Evidence

Question 1

Can a witness be impeached on cross-examination?

Answer 1

Generally, a witness can be impeached on cross-examination by inquiry into a specific act of misconduct that is probative of truthfulness.

Question 2

Can you use extrinsic evidence of bad acts to impeach a witness?

Answer 2

No, the witness may not, however, be impeached by extrinsic evidence of bad acts. If, on cross-examination the witness denies the act, extrinsic evidence cannot be offered to refute the answer.

A witness cannot be impeached by extrinsic evidence of bad acts and calling another witness to testify as to that bad act is impermissible.

Question 3

Under the recorded recollection when can a writing be admitted?

Answer 3

Pursuant to the federal rules of evidence, when a witness has used a writing to refresh his recollection on the stand, the adverse party can introduce that writing into evidence.

Question 4

How can a photograph be admitted?

Answer 4

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 5

Are affidavits testimonial?

Answer 5

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 6

Can witnesses be interrogated about an act of misconduct?

Answer 6

A witness may be interrogated upon cross-examination with respect to an act of misconduct only if it is probative of truthfulness.

Question 7

How can the credibility of a witness be impeached?

Answer 7

The credibility of a witness can be impeached by showing that the witness has made prior statements that are inconsistent with some material part of her present testimony.

Question 8

Can a witness be impeached on cross with a prior act of misconduct?

Answer 8

A witness may be impeached on cross-examination with a prior act of misconduct that is probative of truthfulness even if the misconduct did not result in a conviction.

Question 9

Can recorded recollections be received by the jury as an exhibit?

Answer 9

only if offered by the adverse party

It is true that a recorded recollection may not be received by the jury as an exhibit unless offered by the adverse party; it can only be read into evidence otherwise.

Question 10

How is an opinion by a lay witness admissible? (3 cases)

Answer 10

Opinions by lay witnesses are usually inadmissible.

However, an exception is made if the opinion is:

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

Question 11

Character evidence that describes a person’s disposition is ….

Answer 11

Character evidence that describes a person’s disposition is generally irrelevant and inadmissible in a civil case unless character is directly at issue.

Question 12

What is habit evidence?

Answer 12

Habit evidence describes a person’s regular response to a specific set of circumstances and is admissible to prove that the person acted in conformity with that habit.

Question 13

What can habit evidence prove?

Answer 13

Evidence of habit, if relevant, is admissible to prove that the conduct of a person was in conformity with the habit.

Question 14

What makes evidence relevant? [START ANALYSIS HERE]

Answer 14

Evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

Question 15

Can relevant evidence be excluded?

Answer 15

Even relevant evidence can be excluded by the judge if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, waste of time, or misleading the jury.

Question 16

What is a Dead Man Act?

Answer 16

A typical Dead Man Act provides that a party or person interested in the event, or her predecessor in interest, is incompetent to testify to a personal transaction or communication with a deceased when such testimony is offered against the representative or successor in interest of the deceased.

Such statutes are designed to protect those who claim directly under the decedent from perjured claims.

Question 17

When is a Declarant’s prior statement identifying a person as someone he perceived earlier NOT hearsay?

Answer 17

A declarant’s prior statement identifying a person as someone he perceived earlier is not hearsay if the declarant testifies at trial and is subject to cross-examination about the statement.

Question 18

What is an excited utterance?

Answer 18

An excited utterance is a statement that relates to a startling event and is admissible if it was made under the stress of the excitement caused by the event.

Question 19

What is a present sense impression?

Answer 19

A present sense impression is a statement that describes or explains an event or condition, and is made while or immediately after the declarant perceives the event or condition.

Question 20

What is the Confrontation Clause?

Answer 20

An accrued has a Constitutional 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 to be cross-examined at trial,
  (3) the accused had no opportunity to cross-examine the unavailable declarant’s statements prior to trial and (4) the statement is testimonial in nature.

Question 21

When are statements made during a police interrogation testimonial?

Answer 21

Statements made during police interrogation are testimonial where the primary purpose of the interrogation is to establish or prove past events potentially relevant to the later criminal prosecution.

• However, statements are not testimonial when the primary purpose is to help the police address an ongoing emergency.

Question 22

HEARSAY STARTING POINT

Answer 22

• hearsay is an out-of-court statement offered in court to prove the truth of the matter asserted
• hearsay is inadmissible unless it falls into an exception to the hearsay rule

Question 23

what is hearsay within hearsay?

Answer 23

hearsay within hearsay is an out-of-court statement that incorporates other hearsay and is admissible only if both the outer and inner hearsay statements fall within a hearsay exception

Question 24

how is a record admissible under the business records exception?

Answer 24

• A record [such as a hospital record] is admissible under the business record exception if it was:
  
  • made in the regular course of business
  • the regular practice of the business to make that record
  • made at or near the time of the event
  • made by a person whose duty it was to make the record and who had personal knowledge of the event, and
  • authenticated
• NOT prepared in anticipation of litigation!!!
• QUICK N DIRTY: a record is admissible under the BRE if it was made in the regular course of business, by a person with a duty to report and with knowledge of the event, at or near the time of the event, and authenticated

Question 25

statements made for medical diagnosis or treatment

Answer 25

• A statement that describes a person’s medical history, past or present symptoms, or their cause is admissible as an exception to the hearsay rule IF it was made for and was reasonably pertinent to medical diagnosis or treatment
• NOTE:
  
  • statements assigning blame ≠ admissible
  • does not [but generally is] have to be made to a medical professional [could be a kid telling their mom]

Question 26

marital privileges: confidential communications

Answer 26

• the marital privilege provides that either spouse has a privilege not to testify as to a confidential communication made between the spouses during the marriage
• either spouse may assert [i.e., prevent the other from testifying]
• the communication must be made in reliance of the intimacy of the marital relationship
• the privilege survives the marriage [i.e., survives death or divorce]
• the privilege does not apply if the communication is revealed to a third party
  
  • but note: eavesdroppers don’t count

Question 27

can a hearsay declarant be impeached?

Answer 27

• generally, when hearsay is admitted, the party against whom it’s offered has the opportunity to impeach the credibility of the declarant by evidence that would be admissible if the declarant had testified as a witness
• QUICK N DIRTY: a hearsay declarant may be impeached by any evidence that would’ve been admissible if they had testified as a witness

Question 28

can a witness who denies knowledge of an incident be impeached with their prior inconsistent statement?

Answer 28

• W’s credibility may be attacked by any party
• for purposes of impeaching the credibility of a W, a party may show that the W has, on another occasion, made statements that are inconsistent with some material part of their present testimony
• an inconsistent statement may be proved by either examination of the W or extrinsic evidence
  
  • to prove a prior inconsistent statement by extrinsic evidence, the W generally must be given an opportunity to explain or deny the statement [can be after the statement is introduced] and the statement must be relevant to some issue in the case

Question 29

prior inconsistent statement: when is it nonhearsay?

Answer 29

where a prior inconsistent statement was made under penalty of perjury at a prior trial, hearing, or other proceeding, or in a depo, it is admissible nonhearsay

Question 30

prior identification: nonhearsay

Answer 30

a declarant’s prior statement identifying a person as someone they perceived earlier [including photo IDs] is not hearsay if the declarant testifies at trial and is subject to cross about the statement

Question 31

admissible character evidence

Answer 31

• although character evidence is generally inadmissible to prove a person acted in conformity with a particular character trait, a criminal defendant may introduce evidence of relevant character trait to show their innocence
• witness may testify as to D’s good reputation or give their personal opinion of that trait of D
  
  • cannot testify as to OTHER’S opinions of D; not W’s opinion or community’s

Question 32

subsequent remedial measures: when is/isn’t it admissible?

Answer 32

• evidence of repairs or other precautionary measures made following an injury is inadmissible to prove negligence
  
  • the reason for excluding subsequent repairs is to encourage such repairs
• evidence of subsequent remedial measures is admissible to prove ownership, feasibility of repair, or destruction of evidence

Question 33

offers to settle/compromise

Answer 33

• evidence of a settlement offer is inadmissible to prove liability for a disputed claim [inadmissible to prove validity or amount of claim OR impeach by prior inconsistent statement or contradiction]
  
  • there must be a claim or indication a claim will be made for the exclusion to apply
  • rationale is to encourage settlement of disputes without litigation
• evidence of an offer to settle is admissible to impeach on the ground of bias

Question 34

offer to pay medical expenses

Answer 34

• evidence that a party offered to pay medical expenses is inadmissible to prove liability for the injury
  
  • rationale: such offers are often made for humanitarian purposes
• BUT NOTE: accompanying admissions of fact are admissible

Question 35

evidence of a victim’s past sexual behavior [civil v. criminal]

Answer 35

• generally, a rape victim’s sexual history is inadmissible
• EXCEPTIONS:
  
  • criminal cases: specific instances are admissible to prove someone other than D is the source of semen, injury, or other physical evidence or prior instances of consensual sex between V and D [latter offered by prosecution and defense to prove consent]
  • civil cases: admissible when not excluded by another rule and the probative value substantially outweighs the risk of unfair prejudice and harm to any party