Evidence

Question 1

Preserving Claims of Error

Answer 1

Parties are required to preserve a claim of error only if it affects a substantial right. This means the party attempting to preserve must be quick to object when the evidence is introduced, or be quick to prove the evidence’s substance when the evidence is excluded. Appellate courts can also take note of plain error even if the error was not properly preserved.

Question 2

Preliminary Review of Evidence

Answer 2

Trial judges preliminarily review evidence to decide what gets into evidence. This includes deciding whether a witness is qualified, a privilege exists, or evidence is admissible. No evidence rules apply except those on privilege. This is typically a preponderance of the evidence standard.

When relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist. This is typically a sufficiency evidence standard.

Question 3

Rule of Completeness

Answer 3

If a party is cherry-picking evidence, then the other party can introduce the additional evidence to complete the context, like when one party only uses parts of a prepared report.

Question 4

Relevance

Answer 4

Under the rules of evidence, all relevant evidence is admissible unless provided otherwise. Relevant evidence is material and probable. The standard for relevance is low, so relevant evidence is admissible unless provided otherwise. Relevant evidence can be excluded if its probative value is substantially outweighed by danger of unfair prejudice or co.

Question 5

Relevance - Judge’s Discretion

Answer 5

Trial judges have broad discretion to decide relevance and can exclude relevant evidence if they believe the probative value of the evidence is substantially outweighed by unfair prejudice, confusing of the issues, misleading of the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.

Question 6

Relevance - Conditional Relevance

Answer 6

Conditional relevance is a chain of evidence leading to an inference or conclusion (witness unable to identify defendant). The evidence’s relevance is conditional on another evidence, and this conditional fact must be sufficient (it does not have to be 100%) to support the fact does exist.

Question 7

Relevance - Similar Occurrences

Answer 7

Similar past occurrences are generally low in relevance because it is unrelated to the current case. However, similar past occurrences may be admissible if they are (1) the plaintiff’s past accident history to show false claims or injury to same body part; (2) the defendant’s past accident history to show the defendant was on notice of the dangerous activity that caused the current injury; or (3) proving intent.

Question 8

Character

Answer 8

Character evidence is generally inadmissible to prove the defendant acted in conformity with that character because it is unduly prejudicial. However, a criminal defendant may open the doors to character evidence if they introduce opinion or reputation testimony regarding their pertinent trait. The prosecutor can then follow up with opposing evidence regarding the defendant’s pertinent trait with opinion or reputation testimony, and/or specific instances of conduct.

Character evidence can be offered to prove something other than a person acting in accordance with that character, or to prove an element in a crime.

Question 9

Character - Criminal Defendants - General

Answer 9

Criminal defendants may open the door to character evidence regarding their or the victim’s pertinent trait. This character evidence can consist of a witness’s reputation or opinion testimony. Once the door is open, prosecution can respond in kind. However, evidence of relevant specific conduct can only be used on cross-examination, or when the character is an essential element of a claim.

Question 10

Character - Criminal Defendants - Defendant’s Good Character

Answer 10

If criminal defendant opens the door by bringing up their “good” character, then defendant can show their own good character for a pertinent trait with opinion or reputation testimony. The prosecutor can rebut with defendant’s bad character for pertinant trait with opinion or reputation testimony, or with specific acts of conduct (but no extrinsic evidence).

Question 11

Character - Criminal Defendants - Victim’s Bad Character

Answer 11

If criminal defendant opens the door by bringing up victim’s “bad” character, then the defendant can show victim’s bad character for pertinent trait with opinion or reputation testimony. The prosecutor can rebut with victim’s good character for pertinent trait or defendant’s bad character for pertinent trait with opinion or reputation testimony. This is usually when the defendant is arguing self-defense.

Question 12

Character - Criminal Defendants - Self Defense in Homicide

Answer 12

If criminal defendant opens the door by arguing self-defense against victim in a homicide case, then the defendant show victim was the first aggressor with any evidence. The prosecutor can rebut with victim’s good character for peacefulness. No character evidence of violent victim is needed here.

Question 13

Character - Criminal Defendants - Specific Instances of Victim’s Promiscuity

Answer 13

If criminal defendant opens the door by arguing specific instances of victim’s promiscuity in a sexual assault case, then the evidence is not admissible unless (1) it is a specific instance of victim used to prove someone other than defendant was the source of the semen/injury, or (2) it is specific instances of victim and defendant used to prove inferred consent.

Question 14

Character - Civil Defendants

Answer 14

Civil defendants may not open the door to character evidence unless character is at issue, like defamation, negligent hiring, or child custody cases.

Question 15

Character - Civil Defendants - Victim’s Promiscuity

Answer 15

If civil defendant argues victim’s promiscuity, then the evidence is not admissible unless (1) it is not excluded by any other rule, and (2) its probative value substantially outweighs the danger of harm to the victim and of unfair prejudice to any party (special version of 403 balancing test).

Question 16

Character - Other Wrongs

Answer 16

Evidence of other wrongs is generally inadmissible to prove the defendant acted in conformity with their character. However, evidence of other wrongs can be admitted to prove something other than character, such as motive, intent, mistake (absence of), identity, or common plan. This requires sufficient evidence for a reasonable jury to find the defendant did commit these other wrongs, and a criminal defendant requires notice.

YOU CAN’T MIMIC CHARACTER, BUT YOU CAN MIMIC OTHER WRONGS – Motive, Intent, Mistake (absence of), Identity, Common plan or scheme.

Question 17

Character - Sex

Answer 17

Evidence of a victim’s sexual relations are not admissible to prove character unless it is a criminal case and the prior sexual relations are being used to prove someone other than the defendant is the source of the semen/injury or to prove inferred consent; or it is a civil case and the prior sexual relations are material and can pass the special variation of the 403 balancing test. The special balancing test inquires whether the probative value of the evidence significantly outweighs danger of harm to the victim and danger of undue prejudice, confusion, etc.

Question 18

Habit

Answer 18

Evidence of a habit is admissible to prove conformance with that habit provided the evidence shows adequate sampling and uniformity of response. Regular practices in the ordinary course of business can be habits, like information sessions before surgeries. Intoxication and addiction evidence are usually excluded because it leads to a propensity inference, but it could be admissible to demonstrate a pattern of behavior of carrying and consuming alcohol while on the job. Lying evidence is usually excluded because they are very conditional and volitional.

Question 19

Public Policy Exclusions

Answer 19

Even relevant evidence may be excluded for public policy reasons. These exclusions are meant to promote charitable behaviors or self-improvement, and generally are excluded for the purposes of proving fault. These exclusions include proof of liability insurance, settlement offers and negotiations, offers to pay medical expenses, subsequent remedial measures, and plea offers and negotiations.

Question 20

Public Policy Exclusions - Subsequent Remedial Measures

Answer 20

Evidence of subsequent measures is not admissible to prove negligence, culpable conduct, defect in product or design, or need for a warning or instruction. However, this evidence can be admissible for another purpose, such as impeachment, or (if disputed) proving ownership or control, or feasibility of precautionary measures.

Evidence of remedial measures by third parties are admissible.

Question 21

Public Policy Exclusions - Compromise/Settlement Offers and Negotiations

Answer 21

Evidence of offers and its acceptance or rejection and statements made about the offer (unless offered in a criminal case and when related to a claim by a public office) are not admissible to prove or disprove the validity of a disputed claim or to impeach by a prior inconsistent statement. However, this evidence can be admissible to impeach a witness on grounds of bias.

There must be a disputed claim, and attempts to negotiate count as negotiation.

Question 22

Public Policy Exclusions - Offers to Pay Medical Expenses

Answer 22

Evidence of furnishing, promising to pay, or offering to pay medical, hospital, or similar expenses resulting from an injury is not admissible to prove liability for the injury. Lost wages are generally not considered under similar expenses. However, admissions of fact accompanying the payments and offers are admissible.

Question 23

Public Policy Exclusions - Pleas and Related Statements

Answer 23

Evidence of the following are not admissible against the defendant who made the plea or participated in the plea discussions in civil and criminal cases: (1) a guilty plea that was later withdrawn, (2) a nolo contendere plea, (3) a statement made during a proceeding on either of those please under FRCP or comparable state procedure, or (4) a statement made during plea discussions with an attorney for the prosecuting attorney if the discussions did not result in a guilty plea or resulted in a later-withdrawn guilty plea. This rule does not protect the prosecutors’ statements.

Statements under (3) and (4) can be admitted if (1) another statement from the same plea or plea discussion was introduced and fairness requires the statements to be considered together, or (2) in defendant made the statement under oath, on the record, with counsel present, in a criminal proceeding for perjury or false statement.

If the defendant waives their 410 rights, then plea negotiation statements can be used to impeach the defendant if they choose to testify at trial.

Question 24

Public Policy Exclusions - Liability Insurance

Answer 24

Evidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully. However, this evidence can be admitted for another purpose, such as impeaching a witness for bias or prejudice, as part of an admission of liability, or proving agency, ownership, or control.

An expert witness who receives a lot of business by an insurance company that is representing the defendant can fall under the witness bias exception.

Question 25

Privilege

Answer 25

Generally, privilege is personal to the holder, is applied to communication made in confidence, cannot be commented on, and can be waived by failure to claim, voluntary disclosure, or waiver. The presence of an eavesdropper does not necessarily destroy privilege.

Question 26

Privilege - Attorney/Client

Answer 26

Confidential communications between attorney and client (or representatives of either) that are made during professional legal consultation is privileged unless waived or an exception applies. The client holds the privilege, but the attorney may claim it on behalf of the client. This privilege applies indefinitely.

Question 27

Privilege - Physician/Patient

Answer 27

This is a state privilege. Confidential information acquired by a physician is privileged if (1) there is a professional relationship between the physician and patient for the purposes of medical treatment; (2) the information was acquired for the purpose of diagnosis or treatment; and (3) the information was necessary for diagnosis or treatment. The patient holds the privilege, but the physician may claim the privilege on the patient’s behalf.

Question 28

Privilege - Spouse - Confidential Spousal Communication

Answer 28

The confidential spousal communication privilege is similar to the attorney-client privilege. There must be (1) communication between spouses (conduct arguably does not count), (2) made while they are married, and (3) in confidence. Both spouses hold this privilege, and both spouses must waive the privilege. It lasts beyond the marriage.

Question 29

Privilege - Spouse - Adverse Spousal Testimony

Answer 29

The adverse spousal testimony privilege has no subject matter restrictions, and it protects spouse from being compelled to testify against the other spouse about anything. The testifying spouse holds this privilege, so they can choose to waive the privilege (but the testimony cannot go into confidential spousal communications). It only applies while the marriage is intact. This is generally thought to apply only in criminal cases.

Question 30

Privilege - 5A No Self-Incrimination

Answer 30

Under the 5A, a witness cannot be compelled to testify against themselves. Thus, any witness may refuse to answer any question whose answer might incriminate them. The privilege can be claimed at any state or federal proceeding, in civil or criminal cases, at which the witness’s appearance and testimony are compelled. Testimony is incriminating if it ties the witness to criminal liability. The testimony need not prove guilt.

A witness cannot refuse to answer because of exposure to civil liability; it must be to avoid criminal liability.

Criminal liability would be linking the witness to the commission of a crime or to furnish a lead to evidence linking the witness to a crime.

Question 31

Privilege - Waiver

Answer 31

Waiver considers (1) whether there was a waiver, and (2) what the scope of the waiver is. Privileges can be waived by the party who holds the privilege, like the client for attorney-client. Privileges can be waived expressly or implicitly.

Common fact patterns construed as waiver by client include: (1) intentional disclosure to third party, (2) assertion of claim against lawyer or ineffective assistance of counsel, (3) assertion of advice of counsel defense, and (4) attorney waived on behalf of client with client’s consent. It also includes failure to claim privilege.

Question 32

Privilege - Crime Fraud Exception

Answer 32

This exception applies when an attorney’s services are obtained for the purposes of furthering a future crime or fraud, regardless of whether the attorney is aware of that purpose.

Question 33

Witness

Answer 33

A witness must be competent, have personal knowledge of the facts to which they are testifying, and take an oath before testifying. Basically, a witness who has sufficient memory, can understand the truth, and can communicate what they saw is capable to testify.

Question 34

Witness - Competent

Answer 34

A competent witness is one who is capable of giving testimony. Every person is presumptively competent unless the FRE provides otherwise. Formerly excluded categories (atheists, people with felony convictions, people of color, parties to an action, spouses of interested persons, children, and mentally disabled people) can be deemed competent.

Question 35

Witness - Personal Knowledge

Answer 35

A witness must have personal knowledge on the facts they are testifying to. A reasonable juror must find that there was sufficient evidence to support a finding that the witness has personal knowledge. This standard is low, and it is okay as long as a reasonable juror could believe that the witness perceived the course of events to which they testified.

Question 36

Witness - Oath

Answer 36

A witness must give an oath to testify truthfully, and the oath must be designed to impress the duty of truth on the witness. A witness can make an oath in their preferred words, provided it imposes a duty of truth, and the witness must understand the importance of the oath.

Question 37

Witness - Lay

Answer 37

Lay witness’s opinion testimony is admissible if it is (1) rationally based on the witness’s perception; (2) helpful to understand the witness’s testimony; or (3) not based on specialized knowledge.

Question 38

Witness - Expert

Answer 38

Scientific evidence is admissible if judge determines it is reliable based on various factors. Factors in determining scientific reliability include whether (1) the technique or theory be tested, or has been tested, (2) the technique or theory has been subjected to peer review and publication, (3) there is a known or potential rate of error for the technique and, if so, what it is, (4) the technique or theory is generally accepted in the relevant scientific community.

EXPERT TESTIMONIES ARE A TRAP – Testing of principle, Rate of error, Acceptance by other experts, Peer review and publication.

Question 39

Witness - Expert - Opinion

Answer 39

Experts may render an opinion on the ultimate issue in the case, but they cannot state an opinion of a criminal defendant’s mental state and whether it constitutes an element of a crime.

Question 40

Witness - Expert - Treatise Excerpt

Answer 40

A relevant excerpt from a treatise, periodical, or pamphlet may be used during expert testimony, as substantive evidence and as impeachment evidence. However, the treatise must be established as reliable authority (by the testimony of the expert on the stand, another expert, or judicial notice), the excerpt must be used in the context of expert testimony, and the excerpt must be read into evidence (not received as an exhibit).

Question 41

Witness - Jurors

Answer 41

Jurors may not testify about any statement made or incident that occurred during the jury’s deliberations because jurors need to be encouraged to speak frankly during deliberations and their decision-making process should not be questioned.

Jurors may testify when there is (A) an extraneous prejudicial information was improperly brought to the jury’s attention; (B) an outside influence was improperly brought to bear on any juror; or (C) a mistake was made in entering the verdict on the verdict form.. They may also testify to any juror’s clear statement that they relied on racial stereotypes to convict a criminal defendant.

Question 42

Witness - Dead Man Acts

Answer 42

Some states provided that in civil cases, an interested person is incompetent to testify to a personal transaction or communication with a deceased, when such testimony is offered against the representative or successors in interest of the deceased. A person is interested if they stand to gain or lose by the judgment, or if the judgment may be used for or against them in a subsequent action.

Question 43

Impeachment

Answer 43

Under the rules of evidence, a witness may be impeached by any party, including the party that called the witness. It can be done intrinsically (through the witness’s own testimony) or extrinsically (through another witness, document, or other type of evidence), but extrinsic evidence requires permission. Evidence of a witness’s religious beliefs or opinions are not admissible to attack or support the witness’s credibility. Evidence can be relevant even if its only use is to impeach a witness. A witness may be rehabilitated after impeachment (otherwise it is considered bolstering, which is not allowed). Rehabilitation must respond to the type of impeachment used or else it is irrelevant.

Question 44

Impeachment - Dishonesty

Answer 44

Under the rules of evidence, a witness may be impeached by any party, including the party that called the witness. The witness’s credibility may be impeached by questioning the witness regarding their character for truthfulness. The witness’s character for truthfulness can be attacked by opinion/reputation or specific instances of conduct, but extrinsic evidence to prove specific instances are not admissible unless they are criminal convictions.

Question 45

Impeachment - Inconsistency

Answer 45

Under the rules of evidence, an out of court statement that is introduced to prove the truth of the matter asserted is hearsay and is inadmissible. However, certain prior, inconsistent statements that are hearsay may be admitted for impeachment purposes when the declarant is now a witness. A witness may be impeached by any party, including the party that called the witness. The witness’s credibility may be impeached by questioning the witness regarding any prior inconsistent statements if the prior inconsistent statement is material to the witness’s testimony, and extrinsic evidence regarding the prior inconsistent statements may be introduced if the witness is given an opportunity to explain their prior statement and the opposing party is given an opportunity to examine the witness.

Statements that are consistent with the declarant’s testimony and are offered to rehabilitate the declarant’s credibility as a witness when attacked on another ground are not hearsay. However, the prior consistent statement must have been made before the motive to fabricate arose.

Question 46

Impeachment - Bias

Answer 46

Under the rules of evidence, a witness may be impeached by any party, including the party that called the witness. The witness’s credibility may be impeached by questioning the witness regarding their potential bias. The witness’s bias may cause the jury to believe the witness had a reason to lie or slant their testimony. There are no specific rules under FRE, so the judge can decide preliminary questions and apply a balancing test.

Question 47

Impeachment - Incapacity

Answer 47

Under the rules of evidence, a witness may be impeached by any party, including the party that called the witness. The witness’s credibility may be impeached by questioning the witness regarding their incapacity. The witness’s incapacity may cause the jury to believe the witness’s testimony is unreliable due to poor memory or perception. There are no specific rules under FRE, so the judge can decide preliminary questions and apply a balancing test.

Question 48

Impeachment - Specific Contradiction

Answer 48

Under the rules of evidence, a witness may be impeached by any party, including the party that called the witness. The witness’s credibility may be impeached by questioning the witness regarding specific contradictions in their testimony. However, the collateral evidence rule bars extrinsic impeachment by specific contradiction on a collateral matter. There are no specific rules under FRE, so the judge can decide preliminary questions and apply a balancing test.

Question 49

Trial Mechanics

Answer 49

Traditionally, judges have vast discretion to promote the orderly presentation of evidence, and courts limit the scope of cross-examination to matters testified on direct examination and matters relating to the witness’s credibility.

Question 50

Trial Mechanics - Order of Proof

Answer 50

Generally, the court can exercise reasonable control over the mode and order of examining the witnesses and presenting the evidence to (1) make the procedures effective for determining the truth, (2) avoid wasting time, and (3) protect witnesses from harassment or undue embarrassment.

The court can control the order of the witnesses for chronological purposes, limit the calling of witnesses for efficiency purposes, stop further rebuttal and examination for efficiency purposes, allow further questions in examination if necessary to determine the truth, and allow more evidence in to prevent misleading impressions

Question 51

Trial Mechanics - Questioning

Answer 51

Courts usually limit leading questions to (1) cross examination and (2) when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party. This is because we want to hear the witness’s story in their own words on direct examination, but we want to be efficient for verification or impeachment on cross examination. Improper questions and answers may be struck.

Exceptions to the general prohibition of leading questions on direct examinations include allowing leading questions when necessary to develop the testimony, such as refreshing recollection, young children, potentially elderly, or hostile witnesses, and non-controversial questions.

The scope of cross-examination is limited to the scope of direct examination and matters that test the credibility of the witness.

Question 52

Trial Mechanics - Sequestering Witnesses

Answer 52

A party can request a court to exclude witnesses to prevent them from hearing other witnesses’ testimony, or a court can decide to exclude witnesses on their own. However, the court cannot exclude (1) a party who is a natural person, (2) an officer or employee of a party that is not a natural person but was designated as the party’s representative, (3) a person whose presence a party shows to be essential to presenting the party’s claim or defense (like an expert witness), or (4) a person authorized by statute to be present (like a crime victim).

Question 53

Refreshing Recollection

Answer 53

Refreshing recollection occurs when (1) the witness does not presently recall certain matters; (2) the witness believes they can refresh their recollection if they could see the item; (3) the item is marked for identification and shown to the opposing counsel and to the witness; (4) the witness’s recollection is refreshed; and (5) the witness can now testify as to their current recollection. The writing must be made available to the adverse party, and the adverse party must be allowed to inspect, cross-examine the witness, and introduce in evidence any portion that relates to the witness’s testimony (not the entire writing). In a criminal case, if the prosecution fails to produce or deliver a writing as ordered, the judge must strike the witness’s testimony and (if justice requires) declare a mistrial. When refreshing does not work, then the writing could be used as a recorded recollection.

Question 54

Hearsay

Answer 54

An out of court statement that is introduced to prove the truth of the matter asserted is hearsay and is inadmissible. However, there are certain exemptions and exceptions that may apply.

Question 55

Hearsay - Confrontation Clause

Answer 55

The 6A gives every criminal defendant the right to be confronted with the witnesses used against them. This includes confronting declarants when their out-of-court statements are used against them. The confrontation clause is satisfied if the declarant/witness is available in court to be cross-examined or previously was subject to cross-examination by the defendant. The admissibility of hearsay from a declarant generally depends on whether the out-of-court statement was testimonial. A statement is testimonial when its primary purpose is to create an out-of-court substittue for a trial testimony. Generally, statements are not testimonial when the circumstances indicate the primary purpose is to meet an ongoing emergency, and statements are testimonial when the circumstances indicate the primary purpose is to establish or prove past events potentially relevant to later criminal prosecution.

Question 56

Hearsay - Not Hearsay

Answer 56

Evidence is not hearsay if it has a relevant, non-hearsay use, like showing the party’s state of mind, the party’s knowledge or notice of an event, or when the words do something.

Question 57

Hearsay - Not Hearsay - Prior Statements by Witnesses

Answer 57

Prior statements by witnesses are not considered hearsay and may be admitted as substantive evidence if the declarant is now a witness and the statements are (1) statements of identification, (2) prior inconsistent statements made under oath at a prior proceeding, or (3) prior consistent statements used to rebut a claim of inconsistency or rehabilitate.

Statements that are consistent with the declarant’s testimony and are offered to rehabilitate the declarant’s credibility as a witness when attacked on another ground are not hearsay. However, the prior consistent statement must have been made before the motive to fabricate arose.

Alternatively, certain prior statements are considered hearsay but may be admitted as substantive evidence under an exception if the declarant is unavailable, the prior statement was a testimony in a prior proceeding, and the defendant had an opportunity to cross-examine the declarant at the time the statement was made.

Question 58

Hearsay - Not Hearsay - Opposing Party Statements

Answer 58

Opposing party statements are not considered hearsay and may be admitted as substantive evidence against the person who made them. The statements must have been made by the declarant, adopted by the declarant, made by an authorized party (agent, employee), or made by a co-conspirator. They do not need to be inculpatory to be admissible, but the declarant-party can introduce additional evidence to complete context under the rule of completeness.

A co-conspirator must make the admission in furtherance of the conspiracy, during the conspiracy, with evidence showing by a preponderance of the evidence that the party was a co-conspirator.

A co-defendant’s admission can be powerfully incriminating and cannot be introduced in a joint trial without limiting instructions (like redacting the confession). The admission may be used in separate trials though.

Question 59

Hearsay - Exceptions - Present Sense Impression

Answer 59

Declarant Availability Immaterial

A present sense impression is a statement describing an event or condition that is made while or immediately after the declarant perceived the event or condition. The declarant must have personal knowledge and the statement must be about the event, during or shortly after the event.

Question 60

Hearsay - Exceptions - Excited Utterance

Answer 60

Declarant Availability Immaterial

An excited utterance is a statement relating to a startling event or condition that is made while the declarant was under the stress of excitement that the event or condition caused. The declarant must have personal knowledge and the statement must be caused by the event, during the event.

Question 61

Hearsay - Exceptions - Then-Existing State of Mind

Answer 61

Declarant Availability Immaterial

A then-existing state of mind is a statement of the declarant’s then-existing state of mind (like motive, intent, or plan) or emotional, sensory, or physical condition (like mental feeling, pain, or bodily health). Statements of intent to do something can be admissible, but statements proving state of mind cannot be used to establish past actions.

Question 62

Hearsay - Exceptions - Injury Report

Answer 62

Declarant Availability Immaterial

An injury report is a statement that is made for and reasonably pertinent to medical diagnosis or treatment, and describes medical history, symptoms, inception, or general cause of the injury. It cannot include details unrelated to the diagnosis or treatment, unless it involves child abuse, sexual assault, or domestic violence.

If the primary purpose of the injury report is to create a testimony, then the confrontation clause applies, and the statement may be barred if there is no cross-examination of the declarant.

Question 63

Hearsay - Exceptions - Recorded Recollection

Answer 63

A recorded recollection is a record that is used when the witness cannot independently recall what happened. The record must have been made by the witness (or someone on behalf of the witness), while the information was fresh in the witness’s mind, and the witness must verify that the record was accurate when they made it. The record can only be received as an exhibit if offered by the opposing party.

Question 64

Hearsay - Exceptions - Business Record

Answer 64

Declarant Availability Immaterial

A business record is one that was made at or near the time of the business, by someone with knowledge, kept in the course of a regularly conducted activity of the business, and a regular practice of that activity. The witness must testify that they are the custodian of the record and that these requirements were met.

Records are things that the business (1) regularly and accurately keeps and maintains (2) in the ordinary course of business (3) for the primary purpose of business, not litigation. Source of the record is someone with knowledge (1) acting routinely, (2) under a duty of accuracy, (3) with employer reliance on the result.

Business records are unlikely to be testimonial because their primary purpose is use in business, not use in court.

Question 65

Hearsay - Exceptions - Absent Business Record

Answer 65

Declarant Availability Immaterial

An absent business record is one that was not made because the matter did not exist. If the business is keeping regular records in the ordinary course of business and there is something that is not reflected, then it is a reasonable inference that thing does not exist

Question 66

Hearsay - Exceptions - Public Record

Answer 66

Declarant Availability Immaterial

A public record is one that is (1) ministerial for the agency, (2) observed by law-enforcement personnel while they were under a legal duty to report for civil cases, or observed by non-law enforcement personnel while they were under a legal duty to report for criminal cases, or (3) comprised of factual findings from a legally authorized investigation for civil cases or against the government in a criminal case.

Question 67

Hearsay - Exceptions - Public Record - Confrontation Clause

Answer 67

Declarant Availability Immaterial

Certain affidavits are considered testimonial and implicate confrontation issues, whereas others are not. An affidavit is testimonial when (1) they are functionally identical to live, in-court testimony (declarations of facts, sworn under oath to be true), (2) they were made under circumstances that would lead an objective witness to believe the statements would be available for use at later trial, and (3) they were created specifically for use at trial. An affidavit is not testimonial when (1) they are completed in the ordinary course of business, (2) they are created for ministerial or administrative purposes, and (3) they were not created for trial purposes.

Question 68

Hearsay - Exceptions - Absent Public Record

Answer 68

Declarant Availability Immaterial

An absent public record can be used as evidence if (1) a diligent search fails to disclose a public record, and (2) the testimony or certification is admitted to prove the record does not exist, or a matter did not occur. In a criminal case, the prosecutor who intends to offer certification must provide written notice of intent at least 14 days before trial, and the defendant must object within 7 days.

Question 69

Hearsay - Exceptions - Public Record of Vital Statistics

Answer 69

Declarant Availability Immaterial

A public record of vital statistics, like a record of birth, death, or marriage, can be used as evidence if reported to a public office in accordance with a legal duty.

Question 70

Hearsay - Exceptions - Learned Treatise

Answer 70

Declarant Availability Immaterial

A learned treatise can be used as evidence if it is reliable authority and relied on by an expert. This can only be read into evidence.

Question 71

Hearsay - Exceptions - Reputation

Answer 71

Declarant Availability Immaterial

A reputation can be used used as evidence if it is about a person’s character, personal or family history, land boundaries, or a community’s general history.

Question 72

Hearsay - Exceptions - Family Record

Answer 72

Declarant Availability Immaterial

A family record can be used as evidence if it is found in family Bibles, jewelry engravings, tombstones, etc.

Question 73

Hearsay - Exceptions - Market Report and Public Compilation

Answer 73

Declarant Availability Immaterial

A market report and public compilation can be used as evidence if generally relied on by the public or persons of particular occupations.

Question 74

Hearsay - Exceptions - Unavailable

Answer 74

Declarant Unavailable

A declarant is considered unavailable when they are exempt, refuse, cannot remember, dead or ill, or not reasonably procurable. A declarant is not considered unavailable if the statement’s proponent wrongfully caused the declarant’s unavailability as a witness to prevent the declarant from testifying. Privileges can apply BUT parties that make themselves unavailable for testifying via 5A cannot invoke exceptions under 804.

Question 75

Hearsay - Exceptions - Former Testimony

Answer 75

Declarant Unavailable

A former testimony is a prior statement that was made during a testimony at a prior proceeding, and the D had an opportunity to cross-examine the declarant at the time the statement was made. For criminal cases, the criminal D must have been a party to the earlier proceeding and had an opportunity and similar motive to cross-examine the now unavailable declarant. For civil cases, the party in the earlier proceeding must have been a predecessor in interest to the party in the current case (similar position, similar issues, similar motive to develop testimony).

Question 76

Hearsay - Exceptions - Dying Declaration

Answer 76

Declarant Unavailable

A dying declaration is a statement the declarant made about the cause or circumstances while they believed they were dying imminently. It can only be used in homicide or civil cases.

Confrontation clause issues might apply if the declarations are testimonial, but since dying declarations go back to the Founders’ time, they must be accepted on historical grounds.

Question 77

Hearsay - Exceptions - Statement Against Interest

Answer 77

Declarant Unavailable

A statement against interest is one that a reasonable person in the declarant’s position would only have made if the person believed it to be true because (1) it was so contrary to the declarant’s interest, (2) it invalidated the declarant’s claim against someone else, or (3) it exposed the declarant to civil or criminal liability. For statements offered in criminal cases that expose the declarant to criminal liability, the statement must be supported by corroborating circumstances that clearly indicate its trustworthiness.

The court must consider whether the statements are sufficiently inculpatory against the declarant, and the court must consider the statements line-by-line to determine whether each line is inculpatory.

Question 78

Hearsay - Exceptions - Forfeiture by Wrongdoing

Answer 78

Declarant Unavailable

A forfeiture by wrongdoing is a statement offered against a party that wrongfully caused the declarant’s unavailability as a witness and they intended that result. There must be intent to cause the declarant’s unavailability. Mere knowledge that the wrongful act would cause unavailability is enough to fulfill the intent requirement.

Generally, a D only forfeits his confrontation rights when they intended to procure the unavailability of the witness.

Question 79

Hearsay - Exceptions - Residual Exception

Answer 79

Catch All

Residual exceptions allow hearsay statements to be admitted, even if not admissible under the other hearsay exceptions, if (1) the statement is supported by sufficient guarantees of trustworthiness, and (2) it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts. The proponent of the statement must also give the adverse party reasonable notice of intent to offer the statement.

Question 80

Physical Evidence

Answer 80

All physical evidence must be authenticated. Even if evidence is properly authenticated, there may be other objections to its admissibility (like hearsay). Thus, autheticated evidence is not necessarily admissible.

Question 81

Physical Evidence - Authentication - Standard

Answer 81

The proponent of the physical evidence must produce evidence sufficient to support a finding that it is what the proponent claims it is.

Question 82

Physical Evidence - Authentication - General Evidence

Answer 82

Evidence can be authenticated via opponent’s admission, eyewitness testimony, handwriting verification (lay witnesses must have familiarity before trial), ancient documents (at least 20 years old, in non-suspicious condition, and in likely location), written in response to communication by alleged author, photos and videos (with witness verification of fair and accurate representation, or unattended camera with proper operation at relevant time), and x-rays (with witness verification of proper operation and chain of custody).

Evidence of oral statements can be authenticated via voice identification (by anyone at anytime) or telephone conversations (party to the call testifying they recognize the other voice or have specific knowledge).

Question 83

Physical Evidence - Authentication - Self Authenticating

Answer 83

Some evidence is self-authenticating. Examples include public documents that are sealed (sealed as in marked, not sealed as in closed) and signed, certified copies of public records, certified domestic records of a regularly conducted activity, certified records generated by an electronic process or system, certified data copied from an electronic device.

Question 84

Physical Evidence - Authentication - Chain of Custody

Answer 84

If there are breaks in the chain of custody for fungible items, then the evidence can still be admissible. The break in the chain only affects the weight of the evidence. It does not affect the admissibility of the evidence unless the break is so large that 901’s standard is not met.

Question 85

Physical Evidence - Originals and Duplicates

Answer 85

Generally, an original writing, recording, or photo is required in order to prove its content.

Duplicates may be admitted in lieu of an original unless the duplicate is questionable.

However, the original must be lost or destroyed, not obtained by the judicial process, the party holding the original failed to produce it, or the writing/record/photograph is not closely related to a controlling issue

Question 86

Physical Evidence - Originals and Duplicates - Admissibility

Answer 86

The judge makes the determination on whether the proponent fulfilled the conditions for admitting evidence under 1004 and 1005.

However, the jury makes the determination when the issue is about whether (a) an asserted writing/recording/photograph ever existed, (b) another one produced at the trial is the original, or (c) other evidence of content accurately reflects the content

Question 87

Physical Evidence - Best Evidence Rule

Answer 87

The best evidence rule limits the admissibility of evidence for a particular question to the best evidence available. It applies when the party is trying to prove the contents of the “writing” itself, and primarily when the writing is a legally operative instrument or the witness’s knowledge results from having read the writing. It does not apply when the witness has personal knowledge of the facts.

Note that the best evidence rule does not require the better evidence to be used.

Question 88

Physical Evidence - Best Evidence Rule - Duplicates

Answer 88

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

Question 89

Physical Evidence - Best Evidence Rule - Secondary Evidence

Answer 89

Secondary evidence is admissible if the original is not available and the proponent provides a satisfactory excuse for the absence of the original. Satisfactory excuses include: (1) loss or destruction of the original; (2) the original cannot be obtained by any available judicial process; and (3) the original is in the possession of an adversary who, after due notice, fails to produce the original.

If there is a valid excuse, a party can prove the contents of a writing by any type of secondary evidence (such as handwritten copies, notes, oral testimony, etc.).

Question 90

Physical Evidence - Best Evidence Rule - Exceptions

Answer 90

Exceptions to the best evidence rule include: (1) summaries of voluminous records; (2) certified public records; (3) writing that is collateral to the litigated issue; and (4) testimony or written admission of the opponent.

Question 91

Physical Evidence - Demonstrative

Answer 91

Demonstrative evidence covers items that are used by lawyers to clarify their case or to make it more vivid. It is marked for identification, used as an aid to the jury, but is not admitted into evidence. Juries are also instructed to the limited purpose for which this “evidence” is offered. It is only regulated by 401 and 403 – this is about figuring out whether the demonstrative evidence is relative, is probative, or has risk of undue prejudice.

As a matter of common law, demonstrative evidence usually does not go to the jury room during deliberations (unlike real evidence). If the jury is improperly allowed to take the evidence in, then it can lead to harmful error due to risk of undue prejudice.

Ultimately, this is about whether the demonstrative evidence is outweighed by substantial risk of unfair prejudice.

Question 92

Physical Evidence - Real