Evidence

Question 1

Compromise Negotiations

Answer 1

When there is a claim disputed as to validity or amount, an admission of fact made during compromise negotiations is inadmissible.

BUT If a party admits liability and the amount of liability in compromise negotiations, the claim is not disputed as to validity or amount. Thus, admissions of fact in such compromise negotiations are admissible.

Question 2

Evidence of D’s Good Character in a criminal case

Answer 2

Generally, a defendant may introduce evidence of his good character to show his innocence of the alleged crime. However, the evidence must be relevant; i.e., it must have some tendency to make the existence of any fact that is of consequence to the determination of an action more probable or less probable than it would be without the evidence.

Question 3

Former Testimony (Hearsay exception)

Answer 3

The testimony of a now unavailable witness given under oath at another hearing is admissible in a subsequent trial as long as there is a sufficient similarity of parties and issues so that the opportunity to cross-examine at the prior hearing was meaningful.

Question 4

To be admissible, evidence must be:

Answer 4

To be admissible, evidence must be competent, material, and probative. Material evidence relates to a fact of consequence to the determination of the action. Evidence is probative if it contributes to proving or disproving a material issue. Evidence is competent if it does not violate an exclusionary rule.

Credibility is not a requirement of admissible evidence. Credibility may be challenged by the opposing party and ultimately is determined by the factfinder.

Question 5

Hearsay Exceptions: Unavailability required

Answer 5

The five important exceptions requiring the declarant’s unavailability are:

(i) former testimony,
(ii) statements against interest,
(iii) dying declarations,
(iv) statements of personal or family history, and
(v) statements offered against party procuring declarant’s unavailability.

Question 6

What can expert witnesses base opinion off of?

Answer 6

Under Federal Rule 703, the expert may base an opinion on facts not known personally but supplied to him outside the courtroom, and such facts need not be in evidence or even of a type admissible in evidence, as long as the facts are of a kind reasonably relied on by experts in the particular field.

**However, if the facts are of a type inadmissible in evidence, the proponent of the expert opinion must not disclose those facts to the jury unless the court determines that their probative value in assisting the jury to evaluate the expert’s opinion substantially outweighs their prejudicial effect

Question 7

Catchall Exception to Hearsay

Answer 7

The statement must:

(1) possess “sufficient guarantees of trustworthiness.”
(2) The statement must be more probative as to the fact for which it is offered than any other evidence that the proponent can obtain through reasonable efforts; AND
(3) the proponent must give notice in advance of trial to the adverse party as to the nature of the statement.
* Such notice generally must be given in writing in advance of the trial or hearing, but may be given in any form during the trial or hearing if the court, for good cause, excuses a lack of earlier notice.

Question 8

What witnesses are competent to testify?

Answer 8

Federal Rule 601 provides that every person is competent to be a witness except as otherwise provided in the rules. The rules do not specify any mental or moral qualifications for witness testimony beyond these two limitations:

(i) the witness must have personal knowledge of the matter he is to testify about (i.e., he observed the matter and has a present recollection of his observation); and
(ii) the witness must declare he will testify truthfully.

Question 9

When is bolstering allowed

Answer 9

The general rule is that a party may bolster the witness’s testimony only once the witness has been impeached. There are exceptions to this rule. In certain cases a party may prove that the witness made a timely complaint, in order to bolster the party’s credibility (e.g., a prompt complaint by a rape victim to show that she is telling the truth). Evidence of any prior statement of identification made by a witness is admissible not only to bolster the witness’s testimony, but also as substantive evidence that the identification was correct.

Question 10

Recorded recollections

Answer 10

To be admissible,

(1) The witness at one time had personal knowledge of the facts recited in the record;
(2) the record was made by the witness or was made under her direction or was adopted by the witness (i.e., she was involved in the creation of the record);
(3) the record was timely made when the matter was fresh in the mind of the witness; and
(4) the witness has insufficient recollection to testify fully and accurately regarding the event at issue.

Question 11

Best Evidence Rule

Answer 11

In proving the terms of a writing, where the terms are material, the original writing must be produced. [Fed. R. Evid. 1002] The rule does not mean that the “best” evidence must be used to prove a fact.

Question 12

Impeachment: Specific Instances of Misconduct

Answer 12

A witness may be impeached:

(1) on cross-examination with specific instances of conduct that are
(2) probative of truthfulness,

**but no extrinsic evidence may be admitted to prove the occurrence of the conduct.

Question 13

MIMIC

Answer 13

Motive

Intent

Lack of Mistake

Intent

Common Scheme or Plan

Question 14

Adoptive Statements

Answer 14

(i) The party must have heard and understood the statement;
(ii) the party must have been physically and mentally capable of denying the statement; and (iii) a reasonable person would have denied the accusation under the same circumstances.

Question 15

Exclusion of witnesses from courtroom

Answer 15

Upon a party’s request, the trial judge will order witnesses excluded from the courtroom so they cannot listen to the testimony of other witnesses.

The trial judge may also do this on his own motion.

However, the Federal Rules prohibit the exclusion of:

(i) a party or a designated officer or employee of a party,
(ii) a person whose presence is essential to the presentation of a party’s case, or
(iii) a person statutorily authorized to be present.

Question 16

Usage of interpreters

Answer 16

The services of an interpreter may be used where a witness, due to language problems or other reasons, would otherwise have difficulty communicating.

Under Federal Rule 604, an interpreter must meet the qualifications required of an expert witness (i.e., by reason of knowledge, skill, experience, training, or education, she is capable of providing a true translation). Also, an interpreter must take an oath or affirmation that she will make a true translation (i.e., that she will communicate exactly what the witness is expressing in his testimony).

Question 17

Federal Rule of Evidence 803(10) (exceptions to hearsay for absence from a public record)

Answer 17

evidence in the form of

1. a certification or testimony
2. from the custodian of public records that
3. she has diligently searched and failed to find a record is
4. admissible to prove that (a) a matter was not recorded, or, (b) inferentially, that a matter did not occur.

Question 18

Refreshing recollection

Answer 18

Admission of the underlying exhibit: can only be done by the adverse party (aka, the party who is NOT using the document to refresh witness’s recollection)

Question 19

Lay witness opinion testimony

Answer 19

If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is:

(a) rationally based on the witness’s perception;

(b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and

(c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

Answer 20

Under Federal Rule 804(b)(1), the testimony of a witness who is unavailable, given at another hearing, is admissible in a subsequent trial if there is sufficient similarity of parties and issues so that the opportunity to develop testimony or cross-examination at the prior hearing was meaningful. The former testimony is admissible upon any trial of the same subject matter. The party against whom the testimony is offered or, in civil cases, the party’s predecessor in interest must have been a party in the former action. “Predecessor in interest” includes one in a privity relationship with the party, such as grantor-grantee, testator-executor, life tenant-remainderman, and joint tenants. These requirements are intended to ensure that the party against whom the testimony is offered (or a predecessor in interest in a civil case) had an adequate opportunity and motive to cross-examine the witness. In the civil suit here at issue, the survivors of the victim were not parties to the criminal case, nor were they in privity with any such party. (The parties to that case were the defendant and the government.) These survivors, who are the plaintiffs in the instant litigation, are the parties against whom the testimony of the witness is being offered. Because they were not parties to the action in which the witness testified, they had no opportunity to cross-examine him. Even if the government had a similar motive to cross-examine the witness as do the plaintiffs in the current action, that is not sufficient to make the government a predecessor in interest to the plaintiffs.

Question 21

Unavailability of a declarant

Answer 21

A declarant is unavailable if he: (i) is exempted from testifying on the ground of privilege, (ii) refuses to testify despite a court order, (iii) testifies to lack of memory of the subject matter of the statement, (iv) cannot be present or testify because of death or physical or mental illness, or (v) is beyond the reach of the court’s subpoena and the statement’s proponent has been unable to procure his attendance or testimony by process or other reasonable means.

Question 22

Relevance

Answer 22

• Evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.
• Relevant evidence can be excluded by a judge if its probative value is substantially outweighed by unfair prejudice, confusion of the issues, waste of time, or misleading the jury.

Question 23

Authentication: 901(b)

Answer 23

One manner of authenticating a writing is by evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result. (remember barograph question)

Question 24

Prior Identifications (exception to hearsay)

Answer 24

A declarant’s prior statement identifying someone she perceived earlier is not hearsay under the Federal Rules of Evidence if the declarant is now testifying at trial and subject to cross-examination about the prior statement

Question 25

Evidence of D’s Good Character

Answer 25

may be introduced if its relevant to the crime charged, but ONLY through reputation or opinion evidence.

Question 26

UCC: supplemental evidence to help interpret contract

Answer 26

A written’s contracts terms may be explained or supplemented by evidence of:

(1) course of performance
(2) course of dealing
(3) usage of trade

This is regardless whether the terms are ambiguous.

Question 27

Business Records Exception

Answer 27

1. Record
2. Made in the ordinary course of business
3. by someone with a duty to record
4. with personal knowledge of either entrant or person with duty to transmit information to entrant
5. close to the event.