EVIDENCE

Question 1

LOGICAL RELEVANCE

Answer 1

Evidence must be relevant in order to be admissible. Evidence is relevant if it is both:

1. Probative (evidence is probative if it has any tendency to make a fact more or less probable); AND
2. Material (evidence is material if it is a fact of consequence in determining the outcome of the action).

Question 2

LEGAL RELEVANCE

Answer 2

The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.

Question 3

POLICY EXCLUSION: SUBSEQUENT REMEDIAL MEASURES

Answer 3

Subsequent remedial measures are NOT admissible to prove negligence, defective product design, or culpable conduct. However, subsequent remedial measures are admissible to show agency, ownership, or control of property or for impeachment purposes.

Question 4

POLICY EXCLUSION: COMPROMISE OFFERS OR SETTLEMENT NEGOTIATIONS

Answer 4

Offers, conduct, or statements made during negotiations to settle or compromise are NOT admissible to prove a disputed claim, to prove an amount, or for impeachment purposes.

Question 5

POLICY EXCLUSION: OFFERS TO PAY MEDICAL EXPENSES

Answer 5

Offers to pay medical expenses are NOT admissible to prove liability for the plaintiff’s injuries. However, any conduct or statements accompanying the offer to pay are admissible (e.g., factual admissions accompanying an offer to pay are admissible).

Question 6

POLICY EXCLUSION: GUILTY PLEAS

Answer 6

Absent a KNOWING and VOLUNTARY waiver from the defendant, the following are NOT admissible against the defendant:

1. Withdrawn guilty pleas;
2. No contest pleas;
3. Statements made while negotiating with prosecutors; AND
4. Statements made during plea negotiations.

However, pleas and statements made during negotiations are admissible if fairness dictates or for perjury hearings.

Question 7

POLICY EXCLUSION: LIABILITY INSURANCE

Answer 7

Evidence that a person was or was not insured against liability is NOT admissible to prove whether the person acted negligently or otherwise wrongfully. However, the court may admit this evidence for another purpose, such as proving a witness’s bias or prejudice or proving agency, ownership, or control.

Question 8

THREE FORMS OF CHARACTER EVIDENCE

Answer 8

Character evidence is evidence of a person’s character or a person’s specific character trait (e.g., he is violent; she is honest; he is a reckless driver; etc.). There are three forms of character evidence that can be presented:

1. Reputation in the community (e.g., “Everyone in the community knows Johnny is violent.”);
2. Opinion testimony (e.g., “I personally think Johnny is a violent person.”); AND
3. Specific Instances (e.g., “I saw Johnny get into a bar fight last weekend.”)

Question 9

APPLICATION OF CHARACTER EVIDENCE IN CIVIL CASES

Answer 9

In civil cases, character evidence is NOT admissible for propensity purposes (i.e., evidence of someone’s character cannot be introduced to show that they have the propensity to act in accordance with the alleged character trait), UNLESS:

1. Character is an essential element of a claim or defense (e.g., defamation, negligent hiring, negligent entrustment, child custody, etc.); OR
2. The case is based on the defendant’s sexual misconduct.

Question 10

CHARACTER IS AN ESSENTIAL ELEMENT OF THE CLAIM OR DEFENSE IN A CIVIL CASE

Answer 10

If character is an essential element of a claim or defense in a civil case (e.g., defamation, negligent hiring, negligent entrustment, child custody, etc.), character evidence is admissible for propensity purposes. It may be shown by reputation, opinion testimony, OR SPECIFIC INSTANCES OF CONDUCT.

Question 11

CIVIL CASES BASED ON THE DEFENDANT’S SEXUAL MISCONDUCT

Answer 11

If a civil case is based on the defendant’s sexual misconduct, character evidence is admissible for propensity purposes. The defendant’s propensity for sexual misconduct may be shown by evidence of a past sexual assault by the defendant.

Question 12

APPLICATION OF CHARACTER EVIDENCE IN CIVIL CASES

EXCEPTIONS

Answer 12

1. Character is an essential element of a claim or defense (e.g., defamation, negligent hiring, negligent entrustment, child custody, etc.); OR
2. The case is based on the defendant’s sexual misconduct.

Question 13

APPLICATION OF CHARACTER EVIDENCE IN CRIMINAL CASES

Answer 13

In criminal cases, the prosecution CANNOT introduce evidence of a defendant’s bad character to prove that the defendant has the propensity to have committed the crime in question

Question 14

DEFENDANT OPENS THE DOOR

Answer 14

, the defendant may “open the door” and present positive character evidence so long as it is: (1) pertinent to the crime charged; and (2) through reputation or opinion testimony (not specific instances of conduct). If the defendant opens the door by presenting evidence of positive character, the prosecution may then introduce negative character evidence (must relate to the same character trait in question) to rebut the defendant in two different ways.

1. Call its own character witness (the witness is limited to reputation) or opinion testimony (not specific instances of conduct); OR
2. Cross-examine the defendant’s character witness (on cross-examination, the prosecution can introduce evidence of specific instances so long as it relates to the same character trait in question).

Question 15

PRESENTING CHARACTER EVIDENCE OF A VICTIM

Answer 15

A criminal defendant may introduce reputation or opinion testimony of the victim’s character if it is relevant to one of the defenses asserted (with an exception for cases involving rape). If the defendant does so, the prosecution may rebut by presenting evidence that:

1. The defendant possesses the same character trait; OR
2. The victim possesses a relevant positive character trait.

Question 16

EVIDENCE OFFERED TO PROVE A VICTIM’S SEXUAL BEHAVIOR

Answer 16

In criminal cases involving rape, evidence offered to prove a victim’s sexual behavior or predisposition is NOT admissible. However, in civil cases involving sexual misconduct, evidence offered to prove a victim’s sexual behavior or misconduct may be admissible if its probative value substantially outweighs the danger of harm to the victim and unfair prejudice to any party.

Question 17

M.I.M.I.C.

Answer 17

Specific instances of conduct are generally NOT admissible to show propensity, but are admissible to show (M.I.M.I.C.): motive or opportunity, intent, absence of mistake, identity, or common plan or preparation.
Specific instances of conduct are admissible for MIMIC purposes if:

1. There is sufficient evidence to support a jury finding that the defendant committed the prior act (i.e., cannot “fish” for prior acts without proof); AND
2. The probative value of the specific instances of conduct is NOT substantially outweighed by the danger of unfair prejudice to the jury.

Question 18

HABIT AND ROUTINE PRACTICES

Answer 18

Evidence of a person’s habit (e.g., putting on a seatbelt) or an organization’s routine practice (e.g., filing certain paperwork) may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice.

Question 19

IMPEACHMENT BY CHARACTER EVIDENCE OF UNTRUTHFULNESS

Answer 19

A witness’s credibility may be attacked by introducing character evidence of the witness’s untruthfulness through reputation or opinion testimony. A witness’s credibility CANNOT be bolstered [evidence of truthful character may not be introduced until credibility has first been attacked]. On cross-examination, a witness’s credibility may be attacked with specific instances of conduct, provided that:

1. The specific instance regards the truthfulness of the witness;
2. There is a good faith belief in the prior misconduct; AND
3. The specific instance does not involve an arrest or a consequence of an arrest.

Question 20

IMPEACHMENT BY PRIOR CONVICTIONS

Answer 20

Evidence of a prior felony or misdemeanor conviction involving dishonesty is usually always admissible to attack a witness’s credibility [subject to the 10-year restriction]. Evidence of a prior felony [crime is punishable by death or imprisonment for more than 1 year] that does NOT involve dishonesty is admissible if it is legally relevant [i.e., probative value is not substantially outweighed by the danger of unfair prejudice]. However, if more than 10 years has elapsed since conviction or release [whichever is later] of any crime, the prior conviction is subject to a reverse legal relevance test. The party introducing the evidence must show that the probative value of the conviction substantially outweighs the danger of unfair prejudice.

Question 21

IMPEACHMENT BY PRIOR INCONSISTENT STATEMENTS

Answer 21

A witness’s credibility may be attacked by introducing the witness’s prior inconsistent statements. Extrinsic evidence may only be introduced if the witness is given an opportunity to explain or deny the prior inconsistent statement. However, extrinsic evidence of a prior inconsistent statement cannot be used to attack the witness’s credibility regarding a collateral matter (i.e., an irrelevant matter).

Question 22

IMPEACHMENT BY SENSORY COMPETENCE

Answer 22

A witness’s credibility may be attacked by showing that the witness has a deficiency in her ability to perceive, recall, or relate information (e.g., vision loss, memory loss, etc.) that is not collateral (i.e., must be a relevant matter).

Question 23

IMPEACHMENT OF A HEARSAY DECLARANT

Answer 23

When a hearsay statement has been admitted in evidence, the declarant’s credibility may be attacked, and then supported, by any evidence that would be admissible for those purposes if the declarant had testified as a witness. The court may admit evidence of the declarant’s inconsistent statement or conduct, regardless of when it occurred or whether the declarant had an opportunity to explain or deny it. If the party against whom the statement was admitted calls the declarant as a witness, the party may examine the declarant on the statement as if on cross- examination.

Question 24

LAY WITNESS TESTIMONY

Answer 24

If a witness is NOT testifying as an expert (i.e,. a lay witness), testimony in the form of an opinion is limited to one that is:

1. Rationally based on the witness’s perception;
2. Helpful to clearly understanding the witness’s testimony or to determining a fact in issue; AND
3. Not based on scientific, technical, or other specialized knowledge within the scope of requirements for an expert witness.

Question 25

EXPERT WITNESS TESTIMONY

Answer 25

Expert witnesses may testify in the form of an opinion or otherwise if:

1. The expert witness is qualified by possessing sufficient knowledge, skill, experience, training, or education;
2. The expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
3. The testimony is based on sufficient facts or data;
4. The testimony is the product of reliable principles and methods; AND
5. The expert has reliably applied the principles and methods to the facts of the case.

Question 26

SPOUSAL IMMUNITY

Answer 26

A witness in a valid marriage may refuse to testify against his or her spouse in any criminal proceeding (including a grand jury).

Question 27

CONFIDENTIAL MARITAL COMMUNICATIONS

Answer 27

Communications between spouses are privileged, and may be asserted by either spouse in both criminal and civil proceedings (even if the parties are no longer married), if the communications were:

1. Made during the course of a valid marriage; AND
2. Intended to be confidential.

Question 28

ATTORNEY-CLIENT PRIVILEGE

Answer 28

Communications (not sought to further a crime or fraud) between an attorney and a client or a person seeking to become a client are privileged if the communications were:

1. Made to facilitate legal services; AND
2. Intended to be confidential.

Question 29

WAIVER OF ATTORNEY-CLIENT PRIVILEGE

Answer 29

The client holds the attorney-client privilege and it exists until the client waives it [even after the client’s death]. Intentional disclosure of confidential communications to a third party constitutes a valid waiver of attorney-client privilege. Inadvertent disclosure does NOT waive privilege if the client took reasonable steps to prevent and rectify the disclosure.

Question 30

AUTHENTICATION

Answer 30

All tangible evidence must be authenticated. Tangible evidence is any evidence not presented as oral or verbal testimony (e.g., letters, contracts, weapons, drug paraphernalia, videos, photographs, etc.). Authentication requires that a party show that the item being introduced as evidence is what the party claims it to be.

Question 31

AUTHENTICATION OF PHYSICAL EVIDENCE

Answer 31

Physical evidence (e.g., weapons, clothing, videotapes, etc.) may be authenticated through a witness with personal knowledge of the object or a witness that can establish a chain of custody for the object (i.e., witness can verify the whereabouts of the evidence from collection to trial).

Question 32

AUTHENTICATION OF DOCUMENTARY EVIDENCE

Answer 32

Documentary evidence (e.g., letters, contracts, etc.) may be authenticated through stipulation (both parties agree), witness testimony, or handwriting verification.
An expert witness or trier of fact can verify handwriting by comparing the writing in question with another writing that has been proven to be genuine. A non-expert witness with personal knowledge of the handwriting in question can verify the handwriting (e.g., a father may be able verify his son's handwriting). A non-expert cannot become familiar with the handwriting in order to prepare for litigation.

Question 33

SELF-AUTHENTICATING DOCUMENTS

Answer 33

The following documents are self-authenticating and do NOT require extrinsic proof of authenticity:

1. Public documents bearing a seal;
2. Certified copies of public records;
3. Official publications issued by a public authority;
4. Newspapers and periodicals;
5. Notarized documents;
6. Commercial paper;
7. Trade inscriptions (i.e., affixed signs, tags, or labels indicating origin, ownership, or control - e.g., clothing tags); AND
8. Records of regularly conducted business activity certified by a custodian of the records.

Question 34

BEST EVIDENCE RULE (ORIGINAL DOCUMENT RULE)

Answer 34

A party MUST provide the original document [applies to writings, recordings, photographs, electronic documents, x-rays, and videos] or an accurate duplicate when:

1. The contents of the document are at issue; OR
2. The witness is relying on the document when testifying.

A handwritten copy of an original is NOT an accurate duplicate and is only admissible when the original or duplicate is lost, destroyed, or otherwise unobtainable.

Question 35

HEARSAY IN GENERAL

Answer 35

Hearsay is an out-of-court statement that is offered to prove the truth of the matter asserted. Hearsay is NOT admissible UNLESS it falls under a valid exception. A “statement” includes a person’s oral assertions, written assertions, or nonverbal conduct if the person intended the conduct as an assertion (e.g., head nod, thumbs up, etc.).

Question 36

NON-HEARSAY: OUT-OF-COURT STATEMENTS NOT OFFERED TO PROVE THE TRUTH OF THE MATTER ASSERTED

Answer 36

If an out-of-court statement is NOT offered to prove the truth of the matter asserted, the statement is NOT hearsay and is admissible.
Common examples of statements that are NOT offered to prove the truth of the matter asserted (thus are admissible) include:

1. Verbal acts of independent legal significance [i.e., the statement is offered to prove that the statement itself was made, irrespective of its truth - e.g., defamatory statements, threats, etc.];
2. Statements offered to show the effect on the listener;
3. Statements offered to show the declarant’s mental state or state of mind; AND
4. Statements offered for impeachment purposes.

Question 37

NON-HEARSAY: PRIOR INCONSISTENT STATEMENTS

Answer 37

Prior inconsistent statements are admissible for SUBSTANTIVE PURPOSES if:

1. The declarant is testifying at trial and is subject to cross-examination;
2. The statements were previously made under penalty of perjury (i.e., under oath); AND
3. The prior statements are inconsistent with present testimony being given at trial.

If the statements were not previously made under penalty of perjury, they can be offered ONLY FOR impeachment purposes (not substantive purposes).

Question 38

NON-HEARSAY: PRIOR CONSISTENT STATEMENTS

Answer 38

Prior consistent statements are admissible to rebut a claim that the declarant is fabricating or has a recent motive to fabricate the statement in court if:

1. The declarant is testifying at trial and is subject to cross-examination; AND
2. The prior consistent statement was made before the declarant had a motive to fabricate the statement.

Question 39

NON-HEARSAY: PRIOR STATEMENTS OF IDENTIFICATION

Answer 39

Prior statements of identification (e.g., prior out-of-court identifications in lineups, photo arrays, etc.) are admissible for substantive purposes if the declarant is testifying at trial and is subject to cross-examination.

Question 40

NON-HEARSAY: ADMISSIONS BY A PARTY OPPONENT

Answer 40

Admissions by a party opponent (prior out-of-court statements made by a party to the current litigation that are offered by the opposing party) are admissible as non-hearsay. Silence is considered an adoptive admission if the party heard and understood the statement and remained silent where a reasonable person would have denied the statement. Statements made by an authorized spokesperson, an agent within the scope of and during the agency relationship, or co-conspirators during and in furtherance of the conspiracy are considered vicarious admissions and are imputed on the party opponent.

Question 41

THE UNAVAILABILITY REQUIREMENT FOR HEARSAY EXCEPTIONS

Answer 41

A declarant is deemed to be unavailable as a witness if the declarant:

1. Is exempted from testifying because the court rules that a privilege applies;
2. Refuses to testify despite a court order to do so;
3. Testifies to not remembering the subject matter;
4. Cannot be present or testify because of a death or then-existing infirmity, physical illness, or mental illness; OR
5. Is absent and the statement’s proponent has not been able, by process or other reasonable means to procure the declarant’s attendance.