Evidence

Question 1

Photograph used as demonstrative evidence

Answer 1

Must have authenticated by testimony that the photo is a faithful reproduction of the object or scene depicted.

Question 2

Admissibility of real or demonstrative evidence

Answer 2

The evidence must not only be relevant but also must be authenticated, i.e., identified as being what the proponent claims it to be.

Question 3

What is the Former Testimony Exception to the Hearsay Rule?

Answer 3

Under the former testimony exception to the hearsay rule, the testimony of a now unavailable witness given at another hearing is admissible in a subsequent trial as long as there is a sufficient similarity of parties and issues so that the opportunity to develop testimony or cross-examine at the prior hearing was meaningful.

–The party against whom the former testimony is offered must have had the opportunity to develop the testimony at the prior proceeding by direct, cross-, or redirect examination of the declarant.
examination.

Question 4

Authenticity of a writing

Answer 4

Before a writing may be received in evidence, it must be authenticated by proof showing that the writing is what the proponent claims it is. All that is necessary is proof sufficient to support a jury finding of genuineness.

–The authenticity of a document is a preliminary fact to be decided by the jury.

Question 5

Authenticating the speaker’s voice

Answer 5

Any person familiar with an alleged speaker’s voice may authenticate a recording of the voice by giving an opinion as to its identity.

Note: It makes no difference that witness acquired such familiarity of the speaker’s voice only after he was arrested.

Question 6

What is the Dying Declaration Exception to the Hearsay Rule?

Answer 6

Under the dying declaration exception to the hearsay rule, a statement made by a now-unavailable declarant while believing her death was imminent that concerns the cause or circumstances of what she believed to be her impending death is admissible.

–Note: The declarant need not actually die as a result of the circumstances giving rise to her belief of imminent death.

Question 7

Authenticating a person’s signature

Answer 7

Any person can testify to the authenticity of another’s signature as long as that witness has seen the person’s signature and can express an opinion regarding its authenticity.

–The only restriction is that a non-expert cannot become familiar with the handwriting merely for the purpose of testifying.

–There is no requirement that the witness have seen the signature recently (even though the length of time since the witness last saw the signature in question may go to the weight that should be given the witness’s testimony).

–Nor is it decisive that the witness testifying regarding the signature has seen it only once.

Question 8

D’s prior acts of sexual assault

Answer 8

Evidence of a defendant’s prior acts of sexual assault are admissible in a criminal case in which the defendant is accused of sexual assault, and may be considered on any matter to which it is relevant.

–This evidence is not limited to impeachment purposes; it may be admitted as substantive evidence.

– These accusations are admissible as substantive evidence even though they did not result in criminal charges.

–While generally this evidence must be disclosed to the defendant 15 days before trial, the court may waive that requirement on a showing of good cause. Given that the prosecutor just learned of these allegations, the court may find good cause here. In any case, it would be up to defense counsel to seek a delay based on the required notice.

Question 9

Lay Opinion Testimony

Answer 9

Where an event is likely to be perceived as a whole impression, rather than as more specific components, opinions by lay witnesses are generally admitted.

Lay opinion testimony is admissible when: (i) it is rationally based on the perception of the witness; (ii) it is helpful to a clear understanding of his testimony or to the determination of a fact in issue; and (iii) it is not based on scientific, technical, or other specialized knowledge.

–One matter about which a lay witness may testify is the general appearance or condition of a person.

–The witness must have had the opportunity to observe the event that forms the basis of her opinion.

–In contrast, expert opinion testimony is called for when the subject matter is such that technical or other specialized knowledge will assist the jury in understanding the evidence or determining a fact in issue.

Question 10

Statement for purposes of diagnosis and treatment

Answer 10

Under the Federal Rules, statements regarding past symptoms and medical history made to assist in diagnosis or treatment are admissible, even if made to a doctor employed to testify.

Question 11

Pretrial experiments that do not require expert testimony

Answer 11

Evidence of pretrial experiments that do not require expert testimony are treated no differently under the Federal Rules from other evidence. It will be admissible if it is relevant (i.e., if it has any tendency to prove or disprove a fact that is of consequence to the action) and if it is not barred by a specific exclusionary rule or the general balancing test of Rule 403.

Question 12

Statement by an Opposing Party

Answer 12

Under the Federal Rules, a statement by an opposing party (commonly called an admission) is not hearsay. [Fed. R. Evid. 801(d)(2)]

–Note: A plea of guilty to a traffic infraction is a formal judicial statement. The statement is conclusive in a prosecution for that infraction, but if the plea is used in another proceeding, it is merely an evidentiary statement (i.e., it is not conclusive and can be explained).

Question 13

Statement Against Interest

Answer 13

Statements of a person, now unavailable as a witness, against that person’s pecuniary, proprietary, or penal interest when made are admissible under the statement against interest exception to the hearsay rule. [Fed. R. Evid. 804(b)(3)]

A declarant is unavailable if: (i) she is exempt from testifying because the court rules that a privilege applies, (ii) she refuses to testify despite a court order to do so, (iii) she testifies to not remembering the subject matter, (iv) she is dead or ill and unable to testify, or (v) she is absent and the statement’s proponent has been unable to procure her attendance or testimony by process or other reasonable means.

Question 14

Statements Made During the Plea Bargaining Process

Answer 14

Under the Federal Rules, withdrawn guilty pleas, pleas of nolo contendere, offers to plead guilty, and evidence of statements made in negotiating such pleas are not admissible in any proceeding against the defendant who made the plea or participated in the plea discussions. However, there is no prohibition against admitting the guilty plea itself.

Question 15

Testimonial Statements and the Confrontation Clause

Answer 15

Under the Confrontation Clause, an accused has the 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:

(i) the statement is offered against the accused in a criminal case;
(ii) the declarant is unavailable;
(iii) the statement was testimonial in nature; and
(iv) the accused had no opportunity to cross-examine the declarant’s “testimonial” statement prior to trial.

–The Supreme Court has established that if the primary purpose of police interrogation is to enable the police to help in an ongoing emergency, statements made in the course of the interrogation are nontestimonial.

–When the primary purpose of the interrogation is to establish or prove past events potentially relevant to a later criminal prosecution, statements are testimonial.

Question 16

Excited Utterance Exception

Answer 16

Under the excited utterance exception, a declaration made by a declarant during or soon after a startling event is admissible if it relates to the startling occurrence and was made under the stress of excitement produced by the startling event.

Question 17

When is evidence “relevant”?

Answer 17

Evidence is relevant if it tends to make the existence of any fact of consequence to the action more probable than it would be without the evidence.

Question 18

Best Evidence Rule

Answer 18

The best evidence rule can be stated as follows: In proving the terms of a writing, where the terms are material, the original writing must be produced. Secondary evidence of the writing is permitted only after it has been shown that the original is unavailable for some reason other than the serious misconduct of the proponent.

Generally, the rule applies to two classes of situations:

(i) where the writing is a legally operative or dispositive instrument; or
(ii) where the knowledge of a witness concerning a fact results from having read it in the document.

Question 19

Admissibility of Settlement Offers

Answer 19

Both settlement offers and statements made during settlement negotiations are inadmissible. This is because public policy favors the voluntary settlement of disputes.

If a settlement offer has been made in a case that ultimately goes to trial, admission of the offer into evidence would probably prejudice the party who made the offer. Thus, if such evidence were admissible, there would be a disincentive to parties making settlement offers.

Similarly, if statements made during settlement negotiations could be admitted into evidence in cases that ultimately go to trial, then that would be a disincentive to enter into settlement negotiations or to discuss settlement in a freewheeling way. In either event, the public policy favoring settlements bars use of such statements.

Question 20

What is the public record exception to the hearsay rule?

Answer 20

Related to the exception to the hearsay rule for public records and other official writings, Federal Rule of Evidence 803(10) provides that evidence in the form of a certification or testimony from the custodian of public records that she has diligently searched and failed to find a record is admissible to prove that a matter was not recorded, or, inferentially, that a matter did not occur.

Question 21

When is character evidence admissible in civil cases?

Answer 21

Evidence of a person’s character is generally irrelevant and inadmissible in a civil case except in rare circumstances where character is directly in issue (e.g., defamation or negligent hiring cases).

Question 22

What is character evidence?

Answer 22

Evidence that describes a person’s general tendency to do something or behave in a particular way.

Question 23

What is habit evidence?

Answer 23

Evidence of a person’s habit may be admitted to prove that on a particular occasion the person acted in accordance with the habit. Habit describes one’s regular response to a specific set of circumstances, whereas character describes one’s disposition in respect to general traits. Since habits are more specific and particularized, evidence of habit is relevant and can be introduced in circumstances when it is not permissible to introduce evidence of character.

Question 24

Can the fact that a pedestrian is cautious and “invariably” obeys traffic laws be enough to qualify as habit evidence?

Answer 24

No. The fact that the pedestrian is cautious and obeys traffic laws is not nearly specific enough to qualify as habit evidence-despite the use of the term “invariably.”

Question 25

Present State of Mind Exception

Answer 25

A statement of a declarant’s then-existing state of mind is admissible when the declarant’s state of mind is directly in issue and material to the controversy, or as a basis for a circumstantial inference that a particular declaration of intent was carried out.

–Under the state of mind exception to the hearsay rule, a declaration of intent to do something in the future is admissible as circumstantial evidence tending to show that the intent was carried out.

Question 26

Present Sense Impression Exception

Answer 26

Are statements made contemporaneously with perceiving some event. This is a hearsay exception.

Question 27

Prior Inconsistent Statement

Answer 27

A prior inconsistent statement made under penalty of perjury at a prior trial or proceeding, or in a deposition, is admissible nonhearsay and thus may be used as substantive evidence as well as for impeachment.

–The credibility of a witness may be impeached by showing that the witness has, on another occasion, made statements that are inconsistent with some material part of his present testimony.

–Because it is made by the declarant other than while testifying at the trial or hearing, a prior inconsistent statement will usually constitute hearsay if offered to prove the truth of the matter asserted therein. Under such circumstances, the statement would be admissible only to impeach the witness.

–However, where the statement was made under penalty of perjury at a prior proceeding, including a grand jury proceeding, it is admissible nonhearsay (i.e., it may be considered as substantive proof of the facts stated).

Question 28

Affidavits summarizing the findings of forensic analysis: admissible?

Answer 28

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 29

Statement Against Interest Exception

Answer 29

The statement against interest exception to the hearsay rule requires that the declarant be unavailable as a witness.

A declarant is unavailable if:

(i) she is exempted from testifying because the court rules that a privilege applies;
(ii) she refuses to testify concerning the statement despite a court order to do so;
(iii) she testifies to not remembering the subject matter of the statement;
(iv) she cannot testify because she has died or is ill; or
(v) she is absent and the statement’s proponent is unable to procure her attendance or testimony by process or other reasonable means.

Question 30

Business Record Exception

Answer 30

A writing or record made as a memorandum or record of any act, transaction, occurrence, or event is admissible as proof of such act, transaction, occurrence, or event if it was made in the course of a regularly conducted business activity and if it was customary to make the type of entry involved (i.e., the entrant must have had a duty to make the entry).

–The business record must consist of matters within the personal knowledge of the entrant or within the personal knowledge of someone with a business duty to transmit such matters to the entrant.

–The entry must have been made at or near the time of the transaction.

Question 31

Past Recollection Recorded

Answer 31

When a witness states that he has insufficient recollection of an event to enable him to testify fully and accurately, even after he has consulted a memorandum or other record given to him on the stand, the record itself may be read into evidence if a proper foundation is laid for its admissibility.

–Note: Proper foundation must be laid in order to admit the record.

Question 32

Declaration of Present Physical Sensation

Answer 32

Is an exception to the hearsay rule. Statements of symptoms being experienced, including the existence of pain, are admissible under the Federal Rules, even if not made to a doctor or other medical personnel.

Question 33

When can the prosecution offer character evidence of D in a criminal trial?

Answer 33

The prosecution may offer such evidence only after the accused has put his character in issue by either taking the stand (thus placing his credibility in issue) or offering evidence of his good character.

Question 34

In a criminal case, when may evidence of D’s prior bad acts be introduced?

Answer 34

In a criminal case, evidence of the defendant’s other crimes or misconduct is inadmissible if offered solely to establish criminal disposition. A broad exception to the general rule permits evidence of other crimes or misconduct to be admitted if such acts are relevant to some issue other than the character of the defendant to commit the crime charged. Such evidence may be used to show motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake.

Question 35

What types of acts of misconduct can a witness be interrogated upon?

Answer 35

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

Question 36

Can the credibility of a witness (other than D) be impeached by showing prior inconsistent statements?

Answer 36

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.

–Note: It must pertain to a fact that would be MATERIAL to the allegations in the lawsuit.

Question 37

Relevant Evidence + Rule 403 Balancing Test

Answer 37

The Federal Rules of Evidence define relevant evidence as evidence having any tendency to prove or disprove a fact that is of consequence to the action. Generally, all relevant evidence is admissible unless it is barred by a specific exclusionary rule or by the general balancing test of Rule 403, which permits exclusion of relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, etc.

–Note: The balancing test of Rule 403 provides only that a court may exclude relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice. While all evidence is prejudicial to the opposing party, “unfair” prejudice refers to suggesting a decision on an emotional or otherwise improper basis.

Question 38

Who considers all preliminary fact questions that determine the applicability of an exception to the hearsay rule? Judge or jury?

Answer 38

The Federal Rules of Evidence distinguish between preliminary facts to be decided by the jury, which involve whether the proffered evidence is relevant, and preliminary facts decided by the judge, which involve whether the evidence is competent, that is, not barred by an exclusionary rule.

All preliminary fact questions that determine the applicability of an exception to the hearsay rule must be determined by the judge, because the competency of the evidence will depend on that preliminary fact determination. In making this preliminary fact determination, the trial court may consider any nonprivileged relevant evidence, even if such evidence would not be admissible at trial.

Answer 39

In a civil case or a homicide prosecution, a statement made by a now unavailable declarant while believing his death to be imminent, that concerns the cause or circumstances of what he believed to be his impending death, is admissible.

For this exception to apply, the declarant need not actually die. Rather, the declarant must be “unavailable” when the statement is offered.

A declarant is unavailable if he:

(i) is exempted from testifying on the ground of privilege;
(ii) refuses to testify despite a court order;
(iii) testifies to lack of memory of the subject matter of the statement;
(iv) cannot be present or testify because of death or physical or mental illness; or
(v) is beyond the reach of the court’s subpoena and the statement’s proponent has been unable to procure his attendance or testimony by process or other reasonable means.