Evidence

Question 1

Relevance

Answer 1

Any evidence tending to make any fact of consequence (materiality) more or less probable than it would be without the evidence (probativeness)

Question 2

403 Discretion

Answer 2

The court has the discretion to exclude relevant evidence if the probative value of the evidence is substantially outweighed by:

1. Risk of unfair prejudice (emotional decision making)
2. Confusion of the issues
3. Misleading the jury
4. Undue delay
5. Waste of time
6. Unduly cumulative

Question 3

Similar occurrences that are relevant and admissible

Answer 3

• Plaintiff’s accident history to show cause of damages, evidence of dangerous conditions, prior notice to defendant, or causation
• Intent in issue
• Comparable sale on issues of value
• Habit (not character) (habit = frequent + particular)
• Industrial custom as standard of care

Question 4

Public policy Exclusions - Liability Insurance

Answer 4

Even though it’s relevant, it’s excludable

Inadmissible to prove: Fault or absence of fault

Policy reason: To avoid risk jury will decide on availability of insurance instead of evidence/merits

Admissible for:

1. Proof of ownership or control if controverted
2. Impeachment - usually for bias

Question 5

Public policy exclusions - Subsequent Remedial Measures

Answer 5

Even though it’s relevant, it’s excludable

Includes: Post accident repairs, design changes, policy changes

Inadmissible for: Proving negligence, culpable conduct, product defect, or need for warning

Policy: To encourage repairs

Admissible for:

1. Proof of ownership of control
2. Feasibility of repair
   - if controverted -

Question 6

Public Policy Exclusions - Settlements in Cases

Answer 6

Even though it’s relevant, it’s excludable

Inadmissible to

• Prove liablity or weakness of a party’s case
• Impeach through prior inconsistent statements or contradiction
• Statements of fact made in the course of settlement discussions are also inadmissible for these purposes

Policy: To encourage settlements

Admissible to show: Bias

Exclusionary rule only applies if there is a claim that DISPUTED as to either:

1. Validity
2. Amount of damages

Question 7

Public policy exclusions: Plea discussions in criminal cases

Answer 7

Inadmissible plea discussions:

1. Offers to plead guilty - can’t be used against Defendant in pending criminal case or in subsequent civil litigation based on the same facts
2. Withdrawn guilty plea - Can’t be used against the defendant in the pending criminal case or in subsequent civil litigation
3. Plea of nolo contendre - Can’t be used against the defendant in subsequent civil litigation based on the same facts
4. Statement of fact made during any of the above plea discussions

Admissible: A plea of guilty (not withdrawn) in subsequent litigation based on the same facts as a party admission

Question 8

Public Policy Exclusions - Offer to pay medical or hospital expenses

Answer 8

Even though it’s relevant, it’s excludable

Inadmissible to prove: Liability

Policy: To encourage charity

Not admissible ever - no need to show a disputed claim

BUT factual basis within offer to pay is admissible

Question 9

Character evidence

Answer 9

Refers to a persons’ general propensity or disposition

Question 10

Character evidence in criminal cases: Defendant’s character

Answer 10

Evidence of the Defendant’s character to prove conduct in conformity is not admissible during the prosecution’s case in chief

Exception: Defendant may introduce evidence of RELEVANT character trait through REPUTATION OR OPINION TESTIMONY to prove conduct in conformity with. This opens the door to rebuttal by the prosecution

• The prosecution may rebut by:
  1. Crossing defendant’s character witness about specific acts
  2. Calling its own reputation or opinion witnesses to contradict t the defendant’s witnesses

Question 11

Character evidence in criminal cases: Victim’s character in self-defense cases

Answer 11

A criminal defendant may introduce evidence of victim’s violent character to prove victim’s conduct in conformity - i.e. as circumstantial evidence that victim was the first aggressor
- The character witness must testify to victim’s reputation for violence and/or may given opinion

Once the defendant has introduced this, the prosecution may rebut with opinion or reputation testimony regarding

1. The Victim’s good character for peacefulness
2. Defendant’s bad character for violence

If the defendant, at the time of the alleged self-defense, was aware of the victim’s violent reputation or prior specific acts of violence, such awareness may be proven to show the defendant’s state of mind

Question 12

Character evidence in a criminal case: Defendant’s other crimes or acts for non-character purposes

Answer 12

Other crimes or specific bad acts of defendant are admissible to show something specific about the crime charged bearing on guilty - MIMIC
M - Motive 
I - Intent 
M - Mistake (lack of) 
I - Identity 
C- Common plan/scheme

Must show by conviction or by other evidence that prove the crime or act occurred
- Conditional relevancy standard - Prosecution need only show sufficient evidence from which a reasonable juror could conclude that defendant committed the other crime/act

Question 13

Character evidence in civil cases

Answer 13

Inadmissible to show conformity

Admissible where a person’s character is an essential element of a claim or defense

• Negligent hiring or entrustment
• Defamation
• Child custody

Question 14

Character evidence in criminal or civil cases - Sexual misconduct to show propensity

Answer 14

In a case alleging sexual assault or child molestation, prior specific sexual misconduct of the defendant is admissible as part of the case-in-chief of the prosection, or the plaintiff for any relevant purpose, including defendant’s propensity for sex crimes

Question 15

Authentication of writings

Answer 15

A showing must be made that the writing is authentic - that it is what it purports to be

Standard: Court must determine there is sufficient evidence from which a reasonable juror could conclude the document is genuine

Methods of authentication:
1. Witness’s personal knowledge
2. Proof of handwriting proved by:
- Lay opinion - on the basis of familiarity with the handwriting prior to trial
- Expert comparison
- Jury comparison
3. Ancient document rule - may be inferred if:
- At least 20 years old
- Facially free of suspicion
- Found in place of natural custody
4. Solicited reply doctrine: Evidence that it was received in
response to a prior communication to the alleged
author.

Question 16

Authentication of photographs

Answer 16

Witness may testify on the basis of personal knowledge that the photograph is a fair and accurate representation of the people or objects portrayed

Question 17

Self-authenticating documents

Answer 17

Presumed authentic - no need for foundational testimony:

1. Official publications
2. Certified copies of public or private records on file in public office
3. Newspapers or periodicals
4. Trade inscriptions and labels
5. Acknowledged documents
6. Commercial paper
7. Certified business records

Question 18

Best evidence rule - Original writings rule - Definition and application

Answer 18

In order to prove the contents of a writing, recording, or photo, the original must be produced –> must either produce the original or provide an acceptable excuse for its absence. If the excuse is acceptable the party must then use secondary evidence - oral testimony or copy

Best evidence rule applies when:

1. Writing is a legally operative document
2. Witness is testifying to facts that she learned solely from reading about them in a writing

Best evidence rule DOES NOT apply when: A witness with personal knowledge testifies as to a fact that exists independently of a writing that records the fact

An original writing can be:

• The writing itself, any counterpart intended to have the same effect, any negative or film or print from the negative, any computer printout
• A duplicate produced by any mechanical means that accurately produced the original

Question 19

Best evidence rule - Excuses for non-production of original

Answer 19

Lost or cannot be found with due diligence

Destroyed without bad faith

Cannot be obtained with legal process

The court must be persuaded by a preponderance of the evidence that excuse has been established and that secondary evidence is admissible

Situations that function as exceptions to the best evidence rule (escapes):

• Voluminous records
• Certified copies of public records
• Collateral documents

Question 20

Witnesses - Competency

Answer 20

1. Personal knowledge

2. Oath or affirmation

Question 21

Witnesses - Dead man’s statute

Answer 21

In general: Witness is not ordinarily incompetent merely because she has an interest or direct legal stake in the outcome of the litigation

Exception - Dead Man’s Act: In a civil action, an interested party is incompetent to testify in support of her own interest against the estate of a decedent concerning communications or transactions between the interested party and the decedent

Question 22

Witnesses - Form of questioning

Answer 22

Leading questions: Allowed on cross but not on direct unless:

1. Preliminary or introductory
2. Youthful/forgetful witness,
3. Hostile witness
4. Adverse party

Question 23

Witnesses - Proper subject matter on cross

Answer 23

Party has a right to cross any opposing witness who testifies at trial

Proper subject matter of cross:

1. Matters within the scope of direct, AND
2. Matters that test the witness’s credibility

Question 24

Refreshing recollection

Answer 24

General rule: Witness may not read from prepared memorandum;
must testify on basis of current recollection.

Exception: If a witness’s memory fails him, he may be shown a memorandum or other tangible item to job his memory

If a witness’s recollection is refreshed during testimony, the adversary has a right to:

1. Inspect the memory refresher
2. Use it on cross
3. Introduce it into evidence

If refreshing happens before the witness testifies, the adversary is not entitled to these options but the judge has discretion to allow it

Question 25

Recorded recollection

Answer 25

Hearsay exception Foundation for admissibility: 1. Showing document to witness fails to job memory 2. Witness had personal knowledge at former time 3. Document was either made by the witness or adopted by the witness 4. Making or adoption occcured when event was fresh in witness's memory 5. Witness can vouch for the accuracy of document when made or adopted The party can then read the memo to the jury rather than introduce it as an exhibit If a witness's recollection is refreshed during testimony through recorded recollection, the adversary has a right to: 1. Inspect the memory refresher 2. Use it on cross 3. Introduce it into evidence

Question 26

Opinion testimony - Lay witnesses

Answer 26

Admissible if: - Rationally based on witness's perception - personal knoweldge - Helpful to the jury in deciding a fact Cannot be based on scientific, technical, or otherwise specialized knowledge that would require expert testimony

Question 27

Opinion testimony - expert witnesses, general

Answer 27

Qualifications: education and/or experience Proper subject matter: Scientific, technical, or other specialized knowledge that will be helpful to the jury in deciding fact Basis of opinion: Expert must have an opinion based on a reasonable degree of probability or reasonable certainty, and three permissible data sources: 1. Personal knowledge 2. Other evidence in the trial record 3. Facts outside the record if of a type reasonable relied on by experts in the particular field in forming opinions Reliability: Courts serve as gatekeeprs and will use 4 principal factors to determine reliability of principles and methodology used by experts to reach opinion - TRAP T - Testing of principles or methodology R: Rate of error A: Accepted by experts in the same discipline P: Peer review and publication

Question 28

Opinion testimony - expert witnesses, learned treatise in aid of expert testimony

Answer 28

Treatises, periodicals, or pamphlets may be used during expert testimony as follows: 1. On direct of a party's own expert - may be read into evidence as substantive evidence if established as a reliable authority 2. On cross - Read into evidence to impeach and contradict opponent's expert and come in as substantive evidence May not be introduced as exhibit

Question 29

Opinion testimony - ultimate issue

Answer 29

Opinion testimony is admissible by lay or expert witness even if it address the ultimate issue in the case UNLESS it is a criminal case and the testimony goes to relevant mental state

Question 30

Impeachment - Party's own witness

Answer 30

In general, bolstering one's own witness's credibility is not allowed Impeaching one's own witness is allowed without limitation

Question 31

Impeachment methods

Answer 31

1. Prior inconsistent statements 2. Bias, interest, or motive to misrepresent 3. Sensory deficiencies 4. Contradiction Methods showing general bad character for untruthfulness: 5. Bad reputation or opinion about witness's character for truthfulness 6. Criminal convictions 7. Bad acts without conviction that reflect adversely on a witness's character for truthfulness

Question 32

Impeachment methods - Prior inconsistent statements

Answer 32

Any witness may be impeached by showing that on some prior occasion, she made a material statement, orally or in writing, that is inconsistent with her trial testimony Only admissible as substantive evidence when: - The prior inconsistent statement is made under oath and as part of a formal hearing, proceeding, trial or deposition There's no requirement to immediately confront the witness, but the witness must be given the chance to explain or deny the prior inconsistent statement at some point - but not necessarily before proof of extrinsic evidence - Exception: No confrontation required and no opportunity to explain need be given if witness is opposing party.

Question 33

Impeachment methods - Bias, interest, or motive to misrepresent

Answer 33

Within the court's discretion if the witness needs to be confronted on the stand about the bias If confrontation requirement is met, the court also has the discretion to permit extrinsic evidence, even if the witness admits the bias

Question 34

Impeachment methods - Sensory deficiencies

Answer 34

Anything that could affect witness's perception or memory Confrontation is not required and extrinsic evidence is allowed

Question 35

Impeachment methods - Contradiction

Answer 35

Cross-examiner, through the confrontation of witnesses, may try to obtain an admission that she made a mistake or lied about any fact she testified to during direct examination. BUT extrinsic evidence is not allowed for the purpose of contradiction if the fact at issue is collateral - e.g. has no significant relevance to the case or to the witness's credibility

Question 36

Impeachment methods - Bad reputation or opinion about character for truthfulness

Answer 36

May call a acharacter witness to testify that target witness has a bad reputation for truthfulness or that character witness has a low opinion of target witness's character for untruthfulness Confrontation is not required and extrinsic evidence is allowed

Question 37

Impeachment methods - Criminal convictions

Answer 37

Any crime (felony or misdemeanor) involving dishonesty or false statement may be used to impeach and the court has no discretion to exclude such convictions If a conviction does not involve dishonesty or false statement, it must be a felony and the court has the discretion to exclude Either way, it cannot be too removed - generally must be 10 years since the conviction or release Conviction is not admissible if it was subject to pardon, annulment, or other procedure, and 1. The pardon was based on a finding of rehabilitation, AND 2. Witness hasn't subsequently been convicted of a felony OR 1. The pardon was based on a finding of innocence

Question 38

Impeachment methods - Prior bad acts involving untruthfulness

Answer 38

Confrontation on cross is the only permissible means - no extrinsic evidence is allowed Cross-examiner must have a good faith basis and ability to inquire lies in the court's discretion

Question 39

Impeachment of declarant hearsay

Answer 39

Opponent may use any of the impeachment methods to attack the credibility of a hearsay declarant

Question 40

Rehabilitation - showing witness's good character for truthfulness

Answer 40

Allowed when: Opponent used methods of attacking witness's bad character through bad reputation/opinion, convictions, or bad acts How: Character witness may provide reputation or opinion testimony about witness's good character for truthfulness

Question 41

Rehabilitation - Prior consistent statements

Answer 41

Allowed when: 1. Witness is charged with fabrication based on a recent motive or improper influence, and the statement was made before the motive arose 2. The statement rehabilitates a witness impeached on another ground, such as prior inconsistent statement or faulty memory These are also admissible as substantive evidence

Question 42

Hearsay - Definition and rule

Answer 42

Out of court statement of a person used to prove the truth of the matter asserted in the statement Inadmissible unless an exception applies

Question 43

Non-heasay - Not offered for the truth of the matter asserted

Answer 43

Verbal act - legally operative facts: Contract offer or cancellation, making gift, bribe, perjury, fraud, defamation, words accompanying ambiguous acts Effect on listener or reader (e.g. notice) Circumstantial evidence of declarant's state of mind

Question 44

Non-hearsay - Exclusions from herasay

Answer 44

Prior statements of testifying witnesses including: 1. Prior statement of identification 2. Prior inconsistent statement if made under oath and during a formal trial, hearing, proceeding, or deposition 3. Witness's prior consistent statement offered to rehabilitate the witness Opposing party statements - Any statement made by a party is admissible against that party. Includes: - Adoptive statements: A party may adopt the statement of someone else - Vicarious opposing party statement - statement by agent/employee if concerning matter within scope of agency/employment and made during agency/employment, or statement of co-conspirator if made during and in furthermance fo the conspiracy

Question 45

Hearsay exceptions where declarant must be unavailable

Answer 45

Unavailability grounds: - Death/illness - Absence from jurisdiction - Privilege - Refusal - Lack of memory Includes: - Former testimony - Statements against interest - Dying declaration

Question 46

Hearsay exceptions where declarant must be unavailable: Former testimony

Answer 46

The former testimony of a now-unavailable witness, if given at a former proceeding or in a deposition, is admissible against a party who, on the prior occasion, had an opportunity and motive to cross-examine or develop the testimony of the witness. The issue in both proceedings must be essentially the same.

Question 47

Hearsay exceptions where declarant must be unavailable: Statements against interest

Answer 47

Includes statements against: 1. Pecuniary interest 2. Proprietary interest 3. Penal interest Limit in criminal cases: In criminal cases, statements against penal interest must be corroborated.

Question 48

Hearsay exceptions where declarant must be unavailable: Dying declarations

Answer 48

Statement made under a belief of impending and certain death by a now-unavailable declarant concerning the cause or surrounding circumstances of the declarant's death. Only available in: 1. Crim cases - homicide only 2. Any civil case

Question 49

Hearsay exceptions that don't require unavailability

Answer 49

1. Excited utterance 2. Present sense impression 3. Then-existing mental or physical condition - present state of mind 4. Statements for purposes of medical diagnosis or treatment 5. Business records 6. Recorded recollection 7. Learned treatises

Question 50

Hearsay exceptions that don't require unavailability: Excited utterance

Answer 50

Statement concerning a startling event made while declarant is still under the stress of excitement caused by the event

Question 51

Hearsay exceptions that don't require unavailability: Present sense impression

Answer 51

Description of an event made while the event is occuring or immediately thereafter

Question 52

Hearsay exceptions that don't require unavailability: Then-existing mental or physical condition

Answer 52

Contemporaneous statement concerning declarant's own present state of mind, feelings, emotions, or physical condition Includes declarations of intent - Includes declarant's statements of intent to do something in the future, including the intent to engage in conduct with another person Includes present physical conditon

Question 53

Hearsay exceptions that don't require unavailability: Statement for purposes of medical diagnosis or treatment

Answer 53

Statement made to anyone (but usually involving a medical personnel) concerning past or present symptoms or general cause of the condition for the purpose of treatment or diagnosis

Question 54

Hearsay exceptions that don't require unavailability - Business records

Answer 54

Elements: - Records of any type of business or organization - Made in the regular course of business - The business regularly keeps such records - Records were made at or near the time of the event recorded - Contents consist of information observed by employees of the business Proving business records foundation: - Calling sponsoring witness to testify to the elements of business records hearsay exception --> doesn't need to be the author fo the report; can be records custodian or any other knowledgable person within teh business - OR affidavit of unsworn declaration attesting to elements of business records hearsy exception

Question 55

Hearsay exceptions that don't require unavailability - public records

Answer 55

Records of public office or agency setting forth: - The activities of the office or agency - Matters observed pursuant to a duty imposed by law - Findings of fact or opinion resulting from an investigation authorized by law Exception: Police reports and investigatory findings are not admissible against the defendant in a criminal case. Nor is the prosecution in such cases allowed to introduce a police report against the defendant under the alternative theory of business records.

Question 56

Hearsay and the confrontation clause

Answer 56

Regardless of whether a hearsay exception is satisfied, the Sixth Amendment right of confrontation prohibits the use of “testimonial” hearsay statements against a criminal defendant if the declarant is unavailable and the defendant has had no opportunity for cross-examination Testimonial hearsay includes: - Sworn testimony - Statements to police to gather information for eventual prosecution (not for an ongoing emergency) - Forensic analysis reports - Reports that have the effect of accusing a targeted person of criminal conduct, if the analyist is unavailabe to testify

Question 57

Privileges - Attorney-client privilege

Answer 57

Privilege applies to: 1. Confidential communcations 2. Between attorney and client, or representative of either 3. Made during a professional, legal consultation 4. Unless privilege is waived or an exception is applicable Confidential communicaiton: - Client must intend the confidentiality - no 3rd parties - Joint client rule: If 2 or more clients with common interests consult the same attorney, their communications are privileged as to third parties. If the joint clients later have dispute with each other concerning the common interest, privilege doesn't apply between them “Communication”: Privilege does not apply to underlying information, pre-existing documents, or physical evidence. Client is the holder of the privilege, so client alone can waive by disclosure of communication to a third party Privilege survives death Exceptions: Future crime or fraud, client puts legal advice in issue, attorney-client dispute

Question 58

Privileges - Phyisican-patient privilege

Answer 58

Applies to: 1. Confidential communication or information acquired by physician from patient 2. For purposes of diagnosis or treatment of medical condition Also applicable to psychotherapists In federal-court actions based solely on federal law, privilege exists for psychotherapists, but not for usual physician-patient confidences Exception: Privilege does not apply if the patient expressly or impliedly puts physical or mental condition in issue.

Question 59

Privileges relating to marriage

Answer 59

Spousal immunity: - In a crim case only, a spouse can't be compelled to testify against the defendant-spouse. The witness-spouse, not the defendant, is the holder of the privilege and may voluntarily testify if she'd like. - Applies to matters (1) Before, and (2) During marriage Confidential communications between spouses: 1. In any time of case, a spouse is not required to and is not allowed in the absence of consent by the other spouse, to disclose confidential communication made by one to the other during the marriage. 2. Both spouses hold privilege 3. Privilege survives divorce Exceptions to both privileges: 1. Communication or act in furtherance of future crime or fraud 2. Communications or acts destructive of family unit