Evidence

Question 1

Logical Relevance, FRE 401

Answer 1

Evidence is relevant if it has a tendency to make a fact more or less probable than it would be
without the evidence and the fact is of consequence in determining the action.

Question 2

Legal Relevance, FRE 403 (Exclusion of Logically Relevant Evidence)

Answer 2

Relevant evidence may be excluded if its probative value is substantially outweighed by the
danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time,
or needlessly presenting cumulative evidence.

Question 3

Character Evidence—Civil Case

Answer 3

In a civil case, character evidence is not admissible to prove that a person acted in accordance with that character or trait on a particular occasion.

However, character evidence (reputation, opinion, and specific acts) is admissible when character is an essential element of a claim or defense, such as: defamation, negligent hiring or entrustment, and child custody.

Question 4

Character Evidence—Criminal Case - Defendants Character

Answer 4

Defendant’s Character

A defendant may introduce evidence of his own good character (reputation or opinion) to show that it is inconsistent with the crime charged.

Note 2: Reputation evidence refers to the defendant’s reputation in the community at large, not just his friends. Opinion evidence refers to the testifying witness’s personal opinion of the defendant, not the opinions of others.

Question 5

Character Evidence Criminal-Defendant’s “opens the door” effect

Answer 5

If the defendant “opens the door”, the prosecution may:
• Call a witness to rebut and attack the defendant’s claims of good character with reputation or opinion based evidence, or
• Cross-examine the defendant’s character witness and ask about the defendant’s reputation, opinion, or specific bad acts by the defendant
Note 3: The prosecution can only “ask” about specific bad acts, it cannot enter
extrinsic evidence.

Question 6

Criminal Character Evidence - Victim’s Character

Answer 6

A defendant may introduce reputation or opinion evidence of the victim’s character trait if it is relevant to the defense asserted (for example, if the defendant is charged with assault and battery and claims self-defense, he can introduce evidence that the victim has a violent character).

Question 7

Criminal Character Evidence - Victim’s Character - If defendant “opens the door” effect

Answer 7

If the defendant “opens the door,” the prosecution may:
• Introduce rebuttal (reputation or opinion) evidence of the victim’s character trait, or
• Attack the defendant’s character regarding the same trait that the defendant attacked of the victim

Exam Tip 2: If the facts involve a criminal case, read carefully to see if the defendant has “opened the door” by presenting evidence about his character or the victim’s character, which would then allow the prosecution to rebut this with evidence attacking defendant or rehabilitating victim.

Question 8

Character Evidence : Specific Bad Acts, FRE 404(b) (MIMIC)

Answer 8

Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the
character.

However, evidence of prior bad acts may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. This is sometimes referred to as the MIMIC rule, which refers to Motive, Intent, absence of Mistake, Identity, or Common plan. Modus operandi can be used as identity evidence.

Exam Tip 3: If a specific bad act is introduced as evidence, consider arguments for any non-character uses of the evidence.

Question 9

Habit Evidence, FRE 406

Answer 9

Evidence of a person’s habit or an organization’s routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. The court may admit this evidence regardless of whether it is corroborated or
whether there was an eyewitness.

Question 10

Character Evidence : Sex-Offense Cases, FRE 412, and exception

Answer 10

In civil or criminal cases involving alleged sexual misconduct, evidence of the victim’s sexual conduct or predisposition is generally barred.

Exception: In a civil case, the court may admit evidence offered to prove a victim’s sexual behavior or sexual predisposition if its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party.

Question 11

Witness Competence, FRE 601, what must a non-expert witness have

Answer 11

A non-expert witness must have personal knowledge of a matter in order to testify about it

Question 12

Witness lay Opinion, FRE 701, when are they allowed

Answer 12

A lay opinion is admissible if it is rationally based on the witness’s perception, helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and not based on scientific, technical, or other specialized knowledge.

Exam Tip 4: Lay witnesses are qualified to give testimony about the speed of a vehicle—this has been tested on past essay exams.

Question 13

Expert Testimony, FRE 703, what must the subject matter cover, what must they be qualified about, etc

Answer 13

o The subject matter of expert testimony must be scientific, technical or some other specialized knowledge that will help a trier of fact understand evidence or determine a fact at issue that focuses on the relevance of testimony.

o A witness must be qualified as an expert by knowledge, skill, experience, training or education.

o The testimony must be based on sufficient facts or data and the product of reliable principles and methods.

o Finally, the witness must apply these principles and methods reliably to facts of the case.

Question 14

Present Recollection Refreshed, FRE 612, and admissibility of it as evidence

Answer 14

A witness may examine any item to refresh his present recollection, and his testimony must be based on his refreshed recollection (he may not read from the refreshing document itself).

The item itself is not entered into evidence unless the adverse party introduces it into evidence.

Note 4: When the item used to refresh a witness’s recollection is a document, the adverse party is entitled to have the document produced, to inspect the document, to cross-examine the witness about it, and to introduce any relevant portion of the document into evidence.

Question 15

Past Recollection Recorded, FRE 803

Answer 15

A memorandum or record about a matter the witness once had knowledge of but now has insufficient recollection of to testify that was made or adopted by the witness when it was fresh in the witness’s memory and is accurate may be read into evidence under the recorded recollection hearsay exception.

Note 5: The memo or record itself may be admitted into evidence if the adverse party introduces it into evidence.

Question 16

Impeachment: Opinion/Reputation

Answer 16

Opinion/reputation testimony from another witness, FRE 608

Note 6: Evidence of truthful character is admissible only after the witness’s character for truthfulness has been attacked.

Question 17

Impeachment: Specific instances of conduct, FRE 608

Answer 17

Generally (see below for Criminal Conviction exception), extrinsic (outside) evidence is not admissible to show specific instances of witness’s conduct relating to truthfulness.

 However, on cross-examination, a witness can be asked about specific instances of his conduct to attack or support the witness’s credibility.

Question 18

Exception to specific instances of conduct rule: Criminal convictions, FRE 609

Answer 18

Extrinsic evidence of a criminal conviction for crimes involving dishonesty/false statements (e.g., perjury or fraud) must be admitted.

Extrinsic evidence of a criminal conviction for a crime not involving dishonesty/false statement (e.g., assault) if the crime was punishable by death or imprisonment for more than one year (a felony):

• If the conviction is being used in a civil or criminal case against a witness who is not a defendant, the evidence is admissible subject to a Rule 403 analysis (i.e., is the
probative value substantially outweighed by the danger of unfair prejudice or other factors) to determine admissibility.

• If the conviction is being used in a criminal case against a witness who is the defendant, the evidence will be admissible only if the probative value outweighs the
prejudicial effect to the defendant.

 10-year rule: If more than 10 years has passed since the conviction or release (whichever is later), the evidence of the conviction will only be admissible if the probative value substantially outweighs the prejudicial effect and the proponent gives reasonable notice of the intent to use it.

Question 19

Impeachment: Prior inconsistent statements, FRE 613

Answer 19

 A witness’s prior statement that is inconsistent with the witness’s current testimony is admissible to impeach the witness.

 Extrinsic evidence of the prior statement can be admissible for purposes of impeachment.

Question 20

Impeachment :Bias or interest

Answer 20

 Extrinsic evidence is admissible to show that the witness is biased and may not be testifying truthfully is admissible.

Question 21

Impeachment: Sensory competence

Answer 21

 Extrinsic evidence showing that a witness is physically or mentally impaired and is therefore not a credible witness is admissible.

Question 22

o Impeachment of a hearsay declarant, FRE 806

Answer 22

If a hearsay statement is admitted into evidence, the declarant who made the original statement can be impeached as if the declarants/he was a testifying witness.

Question 23

Impeachment: Rehabilitation of a witness

Answer 23

 If a witness is impeached, the witness may be rehabilitated by the introduction of rebuttal evidence, including:

• Explanation or clarification during redirect examination;
• Reputation or opinion evidence about the witness’s character for truthfulness; or
• A prior consistent statement.

Question 24

Tangible Evidence: Authentication, FRE 901–02

Answer 24

All tangible evidence must be authenticated. To authenticate an item, the proponent must produce sufficient evidence to support a finding that the thing is what its proponent claims it is.

Exam Tip 6: Look for facts indicating that the authenticity of the evidence could be in question, for example handwriting or the sound of a person’s voice may be in dispute. A lay person can testify about the authenticity of handwriting and a person’s voice if they have prior knowledge.

Question 25

Best Evidence Rule, FRE 1001–08

Answer 25

The best evidence rule requires that the original document or a reliable duplicate be produced in order to prove the contents of a writing, recording, or photograph, including electronic documents, X-rays, and videos. This rule applies only when the contents of the document are at issue or a witness is relying on the contents of the document when testifying.

Question 26

Privileges: Spousal Testimonial Privilege

Answer 26

The testifying spouse can assert the privilege and refuse to testify against another spouse; it only applies if there is a valid marriage in existence.

Question 27

Confidential Marital Communications

Answer 27

Both spouses can assert the privilege and prevent the other spouse from testifying about confidential communications made during the marriage. This privilege continues even if the marriage has ended (marriage ends upon divorce). Note 7: If a spouse breaks confidentiality and discloses information to a third party, the spouse may not be able to assert this privilege.

Question 28

Subsequent Remedial Measures, FRE 407

Answer 28

Evidence of subsequent remedial measures taken by the defendant that would have made an earlier injury or harm less likely to occur are admissible for purposes such as impeachment or to show ownership or control, but not to show negligence.

Question 29

Settlement Offers and Statements Made During Negotiations, FRE 408

Answer 29

Settlement offers and statements made during settlement negotiations are excluded. The settlement offer must be made in response to a disputed claim. If there is no disputed claim and a settlement offer is made, it is not barred.

Question 30

Offers to Pay Medical Expenses, FRE 409

Answer 30

Offers to pay medical expenses are inadmissible to prove liability.

Question 31

Evidence of Liability Insurance, FRE 411

Answer 31

Evidence of liability insurance is not admissible to show liability, but is admissible to prove agency, ownership, control, or the witness’s bias or prejudice.

Question 32

Hearsay, FRE 801(c)

Answer 32

Hearsay is an out-of-court statement that is offered to prove the truth of the matter asserted. If offered to prove something other than the truth of the matter asserted, then the statement is not hearsay.

Question 33

Hearsay: Assertive Conduct

Answer 33

Assertive conduct is treated as a statement and is subject to the hearsay rules. Assertive conduct such as gesturing (e.g., nodding one’s head to indicate “yes”) or pointing a finger in a direction to indicate a direction of travel (e.g., right, left, or forward) will be treated as a statement. Laughing or crying may or may not be assertive conduct, depending on the circumstances.

Question 34

Non-Hearsay Use for other than truth of matter being asserted

Answer 34

If a statement is used to show something other than the truth of the matter asserted, it will not be hearsay. For example, a statement can be used to show the effect on the listener or reader, or as circumstantial evidence of the declarant’s state of mind. Exam Tip 8: An example of a non-hearsay use of evidence is a mechanic telling a defendant that his car’s brakes are bad. The non-hearsay use of this statement is to show the effect on the listener—it has the effect of putting the listener-defendant on notice that he has bad brakes. Exam Tip 9: Before discussing hearsay exceptions, look for any non-hearsay uses of the evidence and discuss them. Then, even if you find a non-hearsay use for the evidence, proceed to discuss the hearsay exceptions that might apply.

Question 35

Double Hearsay, FRE 805

Answer 35

Hearsay within hearsay is not excluded by the rule against hearsay if each part of the combined statements conforms with an exception to the rule. Exam Tip 10:Read the facts carefully and look for items of evidence that contain two layers of hearsay. For example, a written police report containing a statement made by a witness to a car crash would present two levels of hearsay. The written police report is hearsay and contained within it is the statement made by the witness, which is also hearsay. In order to admit the report and the statement within it, both levels of hearsay must be admissible.

Question 36

the Non-Hearsay Exceptions to consider, FRE 801(d)

Answer 36

a. Prior statements  Prior inconsistent statements  Prior consistent statements  Prior statements of identification b. Opposing party’s statement  Party opponent—anything the party opponent says is admissible, it does not have to be against her interest  Adoptive admission  Vicarious statements—look for statements made by an employee that can be attributed to an employer

Question 37

Hearsay Exceptions - Declarant MUST be unavailable, just the list

Answer 37

1) Former testimony 2) Dying declaration 3) Statement against interest—not the same as an opposing party’s statement! This applies to any declarant who is unavailable to testify that makes a statement against her (criminal or civil) interest 4) Statement of personal or family history 5) Statement against party that caused declarant’s unavailability

Question 38

Declarant’s availability as a witness immaterial, FRE 803, just list

Answer 38

1) Present sense impression 2) Excited utterance 3) Statement of mental, emotional, or physical condition 4) Statement made for medical diagnosis/treatment 5) Recorded recollection (witness no longer able to testify) 6) Business records 7) Public records 8) Learned treatises 9) Judgment of previous conviction

Question 39

Constitutional Limitations—The Sixth Amendment Confrontation Clause and Hearsay Statements, and when are they violated with hearsay statements

Answer 39

The Sixth Amendment Confrontation Clause gives a defendant in a criminal case the right to be confronted by the witnesses against him. The admission of out of court “testimonial” statements (such as hearsay statements) violates a defendant’s right to confrontation if (i) the witness is unavailable to testify at ta trial and (ii) the defenses has not had a prior opportunity to cross-examine the witness.

Question 40

“Testimonial” definition for Confrontation Clause

Answer 40

Statements made to police officers in the course of an interrogation are generally testimonial. However, when the primary purpose of the questioning is to enable police assistance to meet an ongoing emergency, the statements are not testimonial. If the emergency is over, the statements made during interrogation are testimonial. Note 8: If the statements are admitted for a non-truth purpose (declarant’s state of mind), the Confrontation Clause does not bar them.

Question 41

Non-hearsay from prior statements of a trial witness

Answer 41

Prior statements of a trial witness: (Tip: the declarant must be testifying at trial for these to apply.) 1) Prior statement of identification 2) Prior inconsistent statement (made under oath at a formal trial, hearing, or deposition and the declarant is at trial subject to cross-examination concerning the statement) 3) Prior consistent statement used to rebut a charge of recent fabrication of improper motive/influence

Question 42

Determining Non-hearsay, the one's that aren't hearsay themselves, not the mimic thing

Answer 42

To prove it was said (nonhearsay) Verbal act or legally operative words (e.g., defamation, words that show contract formation, etc.) State of mind (e.g., “I’m the Queen of England” to show declarant is crazy) Effect on listener or reader (Tip: this is usually offered to prove motive or intent.)

Question 43

Non Hearsay, Opposing party's statement

Answer 43

Opposing party’s statement (Tip: Don’t make this harder than it is. If a party says something, it can be used against them without a hearsay issue.) 1) Any statement made by the opposing party that is offered against that party 2) Adoptive admissions (statements a person adopts through silence) 3) Agent/employee statements made by the agent/employee offered against the principal during the existence of the relationship and concerning a matter within the scope of the agency/employment 4) Statements by co-conspirators made during the course of and in furtherance of the conspiracy

Question 44

HEARSAY EXCEPTION - What is an unavailable declarant

Answer 44

Declarant must be unavailable (i.e., invokes a privilege, is absent from the jurisdiction, is ill or dead, lacks memory, or refuses to testify)

Question 45

HEARSAY EXCEPTIONS - Declarant must be unavailable (List and all of them explained, but will be piecemealed)

Answer 45

1. Forfeiture by wrongdoing (witness tampering): a party engages in wrongdoing for the purpose of making a witness unavailable for trial. 2. Former testimony: declarant is unavailable and had given testimony at a former proceeding or deposition, and it is admitted against a party or someone in privity who had the motive and opportunity to develop the statement. 3. Statement against interest: declarant is unavailable and made a statement he knew was against his interest at the time the statement was made. 4. Dying declaration: Declarant is unavailable, the statement was made while he believed death was impending, it concerns the cause or circumstances of death, and it is used in a homicide or civil case. Tip: memorize these elements! 5. Statement of personal or family history (e.g., birthdate and marriage date)

Question 46

Forfeiture by wrongdoing

Answer 46

Hearsay Exception (witness tampering): a party engages in wrongdoing for the purpose of making a witness unavailable for trial. Declarant must be unavailable (

Question 47

Former testimony Hearsay Exception

Answer 47

HEARSAY EXCEPTION declarant is unavailable and had given testimony at a former proceeding or deposition, and it is admitted against a party or someone in privity who had the motive and opportunity to develop the statement.

Question 48

Hearsay Exception: Statement against interest

Answer 48

declarant is unavailable and made a statement he knew was against his interest at the time the statement was made.

Question 49

Hearsay Exception Dying declaration:

Answer 49

1) Declarant is unavailable, 2) the statement was made while he believed death was 3) impending, 4) it concerns the cause or circumstances of death, 5) and it is used in a homicide or civil case. Tip: memorize these elements!

Question 50

Statement of personal or family history

Answer 50

Declarant must be unavailable e.g., birthdate and marriage date

Question 51

HEARSAY EXCEPTION Present sense impression:

Answer 51

Declarant may be available or unavailabl declarant describes or explains event as it is happening or immediately thereafte

Question 52

HEARSAY EXCEPTIONS Excited utterance

Answer 52

Declarant may be available or unavailable there is a startling event, the declarant makes a statement while under the stress of excitement, and the statement relates to the event.

Question 53

HEARSAY EXCEPTIONS Then-existing mental, emotional, or physical condition:

Answer 53

Declarant may be available or unavailablE declarant states his then-existing feelings, physical conditions, or intent.

Question 54

HEARSAY EXCEPTIONS Statement for medical treatment or diagnosis

Answer 54

Declarant may be available or unavailable declarant makes a statement about past or present symptoms or the cause(s) to get diagnosed or treated.

Question 55

HEARSAY EXCEPTIONS | Recorded recollection: a

Answer 55

Declarant may be available or unavailablE a witness has insufficient recollection of the event, but he had personal knowledge of the event at a former time, made or adopted a statement while the event was fresh in his memory, and can vouch for the accuracy of the statement when made or adopted

Question 56

HEARSAY EXCEPTION. Business records

Answer 56

Declarant may be available or unavailable a record made in the regular course of business at or about the time the event occurred that contains information observed by employees of the business (or an independent hearsay exception exists).

Question 57

HEARSAY EXCEPTIONS: Public records, Learned treatises, Catchall” exception

Answer 57

Declarant may be available or unavailablE 7. Public records (made by an agency, but not police reports in criminal cases) 8. Learned treatises (read into evidence if an expert is on the stand) 9. “Catchall” exception (for trustworthy statements) 10. Others (reputation about character, familial relations, etc.)

Question 58

Refreshing recollection

Answer 58

INTRODUCTION OF EVIDENCE Refreshing recollection: if a witness’s memory fails him, he may be shown a document or record to jog his memory.

Question 59

Competency of witnesses

Answer 59

Competency of witnesses: every witness is generally presumed to be competent regardless of religious beliefs, bias, etc.

Question 60

Judicial notice ON INTRODUCTION OF EVIDENCE

Answer 60

the court may judicially notice a fact that is not subject to reasonable dispute because it is generally known within the jurisdiction or it can be accurately and readily determined from sources whose accuracy cannot be questioned.

Question 61

Roles of judge and jury in introducing evidence, what are their respective roles

Answer 61

The judge decides if evidence is admissible. The jury decides issues of authentication and credibility.

Question 62

INTRODUCTION OF EVIDENCE : Limited admissibility:

Answer 62

Sometimes evidence is admissible for one purpose and not another. In such a case, a court may give a limiting instruction to the jury.

Question 63

What is a presumption in evidence?

Answer 63

A “presumption” means that a certain fact is assumed to be true unless the other side provides evidence to the contrary. In a civil case, a presumption can shift the burden of proof to the party against whom the presumption is directed. But the burden of persuasion is not affected and it remains on the party who had it originally.

Question 64

Limitations on Scope of examination in cross examinations, and scope of direct examinations

Answer 64

Scope of examination: Cross-examination (i.e., the questioning of a witness by an opponent) should only cover matters within the scope of direct examination and matters affecting credibility. Leading questions (i.e., those that suggest an answer, like “isn’t it true that…”) are permitted on cross-examination. They are only allowed on direct examination: (a) to develop preliminary matters (e.g., name and address), (b) for young or forgetful witnesses, or (c) for hostile witnesses or the adverse party. The court exercises reasonable control over the mode and order of questioning witnesses

Question 65

When can relevant evidence be excluded?

Answer 65

Relevant evidence is admissible but may be excluded if the probative value is substantially outweighed by a danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence. Real, demonstrative, and experimental evidence are permissible in the judge’s discretion.

Question 66

Is a duplicate of a writing, recording, or photograph ok for evidence?

Answer 66

An original writing, recording, or photograph is generally required, but a duplicate is admissible to the same extent as an original unless it is unfair to admit it or there is a genuine question about authenticity.

Question 67

The best-evidence rule

Answer 67

One only needs to present documentary evidence when one wants to prove the contents of a writing. This means that the writing is: (1) a legally operative document (e.g., a will, contract, etc.), or (2) the witness learned about the event solely from the writing or record and has no independent knowledge of the event. Tip: this is often the wrong answer choice on the MBE.

Question 68

Are Summaries of data or calculations allowed?

Answer 68

A party may use a summary, chart, or calculation if records are voluminous. However, the proponent must allow the other parties to examine or copy the originals or duplicates and the court may order them to be produced.

Question 69

Completeness rule in evidence

Answer 69

When a party introduces part of a writing or transaction, the other party can ask that the rest of it be introduced as well if, in fairness, the rest ought to be considered contemporaneously with it. By introducing the writing or transaction, the party initially offering the evidence has waived any objections based on hearsay, competency, etc

Question 70

IMPEACHMENT: PRIOR INCONSISTENT STATEMENTS What it is, Is extrinsic Evidence permitted, and is conformation of the witness permitted/required?

Answer 70

If a party makes a prior statement that is inconsistent with her testimony at trial, it may be used for impeachment. Tip: it may also be used as “substantive evidence” (i.e., the truth of the matter asserted) if it falls within a hearsay exception or exclusion (e.g., prior inconsistent statement or an opposing party’s statement). Extrinsic evidence may be used only if the witness is given an opportunity to explain or deny the statement at some point. This does not apply if the witness is the opposing party, not in court at all, or if the interests of justice require. Confrontation: Permitted

Question 71

IMPEACHMENT: Bias What it is, Is extrinsic Evidence permitted, and is conformation of the witness permitted/required?

Answer 71

If a witness is a family member, friend, enemy of a party, paid by the party, granted immunity, or if other circumstances show bias, then that can be used to suggest the witness has motive to lie. Extrinsic evidence may be used only if the witness is asked about the facts that suggest bias and the witness denies those facts. Confrontation: Required

Question 72

IMPEACHMENT: CONVICTION OF A CRIME What it is, Is extrinsic Evidence permitted, and is conformation of the witness permitted/required?

Answer 72

There are two categories of convictions that are allowed into evidence under the federal rules: (1) felony or misdemeanor convictions where the prosecution is required to prove an act of dishonesty or false statement as part of the crime—these are automatically admitted, and (2) felony convictions that meet a balancing test that weighs the probative value and prejudice. Extrinsic evidence (the conviction) is permitted. Note: if more than 10 years have passed since the witness’s conviction or release from confinement for it, whichever is later, evidence of the conviction is generally not admissible. Permitted

Question 73

IMPEACHMENT: SPECIFIC INSTANCES OF MISCONDUCT What it is, Is extrinsic Evidence permitted, and is conformation of the witness permitted/required?

Answer 73

If a witness engaged in a “bad act” that is probative of truthfulness (e.g., lying and cheating) he may be questioned about it on the stand. Extrinsic evidence is not permitted! If the witness denies the misconduct, evidence is not admissible to prove that it occurred. Required (getting the witness to admit it is the only way to prove the act)

Question 74

IMPEACHMENT: SENSORY DEFICIENCIES What it is, Is extrinsic Evidence permitted, and is conformation of the witness permitted/required?

Answer 74

Anything that concerns the witness’s perception or memory (e.g., if the witness is deaf, blind, has a bad memory, etc.) can be used to suggest the witness is mistaken. Extrinsic evidence is permitted. Permitted

Question 75

IMPEACHMENT: CONTRADICTION What it is, Is extrinsic Evidence permitted, and is conformation of the witness permitted/required?

Answer 75

witness may be impeached during cross-examination if she made a mistake or lied about anything she said during direct examination. If the witness won’t admit her mistake, extrinsic evidence may be used as long as the fact at issue is not a collateral (irrelevant) fact. Required (one must confront the witness prior to offering extrinsic evidence

Question 76

IMPEACHMENT: REPUTATION OR OPINION FOR TRUTHFULNESS What it is, Is extrinsic Evidence permitted, and is conformation of the witness permitted/required?

Answer 76

A party may call its own character witness to testify that the witness in question has a bad reputation for truthfulness or, in the character witness’s opinion, that the witness is not truthful. The witness is extrinsic evidence. Permitted

Question 77

Character evidence: What it is and Civil vs Criminal Cases

Answer 77

character evidence is generally inadmissible to prove that someone acted in accordance with his character. ►In civil cases, it is only admissible in cases regarding negligent entrustment or hiring, defamation, and child custody. It can be proven by (ROS) reputation, opinion, and specific acts. ► In criminal cases, the defendant must open the door and can use (RO) reputation or opinion evidence. The prosecution can use (ROS) reputation, opinion, and specific acts.

Question 78

MIMIC

Answer 78

CHARACTER EVIDENCE A defendant’s prior bad acts may be admissible to prove (MIMIC): motive, intent, lack of mistake, identity, common scheme or plan. Tip: MIMIC can be used in criminal and civil cases

Question 79

Character Evidence and Self-defense cases

Answer 79

A criminal defendant may offer evidence of the victim’s violent character using (RO) reputation or opinion evidence. The prosecution may rebut by introducing (RO) reputation or opinion evidence of the victim’s or defendant’s character.

Question 80

Character Evidence: Prior sexual misconduct of a defendant

Answer 80

If a defendant is accused of a sexual assault or child molestation, the court may admit evidence that the defendant committed any other sexual assault or child molestation. The evidence may be considered on any matter to which it’s relevant, including that he acted in accordance with his character. Tip: remember that only specific acts can be offered.

Question 81

Character Evidence: Prior sexual misconduct of a victim, Criminal Vs Civil Case

Answer 81

►In a criminal case, specific instances can be offered to prove the source of semen, injury, or other physical evidence; consent; or when excluding it would violate the defendant’s constitutional rights. ►In a civil case, evidence is not admissible unless the probative value substantially outweighs the danger of harm or unfair prejudice. The court may admit reputation evidence only if the victim places it in controversy.

Question 82

Expert Witness qualification:

Answer 82

a witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify if it is helpful to the trier of fact and based on sufficient facts or data.

Question 83

What can an expert rely on when making expert based testimony?

Answer 83

Expert bases of testimony: an expert may base an opinion on (1) personal knowledge, (2) facts that are in the record and made known to the expert by a hypothetical or testimony at trial, or (3) facts not in the record if they are the kind of facts other experts would reasonably rely on.

Question 84

Ultimate issue rule, what is the limit of what an expert can opine on.

Answer 84

An expert opinion may embrace an ultimate issue. But, in a criminal case, an expert witness must not state whether the defendant had the requisite mens rea.

Question 85

When is a lay witness's opinion allowed, and their knowledge requirement

Answer 85

A lay witness’s opinion is admissible if it is rationally based on the witness’s perception; helpful to determining a fact; and not based on scientific, technical, or other specialized knowledge. A lay witness must have personal knowledge.

Question 86

Exclusion of witnesses, Can witnesses be excluded?

Answer 86

At a party’s request a court must order a nonparty witness to be excluded. However, a court cannot authorize excluding a party, a person whose presence is essential to the claim or defense, or someone authorized to be present.

Question 87

Authentication of evidence

Answer 87

Authentication: the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.

Question 88

Authenticating Handwriting

Answer 88

Handwriting: to authenticate handwriting, one may use (1) a lay witness who was familiar with the handwriting before the litigation, (2) an expert witness, or (3) the trier of fact (e.g., the jury may compare the handwriting with an authenticated specimen).

Question 89

Authenticating a Voice

Answer 89

anyone can authenticate a voice—including a lay person—even if the person acquired familiarity with the voice solely for the purpose of litigation.

Question 90

Authenticating a photograph

Answer 90

Photograph: Anyone who has personal knowledge of the scene in the photograph may authenticate it. Tip: the photographer is not necessary to authenticate a photograph!

Question 91

Privledge and work product: Spousal immunity, Confidential communications:, Attorney-client privilege, Psychotherapist-patient privilege, Work-product doctrine

Answer 91

Spousal immunity: (1) it applies in a criminal trial, (2) it is held by the witness spouse, and (3) the parties must be married at the time of trial. Confidential communications: (1) it applies in a civil or criminal trial, (2) it is held by both spouses, (3) the communication was confidential, and (4) it was made during the marriage. Attorney-client privilege: the privilege applies to confidential communications between an attorney and client (or either’s agent) or prospective client made for the purpose of obtaining legal advice. Psychotherapist-patient privilege: confidential communications between a patient and a doctor for the purpose of diagnosis or treatment are protected. Work-product doctrine: material prepared for litigation may not be discovered absent a showing of a “substantial need” and “undue hardship.

Question 92

Insurance Coverage Exclusion of evidence

Answer 92

nsurance coverage is inadmissible to prove negligence but may be used for other purposes (e.g., to show agency, ownership, control, or bias)

Question 93

Exclusion of Subsequent remedial measures in evidence

Answer 93

Subsequent remedial measures are inadmissible to show negligence or guilt but may be used for impeachment, to show ownership or control, or to show feasibility of precautionary measures if disputed.

Question 94

Offer for settlement and offer to pay medical bills, policy evidence exclusion

Answer 94

An offer to settle a disputed claim and statements made during negotiations are inadmissible. An offer to pay medical bills is inadmissible to prove liability.

Question 95

When is a guilty plea inadmissible in evidence

Answer 95

A guilty plea is admissible. But, an offer to plead guilty, a guilty plea later withdrawn, a no contest plea, and statements made during negotiations that did not result in a guilty plea are inadmissible.