Evidence

Question 1

Silence may be an adoptive admission if:

Answer 1

1. party heard and understood
2. party was physically and mentally capable of denying
3. reasonable person would have denied the accusation

Question 2

When is a prior consistent statement admissible?

Answer 2

made before an alleged bribe or inconsistent statement and can be used as substantive proof to bolster credibility

Question 3

What are the hearsay exceptions that require unavailablity?

Answer 3

• former testimony
• dying declaration
• statement against interest
• personal/family history
• statement offered against person procuring declarant’s unavailability

Question 4

What is needed for a recorded recollection?

Answer 4

• witness once had personal knowledge
• document made by W under W’s direction or adopted by W
• Written or adopted when memory is fresh
• Accurate when made
• W now has insufficient recollection

Question 5

What is needed for a business record?

Answer 5

• Records of events, conditions, opinions or diagnoses
• Kept in regular course of business (not in preparation for litigation)
• Made at or near time of matter described
• By person with personal knowledge or w/in personal knowledge of one w/ business duty to transmit info to the entrant
• Regular practice to make such recording
• NOTE: police records may fall under this category in civil cases but not criminal

Question 6

When are judgements of prior convictions admissible?

Answer 6

• Felonies: admissible in criminal and civil to prove fact essential to judgment but not if plea of nolo contendre
• No misdemeanors
• Substantive evidence only re: the accused
• Impeachment for anyone

Question 7

Can you use extrinsic evidence to admit a prior inconsistent statement?

Answer 7

Yes! But W must be given opportunity to explain or deny inconsistency

Question 8

When does the intentional destruction of evidence raise a presumption or inference that such evidence would have been unfavorable to the party that destroyed the evidence?

Answer 8

To be entitled to such an inference, the alleged victim must establish that:

(i) The destruction was intentional;
(ii) The destroyed evidence was relevant to the issue about which the party seeks such inference; and
(iii) The alleged victim acted with due diligence as to the destroyed evidence.

Note: This presumption is rebuttable.

Question 9

When is a witness unavailable?

Answer 9

An unavailable declarant is a person who:

(1) Is exempt on the grounds of privilege;
(2) Refuses to testify despite a court order to do so;
(3) Lacks memory of the subject matter of the statement;
(4) Is unable to testify due to death, infirmity, or physical or mental disability; or
(5) Is absent and cannot be subpoenaed or otherwise made to be present.

Question 10

What are 5 non-hearsay uses of testimony (not offered for truth of matter asserted)?

Answer 10

(1) To prove that the statement was made (i.e., as legally operative fact);
(2) To show the effect on the recipient;
(3) As circumstantial evidence of the declarant’s state of mind;
(4) As circumstantial evidence of identity; or
(5) Solely to impeach or rehabilitate.

Question 11

When is evidence relevant?

Answer 11

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 12

FRE 403

Answer 12

Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence

Question 13

What is the specific bad acts rule?

Answer 13

Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character

Question 14

When is a lay opinion admissible?

Answer 14

A lay opinion is admissible if it is rationally based on the witness’s perception, helpful to clearly understanding the witness’s testimony, or to determining a fact in issue. (and not based on scientific, technical, or other specialized knowledge)

Question 15

What is the subject matter of expert testimony?

Answer 15

The subject matter of expert testimony must be scientific, technical, or some other specialized knowledge that will help a trier of fact understand the evidence or determine a fact at issue that focuses on the relevance of testimony

Question 16

What is the 10 year rule for admitting evidence of felonies?

Answer 16

If more than 10 years has passed since the conviction or release (whichever is later), the evidence of the conviction will only be admissible if the probative value SUBSTANTIALLY OUTWEIGHS the prejudicial effect and the proponent gives reasonable notice of the intent to use it