Evidence

Question 1

Impeachment

Regular impeachment

Answer 1

By asking questions OR cross-examining a witness based on what they said.

Admissible qs to attack witness’ CREDIBILITY

Question 2

Balancing test

Def

Answer 2

Is the probative value of evidence outweighed by the prejudicial effect on the person?

Depending on the answer, the evidence will be admissible/not.

Question 3

Character

Def and admissibility

Answer 3

Def: witnesses testify about P/D doing something bad in the past.

Default: inadmissible b/c too prejudicial, it does not meet the balancing test.

There are civil and criminal exceptions

Question 4

Character

Civil exceptions

Answer 4

In a civil case, character evidence is admissible if the case is about:
1. defamation (slander/libel),
2. child custody,
3. negligent entrustment,
4. and misrepresentation.

Question 5

Character

Criminal cases rule

Answer 5

If D opens the door by presenting evidence of party’s honesty/ truthfulness/ peacefulness = opposing party can bring in evidence rebutting such.

If door not open, character evidence is inadmisisble UNLESS exceptions

Question 6

Character evidence

Criminal cases - exceptions

Answer 6

Prosecution can bring in character evidence to show:

M: Motive
I: Intent
M: Mistake
I: ID
C: Common scheme/plan (aka MO).

MIMIC

Question 7

Habit

Type of character evidence

Answer 7

Can show that someone has a “HABIT” if they ALWAYS do it

Requires a regular response to a particular circumstance

Must be everyday, not ocassionally.

Question 8

Impeachment

Through prior bad acts

Answer 8

Prior bad acts default = inadmissible
- Unless: W is being asked if they have lied/cheated in the past – admissible to show witness’ dishonesty.

-Note: you CANNOT prove what W said is true/false through extrinsic evidence

If P/D decides to go on the stand, P/D = witness, and these rules appy!

NOTE: once you confront witness with such bad acts, and W leaves the stand, you cannot ask another witness to prove/disprove what W said b/c prior bad acts cannot be proven by extrinsic evidence

Question 9

Using Witness 2 to contradict what other Witness 1 SAID

Impeachment

Answer 9

Don’t confuse prohibition of extrinsic evidence to show whether witness is lying about a PRIOR BAD ACT to using extrinsic evidence to prove what someone SAID was a lie!!

• Using a witness to show what someone said is a lie is – IMPEACHEMENT - admissible.

Question 10

Impeachment

Through prior crimes

Answer 10

General felony evidence = not admissible
- UNLESS: w/in 10y and passes balancing test

BUT crimes about lack of truthfulness/dishonesty (i.e. fraud) = admissible.

Question 11

Bias

Impeachment

Answer 11

Attorney can ask questions to Witness to SHOW that they are BIASED or has an interest in the outcome of the case AND thus has a motive to lie!!!

Bias impeaches directly BUT also attacks someone’s credibility!

Question 12

Hearsay

Default

Answer 12

It is presumed that witnesses offer statements for the “truth of the matter asserted.” Thus, hearsay = inadmissible.

Unless an exception applies

Question 13

Hearsay

Exceptions

Answer 13

• Present sense impression
• Excited utterances
• Then existing state of mind
• Business record
• Dying declaration
• Statements against interest

Question 14

Present sense impression

Hearsay exception

Answer 14

You are telling what you’re seeing, as you’re seeing it!

If telling what you saw even 1+ min after = hearsay b/c not present time

Question 15

Excited utterances

Hearsay exception

Answer 15

You’re telling what you saw, still under the spell/effect of what you saw.

Key words: “yelled” “shrieked” anything wfinishing with an exclamation!

i.e. you saw someone get shoted on your walk back home, you got home and still in shock you tell you partner about it.

Question 16

Then existing state of mind

Hearsay exception

Answer 16

Statement/witness showing emotional reaction to an activity

OR

Anything about the future (activities, travel, work, etc.) = will always show intent and be admissible

Emotions: love, hate, anger, rage, etc.

Question 17

Business records

Hearsay exception

Answer 17

Records kept in the “regular course of business” = done all the time no matter what (i.e. reporting plant conditions daily, ER intake forms, police accident reports)

Question 18

Business records

Grossman’s bar prep tip

Answer 18

Entries into a document (statements in a business record) = inadmissible!

The document may come in as an exception, but statements are hearsay

Question 19

Dying declaration

Hearsay exception

Answer 19

1. Statements made while believing impending death
2. Statements MUST be about why person thinks they’re dying.
3. Exception applies only to: (a) homicide (4 muder; 2 manslaughter types) OR (b) civil cases.
4. Declarant MUST be unavailable to testify.

Question 20

Unavalibility

Defined

Answer 20

Facts MUST tell you the declarant is unavailable by i.e. death; medically unable; took 5th Am; declarant is nowhere to be found.

Question 21

Statements againts interest

Hearsay exception

Answer 21

Def:
- Party to the case OR non-party to the case make a statement that CAN make them look liable/guilty.

Limitation:
- declarant (party/non-party making statement) MUST be unavailable

Question 22

Admissions

Non-hearsay

Answer 22

Def:
- A PARTY to the case makes a statement that can make them look liable or guilty.

Application:
- Only admissions from parties to the case are admitted.

Limitation:
- None, unavailability is NOT required.

Question 23

Admissions v. statements against interest

Grossman’s bar prep tip

Answer 23

If facts tell you that the declarant made a statement against themselves & facts don’t tell you declarant is unavailable
Default = admission

Facts MUST tell you declarant is unavailable

Question 24

Admissions

Types

Answer 24

1. Adoptive admissions (silence when a reasonable party would object)

NOTE: silence alone is not an admission! Must be some indication that a reasonable person would object to whatever they’re being asked.

2. Vicarious admission (when an employee makes a statement in the course of their job)

Question 25

Prior sworn inconsistent statements

Non-Hearsay

Answer 25

Def: statements made that can be used to impeach & as substantial evidence
Limitation: Statements must be made under oath (depositions, affidavits)

Prior inconsistent statements NOT under oath = impeachment only.

Question 26

Prior consistent statements

Non-Hearsay

Answer 26

Can be used to assert that a witness is telling the truth

Question 27

Best evidence rule

Def

Answer 27

Allows parties to bring in a COPY of an original document, when such original is not available IF:
- copy is authentic = not tampered.
- the document is material to the case

Question 28

Best evidence rule

Application

Answer 28

Applies in 2 scenarios:

(1) When trying to prove the contents of the document itself

i.e. You need proof of a real estate transaction with someone, and can’t get an original deed, so you use the copy to show that the RE transaction said XYZ.

(2) When the ONLY way to verify the testimony of a witness, is the document (and you cannot get the original)
i.e. John is accussed of murder and the only way to show he is not guilty, as he says, is to show a copy of the parking pass he stamped at the airport at the time of the murder he’s accussed of.

Question 29

Who can be a lay witness?

Answer 29

anyone of any age IF they can differentiate b/w a lie and the truth)

Question 30

Scope of testimony

Lay witness

Answer 30

Can testify about anything they have personal knowledge to

• Including things rationally based on W common perceptions (time, speed, etc.) & helpful to the jury!

Question 31

Who can be an expert witness?

Answer 31

any one admitted as an expert by the judge (after person lays a foundation of expertise, usually through CV/resume)

Question 32

Scope of Expert’s testimony

Answer 32

Can testify about their opinion of what they have expert knowledge about

Note:
- b/c they give out opinions, expert witnesses CAN alway be cross-examined.

In criminal cases = CANNOT state their opinion on D’s mental state.

Question 33

Subsequent remedial measures

Answer 33

You CANNOT offer evidence of someone fixing something after an injury to prove negligence or liability

Inadmissible b/c its againt public policy

i.e. You are walking on John’s sidewalk, and there is a pothole. You trip and fall and break your leg. You want to sue John for negligence. John has a nosy neighbor, and one morning she sees John smearing cement, fixing the whole. The neighbor cannot testify to John fixing the whole.

Question 34

Subsequent remedial measures

Exception

Answer 34

You can call a witness to tesity about party’s ownership OR control

On prior hypo… if witness is called to show John owns the property, that IS admissible.

Question 35

Offer to settle/compromise

At trial

Answer 35

First: there must be a dispute

The settlement must be made after proceedings have been initiated (pre-trial).

Then: you want to bring in proof that party offered to settle/compromise pre-trial to SHOW that the party was negligent/liable

Result: INADMISSIBLE. b/c against public policy.

If an admission is made at same time settlement = both INADMISSIBLE!

Because settlement offers are not severable from admissions.

Question 36

Offer to pay medical expenses

Answer 36

First: no need of there being a dispute.
Then: you want to show X offered to pay your medical bills as evidence of guilt/negligence – still INADMISSIBLE

BUT, if an admission is made at the same time the offer to pay medical expenses is made – these are severable and the admission is admissible! (but the offer never comes in).

Question 37

Prior bad acts and extrinsic evidence. Allowed?

Answer 37

NO. You CANNOT prove what W said is true/false through extrinsic evidence

NOTE: once you confront witness with such bad acts, and W leaves the stand, you cannot ask another witness to prove/disprove what W said b/c prior bad acts cannot be proven by extrinsic evidence