Evidence

Question 1

Structured approach to hearsay questions

Answer 1

• (1) Identify the hearsay statement and the declarant;
• (2) Is the statement relevant?;
• (3) Is it an admission/prior inconsistent statement under oath/prior consistent statement/prior identification? These are never hearsay. If not;
• (4) Is it being offered for its truth?;
• (5) If so, is there an exception that applies?

Question 2

Declaration against interest exception to hearsay

Answer 2

Statement:

• (1) Of an unavailable declarant,
• (2) Usually a non-party, and
• (3) Against the declarant’s interest when made (penal, pecuniary, or proprietary).

Question 3

Medical diagnosis or treatment exception to hearsay

Answer 3

Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or external source thereof insofar as reasonably pertinent to diagnosis or treatment.

Question 4

Former testimony exception to hearsay

Answer 4

• (1) Testimony from the same or different proceeding, or in a deposition
• (2) Unavailable declarant
• (3) Opportunity and similar motive to develop the testimony on direct, cross, or redirect at the time of the statement.

Question 5

Vicarious admissions exception to hearsay

Answer 5

A statement of an employee on a matter within the scope of employment is admissible against the employer as a non-hearsay admission when it is offered by the opponent party.

Question 6

Public records exception to hearsay

Answer 6

A record or statement of a public office that sets out the factual findings/observations from a legally authorized investigation (admissible in civil case, or against the government in a criminal case).

Question 7

Dying declaration exception to hearsay

Answer 7

A dying declaration requires:

• (1) Statement must concern cause or circumstances of death
• (2) Unavailable declarant
• (3) Criminal homicide or any civil case
• (4) Declarant’s belief of imminent death

A mere suspicion of who killed (or attempted to kill) the declarant is not good enough, it must be a well-founded statement as to the cause of death.

Question 8

Prior identification hearsay exemption

Answer 8

An identification of a person made after perceiving that person is admissible as non-hearsay.

The witness must be available to testify at the trial and be subject to cross.

Question 9

Excited utterance exception to hearsay

Answer 9

Statement relating to a startling event made while declarant was under the stress of excitement caused by the event.

Question 10

Statements in ancient documents exception to hearsay

Answer 10

A statement in a document that was prepared before January 1, 1998, and whose authenticity is established.

Question 11

Best evidence rule/original document rule

Answer 11

If the only way to prove a fact is by reliance on a document, then:

• (a) the original must be produced or
• (b) its absence must be explained.

If the fact may be proved without the document, then the Original Documents Rule does not apply.

Properly authenticated copies of recorded writings may be used in lieu of originals.

Question 12

Then-existing mental, emotional, or physical condition exception to hearsay

Answer 12

A statement of declarant’s then existing state of mind (motive, intent, plan) or emotional, sensory, or physical condition (mental feeling, pain, or bodily health), but not including a statement of memory or belief.

Question 13

Business records (“regularly conducted activity”) exception to hearsay

Answer 13

A writing or record made as a memorandum or record of any act, transaction, occurrence, or event is admissible as proof of such act, transaction, occurrence, or event if it was made in the course of a regularly conducted business activity and if it was customary to make the type of entry involved (i.e., the entrant must have had a duty to make the entry). The business record must consist of matters within the personal knowledge of the entrant or within the personal knowledge of someone with a business duty to transmit such matters to the entrant. The entry must have been made at or near the time of the transaction.

Evidence of the absence of an entry in records regularly kept is admissible as affirmative.

Question 14

Learned treatises exception to hearsay

Answer 14

Statements made in treatises may be read into evidence once authoritativeness is established.

There are two ways to establish authoritativeness:

• (a) Court can take judicial notice or;
• (b) Expert testimony as to authority.

The treatise itself does NOT come in, just the statement being used. Once treatise statements are brought in, they are admissible for all purposes, not just impeachment.

Question 15

When may character evidence be admitted in criminal cases?

Answer 15

Character evidence is admissible substantively only once the defendant “opens the door” for either his own character or the victim’s character. Once admitted, character evidence is admissible for all purposes, not just impeachment.

Character evidence may only be admitted for the following purposes:

• (1) To prove relevant character trait of the defendant (law-abiding character, peacefulness, honesty, temperance).
• (2) To prove violent character of the victim.
• (3) To prove that the victim was the initial aggressor in a homicide case.
• (4) When character is an element of the charge or defense (crimes of false statement, entrapment).

Character evidence may only be admitted in the form of opinion or reputation testimony. Specific acts may only be used when character is an element of the charge or offense.

Question 16

When may character evidence be admitted in civil cases?

Answer 16

Either party may offer character evidence in a civil case. When character evidence is admitted, it is admissible for all purposes, not just impeachment.

Character evidence may be admitted for the following claims:

• (1) Defamation (character of plaintiff)
• (2) Child custody (character of parents)
• (3) Negligent entrustment (character of entrustee)
• (4) Negligent hiring (character of employee)
• (5) Self-defense (character of victim/plaintiff)

In civil cases, character evidence may be offered in the form of opinion, reputation, or specific acts.

Question 17

What is habit evidence and when is it admissible?

Answer 17

Evidence that a person acted in conformity with a habit is admissible despite the absence of corroboration and despite the presence of eyewitnesses.

Look for: “always” “invariably” “never,” etc.

In negligence cases, character evidence is always inadmissible but habit evidence may be admitted.

Question 18

When may bias, interest, or improper motive be used to impeach a witness?

Answer 18

The witness may be impeached by showing bias when the witness is confronted on cross-examination and has denied the bias. Extrinsic evidence may be used and the impeachment must occur during cross.

Question 19

When may evidence be admitted to impeach a witness’s perception?

Answer 19

Extrinsic evidence may be used on cross-examination to impeach a witness’s perception. There is no foundation requirement.

Question 20

When may evidence impeaching a witness’s memory be admitted?

Answer 20

Extrinsic evidence may be admitted on cross-examination to impeach a witness’s memory. There is no foundation requirement.

Question 21

When may prior inconsistent statements be used to impeach a witness?

Answer 21

Prior inconsistent statements may be admitted on cross-examination via extrinsic evidence provided the witness has an opportunity to explain or deny the statement.

Question 22

When may prior bad acts be used to impeach a witness?

Answer 22

Prior bad acts may be used to impeach a witness’s character for truthfulness on cross-examination. Extrinsic evidence may not be used unless it tends to show motive, intent, absence of mistake, identity, or a common scheme or plan (MIMIC).

The cross-examiner must act in good faith with some reasonable basis for believing that the witness may have committed the bad act inquired about, but it is not required that the witness have been convicted of a crime.

Question 23

When may reputation or opinion testimony be admitted to impeach a witness?

Answer 23

Third party testimony regarding a witness’s character or reputation for truthfulness (or untruthfulness) may used to impeach a witness if the witness has testified already. Extrinsic evidence may be used, as the third party is the extrinsic evidence.

Question 24

When may evidence of a prior conviction be used to impeach a witness?

Answer 24

Evidence of a prior conviction may be used on cross-examination to impeach a witness that has already testified. Extrinsic evidence may be used to show any felony, misdemeanor, or crime of dishonesty subject to the 10 year rule.

Question 25

Spousal privilege v. marital privilege

Answer 25

Spousal privilege protects communications before and during the marriage, including impressions and observations. This privilege is lost at divorce, and only applies to criminal cases. The witness spouse is the holder of the privilege.

Marital privilege protects only communications during the marriage. This privilege survives divorce and applies to all cases. Both spouses hold this privilege.

• Exceptions: Marital privilege does not apply to suits between spouses, crimes by one spouse against the other, and spouses acting together to commit a crime.

Spouses may waive either privilege.

Question 26

May the character of a hearsay declarant be attacked when the declarant is not available to testify at trial?

Answer 26

Yes, Rule 806 permits attacks on the credibility of a hearsay declarant in the same manner as any other witness’s character could be attacked. The character for truthfulness of all witnesses is relevant at trial and admissible and may be introduced in the form of reputation or opinion testimony.

Question 27

Is evidence of a prior felony conviction admissible?

Answer 27

Records of a conviction are hearsay; i.e., it is a statement, other than one made by the declarant while testifying at the trial or hearing, offered to prove the truth of the matter asserted. Under the Federal Rules, however, such judgments fall within the hearsay exception for records of felony convictions.

Under the Federal Rules, judgments of felony convictions are admissible in both criminal and civil actions to prove any fact essential to the judgment, whether the judgment arose after trial or upon a plea of guilty. For purposes of this Rule, a felony is any crime punishable by death or imprisonment in excess of one year.

Question 28

Admissibility of guilty pleas and statements made in connection with plea bargains

Answer 28

Withdrawn guilty pleas, pleas of nolo contendere, offers to plead guilty, and evidence of statements made in negotiating such pleas are inadmissible against the defendant who made the plea or was a participant in the plea discussions.

This rule does not apply where statements made in connection with a plea bargain are used to impeach a witness, and does not apply to accepted pleas. After the plea is accepted, it is admissible.

Question 29

Which preliminary facts are decided by a judge and which are decided by a jury?

Answer 29

The Federal Rules of Evidence distinguish preliminary facts to be decided by the jury, which determine whether the offered evidence is relevant to the issues in the case, from preliminary facts to be decided by the judge, which determines whether the offered evidence is competent to be admitted at all.

Some preliminary facts to be decided by the jury include whether evidence is authentic, whether a person was acting as a party’s agent in a breach of contract case, and whether a witness has personal knowledge of the facts of their testimony.

Some facts to be decided by a judge include whether a witness is mentally competent to testify, whether a privilege exists, and whether evidence meets the requirements of a hearsay exception. The judge is generally not limited by the rules of evidence in making a determination.

Question 30

What is the trial court’s discretion to exclude relevant evidence?

Answer 30

A trial judge has broad discretion to exclude relevant evidence if its probative value is substantially outweighed by the danger of one or more of the following considerations:

• (1) The danger of unfair prejudice (the jury will decide the case on an emotional basis)
• (2) Confusion of the issues (the evidence creates a side issue)
• (3) Misleading the jury (the jury will give undue weight to the evidence)
• (4) Undue delay
• (5) Waste of time
• (6) Needless presentation of cumulative evidence

Question 31

When is real evidence admissible?

Answer 31

All relevant evidence is admissible unless a specific rule keeps the evidence out or limits its admissibility. In the case of real evidence, the object at issue is presented for inspection by the trier of fact. Such evidence can be presented to any of the senses of the jury from which the jury can obtain relevant information.

Question 32

Admissibility of subsequent remedial measures

Answer 32

Remedial measures undertaken by a third party may be admissible to shift blame on the third party. They are not admissible to show negligence or culpable conduct on the part of the defendant.

Evidence of subsequent remedial measures may be offered for another purpose, such as proving ownership, control, or the feasibility of precautionary measures, if controverted, or impeachment.

Question 33

Admissibility of offers to pay medical expenses

Answer 33

Evidence of furnishing, or offering or promising to pay, medical or hospital expenses or other damages occasioned by an injury or accident is inadmissible to prove liability for the injury or accident.

Question 34

Can a lawyer claim attorney-client privilege on behalf of his client? Are there exceptions?

Answer 34

A lawyer may claim the attorney-client privilege if he does so on behalf of his client.

A key exception to the privilege is when the services of the lawyer were sought or obtained to enable or aid anyone to commit what the client knew was a crime or fraud.

Question 35

Who may testify as to the authenticity of someone else’s handwriting or signature?

Answer 35

Any person can testify to the authenticity of another’s signature as long as that witness has seen the person’s signature and can express an opinion regarding its authenticity.

The only restriction is that a nonexpert cannot become familiar with the handwriting merely for the purpose of testifying. There is likewise no requirement that the witness has seen the signature recently.

Question 36

When is lay opinion testimony permitted? How is it different from expert opinion testimony?

Answer 36

Lay opinion testimony is admissible when:

• (1) it is rationally based on the perception of the witness;
• (2) it is helpful to a clear understanding of his testimony or to the determination of a fact in issue; and
• (3) it is not based on scientific, technical, or other specialized knowledge.

One matter about which a lay witness may testify is the general appearance or condition of a person. In contrast, expert opinion testimony is called for when the subject matter is such that technical or other specialized knowledge will assist the jury in understanding the evidence or determining a fact in issue.

Question 37

When are tangible items subject to required disclosure under the discovery rules?

Answer 37

Without waiting for a discovery request, a party must provide to the other parties copies or descriptions of tangible things that are in the disclosing party’s possession or control and that the disclosing party may use to support its claims or defenses as an initial disclosure.

Pretrial disclosure is also required for items expected to be offered into evidence.

Question 38

When will the Confrontation Clause prevent the admission of an out of court statement? When are statements testimonial or nontestimonial?

Answer 38

Under the Confrontation Clause, an accused has the right to be confronted by the witnesses against him. A hearsay statement will not be admitted, even if it falls within a hearsay exception, when:

• (1) the statement is offered against the accused in a criminal case;
• (2) the declarant is unavailable;
• (3) the statement was testimonial in nature; and
• (4) the accused had no opportunity to cross-examine the declarant’s “testimonial” statement prior to trial.

If the primary purpose of police interrogation is to enable the police to help in an ongoing emergency, statements made in the course of the interrogation are nontestimonial. When the primary purpose of the interrogation is to establish or prove past events potentially relevant to a later criminal prosecution, statements are testimonial.

Affidavits that summarize the findings of forensic analysis and have the effect of accusing the defendant of criminal conduct are testimonial in nature and are not admissible into evidence against the defendant unless the preparer is unavailable and the defendant previously had an opportunity to cross-examine.

Question 39

When are photographs admissible as evidence?

Answer 39

To be admissible, a photograph must be identified by a witness as a portrayal of certain facts relevant to the issue, and verified by the witness as a correct representation of those facts. It is sufficient if the witness who identifies the photograph is familiar with the scene or object depicted. It is not necessary to call the photographer to authenticate the photograph.

Question 40

When are witnesses deemed competent to testify? What about children?

Answer 40

All witnesses are competent unless physically or mentally impaired in some fashion, or unless they are too young to understand the oath and the need to testify truthfully. There is no precise age at which a child is deemed competent to testify; it depends on the capacity and intelligence of the particular child.

Question 41

What is a present recollection refreshed? Does it create a hearsay problem?

Answer 41

Any writing may be used to refresh a witness’s memory. (Things other than a writing may also be used, e.g., a photograph.) The witness cannot read from the writing while testifying.

There is no hearsay problem, because the writing is not offered into evidence.

Question 42

Past recollection recorded exception to hearsay

Answer 42

Where a witness states that they have insufficient recollection of an event to enable them to testify fully and accurately, even after they have consulted a memorandum or other record given to them on the stand, the record itself may be read into evidence if a proper foundation is laid. The foundation must include proof that:

• (1) The witness has insufficient recollection to testify fully and accurately (that is, showing the document to the witness fails to jog their memory);
• (2) The witness had personal knowledge of the facts in the record when the record was made;
• (3) The record was made by the witness or under their direction, or it was adopted by the witness;
• (4) The record was made when the matter was fresh in the witness’s mind; and
• (5) The record accurately reflects the witness’s knowledge (the witness vouches for the accuracy of the record at the time that it was made or adopted).

Question 43

What are proper methods of authenticating a writing?

Answer 43

A writing may be authenticated by:

• (a) evidence that the party against whom the writing is offered has either admitted its authenticity or acted upon the writing as authentic;
• (b) testimony of one who sees it executed or hears it acknowledged; or
• (c) evidence of genuineness of the handwriting of the maker.

Question 44

What is the difference between the burden of persuasion and the burden of going forward with the evidence and which party is each burden on?

Answer 44

The burden of persuasion is the burden of a party to persuade the jury to decide an issue in its favor. If, after all the proof is in, the issue is equally balanced in the mind of the jury, then the party with the burden of persuasion must lose. The burden of persuasion does not shift from party to party during the course of a trial.

The burden of going forward with the evidence is the burden of producing sufficient evidence to create a fact question of the issue involved. If a plaintiff makes out a prima facie case, he has met his burden of going forward with the evidence and the burden shifts to the defendant. If the defendant satisfies their burden and creates a rebuttable presumption on the issue, it will shift back to the plaintiff.

Question 45

Statements in documents that affect an interest property exception to hearsay

Answer 45

A statement contained in a document that purports to establish or affect an interest in property if the matter stated was relevant to the document’s purpose, unless later dealings with the property are inconsistent with the truth of the statement or the purport of the document.

Question 46

May a judge unilaterally call a witness to the stand?

Answer 46

A court is entitled to examine any witness called by any party, and may also call a witness on its own or at a party’s request, but both parties are entitled to cross-examine a witness called by the court.