Evidence

Question 1

Which determinations require a judge to conduct a preliminary hearing outside the hearing of a jury?

Answer 1

The court must conduct any hearing on a preliminary question so that the jury cannot hear it if: (1) the hearing involves the admissibility of a confession; (2) a defendant in a criminal case is a witness and so requests; or (3) justice so requires.

Question 2

A motion in limine is…

Answer 2

made before the start of trial by a party requesting

that certain evidence may be introduced to or excluded from the jury

Question 3

Relevant evidence means…

Answer 3

evidence tending to make the existence of any

fact more probable or less probable than it would be without the evidence

Question 4

Evidence is excluded under 403 if…

Answer 4

its probative value is substantially outweighed by the
danger of unfair prejudice, confusion of issues, misleading the jury, undue
delay, waste of time, or needless presentation of cumulative evidence

Question 5

A non-expert witness may give opinion testimony if it is…

Answer 5

a. rationally based on the perception of the witness;
b. helpful to clear understanding of testimony, or to a determination of
the fact in issue; and
c. not based on scientific, technical, or other specialized knowledge

Question 6

What is substantive evidence?

Answer 6

Evidence that is admissible for and usable by trier of fact (TOF) for any purpose (vs. limited use, e.g., for impeachment)

Question 7

What is extrinsic evidence?

Answer 7

evidence that needs other evidence to be admissible/relevant/understood; (e.g., impeachment with a writing, certified copy of a conviction, or by calling another witness to the stand).
o most important in context of impeachment and authentication
(vs. intrinsic, which speaks for itself?)

Question 8

What is the Plain Error Doctrine?

Answer 8

Plain error is defined as a highly prejudicial error affecting “substantial rights.” The only time a reversal will result from the admission of evidence despite an objection not being raised is when plain error is found.

Question 9

The court must decide any preliminary question about whether:

Answer 9

o a witness is qualified,
o a privilege exists, or
o evidence is admissible.
• In so deciding, the court is not bound by evidence rules, except those on privilege.

Question 10

What is the Rule of Completeness?

Answer 10

Where a party introduces part of a writing or recording, the adverse party may immediately introduce any other writing or part of the writing, which, in fairness, ought to be considered in conjunction with it.
-not applicable to conversations - only to writings and recordings

Question 11

What is judicial notice?

Answer 11

Judicial notice is a substitute for proof where the court accepts certain “adjudicative” facts as true without requiring formal presentation of evidence.
• Adjudicative facts are those which concern the parties to some dispute and are helpful in determining the proper outcome in the case; can cover a broad area including science, history, government and court records, geography, and calendars.
-2 kinds of judicial notice:
a) facts commonly known in the territory (context specific)
b) easily verifiable facts (e.g., historical records)

Issues of judicial notice may be raised for the first time either pretrial, during trial, or even on appeal. [judicial notice can occur at any time. and once the court has taken judicial notice, the other side can’t bring in contradictory evidence]

Question 12

What is the effect of a jury instruction on judicial notice?

Answer 12

o A civil jury must accept a judicially noticed fact as conclusive.
o A criminal jury may, but is not required to, accept a judicially noticed fact as conclusive.

Question 13

Preponderance of the evidence

Answer 13

• easiest to prove
• traditional civil standard
• burden on in a preliminary matter in criminals cases (e.g., motions to suppress, voluntariness of a confession, etc.)

Question 14

Clear and Convincing Evidence

Answer 14

Reserved for criminally-related civil cases — fraud; validity of a deed/will; also defendant’s burden for insanity as a defense in federal criminal cases.

Question 15

Beyond a reasonable doubt

Answer 15

The guilt phase in a criminal case (most difficult to prove).

Question 16

Examples of legal presumptions

Answer 16

Presumption of innocence; minors are incompetent to contract or create will.

Question 17

Examples of factual presumptions

Answer 17

Absentia for 7 years = absent person is dead; child born during marriage = child of father; if fire a gun at a vital part of the body = intent to kill; proof that a letter was mailed = letter received.

Question 18

When are irrebuttable presumptions not allowed?

Answer 18

criminal cases - absolves government of burden of proof

Question 19

What is the definition of relevant evidence? (Rule 401)

Answer 19

o Relevant evidence is evidence tending to make the existence of any fact of consequence to the action more or less probable than it would be without the evidence. This is often called “logical relevance.”
o MBE Tip: Relevance is a very low bar for the proponent of the evidence to clear. Therefore, an answer that excludes evidence purely on relevance grounds typically is wrong.

Question 20

What is the FRE 403 balancing test?

Answer 20

If the probative value of relevant evidence is SUBSTANTIALLY outweighed by:
 the danger of unfair prejudice, meaning the evidence invites the jury to make a decision on an improper ground;
 confusion of the issues;
 misleading the jury;
 considerations of undue delay;
 waste of time; or
 needless presentation of cumulative evidence.

Test favors admissibility

Question 21

What are the forms of character evidence?

Answer 21

R.O.SA.
•R = Witness testifies to another’s reputation as to character (e.g., “Everyone thinks V is violent.”);
o Note that reputation is merely the collective opinion of others.
o Reputation evidence is hearsay (the character witness is offering what people told him/her of their view of the other’s character), but a hearsay exception applies. FRE 803(21).
•O = Witness testifies to their opinion of another’s character (e.g., “I think V is violent.”); and/or
•SA = Witness testifies to specific acts (specific instances of conduct) of another that reflect the other’s character (e.g., “I saw V beat up X last week,” offered to show V is violent.”).

Question 22

Purposes for which character evidence is offered?

Answer 22

I.C.E.

• Impeachment –> general rule=admissible
• Conformity / propensity –> general rule=not admissible
• Element / character at issue - essential element of the cause of action. –> general rule=admissible, but rare in civil cases; even more rare in criminal cases.

Question 23

Permissible Methods of Proving Character

Answer 23

R.O.SA.
• Reputation – if permissible purpose (Element or Impeachment), always admissible.
• Opinion – if permissible purpose (Element or Impeachment), always admissible.
• Specific Acts (specific instances of conduct) that reflect character – limited admissibility depending on purpose.

Question 24

When is element character evidence admissible?

Answer 24

When character is at issue; where character is an essential element of a cause of action, claim, or defense. [then R.O.SA. methods all permissible]

1. Defamation
2. Negligent entrustment, hiring supervision
3. Immigration
4. Child Custody
5. Entrapment - defense in criminal case

Question 25

When is impeachment character evidence admissible?

Answer 25

o Rule 608(a): Impeachment by Reputation and Opinion for Untruthfulness: A witness can be impeached with their character for untruthfulness shown by reputation or opinion evidence.
 To accomplish this, either party may call a witness (extrinsic evidence) in both civil and criminal cases.
 Method: On direct examination, reputation and/or opinion only; not specific acts on direct examination.
o Rule 608(b): Impeachment by Prior Bad Acts:
 Specific acts (specific instances of the conduct) of any testifying witness that are probative for their truthfulness are admissible for attacking or supporting the witness’s credibility.
• Conviction is NOT required, provided the proponent can prove the act occurred by Preponderance of the Evidence (POTE).
 Permitted Method:
• a question;
• on cross-examination;
o Inquiring into the witness’s own prior bad acts bearing on truthfulness (or dishonesty).
o Key Point: If the witness lies about the specific instance, the collateral matter rule applies; extrinsic evidence is INADMISSIBLE to prove the bad act. The examiner is bound by the witness’s answer.

Question 26

While conformity character evidence is generally not admissible to show conduct in conformity therewith, what are the exceptions?

Answer 26

1) Criminal Defendant can offer testimony about his/her own pertinent good character, sometimes called “opening the door.” Pertinent determined by what crime the D is charged with. Only reputation or opinion (not specific acts) on direct exam.
2) A criminal defendant may offer evidence of the victim’s pertinent character as circumstantial evidence, commonly, the victim’s violent character to support a claim that the victim was the initial aggressor; this BAD character of the victim is used to show that the defendant acted in self-defense. The prosecution may rebut with good character of the victim on that same trait, AND Can offer the defendant’s bad character on that same trait, each through reputation or opinion, NOT specific acts. D and P both must be through rep or opinion only.
3) In criminal homicide cases, the prosecutor may offer evidence of the alleged victim’s trait of peacefulness to rebut evidence that the victim was the initial aggressor, even if the defendant did not offer evidence of the victim’s character for violence. Rep or opinion only.

4) Rape shield law: In any civil or criminal proceeding involving alleged sexual misconduct, evidence offered to show the alleged victim’s sexual behavior, sexual predisposition, and other sexual history is excluded, including actual sexual physical conduct as well as the use of contraceptives, fantasies, and any activities that imply sexual activity, as well as how a person dresses, lifestyle choices, and speech.
- -exception: • Exceptions: In a criminal case, specific past sexual acts are ADMISSIBLE to show: Consent: Past sexual acts with THIS defendant which tend to show consent; Source of semen, injury, or other physical evidence, evidence that’s constitutionally required. And only admitted in civil case if probative value substantially outweighs danger of harm to victim and unfair prejudice to any party.

5) In a criminal case in which the defendant is accused of child molestation or sexual assault (Rules 413 and 414), specific acts by the defendant are admissible and may be considered as they bear on any relevant matter (including propensity, likelihood, and disposition to commit sex offenses). Reputation and opinion are not permitted methods.

Question 27

Evidence of other crimes, wrongs, or acts may be admissible when offered to prove…

Answer 27

MIMIC+

• Motive
• Intent
• Absence of Mistake
• Identity (modus operandi, handiwork or signature)
• Common Scheme of Plan
• Plus: knowledge, opportunity, preparation, lack of accident

to offer evidence under MIMIC+, the prosecutor must disclose “the non-propensity purpose for which the prosecutor intends to offer the evidence and the reasoning that supports the purpose.”

Question 28

What are the common triggers for habit/routine practice evidence? (Evidence of the habit of a person or routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove conduct in conformity with the habit or routine practice. Each is a repeated response by the individual or organization to a particular situation.)

Answer 28

• Sufficient triggers: always, automatically, regularly, instinctively, without fail, invariably, habitually.
• Insufficient triggers: usually, often, frequently.

Admissible in the form of opinion or specific acts.

Question 29

Federal Rules of Evidence 615 provides that when either party requests the exclusion of witnesses, the court must grant the application. The rule does not apply to?

Answer 29

1) parties to the lawsuit; or (2) witnesses who, at the request of a party, are essential to the presentation of a party’s claim or defense.

Question 30

When is a statement against interest admissible?

Answer 30

(1) the declarant must be unavailable at trial; (2) at the time the statement was made, it was contrary to the declarant’s pecuniary, proprietary, or penal interest, or tended to subject the declarant to civil or criminal liability; and (3) a reasonable person in the declarant’s position would not have made the statement if it were not true.

Question 31

A duplicate is admissible to the same extent as an original unless…

Answer 31

(1) a genuine question is raised as to the authenticity of the original; or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original.

Question 32

Evidence of Subsequent Remedial Measures is INADMISSIBLE to prove negligence, culpable conduct, design defect, or the need for a warning. What is it admissible for?

Answer 32

1) To Show Ownership or Control if Denied; 2) To Show Feasibility of Precautionary Measures if Denied; 3) To Impeach

Question 33

Evidence of an offer to settle a civil claim, which is DISPUTED either as to validity or amount, and statements made in connection therewith are INADMISSIBLE to prove liability or amount. What might they be admissible for?

Answer 33

Either or both may be admissible if offered to prove something other than claim validity or amount: show or prejudice; negate a contention of undue delay (laches)

Question 34

How does the rule on evidence of offering to pay medical bills/paying them differ from evidence on offers to settle?

Answer 34

UNLIKE FRE 408, where the offer and anything else said accompanying that offer are inadmissible, FRE 409 only precludes the offer itself. Anything else is admissible, including admissions. Also, dispute not required for 409/medical.

Question 35

Evidence that a person was or was not insured is INADMISSIBLE to prove negligence or fault. When may it be admitted?

Answer 35

for another purpose, such as:
• proof of agency;
• ownership or control; or
• bias or prejudice of a witness.

Question 36

In civil cases (diversity actions), the privilege of a witness is determined by?

Answer 36

state law (Erie doctrine)

Question 37

In federal question cases and federal criminal cases, issues of privilege are determined by?

Answer 37

Federal common law

Question 38

What 4 privileges are recognized in federal courts and in all 50 states?

Answer 38

1. attorney-client (legal);
2. psychotherapist-patient (mental);
3. clergy-penitent (religious); and
4. spousal testimony and spousal communication (marital).

Question 39

In what situations in there no attorney-client privilege?

Answer 39

1) future crime of fraud
2) suits between attorney and client
3) “joint client” exception (Two clients hire the same attorney and are then involved in litigation between each other. Result: Their earlier communications are not privileged (absent agreement otherwise))

Question 40

When can a party get around the work product doctrine?

Answer 40

If the party seeking work product can show a “substantial hardship” and “no other way of obtaining the evidence,” then the work product is discoverable, meaning it must be provided. This is usually expressed as a “rationale” for discovery.

Question 41

What is the marital (spousal) communications/confidences privilege?

Answer 41

• The privilege can be asserted by either spouse (both hold the privilege).
• It applies in both civil AND criminal cases.
• It only protects confidential communications (i.e., those intended by the parties to be confidential) between the spouses made DURING the marriage.
• Divorce has no effect; communications remain protected and survive the death of a spouse – all that matters is when it was said, not when it is being used.

Question 42

What is Spousal Testimony Privilege (or spousal immunity)?

Answer 42

• Protects all communications, observations, and impressions, regardless of confidentiality, both during AND before marriage. A spouse cannot be compelled to testify about virtually anything. The purpose is to promote marital harmony.
• Holder: The privilege is held by:
o under common law, the party-spouse; and
o in federal courts, the witness-spouse, so although the witness-spouse cannot be compelled, the witness-spouse could choose to testify over the party-spouse’s objection.
• Key characteristics of spousal privilege:
o Under this rule, a testifying spouse may refuse to testify against their current spouse in a criminal case.
 It applies to anything that happened before or during the marriage, but the entire privilege is lost upon divorce.
 A valid marriage is required. No privilege exists if the marriage is void.

Question 43

If a person’s statement cannot incriminate him, the 5th amendment privilege against self-incrimination does NOT apply. A statement cannot be incriminating if double jeopardy bars prosecution or if the person has been granted sufficient immunity. Then they can be forced to testify. What are the 3 types of immunity?

Answer 43

Transactional Immunity — Broad.
• A witness with transactional immunity cannot be prosecuted for the offense to which the statement refers.
• If granted, this bars assertion of the privilege.
Derivative Use Immunity
• Neither the person’s statements nor any evidence obtained as a result of the statement can be used against the person.
• If granted, this bars assertion of the privilege.
Use Immunity — Narrow.
• Statements by the witness may not be used against them, but the prosecution does not agree that it will never prosecute, nor is the prosecution barred from using evidence obtained as a result of the statement.
• This is NOT sufficient to bar assertion of the privilege.

Question 44

What are the method of impeachment?

Answer 44

Mnemonic “3 I’s 4 C-ing” (“Three Eyes For Seeing”) or “I3, C4”

1. I = Interest, motive, or bias
2. I = Incapacity to observe, recall, or relate
3. I = (Prior) Inconsistent Statement (PINS)
4. C = Character evidence for truthfulness by reputation or opinion
5. C = Character evidence for truthfulness by “prior bad acts”
6. C = (Prior) Conviction of crime
7. C = Contradiction (like a PINS except other evidence or witnesses contradict)

Question 45

What are the methods of rehabilitating a witness? (if impeached, can rehab using any method)

Answer 45

1. Explain or deny.
2. Prior Consistent Statement.
3. Character evidence for truthfulness by reputation or opinion (no specific acts)

Question 46

When are convictions more than 10 years old admissible to impeach by prior conviction?

Answer 46

• the probative value substantially outweighs the prejudicial effect (disfavors admission; not 403 balancing), and
• the proponent gives notice to the opponent.

10 years measured from the:
• date of the conviction (if the defendant received no jail time); or
• date of release from confinement, whichever is later (i.e., more recent).

Question 47

What types of crimes are admissible for impeachment?

Answer 47

1) felonies; 2) crimes involving dishonesty

Question 48

When are felonies (crimes punishable by death or in excess of one year) admissible for impeachment?

Answer 48

o A felony conviction is subject to the Rule 403 balancing test (i.e., excluded if the probative value is substantially outweighed by unfair prejudice).
o Discretionary.
• For impeachment of the accused as a witness (defendant in a criminal case), the conviction will be admitted if the prosecution shows the probative value outweighs the prejudicial effect, not 403 balancing.

Question 49

When is a crime involving dishonesty or false statement admissible for impeachment?

Answer 49

• If 10 years old or less, admission to impeach is mandatory.
• Crimes involving dishonesty or false statement include both felonies and misdemeanors.

EXAMPLES (admissible):
o perjury;
o forgery;
o theft specifically involving a lie (e.g., larceny by trick, false pretenses, or embezzlement);
o criminal fraud; and
o any crime involving some element of deceit, untruthfulness, or falsification.

Question 50

hearsay exceptions for when witness unavailable - FRE 803

Answer 50

former testimony; statement under the belief of imminent death (dying declarations); statement against interest; statement of personal or family history; forfeiture by wrongdoing

Question 51

Can a writing used to refresh memory be introduced into evidence?

Answer 51

Not by the proponent (If a writing is used to refresh recollection, neither the hearsay rule nor the best evidence rule apply because the writing is not offered or admitted). The opponent may inspect, cross-examine, show the writing to the jury, and intro relevant portions into evidence.

Question 52

Which witnesses may not be excluded from the courtroom?

Answer 52

 a party or party’s representatives;
 a person whose presence is essential (i.e., expert); or
 persons exempted by statute (victim of a crime).

Question 53

What is the proper scope of non-expert opinion?

Answer 53

Includes: VEMPS
o V: Value of one’s own property.
o E: Emotional state of others (happy/sad).
o M: Measurements – speed of a vehicle; height, weight, distance.
o P: Physical states – tall/short; healthy/sick.
o S: Sensory descriptions (smell, sound, taste, color).

Question 53

What is the proper scope of non-expert opinion?

Answer 53

Includes: VEMPS
o V: Value of one’s own property.
o E: Emotional state of others (happy/sad).
o M: Measurements – speed of a vehicle; height, weight, distance.
o P: Physical states – tall/short; healthy/sick.
o S: Sensory descriptions (smell, sound, taste, color).

Question 54

What is the Daubert test?

Answer 54

Test for reliability of subject matter of expert opinion. Requires that the subject matter of an expert opinion must require “scientific, technical, or other specialized knowledge” that “will help the trier of fact to understand the evidence or to determine a fact in issue”
The elements are TAPES:
o T: Has the theory been tested? If so, how extensive?
o A: General acceptance in the relevant community.
o P: Peer review regarding the scientific theory.
o E: Degree or rate of error.
o S: Standards.

Question 55

When may otherwise inadmissible underlying data for expert opinion be admitted?

Answer 55

Only if the proponent shows the probative value of the evidence substantially outweighs its prejudicial effect.

Question 56

Generally, an expert may give an opinion or inference which embraces an ultimate issue, but cannot state the opinion as a legal conclusion. What is the limitation on this rule in a criminal case?

Answer 56

An expert may not give an opinion as to whether the defendant did or did not possess the mental state or condition which constitutes an element (or defense) of the crime charged. Such ultimate issues of law are determined by the jury. (e.g., intent)

Question 57

What is the definition of hearsay?

Answer 57

(1) a statement (2) by a human declarant, (3) other than one made while testifying at trial, (4) offered to prove the truth of the matter asserted.

Question 58

What are the categories of non-hearsay evidence? (evidence not offered for the truth of the matter asserted - limited admissibility)

Answer 58

C E.L.V.I.S.
 C = Statement of Capacity to see, hear, speak, etc.
 E = Effect on the Listener
 L = Legally operative facts (LOF), a.k.a. facts of independent legal significance (Transactional words like the words of a contract, deed, or will, defamatory words, words of notice.)
 V = Verbal Acts (An out-of-court statement offered, not for its truth, but to clarify ambiguous conduct)
 I = Impeachment
 S = State of Mind - Circumstantially (An out-of-court statement offered, not for its truth, but as circumstantial evidence of the declarant’s state of mind (as opposed to the state of mind hearsay exception).

Question 59

What are the hearsay exemptions under 801(d)? (may be admitted as substantive evidence)

Answer 59

1. Statement by a Party Opponent (statement by a named party; adoptive admission; authorized admission; employee admission; co-conspirator’s admission)
2. Prior Inconsistent Statement (PINS) made under oath at a court-type proceeding (can be substantive v. prior inconsistent statement for impeachment, which doesn’t require oath / can be made anywhere)
3. Prior Consistent Statement (once witness has been impeached, a prior consistent statement is a hearsay exemption and admissible as substantive evidence)
4. Statement of Prior Identification - witness who made the statement of ID MUST testify and be subject to cross-exam
   [for 2-4, declarant must testify and be subject to cross-exam, otherwise Confrontation Clause problem in crim case)

Question 60

What are the hearsay exception for which the availability of the declarant is immaterial?

Answer 60

• present sense impression
• excited utterance
• statement of then-existing mental, physical, or emotional condition
• statement for medical diagnosis or treatment
• past recollection recorded (The writing/record is read into evidence. The writing itself is NOT received as an exhibit (to be with the jury during deliberations) unless offered by the adverse party)
• records of regularly conducted activity (business records exception)
• absence of entry in business record
• public records and reports (report of law enforcement not admissible under this exception in criminal case against accused - Confrontation Clause)
• records of vital statistics / absence of entry in public record / family and personal history records / records, or statements in docs, that affect an interest in property / statements in ancient docs (prior to 1/1/98) / market reports, commercial publications
• learned treatises (expert exception) - can be read; doesn’t become an exhibit
• reputation concerning personal and family history, re: boundaries and general history
• reputation concerning character
• judgment of previous conviction (Final judgments of previous convictions for felonies are admissible to prove an essential element of the action.)
• Judgments Involving Personal, Family, or General History, or a Boundary

Question 61

Under the Sixth Amendment’s Confrontation Clause, in a criminal case “testimonial” hearsay statements are NOT admissible UNLESS:

Answer 61

• declarant is unavailable, AND

- defendant had an opportunity to cross-examine the declarant about the statement

Question 62

What constitutes inadmissible “Testimonial” hearsay under the Confrontation Clause? (unless declarant unavailable AND D had opportunity to cross-exam)

Answer 62

hearsay statement about past events that the declarant reasonably expected would be used in a subsequent prosecution, typically, made to police or government employee, or made in a “formal” setting, like in a courtroom, deposition of the like.

Question 63

Under what exceptions will testimonial hearsay be admitted even if the declarant is unavailable or the D didn’t have a chance to cross-examine?

Answer 63

• ongoing emergency
• dying declarations
• child witness testifying via closed circuit
• Chemical Analysis Report With “Notice and Demand” Statute
• Waiver: Forfeiture by wrongdoing

Question 64

what are the forms of extrinsic authentications (sponsoring witness required)?

Answer 64

• Direct Evidence - someone with personal knowledge of, or familiarity with the item, or a “custodian of records” testifies to authenticate the item
• circumstantial evidence: chain of custody, ancient documents rule (20+ years old and found in circumstances suggesting authenticity), other distinctive characteristics
• Handwriting authentication (by layperson with familiarity (not acquired for litigation); by comparison by expert w/ person’s known writing sample; by comparison by trier of fact)
• Voice authentication: Opinion of person who has heard speaker at any time, even if familiarity is acquired for the litigation

Question 65

Which types of evidence are self-authenticating, meaning they need no foundation witness to prove they’re genuine?

Answer 65

CONTAC

• Certified Documents
• Official publications
• Newspapers and Periodicals
• Trade Inscriptions
• Acknowledged documents (notarized)
• Commercial paper (negotiable instruments; bills of lading)

Question 66

What is the Original Document Rule / Best Evidence Rule?

Answer 66

Where the contents of a doc are in issue, the original of the doc is required (no testimony as to the contents), unless the original is excused.
o The Best Evidence Rule is broadly defined as it covers every tangible process to record words, pictures, and sounds
-duplicate admissible to same extent as original unless genuine issue of authenticity

Question 67

When is an original not required, and other evidence of a writing, recording, or photograph admissible?

Answer 67

CLOTS
C: Collateral
• Where the writing, recording, or photograph is not closely related to a controlling issue (i.e., the witness merely refers to a writing, but not to prove its contents).
L: Lost
• All the originals have been lost or destroyed, unless the proponent lost or destroyed them in bad faith.
O: Opponent
• The opponent has possession of the original and has refused to deliver it (even upon notice by the pleadings or by the court).
T: Testimony or admission by opponent
S: Subpoena
The original cannot be obtained by any available judicial procedure.