Evidence

Question 1

Definition of Relevance

Answer 1

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

Question 2

Rule 403

Answer 2

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

Question 3

Rule 403 (Pragmatic Considerations)

Answer 3

There are the ONLY pragmatic considerations.

1. danger of unfair prejudice
2. confusion of the issues
3. misleading the jury
4. undue delay
5. waste of time
6. unduly cumulative

Question 4

Admissibility of Evidence of Similar Occurrences - P’s Accident History

Answer 4

generally not admissible, unless the cause of P’s damages are in issue

Question 5

Admissibility of Evidence of Similar Occurrences - Similar Accidents Caused by the Same Event or Condition

Answer 5

generally inadmissible, but defendant’s accidents involving the same instrumentality or condition, and occurring under substantially similar circumstances, may be admitted for three potential purposes: (1) evidence of dangerous condition, (2) causation, or (3) prior notice to defendant (if other accident occurred before P’s)

Question 6

Admissibility of Evidence of Similar Occurrences - Intent in Issue

Answer 6

person’s prior conduct may provide inference of intent on later occassion

Question 7

Admissibility of Evidence of Similar Occurrences - Comparable Sales on Issue of Value

Answer 7

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 8

Admissibility of Evidence of Similar Occurrences - Habit

Answer 8

habit of a person is admissible as circumstantial evidence of how the person (or business) acted on the occasion at issue in the litigation.
defining characteristics of habit: frequency of conduct and particularity of circumstances
*Distinguish habit evidence from character evidence (character evidence refers to a particular person’s general disposition or propensity and is usually not admissible to prove conduct on a particular occasion)

Question 9

Admissibility of Evidence of Similar Occurrences - Industrial Custom as Standard of Care

Answer 9

evidence as to how others in the same trade or industry have acted in the recent past may be admitted as some evidence as to how a party in the instant litigation should have acted (i.e., evidence of appropriate standard of care)

Question 10

Public Policy Exclusions - Liability Insurance

Answer 10

evidence that a person does or does not have liability insurance is inadmissible to prove person’s fault or absence of fault
Exceptions: if offered for some other relevant purpose such as: proof of ownership/control of instrumentality or location, IF disputed; or impeachment of witness (usually on the grounds of bias)

Question 11

Public Policy Exclusions - Subsequent Remedial Measures

Answer 11

(i.e., post accident repairs, design changes, policy changes)
inadmissible for purposes of proving negligence, culpable conduct, product defect, or need for warning.
Exception: may be admissible for some other purpose, IF disputed - proof of ownership/control or feasibility of safer control

Question 12

Public Policy Exclusions - Settlements in Civil Cases

Answer 12

evidence of a settlement, offer to settle, or statements of fact made in the course of settlement discussion are inadmissible to: (1) prove liability or weakness of a party’s case or (2) impeach through inconsistent statement or contradiction
BUT may be admissible for purposes of impeaching a witness on the ground of bias
*only applies if there is a disputed claim at the time of the settlement, either as to validity or amount of damages

Question 13

Public Policy Exclusions - Plea Discussions in Criminal Cases

Answer 13

the following are inadmissible:
(1) offer to plea guilty (can’t be used against D in pending criminal case or subsequent civil case on the same facts)
(2) withdrawn guilty plea (can’t be used against D in pending criminal case or subsequent civil case on the same facts)
(3) plea of nolo contendre (can’t be used against D in subsequent civil case based on the same facts)
BUT a plea of guilty that is not withdrawn is admissible in subsequent litigation based on the same facts under the rule of party admissions

Question 14

Public Policy Exclusions - Offer to Pay Medical or Hospital Expenses

Answer 14

evidence that a party paid or offered to pay an accident victim’s hospital or medical expenses is inadmissible to prove liability (no need to show disputed claim)

Question 15

Potential Purposes for Offering Character Evidence

Answer 15

• person’s character is a material element in the case
• to prove conduct in conformity with character at the time of the litigated event
• witness’s bad character for truthfulness to impeach credibility

Question 16

Admission of Evidence of D’s Character in Criminal Cases

Answer 16

evidence of D’s character to prove conduct in conformity is not admissible during prosecution’s case-in-chief
BUT the defendant may introduce relevant character evidence to prove conformity in conduct

Question 17

Prosecution’s Rebuttal to D’s Introduction of Character Evidence

Answer 17

If D opens the door by calling character witnesses, the prosecution may:

(1) cross-examine D’s character witnesses with “Have you heard” or “Did you know” questions about specific acts of the D that reflect adversely on the particular character trait that D has introduced and/or
(2) call its own reputation or opinion witnesses to contradict the D’s witnesses

Question 18

Admission of Evidence of Victim’s Character in Self-Defense Case

Answer 18

Criminal D may introduce evidence of victim’s character to prove victim’s conduct in conformity (i.e., circumstantial evidence that victim was first aggressor)
Proper method: character witness may testify to victim’s reputation for violence and may give their opintion

Question 19

Prosecution’s Rebuttal to D’s Introduction of Evidence of Victim’s Character

Answer 19

once D has opened the door to victim’s bad character, prosecution may rebut with opinion or reputation testimony regarding: victim’s good character and/or D’s bad character

Question 20

Separate Rule of Relevance Applied When D Introduces Evidence of Victim’s Bad Character

Answer 20

if D, at the time of alleged self-defense, was aware of victim’s violent reputation or prior specific acts of violence, such awareness may be offered to show D’s state of mind (fear) to help prove that he acted reasonably in responding as he did to victim’s aggression

Question 21

Character Evidence in Civil Cases and Exceptions

Answer 21

generally inadmissible to prove conduct in conformity
BUT character evidence is admissible where such character is an essential element of a claim or defense (i.e., negligent hiring or entrustment, defamation, child custody)

Question 22

Admission of D’s Other Crimes or Acts for Non-Character Purpose and Exceptions

Answer 22

D’s other crimes and specific bad acts are generally inadmissible during prosecution’s case-in-chief if offered to suggest propensity
BUT if the evidence shows something specific about the crime charged (something more than mere bad character), it is admissible as evidence bearing on guilty (MIMIC purposes): Motive, Intent, Mistake (absence of), Identity, Common Scheme or plan)
*D must be contesting the issue to which MIMIC crime is addressing

Question 23

Method of Proof of Independently Relevant Misconduct

Answer 23

(1) criminal conviction or (2) by other evidence
Conditional relevancy standard: prosecution need only produce sufficient evidence from which a reasonable juror could conclude that D committed the other crime.
*In criminal cases, prosecution must give pretrial notice of intent to introduce MIMIC evidence. If evidence is admissible, judge must give a limiting instruction.
*If relevant, MIMIC evidence can also be used in civil cases

Question 24

Admission of Other Sexual Misconduct to Show Propensity in Civil or Criminal Sex-Crime Cases

Answer 24

in a case alleging sexual assault or child molestation, prior specific sexual misconduct of the D is admissible as part of the prosecution or plaintiff’s case-in-chief for any relevant purpose, including D’s propensity for sex crimes

Question 25

Standard of Authentication of Writings

Answer 25

condition relevancy standard - document is admissible if court determines there is sufficient evidence from which a reasonable juror could conclude the document is genuine

Question 26

Method of Authentication of Writings - Witness’s Personal Knowledge

Answer 26

witness observed X sign the document

Question 27

Method of Authentication of Writings - Proof of Handwriting

Answer 27

Lay Opinion: testifies to opinion that X wrote document on basis of familiarity with X’s handwriting as result of experience in normal course of affairs (*law witness cannot become familiar with X’s handwriting for the sole purpose of testifying; in contrast, witness can become familiar with speaker’s voice under any circumstances)
Expert Comparison Opinion: handwriting expert testifies to opinion that X wrote the document on basis of comparison between document and genuine sample of X’s handwriting
Jury Comparison: jury compares document with example of X’s handwriting

Question 28

Method of Authentication of Writings - Ancient Document Rule

Answer 28

authenticity may be INFERRED if document is at least 20 years old, facially free of suspicion, and found in a place of natural custody

Question 29

Method of Authentication of Writings - Solicited Reply Doctrine

Answer 29

document can be authenticated by evidence that it was received in response to a prior communication to the alleged author

Question 30

Authentication of Photographs

Answer 30

witness may testify on basis of personal knowledge that photo is a “fair and accurate representation” of the people or objects portrayer (witness does not have to be the photographer)

Question 31

Self-Authenticating Documents

Answer 31

Presumed authenticated - no need for foundation testimony:

• official publications
• certified copies of public or private records on file in public office
• newspapers and periodicals
• trade inscriptions and labels
• acknowledged documents (notarized)
• commercial papers
• certified business record (with reasonable written notice to adverse party)

Question 32

Best Evidence Rule

Answer 32

rule: in order to prove contents of a writing, recording, or photograph, the original must be produced.
definition: party who seeks to prove contents of writing must either produce original or provide acceptable excuse for its absence. If court accepts excuse, the party may use secondary evidence (oral testimony or copy)
Key inquiries: (1) what does it mean to “prove the contents” of a writing? (2) to what evidence does BER apply? (3) what is an “original?” (4) what are the exceptions to BER?

Question 33

When Best Evidence Rule Applies

Answer 33

Two principal situations:

(1) the writing is a legally operative document (i.e., writing itself creates rights and obligations, like patent, deed, mortgage, divorce decree, written contract)
(2) witness is testifying to faces they learned solely from reading about them in the writing

Question 34

When Best Evidence Rule Does Not Apply

Answer 34

when a witness with personal knowledge testifies to a fact that exists independently of a writing that records the face

Question 35

Best Evidence Rule - What Qualifies as the “Original” Writing?

Answer 35

the writing itself; any counterpart intended to have the same effect; any negative of film or print from the negative; computer printouts
duplicate: any counterpart produced by any mechanical means that accurately reproduced the original (i.e., not a handwritten copy); rule on duplicates: admissible to the extent as the original unless it would be unfair or a genuine question is raised at to the authenticity of the original

Question 36

Best Evidence Rule - Excuses for Non-Production of Original

Answer 36

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; secondary evidence is then admissible

Question 37

Best Evidence Rule - Escapes (Exceptions)

Answer 37

• 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 38

Competency of Witnesses - Two Basic Requirements

Answer 38

personal knowledge and oath or affirmation

Question 39

Competency of Witnesses - “Dead Man Statute”

Answer 39

in general (multistate issue): witness is not ordinarily incompetent merely because she has an interest (direct legal stake) in outcome of litigation
BUT under a typical state dead man statute, 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 interested party and decedent 
(*Federal Rules of Evidence do not have a dead man statute. On the multistate exam, if the question explicitly states that the jurisdiction has a dead man statute, apply the rule above)

Question 40

Form of Questioning - Leading Questions

Answer 40

form of question that suggests the answer. generally, allow on cross-examination but not on direct examination unless preliminary or introductory questions, youthful or forgetful witness, hostile witness, or adverse party

Question 41

Form of Questioning - Cross-Examination

Answer 41

party has a right to cross examine any opposing witness who testifies at trial. significant impairment of this right will result, at a minimum, in striking of the witness’s testimony.
Proper subject matter: matters within the scope of direct examination and matters that test witness’s credibility

Question 42

Writing in Aid of Oral Testimony - Refreshing Recollection

Answer 42

witness may not read from prepared memorandum and must testify on basis of their current recollection BUT if their memory fails them, they may be shown a memorandum (or any other tangible item) to jog their memory

Question 43

Writing in Aid of Oral Testimony - Refreshing Recollection (Safeguards Against Abuse)

Answer 43

if witness’s recollection is refreshed during testimony, adversary has right: to inspect the memory-refresher, to use it on cross, and to introduce it into evidence (the proponent of the memory-refresher may not).
*If refreshing happens before the witness testifies, adversary is not entitled to these options but the judge has discretion to allow it.

Question 44

Writing in Aid of Oral Testimony - Recorded Recollection (Hearsay Exception) (Foundation for Admissibility of Contents of Document)

Answer 44

• showing document to witness fails to job their memory
• witness had personal knowledge at former time
• document was either made by witness or adopted by the 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 45

Opinion Testimony - Lay Witnesses

Answer 45

admissible if: rationally based on witness’s perception (personal knowledge), helpful to jury in deciding a fact, not based on scientific, technical, or otherwise specialized knowledge that would require expert testimony

Question 46

Opinion Testimony - Expert Witnesses (Qualification)

Answer 46

education and/or experience

Question 47

Opinion Testimony - Expert Witnesses (Proper Subject Matter)

Answer 47

scientific, technical, or other specialized knowledge that will be helpful to jury in deciding a fact

Question 48

Opinion Testimony - Expert Witnesses (Basis of Opinion)

Answer 48

must have opinion based on reasonable degree of probability or reasonable certainty, and from three permissible data sources:

(1) personal knowledge
(2) other evidence in the trial record (testimony) by other witnesses, exhibits - usually made known to experts by hypothetical questions
(3) facts outside the record if of a type reasonable relied on by experts in the particular field in forming opinions

Question 49

Opinion Testimony - Expert Witnesses (Reliability)

Answer 49

to be admissible, expert opinion must be sufficiently reliable. the court serves as “gatekeeper” and will use Dauber factors to determine reliability of principles and methodology used by all experts to reach opinion.
Daubert factors: (“TRAP”)
Testing of principles or methodology
Rate of error
Acceptance by experts in the same discipline
Peer review and publication

Question 50

Opinion Testimony - Expert Witnesses (Learned Treaties in Aid) (Hearsay Exception)

Answer 50

treatises, pamphlets, periodicals may be admissible by experts as follows: (1) on direct of party’s own expert - relevant portions of aid may be read into evidence as substantive evidence, if established as reliable authority; (2) on cross of opponent’s expert - read into evidence to impeach and contradict opponent’s expert, also comes in as substantive evidence
*read into evidence once, may not be introduced as an exhibit