Evidence

Question 1

Doctrine of Res Ipsa Loquitur

Answer 1

Courts can infer negligence from the very nature of an accident or injury;
in the absence of direct evidence on how the D behaved.

Question 2

Hearsay

Answer 2

statement other than one made by declarant while testifying at the current trial or hearing offered into evidence to prove the truth of the matter asserted

Question 3

Business records exception extends to any regularly conducted activity of an organization

Answer 3

A record (ie: memorandum, report, data compilation) of an act, event, condition, opinion or diagnosis is not excluded as hearsay if:

i. record was kept in the course of 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 (or from information transmitted by) someone with knowledge

Question 4

Witness Self Incrimination

Answer 4

A witness cannot be compelled to testify against herself (5th amendment) any witness may refuse to answer any question whose answer might incriminate her. Can be claimed under state or federal proceeding, whether civil or criminal, at which the witness’s appearance and testimony are compelled.

Testimony is incriminating if it ties the witness to the commission of a crime or would furnish a lead to evidence tying the witness to a crime. The testimony need not prove guilt.

Must be to avoid criminal liability not civil liability.

Question 5

Testimony is incriminatin

Answer 5

it ti

Question 6

Best evidence rule

Answer 6

Cannot testify to the contents of the letter unless the original is lost and it is not lost in bad faith

Question 7

Armed robbery

Answer 7

evidence of his commission of other crimes is inadmissible against him bc it is much more prejudicial than probative

Question 8

Evidence of prior crimes

Answer 8

admissible to impeach the testimony of a witness if the crime is a felony or a crime of dishonesty

Prior convictions can only be used to impeach D’s testimony it cannot be used against him

Question 9

Prior inconsistent statement

Answer 9

Is admissible to impeach D’s trial testimony.

Question 10

Party-opponent

Answer 10

Statement to the police officer is an admission hearsay exclusion

Question 11

excited utterance

Answer 11

statement made under stress or excitement

Question 12

Standard for Authentication FRE 901

Answer 12

whether there is “sufficient evidence to support a finding” that the evidence is what the proponent claims it to be

It is higher than preponderance of the evidence

Clear and convincing is too high of a standard

Question 13

Proof of chain of custody

Answer 13

What happened to the evidence after it was initially seized is one way of authenticating evidence, but it is not necessary they have a witness who will testify that they saw each of the items

Question 14

hearsay

Answer 14

statement other than one made by the declarant while testifying at the current trial or hearing offered into evidence to prove the truth of the matter asserted

Question 15

Refresh Recollection

Answer 15

A witness on the stand may be given a writing, a picture, or some other document to aid his recollection

authentication and amissiblity of item not required

Question 16

Recored Recollection Exception to the hearsay rule

Answer 16

When the witness

i. made a record
ii. based on firsthand knowledge
iii. when the matter was fresh in the witness’s memory which accurately reflected the witness’s knowledge &
iv. the witness has insufficient recollection at trial

may be read into evidence but may not be offered as an exhibit unless by the opposing party

Question 17

Relevance

Answer 17

cornerstone of the law of admissibility of evidence. FRE 401 lays out the test for whether evidence is relevant as a preliminary determination of admissibility:
FRE 401 lays out the test for whether evidence is relevant as a preliminary determination of admissibility

Evidence is relevant if:

a) it has any tenancy to make a fact more or less probable than it would be without evidence
b) the fact is of a consequence in determining the action

Question 18

Oral statements

Answer 18

often require authentication as to the identity of the speaker

A voice whether heard firsthand or through a device may be identified by the opinion of anyone who has heard the voice at any time.

Question 19

Statements made during a phone conversation

Answer 19

may be authenticated by one of the parties to the call who testifies to one of the following:

i. he recognizes the other party’s voice
ii. the speaker has knowledge of certain facts that only a particular person would have
iii. he called, for example, Mr. A’s telephone number, and a voice answered This is the A residence. Authenticates conversation as being with Mr. A or his agent or
iv. Called the person’s business establishment and talked with the person answering the phone about matters relevant to the business.