibility is thereby impaired or enhanced.

Question 61

Best Evidence Rule voluminous records

Answer 61

The original document or best evidence rule generally requires the original writing to be produced when the terms of the writing are sought to be proved and are material to the case. [Fed. R. Evid. 1002] However, under Federal Rule 1006, the contents of voluminous writings that are otherwise admissible may be presented in the form of a chart as long as the original documents are available to the other party for examination and copying.

Question 62

What is the standard for authenticating a writing in evidence?

Answer 62

Before a writing may be received in evidence, it must be authenticated by proof showing that the writing is what the proponent claims it is. All that is necessary is proof sufficient to support a jury finding of genuineness. The authenticity of a document is a preliminary fact to be decided by the jury.

Question 63

judicial notice

Answer 63

a fact is appropriate for judicial notice when it is indisputable or can be verified through scientific principles.

may also take notice of facts that are generally known within the jurisdiction of the court or are easily verifiable.

Question 64

preliminary questions of admissibility

Answer 64

preliminary questions for 1) the qualifications of a person to be a witness, 2) the existence of a privilege or 3) the admissibility of evidence… shall be determined by a judge and not the jury.

Question 65

Rules for character evidence in criminal case

Answer 65

inadmissible unless and until defendant opens the door

1) prosecution cannot introduce evidence of D’s bad character if the purpose of the evidence is to show that the D acted in conformity with and committed crime charged
2) The defendant is allowed to present evidence of good character to establish that they acted in good character and did not commit crime (they are limited to evidence of reputation or opinion evidence only on direct)
3) If D does present evidence of good character, they have opened the door on the issue.
4) Evidence of prior crimes are never admissible to show that they probably acted unlawfully again (may be admissible for some other purpose -> MIMIC)
5) If D testifies then they automatically put their character for truthfulness at issue

Question 66

Rules for character evidence in civil case

Answer 66

is inadmissible unless it is directly at issue or is an essential element of P’s claim or defense

1) cannot introduce any evidence of character trait of a party to show that they acted in conformity therewith during the event that gave rise to the litigation
2) if the litigant has some other purpose for the character evidence and it’s relevant (character at issue, habit, etc.), then the rule prohibiting character will not keep it out
3) ?

Question 67

can you bolster the defendants credibility without credibility being attacked?

Answer 67

Yes. based on the crime charged.

[from example about embezzlement]

Under Federal Rule 404(a), a criminal defendant is allowed to present relevant character evidence to help establish that he may not have committed the crime charged. Thus, evidence that the defendant had a reputation for being an honest person would be admissible to show that he might not have embezzled funds because embezzlement is a crime of dishonesty.

Question 68

Impeachment basics

Answer 68

can impeach b/c

1) prior inconsistent statement (only comes in for impeachment purposes, not substance unless given under oath in previous proceeding)
2) bias or motive to misrepresent
3) prior conviction (dishonesty or false statement for any case OR a felony with 1+ years punishment but judge has discretion AND for either it has to be within 10 years)
4) specific acts of misconduct that bear on truthfulness or untruthfulness (extrinsic evidence not allowed)
5) bad reputation in the community for truth or veracity (extrinsic evidence allowed)

Question 69

Collateral matter admissibility basics

Answer 69

Relevancy issue.

When a witness makes a statement not directly relevant to the issues in the case, the rule against impeachment on a collateral matter bars his opponent from proving the statement untrue either by extrinsic evidence or by a prior inconsistent statement.

Question 70

statements that are non-hearsay even though they fall into the technical definition of hearsay

Answer 70

801(d)

• statements of opposing party
• statements made by testifying witnesses subject to cross examination
• prior inconsistent statements made under oath
• prior identifications
• prior consistent statements that rehabilitate

Question 71

9 commonly tested hearsay exceptions

Answer 71

• present sense impression
• excited utterance
• statements showing current mental or physical condition
• statements made for medical diagnoses
• recorded recollection
• the business records exception
• former testimony given in former proceeding or deposition*
• dying declaration*
• statements against interest*

*unavailability at trial is required

Question 72

subsequent remedial measures overview

Answer 72

inadmissible to prove:

• negligence
• culpable conduct
• design defect
• need for warning

exceptions:
- to show ownership or control if controverted or in issue
- feasibility of a precautionary measure
- impeach credibility

Question 73

At what point do statements receive protection when they are made in furtherance of settlement negotiations?

Answer 73

Once threat of litigation has arisen.

The public policy rationale for Rule 408, which is to encourage settlement of disputes without litigation, does not come into play until litigation is at least threatened.

Question 74

Handwriting authentication

Answer 74

• can be done by someone similar with the handwriting before trial. BUT cannot become familiar with it for the purposes of trial
• can be done by an expert
• OR can be done by giving it to the jury to let them compare for themselves

Question 75

Marital privilege vs spousal privilege

Answer 75

Marital privilege (confidential communications)

• Applies in both criminal and civil cases
• Protects confidential communications made between spouses DURING marriage
• survives divorce and death
• both have the right to invoke privilege

Spousal privilege

• applies in criminal cases only
• protects or blocks adverse testimony based on knowledge or communications, observations, impressions, made before or during marriage so long as the spouses are married AT THE TIME OF TRIAL
• the witness spouse is the holder of the privilege
• upon divorce/death, entire privilege is lost

Question 76

A man was tried in state court for possession of heroin. The prosecution offered in evidence five rolled-up toy balloons containing heroin, which police officers had found on a table in the man’s apartment. At a hearing on the defense’s motion to suppress, testimony was presented that established that the police had put the apartment under surveillance and had watched a police informant go to the door of the apartment, hand four balloons of heroin to the man, and leave. The police had then knocked on the apartment door, identified themselves as police officers, and demanded entrance. Having heard nothing for 30 seconds, the police had then broken down the door and entered the apartment, discovering the heroin. The police had intended to arrest the man for the purchase of heroin, a felony. When they had gotten inside the apartment, they discovered that the man had left by a back exit. He was later arrested at the nearby newsstand.

The trial court denied the motion to suppress, and the case is on appeal following the man’s conviction for possession of heroin. How should the appellate court rule?

Answer 76

The appellate court should reverse the conviction on Fourth Amendment grounds. In Payton v. New York (1980), the United States Supreme Court held that, absent an emergency, a forcible, warrantless entry into a residence for the purpose of making a felony arrest is an unconstitutional violation of the Fourth Amendment as made applicable to the states by the Fourteenth Amendment. No exigent circumstances justified the warrantless arrest or the warrantless entry into the home. If the police had reason to believe the man was destroying evidence, they could have entered the home without a warrant to prevent the destruction under the exigent circumstances doctrine. But nothing in the facts gave the officers reason to believe that evidence was being destroyed. They knocked on the door, identified themselves, and demanded entrance. They heard no response or sounds of drugs being destroyed. Thus, there were no exigent circumstances.

Question 77

Standard for proving the accuracy of a photograph when admitting into evidence

Answer 77

To be admissible, a photograph must be identified by a witness as a portrayal of certain facts relevant to the issue, and verified by the witness as a correct representation of those facts. It is sufficient if the witness who identifies the photograph is familiar with the scene or object depicted. It is not necessary to call the photographer to authenticate the photograph.

Question 78

The defendant is on trial for murder. During the trial, the prosecution offers into evidence a properly authenticated affidavit summarizing the results of the defendant’s fingerprint test, as proof that the fingerprints on the murder weapon are those of the defendant. The affidavit was prepared pursuant to statute by the lab technician that conducted the test. The defendant objects to the evidence.

Answer 78

The court should rule that the evidence is inadmissible. A criminal defendant has the constitutional right, under the Confrontation Clause, to confront and cross-examine the witnesses against him. Affidavits that summarize the findings of forensic analysis and have the effect of accusing the defendant of criminal conduct are testimonial in nature and are not admissible into evidence against the defendant unless the preparer is unavailable and the defendant previously had an opportunity to cross-examine. Here, admission of the affidavit precludes the defendant from cross-examining the lab technician, and there is no evidence suggesting that the technician is unavailable. Thus, the affidavit is inadmissible-the lab technician must be brought in to testify as to the findings of the fingerprint test.

Question 79

rule for introducing previous testimony from a prior case on a similar matter

Answer 79

Under Federal Rule 804(b)(1), the testimony of a witness who is unavailable, given at another hearing, is admissible in a subsequent trial if there is sufficient similarity of parties and issues so that the opportunity to develop testimony or cross-examination at the prior hearing was meaningful. The former testimony is admissible upon any trial of the same subject matter. The party against whom the testimony is offered or, in civil cases, the party’s predecessor in interest must have been a party in the former action. “Predecessor in interest” includes one in a privity relationship with the party, such as grantor-grantee, testator-executor, life tenant-remainderman, and joint tenants. These requirements are intended to ensure that the party against whom the testimony is offered (or a predecessor in interest in a civil case) had an adequate opportunity and motive to cross-examine the witness. In the civil suit here at issue, the survivors of the victim were not parties to the criminal case, nor were they in privity with any such party. (The parties to that case were the defendant and the government.)

Question 80

dying declarations that are mere suspicions

Answer 80

As well-founded as such a suspicion may be, a statement based on mere suspicion rather than actual knowledge does not constitute a statement concerning the cause or circumstances of an “impending death” for purposes of the dying declarations exception.

Question 81

What questions are okay on cross?

Answer 81

A witness may be interrogated upon cross-examination with respect to an act of misconduct only if it is probative of truthfulness.

Excerpt from Q: An assault is not probative of truthfulness, so it would not be proper impeachment evidence. Had the witness been convicted of the assault, the conviction would have been admissible, provided it was a felony.

Question 82

A plaintiff was injured in an automobile accident caused by the defendant. The plaintiff sued the defendant for his injuries. In preparation for trial, the plaintiff’s attorney hired a doctor to examine the plaintiff. At trial, the defense attorney attempts to call the doctor as a witness to testify about statements the plaintiff made in confidence to the doctor about his injuries, which the doctor then communicated to the plaintiff’s attorney. The state recognizes only the common law privileges.

Should this testimony be admitted?

Answer 82

The testimony should be excluded because the attorney-client privilege applies to the examination done in preparation for trial. The communication between the doctor and the attorney’s client is necessary to help the client convey his condition to the attorney.

the physician-patient privilege does not apply to any proceeding in which the condition of the patient has been put in issue by the patient. This is the case in the plaintiff’s suit, so (D) is incorrect. However, (B) is incorrect because when a client is examined by a doctor at the attorney’s request, the communications involved between the client and doctor (and the doctor and attorney) are not covered by the physician-patient privilege because no treatment is contemplated. Moreover, the physician-patient privilege is a statutory privilege, and this jurisdiction recognizes only the common law privileges (e.g., the attorney-client privilege).

Question 83

Evidence of Sexual Behavior tending to show consent

Answer 83

Although Federal Rule 412 generally excludes evidence of an alleged victim’s sexual behavior, evidence of specific instances of sexual conduct between the alleged victim and the accused may be admitted to show consent

Question 84

A decedent died without having executed a will, leaving a substantial estate to be distributed by the probate court. The jurisdiction’s applicable statute provides that where a decedent leaves neither issue nor spouse, nor parents, his estate goes to his brothers and sisters and their descendants. The decedent was never married, had no children, and both of his parents are dead. A woman whose birth certificate was destroyed by fire seeks to establish that she is the daughter of the decedent’s only sibling, who is now also deceased. The woman offers into evidence a statement in a properly recorded trust instrument. The instrument was executed by the decedent’s father and recited that certain specified real property conveyed by the decedent’s father into the trust should be held for her benefit, as “my loving granddaughter.” The document actually offered is an enlarged print photocopy of microfilm records, authenticated by an employee of the county.

What should the trial court do?

Answer 84

The court should admit the evidence. Statements in a document affecting an interest in property are admissible, pursuant to Federal Rule 803(15), if they are relevant to the purpose of the document.

Question 85

At trial in a criminal prosecution for theft, the defendant calls a witness to testify that he formerly knew the defendant as an army supply sergeant and that the defendant had turned down many opportunities for black marketeering.

Is the witness’s testimony admissible?

Answer 85

A criminal defendant may introduce evidence of his own good character for a pertinent trait to show that he did not commit the alleged crime. However, such evidence may be presented in the form of reputation and opinion testimony only; specific acts are not allowed. Thus, the defendant here may not introduce his specific acts of turning down opportunities for black marketeering to prove his good character for truthfulness.

Question 86

A plaintiff sued the manufacturer of a slicing machine for negligent design, after the machine cut off the plaintiff’s finger. The plaintiff claims that while he was cleaning the machine, two wires came into contact with each other and caused the machine to turn on. At trial, the manufacturer has offered evidence that it was unreasonably expensive to design the machine so that the wires could not come into contact. In rebuttal, the plaintiff offers evidence that after this action was filed, the manufacturer redesigned the machine to prevent the wires from coming into contact.

Is evidence of this change in design admissible?

Answer 86

As a matter of public policy, evidence of repairs or other precautionary measures made following an injury is inadmissible to prove negligence, culpable conduct, a defect in a product or its design, or a need for a warning or instruction. The purpose of the rule is to encourage people to make such repairs. However, such evidence may be admissible for other purposes. One permissible purpose is to rebut a claim that the repair or precaution was not feasible. Here, the manufacturer has introduced evidence that it was unreasonably expensive to design the machine so that the wires would not come into contact-but they did in fact implement this new design. Thus, the plaintiff may introduce evidence of the new design to rebut the manufacturer’s claim that it was not feasible.

Question 87

Learned Treatise Exception -> can an attorney just read it into evidence?

Answer 87

NO, there are conditions.

The content of the treatise is hearsay because it is an out-of-court statement being offered for the truth of its contents. There is a hearsay exception that allows portions of learned treatises to be read into evidence, but this exception applies only when the treatise is being used on direct or cross-examination of an expert witness.