Evidence

Question 1

logical relevance

Answer 1

evidence is relevant if it has a tendency to make a fact more or less probable than it would be without the evidence and the fact is of consequence in determining the action

Question 2

legal relevance

Answer 2

relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice

Question 3

character evidence

Answer 3

character evidence, which is argument that person acted in conformity with a particular character trait, is generally not admissible
-can’t be used to prove propensity, but can be used when character is at issue (child custody re parent violence)

civil case: propensity argument can almost never be made (unless character at issue), except in civil case involving child molestation/sexual assault, P can introduce evidence of D’s prior acts of that sort

criminal case:
-the prosecution is generally not permitted to introduce bad character evidence about a defendant

• D can introduce evidence of his own good character (reputation or opinion) (pertinent to the crime charged)
• -> once D opens the door, the prosecution may 1. call a witness to rebut D’s claim of good character (reputation or opinion), or 2. cross-examine D’s character witness (reputation, opinion, or specific bad acts) (but no extrinsic evidence)
• D can introduce evidence of reputation or opinion evidence of the victim’s character, when it’s relevant to the defense
• -> once D opens the door, the prosecution may 1. introduce rebuttal evidence of the victim’s character (reputation or opinion), or 2. attack D’s character for the same trait

specific bad acts:

• except for the limited cross-examination discussed above, prosecution cannot introduce evidence of specific bad acts to prove character
• evidence of prior bad acts may be admissible for another purpose
• -> MIMIC: motive, intent, absence of mistake, identity, common plan

impeachment:
-evidence may be inadmissible for use as character evidence but admissible for impeachment

*Although the prosecution generally may offer rebuttal evidence of the victim’s good character only after the defendant has introduced evidence of the victim’s bad character, the prosecution in a homicide case may offer evidence of a victim’s peacefulness to rebut evidence that the victim was the first aggressor.

Question 4

witness competence

Answer 4

a witness must have personal knowledge of a matter in order to testify about it

whether child has personal knowledge and is mature enough to understand obligation to tell truth and willing to promise to do so

Question 5

lay opinion

Answer 5

a lay opinion is admissible if it is based on the perception of the witness and it is helpful to understand the testimony or determine a fact in issue
-can’t be based on scientific, technical, or specialized knowledge

Question 6

expert testimony

Answer 6

an expert witness may offer opinions or conclusions if:

• the subject matter is scientific, technical, or other specialized information, and
• it will help the trier of fact understand the evidence or determine a fact in issue
• can express opinion on ultimate issue, but not about witness credibility/mental state of element of crime/defense
• can base opinion on personal observation, evidence presented at trial, or information reasonably relied upon by experts in that particular field

Daubert test: courts require that the expert 1. be qualified by knowledge, skill, experience, training, or education, 2. base his testimony on sufficient facts or data, 3. base his testimony on reliable principles and methods, and 4. apply the principles and methods reliably to the facts of the case

Question 7

present recollection refreshed

Answer 7

when a witness is unable to testify because she cannot remember, you may show the witness any document that might refresh her memory

• doesn’t read from it, doesn’t become evidence
• opposing party can inspect & show it to jury

Question 8

past recollection recorded

Answer 8

if a witness still cannot remember after being refreshed, the witness may be able to read the prior statement out loud

allows a witness to read a record into evidence when (i) the record was on a matter the witness once knew about, (ii) the record was made when the matter was fresh in the witness’s memory, (iii) the record accurately reflects the witness’s knowledge at that time, and (iv) the witness cannot recall the event well enough to testify to fully and accurately, even after consulting the record on the stand.

A written document admitted as a recorded recollection may be read to the jury, but it may not be received as an exhibit unless it is offered as such by the adverse party.

Question 9

impeachment

Answer 9

impeachment attacks the credibility of a testifying witness

B CISTS (bias, conviction, prior inconsistent statement, specific bad acts, truthfulness, sensory competence)

• bias: showing witness has reason to lie (relationship with party, being paid to testify, agreed to testify in exchange for reduced sentence, financial interest in case)
• sensory competence: didn’t see/hear as well as thinks
• a witness may testify about the opinion or reputation for another witness’s truthfulness
• the fact that the witness has a reputation for being violent is not probative of truthfulness, and is therefore inadmissible
• prior inconsistent statement: can use extrinsic evidence but only if witness given opportunity to explain/deny
• also impeachment by contradiction

-can inquire into specific bad acts on cross-examination (no extrinsic evidence), but must take answer & have good faith basis for asking
*The court may prohibit the use of specific instances of conduct if the probative value of such evidence is substantially outweighed by prejudice or to protect the witness from harassment or undue embarrassment.

• evidence of a conviction for felony (punishable by death or more than 1 year in prison) or a crime of dishonesty is admissible to impeach (but if conviction (or release from confinement) is more than 10 years old, evidence only admissible if probative value substantially outweighs prejudicial effect)
• criminal D: evidence of prior felony conviction admissible only if its probative value outweighs the prejudicial effect (reverse 403)
• conviction can’t be used for impeachment if witness has been pardoned, provided that either (i) the action was based on a finding of innocence; or (ii) the witness has not been subsequently convicted of another felony

*evidence of a juvenile conviction may be used to impeach a witness other than the defendant only if 1. it is offered in a criminal case, 2. an adult’s conviction for that same offense would be admissible to attack the adult’s credibility, and 3. admitting the evidence is necessary to fairly determine guilt or innocence

Question 10

rehabilitation of a witness

Answer 10

once a witness has been impeached, the other side can introduce rehabilitate by:

1. give the witness a chance to clarify and explain
2. prior consistent statement (that witness made before alleged motive arose), or
3. if witness attacked for bad character for truthfulness, can introduce evidence bolstering witness’s character for truthfulness (reputation or opinion)

Question 11

tangible evidence

Answer 11

authentication: for documents & physical items, need to show evidence sufficient to support a finding it’s genuine
- real evidence: personal knowledge, distinctive features/markings, or chain of custody
- documentary evidence: stipulation of parties, eyewitness testimony, ancient documents (at least 20 years old, not suspicious condition, & found in place where authentic documents would be found), reply letter, handwriting verification (expert/jury compare to sample or lay witness with personal knowledge not in anticipation of litigation)
- ->self-authenticating documents: public documents w gov seal, certified copies of public records, official publications, trade inscriptions, notarized docs, commercial paper (don’t need to give advance notice to adverse party of plan to introduce self-authenticating docs into evidence)
- oral statements (heard not seen):
- ->voice identification: by anyone who heard voice
- ->telephone conversations: caller recognized speaker’s voice, speaker knew specific facts, speaker identified themselves, business regularly conducted over phone

*to authenticate x-rays, need to show accurate process was used, machine used was working properly, and the operator of the machine was qualified to operate it

best evidence rule: requires that the original document or a reliable duplicate be produced in order to prove the contents of a writing, recording, or photograph. This rule applies only when the contents of the document are at issue, not for collateral matter
-exceptions: original lost/destroyed, public records certified copy, summary of voluminous writing

*A duplicate is admissible to the same extent as an original unless there is a genuine question as to the authenticity of the original or the circumstances make it unfair to admit the duplicate. In addition, the original is not required, and other evidence of its contents is admissible, if all of the originals are lost or destroyed through no fault of the proponent. In such cases, once the party has accounted for the absence of an original, the party may prove the contents of the writing, recording, or photograph by other means.

Question 12

privileges

Answer 12

spousal immunity:

• if husband and wife are currently married and one spouse is called to testify in criminal case, the testifying spouse can assert the privilege and refuse to testify against her spouse
• can be waived, but if waived, can’t invoke later

confidential marital communications:

• if husband and wife had a confidential communication while married, those communications remain confidential, even after divorce
• either spouse can prevent the other from testifying at trial

*neither spousal privileges apply when one spouse is suing the other or one spouse is charged with a crime against the other spouse/children

attorney-client privilege (& work-product doctrine)

psychotherapist-patient privilege: communications made for purpose of treatment, but doesn’t apply if result of court-ordered exam or taken as part of commitment proceeding

*Although there is no common-law privilege covering statements made by a patient to a physician, most states’ statutes protect such communications when made for the purpose of obtaining medical treatment. However, in many states, a patient is deemed to have waived the privilege by placing her condition at issue in a personal injury lawsuit.
–> The patient holds the privilege which means only the patient may waive it.

Question 13

other policy exclusions

Answer 13

LOSSR

• subsequent remedial measures: evidence of repairs/changes made after accident not admissible to prove guilt
• settlement offers/negotiations: not admissible to impeach (unless D waives), but admissible to prove bias (admissible if offer to pay to settle before any claim was filed - Here, the man texted his offer of $10,000 one week after the alleged incident. The woman filed her claim nearly four months later. As a result, the man offered the woman $10,000 before there was any disputed claim between them)
• offers to pay medical expenses: inadmissible to prove liability, but statements accompanying offer admissible
• liability insurance: evidence that person was/not insured is not admissible to prove negligence/wrongdoing (but can be to show control of asset)
• rape shield laws: generally prohibits Ds from introducing V’s past sexual conduct/alleged predisposition
• ->criminal case: V’s past sexual conduct admissible only when necessary to explain physical evidence, offered to show consent, or would be unfair to D
• ->civil case: evidence of V’s past sexual conduct or predisposition only admissible if probative value substantially outweighs risk of harm

-D’s past sexual misconduct admissible for any relevant purpose, including propensity

Question 14

hearsay

Answer 14

hearsay is an out of court statement (spoken or written) being used for the truth of the matter asserted and is generally inadmissible

assertive conduct: substitute for a statement

non-hearsay use: not used for the truth of the matter asserted

double hearsay: a statement that contains hearsay within hearsay may be admissible as long as each part of the combined statement conforms to a hearsay exception

*evidence generated by a machine or an animal is not hearsay, and is admissible without qualifying under a hearsay exception

Question 15

non-hearsay exemptions

Answer 15

VESPA

• verbal acts/legally operative facts (e.g. the statement is the extortion)
• effect on listener (e.g. prove notice)
• state of mind (statement used to show person not of sound mind)

prior statements:

• prior inconsistent statement (only admissible as substantive evidence if under oath at trial)
• prior consistent statement: can be used to rehabilitate & as substantive evidence
• prior statement of identification: line-up at police station, requires declarant testify as witness and be subject to cross-examination (doesn’t apply if witness died or unavailable at trial)

admissions of a party opponent:

• party opponent: anything the other party said is admissible for the truth of the matter asserted
• adoptive admission: adopts a statement by agreeing or failing to deny it (reasonable person similarly situated would’ve denied)
• vicarious statements: someone else’s statement is imputed due to their relationship
• co-conspirators statements made during and in furtherance of conspiracy admissible against other co-conspirators

Question 16

hearsay exceptions: declarant unavailable as a witness

Answer 16

unavailability: dead, missing, refuses to testify, lack of memory, or privilege

C DIFF (Caused unavailability, Dying declarations, statement against Interest, Family history, Former testimony)

-former testimony: under oath at prior hearing admissible in subsequent trial if person had opportunity and similar motive to develop testimony at prior hearing (doesn’t apply to grand jury)

• dying declaration: declarant believes death is imminent and the statement concerns the circumstances of her death (admissible only in homicide prosecutions and civil actions, not ATTEMPTED murder)
• statement against interest: at time made, was against declarant’s pecuniary, proprietary, civil, or penal interest, such that reasonable person wouldn’t have made statement unless true
• ->statements that would subject a declarant to criminal liability aren’t admissible unless corroborating circumstances clearly indicate trustworthiness of statement
• statement of personal/family history
• statement against party that caused declarant’s unavailability

Question 17

hearsay exceptions: declarant availability immaterial

Answer 17

CIMPLE PBJ (statement of mental, emotional, or physical Condition, statement of Intent, statement for purpose of Medical treatment, Present sense impression, Learned treatises, Excited utterance, Public record, business records, judgments of prior convictions)

• present sense impression: statement that describes/explains event made while declarant was perceiving the event or immediately thereafter
• excited utterance: a statement made about a startling event or condition while the declarant is under the stress of excitement that it caused is not excluded as hearsay
• statement of mental, emotional, or physical condition: admissible to prove existence of that condition
• statement of intent can be used to prove action in conformity with that intent
• statement made for purpose of medical diagnosis/treatment: describe declarant’s past/present medical symptoms, or cause of injury if pertinent to treatment/diagnosis
• past recollection recorded
• business records: record of act/event made in course of regularly conduct business activity, admissible if 1. made at/near time of event 2. by person with knowledge of event and under duty to report it, and 3. as part of regular practice of business to make that kind of record

-public records: a record or statement of a public
office/agency that sets out 1. activities, 2. observations, and 3. factual findings
–> police reports against criminal Ds: can only introduce activities, not what was observed or concluded
–> To qualify, the record needs to be admitted against, not by, the government in a criminal case (can’t be given by prosecution). Additionally, this exception specifically does not apply to observations of a law enforcement officer offered in a criminal case.

• learned treatises (scientific, historical, or medical): may be used to impeach and as substantive evidence (if reliable authority, expert relied, or used to cross-examine expert) (the statement can be read into evidence but the treatise itself may not be admitted into evidence)
• judgment of previous criminal conviction: admissible to prove convicted of crime (impeachment) but need hearsay exception to prove actually committed crime

*However, there is no exception for judgments of acquittal because they do not establish innocence—they merely establish that the prosecution failed to meet its burden of proof.

Question 18

form of questions

Answer 18

CRANIAL (compound, repetitive, argumentative, narrative, inappropriate conclusions, assumes facts not in evidence, leading)

leading: a leading question is a question that suggests the answer within the question
- direct (leading not allowed), vs cross-examination (leading allowed
* exceptions: 1. to elicit preliminary background info not in dispute, 2. witness has trouble communicating due to age or infirmity, or 3. when you call a hostile witness/adverse party

• compound question: a question that asks for several answers
• assumes facts not in evidence: a question that assumes facts as true that have not been established is not permitted
• argumentative questions: just intended to bother/harass witness
• questions calling for inappropriate conclusions: calls for conclusion witness isn’t qualified to make
• repetitive questions: asked and answered
• calls for narrative: a question that calls for a narrative is not permitted

Question 19

challenge to evidence ruling

Answer 19

• evidentiary ruling can be reversed on appeal only if 1. a substantial right of a party has been affected (not harmless error), and 2. the judge was notified of the mistake at trial and given a chance to correct it (notify court by objection or offer of proof)
• plain error rule: error that was obvious on its face, appellate court will sometimes reverse case to prevent injustice even if no objection or offer of proof was made at trial
• objection: if court admitted evidence that should’ve been excluded, object and explain why should’ve been excluded
• offer of proof: if court refuses to admit evidence, make offer of proof on the record to explain what evidence is and why should’ve been admitted

(Once the court makes a definitive ruling on the admissibility of evidence, a party need not renew an objection to the admission of the evidence, even if the ruling was made before the trial began)

Question 20

limiting instruction (rule 105)

Answer 20

evidence may be admissible for one purpose but not for another, upon request of objecting party, court will give a limiting instruction

Question 21

rule of completeness

Answer 21

if a party introduces part of a written statement, the opposing party may immediately introduce other portions of that statement that are necessary to put the admitted portion into perspective (even if otherwise inadmissible)

• does not require admission of irrelevant portions of a statement
• can be a separate related writing

Question 22

judicial notice

Answer 22

court’s acceptance of a fact as true without requiring formal proof - generally known within territorial jurisdiction of court or accurately and readily determined by sources whose accuracy cannot be reasonably questioned

• civil case: court will instruct jury that it must accept the fact as proven
• criminal case: court will instruct jury that it may find that fact

*the court must take judicial notice of an adjudicative fact if a party so requests and provides the court with the necessary information to do so

Question 23

burdens and presumptions

Answer 23

burden of persuasion: convince jury to decide in favor

• civil: preponderance of evidence
• criminal: reasonable doubt standard

rebuttable presumption: shifts burden of production (to get issue to jury) on particular issue, but not persuasion

• if can show you mailed letter, presumption that recipient received, burden of production on other side to prove they didn’t
• if party destroys evidence, presumption it would’ve been adverse

Question 24

habit evidence

Answer 24

allowed to prove action in conformity with the habit

-something that’s routine, regular, or automatic

Question 25

judge/juror as witness

Answer 25

• judge barred from being witness in trial over which he’s sitting
• juror can’t testify as witness in trial in which he sits
• can testify after trial about whether 1. extraneous, prejudicial information was improperly brought to the jury’s attention; 2. an outside influence; 3. clerical/technical error made in verdict form; or 4. juror made clear statement that he relied on racial stereotypes/animus in convicting D

Question 26

confrontation clause

Answer 26

criminal Ds have right to be confronted with witness against them

out of court statements that are testimonial give rise to confrontation clause problems
-testimonial: made with primary purpose of ascertaining past criminal conduct

testimonial statements cannot be admitted against criminal D if declarant is unavailable unless D had prior opportunity to cross examine declarant

In other words, In order to admit a testimonial hearsay statement against a criminal defendant, (i) the declarant must be unavailable to testify, and (ii) the defendant must have had a prior opportunity to cross-examine the declarant.

However, a statement that is not testimonial does not violate the Confrontation Clause. In determining whether a statement is testimonial, an objective analysis of the circumstances is key, and courts look to the primary purpose of the statement. Statements made under circumstances that would cause an objective witness to reasonably conclude that the statement would be available for use at a later trial (e.g., statements made during a custodial examination to an investigator, or in an affidavit) are testimonial. A statement made to police with the primary purpose of enabling police to help meet an ongoing emergency (e.g., during a 911 call) is not testimonial.

*A statement made during a police interrogation that has the primary purpose of ascertaining criminal conduct is testimonial under the Confrontation Clause.

*the witness’s description was made with the primary purpose of helping police apprehend an armed criminal in an ongoing emergency. Therefore, the witness’s statement was not testimonial and admitting it does not violate the Confrontation Clause.

*Likewise, when an expert who created a testimonial report is unavailable, the Confrontation Clause prohibits the introduction of the report via a “surrogate” expert, because the defendant is entitled to cross-examine the declarant regarding the declarant’s knowledge and methods. A surrogate may be used when the prosecution can establish that the surrogate has some personal knowledge that the declarant’s statements are accurate.

Question 27

curative admission

Answer 27

when a court erroneously admits evidence, the court may permit the introduction of additional inadmissible evidence to rebut the previously admitted evidence

such evidence can be admitted at the court’s discretion when necessary to remove unfair prejudice.

Question 28

grant of immunity

Answer 28

testimony given under a grant of immunity is considered coerced and involuntary. A defendant’s involuntary statement, such as a confession produced by coercion, cannot be used either substantively or for impeachment purposes

Question 29

excluding witnesses from courtroom

Answer 29

At a party’s request, the court must order the exclusion of a witness from the courtroom so that the party cannot hear the testimony of the other witnesses, unless an exception applies.

There is an exception for an officer or employee of a party who is not a natural person, and this exception has frequently been applied to the police officer in charge of investigating a criminal case.

Question 30

transactional immunity & derivative-use immunity

Answer 30

transactional immunity: fully protects a witness from future prosecution for crimes related to her testimony (total immunity)

derivative-use immunity: prohibits only the use of the compelled testimony or any evidence against the witness.