Evidence

Question 1

What facts are subject to judicial notice?

Answer 1

Facts not subject to dispute because they are either:
(1) generally known within the territorial jurisdiction of the trial court
(2) capable of being accurately and readily determined from sources whose accuracy cannot reasonably be questioned are subject to judicial notice

Question 2

For preliminary questions of admissibility, who has the burden of persuasion?

Answer 2

the party offering the evidence ordinarily bears the burden of persuasion

Question 3

4 requirements to admit under the record recollection hearsay exception

Answer 3

(1) on a matter the witness once knew about
(2) witness made or adopted the record when the matter was fresh
(3) record accurately reflects the witness’s knowledge
(4) the witness states that they cannot testify fully and accurately, even after consulting the record on the stand in an attempt to refresh

Question 4

Burden of persuasion for preliminary questions of admissibility

Answer 4

the party offering the evidence ordinarily bears the burden to persuade the judge by a preponderance of the evidence

Question 5

Offer of proof

Answer 5

An offer of proof is an oral or written explanation of the relevance and admissibility of the evidence being offered by the proponent on the record

note: often done outside of the presence of the jury

Question 6

Plain Error Rule

Answer 6

An error that is obvious to the reviewing court, plain error that affects a substantial right is grounds for reversal even without objection

Question 7

Explain the Completeness Doctrine

Answer 7

When a party introduces part of a writing or recorded statement, an adverse party may compel the introduction of an omitted portion of it in fiarness it should be considered at the same time

ex. when it clarifies the admitted portion

note: allows other party to have the rest admitted immediately to ensure the finder of fact is not viewing the evidence to narroely- about fairness

Question 8

Leading questions are allowed on direct examination when:

Answer 8

Necessary to develop the witness’s testimony, including:
(1) preliminary background matters
(2) hostile witnesses
(3) minors or those with difficulty communicating

Question 9

For impeachment, how are pendency of an appeal of a conviction and a pardon properly treated

Answer 9

a pardon releases the punishment and eliminates the guilt for the offense - not admissible when there has been a pardon

witness’s conviction may be used for impeachment purposes even if an appeal is pending - evidence of the pendency is also admissible

Question 10

When does the intentional destruction of evidence raise a presumption or inference that such evidence would have been unfavorable to the party that destroyed the evidence

Answer 10

to be entitled to such an inference, the alleged victim must establish that:
(1) destruction was intentional
(2) destroyed evidence was relevant to the issue about which the party seeks such inference; and
(3) the alleged victim acted with due diligence as to the destroyed evidence

note: presumption is rebuttable

Question 11

Difference between direct and circumstantial evidence

Answer 11

Direct evidence - identical to the factual proposition that it is offered to prove

ex. seeing D shoot victim

Circumstantial evidence - tends to indirectly prove a factual proposition through an inference from collateral facts

ex. seeing D with a gun leaving the alley where victim was shot

Question 12

What proceedings apply the Federal Rules of Evidence?

Answer 12

generally apply to all civil and criminal proceedings before US district courts, court of appeals, bankruptcy court, claims court, and in proceedings before US magistrates

Question 13

Proceedings that don’t apply the FRE

Answer 13

(1) court’s determination of a preliminary question of fact gocerning admissibility
(2) grand jury proceedings
(3) criminal proceedings for:
- issuance of a search arrest, warrant, or criminal summons
- preliminary examination in a criminal case
- extradiction or rendition
- consideration of bail or other release
- sentencing
- granting or revoking probation or supervised release

Question 14

What requirements for lay witness opinion:

Answer 14

(1) rationally based on the perception of the witness; and
(2) helpful to a clear understanding of the witness’s testimony or the determination of a fact in issue

note: also can not be based on scientific, techincal, or specialized knowledge

Question 15

Admissibility of habit evidence

Answer 15

admissible to prove that the person or organization acted in accordance with the habit or routine on a particular occasion

Question 16

5 Hearsay Exceptions requiring Unavaliability:

Answer 16

(1) former testimony
(2) dying declaration
(3) statment against interest
(4) statement of personal or family history
(5) statement offered against party who wrongfully caused declarant’s unavailability

Question 17

When must a preliminary hearing on admissibility be conducted outside the presence of the jury?

Answer 17

(1) involves admissibility of a confession
(2) defendant in a criminal trial is a witness and requests it
(3) when justice requires it

note: judge makes determination on admissibility, jury makes determination on weight

Question 18

Dead Man’s Statute in criminal vs. civil

Answer 18

criminal - do not apply in criminal cases

civil - party with a financial interest in the outcome of a case is not permitted to testify adversley about a communication or transaction with a person whose estate is a party to the case

note: federal court does not have a dead man’s statute - may come up under Erie - rationale is to protect a decedent’s estate from parties claiming a dead person said or did something with financial implications

Question 19

2 ways to authenticate handwriting

Answer 19

(1) expert witness or trier of fact may compare the writing in question with another writing that has been proven to be genuine or
(2) lay witness with personal knowledge of the claimed author’s handwriting may authenticate as long as they didn’t learn it for current litigation

Question 20

When can evidence that a criminal defendant committed another sexual assault be admitted?

Answer 20

criminal case in which a defendant is accused of:
- sexual assault
- attempted sexual assault
- conspiracy to commit sexua assault
- evidence that the defendant commited any other sexual assault is admissible to prove any relevant matter

note: court does have discretion to exclude under 403

Question 21

When is a jusge permitted to be called as a witness in a trial over which she is presiding?

Answer 21

never, it is an absolute bar

Question 22

What 4 categories of witnesses may not be excluded from the courtroom to prevent them from hearing testimony of other witnesses?

Answer 22

(1) a party who is a natural person
(2) an officer or employee of a party that is not a natural person
(3) a person whose presence is essential to a party’s presentation of its case; and
(4) a person whose presence is permitted by statute (victims)

Question 23

When may a judge take notice of an adjudicative fact?

Answer 23

when the fact is not subject to reasonable dispute because:
(1) generally known within the territorial jurisdiction of the trial court; or
(2) it can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned

Question 24

What 2 requirements must be met to use a conviction as impeachment evidence if more than 10 years have elapsed since the latter of the conviction or release from confinement?

Answer 24

The conviction is admissible if:
(1) its probative value substantially outweighs its prejudicial effect; and
(2) the proponent gives the adverse party reasonable written notice of intent to use the evidence

Question 25

What is the “bursting bubble” approach to burden shifting?

Answer 25

rebuttable presumption no longer has a preclusive effect after the opposing party introduces sufficient evidence to sustain a contrary finding

if contrary evidence is introduced, the burden of persuasion remains on the party who had it originally

Question 26

Describe the manner of proof used for admitting prior convictions to impeach a witness

Answer 26

evidence may be produced by way of an admission by the witness on direct or cross examination, as well as by extrinsic evidence

Question 27

What is the rule of completeness?

Answer 27

when a party introduces part of a writing or recorded statement, an adverse party may compel the introduction of an omitted portion of the writing or statement if, in fairness, it should be considered at the same time

Question 28

What are the 3 standards of proof?

Answer 28

(1) preponderance of the evidence
(2) clear and convincing evidence
(3) beyond a reasonable doubt

Question 29

Definition of hearsay

Answer 29

out-of-court statement that is offered to prove the truth of the matter asserted

Question 30

3 examples of preliminary questions of admissibility that a judge rather than a jury would determine

Answer 30

(1) admissibility of the evidence
(2) whether a privilege exists
(3) whether a person is qualified to be a witness

note: judges also determine whether an exception would apply to allow hearsay into the record

Question 31

What 2 elements do the Confrontation Clause of the 6th Amendment require in order for out-of-court testimonial statements to be used against a criminal defendant?

Answer 31

(1) declarant must be unavailable; and
(2) the defendant must have had a prior opportunity to cross-examine the declarant

note: Confrontation Clause does not preclude the admission of a dying declaration as hearsay, even if the statement is testimonial

Question 32

When can a court take judicial notice?

Answer 32

judicial notice can be taken at any time during a proceeding, including on appeal, whether upon request of a party or by the court’s own initiative

note: court may not take judicial notice against a criminal defendant for the first time on appeal

Question 33

What 2 questions must the court ask to determine whether the subject matter of an expert’s proposed testimony is proper?

Answer 33

(1) is the subject matter scientific, technical, or other specialized knowledge; and
(2) will it help the trier of fact understand the evidence or determine a face in issue

Question 34

What are the 3 requirements to admit a record under the buisness records hearsay exception?

Answer 34

(1) record was kept in the course of a regularly conducted activity of a buisness, organization, occupation, or calling;
(2) making of the record was a regular practice of that activity; and
(3) the record was made at or near the time of someone with knowledge

Question 35

What standard of proof applies to the authentication of tangible evidence?

Answer 35

Proponent of the evidence must produce sufficient evidence to support a finding that the thing is what its proponent claims it is

note: lesser standard than preponderance of the evidence

Question 36

Present Sense Impression hearsay exception

Answer 36

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

Question 37

Excited Utterance hearsay exception

Answer 37

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

Question 38

How can a phone call be authenticated

Answer 38

testifying that:
(1) caller recognized the speaker’s voice
(2) speaker knew facts that only a particular person would know
(3) the caller dialed a number believed to be the speaker’s, and the speaker identified himself upon answering; or
(4) the caller dialed a buisness and spoke to the person who answered about buisness regularly conducted over the phone

note: voice can be identified by any person who heard the voice at any time, including one made familiar solely for the purposes of litigation

Question 39

What does the best evidence rule require, and what are its exceptions?

Answer 39

if the contents of a document are at issue, or a witness is relying on the contents of the document, the best evidence rule requires that the original document may be produced to prove its contents, unless:
(1) all of the originals are lost or destroyed, and not by the proponent acting in bad faith;
(2) the original cannot be obtained by any available judicial process;
(3) the party against whom the original would be offered
- had control of the original
- was on notice that the original would be the subject of proof, and
- failed to produce it at trial or hearing; or
(4) the document is not closely related to a controlling issue

Question 40

When may a witness be impeached by evidence of a juvenile adjudication?

Answer 40

Evidence of juvenile adjudication is NOT admissible against defendant.

Another witness may be impeached by evidence of a juvenile adjudication, but ONLY IF:
(1) offered in a criminal case
(2) adult’s conviction for that offense would be admissible to attack the adult’s credibility; and
(3) admitting the evidence is necessary to fairly determine guilt or innocence

note: remember - ALWAYS inadmissible against a criminal defendant

Question 41

What are 3 ways in which tangible may be authenticated?

Answer 41

(1) testimony of personal knowledge of the object;
(2) testimony of its distinctive characteristics;
(3) by chain of custody when a physical object that could easily be tampered with or confused with similar item

Question 42

What is required for evidence to be “relevant”

Answer 42

(1) any tendency to make a fact more or less probable than it would be without the evidence (probative); and
(2) fact is of consequence in determining the action (material)

Question 43

When may “work product” be subject to discovery?

Answer 43

Work product is not subject to discovery unless the party seeking disclosure
(1) demonstrates a substantial need for the information; and
(2) cannot obtain the information by any other means without undue hardship

note: mental impressions, conclusions, and trial tactics of an attorney are always protected from discovery

Question 44

What is the “Rape Shield” Rule

Answer 44

evidence offered to prove the victim’s sexual behavior/predisposition is generally inadmissible in any proceeding involving sexual misconduct

Question 45

When is character evidence admissible in civil cases, and in what forms?

Answer 45

when character evidence is an essential element of a claim or defense

when admissible in a civil case, character may be proved by reputation, opinion, and specific instances of a person’s conduct

Question 46

What are 3 instances in which specific acts are admissible in criminal cases?

Answer 46

(1) when character is an essential element of a charged crime (or defense) and a defendant offer specific acts inconsistent with the crime;
(2) for non-propensity purposes (MIMIC) (motive, intent, absence of mistake, identity, or common plan) evidence; and (3) when a character witness is asked on cross-examination about specific acts committed by the person about whom the witness is testifying

Question 47

What are five non-hearsay uses for out-of-court statements

Answer 47

a statement is non-hearsay if offered:
(1) to prove that the statement was made (legally operative fact);
(2) to show the effect on the recipient;
(3) as circumstantial evidence of the declarant’s state of mind;
(4) as circumstantial evidence of identity; or
(5) solely to impeach or rehabilitate

Question 48

3 examples of habit evidence

Answer 48

habit can be the regular practice of a buisness or an individual

examples can be positive or negative (always or never)

examples
(1) company “routinely” matches employee’s charitable contributions
(2) person “never” smokes
(3) person “always” wears a seatbelt

Question 49

When does a statement by an unavailable declarant qualify as a “statement against interest” hearsay exception?

Answer 49

If statement:
(1) was against the declarant’s interest at the time it was made; and
(2) would not have been made by a reasonable person unless he believed it to be true

Question 50

What is the balancing test when determining whether a testifying criminal can be impeached with a conviction not involving dishonesty?

Answer 50

when the witness is a criminal defendant, evidence of a felony conviction for a crime not involving dishonesty or false statement is admissible only if its probative value outweighs the prejudicial effect to that defendant

note: stricter than usual standard to afford greater protection to criminal defendants - juries struggle to limit use to impeachment rather than guilt or evidence

Question 51

For what 2 purposes are compromise offers and negotiations inadmissible as a public policy exclusion?

Answer 51

(1) to prove or disprove the validity or amount of a disputed claim; or
(2) for impeachment by a prior inconsistent statement or contradiction

Question 52

When can a pretrial order formulating a plan for trial be modified?

Answer 52

Only to prevent manifest injustice

Question 53

Inconsistent statement’s can be used to impeach a declarant even when:

Answer 53

(1) it occurred after the hearsay statement or
(2) the declarant had no opportunity to explain or deny it

Question 54

In a jury trial how can a court instruct juries?

Answer 54

A court may:
(1) may instruct the jury at any thime before the jury is discharged
(2) must inform the parties of its proposed instructions before instructing the jury and closing arguments
(3) must allow the parties to object on the record and outside the presence of the jury before the instructions and closing arguments are delivered

Question 55

When does a crime involve dishonesty or false statement for impeachment purposes

Answer 55

when establishing the elements of the crime requires proof of admission of an act of dishonesty or false statement