Evidence

Question 1

Refreshed Recollection vs. Recorded Recollection

Answer 1

Refreshed Recollection - Item may be used to refresh a witness’s memory before or during trial if:

(1) Witness once knew but can no longer recall fact
(2) Item will help them recall

*Not read/admitted into evidence unless offered by opposing party.

Recorded Recollection - Record may be used as substantive proof and read into evidence if:

(1) Witness once knew but can no longer recall fact
(2) Witness made record while matter was fresh in his/her mind, AND
(3) The record accurately reflects witness’s knowledge

*Can be read into evidence, but can only be offered as exhibit by opposing party.

Question 2

Exceptions for Unavailable Witness (Confrontation Clause Issue)

Answer 2

(1) Former testimony
(2) Dying declaration
(3) Statement against interest
(4) Personal family history
(5) Offered against party that wrongfully caused declarant’s absence

Question 3

Non-Hearsay

Answer 3

= hearsay exclusions

(1) Statement by Declarant-Witness
(2) Statement by Party-Opponent

Question 4

Statement by Declarant-Witness

Answer 4

(Excluded from hearsay rule)

Out-of-court statement is admissible if witness is subject to cross examination AND the prior statement is either:

(1) inconsistent with current testimony & was made under oath;
(2) consistent with current testimony and offered to either rebut charge of fabrication/improper influence or rehabilitate witness; or
(3) identifies person witness perceived earlier.

Question 5

Statement by Party-Opponent

Answer 5

(Excluded from hearsay rule as non-hearsay)

Out-of-court statement admissible if offered against opposing party AND statement was:

(1) Made or adoptedby party
(2) Made by person authorized by party
(3) Made by party’s agent or employee on matter within scope of relationship, or
(4) Made by party’s co-conspirator DURING and IN FURTHERANCE OF conspiracy.

Question 6

Methods of Impeachment -

Character for Truthfulness

Answer 6

Reputation or opinion testimony = Extrinsic evidence

SIC involving bad act = Intrinsic evidence

SIC involving criminal conviction or crime of dishonesty = Both

Question 7

5 Methods of Impeachment

Answer 7

(1) Character for truthfulness
(2) Self-interest/Bias
(3) Prior Inconsistent Statement
(4) Specific contradiction
(5) Sensory abilities

*All except for parts of (1) allow impeachment by both intrinsic and extrinsic evidence.

(“CPSSS”)

Question 8

Best Evidence Rule

Answer 8

The original writing is required in order to prove the contents of the writing.

APPLIES ONL WHEN THE CONTENTS OF A WRITING ARE AT ISSUE

Question 9

Attorney-Client Privilege

Answer 9

Only protects confidential communications, not the client’s identity

Question 10

Does Privilege (eg, Attorney-Client privilege) apply in grand jury proceedings?

Answer 10

Yes, privileges apply to all stages in a case, including grand jury proceedings

Question 11

(5) Methods of Impeaching Witnesses

Answer 11

1. Character for truthfulness
   a. Reputation or Opinion = EXTRINSIC ONLY
   b. SIC involving felony criminal conviction or crime of dishonesty = INTRINSIC or EXTRINSIC
   c. SIC involving bad act = EXTRINSIC ONLY

(The following can be by intrinsic or extrinsic evidence)

2. Self-Interest or bias
3. Prior Inconsistent Statement
4. Specific Contradiction
5. Sensory Abilities