Evidence

Question 1

Evidence is releant if

Answer 1

1. (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.
2. Generally, relevant evidence relates to the time, person, or event at issue, but there are exceptions for certain similar occurrences, e.g.:
   a. To prove causation
   b. Prior false claims
   c. Similar accidents caused by the same condition
   d. Rebutting a claim of impossibility
   e. Habit- Distinguish from character evidence (which is more general and often inadmissible)—e.g., “Charlie never stops at the stop sign at Main and Oak” (habit) vs. “Charlie is a careless driver” (character)
   f. Business routine and industrial custom

Question 2

Policy-based Relevance—Evidence Excluded for Social Policy Reasons

Answer 2

Think about the general rule, the rationale behind the rule, and its exceptions/limita- tions

Liability insurance

subsequent remedial measures

settlement offers and accompanying admissions of fact

payments or offers to pay medical expenses

Withdrawn guilty pleas and accompanying statements—generally inadmissible

Question 3

Payments or offers to pay medical expenses

Answer 3

a. Inadmissible to prove liability

b. But note: Accompanying statements of fact are admissible (unlike rule for settle- ment negotiations)

Question 4

Settlement offers and accompanying admissions of fact

Answer 4

a. Inadmissible to prove or disprove validity or amount of disputed claim, or to impeach by prior inconsistent statement or contradiction
b. Exception—preexisting information not protected

Question 5

Subsequent remedial measures

Answer 5

a. Inadmissible to prove—negligence, culpable conduct, or defect
b. Admissible to prove—ownership or control, feasibility of the repair, or destruc- tion of evidence

Question 6

Liability insurance

Answer 6

a. Inadmissible to prove—negligence or ability to pay

b. Admissible to prove—ownership or control, impeachment, or as part of an admission of liability

Question 7

iscretionary Relevance—Rule 403 Balancing Test

Answer 7

Judge has broad discretion to exclude relevant evidence if its probative value is substantially outweighed by:

a. Unfair prejudice
b. Confusion of issues
c. Misleading the jury
d. Undue consumption of time

Question 8

character Evidence—Special Relevance Problem

Answer 8

1. Determine its purpose—substantive or impeachment evidence? (For character evidence offered to impeach a witness, see VII., infra.)

Question 9

Which methods of character evidence are permitted

Answer 9

a. Reputation testimony (“Mary has a good reputation for honesty in our commu- nity”)
b. Opinion testimony (“I think Mary is a very honest person”)
c. Specific acts—usually not permitted, unless character is directly at issue in the case (rare); in sexual assault or child molestation cases; or when the act is independently relevant (i.e., relevant to an issue other than defendant’s character)—“MIMIC”:
1) Motive
2) Intent
3) Mistake (absence of)
4) Identity
5) Common plan or scheme

Question 10

If it is a criminal case and you are introducing character eveidence.

Answer 10

Criminal cases—determine who can initiate and under what circumstances
1) Defendant may introduce evidence of his own good character to show innocence
2) When prosecution may introduce defendant’s bad character
a) As rebuttal when defendant “opens the
door”
b) Specific acts that are independently
relevant (“MIMIC”)
c) Specific similar acts by defendant in
sexual assault or child molestation case
(admissible for any relevant purpose,
including propensity)
3) Character of the victim
a) Defendant may introduce if relevant to
his innocence (generally in self- defense
cases)
b) Prosecution may rebut with (i) defendant’s bad character for same trait or (ii) victim’s good character for same trait

Question 11

Character Evidence in a civil case.

Answer 11

civil cases—character evidence generally not admitted
1) Exceptions—when character is directly in issue (e.g., defamation, negligent hiring); similar specific acts in a sexual assault or child molestation case; or specific acts that are independently relevant (“MIMIC”)

Question 12

Real Evidence

Answer 12

1. Object is presented directly to the trier of fact for inspection
2. Allows the trier of fact to reach conclusions based upon its own perceptions rather than relying upon those of witnesses

Question 13

Types of real evidence

Answer 13

direct: 1. offered to prove the facts about the object as an end in itself. Such as evi of permanent injury can be shown by the injury itself.
circumstantial: facts about the object are proved a s a basis of an inference that other facts are true. such as in paternity cases a child is shown and is the same race as alleged father
original: some connection with the transaction that is in question at trial. Such as the alleged murder weopen.

Prepared: demonstative evidece, such as sketches models jury view of scene.

Question 14

authentication of evidence.

Answer 14

1. Recognition testimony by witness—if item has recognizable features
2. Chain of custody—if evidence is a type likely to be confused or if it can be easily tampered with:
   a. Proponent must show that the object has been held in a substantially unbroken chain of possession
   b. Need not negate all possibilities of substitution or tampering, but must show adherence to some system of identification and custody

Question 15

Documentary evidence- authentication

Answer 15

1. Writings must be authenticated by proof showing they are what the proponent claims they are (unless self-authenticating such as newspapers, commercial paper, etc.)
   a. Standard for authentication—proof sufficient to support a jury finding of genuineness
2. Authenticated by stipulation, evidence of authenticity, etc.
3. Oral statements—only when important

Question 16

Best Evidence Rule (Original Document Rule

Answer 16

1. In proving the terms of a writing (including a recording, photograph, or X-ray), where the terms are material, the original writing must be produced
   a. Secondary evidence is allowed only if the original is unavailable for some reason other than the serious misconduct of the proponent
2. Rule applies only in certain situations
   a. When the writing is a legally operative or dispositive instrument (e.g., contract, deed, will, divorce decree)
   b. When the witness’s knowledge of a fact comes from having read it in the document
   1) If the fact exists independently of a writing, the best evidence rule does not apply

Question 17

Requirements of Witness competency

Answer 17

1. Personal knowledge of the subject matter
2. Sworn oath or affirmation that witness will testify truthfully
3. All witnesses presumed competent under the Federal Rules until the contrary is demonstrated (no age requirement)

Question 18

Will the Dead Man act apply?

Answer 18

1. Not recognized by Federal Rules; statutes vary by state
2. May bar an interested person from testifying in a civil case as to a communica- tion with a deceased, if such testimony is offered against the representative of the deceased (e.g., executor)
3. Many exceptions to act and “door-openers”

Question 19

Lay opinion testemony:

Answer 19

1. Requirements—rationally based on the witness’s perception, helpful to the jury, and not based on scientific or technical knowledge
2. Common examples
   a. General appearance or condition of a person
   b. State of emotion
   c. Speed of moving object
   d. Intoxication
   e. Sanity
   f. Voice or handwriting identification

Question 20

Expert opinion testimony:

Answer 20

1. Is the subject matter one where expert testimony would assist the trier of fact (relevant and reliable)?
   a. Court acts as gatekeeper to determine reliability (Daubert test)
2. Is the expert qualified on the subject?
3. Does the expert possess reasonable probability regarding her opinion?
4. Is the opinion supported by a proper factual basis (personal observation, facts made known to her at trial, or facts supplied outside courtroom and of a type reasonably relied upon by experts in field)?

Question 21

Impeaching the credibility of a witness

Answer 21

Any party may attack the credibility of any witness

Question 22

Common methods of impeaching a witness’s credibility

Answer 22

Impeachment by cross-examination and (some methods) extrinsic evidence
1. Prior inconsistent statement

2. Bias
3. Prior conviction of crime
   a. Any crime (misdemeanor or felony) involving dishonesty or false tatement—judge has no discretion to exclude
   b. Any other felony
   c. Limitations on remoteness (10-year rule)
4. Prior bad acts
   a. Must be probative of truthfulness (i.e., an act of deceit)
   b. Cross-examination only; no extrinsic evidence
5. Opinion or reputation evidence of untruthfulness
6. Sensory deficiencies
7. Contradictory facts

Question 23

Is the testimony privileged

Answer 23

1. Identify the privilege, its scope, and its holder
2. Are there any exceptions, waivers, or limitations?
3. Applicability in federal court
   a. Federal courts currently recognize:
   1) Attorney-client privilege
   2) Spousal immunity
   3) Marital communications privilege
   4) Psychotherapist/social worker-client privilege
   5) Clergy-penitent privilege
   6) Governmental privileges
   b. If not one of those, does state law apply with respect to privileges (i.e., is it a diversity case)?

Question 24

Attorney client privilege

Answer 24

Attorney-client

a. Client must be seeking attorney’s services at the time of the communications
b. Communication must be confidential (not intended to be disclosed to third parties)
c. Termination of attorney-client relationship does not terminate privilege; it even survives death
d. Special rules for corporate clients
e. Nonapplicability:
- Where client seeks legal advice in aid of crime or fraud
- Parties claiming through the same deceased client
- Dispute between attorney and client (e.g., malpractice)
- Client puts legal services at issue

Question 25

Physician patient privilege

Answer 25

a. No federal privilege, but recognized in many states
b. Information must be acquired while professional relationship exists, while attending patient, and information must be necessary for treatment

c. Nonapplicability
1) Dispute between physician and patient (e.g., malpractice)
2) Patient puts physical condition at issue (e.g., personal injury lawsuit)

Question 26

Psychotherapist/ social worker client

Answer 26

similar in operation to the attorney-client priviege

Question 27

privileges related to marriage

Answer 27

Spousal immunity (privilege not to testify in a criminal case)

1) Applies in criminal cases only
2) Privilege belongs to witness-spouse under Federal Rules
3) Can only be asserted during marriage, although the matters at issue may have occured prior to the marriage

b. Confidential marital communications privilege (protects communications only; not observations, etc.)
1) Applies in both civil and criminal cases
2) Privilege belongs to both spouses
3) Communication must have been made during a valid marriage, but divorce will not terminate the privilege retroactively

c. Exceptions—neither privilege applies in:
1) Legal actions between the spouses
2) Cases involving crimes against the testifying spouse or either spouse’s children
3) In furtherance of joint crime or fraud

Question 28

Other privileges

Answer 28

6. Clergy-penitent
7. Accountant-client
8. Professional journalist
9. Governmental privileges

Question 29

Hearsay RUle

Answer 29

Hearsay is an out of court statement offered to prove the matter asserted.

1. Was there an out-of-court “statement” (i.e., oral or written assertion, or nonverbal conduct intended as an assertion)?
   a. Nonhuman declarations are not hearsay; there is no such thing as animal or machine hearsay.
2. Is it being offered for its truth or for some other purpose?
   a. If offered for its truth, it is hearsay
   b. If not offered for its truth, it is not hearsay, such as:
   1) Legally operative facts (e.g., words of contract or defamation)
   2) Offered to prove effect on reader or listener (e.g., notice)
   3) Circumstantial evidence of declarant’s state of mind
   4) Impeachment
3. Hearsay within hearsay—both inner and outer hearsay statements must fall within an exception

Question 30

Nonhearsay

Answer 30

1. Statement by an opposing party (also called “admission” of a party-opponent)
   a. A statement by or attributable to a party, offered against that party (need not be against interest)
   b. Adoptive statements (e.g., party’s silence in the face of an accusation)
   c. Vicarious statements (i.e., made by the party’s authorized spokesperson, agent, co-conspirator, etc.)
2. Prior inconsistent statement of testifying witness—when made under oath at a prior proceeding or deposition
3. Prior consistent statement of testifying witness—in certain circumstances when offered to rehabilitate an impeached witness
4. Prior statement of identification of testifying witness (e.g., photo identifications)

Question 31

Hearsay exceptions:

Answer 31

Declarant unavailable: 
former testimony
statement against interest
dying declaration
statement of personal or family history
statement against party procuring availability

Unavailability is irrelevant: 
excited utterance
present sense impression
then-existing state of mind, emotion, or sensation
exceptions relating to bodily conditions
business records
recorded recollection
official records
ancient document
learned treatises
statements in documents affecting an interest in property
catch all exception

Question 32

Former testimony

Answer 32

—under oath
1) The party against whom the testimony is offered (or his predecessor in interest in civil cases) must have been a party in the former action

Question 33

Statement against interest

Answer 33

b. Statement against interest

1) Declarant must have known that the statement was against her pecuniary, proprietary, or penal interest when made

Question 34

Dying declarations

Answer 34

—belief that death is imminent, concerning cause or circum- stances of death

1) Homicide and civil cases only
2) Declarant need not have actually died

Question 35

Statement of personal or family history

Answer 35

1) Declarant must be a member of the family in question or intimately associated with the family

Question 36

Statement against party procuring unavailability

Answer 36

1) The unavailable declarant’s hearsay statements are admissible against the party who procured her unavailability by deliberate wrongdoing

Question 37

excited utterance

Answer 37

made under the stress of the event

Question 38

present sense impression

Answer 38

present sense impression

1) Statement must be made during or immediately after the event or condition

Question 39

then existing state of mind, emotion, sensation

Answer 39

1) State of mind directly at issue in case (e.g., domicile)

2) To prove subsequent acts of declarant

Question 40

exceptions relating to bodily conditions

Answer 40

1) Statement of own present condition—admissible even if not made to physician
2) Statement made for medical diagnosis or treatment—includes past conditions
a) Includes cause or source of injury if pertinent to diagnosis or treatment

Question 41

Business records

Answer 41

1) Record must be made in regular course of business
2) Matters must be within the personal knowledge of the entrant or someone with a business duty to transmit such matters to the entrant

Question 42

recorded recollection

Answer 42

document itself is not admissible but may be READ to the jury 1) Various foundational requirements must be met (witness must not be able to remember the facts, must have been made or adopted by witness when the events were fresh in her mind, etc.)
2) Distinguish refreshing recollection, in which the witness testifies from their own memory after reviewing the document (no hearsay problem)

Question 43

Ancient documents

Answer 43

statements in authenticated documents prepared before 1998

Question 44

learned treatises

Answer 44

if used during examination of expert and established as reliable

Question 45

statements in documents affect an interest in property

Answer 45

f not covered by specific exception but (i) guarantees of trustworthiness, (ii) statement is strictly necessary, and (iii) notice given to adver-sary

Question 46

A hearsay statement offered against the accused in a criminal case is barred by the Confrontation Clause (even if it falls within a hearsay exception) if:

Answer 46

a. The declarant is unavailable;
b. The statement was “testimonial” in nature; and
c. The accused had no opportunity to cross-examine the testimonial statement prior to trial

Confrontation Clause rights may be forfeited if the defendant commits a wrongful act intended to keep the witness from testifying at trial

Question 47

testimonial statements

Answer 47

a. Statements made in the course of a police investigation when the primary purpose is to establish facts potentially relevant to a later criminal prosecution
1) Statements made to assist police in an ongoing emergency are nontestimo- nial
b. Affidavits or written reports of forensic analysis