Evidence

Question 1

Relevance

Answer 1

Evidence must be relevant to be admissible. All relevant evidence is admissible unless excluded by law. Evidence is relevant if it has a tendency to make a fact more or less probable and the fact is of consequence in determining the action. Relevant evidence will not be admitted if its probative value is substantially outweighed by risk of prejudice, confusing the issues, or misleading the jury.

Question 2

Policy exclusions

Answer 2

Subsequent remedial measures
Compromise offers 
Settlement offers
Liability insurance
Offers to pay
Rape shield

Question 3

Character evidence: civil

Answer 3

Generally: inadmissible

Exceptions: negligent entrustment/hiring, defamation, child custody. Proved by ROS

Question 4

Character evidence: criminal

Answer 4

D must open the door. D can offer RO, prosecutor can rebut with ROS.

Question 5

MIMIC exceptions

Answer 5

D prior bad acts can be admissible to prove: motive, intent, lack of mistake, identity, or common scheme/plan.

Admissible in criminal and civil

Question 6

Habit evidence

Answer 6

OK to prove that the person acted in accordance with the habit or routine. Courts generally limit habit to proof of relevant behaviors that are not just consistent, but semi-automatic.

Question 7

Sexual misconduct of victim

Answer 7

Generally: inadmissible

Civil: if probative value substantially outweighs prejudicial effect

Question 8

Impeachment by felony conviction

Answer 8

<10y: OK if probative value substantially outweighs prejudicial effect

> 10y: ^ AND notice

Question 9

Hearsay exclusions

Answer 9

Non-assertive conduct
Legally operative language
Effect on listener
State of mind (I am from Mars)
Admissions by party opponent - adoptive admission, vicarious admission, co-conspirators
Prior inconsistent statement
Out-of-court identification
Present recollection refreshed

Question 10

Hearsay exceptions (declarant MUST be unavailable)

Answer 10

Former testimony
Dying declaration - ONLY homicide or civil
Statement against interest
Statement of personal or family history
Statement offered against party who made declarant unavailable

Question 11

Present sense impression

Answer 11

Statement describing or explaining an event or condition that is made while or immediately after the declarant perceived it

Question 12

Ancient documents

Answer 12

20+ years old

Question 13

Excited utterance

Answer 13

Statement made about a startling event while declarant is under the stress of excitement that it caused

Question 14

Recorded recollection

Answer 14

Witness once knew but now cannot recall well enough to testify. Recording was made when the matter was fresh in the witness’s memory.

Read to jury by offering party. Can only be received as an exhibit if offered by the adverse party

Question 15

Past medical treatment or diagnosis: personal injury

Answer 15

Doctor-patient privilege is waived b/c you put the condition at issue

Question 16

Then-existing state of mind

Answer 16

Statement of intent, motive, or plan can prove conforming conduct

Question 17

Business records exception

Answer 17

(1) kept in the course of a regularly conducted activity, (2) making of the record was a regular practice, and (3) record was made at or near the time of the event by someone with knowledge

Question 18

Government records: police reports

Answer 18

Can be used against criminal D only to introduce the activities, not what was observed or concluded by an officer.

NOTE: can still come in under the recorded recollection exception if officer is testifying and can’t remember

Question 19

6A Confrontation Clause

Answer 19

Only applies to testimonial statements.

In determining whether a statement is testimonial, an objective analysis of the circumstances is key, and courts look to the primary purpose of the statement. Statements made under circumstances that would cause an objective witness to reasonably conclude that the statement would be available for use at a later trial (e.g., statements made during a custodial examination to an investigator, or in an affidavit) are testimonial. A statement made to police with the primary purpose of enabling police to help meet an ongoing emergency (e.g., during a 911 call) is not testimonial.

Question 20

Expert witness admissibility analysis

Answer 20

1. Qualified? Knowledge/skill/training + subject pertains to litigated issue
2. Relevant?
3. Reliable? Sufficient facts + reliable

Question 21

Confrontation clause & hearsay usage

Answer 21

Use of hearsay by prosecutor violates D’s 6A rights, EVEN IF IT IS WITHIN AN EXCEPTION, if (1) the statement was testimonial, (2) the witness is unavailable, and (3) D hasn’t cross examined them.

EXCEPTION TO TESTIMONIAL: emergency or 911 call

Question 22

Prior ID

Answer 22

“[a] statement . . . is not hearsay [when] [t]he declarant testifies and is subject to cross-examination about a prior statement, and the statement . . . identifies a person as someone the declarant perceived earlier