Evidence

Question 1

What is the defintion of logical relevance?

Answer 1

(1) Probabitive
(2) Material ( fact of conseqense)

Question 2

Explain Legal Relevance ( 403)

Answer 2

The court may exclude relevant evidence if its probabtive value is substantially outweighed by a danger of

(1) Unfair prejudice
(2) Misleading the jury
(3) Confusing the issues
(4) undue delay
(5) wasting of time
(6) Cumulitive evidence

Question 3

Subsequent Remedial Measures( Exclusions on public policy grounds)

1. What can SRM not be used to show?
2. What can they be used to show?

Answer 3

Negligence

Defective product or design

Culpable conduct

2. Agency, ownership, control or for impeachment.

Question 4

(Public policy exclusion) - Compromise offers and settlement negotations

Answer 4

Offers, conduct, statements are not admissable to prove (1) disputed claim (2) to prove amount or (3) impeachment purposes.

Question 5

Offers to pay medical expenses cannot be used to show … but what can be used?

Answer 5

Liability for injuries but conducts or statements accompyining the offer are admissable.

Question 6

Public policy exclusions - Guilty Pleas

Answer 6

(1) withdrawn
(2) no contest
(3) Statements during negotiation
(4) Statements made while negotiating with prosecutors.

However, they are admissable during perjury proceedings.

Are not admissable against defendant

Question 7

Public policy exclusions - Liability insurance

Answer 7

Not admissable to show negligence or other wrongful acts. However, can be used to show bias, agency, ownership, or control.

Question 8

What are the three types of character evidence?

Answer 8

(1) Reputation in community
(2) opinion testimony
(3) specific instances

Question 9

In civil cases, propoensity character evidence is never allowed except:

Answer 9

(1) Character is essential element of crime
(2) Based on D’s sexual misconduct.

Question 10

When is the introduction of character evidence allowed in a criminal case by D and in what ways?

Answer 10

When it is pertinent to the crime charged

By reputation or opinon ONLY.

Question 11

After the D in a criminal case opens the door to character evidence, How can P respond?

Answer 11

(1) Specific instances on cross
(2) reputation or opinon showing D’s bad trait.

Question 12

When can a criminal D introduce character evidence of the victim? How can P respond?

Answer 12

They can introduce O or P evidence of victims character if it is relevant to defense.

P may rebut by (1) D has same character trait or (2) victim has positive character trait. If done on cross, P may use specific instances.

Question 13

MIMIC character evidence intent

What must P show to use specific instances of conduct for these purposes?

Answer 13

Specific instances of conduct can be shown to demonstrate

motive

idenity

Absence of mistake

common scheme or plan

2. Evidence to support jury finding that the D commited the prior act and probabitive value isnt substantially outweighed by unfair predijuce.

Question 14

What are the two elements of habit?

Answer 14

Frequency and particularity

Question 15

What are the ways in which you can impeach a witness?

Answer 15

(1) Character evidence of untruthfulness through reputation or opinon
(2) Specific instances of misconduct regarding untruthfulness on cross - (Not arrest or consequense of arrest)
(3) Prior convictions - (a) felony or misdemenor involving dishonesty (within 10 years)(b) evidence of felony if it is legally relevant (c) over 10 year subject to reverse 403.
4. PIS - can use extrinsic evidence if witness given opportunity to explain or deny (only material)
5. Sensory competence - unable to recieve, recall, or relate info that is not collateral
6. Bias - but must be given ability to answer or deny.

** when hearsay statement is allowed, declarents crediblity can be attacked by any of these means.

Question 16

What are the requirements for a lay witness opinon?

Answer 16

(1) rationally based on personal perception
(2) Helpful to undestand witness testimony
(3) not based on scientific or techinical knowledge.

Question 17

What are the requirements of expert witnesses?

Can an expert witness give opinon on ultimate issue?

Answer 17

(1) Qualified
(2) Helpful to jury to understand facts
(3) reliable principles and methods
(4) expert reliabliy applied principles and methods to fact of case.

Yes - unless in criminal case involving requiste mental state.

Question 18

Spousal immunity \

Marital communications

Answer 18

(1) applicable in criminal case and only the spouse holds the privilege.
(2) Communications made during marraige and intended to be confidential. Held by both spouses and extends beyond end of marriage.

Question 19

Attorney client privilege

Answer 19

(1) made to facilitate legal services AND (2) intended to be confidential.

Does not apply when (1) furthering crime (2) litigation between attorney and client (3) co clients are now adverse.

Exists after death and until client waives it.

Question 20

How can physcial evidence be authenticated?

Documentary?

Oral statements

What are the self authenticating evidence?

Answer 20

(1) Witness testimony OR chain of custody.
(2) Stipulation, witness testimony or handwriting verification.

Handwriting can be done by expert or trier of fact by comparing OR by non expert witness who was familiar with the handwriting prior to lit.

by any person who has heard voice through any means regardless of whether it was done to prepare for litigation.

Public documents bearing seal, certified copies of public records, official publications, newspapers or notrazied docs, commercial paper, trade inscriptions, business records certifed by custodian.

Question 21

What is requied by the best evidence rule?

Answer 21

a party must provide the original document(writing, recordings,photographs, elecotrinc docs, x- rays, or an accurate duplicate when

(1) trying to prove contents or
(2) witness is relying on document when testiying.

handwriting document is not accurate duplicate and only allowed when orginial is gone after reasonable search.

Question 22

What is Hearsay?

Answer 22

(1) out of court statement made by a person offered to prove the truth of the matter asserted. REMEMBER - must be an assertion.

Question 23

What are statements that are not offered for their truth and thus arent hearsay?

Answer 23

(1) Legally operative
(2) Effect on listener
(3) Circumstantial for declarent’s mind state.
(4) impeachment purposes

Question 24

What are hearsay statements that FRE exclude and thus are amdissable non- hearsay?

Answer 24

Prior statements of current witness subject to cross - (1) PIS if made under oath can be used substantively (2) prior consistent statements to rebut (3) for identification purposes.

Admissions by party opponent - vicarious(spokesperson, agent, co conspirator or adopted.

Question 25

What are the hearsay exceptions when declarent is unavailable?

Answer 25

Former testiomoney when person it is being used against had motive and opportunity to cross.

Statements against property, money, or penal interest

Dying decleration if made in face of imminent death and pertains to cause or circumsatance of death. (homicide and civil cases). (doesnt have to be dead, just not available).

Question 26

What are the hearsay exceptions when unavailablity is immaterial?

Answer 26

1. Present sense - describes event right after it happens
2. Excited utterance - still under stress
3. then exisisting physical or mental state(intent, motive..) - can be used to show state of mind or conduct.
4. Medical diagnosis - past or present condition for purpose of medical diagnoses. - even if made to family nurses or to enable doctor to testity at trial.
5. Recorded recollection - (1) personal knowledge, (2) didnt jog memory (3) made or adopted (4) accutraly reflects witness knowledge. - can be raed, but only opposing can make it exhibit.
6. Business record - (1) course of business (2) person with knowledge of matter at or near time of event

Question 27

What is required by the 6th amedment confortation clause?

Answer 27

RIght to confront witness at criminal trial.

Hearsay statement, even if valid, violates D’s 6th amednemtn right if

(a) criminal action
(b) testiomonial - reasonably expect to use at testimony by declarent
(c) declarent is unvailable
(d) d never had change to cross examine.

Police evidence during scene of crime is not testimonial but intelligence gathering is.

Question 28

Judcial notice of fact

Answer 28

Evidence is accepted as fact if (1) commonly known in community or(2) readily capeably of verification.

Civil - jury has to accept

Criminal - may accept.