Evidence

Question 1

Test for Relevance

Answer 1

does it end to make the existence of any fact of consequences to the determination of the action (materially) more or less probable than it would be without the evidence (probativeness)?

Question 2

Exceptions for relevance

Answer 2

• to prove causation
• prior false claims
• similar accidents caused by the same condition
• rebutting a claim of impossibility
• habit
• business routine and industrial custom

Question 3

Policy based relevance (this evidence will be excluded for social policy reasons)

Answer 3

• liability insurance
• subsequent remedial measures
• settlement offers
• payments or offers to pay medical expenses
• withdrawn guilty pleas

Question 4

Liability insurance

Answer 4

(evidence excluded for social policy reasons)

• inadmissible to prove negligence or other wrongful action
• admissible to prove ownership or control, impeachment, or as part of an admission of liability

Question 5

Subsequent Remedial Measures

Answer 5

(evidence excluded for social policy reasons)

• inadmissible to prove negligence, culpable conduct, or defect
• admissible to prove ownership or control, feasibility of the repair, or destruction of evidence

Question 6

Settlement Offers and accompanying admissions of fact

Answer 6

(evidence excluded for social policy reasons)

• inadmissible to prove or disprove validity or amount of disputed claim, or to impeach by prior inconsistent statement or contradiction
• exception: preexisting information not protected

Question 7

Payments or offers to pay medical expenses

Answer 7

(evidence excluded for social policy reasons)

• inadmissible to prove liability
• note: accompanying statements of fact are admissible

Question 8

Discretionary Relevance (Rule 403 balancing test)

Answer 8

judge has broad discretion to exclude relevant evidence if its probative value is substantially outweighed by:

1. unfair prejudice
2. confusion of issues
3. misleading the jury
4. undue consumption of time

Question 9

Methods permitted for character evidence

Answer 9

1. reputation testimony
2. opinion testimony
3. specific acts - if character is directly at issue
   MIMIC
   Motive
   Intent
   Mistake, absence of
   Identity
   Common plan or scheme

Question 10

Character evidence in criminal cases

Answer 10

• defendant may introduce evidence of his own good character to show innocence
• prosecution can introduce defendant’s bad character when:
  1. rebuttal if door is opened by defendant
  2. specific acts that independently relevant (MIMIC)
  3. specific similar acts by defendant in sexual assault or child molestation cases
  4. character of the victim
  a. defendant may introduce if relevant to his innocence
  b. prosecution may rebut with defendants bad character for same trait or victims good character for same trait.

Question 11

Character evidence in civil cases

Answer 11

• generally not admitted
• exceptions: when character is directly in issue (ex; defamation, negligent hiring); similar acts in a sexual assault or child molestation case; or specific acts that are independently relevant MIMIC

Question 12

Types of real evidence

Answer 12

1. direct
2. circumstantial
3. original
4. prepared

Question 13

Authentication

Answer 13

• recognition testimony by witness = if item has recognizable features
• chain of custody = if evidence is a type likely to be confused or if it can be easily tampered with;
  a. proponent must show that the object has been held in a substantially unbroken chain of possession
  b. need not negate all possibilities of substitution o tampering, but must show adherence to some system of identification and custody

Question 14

What to authenticate

Answer 14

1. writings must be authenticated by proof showing they are what the proponent claims they are (unless self-authenticating)
2. authenticated by stipulation, evidence of authenticity
3. oral statements - only when important

Question 15

standard for authentication

Answer 15

proof sufficient to support a jury finding of genuineness

Question 16

Best Evidence Rule

Answer 16

• in proving the terms of a writing (including a photo, recording. x-ray) where the terms are material, the original must be produced
• secondary evidence is allowed only if the original is unavailable for some reason other than the serious misconduct of the proponent

Question 17

When does the Best Evidence Rule apply?

Answer 17

1. when the writing is a legally operative or dispositive instrument (contract/deed/will/divorce)
2. when the witness’s knowledge of a fact comes from having read it in the document (if the fact exists independently of a writing, the best evidence rule does NOt apply)

Question 18

Requirements for all witnesses to testify

Answer 18

1. personal knowledge of the subject matter
2. sworn oath of affirmation that witness will be truthful
3. all witnesses presumed competent (no age requirement)

Question 19

Dead Man Act

Answer 19

1. not recognized by Federal rules, statutes vary by state
2. may bar interested person from testifying in a civil case to a communication with a deceased, if such testimony is offered against the representative of the deceased
3. many exceptions to act and door openers

Question 20

Lay Opinion Testimony

Answer 20

1. Requirements = rationally based on the witness’s perception, helpful to the jury, and NOT based on scientific or technical knowledge
2. examples:
   - general appearance or condition of person
   - state of emotion
   - speed of moving object
   - intoxication
   - sanity
   - voice or handwriting identification

Question 21

Expert Opinion Testimony

Answer 21

1. is the subject matter one where expert testimony would assist the trier of fact (court determines reliability “daubert test”)
2. is the expert qualified on the subject
3. does the expert possess reasonable probability regarding her opinion?
4. is the opinion supported by a proper factual basis (personal observation/facts made known at trial/ facts supplied outside courtroom of a type reasonably relied upon by experts in the field)

Question 22

who can attack credibility of a witness?

Answer 22

Any party may attack the credibility of any witness, even it own.

Question 23

Common methods of impeachment

Answer 23

1. prior inconsistent statement
2. bias
3. prior conviction of crime (any crime involving dishonesty or false statement, any other felony, 10 year rule)
4. prior bad acts (must be probative of truthfulness “act of deceit” and cross exam only, no extrinsic evidence)
5. opinion or reputation evidence of untruthfulness
6. sensory deficiencies
7. contradictory facts

Question 24

Privileged Testimony

Answer 24

1. attorney client privilege
2. spousal immunity
3. marital communications
4. social worker client privilege
5. clergy-patient privilege
6. governmental privileges
7. if not one of those, does state law apply with respect to privileges, ex: diversity case

Question 25

Attorney Client Privilege

Answer 25

• client must be seeking attorney’s services at the time of the communications
• confidential = not intended to be disclosed to third parties
• termination of attorney client relationship does not terminate privilege, survives death
• special rules for corporate clients

Question 26

When does attorney client privilege not apply?

Answer 26

1. where client seeks legal advice in aid of crime or fraud
2. parties claiming through the same deceased client
3. dispute between attorney and client ex: malpractice
4. client puts legal services at issue

Question 27

physician patient privilege

Answer 27

• no federal privilege, but recognized in many states
• information must be acquired while professional relationship exists, while attending patient, and information must be necessary for treatment

Question 28

When does physician patient privilege not apply?

Answer 28

1. dispute between physician and patient ex: malpractice

2. patient puts physical injury condition at issue ex: personal injury lawsuit

Question 29

Spousal Immunity

Answer 29

(privilege not to testify in a CRIMINAL CASE)

1. applies only in criminal cases
2. privilege belongs to witness-spouse under Fed Rules
3. can only be asserted during marriage, although the matters at issue may have occurred prior to the marriage

Question 30

Confidential marital communications privilege

Answer 30

(protects communications only, not observations, etc.)

1. applies in both civil and criminal cases
2. privilege belongs to both spouses
3. communications must have been made during a valid marriage , but divorce will not terminate the privilege retroactively

Question 31

Exceptions to marital privileges

Answer 31

neither privilege applies in:

1. legal actions between the spouses
2. cases involving crimes against the testifying spouse or wither spouse’s children
3. in furtherance of joint crime or fraud

Question 32

is the statement hearsay?

Answer 32

1. was there an out of court statement
2. is it being offered for its truth or for some other purpose?
   a. if offered for its truth = hearsay
3. hearsay within hearsay - both inner and outer hearsay statements must fall within an exception

Question 33

Non-Hearsay

Answer 33

1. statement by an opposing party/ admission of a party-opponent
2. prior inconsistent statement of testifying witness - when made under oath at a prior proceeding or deposition
3. prior consistent statement of testifying witness - in certain circumstances when offered to rehabilitate an impeached witness
4. prior statement of identification of testifying witness ex: photo identification

Question 34

Admission of Party-Opponent

Answer 34

1. a statement by or attributable to a party, offered against that party
2. adoptive statements (ex: silence when accused)
3. vicarious statements (ex: made by the party’s authorized spokesperson, agent, or co-conspirator, etc)

Question 35

Hearsay Exceptions

Answer 35

Declarant must be unavailable to testify

1. former testimony under oath
2. statement against interest
3. dying declarations (homicide and civil cases only)
4. statement of personal or family history
5. statement against party procuring unavailability

Question 36

Common exceptions where the declarant’s unavailability is immaterial

Answer 36

1. excited utterance
2. present sense impression
3. then-existing state of mind/emotion/sensation
4. exceptions relating to bodily conditions
5. business records
6. recorded recollection
7. official records
8. ancient documents
9. learned treatises
10. statements in docuetsaffectin an interest in prop
11. catch all exception
    i. guarantees of trustworthiness
    ii. statement is strictly necessary
    iii. notice given to adversary

Question 37

Confrontation Clause

Answer 37

A hearsay statement offered against the accused in a criminal case is barred by the confrontation clause even if it falls within a hearsay exceptions if:

1. declarant is unavailable
2. statement was testimonial in nature and
3. the accused had no opportunity to cross-examine the testimonial statement prior to trial

Question 38

What is a testimonial statement under the confrontation clause?

Answer 38

1. statement made in course of a police investigation when the primary purpose is to establish facts potentially relevant to a later criminal prosecution
   
   • statements made to assist police in an ongoing emergency are non testimonial statements
2. affidavits or written reports of forensic analysis

Question 39

Confrontation clause rights forfeited

Answer 39

if the defendant commits a wrongful act intended to keep the witness from testifying at trial