Evidence

Question 1

Witnesses that may not be excluded from the courtroom:

Answer 1

(1) parties or their designated representatives,
(2) essential persons such as persons such as experts, prosecutor’s lead investigator, or
(3) persons authorized by statute to be present (crime victims)

Question 2

An expert may typically offer an opinion on an ultimate issue - but in a criminal case, an expert may not:

Answer 2

Offer an opinion about whether the defendant possessed the requisite mental state for the charged crime or asserted defense

Question 3

Telephone call can be authenticated by having a party to the conversation testify that:

Answer 3

(1) party recognized the speaker’s voice,
(2) speaker knew facts only certain persons would know,
(3) party dialed number believed to be the speaker’s and the speaker confirmed their identity upon answering, or
(4) party dialed a business and they spoke about business regularly conducted over the phone

Question 4

How is a photograph authenticated?

Answer 4

By having a witness with personal knowledge of the thing depicted testify that the photograph fairly and accurately depicts that thing

Question 5

A conviction may not be used for impeachment purposes if the witness has been pardoned, provided that either:

Answer 5

(I) the action was based on a finding of innocence; or

(II) the witness has not been subsequently convicted of another felony

Question 6

Leading questions are not permitted on direct unless:

Answer 6

(A) witness is hostile,
(B) questions are needed to develop witness’s testimony, or
(C) witness struggles with communication

Question 7

In a civil case, character evidence is generally inadmissible. It is admissible in a civil case when:

Answer 7

character is an essential element of a claim or defense (defamation, negligent hiring, negligent entrustment, child custody, fraud)

Question 8

Dying Declaration (unavailability required)

Answer 8

(i) Declarant believes his death is imminent, and
(ii) Statement pertains to cause/circumstances of death

Homicide or civil case

Question 9

Former testimony (unavailability required)

Answer 9

Admissible if:

(1) testimony was given as a witness in a previous trial, and
(2) party against whom the testimony is offered had an opportunity and similar motive to develop testimony previously

Question 10

Statement against interest (unavailability required)

Answer 10

(1) Against declarant’s proprietary/pecuniary interest at the time made, and
(2) reasonable person would not have made it unless it was true

Question 11

Statement of personal/family history (unavailability required)

Answer 11

Statements concerning brth, adoption, marriage, divorce, or other similar fact of personal family history are admissible

Question 12

Statement against party that caused declarant’s unavailability

Answer 12

Statements offered against party that wrongfully caused declarant’s unavailability are not excluded

Question 13

Present sense impression (availability immaterial)

Answer 13

(i) Description of an event/condition

(ii) made while or immediately after the declarant perceived it

Question 14

Excited utterance (availability immaterial)

Answer 14

(i) statement about startling event/condition

(ii) while declarant is under stress of excitement that it caused

Question 15

Statement of mental, emotional, or physical condition (availability immaterial)

Answer 15

statement of THEN EXISTING state of mind, or emotional, sensory, or physical condition

Question 16

Statement made for medical diagnosis/treatment (availability immaterial)

Answer 16

Describing medical history or past/present symptoms is not excluded as hearsay if made for purpose of medical diagnosis or treatment - need not necessarily be made by patient

Question 17

Recorded recollection (witness no longer able to testify)

Answer 17

Record is not excluded if:

(1) on a matter the witness once knew,
(2) was made when the matter was fresh in witness’s memory,
(3) accurately reflects witness’s knowledge, and
(4) witness states that he cannot recall even after consulting record on the stand

Question 18

Business records (extends to any organization, even non-profit)

Answer 18

(i) kept in regular course of business,
(ii) making of the record was a regular practice, and
(iii) record was made at or near the time by someone with knowledge AND not in the anticipation of litigation

Question 19

Public records (availability immaterial)

Answer 19

Statement of public office/agency that:

(1) sets out activities of office,
(2) observation of person under duty to report (not in criminal case), or
(3) factual findings of legal investigation (judgment)

To establish the contents of such judgment, generally necessary to introduce a copy of the record that has been properly certified by appropriate public custodian

Question 20

Learned Treatises

Answer 20

Statement in treatise, periodical, or pamphlet not excluded if:

(1) expert witness relied on statement during direct/cross, and
(2) publication is reliable authority

• Likely will not admit who book into evidence

Question 21

Judgment of previous conviction

Answer 21

(1) Final judgment entered after trial or guilty plea,
(2) Conviction for crime was punishable by death or imprisonment for greater than one year, and
(3) the evidence is offered to prove any fact essential to sustain judgment

Question 22

Residual Exception (catch all)

Answer 22

Statement must be: (i) supported by sufficient guarantees of trustworthiness, and (ii) more probative than any other evidence that the proponent can obtain through reasonable efforts

Question 23

Conditional Relevance

Answer 23

evidence may be admitted even though its relevance depends on the existence of the defendant’s knowledge of that fact

Question 24

If character evidence is admissible in a civil case, in what forms may it be presented?

Answer 24

Reputation, opinion, and specific instances

Question 25

If a judge determines the admissibility of evidence, can the jury later determine the WEIGHT of that evidence?

Answer 25

YES

Question 26

If the government compels a witness to provide incriminating testimony, the government must offer at least:

Answer 26

Use immunity, which prevents the use of compelled testimony against the witness

Question 27

Transactional Immunity

Answer 27

Not required; provides protection against prosecution for the entire transaction about which the witness was testifying

Question 28

Subsequent remedial measures

Answer 28

not admissible to prove negligence, culpable conduct, defective design/product, or need for warning/instruction

admissible for purposes such as impeachment, ownership/control, feasibility of precautionary measures

Question 29

Compromise offers/negotiations

Answer 29

Not admissible by EITHER PARTY to prove/disprove validity or amount of a DISPUTED claim, or for impeachment by prior inconsistent statement or contradiction

Question 30

Evidence of payment, offers, or promise to pay medical expenses

Answer 30

Not admissible to prove liability for the injury

BUT statements that accompany the payment, offer, or promise to pay are admissible

Question 31

Plea negotiation

Answer 31

Withdrawn guilty pleas, pleas of no contest, and statements made while negotiating plea bargain or plea proceeding are not admissible

UNLESS: another statement made during bargain is admitted, subsequent perjury prosecution

Question 32

Liability insurance

Answer 32

Proof of or lack of is not admissible by EITHER PARTY to prove negligence or wrongfulness

Admissible to prove agency, ownership/control, or witness’s bias/prejudice

Question 33

Prior Inconsistent Statements

Answer 33

Prior inconsistent statements made under penalty of perjury are admissible to impeach and as substantive evidence

Question 34

Prior consistent statements

Answer 34

admissible to rebut express/implied charge that declarant recently fabricated or acted with improper motive, but must be made before declarant had reason to fabricate

Question 35

Prior Identification

Answer 35

Prior ID of person after perceiving that person is admissible as substantive evidence even if witness has no memory of the ID

Question 36

Opposing Party Statement

Answer 36

Statements made by a party to the current litigation that are being offered against that party are admissible as non-hearsay

Question 37

Character for truthfulness or untruthfulness may not be proved by:

Answer 37

Extrinsic evidence of specific instances of conduct

Question 38

Spousal privilege is comprised of two distinct privileges:

Answer 38

(1) Confidential Marital Communications and

(2) Spousal Immunity

Question 39

Spousal Immunity

Answer 39

Generally, the spouse of a criminal defendant may not be called as a witness by the prosecution.

Nor may a married person be compelled to testify against his spouse in any criminal proceeding, including a grand jury proceeding, regardless of who is the defendant

*Witness spouse holds this privilege

EXCEPTION: Spouse can be compelled to testify when other spouse is charged with crime against spouse or children

Question 40

Former testimony exception does not apply to:

Answer 40

grand jury testimony, BUT grand jury testimony could be admissible as PRIOR INCONSISTENT STATEMENT

Question 41

Evidence of a person’s habit is admissible to prove:

Answer 41

person acted in accordance with the habit on a particular occasion

Habit is a particular routine reaction to a specific set of circumstances; must be semi-automatic in nature

**MUST BE SUFFICIENTLY SPECIFIC

Question 42

Evidence of Final Judgment of Conviction is not hearsay if:

Answer 42

(1) judgment was entered after a trial or guilty plea,
(2) conviction was for a crime punishable by death or imprisonment for more than one year, AND
(3) evidence is offered to prove any fact essential to sustain the judgment

Question 43

A voice can be authenticated by:

Answer 43

Any person who has heard the voice at any time

Question 44

A statement made by a party in a pleading filed in another action:

Answer 44

Can be admissible against the party in the current action as an opposing party’s statement

Question 45

Unavailable declarant

Answer 45

An unavailable declarant is a person who:

(i) is exempt on the grounds of privilege,
(ii) refuses to testify despite a court order to do so,
(iii) lacks memory of the subject matter of the statement,
(iv) is unable to testify due to death, infirmity, or physical or mental disability, or
(v) is absent and cannot be subpoenaed or otherwise made to be present

Question 46

Five hearsay exceptions that require declarant’s unavailability:

Answer 46

(1) Former testimony, (2) dying declaration, (3) statement against interest, (4) statement of personal or family history, (5) statement offered against a party that wrongfully caused declarant’s unavailability

Question 47

Confrontation Clause and hearsay

Answer 47

In a criminal trial, the Confrontation Clause requires that, in order to admit an out-of-court testimonial statement of a declarant against a defendant:

(i) declarant must be unavailable; and
(ii) defendant must have had a prior opportunity to cross-examine the declarant

Question 48

In determining a preliminary question:

Answer 48

Although the court is generally not bound by the rules of evidence, the court CANNOT consider privileged evidence

Question 49

Adjudicative Facts

Answer 49

For a court to take judicial notice of an adjudicative fact, the fact must not be subject to reasonable dispute

*Consider source whose accuracy cannot reasonably be questioned and from which the fact can be accurately and readily determined

Question 50

Judicial Notice in Civil Case

Answer 50

In a civil case, the court MUST instruct the jury that a fact that has been judicially noticed must be accepted as conclusive

Question 51

Leading questions are permitted:

Answer 51

When cross-examining. However, use of leading my be restricted when cross is cross in form only, rather than in fact such as when a party is cross examined by their own lawyer!