Evidence Flashcards

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1
Q

What facts are subject to judicial notice?

A

Only those facts that are not subject to reasonable dispute because they are either (i) generally known within the territorial jurisdiction of the trial court, or (ii) capable of being accurately and readily determined from sources whose accuracy cannot reasonably be questioned are subject to judicial notice.

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2
Q

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

A

The party offering the evidence ordinarily bears the burden of persuasion.

Note: The party offering the evidence is often referred to as the moving party, or the proponent.

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3
Q

What are the four requirements to admit a record under the recorded recollection hearsay exception?

A

(i) The record is on a matter that the witness once knew about;
(ii) The witness made/adopted the record when the matter was fresh in the witness’s memory;
(iii) The record accurately reflects the witness’s knowledge; and
(iv) The witness states that she cannot recall the event well enough to testify fully and accurately, even after consulting the record on the stand.

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4
Q

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

A

The party offering the evidence ordinarily bears the burden to persuade the judge by a preponderance of the evidence.

Note: This is also expressed as more likely than not.

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5
Q

What is an offer of proof?

A

An offer of proof is an oral or written explanation of the relevance and admissibility of the evidence being offered by the proponent on the record.

Note: An offer of proof is often made outside the presence of the jury as it can include hearsay or otherwise inadmissible evidence that could prejudice the jury.

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6
Q

What is the plain error rule?

A

A plain error is one that is obvious to the reviewing court. A plain error that affects a substantial right is grounds for reversal, even if no objection was made.

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7
Q

Explain the completeness doctrine.

A

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

Note: This rule allows the adverse party to have the omitted portion admitted immediately to ensure the finder of fact is not viewing the evidence too narrowly. This is really a rule of fairness.

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8
Q

When are leading questions proper on direct examination?

A

Leading questions are proper on direct examination when necessary to develop the witness’s testimony, including (i) preliminary background matters, (ii) hostile witnesses, and (iii) minors or those with difficulty communicating.

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9
Q

For impeachment purposes, distinguish between the pendency of an appeal of a conviction and a pardon.

A

A pardon releases the punishment and eliminates the guilt for the offense, so that in the eyes of the law the offender is as innocent as if he had never committed the offense. Evidence of the witness’s conviction is not admissible if it has been the subject of a pardon.

A witness’s conviction may be used for impeachment purposes even if an appeal is pending. Evidence of the pendency is also admissible.

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10
Q

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

A

To be entitled to such an inference, the alleged victim must establish that:

(i) The destruction was intentional;
(ii) The destroyed evidence was relevant to the issue about which the party seeks such inference; and
(iii) The alleged victim acted with due diligence as to the destroyed evidence.

Note: This presumption is rebuttable.

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11
Q

What is the difference between direct and circumstantial evidence?

A

Direct evidence is identical to the factual proposition that it is offered to prove. An example is witness testimony as to what the witness personally heard, saw, or experienced. Circumstantial evidence tends to indirectly prove a factual proposition through an inference from collateral facts.

Example: A witness seeing the defendant shoot the victim (direct evidence the defendant shot the victim), versus seeing the defendant holding a gun while exiting an alley where a person is lying on the ground bleeding from a gunshot wound (circumstantial evidence the defendant shot the victim).

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12
Q

To what proceedings do the Federal Rules of Evidence apply? What proceedings are exempted from these rules?

A

The Federal Rules generally apply to all civil and criminal proceedings before United States district courts, courts of appeal, Bankruptcy Court, and Claims Court, and in proceedings before United States magistrates.

Exceptions:

(i) The court’s determination of a preliminary question of fact governing admissibility;
(ii) Grand jury proceedings; and
(iii) Criminal proceedings for:
(a) The issuance of a search or arrest warrant or a criminal summons;
(b) A preliminary examination in a criminal case;
(c) Extradition or rendition;
(d) Consideration of bail or other release;
(e) Sentencing; and
(f) Granting or revoking probation or supervised release.

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13
Q

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

A

The opinion must be:

(i) Rationally based on the perception of the witness; and
(ii) Helpful to a clear understanding of the witness’s testimony or the determination of a fact in issue.

Additionally, the opinion must not be based on scientific, technical, or specialized knowledge.

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14
Q

When is habit evidence admissible?

A

Evidence of a person’s habit or an organization’s routine is admissible to prove that the person or organization acted in accordance with the habit or routine on a particular occasion. It may be admitted without corroboration or an eyewitness.

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15
Q

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

A

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

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16
Q

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

A

When the hearing involves the admissibility of a confession, when the defendant in a criminal trial is a witness and so requests it, or when justice requires it.

Note: While many preliminary questions of admissibility are determined in front of the jury, it is the judge who makes the determination, and it is the jury, then, that assigns weight to the evidence.

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17
Q

What is the difference between the application of a Dead Man’s Statute in a criminal case versus a civil case?

A

Dead Man’s Statutes do not apply in criminal cases. In civil cases, a party with a financial interest in the outcome of a case is not permitted to testify adversely about a communication or transaction with a person whose estate is a party to the case.

Note: The rationale is to protect a decedent’s estate from parties who claim the decedent said or did something that affects the financial outcome of the case. The Federal Rules do not include a Dead Man’s Statute. This may arise in the context of a federal court applying state law (i.e., diversity cases) if the fact pattern specifically says that the jurisdiction has a Dead Man’s Statute.

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18
Q

What are the two methods by which handwriting can be authenticated?

A
  1. An expert witness or the trier of fact may compare the writing in question with another writing that has been proven to be genuine; or
  2. A lay witness with personal knowledge of the claimed author’s handwriting may authenticate the handwriting, as long as the witness did not become familiar with the handwriting for the purposes of the current litigation.
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19
Q

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

A

The prosecution can offer:

(i) Rebuttal evidence of a victim’s good character when the defendant has introduced evidence of the victim’s bad character; and
(ii) Evidence of the victim’s character trait for peacefulness in homicide cases to rebut evidence that the victim was the first aggressor.

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20
Q

When can evidence that a criminal defendant committed another sexual assault be admitted?

A

In a criminal case in which a defendant is accused of sexual assault, attempted sexual assault, or conspiracy to commit sexual assault, evidence that the defendant committed any other sexual assault is admissible to prove any relevant matter.

Note: The court does have discretion to exclude such evidence under Rule 403 when the probative value is substantially outweighed by the danger of unfair prejudice.

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21
Q

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

A

A judge is absolutely barred from testifying as a witness in the trial in which she is presiding.

Note: Allowing the judge to testify would corrupt the fact-finding process. The fact-finder is charged with assessing a witness’s credibility. If the judge is the fact-finder, assessing her own credibility is impossible. If a jury is the fact finder, the judge’s testimony (and other judicial rulings in the trial) may be given too much or too little weight.

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22
Q

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

A

(i) A party who is a natural person;
(ii) An officer or employee of a party that is not a natural person, after the individual has been designated as the party’s representative by its attorney, including the investigating officer;
(iii) A person whose presence is essential to a party’s presentation of its case; and
(iv) A person whose presence is permitted by statute (e.g., victims).

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23
Q

When may a judge take notice of an adjudicative fact?

A

The fact is not subject to reasonable dispute because:

(i) It is generally known within the territorial jurisdiction of the trial court; or
(ii) It can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.

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24
Q

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

A

The conviction is admissible if:

(i) Its probative value substantially outweighs its prejudicial effect; and
(ii) The proponent gives the adverse party reasonable written notice of intent to use the evidence.

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25
Q

What is the “bursting bubble” approach to burden shifting?

A

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

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26
Q

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

A

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

Note: This is a good area to also be thinking about the rule against hearsay and its exceptions (See FRE 803 (22)) and authentication (see FRE 902).

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27
Q

What is the rule of completeness?

A

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

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28
Q

What are the three standards of proof?

A

(i) Preponderance of the evidence
(ii) Clear and convincing evidence
(iii) Beyond a reasonable doubt

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29
Q

What is the definition of hearsay?

A

Hearsay is a statement that the declarant makes at a time other than while testifying at the current trial or hearing (i.e., an out-of-court statement) that is offered to prove the truth of the matter asserted.

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30
Q

List three examples of preliminary questions of admissibility that a judge, rather than a jury, would determine.

A

(i) competency of evidence, including the admissibility of evidence; (ii) whether a privilege exists; (iii) whether a person is qualified to be a witness.

Note: Judges also determine whether an exception would apply to allow hearsay into the record.

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31
Q

What two elements do the Confrontation Clause of the Sixth Amendment require in order for out-of-court testimonial statements to be used against a criminal defendant?

A

(i) The declarant must be unavailable; and
(ii) The defendant must have had a prior opportunity to cross-examine the declarant.

Note: The Confrontation Clause does not preclude the admission of a dying declaration as hearsay, even if the statement is testimonial.

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32
Q

At what time can a court take judicial notice?

A

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

Note: The court may not take judicial notice against a criminal defendant for the first time on appeal.

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33
Q

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

A

(i) Is the subject matter scientific, technical, or other specialized knowledge, (i.e., reliability assessment); and
(ii) Will it help the trier of fact understand the evidence or determine a fact in issue (i.e., relevance assessment).

34
Q

What are the three requirements to admit a record under the records of regularly conducted activity (i.e., business records) hearsay exception?

A

(i) The record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling;
(ii) The making of the record was a regular practice of that activity; and
(iii) The record was made at or near the time by someone with knowledge.

35
Q

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

A

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

Note: This is a lesser standard than a preponderance of the evidence.

36
Q

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

A

Present Sense Impression: A statement describing or explaining an event or condition that is made while or immediately after the declarant perceived it

Excited Utterance: A statement made about a startling event or condition while the declarant is under the stress of excitement that it caused

A present sense impression must be a description of the event, whereas an excited utterance need only relate to the exciting event.

37
Q

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

A

By testifying that:

(i) The caller recognized the speaker’s voice;
(ii) The speaker knew facts that only a particular person would know;
(iii) The caller dialed a number believed to be the speaker’s, and the speaker identified himself upon answering; or
(iv) The caller dialed a business and spoke to the person who answered about business regularly conducted over the phone.

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

38
Q

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

A

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

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

39
Q

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

A

Evidence of a juvenile adjudication is NOT admissible against a defendant. Another witness may be impeached by evidence of a juvenile adjudication, but ONLY IF:

(i) it is offered in a criminal case,
(ii) an adult’s conviction for that offense would be admissible to attack the adult’s credibility; and
(iii) admitting the evidence is necessary to fairly determine guilt or innocence.

Note: Remember, regardless of how probative a juvenile adjudication might be, if it is being used against a criminal defendant, it is inadmissible.

40
Q

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

A
  1. By testimony of personal knowledge of the object;
  2. By testimony of its distinctive characteristics;
  3. By chain of custody when a physical object that could easily be tampered with or confused with a similar item (e.g., a blood sample)
41
Q

What is required for evidence to be “relevant?”

A

Evidence is relevant if:

(i) It has any tendency to make a fact more or less probable than it would be without the evidence (i.e., probative); and
(ii) The fact is of consequence in determining the action (i.e., material).

42
Q

When may “work product” be subject to discovery?

A

Work product is not subject to discovery unless the party seeking disclosure

(i) Demonstrates a substantial need for the information; and
(ii) Cannot obtain the information by any other means without undue hardship.

Note: The mental impressions, conclusions, and trial tactics of an attorney are always protected from discovery.

43
Q

What is the “rape shield” rule?

A

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

44
Q

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

A

When character evidence is an essential element of a claim or defense.

When admissible in a civil case, character may be proved by reputation, opinion, and specific instances of a person’s conduct.

45
Q

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

A
  1. When character is an essential element of a charged crime and a defendant offers specific acts inconsistent with the crime;
  2. For non-propensity purposes (e.g., “MIMIC” evidence (Motive, Intent, absence of Mistake, Identity, or Common plan)); and
  3. When a character witness is asked on cross-examination about specific acts committed by the person about whom the witness is testifying.
46
Q

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

A

A statement is non-hearsay if offered:

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

47
Q

List three examples of habit evidence.

A

Habit can be the regular practice of a business or an individual. Examples can be positive (always) or negative (never).

Examples: (i) a company ““routinely”” matches employee’s charitable contributions, (ii) a person ““never”” smokes, (iii) a person ““always”” wears a seatbelt.

48
Q

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

A

If the statement:

(i) Was against the declarant’s interest at the time it was made; and
(ii) Would not have been made by a reasonable person unless he believed it to be true.

49
Q

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

A

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

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

50
Q

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

A

Compromise offers and any conduct or statements made during compromise negotiation are inadmissible by either party:

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

51
Q

What is an offer of proof?

A

An offer of proof is an oral or written explanation of the relevance and admissibility of the evidence being offered by the proponent on the record.

Note: An offer of proof is often made outside the presence of the jury as it can include hearsay or otherwise inadmissible evidence that could prejudice the jury.

52
Q

What four requirements must be met for an expert witness to offer opinion testimony?

A

(i) The witness is qualified as an expert by knowledge, skill, experience, training, or education;
(ii) The testimony is based on sufficient facts or data;
(iii) The testimony is the product of reliable principles and methods; and
(iv) The witness applied the principles and methods reliably to the facts of the case.

Note: The expert must also possess a reasonable degree of certainty in her opinion, which may be expressed using language such as “probably.”

Also note: While a witness may state an opinion about a matter, even though the opinion embraces an ultimate issue in the case, an expert may not state an opinion about whether a criminal defendant had the requisite mental state of any element of the crime charged or of a defense.

53
Q

When are leading questions proper on direct examination?

A

Leading questions are proper on direct examination when necessary to develop the witness’s testimony, including (i) preliminary background matters, (ii) hostile witnesses, and (iii) minors or those with difficulty communicating.

54
Q

Who bears the burden of production in a civil case?

A

The moving party in a civil case is the plaintiff. Therefore the plaintiff bears the burden of production, or moving forward, with the evidence.

Note: Failure to meet this burden could result in a directed verdict against the party bearing the burden.

55
Q

What are the two spousal privileges?

A

Spousal Immunity: For the duration of their marriage, a married person cannot be compelled to testify against their spouse in any criminal proceeding.

Confidential Marital Communications: Communication made between spouses while they were married is privileged if the communication was made in reliance on the sanctity of marriage.

56
Q

When is habit evidence admissible?

A

Evidence of a person’s habit or an organization’s routine is admissible to prove that the person or organization acted in accordance with the habit or routine on a particular occasion. It may be admitted without corroboration or an eyewitness.

57
Q

Who bears the burden of production in a criminal case?

A

The moving party in a criminal case is the prosecution. Therefore the government bears the burden of production, or moving forward, with the evidence.

Note: Failure to meet this burden could result in a judgment of acquittal.

58
Q

List three examples of habit evidence.

A

Habit can be the regular practice of a business or an individual. Examples can be positive (always) or negative (never).

Examples: (i) a company ““routinely”” matches employee’s charitable contributions, (ii) a person ““never”” smokes, (iii) a person ““always”” wears a seatbelt.

59
Q

When may “work product” be subject to discovery?

A

Work product is not subject to discovery unless the party seeking disclosure

(i) Demonstrates a substantial need for the information; and
(ii) Cannot obtain the information by any other means without undue hardship.

Note: The mental impressions, conclusions, and trial tactics of an attorney are always protected from discovery.

60
Q

When is a juror permitted to be called as a witness in a trial in which she is presently a juror?

A

A juror may not testify as a witness at trial in front of the members of the jury.

Note: The fact-finder is charged with assessing a witness’s credibility. A juror cannot assess their own credibility as a fact or a character witness. However, a juror may be called before the court (outside the presence of the other jurors) to testify as to anything that might have occured with the trial process itself such as bribes, threats, or failure to follow the court’s instructions.

61
Q

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

A

The opinion must be:

(i) Rationally based on the perception of the witness; and
(ii) Helpful to a clear understanding of the witness’s testimony or the determination of a fact in issue.

Additionally, the opinion must not be based on scientific, technical, or specialized knowledge.

62
Q

What are the three types of prior statements by a declarant witness that are defined by the FRE as non-hearsay?

A

(1) Prior inconsistent statements made under penalty of perjury;
(2) Prior consistent statements admitted to (i) rehabilitate the witness’s credibility or (ii) rebut a suggestion of recent fabrication or improper motive, as long as the prior statement was made before the witness had reason to fabricate;
(3) Prior statements of identification of a person after perceiving that person

63
Q

What is limited admissibility?

A

Limited admissibility means that evidence may be admissible for one purpose but not for another, or against one party but not against another. In these cases, if a party makes a timely request, the court must restrict the evidence to its proper scope and instruct the jury accordingly.

A common example is when a criminal defendant is testifying. The defendant has now put credibility in issue, and impeachment with a prior conviction might be admissible. The defendant’s attorney would make a request to have the court instruct the jury that the conviction should only be used for the limited purpose of assessing credibility, rather than determining guilt or innocence.

64
Q

What are the three standards of proof?

A

(i) Preponderance of the evidence
(ii) Clear and convincing evidence
(iii) Beyond a reasonable doubt

65
Q

What is the difference between the application of a Dead Man’s Statute in a criminal case versus a civil case?

A

Dead Man’s Statutes do not apply in criminal cases. In civil cases, a party with a financial interest in the outcome of a case is not permitted to testify adversely about a communication or transaction with a person whose estate is a party to the case.

Note: The rationale is to protect a decedent’s estate from parties who claim the decedent said or did something that affects the financial outcome of the case. The Federal Rules do not include a Dead Man’s Statute. This may arise in the context of a federal court applying state law (i.e., diversity cases) if the fact pattern specifically says that the jurisdiction has a Dead Man’s Statute.

66
Q

When is silence in response to a statement considered an adoptive admission?

A

(i) The person was present and heard and understood the statement;
(ii) The person had the ability and opportunity to deny the statement; and
(iii) A reasonable person similarly situated would have denied the statement.

Note: Post-arrest silence by a defendant who has received Miranda warnings may not be used as an adoptive admission of a statement made by another person.

67
Q

For impeachment purposes, distinguish between the pendency of an appeal of a conviction and a pardon.

A

A pardon releases the punishment and eliminates the guilt for the offense, so that in the eyes of the law the offender is as innocent as if he had never committed the offense. Evidence of the witness’s conviction is not admissible if it has been the subject of a pardon.

A witness’s conviction may be used for impeachment purposes even if an appeal is pending. Evidence of the pendency is also admissible.

68
Q

What is the plain error rule?

A

A plain error is one that is obvious to the reviewing court. A plain error that affects a substantial right is grounds for reversal, even if no objection was made.

69
Q

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

A

A statement is non-hearsay if offered:

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

70
Q

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

A

A judge is absolutely barred from testifying as a witness in the trial in which she is presiding.

Note: Allowing the judge to testify would corrupt the fact-finding process. The fact-finder is charged with assessing a witness’s credibility. If the judge is the fact-finder, assessing her own credibility is impossible. If a jury is the fact finder, the judge’s testimony (and other judicial rulings in the trial) may be given too much or too little weight.

71
Q

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

A

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

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

72
Q

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

A

(i) Is the subject matter scientific, technical, or other specialized knowledge, (i.e., reliability assessment); and
(ii) Will it help the trier of fact understand the evidence or determine a fact in issue (i.e., relevance assessment).

73
Q

What are four exceptions to attorney-client privilege?

A

Communications that are:

(i) Made to enable or aid the commission of what the client knew or should have known was a crime or fraud;
(ii) Relevant to a dispute between attorney and client or former client (e.g., a malpractice allegation);
(iii) Relevant to a dispute between parties who claim through the same deceased client; and
(iv) Between former co-clients who are now adverse to each other.

74
Q

What is the definition of hearsay?

A

Hearsay is a statement that the declarant makes at a time other than while testifying at the current trial or hearing (i.e., an out-of-court statement) that is offered to prove the truth of the matter asserted.

75
Q

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

A

(i) A party who is a natural person;
(ii) An officer or employee of a party that is not a natural person, after the individual has been designated as the party’s representative by its attorney, including the investigating officer;
(iii) A person whose presence is essential to a party’s presentation of its case; and
(iv) A person whose presence is permitted by statute (e.g., victims).

76
Q

By what three methods may a witness who has been impeached be rehabilitated?

A

(i) Explanation or clarification on redirect examination;
(ii) Reputation or opinion evidence of his character for truthfulness, if the witness’s character was attacked on that ground; or
(iii) A prior consistent statement offered to rebut an express or implied charge that the witness lied due to improper motive or influence.

77
Q

What are the two ways to call the court’s attention to an allegedly erroneous evidentiary ruling?

A

If the ruling admits evidence, a party must make a timely objection or motion to strike. If the ruling excludes evidence, a party must make an offer of proof in order to preserve the evidence for appellate review of the ruling.

78
Q

What is the rule of completeness?

A

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

79
Q

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

A

By testifying that:

(i) The caller recognized the speaker’s voice;
(ii) The speaker knew facts that only a particular person would know;
(iii) The caller dialed a number believed to be the speaker’s, and the speaker identified himself upon answering; or
(iv) The caller dialed a business and spoke to the person who answered about business regularly conducted over the phone.

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

80
Q

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

A

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