Evidence

Question 1

Best Evidence Rule (in general)

Answer 1

In proving terms of a writing where the terms are material, the original writing must be produced.

Secondary evidence of the writing, such as oral testimony regarding the writing’s contents, is permitted only after it has been shown that the original is unavailable for some reason other than serious misconduct of the proponent.

Question 2

Statement of a Party-Opponent Example

Answer 2

What the defendant said to the plaintiff, even in a private conversation, is a statement of a party opponent and is admissible

Question 3

Medical Diagnosis Hearsay Exception

Answer 3

A statement made for the purpose of medical diagnosis allows not only statements made to treating physicians, but also statements made to other doctors for evaluation or diagnosis - including doctors consulted for diagnoses for purposes of litigation.

Question 4

Public Record Hearsay Exception

Answer 4

Public records are admissible in both civil and criminal cases.

Question 5

Destruction of Evidence

Answer 5

If a party destroys evidence, it is proper for the jury to draw an inference that the evidence was adverse to that party’s case.

Question 6

Scope of Attorney-Client Privilege

Answer 6

Applies only to confidential communications made for the purpose of facilitating legal representation of the client, and the amount the defendant paid in legal feeds does not qualify as such a communication. Fee arrangements and payments are generally outside the protection of the A-C privilege.

Question 7

State of Mind Hearsay Exception

Answer 7

A statement of a declarants then existing state of mind (motive, intent, plan)is admissible to prove the declarant’s state of mind or the declarant’s conduct.

Question 8

Excited Utterance Exception

Answer 8

An excited utterance is a statement that concerns a startling event, made by the declarant when the declarant is still under stress from the startling event.

Question 9

Specific Instances of Conduct of a Witness

Answer 9

Specific instances of the conduct of a witness, for the purposes of attacking or supporting the witness’s character for truthfulness, may not be proven by extrinsic evidence.

Question 10

Acceptance by Juries of Judicial Notice

Answer 10

Civil juries must accept judicial notice of fact as true
Criminal Juries may or may not accept judicial notice of a fact as true

Question 11

Factual Basis of Expert’s Opinon

Answer 11

May be based on one or more of three possible sources of information:
1) facts that the expert knows from his own observation
2) facts presented in evidence at the trial and submitted to the expert, usually through a hypothetical question; or
3) facts not in evidence that were supplied to the expert out of court, and which are the type reasonably relied upon by experts in the particular field in forming opinions on the subject

Question 12

Lay Witness Familiarity with Handwriting

Answer 12

A witness’s familiarity with the handwriting must have not been acquired for purposes of the litigation.

Question 13

Character Evidence MIMIC

Answer 13

Specific Instances of conduct are generally NOT admissible to show propensity, BUT are admissible to show Motive or opportunity, Intent, Absence of Mistake, Identity; OR Common plan or preparation.

Question 14

Adverse party’s right to inspect writing used to refresh a witness’s memory while testify

Answer 14

Adverse party has the right to inspect the writing, but if the writing was used to refresh the witness’s memory before the witness testified, then the adverse party may inspect the writing of the court decides that justice requires it.

Question 15

Absence of Entry in a Record

Answer 15

Absence of an entry in such a record is admissible to prove the non occurrence of matter that would normally have been recorded if it had occurred.

Question 16

Prior Bad acts by a Witness

Answer 16

A witness may properly be questioned on cross-examination regarding prior bad acts that are probationer of truthfulness, as long as the probationer value is not substantially outweighed by the danger of confusion, delay, or wasting time.

Inadmissible as extrinsic evidence.

Question 17

Expert Opinion Factual Basis

Answer 17

An expert’s opinion may be based upon one or more of three possible sources of information
1) facts that the expert knows from his own observation
2) facts presented in evidence at the trial and submitted to the expert
3) or facts not in evidence that were supplied to the expert out of court, and which are the type reasonably relied upon by experts in the particular failed in forming opinions on the subject

Question 18

Learned Treatise Hearsay Exception

Answer 18

A learned treatise may be substantively admissible if it is:
I) called to the attention of the expert witness upon cross examination or relied upon by her during direct examination; AND
2) established as a reliable authorities by testimony or admission of the witness, by other expert testimony, or by judicial notice.

Statement may be read into evidence, but the publication may not be received as an exhibit

Question 19

Hearsay within Hearsay

Answer 19

A statement that contains hearsay within hearsay may be admissible as long as each part of the combined statement conforms to a hearsay exception

Question 20

Determine whether a presumption should be applied in Civil Actions and proceedings

Answer 20

In civil actions and proceedings, whether a presumption should be applied is determined in accordance with the state law whose substantive law is applied in the case

Question 21

May a juror testify on the question whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror

Answer 21

Yes

Question 22

Witness Privilege

Answer 22

If a witness’s testimony in a civil or criminal proceeding would subject her to potential criminal liability she may properly invoke the right against self incrimination.

Question 23

Admissibility of Business Records as a Hearsay Exception

Answer 23

The person making the record need not have personal knowledge as long as they are informed by someone with a business duty to accurately report. The document is admissible without either the informant or the recorder if authenticated by a custodian or any other proper authentication witness.

Question 24

Prosecution’s rebuttal to a character witness

Answer 24

In rebuttal, the prosecution may only inquire into specific instances of the defendant’s misconduct on cross examination of the character witness.

Question 25

Elements of Dying Declaration Hearsay Exception

Answer 25

A statement is admissible if
1) The declarant is unavailable
2) The declarant believed that her death was imminent when she made the statement; AND
3) The statement pertains to the cause or circumstances of her death

(Only available in homicide and civil cases)

Question 26

Is it proper to draw an adverse inference form a civil party’s invocation of the privilege against self-incrimination?

Answer 26

Yes, it is proper, as well as to presume that when a party destroys evidence, such evidence would have been detrimental to the party’s case.

Question 27

Psychiatrist as a qualified Expert

Answer 27

A Psychiatrist is qualified to testify to a person’s mental state