Evidence

Question 1

Relevance

Answer 1

Evidence is relevant if it has any tendency to make the existence of a fact of consequence more probable than it would be w/o the evidence.

ALL relevant evidence is admissible unless:

Some specific exclusionary rule applies

OR

Danger of unfair prejudice > Probative Value

Question 2

Policy Based Exclusions

(Liability Insurance)

Answer 2

Inadmissible to show fault or ability to pay.

Admissible to prove ownership or control if controverted by D.

Question 3

Policy Based Exclusions

(Subsequent Remedial Measures)

Answer 3

Inadmissible to prove fault

Admissible to prove ownership, control, or feasibility of safer conditions if controverted by D.

Question 4

Policy Based Exclusions

(Settlement Offers)

Answer 4

Inadmissible to prove liability or weakness of case.

Admissible to impeach W by showing bias

NOTE: Statements of fact made during settlement negotiations are generally inadmissible for ALL purposes, including impeachment.

Question 5

Policy Based Exclusions

(Offers to plead guilty / withdrawn pleas)

Answer 5

Inadmissible against D in pending criminal trial or civil trial based on same facts.

Question 6

Policy Based Exclusions

(Offers to Pay Medical Expenses)

Answer 6

Inadmissible to prove liability.

NOTE: NC expands this to include “other” expenses as well.

Question 7

Policy Based Exclusions

(Seat Belt Use)

Answer 7

Generally inadmissible in civil and criminal cases.

Question 8

Character Evidence

(Civil Cases)

Answer 8

Civil Cases: Inadmissible by either party to prove conformity therewith.

EXCEPT: Where character in issue (e.g. defamation)

Question 9

Character Evidence

(Criminal Trials)

Answer 9

Inadmissible by prosecution to prove D acted in conformity therewith.

D can admit opinion or reputation evidence to prove conformity with good character, but “opens the door” for rebutal with specific acts by prosecution.

If D is asserting self defense, may introduce opinion or reputation evidence of the V’s violent character. This opens the door for prosecution to rebut with opinion or reputation evidence of V’s good character. NC does NOT allow rebuttal with evidence of D’s violent character.

Question 10

Rape Shield Laws

Answer 10

Four NC exceptions to inadmissibility of V’s prior sexual conduct. Admissible if sexual conduct:

1. was between V and D (prior consent relevant to subsequent consent);
2. is evidence of specific instances offered to show the act(s) charged were not committed by D
3. is evidence of consent
4. offered as basis of expert psych opinion that V fantasized or invented the act(s) charged

Sexual behavior otherwise admissible under this rule may not be proved by reputation or opinion!

Question 11

Character Evidence Admissible for Non-Character Purposes

Answer 11

D’s other crimes or bad acts admissible for MIMIC:

• Motive
• Intent
• Mistake or Accident (absence of)
• Identity
• Common Scheme or Plan

Question 12

Authentication of Documents

Answer 12

Documents can be authenticated by:

1. Personal Knowledge
2. Admission in Pleadings
3. Handwriting (expert, non-expert, jury)
4. Ancient Documents Rule
5. Solicited Reply

Question 13

Self Authenticating Documents

Answer 13

Official Publications

1. Certified copies of public/private records on file with a public office.
2. Newspapers/Periodicals
3. Trade inscriptions / Labels
4. Acknowledged Documents
5. Commercial Paper

NC Distinction: NOT Business records

Question 14

Authentication of Photographs

Answer 14

Foundation laid by testimony based on personal knowledge that the photo is a “fair and accurate representation.”

Question 15

Best Evidence Rule

Answer 15

To prove the contents of a writing, the original document must be produced if available. Applies in 2 situations:

1. Writing is a legally operative document; or
2. W is testifying to facts learned from reading the writing.

Question 16

Spousal Privilege

Answer 16

Spousal Testimony: Applies to both criminal and civil proceedings, protects any confidential communications made during the marriage. Need not be married at time of trial. May only be waived by both parties together.

Spousal Communications: Applies to criminal proceedings only. Protects the right of a person to testify against their current spouse (must be married at time of trial).

Exception: These will not cover comms regarding joint criminal activity or cases of spousal/child abuse.

Question 17

Cross Examination

Answer 17

NC Distinction! NC Does NOT limit scope of cross-examination to that of direct. Can cross on any matter relevant to the dispute.

Question 18

Expert Testimony

Answer 18

NC does not adhere to the Daubert Test. Instead:

1. the method of proof msut be sufficiently reliable as an area for expert testimony
2. the witness must be qualified as an expert in that area
3. the expert testimony must be relevant

NC Distinctions: Adverse party may request disclosure of underlying facts and data prior to expert giving opinion.

Also, NC allows opinions as to mental state/condition in criminal cases.

Question 19

Hearsay

Answer 19

A statement, other than one made by the declarant while testifying at trial or hearing, offered to prove the truth of the matter asserted.

Question 20

Hearsay Exceptions

Answer 20

Dec. is a Party:

• Party Admission

Dec. is Unavailable:

• Former Testimony
• Stmts. against interest
• Dying Declarations

Dec. is Anyone

• Excited Utterance
• Present Sense Impression
• Statement of Then-Existing Mental/Physical/Emotional Condition
• Statement for purpose of Med Dx or Treatment
• Business and Public Records