Evidence

Question 1

Preliminary Questions

Answer 1

Judge determines:

1. Witness Qualifications
2. Privilege
3. Admissibility of evidence

Question 2

Defendant’s Character evidence (CRIMINAL)

Answer 2

D’s prior acts are generally inadmissible to prove that D acted in conformity with character, but may be admissible if independently relevant: MIMIC (motive, intent, absence of mistake, identity, common plan/scheme) - subject to 403 balancing.

D may introduce opinion/reputation witnesses of his own good character if relevant.
P may rebut with opinion/reputation evidence for pertinent trait once D opens door.

ON CROSS-EXAM: P may introduce specific acts during cross-exam with “Have you heard?” “Did you know?” to impeach D’s witnesses (no extrinsic evidence)

When D testifies, his character for truthfulness becomes at issue.

Types of evidence: Reputation; Opinion; Specific Acts

Question 3

Defendant’s Character Evidence (CIVIL)

Answer 3

Inadmissible unless:

1. Directly in issue;
2. Essential element of claim or defense

Question 4

Ways to Impeach Witness

Answer 4

1. Prior inconsistent statement (can come in for truth/substantively - if given under oath AND part of trial/hearing/deposition/other proceeding)
2. Bias/Motive to misrepresent (extrinsic evidence ok)
3. Prior Conviction
   - Dishonest/False statement, e.g., perjury, can be used regardless of felony/misdemeanor
   - Felony punishable by more than one year (subject to 403) and less than 10 years old from date or release or date of conviction, whichever is later.
4. Specific acts of misconduct (ok to inquire on cross for truth/untruthfulness, but NO EXTRINSIC EVIDENCE)
5. Bad reputation in community for truthfulness or veracity (extrinsic evidence OK).

Question 5

Non-Hearsay

Answer 5

Statements that aren’t offered for their truth:

1) Verbal Acts
2) Statements to show Declarant’s knowledge
3) Statements to show effect on listener
4) Statements to impeach

Question 6

Hearsay Exclusions (not hearsay)

Answer 6

Are being offered for their truth but not hearsay:

1) Statements of opposing party
2) Certain prior statements by testifying witnesses subject to cross examination
- - Prior inconsistent statements made under oath
- - Prior Identifications
- - Prior consistent statements that rehabilitate

Question 7

Hearsay Exceptions

Answer 7

1. Present sense impression - statement describing/explaining an event, made while the declarant was observing the event, or immediately thereafter.
2. Excited Utterance
3. Statement showing mental/physical condition
4. Statements made for medical diagnosis or treatment
5. Recorded Recollection
6. Business Records
7. Former testimony (requires unavailability of declarant)
8. Dying declarations (requires unavailability of declarant)
9. Statements against interest (requires unavailability of declarant)