Evidence

Question 1

What facts are subject to judicial notice?

Answer 1

Facts not subject to reasonable dispute because they’re either:

(1) Generally known w/in the territorial jurisdiction of the trial court
(2) Capable of being accurately and readily determined from sources whose accuracy can’t reasonably be questioned

Question 2

With respect to preliminary questions of admissibility, who has the burden of persuasion?

Answer 2

Party offering the evidence (moving party; proponent)

Question 3

What’re the 4 requirements to admit a record under the recorded recollection hearsay exception?

Answer 3

(1) Record is on a matter that the witness once knew about
(2) Witness made/adopted the record when the matter was fresh in the witness’s memory
(3) Record accurately reflects the witness’s knowledge
(4) Witness states that she can’t recall the event well enough to testify fully and accurately, even after consulting the record

Question 4

With respect to preliminary questions of admissibility, what is the burden of persuasion?

Answer 4

Burden to persuade the judge by a preponderance of the evidence

Question 5

What’s an offer of proof?

Answer 5

Oral or written explanation of the relevance and admissibility of the evidence being offered by the proponent on the record

Question 6

What’s the plain error rule?

Answer 6

An error that’s obvious to the reviewing court and that affects a substantial right can be reversed, even if no objection was made.

Question 7

Explain the completeness doctrine.

Answer 7

When a party introduces a partial written or recorded statement, an adverse party may compel the immediate introduction of another portion to explain or clarify the initial submission.

Question 8

When are leading questions proper on direct examination?

Answer 8

(1) Preliminary background matters not in dispute
(2) Hostile witnesses
(3) Minors or those w/difficulty communicating

Question 9

For impeachment purposes, distinguish b/w the pendency of an appeal of a conviction and a pardon.

Answer 9

Pardon: releases punishment + eliminates guilt for the offense + evidence of conviction is not admissible

Appeal pending: evidence of the pendency is admissible + conviction is admissible for impeachment purposes

Question 10

When does the intentional destruction of evidence raise a presumption or inference that such evidence would’ve been unfavorable to the party that destroyed the evidence?

Answer 10

Alleged victim must establish that:

(1) Destruction was intentional
(2) Destroyed evidence was relevant to the issue about which the party seeks such inference
(3) Alleged victim acted w/due diligence as to the destroyed evidence

Note: this presumption is rebuttable

Question 11

What’s the difference b/w direct and circumstantial evidence?

Answer 11

Direct: identical to the factual proposition that it’s offered to prove

Circumstantial: tends to indirectly prove a factual proposition through an inference from collateral facts

Question 12

To what proceedings do the FRE apply? What proceedings are exempted from these rules?

Answer 12

All civil and criminal proceedings before U.S. district courts, courts of appeal, Bankruptcy Court, Claims Court, and in proceedings before U.S. magistrates

Exceptions:
(1) Ct.’s determination of a preliminary question of fact re: admissibility
(2) Grand jury proceedings
(3) Criminal proceedings for :
(a) Issuance of a search or arrest warrant or a criminal summons
(b) Preliminary examination in a criminal case
(c) Extradition or rendition
(d) Consideration of bail or other realease
(e) Sentencing
(F) Granting or revoking probation or supervised release

Question 13

What requirements must be met for the opinion of a lay witness to be admissible?

Answer 13

The opinion must be:

(1) Rationally based on the perception of the witness
(2) Helpful to a clear understanding of the witness’s testimony or the determination of a fact in issue
(3) Not based on scientific, technical, or specialized knowledge

Question 14

When is habit evidence admissible?

Answer 14

To prove that the person or organization acted in accordance w/the habit or routine on a particular occasion

May be admitted w/o corroboration or an eyewitness

Question 15

What 5 hearsay exceptions only apply when the hearsay declarant is unavailable?

Answer 15

(1) Former testimony
(2) Dying declaration
(3) Statement against interest
(4) Statement of personal or family history
(5) Statement offered against a party that wrongfully caused the declarant’s unavailability

Question 16

When must a preliminary hearing on admissibility be conducted outside the presence of the jury?

Answer 16

Hearing involves admissibility of a confession, [D] in a criminal trial is a witness and requests it, justice requires it

Question 17

What’s the difference b/w the application of a Dead Man’s Statute in a criminal case vs. civil case?

Answer 17

Criminal: no application

Civil: party w/financial interest in outcome of case can’t testify adversely re: communication or transaction w/person whose estate is a party to the case

Note: not recognized by FRE and applies when fed. ct. applies state law if it specifically says such a statute exists

Question 18

What’re the 2 methods by which handwriting can be authenticated?

Answer 18

(1) Expert witness or trier of fact may compare the writing in question w/another writing that’s proven to be genuine
(2) Lay witness w/personal knowledge of claimed author’s handwriting may authenticate the handwriting, as long as the witness didn’t become familiar w/the handwriting for the purposes of the current litigation

Question 19

When may the prosecution offer evidence of an alleged victim’s good character in a criminal case?

Answer 19

(1) Rebuttal evidence of a victim’s good character when [D] has introduced evidence of victim’s bad character
(2) Evidence of victim’s character trait for peacefulness in homicide cases to rebut evidence that victim was first aggressor

Question 20

When can evidence that a criminal [D] committed another sexual assault be admitted?

Answer 20

Criminal case in which [D] is accused of SA, attempted SA, or conspiracy to commit SA

Note: FRE 403 grants discretion to exclude such evidence when the probative value is substantially outweighed by the risk of unfair prejudice

Question 21

When is a judge permitted to be called as a witness in a trial over which they’re presiding?

Answer 21

Never

Question 22

What 4 categories of witnesses may NOT be excluded from the courtroom to prevent them from hearing the testimony of other witnesses?

Answer 22

(1) Party who is a natural person
(2) An officer or employee of a party that’s not a natural person, after the individual has been designated as the party’s representative by its attorney, including the investigating officer
(3) Person whose presence is essential to a party’s presentation of its case
(4) Person whose presence is permitted by statute

Question 23

When may a judge take notice of an adjudicative fact?

Answer 23

Fact is not subject to reasonable dispute b/c it either:

(1) Is generally known within the territorial jurisdiction of the trial court
(2) Can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned

Question 24

What 2 requirements must be met to use a conviction as impeachment evidence if more than 10 years have elapsed since the latter of the conviction or release from confinement?

Answer 24

(1) Probative value substantially outweighs its prejudicial effect
(2) Proponent gives adverse party reasonable written notice of intent to use the evidence

Question 25

What’s the “bursting bubble” approach to burden shifting?

Answer 25

Rebuttable presumption no longer has preclusive effect after the opposing party introduces sufficient evidence to sustain a contrary finding. If contrary evidence is introduced, the burden of persuasion remains on the party who had it originally.

Question 26

Describe the manner of proof used for admitting convictions to impeach a witness.

Answer 26

Evidence of a prior conviction may be produced by way of an admission by the witness of direct or cross-examination, as well as by extrinsic evidence.

Question 27

What’s the rule of completeness?

Answer 27

When a party introduces part of a writing or recorded statement, an adverse party may compel the introduction of an omitted portion of the writing or statement if, in fairness, it should be considered at the same time.

Question 28

What’re the 3 standards of proof?

Answer 28

(1) Preponderance of the evidence
(2) Clear and convincing
(3) Beyond a reasonable doubt

Question 29

What’s the definition of hearsay?

Answer 29

Out-of-court statement offered to prove the truth of the matter asserted

Question 30

List 3 examples of preliminary questions of admissibility that a judge, rather than a jury, would determine?

Answer 30

(1) Competency of evidence, including the admissibility of evidence
(2) Whether a privilege exists
(3) Whether a person is qualified to be a witness

Note: judges also determined whether an exception would apply to allow hearsay into the record

Question 31

What 2 elements does the Confrontation Clause of the 6th Amendment require in order for out-of-court statements to be used against a criminal [D]?

Answer 31

(1) Declarant is unavailable
(2) [D] must’ve had prior opportunity to cross-examine declarant

Note: Confrontation Clause doesn’t preclude admission of dying declaration as hearsay, even if testimonial

Question 32

At what time can a court take judicial notice?

Answer 32

Judicial notice can be taken at any time during a proceeding, including on appeal, whether upon request of a party or by the court’s own initiative.

Note: can’t take judicial notice against criminal [D] for the first time on appeal

Question 33

What 2 questions must the court ask to determine whether the subject matter of an expert’s proposed testimony is proper?

Answer 33

(1) Is the subject matter scientific, technical, or other specialized knowledge (reliability)?
(2) Will it help the trier of fact understand the evidence or determine a fact in issue (relevance)?

Question 34

What’re the 3 requirements to admit a record under the records of regularly conducted activity (business records) hearsay exception?

Answer 34

(1) Record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling
(2) Making of the record was a regular practice of that activity
(3) Record was made at or near the time by someone w/knowledge

Question 35

What standard of proof applies to the authentication of tangible evidence?

Answer 35

Proponent of the evidence must produce sufficient evidence to support a finding that the thing is what its proponent claims it is

Note: lesser standard than a preponderance of the evidence

Question 36

What’re the present sense impression and excited utterance hearsay exceptions? Distinguish them.

Answer 36

Present Sense Impression: describes/explains an event/condition + made while/immediately after the declarant perceived it

Excited Utterance: about startling event/condition + made while declarant is under stress of excitement the event caused

Question 37

How may a party to a telephone conversation authenticate statements made during that conversation as having been amde by a particular individual?

Answer 37

Testify that either:

(1) Caller recognized the speaker’s voice
(2) Speaker knew facts that only a particular person would know
(3) Caller dialed a number believed to be the speaker’s, and the speaker identified himself upon answering
(4) Caller dialed a business and spoke to the person who answered about business regularly conducted over the phone

Note: identification can be made by any person who has heard the voice at any time, including one made familiar solely for the purposes of litigation

Question 38

What does the best evidence rule require, and what’re its exceptions?

Answer 38

If the contents of a document are at issue, or a witness is relying on the contents of the document, the best evidence rule requires that the original document be produced to prove its contents, unless:

(1) All of the originals are lost or destroyed, and not by the proponent acting in bad faith;
(2) Original cannot be obtained by any available judicial process;
(3) Party against whom the original would be offered (a) had control of the original, (b) was on notice that the original would be the subject of proof, and (c) failed to produce it at the trial or hearing; or
(4) Document is not closely related to a controlling issue.

Question 39

When may a witness be impeached by evidence of a juvenile adjudication?

Answer 39

Not admissible against [D].

Another witness may be impeached by evidence if:

(1) Offered in criminal case
(2) Adult’s conviction for that offense would be admissible to attack adult’s credibility
(3) Admitting the evidence is necessary to fairly determine guilt or innocence

Question 40

What are three ways in which tangible evidence (e.g., murder weapon) may be authenticated?

Answer 40

(1) Testimony of personal knowledge of the object
(2) Testimony of its distinctive characteristics
(3) Chain of custody when it’s a physical object that could easily be tampered with or confused with a similar item

Question 41

What is required for evidence to be “relevant?”

Answer 41

(1) Tendency to make a fact more or less probable than it’d be w/o the evidence (probative)
(2) Fact in question is of consequence in determining the action (material)

Question 42

When may “work product” be subject to discovery?

Answer 42

Party seeking disclosure:

(1) Demonstrates a substantial need for the information
(2) Cannot obtain the information by any other means without undue hardship

Question 43

What is the “rape shield” rule?

Answer 43

Evidence offered to prove the victim’s sexual behavior/predisposition is generally inadmissible in any proceeding involving sexual misconduct

Question 44

When is character evidence admissible in civil cases, and in what forms?

Answer 44

Character evidence is an essential element of a claim or defense

May be proved by reputation, opinion, and specific instances of a person’s conduct

Question 45

What are 3 instances in which specific acts are admissible in criminal cases?

Answer 45

(1) When character is an essential element of a charged crime and a defendant offers specific acts inconsistent with the crime
(2) For non-propensity purposes (e.g., “MIMIC” evidence (Motive, Intent, absence of Mistake, Identity, or Common plan))
(3) When a character witness is asked on cross-examination about specific acts committed by the person about whom the witness is testifying.

Question 46

What are 5 non-hearsay uses for out-of-court statements (i.e. uses that prove something other than the truth of the matter asserted)?

Answer 46

(1) To prove that the statement was made (i.e., as legally operative fact);
(2) To show the effect on the recipient;
(3) As circumstantial evidence of the declarant’s state of mind;
(4) As circumstantial evidence of identity; or
(5) Solely to impeach or rehabilitate.

Question 47

List 3 examples of habit evidence.

Answer 47

Habit can be regular practice of a business or individual

(1) Company routinely matches employee’s charitable contributions
(2) Person never smokes
(3) Person always wears a seatbelt

Question 48

When does a statement by an unavailable declarant qualify as a “statement against interest” hearsay exception?

Answer 48

(1) Statement was against the declarant’s interest at the time it was made; and
(2) Statement would not have been made by a reasonable person unless he believed it to be true.

Question 49

What is the balancing test when determining whether a testifying criminal defendant can be impeached with a conviction not involving dishonesty?

Answer 49

Evidence of a felony conviction for a crime not involving dishonesty or false statement is admissible only if its probative value outweighs the prejudicial effect to that defendant.

Note: This is a stricter than usual standard to afford greater protection to criminal defendants. Jury members often struggle to limit the use of the conviction to impeach credibility, rather than to determine guilt or innocence.

Question 50

For what 2 purposes are compromise offers and negotiations inadmissible as a public policy exclusion?

Answer 50

(1) To prove or disprove the validity or amount of a disputed claim; or
(2) For impeachment by a prior inconsistent statement or contradiction.