Evidence

Question 1

HIGH

**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

LOW

LEGAL RELEVANCE (6)

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:

1. unfair prejudice,
2. confusing the issues,
3. misleading the jury,
4. undue delay,
5. wasting time, or
6. needlessly presenting cumulative evidence.

Question 3

MED

*POLICY EXCLUSION: SUBSEQUENT REMEDIAL MEASURES

Answer 3

Subsequent remedial measures are actions taken after an injury or harm that make future injury less likely (e.g., installing a handrail after a person falls down the stairs).

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

LOW

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

LOW

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

HIGH

**THREE FORMS OF CHARACTER EVIDENCE

Answer 6

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 7

HIGH

**APPLICATION OF CHARACTER EVIDENCE IN CIVIL CASES

Answer 7

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 8

HIGH

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

Answer 8

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 9

HIGH

**CIVIL CASES BASED ON THE DEFENDANT’S SEXUAL MISCONDUCT

Answer 9

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 10

HIGH

**APPLICATION OF CHARACTER EVIDENCE IN CRIMINAL CASES

Answer 10

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. However, 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. The prosecution can:

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 11

HIGH

**PRESENTING CHARACTER EVIDENCE OF A VICTIM

Answer 11

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 12

HIGH

**EVIDENCE OFFERED TO PROVE A VICTIM’S SEXUAL BEHAVIOR

Answer 12

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 13

HIGH

**M.I.M.I.C.

Answer 13

Specific instances of conduct are generally NOT admissible to show propensity, but are admissible to show (M.I.M.I.C.):

1. Motive or opportunity,
2. Intent,
3. Absence of Mistake,
4. Identity, or
5. 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 14

MED

*HABIT AND ROUTINE PRACTICES

Answer 14

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.

The court may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness. Habit and routine practices are more specific than character evidence (look for buzz words like “always” or “every time” to signal a habit or routine practice).

Question 15

MED

*IMPEACHMENT BY CHARACTER EVIDENCE OF UNTRUTHFULNESS

Answer 15

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 16

MED

*IMPEACHMENT BY PRIOR CONVICTIONS

Answer 16

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.

Evidence of a prior conviction is NOT admissible if the conviction was:

(1) Pardoned;
(2) Annulled; OR
(3) Later found innocent

Question 17

LOW

IMPEACHMENT BY PRIOR INCONSISTENT STATEMENTS

Answer 17

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 18

LOW

IMPEACHMENT BY SENSORY COMPETENCE

Answer 18

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 19

LOW

IMPEACHMENT OF A HEARSAY DECLARANT

Answer 19

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 20

LOW

LAY WITNESS TESTIMONY (3)

Answer 20

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 21

lowest

EXPERT WITNESS TESTIMONY (5)

Answer 21

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.

An expert may give an opinion regarding an ultimate issue; however, an expert CANNOT give an opinion as to whether a criminal defendant had the requisite mental state for the crime charged (i.e., an expert cannot make decisions intended for the jury)

Question 22

LOW

SPOUSAL IMMUNITY

Answer 22

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

In federal court and the majority of states, the witness-spouse holds the privilege and may choose whether or not to testify. In a minority of states, the defendant-spouse holds the privilege and may prevent the witness-spouse from testifying

Question 23

LOW

CONFIDENTIAL MARITAL COMMUNICATIONS

Answer 23

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.

Unlike spousal immunity, this privilege:

1. Is held by both spouses (i.e., either spouse may assert it);
2. Applies to BOTH criminal AND civil proceedings; AND
3. Extends beyond the end of the marriage (i.e., may be asserted even if the spouses are divorced).

Question 24

MED

*AUTHENTICATION

Answer 24

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 25

MED

*AUTHENTICATION OF PHYSICAL EVIDENCE

Answer 25

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 26

MED

*AUTHENTICATION OF DOCUMENTARY EVIDENCE (3)

Answer 26

Documentary evidence (e.g., letters, contracts, etc.) may be authenticated through:

1. Stipulation (both parties agree),
2. Witness testimony, or
3. Handwriting verification.
   
   1. 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.
   2. 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 27

MED

*SELF-AUTHENTICATING DOCUMENTS (8)

Answer 27

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 28

LOW

BEST EVIDENCE RULE (ORIGINAL DOCUMENT RULE)

Answer 28

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 29

HIGH

**HEARSAY IN GENERAL

Answer 29

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 30

HIGH

**NON-HEARSAY: OUT-OF-COURT STATEMENTS NOT OFFERED TO PROVE THE TRUTH OF THE MATTER ASSERTED (4)

Answer 30

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 31

HIGH

**NON-HEARSAY: PRIOR INCONSISTENT STATEMENTS

Answer 31

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 32

HIGH

**NON-HEARSAY: PRIOR CONSISTENT STATEMENTS

Answer 32

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 33

HIGH

**NON-HEARSAY: PRIOR STATEMENTS OF IDENTIFICATION

Answer 33

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 34

HIGH

**NON-HEARSAY: ADMISSIONS BY A PARTY OPPONENT

Answer 34

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.

Adoptive Admissions. 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.

Vicarious Admissions. 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 35

HIGH

**THE UNAVAILABILITY REQUIREMENT FOR HEARSAY EXCEPTIONS (5)

Answer 35

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.

Question 36

HIGH

**HEARSAY EXCEPTIONS THAT APPLY ONLY IF THE DECLARANT IS DEEMED UNAVAILABLE (4)

Answer 36

The following four hearsay exceptions apply ONLY IF the declarant is deemed unavailable:

1. Former testimony;
2. Dying declarations;
3. Statements against interest; AND
4. Forfeiture by wrongdoing.

Question 37

LOW

HEARSAY EXCEPTION: FORMER TESTIMONY

Answer 37

Former testimony is admissible if:

1. The declarant is unavailable;
2. The statement was prior testimony given at a trial hearing or deposition [not a grand jury]; AND
3. The opposing party had an opportunity and similar motive to develop the testimony through cross or direct examination.

Prior testimony at grand jury does NOT qualify as former testimony.

Question 38

lowest

HEARSAY EXCEPTION: DYING DECLARATION (4)

Answer 38

A statement is admissible if:

1. The declarant is unavailable;
2. The declarant believed that her death was imminent when she made the statement;
3. The statement pertains to the cause or circumstances of her death; AND
4. The action involved is a civil case or homicide.

Question 39

LOW

HEARSAY EXCEPTION: STATEMENT AGAINST INTEREST (3)

Answer 39

A statement is admissible if:

1. The declarant is unavailable;
2. The statement is against the declarant’s self- interest; AND
3. A reasonable person would NOT have made the statement unless he believed it to be true.

Question 40

HIGH

**HEARSAY EXCEPTION: PRESENT SENSE IMPRESSION

Answer 40

A present sense impression is admissible as a valid exception to the hearsay rule. A present sense impression is a statement made by the declarant in which she describes an event as it takes place or immediately thereafter.

Question 41

HIGH

**HEARSAY EXCEPTION: EXCITED UTTERANCE

Answer 41

An excited utterance is admissible as a valid exception to the hearsay rule.

An excited utterance is a statement that concerns a startling event, made by the declarant when the declarant is still under stress from the startling event.

Question 42

LOW

HEARSAY EXCEPTION: STATE OF MIND

Answer 42

A statement of the declarant’s then-existing state of mind [e.g., motive, intent, or plan] or emotional, sensory, or physical condition [e.g., mental feeling, pain, or bodily health] is admissible to prove the declarant’s state of mind or the declarant’s conduct.

[A statement regarding memory, a past belief, or a past state of mind to prove the fact remembered or believed is NOT admissible unless it relates to the validity or terms of the declarant’s will]

Question 43

HIGH

**HEARSAY EXCEPTION: MEDICAL DIAGNOSIS OR TREATMENT

Answer 43

A statement of a person’s past or present condition is admissible so long as it is made for the purpose of medical diagnosis or treatment.

Question 44

LOW

RECORDED RECOLLECTION (4)

Answer 44

The record may be read into evidence [only opposing counsel can decide to enter it as an exhibit into evidence] if the witness cannot recall events or information provided that:

1. The record is about a matter the witness once had personal knowledge of;
2. The record was made or adopted by the witness when the matter was fresh in the witness’s mind;
3. The record accurately reflects the witness’s personal knowledge; AND
4. The witness can no longer recall the events or information well enough to testify, even after reviewing the writing while on the stand.

Question 45

LOW

PRESENT RECOLLECTION REFRESHED

Answer 45

Present recollection refreshed allows a witness to glance at almost any item (usually a writing) to refresh her memory while on the stand (the item is taken away while the witness is testifying and it is NOT admitted into evidence).

Question 46

MED

*HEARSAY EXCEPTION: BUSINESS RECORDS

Answer 46

A business record is admissible as a valid exception to the hearsay rule if the record is:

1. Kept in the course of regularly conducted business; AND
2. Made by a person with knowledge of the matter at or near the time of the matter’s occurrence (e.g., a secretary who logs calls as they come in).

A business record is NOT admissible if the opponent can show that the source or preparation of the record lacks trustworthiness.

Question 47

MED

*6th AMENDMENT CONFRONTATION CLAUSE (4)

Answer 47

The Confrontation Clause guarantees a person accused of a crime the right to confront witnesses against him in a criminal action (i.e., the right to be present at trial and the right to cross-examine the prosecution’s witnesses).

The use of an out-of-court statement violates the defendant’s constitutional rights under the Confrontation Clause if:

1. The proceeding is a criminal action [not civil];
2. The statement is testimonial [a statement is testimonial if the declarant would reasonably expect that the statement would be used for prosecution purposes];
3. The declarant is unavailable to be cross-examined at trial; AND
4. The defendant did NOT have an opportunity to cross-examine the declarant at a proceeding prior to trial.

A common issue is whether statements made to police are testimonial. A statement made to police whose primary purpose is to collect evidence to be used in a future criminal prosecution is testimonial. A statement made to police whose primary purpose is to provide assistance in an ongoing emergency is NOT testimonial.