Evidence

Question 1

On what grounds can a court exclude relevant evidence (Rule 403)?

Answer 1

If it’s probative value is substantially outweighed by 1. The danger of unfair prejudice

2. Cumulative evidence
3. Waste of time (undue delay)
4. Confusion of the issues (misleading the jury)

NB “unfair surprise” is not a grounds for exclusion under FRE

Question 2

What kinds of facts may courts take judicial notice of?

Answer 2

A court may take judicial notice of facts which are

1. capable of accurate and ready determination (eg looked up in some sort of reference)
2. common knowledge within the jurisdiction of the court

Question 3

What is the effect of a judge taking judicial notice of a fact in a civil case?

Answer 3

It is conclusive and binding on a jury

Question 4

In a criminal case, what is the effect of a court taking judicial notice of a fact?

Answer 4

The prosecution’s burden of producing evidence on that point is satisfied (not binding on jury)

Question 5

What does the Best Evidence Rule say?

Answer 5

When trying to establish the contents of a writing, recording, or photograph, the original must be produced or it must be shown to be unavailable (basically: we have a preference for the original)

Question 6

Handwriting can be authenticated by

Answer 6

1. A person with familiarity before trial (can’t become familiar for purposes of trial)
2. An expert
3. The trier of fact (jury)

Question 7

A person’s voice can be authenticated by

Answer 7

1. Someone with familiarity — before trial or for purposes of trial
2. An expert
3. Trier of fact (jury compares)

Question 8

Five rules for character evidence in a criminal case

Answer 8

1. No propensity evidence unless Defendant opens door: Without D opening the door, the Pros. cannot introduce any reputation or opinion evidence of the Defendant’s bad character if the purpose is to show that D probably acted in conformity with that character and therefore committed the crime charged (unless falls under sexual assault/child molestation exception)
2. Defendant can present evidence of a RELEVANT good character trait through reputation or opinion evidence: to establish that he acted in conformity with that character and did not commit the crime —> if defendant intros this evidence, limited to reputation or opinion evidence only (no specific acts)
3. If defendant “opens the door” then and only then may prosecution rebut with reputation or opinion evidence
4. Evidence of prior crimes or bad acts are NEVER admissible to show D probably acted unlawfully again and committed the crime charged, but may be admissible to prove another point in the case (MIMIC - motive, intent, mistake (absence of), identity, common plan or scheme). The defendant must be contesting the issue pros. wants to prove (e.g. intent). The prosecution may use it in their case-in-chief but have to give notice to defense. They may use extrinsic evidence to prove it.
5. If Defendant testifies, automatically places his character for truthfulness in issue—and then Prosecution can always attempt to impeach

Question 9

Rules for character evidence in a civil case

Answer 9

1. Inadmissible to show propensity UNLESS directly in issue or essential element of plaintiff’s claim or defense (e.g. defamation (plaintiff), child custody (parents’), fraud (defendant), negligent entrustment (employee)

OR falls under sexual assault/child molestation exception

→ if it is, plaintiff may use reputation, opinion, AND bad act evidence

2. If a litigant has some other purpose than propensity for the introduction of character evidence, the rule prohibiting character evidence will not keep it out (similar to MIMIC in criminal case)
3. If a party testifies, she automatically places her character for truthfulness or untruthfulness in issue

Question 10

Acceptable ways to introduce bad acts as evidence against defendant

Answer 10

MIMIC
Motive, intent, mistake (absence of), identity, common plan/scheme

Question 11

Impeaching a defendant through extrinsic evidence?

Question 12

5 main methods of impeachment (turn into 5 cards also)

Answer 12

1. prior inconsistent statement
2. bias or motive to misrepresent (always admissible, extrinsic evidence allowed if witness denies)
3. prior conviction
   (can’t be too remote [more than 10 years from the date of release from confinement for the conviction].

→ if involving dishonesty or false statement, it comes in, no discretion for trial judge.

→ if felony, may come in, but judge has discretion to exclude)

→ stricter balancing test to impeach a witness who is the criminal defendant - favors exclusion

4. specific acts of misconduct which bear on truthfulness or untruthfulness (may be inquired into on CROSS to impeach, but court may use discretion to exclude if value outweighed by other considerations) (NO extrinsic evidence allowed if the defendant (witness?) denies the specific act)
5. reputation or opinion evidence of untruthfulness (may be proven by extrinsic evidence)

(comes in only for impeachment - as well as substantive truth ONLY if given under oath as part of a legal proceeding)

Question 13

2 instances in which jurors are considered incompetent to testify

Answer 13

1. in front of the jury on which they are impaneled
2. post-verdict proceedings as to certain matters involving jury deliberations

Question 14

Nine most commonly tested hearsay exceptions

Answer 14

1. present sense impression
2. excited utterance
3. statement concerning mental or physical condition
4. statement made for purposes of medical diagnosis or treatment
5. recorded recollection
6. business records
   FOR THE FOLLOWING, NEED UNAVAILABILITY OF WITNESS AT TIME OF TRIAL (PRISM)
7. former testimony
8. dying declarations
9. statements against interest

Question 15

statements that are NOT hearsay

Answer 15

1. admissions by party opponent
2. prior statements of a testifying witness
   a. prior sworn inconsistent statements
   b. prior consistent statements
   c. prior identifications (if made by TESTIFYING witness subject to cross-X)

Question 16

requirements for dying declaration exception (4)

Answer 16

1. belief by speaker that death is imminent
2. statement concerning cause/circumstances surrounding death
3. declarant must be UNAVAILABLE
4. can be any civil case OR criminal homicide (no other criminal cases)

Question 17

excited utterance

Answer 17

1. statement made related to a startling event
2. made while the declarant was still under the stress of the event
3. declarant MAY be available

Question 18

requirements for present sense impression

Answer 18

1. statement describing or explaining an event
2. made while the speaker was observing or perceiving the event OR immediately thereafter
3. declarant MAY be available

Question 19

OOC statement about nature of injury or medical condition can come in if

Answer 19

it relates to medical diagnosis or treatment (usually given to medical personnel)

Question 20

when part of a statement is introduced, the adverse party may introduce any other portion of the statement if

Answer 20

it ought to be considered in fairness

Question 21

requirements for business records exception

Answer 21

1. the declarant must have PK of the facts stated OR
2. must have received the info from someone with PK who transmitted it in the ordinary course of business
3. Presence of the author of the record not required, but need the CUSTODIAN of the records

Question 22

vicarious admission

Answer 22

statements by an agent, concerning any matter within the scope of his agency and made WHILE he was an agent, are admissible against the principal as an admission

Question 23

statements made in conjunction with offer to settle admissible?

Answer 23

inadmissible under FRE

Question 24

statements made in connection with offer to pay medical expenses admissible?

Answer 24

admissible

Question 25

state of mind exception

Answer 25

circumstantial evidence offered to show the declarant’s then-existing state of mind, emotion, or physical condition

also Hilmon doctrine - can explain intent to do something

Question 26

Lay witnesses can testify to anything that is

Answer 26

rationally-based in their perception (incl. height, speed, etc.)

Question 27

Expert witness can base opinion on

Answer 27

1. personal observation (just like lay witness)
2. authoritative text
3. facts reasonably relied upon by other experts in the field

PK not required

can be based on facts made known to her before or during trial

can’t judge credibility - make judgment based on facts

Question 28

When do FRE not apply?

Answer 28

Except for rules relating to privilege, the Federal Rules do not apply in:

(1) the court’s determination of a preliminary question of fact relating to admissibility
(2) grand jury proceedings; and
(3) other miscellaneous proceedings, including those involving sentencing, extradition, bail, and probation.

Question 29

Define relevance

Answer 29

Evidence is relevant if it has any tendency to make the existence of any fact of consequence to the determination of the action more or less probable

N.B. In an evidence essay question, always explain WHY it’s relevant

Question 30

When may the Prosecution in a criminal case introduce evidence of specific bad acts by the defendant? What are the rules for them to do so?

Answer 30

Evidence of prior crimes or bad acts are NEVER admissible to show D probably acted unlawfully again and committed the crime charged, but

1. may be admissible to prove another point in the case (MIMIC - motive, intent, mistake (absence of), identity, common plan or scheme); AND
2. The defendant must be contesting the issue that the Prosecution wants to prove through use of the evidence (e.g. intent)
3. They must give notice to the defense

The prosecution may use it in their case-in-chief. They may use extrinsic evidence.