Evidence

Question 1

When is evidence relevant?

Answer 1

If it has any tendency to make the existence of any fact of consequence to the determination of the action more probable or less probable than it would be without the evidence.

For evidence to be relevant, it must be:
1. Material
2. Probative

Question 2

In relevant evidence, when is the evidence material?

Answer 2

When it is “of consequence” to the case.

Does not need to be the ultimate issue

Question 3

In relevant evidence, when is evidence probative?

Answer 3

When the evidence has “any tendency” to make the proposition more or less likely.

Question 4

What is Rule 403?

Answer 4

A trial judge’s discretion to exclude relevant evidence if its ** probative value is substantially outweighed** by the danger of one or more of the following considerations:

1. Danger of unfair prejudice
2. Confusion of the issues
3. Misleading the jury
4. Undue delay
5. Waste of time
6. Needless presentation of cumulative evidence

Question 5

Is evidence involving some time, event, or person (i.e., similar occurances) admissible?

Answer 5

As a general rule, if evidence involves some time, event, or person other than that involved in the present case, it is inadmissible.

Question 6

Is evidence that a plaintiff has previously filed similar tort claims or has been involved in prior accident admissible? If so, when?

Answer 6

Generally, evidence that a person has previously filed similar tort claims or has been involved in prior accidents is generally inadmissible.

However, such evidence may be admissible if it tends to show something othter than carelessness:

1. Evidence that a plaintiff has made previous similar false claims
2. Evidence of prior accidence where the cause of the plaintiff’s damages is at issue AND the plaintiff previously injured the same part of the their body

Question 7

Is evidence of similar accidents involving the defendant admissible? If so, when?

Answer 7

Generally, other accidents involving the defendant are inadmissible.

However, evidence of prior accidents or injuries caused by the same event or condition and occuring under substantially similar circumstances are admissible to prove:

1. The existence of a dangerous condition
2. That the dangerous condition was the cause of the present injury, and
3. That the defendant had notice of the dangerous condition

Question 8

Is evidence of the absence of similar accidents admissible? If so, when?

Answer 8

Many courts are reluctant to admit evidence of the absence of similar accidents to show absence of negligence or lack of defect.

However, evidence of the absence of complaint is admissible to show the defendant’s lack of knowledge of the danger.

Question 9

Is evidence of sale of similar personal or real property admissible? If so, when?

Answer 9

Evidence of sales of similar personal or real property around the same time period is admissible to prove the property’s value. However, prices quoted in mere offers to purchase generally are not admissible.

Question 10

Is evidence of habit admissible? If so, when?

Answer 10

Evidence of a person’s habit is admissible as circumstantial evidence that the person acted in accordance with the habit on the occasion at issue in the case.

Question 11

When is evidence considered habit evidence?

Answer 11

Habit evidence describes a person’s regular response to a specific set of circumstances. Thus, there are two defining characteristics of habits:

1. Frequency of conduct
2. Particularily of circumstances

Question 12

Is evidence of an industry custom admissible? If so, when?

Answer 12

Evidence as to how others in the same trade or industry have acted in the recent past may be offered as evidence of the appropriate standard of care.

However, industry custom isn’t conclusive on this point.

Question 13

Is evidence of a party’s insurance against liability (or lack thereof) admissible?

Answer 13

Evidence of a party’s insurance against liability (or lack thereof) is not admissible to show whether the party acted negligently or otherwise wrongfully.

However, it may be admissible for other relevant purposes, such as:

1. To prove ownership or control (if disputed)
2. To impeach a witness
3. As a part of an admission of liability, where the reference to insurance coverage cannot be sevvered without lessening its probative value as an admission of liability

Question 14

Is evidence of subsequent rededial measures admissible? If so, when?

Answer 14

Evidence of repairs or other precautionary measures made following an injury is not admissible to prove negligence, culpable conduct, a defect in a product or its design, or a need for warning.

However, it may be admissible for some other relevant purpose, such as:

1. To prove ownership or control (if disputed)
2. To rebut a claim that a precaution was not feasible
3. To prove that the opposing party has destroyed evidence

Question 15

Is evidence of a compromise (settlement) or offer to compromise admissible? If so, when?

Answer 15

Evidence of a compromise (settlement) or an offer to compromise a civil claim is not admissible in any case to:

1. Prove or disprove the validity or amount of a disputed claim
2. Impeach a witness by prior inconsistent statement or contradiction

However, evidence of settle is admissible:

1. To impeach a witness on the ground of bias
2. Conduct or statements made during compromise negotations regarding a civil dispute w/ a GOVERNMENTAL authority when offered in a CRIMINAL case

The exclusion for settlements and negotiations ONLY kicks in if there was a claim or some indication that a party was going to make a claim. The claim must have been in dispute as to EITHER:

1. Liability; or
2. Amount

Question 16

When does the public policy exclusion for settlements and negotations apply?

Answer 16

ONLY if there was a claim or some indication that a party was going to make a claim. The claim must have been in dispute as to EITHER:

1. Liability; or
2. Amount

Question 17

Are plea discussions admissible evidence? If so, when?

Answer 17

The following are generally inadmissible in any criminal OR civil case against the defendant who made the plea or participated in the discussions:

1. Offers to plead guilty
2. Withdrawn guilty pleas
3. Actual pleas of nolo contendere
4. Statements of fact made during any of the above plea discussions

An actual guilty plea (not withdrawn) is generally admissible

Question 18

Is evidence that a party has paid or offered to pay an injured party’s medical, hospital, or similar expenses admissible? If so, when?

Answer 18

Evidence that a party has paid or offered to pay an injured person’s medical, hospital, or similar expenses is inadmissible to prove liability for the injury.

However, admissions of fact accompanying such payments and offers are admissible.

Question 19

What is character evidence?

Answer 19

Character evidence regers to a person’s general propensity or dispsition (such as for honesty, fairness, peacefulness, or violence).

Question 20

When is character evidence admissible?

Answer 20

1. To prove a person’s character in the rare situation where their character is directly in issue in the case (i.e., an essential element of a claim or defense)
2. To serve as circumstantial evidence of how a person probably acted during the events of the case (only permitted in certain situations)
3. Impeachment purposes

Question 21

Can the prosecution in a criminal trial introduce character evidence of the defendant? If so, when and how?

Answer 21

The prosecution cannot initate evidence of the defendant’s bad character to show conduct in conformity.

However, if the defendant introduces evidence of their good character, then the prosecution can rebut with evidence of the defendant’s bad character. The prosecutor can take either or both of the following actions:
1. Cross-exam the defendant’s character witness about specific acts of the defendant
2. Call its own character witness (direct exam) to provide reputation or opinion testimony about the defendant’s bad character for the trait in question.

Question 22

Can the defendant in a criminal trial introduce character evidence of him/herself? If so, when and how?

Answer 22

The defendant is permitted to introduce evidence of their own good character to show their innocence.

A character witness for the defendant may testify as to the defendant’s good reputation for a pertinent trait and may give their personal opinion concerning that trait of the defendant.

Question 23

May the prosecution introduce character evidence if the defendant takes the stand?

Answer 23

A defendant does not put their character in issue merely by testifying. The prosecution is limited to offering impeachment evidence rather than substantive character evidence.

Question 24

May the prosecutor introduce extrinsic evidence when introducing character evidence?

Answer 24

No, the prosecutor may not introduce any extrinsic evidence of the prior misconduct. The prosecutor is limited to the inquiry of the witness.

Question 25

In a criminal case, may a defendant introduce character evidence of the victim? If so, when and how?

Answer 25

The defendant may introduce reputation or opinion evidence of a bad character trait of the alleged crime victim when it is relevant to show the defendant’s innocence. (e.g., self-defense cases where the victim is the first agressor)

Question 26

In a criminal trial, may the prosecution introduce character evidence of the victim? If so, when and how?

Answer 26

Once the defendant has introduced evidence of a victim’s bad character for a pertinent trait, the prosecution may rebut with reputation or opinion evidence of:
1. The victim’s good character for the same trait; or
2. The defendant’s bad character for the same trait

However, during a homicide trial, the prosecution may offer any kind of evidence of a victim’s good character for peacefulness, regardless whether the defendant has introduced character evidence og the victim’s generally violent propensity.

Question 27

In a civil or criminal case involving sexual misconduct, is character evidence of past sexual behavior of the victim admissible? If so, when?

Answer 27

In any civil or criminal proceeding involving alleged sexual misconduct, evidence offered to prove the sexual behavior or sexual disposition of the victim is generally inadmissible.

In criminal cases, specific instances of a victim’s sexual behavior are admissible to prove:
1. Someone other than the defendant is the source of semen, injury, or other physical evidence
2. Specific instances of sexual behavior b/w the victim and the defendant to prove consent

In civil cases, evidence of the victim’s sexual behavior is admissible only if its probative value substantially outweighs the danger of harm to the victim and of unfair prejudice to any party.

Question 28

In civil cases, is character evidence admissible? If so, when?

Answer 28

Character evidence is generally inadmissible to prove conduct in conformity regardless of which party seeks to offer the evidence.

However, when proof of a person’s character, as a matter of substantive law, is an essential element of a claim or defense, it is said that character is “directly at issue.” These cases are generally limited to:

1. Defamation
2. Negligent hiring or entrustment
3. Child custody cases

When character is directly in issue, all forms of character evidence are admissible.

Question 29

Is evidence of a person’s crimes, wrongs, or acts admissible? If so, when?

Answer 29

Evidence of a person’s other crimes, wrongs, or acts is generally inadmissible if offered solely to prove conduct in conformity/propensity.

However, such evidence may be admissible if relevant to some issue other than their character or propensity. Non-character purposes for offering the evidence may include:

1. Motive
2. Intent
3. Mistake (absence of)
4. Identity
5. Common plan or scheme

Question 30

In civil or criminal trials, is evidence of a defendant’s other acts of sexual misconduct admissible? If so, when?

Answer 30

Evidence of a defendant’s other acts of sexual assault or child molestation are admissible where the defendant is accused of committing an act of sexual assault or child molestation.

Question 31

What are the methods for authentication?

Answer 31

1. Opponents admission (either statements or actions)
2. Eyewitness testimony
3. Handwriting verifications (either a lay witness who has familiarity w/ the alleged writers handwriting in the course of normal affairs or an expert)
4. The fact-finder (jury’s) comparison of the writing samples

Question 32

Regarding authentication, when does the ancient documents rule apply?

Answer 32

The document is:
1. At least 20 years old
2. Is in a condition that creats no suspicion as to authenticity
3. Was found in a place where such a writing would likely be kept

Question 33

Regarding authentication, when are photographs and videos admissible?

Answer 33

Generally, photographs and videos are admissible only if identified by a witness as a portrayal of certain facts relevant to the issue and verified by the witness as a fair and accurate representation of those face.

If a photograph or video is taken when no person who could authenticate the scene is present, the photograph or video may be admitted upon a showing that the camera was properly operating at the relevant time and that the photo/video was downloaded from that camera.

Not necessary to call the photographer

Question 34

How may an x-ray be authenticated?

Answer 34

An x-ray may be authenticated by:
1. A witness that is a correct representation of the facts
2. Showing that the process used is accurate, the machine was in working order, and the operator was qualified to operate it; and
3. Establishing a custodial chain

Question 35

How may a voice be authenticated?

Answer 35

A voice can be identified by the opinion of anyone who has heard the voice at any time, including after litigation has begun and for the sole purpose of testifying.

Question 36

How may a voice be authenticated during telephone conversations?

Answer 36

Statements made during a telephone conversation can be authenticated by any party to the call who testifies that:
1. They recognized the other party’s voice
2. The speaker had knowledge of certain facts only a particular person would have
3. They called a particular person’s number and a voice answered as that person or that person’s residence; or
4. They called a business and talked with the person answering the phone about matters relevant to the business

Question 37

What documents are self-authenticating?

Answer 37

1. Domestic public documents bearing a seal, and similar official foreign public documents
2. Official publications
3. Certified copies of public records or private records on file in a public officer
4. Newspapers and periodicals
5. Trade inscriptions and labels
6. Acknowledged (notarized) documents
7. Commercial paper
8. Business records, electronically generated records, and data copied from an electronic devidence, if the records are certified and the proponent gives the adverse party reasonable written notice and an opportunity for inspection

Question 38

What is the best evidence rule? When does it apply?

Answer 38

To prove the content of a writing, recording, or photograph, the original writing must be produced if the terms of the writing are material.

The best evidence rule applies:
1. Where the writing is a legally operative or dispositive instrument (i.e., writing itself creates rights and obligations); or
2. Where the knowledge of a witness concerning a fact results from having read it in the writing

Question 39

When does the best evidence rule NOT apply?

Answer 39

The rule does not apply where the witness has personal knowledge of the fact to be proved, even if the fact happens to also be recording in a writing.

Question 40

What is the definition of an original document?

Answer 40

The writing itself or any counterpart that is intended by the person executing it to have the same effect as an original.

Includes negatives and printouts of electronic info

Question 41

What is the definition of a duplicate document?

Answer 41

An exact copy of an original made by mechanical means.

NOT handwriting

Question 42

Are duplicates admissible? If so, when?

Answer 42

Duplicates are admissible to the same extent as originals, unless:
1. The circumstances make it unfair to admit the duplicate
2. A genuine question is raised about the authenticity of the original

Question 43

Is secondary evidence (i.e., not original/duplicate documents) admissible? If so, when?

Answer 43

If the proponent cannot produce the original writing in court, they may offer secondary evidence of its contents if a satisfactory explanation is given for the non-production of the original. Valid excuses include:

1. Loss or destruction of the original (unless the proponent lost or destroyed the original in bad faith)
2. The original cannot be obtained by any available judicial process
3. The original is in the possession of an adversary who, after due notice, fails to produce the original

Question 44

What are the exceptions to the best evidence rule?

Answer 44

1. Summaries of voluminous records
2. Certified public records
3. Writing is of minor importance (collateral) to the matter in controversy)
4. Where the opponent has given testimony, a deposition, or a written admission about the writing’s contents

Question 45

What is real evidence?

Answer 45

Real evidence is actual physical evidence addressed directly to the trier of fact. Real evidence may be direct, circumstantial, original, or prepared.

Question 46

When is real evidence admissible?

Answer 46

Real evidence is admissible if:
1. It is relevant
2. It is authenticated (either by testimony of a witness that they recognize the object OR evidence that the object has been held in a substantially unbroken chain of possession)
3. It is in substantially the same condition

Question 47

Are relevant photographs, diagrams, maps, or other reproductions of real evidence admissible?

Answer 47

Yes; however, items used entirely for explanatory purposes are not generally admitted into evidence.

Question 48

Are maps, charts, or models admissible?

Answer 48

Maps, charts, models, etc. are usually admissible for the purpose of illustrating testimony, but it must be authenticated by testimonial evidence that they are faithful reproductions of the object or thing depicted.

Question 49

Are demonstrations admissible?

Answer 49

The court, in its discretion, may permit experiments or demonstrations to be performed in the courtroom. An experiment must be performed under conditions that are substantially similar to those attending the original event.

Demonstrations of bodily injury may not be allowed where the demonstrations would unduly dramatize the injury.

Question 50

What is the rule regarding competency of witnesses?

Answer 50

Witnesses are presumed to be competent until the contrary is established.

Question 51

What are the qualifications to testify?

Answer 51

1. There must be sufficient evidence to support a finding that the witness has personal knowledge of the matter about which they are to testify
2. The witness must give an oath or affirmation to testify truthfully

Question 52

May an insane person testify?

Answer 52

An insane person may testify, provided they understand the obligation to speak truthfully and have the capacity to testify accurately.

Question 53

May judges and jurors testify?

Answer 53

The presiding judge and jurors may not testify as a witness.

Question 54

During an inquiry into the validty of a verdict or indictment, may a juror testify?

Answer 54

Jurors are generally prohibited from testifying about what occurred during deliberations or about anything that may have affected a juror’s vote.

However, a juror may testify as to:
1. Whether any extraneous prejudicial information was improperly brought the the jury’s attention
2. Whether any outside influence was improperly brought to bear on any juror
3. Whether there is a mistake on the verdict form; or
4. Whether any juror made a clear statement that they relied on racial stereotypes or animus to convict a criminal defendant and whether that bias was a significant motivating factor in the juror’s vote to convict.

Question 55

What are Dead Man Acts?

Answer 55

Statutes that provide in a civl case, an interested person is incompetent to testify to a personal transaction or communication with a deceased, when such testimony is offered against the represenative or successor interest of the deceased.

Question 56

When is an interested party considered “interested” in Dead Man Acts?

Answer 56

If they stand to gain or lose by the judgement, or if the judgment may be used for or against them in a subsequent action.

Question 57

Does the Federal Rules have a Dead Man Act?

Answer 57

No, Dead Man Acts do not apply in Federal Rules.

Question 58

Are leading questions admissible? If so, when?

Answer 58

Leading questions are generally allowed on cross-examination and not permited on direct exam.

However, the court will ordinarily allow leading questions on direct exam in the following circumstances:
1. To elicit preliminary or introductory matter
2. When the witness needs help responding because of loss of memory, immaturity, or physical/mental weakness; or
3. When the witness is hostile, an adverse party, or a witness affiliated with an adverse party

Question 59

What is the scope of cross-exam?

Answer 59

1. The scope of direct exam (including all reasonable inferences that may be drawn from it)
2. Matters that test the credibility of the witness

Question 60

What types of questions are improper?

Answer 60

Questions that are:
1. Misleading
2. Compound
3. Argumentative
4. Conclusionary
5. Cumulative
6. Unduly harassing or embarassing
7. Calls for a narrative answer or spuculation
8. Assumes facts not in evidence

Question 61

What types of answers are improper?

Answer 61

1. Lack of foundation
2. Nonresponsive

Question 62

May witnesses use documents to aid oral testimony? If so, when?

Answer 62

Generally, a witness cannot read their testimony from a prepared memorandum. However, a witness may use any writing or object for the purpose of refreshing their present recollection–although the witness may not read from the writing.

Question 63

Whenever a witness has used a writing to refresh their memory while on the stand, an adverse party is entitled to:

Answer 63

1. Have the writing produced at trial
2. Cross-examine the witness about the writing; and
3. Introduce portions of the writing relating to the witness’s testimony into evidence

Question 64

If, after a witness has failed to refresh their recollection, may the record be read into evidence? If so, when?

Answer 64

The record itself may be read into evidence if a proper foundation is laid. The foundation must include proof that:

1. The witness has insufficient recollection to testify fully and accurately
2. The witness had personal knowledge of the facts in the record when the record was made
3. The record was made by the witness or under their direction, or it was adopted by the witness
4. The record was made when the matter was fresh in the witness’s mind; and
5. The record accurately reflects the witness’s knowledge

Question 65

Is opinion testimony by a lay witness admissible? If so, when?

Answer 65

Opinions by law witnesses are generally inadmissible.

However, opinion testimony is admissible when no better evidence can be obtained and it is:
1. Rationally based on the witness’s perception
2. Helpful to a clear understaning of the witness’s testimony or helpful to the determination of a fact in issue; and
3. Not based on scientific, technical, or other specialized knowledge

Question 66

What are the situations where opinions of lay witnesses are generally admissible?

Answer 66

1. The general appearance or condition of a person
2. The state of emotion of a person
3. Matters involving sense recognition
4. Voice or handwriting identification
5. Speed of a moving object
6. Value of the witness’s own services or property
7. Rational or irrational nature of another’s conduct; and
8. A person’s intoxication

Question 67

For expert testimony to be admissible:

Answer 67

1. The subject matter must be one where scientific, technical, or other specalized knowledge would assist the trier of fact
2. The opinion must be based on sufficient facts or data
3. The opinion must be the product of reliable principles and methods
4. The expert must have reliably applied the principles and methods to the facts of the case

Question 68

What are the requirements to be qualified as an expert witness?

Answer 68

If the witness possesses special knowledge, skill, experience, training, or education.

Question 69

What sources of information may an expert witness’s testimony be based on?

Answer 69

1. Facts based on the expert’s own personal observation
2. Facts made known to the expert at trial
3. Facts not known personally but supplied to the expert outside the courtroom and of a type reasonably relied upon by other experts in the particular field

Question 70

Does an expert need to disclose the basis of their opinion?

Answer 70

No, however, the expert may be required to disclosue such information on cross-exam.

If the expert relied on facts not known personally but supplied to the expert outside the courtroom, the proponent of the expert testimony must not disclose the facts to the jury unless the court determines their probative value in helping the jury evaluate the expert’s opinion substantially outweighs their prejudicial effect.

Question 71

What are the 4 Daubert factros to determin the reliability of experts’ principles and methodologies?

Answer 71

1. Testing of principle or methodology
2. Rate of error
3. Acceptance by experts in the same discipline
4. Peer review and publication

Question 72

What are the limitations regarding the admissibility of learned treatises?

Answer 72

1. The treatise must be established as reliable authority by: (1) the testimony of the expert of the stand; (2) the testimony of another expert; or (3) judicial notice
2. The excerpt must be used in the context of expert testimony
3. The excerpt is read into evidence but cannot be received as an exhibit

Question 73

May an expert render an opinion as to the ultimate issue in a case?

Answer 73

An expert is generally permitted to render an opinion as to the ultimate issue in the case.

However, in a criminal case in which the defendant’s mental state constitutes an element of the crime or defense, an expert may not state an opinion as to whether the accused did or did not have the mental state in issue.

Question 74

When MUST a judge order witnesses excluded from the courtroom?

Answer 74

Upon a party’s request

Question 75

The judge may not exclude the following witnesses:

Answer 75

1. A party or a designated officer or employee of the party
2. A person whose presence is essential to the presentation of a party’s claim or defense
3. A person statutorily authorized to be present

Question 76

Is bolstering a witness’s testimony admissible? If so, when?

Answer 76

Generally, a party is not permitted to bolster or accredit the testimony of their witness.

However, a party may offer evidence that the witness made a timely complaint or a prior statement of identification.

Question 77

Which party may impeach a witness?

Answer 77

Any witness may be impeached by any party, including the party who called them.

Question 78

May a party impeach a witness by prior inconsistent statements? If so, how?

Answer 78

A party may show, by **cross-examination or extrinsic evidence, **that the witness has, on another occasion, made statements inconsistent with their present testimony.

To prove the statement by extrinsic evidence, a proper foundation must be laid and the statement must be relevant to some issue in the case.

Question 79

Are prior inconsistent statements admissible as substantive evidence? If so, when?

Answer 79

Usually, prior inconsistent statements are hearsay, admissible only for impeachment purposes.

However, if a testifying witness’s prior inconsistent statement was made under oath at a prior proceeding, it is admissible nonhearsay and may be admitted as substantive evidence of the facts stated.

Question 80

When may a party introduce extrinsic evidence to impeach a witness on a prior inconsistent statement?

Answer 80

If, at some point:

1. The witness is given an opportunity to explain or deny the statement
2. The adverse party is given an opportunity to examine the witness about the statement

UNLESS the prior inconsistent statement is an opposing party’s statement, it is made by a hearsay declarant, or when justice requires

Question 81

May a party impeach a witness for bias? If so, when?

Answer 81

A witness may be impeached by evidence that they show bias, interest, or a motivation to lie.

If the evidence is extrinsic evidence, the witness must first be asked about the facts that show bias or interest on cross-examination.

Question 82

May a party impeach a witness for sensory deficiencies? If so, how?

Answer 82

A witness may be impeach by showing, either on cross-examination or by extrinsic evidence, that their faculties of perception and recollection were so impaired as to make it doubtful tha tthey could have perceived those facts.

There is no foundation requirement for proving the sensory deficiency with extrinsic evidence.

Question 83

May a party impeach a witness for contradictory facts? If so, how?

Answer 83

Impeachment by contradition is a recognized method of impeachment.

The cross-examiner, while questioning the witness, can try to make the witness admit that they lied or were mistaken about some fact they testified to during direct examination. If the witness admits to the mistake or lie, they have been impeached.

If the witness sticks to their story, extrinsic evidence may be used to prove the contradictory fact UNLESS the fact is collateral.

If not asked about on direct, it is a prior inconsistent statement

Question 84

May a party impeach a witness with reputation or opinion evidence of untruthfulness? If so, how?

Answer 84

A witness can be impeached with reputation or opinion evidence of their own bad character for truthfulness, to suggest that they were not telling the truth on the stand.

This is accomplished by calling a character witness to testify about the target witness’s bad reputation or the character witness’s low opinion of the target witness.

Question 85

May a party impeach a witness for conviction of a crime? If so, how?

Answer 85

A witness may be impeached by proof of a conviction for certain crimes.

1. If the crime occurred more than 10 years ago (conviction date or relase date) = inadmissible
2. If the crime has been PARDONED for rehabilitation + no subsequent felony conviction OR innocence = inadmissible
3. If the offense was juvenile = inadmissible
4. If it is a crime involving dishonesty or false statements (< 10 yrs ago) = admissible
5. If it is a FELONY of a crime that does not involve dishonesty or false statements (< 10 yrs ago) = criminal defendant/if probative value outweighs its prejudical effect; all other witnesses/Rule 403

Question 86

May a party impeach a witness for bad acts involving truthfulness? If so, how?

Answer 86

A witness may be interrogated upon cross-examination with respect to an act of misconduct if the act is probative of truthfulness.

The cross-examiner must have a good-faith basis to believe the wintess committed the misconduct and NO EXTRINSIC EVIDENCE is permitted

Question 87

May a party impeach an unavailable witness? If so, how?

Answer 87

The credibility of a hearsay declarant may be attacked by evidence that would be admissible if the declarant had testified as a witness.

The declarant may be impeached by ANY of the impeachment methods. The declarant need not be given the opportunity to explain or deny the prior inconsistent statement.

Question 88

What is hearsay?

Answer 88

A statement, other than one made by the declarant while testifying at the current trial or hearing, offered in evidence to prove the truth of the matter asserted.

Question 89

When is hearsay within hearsay admissible?

Answer 89

Only if BOTH the outer hearsay statement and the inner hearsay statement fall within an exception to the hearsay rule.

Question 90

What is considered a “statement” for the purposes of hearsay?

Answer 90

1. Oral or written assertion
2. Non-verbal conduct intended as an assertion

Question 91

What is “offered to prove the truth of the matter asserted” for the purposes of hearsay?

Answer 91

Whether the statement is offered to prove that what the witness is saying is true?

Question 92

What are common “non-truth” purposes for statements?

Answer 92

1. Verbal acts or legally operative facts
2. Statements offered to show their effect on the listener
3. Statements offered as circumstantial evidence of declarant’s state of mind

Question 93

Are prior statements of testifying witnesses hearsay? If so, are they admissible?

Answer 93

Generally, a witness’s own prior out-of-court statement is hearsay and is inadmissible unless an exception applies.

However, a prior statement by a testifying witness who is subject to cross-examination is NOT hearsay if:

1. The statement is one of identification of a person as someone that the witness perceived earlier
2. The prior statement is inconsistent with the declarant’s in-court testimony and was given under oath at a prior proceeding; or
3. The prior statement is consistent with the declarant’s in-court testimony and is (1) offered to rebut a charge that the witness is lying or exagerating because of some motive or (2) offered to rehabilitate a witness whose credibility has been impeached on some other ground

Question 94

Are opposing party statements hearsay? If not, what is considered an opposing party’s statement?

Answer 94

No, an opposing party’s statement is not hearsay. It is a statement made by or attributable to a party and offered against that party.

Question 95

Is silence considered an opposing party’s statement? If so, what are the requirements for silence to be adopted?

Answer 95

If a party remains silent in the face of an accusatory statement, their silence may be considered an implied acquiescence to the truth of the statement if the following requirements are met:

1. The party heard and understood the statement
2. The party was physically and mentally capable of denying the statement
3. A reasonable person would have denied the accusation; and
4. Not in the face of accusations by police in a criminal case

Question 96

Are vicarious statements considered opposing party’s statements? If so, what are the requirements to be adopted?

Answer 96

Certain statements by another person are admissible against a party because of their relationship between them:

1. Co-parties ARE NOT vicarious
2. Authorized spokespersons ARE vicarious
3. Agents/employes ARE vicarious if: (1) concerned any matter within the scope of their agency or employment; and (2) was made during the existence of the agency or employment
4. Partners ARE vicarious if w/n scope of partnership
5. Co-conspirators ARE vicarious if made in furtherance of conspiracy

Question 97

Are statements made by an unavailable declarant hearsay?

Answer 97

Yes; however, they may be admissible if they fall within an exception.

Question 98

When is a declarant unavailable?

Answer 98

1. Death or physical or mental illness
2. Privilege
3. Refuse to testify
4. Do not remember subject matter
5. Absent and court is unable to procure their attendance

Question 99

If a declarant is unavailable, when is their former testimony admissible?

Answer 99

1. Under oath
2. The party against whom the testimony is now being offered had an opportunity and similar motive to develop the declarant’s testimony at the prior proceeding by direct, cross, or re-direct exam

Question 100

If a declarant is unavailable, when is statements against their interest admissible?

Answer 100

If the statement was made against that persons:
1. Pecuniary (money)
2. Proprietary (property); or
3. Penal (criminal)
interest when made, such that a reasonable person in the declarant’s position would have made it only if they believed it to be true.

Question 101

When are dying declarations admissible?

Answer 101

1. Homicide OR any civil case
2. Declarant believed their death was imminent; and
3. The statement concerned the cause or circumstances of what the declarant believed to be their impending death

Question 102

When are excited utterances admissible?

Answer 102

1. Related to a startling event
2. Made while under the stress of excitement from the event

Question 103

When are present sense impressions admissible?

Answer 103

1. Describes or explains an event or condition; and
2. Made while or immediately after the declarant perceives the event or condition

Question 104

When is a witness’s present state of mind admissible?

Answer 104

A statement of the declarant’s then-existing state of mind (including their motive, intent, or plan) or their emotional, sensory, or physical condition is admissible

A statement of memory or believe is not admissble to prove the truth of the fact remembered or believed.

Includes statements of intent and phsical conditions

Question 105

When are statements made for purposes of medical diagnosis or treatment admissible under the hearsay rules?

Answer 105

1. Describes a person’s medical history, past or present symptoms, or their inception or general cause
2. Made for medical diagnosis or treatment

Question 106

When are business records admissible under the hearsay rules?

Answer 106

Any writing or record made as a memorandum of any act, event, condition, opinion, or diagnosis is admissible in evidence as proof of that occurance if the following elements are met:

1. Business = business, org, occupation, or calling
2. Made in the regular course of business; and
3. Business regularily keeps such records

Question 107

When are official or public records admissible under the hearsay rules?

Answer 107

1. Activities of the office or agency
2. Matters observed pursuant to a duty imposed by law (not NOT police observations in criminal cases); or
3. Factual findings from an investigation authorized by law (but NOT offered against a defendant in a criminal case)

Question 108

When are ancient documents admissible under the hearsay rules?

Answer 108

Any authenticated document prepared before January 1, 1998.

Question 109

When does the Confrontation Clause apply?

Answer 109

1. Statement is being offered against the accused in a criminal case
2. The declarant is unavailable
3. The statement was testimonal in nature (i.e., primary purpose was prosecution/police interrogation)
4. The accused had no opportunity to cross-examine the declarant’s testimonial statement prior to trial

Question 110

What privileges are recognized by the Federal Rules

Answer 110

1. Attorney-client
2. Spousal
3. Confidential Marital Communications
4. Psychotherapist/Social Worker-Client
5. Clergy-Penitent
6. Governmental

Question 111

When does attorney-client privilege apply?

Answer 111

1. Confidential communications
2. Between attorney and client
3. Made during professional legal consultation
4. Unless the privilege is waived or an exception is applicable

Question 112

When does physician-patient privilege apply?

Answer 112

1. There was a professional relationship between the physician and patient for the primary purpose of medical treatment
2. The information was acquired for the purpose of diagnosis or treatment
3. The information was necessary for diagnosis or treatment

Question 113

When does physician-patient privilege not apply?

Answer 113

1. Patient puts their physical condition in issue
2. Physician’s assistance was sought to aid wrongdoing
3. Communication is relevant to an issue of breach of duty in a dispute between the physician and patient
4. The patient agreed by contract to waive the privilege
5. It is a federal case applying the federal law of privilege

Question 114

What is spousal immunity? When does it apply?

Answer 114

• A married person whose spouse is a defendant in a criminal case may not be called as a witness by the prosecution.
• Only testifying spouse can invoke
• The marriage must be valid and privilege lasts only during the marriage (i.e., married at the time of trial).
• Applies to all information before and during marriage.

Question 115

What is confidential marital communications privilege? When does it apply?

Answer 115

• In any civil or criminal case, confidential communications between spouses during a valid marriage are privileged.
• Either spouse can refuse to disclouse the communication or prevent any other person from doing so.
• Marital relationship must have existed when the communication was made.
• Divorce does not terminate the privilege but communications made after divorce are not privileged.