Evidence

Question 1

Approach to every evidence question:

Answer 1

1. Relevance
2. Expert Witness vs. Lay Witness
3. Exclusion analysis (usually hearsay)
4. Admissibility

Question 2

Hearsay answers

Answer 2

Start with DIA:
Define hearsay
Identify why hearsay is important
Analyze exceptions

Question 3

Define hearsay

Answer 3

An out of court statement offered to prove the truth of the matter asserted

Question 4

Identify why hearsay is important

Answer 4

Hearsay is not admissible unless it comes within an exception or is considered non-hearsay.

Question 5

List important exceptions for the MEE

Answer 5

Excited utterance
Present sense impression
Statement for purpose of medical treatment or diagnosis
Business records
Recollection recorded
Then-existing state of mind
Prior statement of identification
Opposing party’s statement 
Statement against interest
Public records

Question 6

Excited utterance

Answer 6

A statement relating to a startling event or condition made while the declarant was still under the stress or excitement of the event or condition.

Question 7

Present sense impression

Answer 7

A statement describing or explaining an event or condition made while or immediately after the declarant perceived it.

Question 8

Statement for the purpose of medical diagnosis or treatment

Answer 8

Statement made for and reasonably pertinent to medical diagnosis or treatment that describes medical history, past or present symptoms or sensations, their inception, or their general cause.

Does not have to be made by the patient.

Question 9

Business records

Answer 9

A record of acts, events, conditions, opinions, or diagnoses is admissible if it is made at or near the time of the event recorded by a person with knowledge of the event.

The making of the record must occur in the course of a regularly conducted business activity, and it must be the regular practice of the business to make such a record.

Question 10

Past recollection recorded

Answer 10

A record that is on a matter that the witness once knew about, but now cannot recall well enough to testify fully and accurately, which was made while the matter was fresh in the witness’s memory may be read into evidence, but the proponent may not offer it as an exhibit.

The opponent can introduce it as an exhibit though.

Question 11

Then-existing state of mind

Answer 11

Considered NON-hearsay.

A statement showing the declarant’s mental, emotional, or physical condition (including motive, intent, or plan)

Question 12

Prior statement of identification

Answer 12

A witness’s prior identification is not considered hearsay

Question 13

Opposing party’s statement

Answer 13

A statement made by an opposing party offered against that party is not hearsay

Question 14

Statement against interest

Answer 14

A statement that a reasonable person in the defendant’s position would have made only if the person believed it to be true because; when made, it had a tendency to expose the declarant to civil or criminal liability.

The declarant must be unavailable for this statement to be admitted.

Question 15

Public records

Answer 15

May be admitted in some circumstances but not matters observed by law enforcement personnel when proffered by the prosecutor against the defendant in a criminal case.

Question 16

Relevancy

Answer 16

Evidence is relevant if it has any tendency to make a fact more or less probable than it would be without the evidence, and the fact is of consequence in determining the action.

Question 17

Admissibility

Answer 17

All relevant evidence is admissible unless a statute or rule says otherwise, or the probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting culinarily evidence.

Question 18

Lay witness testimony

Answer 18

Must be based on personal knowledge.

Opinion must be rationally based on perception, helpful, and not based on scientific, technical, or specialized knowledge.

Question 19

Expert witness testimony

Answer 19

Does not have to be based on personal knowledge.

Can testify based on facts that they became aware of in preparation for trial or through some other means (e.g. facts not in the record if other experts in the field would rely on them)

Question 20

Qualifying as an expert

Answer 20

Qualified by knowledge, skills, or data
Testimony based on sufficient facts or data
Testimony the product of reliable principles and methods
Witness applied principles/methods reliably to the facts of the case, and
Reasonable degree of certainty

Question 21

Impeachment

Answer 21

A party may impeach a witness, even if the party called the witness.

Methods:
Prior inconsistent statements 
Bias and interest
Conviction of a crime
Bad acts
Character for untruthfulness
Sensory deficiencies
Contradiction

Question 22

Prior inconsistent statements

Answer 22

Can be used as substantive evidence as well if they fall within a hearsay exception or exclusion.

Witness must be given the opportunity to explain or deny the statement of extrinsic evidence is used, unless the witness is the opposing party, not in court, or if the interests of justice so require.

Question 23

Bias and interest

Answer 23

The witness must be confronted on the stand. Extrinsic evidence can only be used if the witness is asked about the bias first.

Question 24

Conviction of a crime

Answer 24

Whether the conviction can be used depends on NAD:
Nature of the crime
Amount of time that has passed
Whether the witness is the Defendant

Question 25

Nature of the crime

Answer 25

If the crime is related to dishonesty, it’s admissible whether it’s a misdemeanor or felony.

If the crime is a non-dishonesty related felony, then it can be admitted to impeach UNLESS the risk of prejudice outweighs its probative value (similar to the 403 test).

Question 26

Amount of time

Answer 26

If more than 10 years has passed since conviction or release, it’s generally not admissible.

Question 27

Convictions of defendants

Answer 27

In order to be admitted in evidence, must have a probative value that outweighs the prejudicial effect. (Reverse 403 test)

Question 28

Bad acts

Answer 28

Questioning about acts that are probative of truthfulness or untruthfulness, (e.g. filing a false tax return) is permitted.

Extrinsic evidence of these acts is not permitted.

Note that on both exams when this was tested, the question was whether a party could admit extrinsic evidence that the witness lied on a job application or resume and the answer was that extrinsic evidence would not be permitted.

Question 29

Sensory deficiencies

Answer 29

This is the ability to observe, remember, or relate accurately. Extrinsic evidence is permitted.

Question 30

Contradiction

Answer 30

If the witness made a mistake in her testimony or lied during direct examination, she may be contradicted.

Extrinsic evidence can be used if she doesn’t admit her mistake.

Question 31

Character evidence

Answer 31

Generally inadmissible to prove that someone acted in accordance with his character at the time of the event in question.

Question 32

Character evidence in civil cases

Answer 32

Only permitted when character is an essential element of the case.

Character is an essential element in cases involving negligent entrustment or hiring, defamation, or child custody.

Reputation, opinion, and specific acts can be used to prove character.

Question 33

Character evidence in criminal cases

Answer 33

Generally, inadmissible in the prosecution’s case-in-chief to prove that the defendant acted in conformity with his own character.

The defendant may introduce evidence of a relevant character to trait to prove that he acted in conformity with his character at the time in question. He can do this by reputation or opinion.

Then, the prosecutor may rebut with evidence of reputation or opinion or by asking about prior bad acts.

Question 34

6A confrontation clause

Answer 34

If a statement is testimonial, the declarant is unavailable, and the defendant did not have the opportunity to cross examine the declarant, then the admission of the statement will violate the defendant’s rights to confrontation.

A statement is not testimonial if the primary purpose of the statement is to address an ongoing emergency.

Question 35

Privileges

Answer 35

Can prevent otherwise admissible evidence from being admitted.

Examples:
Attorney/client privilege
Spousal privileges
Physician-patient privilege (recognized in some jxs)
Psychotherapist-patient privilege (recognized federally)

Question 36

Offer to settle

Answer 36

Not admissible to prove the validity of a disputed claim

Question 37

Offer to pay medical expenses

Answer 37

Not admissible to prove liability or the existence of an injury

Question 38

Subsequent remedial measure

Answer 38

Not admissible to prove negligence or liability.

May be used for impeachment, or to prove ownership, control, or feasibility of precautionary measures if disputed.

Question 39

Insurance

Answer 39

Existence of an insurance policy is not admissible to prove liability, but may be used to prove agency, ownership, or control, or impeachment

Question 40

Spousal immunity

Answer 40

Married person cannot be compelled to testify against his spouse in any criminal proceeding.

Witness spouse holds privilege in federal court and majority of states. Party spouse holds privilege in a minority of states.

Applies to testimony about events before/during marriage.

Privilege expires upon divorce or annulment.

Question 41

Confidential marital communications

Answer 41

Spousal communication during marriage is privileged when made in reliance on the sanctity of marriage.

Majority view; both spouses hold the privilege in civil and criminal cases. Either spouse can assert the privilege and refuse to testify about the communication or prevent the other spouse from testifying.

Privilege begins with marriage and continues indefinitely.

Question 42

Spousal privileges

Answer 42

Includes spousal immunity and confidential marital communications.

Neither privilege applies when one spouse sues another or a spouse is charged with a crime against another or the children of another

Question 43

Character for untruthfulness

Answer 43

Opinion or reputation evidence may be used.

Cannot bolster a witness’s credibility before it is directly attacked.

Generally cannot admit specific instances of conduct unless:
On cross examination, ok if probative of witness’s truthfulness or truthfulness of another witness about whose character the witness has testified.
When witness denies a specific act, extrinsic evidence not admissible to prove specific acts (unless it’s a criminal conviction).

Question 44

Rule statement: hearsay

Answer 44

Hearsay is an out of court statement offered to prove the matter asserted. Hearsay evidence is generally inadmissible unless it falls within a hearsay exception or exclusion

Question 45

Rule statement: present sense impression

Answer 45

A present sense impression is an out of court statement describing or explaining an event or condition that is made while or immediately after the declarant perceived it. A present sense impression is an exception to the hearsay rule and admissible regardless of the declarant’s availability to testify.

Question 46

Rule statement: excited utterance

Answer 46

An excited utterance is a statement made about a shocking or startling event made while the declarant is under the stress of excitement that it caused. An excited utterance is an exception to the hearsay rule and admissible regardless of the declarant’s availability to testify.

Question 47

Rule statement: testimonial evidence and 6A

Answer 47

A statement made for the primary purpose of ascertaining past criminal conduct is testimonial. By contrast, a statement made primarily to enable police to render aid to meet an ongoing emergency is not testimonial. For an out-of-court testimonial statement (i.e. hearsay) to be admissible against a criminal defendant, the Sixth Amendment Confrontation Clause requires that the declarant must be unavailable and the defendant must have had a prior opportunity to cross-examine the declarant. To determine whether a statement is testimonial requires an objective analysis of the circumstances regardless of the subjective purpose of the participants.

Question 48

Rule statement: voice authentication

Answer 48

Oral statements may need to be authenticated as to the identity of the speaker in cases in which that identity is important. 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.)

It makes no difference whether the voice was heard firsthand or through mechanical or electronic transmission or recording.

Question 49

Rule statement: out-of-court identification

Answer 49

A previous out-of-court identification of a person after perceiving that person is not hearsay and may be admissible as substantive evidence by the testimony of the declarant-witness. Even if the witness has no memory of the prior identification, it will be admissible because the witness is subject to cross-examination about the prior identification.

Question 50

Rule statement: character and propensity

Answer 50

In a criminal case, the prosecution is not permitted to introduce evidence of a defendant’s bad character to prove that the defendant has a propensity to commit crimes and therefore is likely to have committed the crime in question.

Question 51

Rule statement: MIMIC

Answer 51

Evidence of a defendant’s crimes or other wrongful acts are admissible for a non-propensity purpose such as proving (MIMIC) Motive, Intent, absence of Mistake, Identity, or Common plan.

Question 52

Rule Statement: Relevance

Answer 52

All relevant evidence is admissible unless excluded by a specific rule, law, or constitutional provision. 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).

Question 53

Rule statement: lay witnesses

Answer 53

A lay witness (non-expert) is generally not permitted to testify as to his opinion, except with respect to the lay witness’s common-sense impressions. To be admissible, a lay witness’s opinion must be i) rationally based on the witness’s perception, and ii) helpful to a clear understanding of the witness’s testimony or a fact in issue.

Question 54

Rule statement: expert witnesses

Answer 54

An expert witness’s opinion testimony is admissible when 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.

Question 55

Rule statement: hearsay

Answer 55

Even relevant evidence may be excluded by the rule against hearsay. Hearsay is an out of court statement that is being offered to prove the truth of the matter asserted.

Question 56

Rule statement: business records

Answer 56

Hearsay evidence is generally inadmissible unless it falls within an exception or exclusion. A business record is excepted from the hearsay rule if the record was i) kept in the course of a regularly conducted activity, ii) made as a regular practice for that activity, and iii) made at or near the time of the act or event by someone with special knowledge.

Question 57

Rule statement: doctor/patient privilege

Answer 57

Relevant evidence may be inadmissible because it is privileged. Although there is no common-law privilege covering statements made by a patient to a physician, most states’ statutes protect such communications when made for the purpose of obtaining medical treatment. However, in many states, a patient is deemed to have waived the privilege by placing her condition at issue in a personal injury lawsuit.

Question 58

Rule statement: party-opponent

Answer 58

An out of court statement made by a party to the current litigation is not hearsay when offered for its truth by an opposing party.

Question 59

Rule statement: statement for medical diagnosis/treatment

Answer 59

A statement describing past or present symptoms is not excluded as hearsay if the statement was made for the purpose of medical diagnosis or treatment.

Question 60

Rule statement: habit evidence

Answer 60

In a civil case, evidence of a person’s character trait is generally inadmissible to prove that the person acted in accordance with that trait on a particular occasion. However, evidence of a person’s habit is admissible to prove that the person acted in accordance with the habit on a particular occasion.

A habit is a person’s particular routine reaction to a specific set of circumstances. Because habit evidence can run afoul of the bans on character evidence and prior bad acts evidence, courts generally limit habit evidence to proof of relevant behaviors that are not just consistent but semi-automatic.

Question 61

Waiver of plea negotiation protection

Answer 61

Statements made during settlement or plea negotiations are generally inadmissible against a defendant who participated in the negotiations or made the plea. However, a defendant may waive this protection if the waiver is made knowingly and voluntarily.

Question 62

Attorney-client privilege

Answer 62

The attorney-client privilege applies to 1) communications between a client and an attorney that 2) were made to obtain or provide legal assistance for the client and 3) were intended to be and kept confidential.

As a result, such communications do not need to be produced during discovery or at trial.

Question 63

What type of evidence is the fifth amendment right against self incrimination protecting?

Answer 63

The fifth amendment privilege against self incrimination prohibits the government from compelling a defendant to provide incriminating testimonial communications, not real or physical evidence.

A defendant can be made to walk in the courtroom if it is part of a legitimate courtroom identification process.

Question 64

What materials from experts are privileged?

Answer 64

Privileged expert materials include drafts of expert reports or disclosures. They also include communications between an attorney and expert that do not 1) concern the expert’s compensation or 2) identify facts, data, or assumptions provided by the attorney that the expert considered in forming her opinions.

Question 65

Impeaching a witness

Answer 65

A witness’s reputation or opinion testimony about a criminal defendant’s good character can be impeached by 1) cross examining the witness about a specific instance or conduct by the defendant, or 2) presenting opposing reputation or opinion evidence from another witness.

Note that a defendant’s prior arrest or conviction can be used to impeach a witness this way.