Evidence

Question 1

Relevance (TO)

Answer 1

• Evidence is relevant if:
  
  1. it has any tendency to make a fact more or less probable than it would be without it; AND
  2. the fact is of consequence in determining the action.
• Rule 403 Exclusions – The court may EXCLUDE relevant evidence if its probative value is substantially outweighed by a danger of:
  
  1. unfair prejudice;
  2. confusing the issues;
  3. misleading the jury;
  4. undue delay;
  5. wasting time; OR
  6. being needlessly cumulative.

Question 2

Lay Witness Testimony

Answer 2

• Is any person who gives testimony in a case that is not called as an expert
• Testimony is admissible if the witness:
  
  1. is competent to testify (competency is presumed unless rebutted); AND
  2. has personal knowledge of the matter.
• Lay witness may offer an opinion ONLY IF it’s:
  
  1. rationally based on perception;
  2. helpful to clearly understand the testimony or determine a fact (not a legal conclusion); AND
  3. not based on scientific, technical, or other specialized knowledge.

Question 3

Expert Witness Testimony (SH BBQ)

Answer 3

• Expert testimony is permitted when:
  
  1. witness is qualified as an expert;
  2. opinion is helpful to the jury;
  3. witness believes in the opinion to a reasonable degree of certainty;
  4. opinion is supported by sufficient facts or data; AND
  5. opinion is based on reliable principles and methods that were reliably applied.

Reliability→is based on (1) publication and peer review, (2) error rate, (3) testability, AND (4) if it’s generally accepted in the field.

Question 4

Hearsay & Non-Hearsay

Answer 4

• Out of court statement offered to prove the truth of the matter asserted. Unless an exception or exclusion applies.
  
  • Statement - a person’s oral or written assertion (assertive nonverbal acts are statements)
• Multiple Hearsay – each level of hearsay MUST fall within an exception or exclusion to be admissible.
• Non-Hearsay – If a statement is offered to prove something other than the truth of the statement, it’s not hearsay and is ADMISSIBLE.
  
  • Common Non-Hearsay Statements:
    
    1. Verbal acts of independent legal significance.
    2. To show the effect on the listener.
    3. Prior inconsistent statement used to impeach.
    4. Circumstantial evidence of the speaker’s state of mind

Questions can’t be hearsay because they are not an assertion.

Question 5

Statements by a Party Opponent

Answer 5

• Is any statement offered against an opposing party, AND
• That is:
  
  1. made by (TAACO):
     
     1. the party (or their representative);
     2. an authorized person;
     3. an agent/employee of the party acting within their scope; OR
     4. a co-conspirator.
  2. OR adopted or believed to be true by the party (silence may be sufficient);

Question 6

Prior Statements by a Witness

Answer 6

• A prior statement by a declarant-witness is deemed non-hearsay if:
  
  1. Declarant testifies;
  2. Declarant is subject to cross-examination about the prior statement; AND
  3. The prior statement:
     
     1. was inconsistent with prior-testimony and given under oath in a prior court proceeding or deposition;
     2. declarant identifies a person as someone they perceived earlier; OR
     3. is consistent with prior testimony and is offered to either (i) rebut that the declarant is lying, or (ii) to rehabilitate declarant’s credibility.

Question 7

Present Sense Impression

Answer 7

• Is a statement describing an event made by the declarant:
  
  • while observing the event; OR
  • immediately thereafter.

*A few minutes after the event is ok.

Question 8

Excited Utterance

Answer 8

• Is a statement relating to:
  
  1. a startling event or condition,
  2. made while the declarant was under the stress of excitement that the event/condition caused.

Question 9

Business Records Exception (3R2M1O)

Answer 9

• Admissible if it’s:
  
  1. a record of events, conditions, opinions, diagnoses,
  2. kept in the regular course of business,
  3. made at or near the time of the matter described,
  4. made by a person with knowledge,
  5. is the regular practice of the business, AND
  6. the opponent party does not show a lack of trustworthiness (does not indicate that the circumstances of the writing indicate untrustworthiness.

Question 10

Statements Made for Medical Diagnosis/Treatment

Answer 10

• Not excluded by the hearsay rule when the statement:
  
  1. is made for (and reasonably pertinent to) medical diagnosis or treatment; AND
  2. describes medical history or symptoms (past or present).

*Statements that are not relevant to medical diagnosis or treatment DO NOT fall within this hearsay exception.

Question 11

Statements of Mental, Emotional, or Physical Condition

Answer 11

• Admissible when the statement is of declarant’s:
  
  1. then-existing state of mind (motive, intent, or plan); OR
  2. emotional, sensory, or physical condition.

*BUT, statements of memory or belief are NOT admissible unless it relates to the validity or terms of the declarant’s will.

Question 12

Statement Against Interest

Answer 12

• Admissible if:
  
  1. it’s a statement against the declarant’s penal, proprietary, or pecuniary interest when made;
  2. declarant has firsthand knowledge;
  3. a reasonable person in the declarant’s position would have made the statement only if they believed it to be true; AND
  4. declarant is unavailable.

*Criminal cases→it must be supported by corroborating circumstances that clearly indicate its trustworthiness.

Question 13

Past Recollection Recorded

Answer 13

• Is a record made on a matter the witness once knew about, but now cannot recall well enough to testify fully and accurately.
• Is admissible if:
  
  1. witness had personal knowledge at one time;
  2. writing was made or adopted by the witness;
  3. it was made while the event was still fresh in the witness’s mind;
  4. is accurate; AND
  5. witness can no longer remember the event.

*The record may be read into evidence, BUT it can only be received as an exhibit if offered by an adverse party.

Question 14

6th Amendment Right To Confront Witness

Answer 14

• The Confrontation Clause gives a criminal defendant the right to confront witnesses against him.
• The use of an out-of-court statement (even if within a hearsay exception) violates the 6th Amend. when:
  
  1. The statement is testimonial;
  2. Declarant is unavailable to be cross-examined at trial; AND
  3. D did not have an opportunity to cross-examine the declarant before trial.
• Testimonial = Statements made to:
  
  1. Grand juries;
  2. Affidavit or Certified Report with forensic lab results; OR
  3. The police whose primary purpose (when viewed objectively) was to collect testimony to be used at a later trial.
  4. *A statement to assist the police in an ongoing emergency is NOT testimonial.

Ongoing Emergency – Existence of an ongoing emergency determined by: (1) nature of the dispute; (2) potential harm to the victim; (3) threat to additional identifiable victims; (4) generalized threat to the public; (5) type of weapon; and (6) whether suspect is at large or located, but not apprehended.

Question 15

Physician-Patient Privilege

Answer 15

• Most States recognize the privilege if (1) it’s a confidential patient communication, (2) made to a physician, (3) for the purpose of medical diagnosis or treatment.
  
  • The patient holds the privilege, BUT it may be waived when a medical condition is placed in issue (i.e. personal injury lawsuit).
• Federal Courts: DO NOT recognize the privilege. − However, state law governs privilege for civil cases in federal court on a claim/defense when state law supplies the rule of decision.

Question 16

Character Evidence

Answer 16

• Generally, character evidence is NOT admissible to prove propensity (that a person acted in conformity with a character trait on a particular occasion).
  
  • BUT, character evidence is generally ALLOWED for non-propensity purposes (i.e. when character is an ultimate issue in the case→defamation).
• Criminal Case
  
  • D’s character - D can ALWAYS offer evidence of his own character. Prosecution is NOT allowed to prove D acted in accordance with D’s character trait unless D opens the door.
  • Victim’s character (not involving rape) - D can offer reputation and opinion evidence to show victim’s character which shows D’s innocence. D can open the door by presenting evidence of victim’s character.
    
    • In a homicide case, prosecution can show victim’s peacefulness only if D claims victim was the aggressor (self- defense).
• Civil Case
  
  • Character evidence to prove propensity is generally NOT admissible in a civil case.
• Methods of Proving Character:
  
  • Direct examination → opinion, reputation
  • Cross-examination→opinion, reputation, specific acts.

Question 17

Prior Bad Acts (crimes, wrongs, acts)

Answer 17

• Generally NOT admissible to show propensity.
• Is admissible for non-propensity purposes→Motive, Identity, Absence of Mistake/Accident, Intent, Common Plan or Scheme, Opportunity, or Preparation.
• To offer such evidence, the proponent MUST show that:
  
  1. the prior act was committed (by a preponderance of evidence); AND
  2. the probative value substantially outweighs the danger of unfair prejudice.

Question 18

Habit/Routine Practice

Answer 18

• Admissible to show that a person (or organization) acted in accordance with their habit or routine practice.
  
  • Habit = a regular response to a repeated situation.

Question 19

Refreshing Recollection

Answer 19

• Refreshing a witness’s recollection using any document is permitted when the witness:
  
  • once had personal knowledge of the matter, but
  • is unable to recall it while testifying.

Only the opposing party may offer into evidence the item used to refresh (unless it’s admissible on other grounds).

Question 20

Impeachment

Answer 20

1. Prior Convictions
2. Specific Instances of Conduct
3. Prior Inconsistent Statements
4. Character for Truthfulness
5. Ability Observe, Remember, or Relate Facts
6. Bias
7. Hearsay Declarants

Question 21

Prior Inconsistent Statement

Answer 21

• Admissible to impeach a witness.
• Need not show/disclose contents of the statement to the witness during examination, BUT must show it to an adverse party’s attorney upon request.
• Extrinsic Evidence is admissible ONLY IF:
  
  1. Relevant to a material issue at trial (one other than the witness’s credibility); AND
  2. Proper foundation is shown (witness is first given an opportunity to explain or deny the statement and an adverse party is given an opportunity to cross-examine about it).

*The above requirements DO NOT apply when extrinsic evidence is offered against a party opponent.

Question 22

Prior Convictions

Answer 22

• Evidence of prior convictions may be admitted in certain instances.
• Prior Felony / Misdemeanor involving Dishonesty→ ALWAYS admissible to impeach.
  
  • Theft crimes are not crimes of dishonesty.
• Other Misdemeanors→NOT admissible to impeach.
• Felonies that DO NOT involve Dishonesty:
  
  • Civil & Criminal Cases → Admissible but not against D (subject to Rule 403 exclusions). Admissible against D only in Criminal and if probative>prejudice.
• 10-Year Exception→If 10-years have passed (from conviction or release from jail – whichever is later), the conviction is NOT admissible.

Felony = a crime punishable by: (a) death; OR (b) imprisonment over 1-year.

Question 23

Specific Instances of Conduct

Answer 23

• A witness’s credibility may be attacked on cross-examination by questions with specific instances of conduct (prior bad acts) ONLY IF the conduct is probative of the witness’s character for truthfulness or untruthfulness.
• Extrinsic evidence is NEVER admissible to attack or support such instances of a witness’s credibility. (If witness denies conduct then must move on)

Question 24

Character for Truthfulness

Answer 24

• A witness’s credibility may be attacked or supported by:
  
  1. Reputation testimony about the witness’s character for truthfulness / untruthfulness; OR
  2. Opinion testimony.

*BUT, evidence of the witness’s truthful character is admissible ONLY AFTER ATTACKED.

Question 25

Public Records

Answer 25

• The following records are admissible:
  
  1. a record describing policies and practices of a public office;
  2. observations made by someone in accordance with his duties by law (but excludes police reports in criminal case); OR
  3. factual findings from a legally authorized investigation (but only in civil cases or against the government in a criminal case).

*BUT, such records will NOT be admitted if the opponent party shows a lack of trustworthiness. (conditions in wich public records were made are untrustworthy)

Question 26

Policy Exlcusions

Answer 26

• Subsequent Remedial Measures - such evidence is NOT admissible to prove negligence, culpable conduct, a defect in a product, or a need for warning or instruction. BUT, such evidence may be admitted for other purposes (impeachment, control, ownership, feasibility)
• Compromise/Settlement Offers & Negotiations – Statements and offers made during settlement negotiations are NOT admissible to:
  
  1. prove the validity or amount of a disputed claim; OR
  2. impeach by a prior inconsistent statement.
• Paying or Offering to Pay Medical Expenses NOT admissible to prove liability, BUT any related statements or factual admissions are admissible.
• Liability Insurance - NOT admissible to prove culpability, BUT admissible for other purposes (i.e. ownership, control, agency).