Evidence

Question 1

Logical Relevance

Answer 1

Evidence must be relevant in order to be admissible. Evidence is relevant if it is both:
(1) Probative; AND
(a) Evidence is probative if it has any tendency to make a fact more or less probable than it would be without the evidence.
(2) Material
(a) Evidence is material if it is a fact of consequence in determining the outcome of the action

Question 2

Relevant Evidence that is excluded anyway

Answer 2

When the probative value of evidence is substantially outweighed by the danger of:
1. Unfair Prejudice;
2. Confusing the Issue;
3. Misleading the Jury;
4. Undue Delay;
5. Wasting Time; OR
6. Needlessly presenting cumulative evidence.

Question 3

Subsuquent Remedial Measures

Answer 3

Actions taken after harm or an injury that make future injury less likely. NOT ADMISSIBLE to prove:
1. Negligence;
2. Defective Product or Design;
3. Culpable Conduct.

Admissible to show agency, ownership, or control of property or for impeachment purposes.

Question 4

Offers to compromise or settle

Answer 4

Offers, conduct, or statements made during negotiations to settle or compromise are NOT ADMISSIBLE:
1. To prove a disputed claim;
2. To prove an amount;
3. For impeachment purposes.

Question 5

Offers to pay medical expenses

Answer 5

Offers to pay medical expenses are not admissible to show liability for the plaitniff’s injuries.

However, any conduct or statements accompanying the **offer to pay are admissible. **

Question 6

Admissiblity of Guilty Pleas

Answer 6

Absent a knowing and voluntary waiver from the defendant, the following are not admissible:
1. Withdrawn guilty pleas;
2. No contest pleas;
3. Statements made while negotiating with prosecutors; AND
4. Statements made during plea negotiations

Pleas and statements made during negotiations are admissible if fairness dictates or for perjury hearings.

Question 7

Liability Insurance

Answer 7

Evidence that a person was insured against liability is NOT admissible to prove whether a person acted negligently or wrongfully. However, the court may admit this evidence for another purpose, such as proving a **witness’ bias **or prejudice, or proving agency, control, or ownership.

Question 8

Character Evidence

Answer 8

Character evidence is evidence of a person’s character or specific chartacter trait (i.e. He’s violent, she is honest, he is a reckless drvier). There are three forms of character evidence that can be presented:
(1) Reputation evidence;
(a) “Everyone knows Johnny is violent”
(2) Opinion Testimony;
(a) “I personally think Johnny is violent”
(3) Specific Instances
(a) “I saw Johnny get into a bar fight last weekend.”

Question 9

Character Evidence in Civil Cases

Answer 9

Character evidence is NOT admissible for propensity purposes UNLESS:
1. Character is an essential element of a claim or defense
(a) If it is an essential element, may be shown by reputation, opinion testimony, or specific instances.
2. The cse is based on the Defendant’s sexual misconduct.

Question 10

Character Evidence in Criminal Cases

Answer 10

In criminal cases, the prosecution CANNOT introduce evidence of a Defendant’s bad character to prove that the Defendant has the propensity to have committed the crime in question. However, the Defendant may “open the door” and present positive character evidence if it is:
(1) Pertinent to the crime charged; AND
(2) Through REPUTATION or OPINION testimony.

Question 11

Once the Defendant has “Opened the Door”

Answer 11

If the Defendant opens the door by presenting evidence of positive character, the prosecution can then introduce negative character evidence (must relate to the same character trait in question) to rebut the Defendant in two different ways:
(1) The prosecution can call it’s own character witness; OR
(a) Prosecution’s witness limited to reputation or opinion testimony;
(2) The Prosecution can cross-examine the Defendant’s character witness.
(a) Can introduce** specific instances **of conduct so long as it relates to the same character trait in question.

Question 12

Evidence of the Victim’s Character in Criminal Cases

Answer 12

A Criminal Defendant may introduce reputation or opinion testimony of the Victim’s character if it is **relevant to one of the defenses asserted.” ** (i.e., consent, self defense,).

IF the Defendant does this, the prosecution can rebut by introducing evidence that:
(1) The Defendant possesses the same character trait; OR
(2) The Victim possesses a relevant positive character trait

NOTE: if this is done on **cross-examination, **the prosecution may introduce specific instances of conduct.

In HOMICIDE CASES the prosecution can introduce evidence of a victim’s character for non-violence ONLY if the defendant **claims ** the victim was the aggressor.

Question 13

Rape Shield Laws

Answer 13

In cases involving rape, evidence to prove a victim’s sexual behavior or predisposition is NOT admissible.

In CIVIL CASES ONLY: Evidence to prove a victim’s sexual behavior or misconduct may be admissible if its probative value substantially outweighs the danger of harm to the victim and unfair prejudice to any party.

Question 14

M.I.M.I.C.

Answer 14

Specific Instances of conduct are generally inadmissible to show propensity, BUT are admissible to show:
Motive or opportunity;
Intent;
Mistake (absence of)
Identity; OR
Common plan or preparation.

Specific instances of conduct are admissible for MIMIC purposes if: (1) There is sufficient evidence to support a jury finding that the defendant committed the prior act CAN’T “FISH”; AND
(2) The probative value of the specific instances of conduct is NOT substantally outweighed by danger of unfair prejudice to the jury.

Question 15

Habit and Routine Practices

Answer 15

Evidence of a person’s habit (i.e. always wearing a seatbelt) or an organizations routine practice (i.e. filing paperwork) may be admitted to prove on an occasion the person or organization acted in accordance with the habit or routine practice.

Question 16

Impeachment

Answer 16

1. A witnesses’ credibility may be attacked by introducing character evidence of the witnesses’ untruthfulness through reputation or opinion testimony.
2. A witnesses’ credibility CANNOT be Bolstered. This means that evidence of truthful character cannot be introduced until credibility has first been attacked.
3. On cross examination, a witnesses character may be attacked with specific instances of conduct, provided that:
   (a) The specific instance regards truthfulness of the witness;
   (b) There is a good faith belief in the prior misconduct;
   (c) The specific instance does NOT involve an arrest or consequence of an arrest.

Generally, intrinsic evidence of specific instances of conduct cannot be admitted as evidence.

Question 17

Prior Convictions

Answer 17

Evidence of a prior felony or misdemeanor conviction involving dishonesty is usally always admissible to attack a witnesses’ credibility within 10 year test.

Evidence of a prior felony that DOES NOT involve dishonesty is admissible IF it is legally relevant (i.e., probative value is not substantially outweighed by the danger of unfair prejudice.)

If more than 10 years have passed since conviction or release (whatever was later) of ANY crime, the prior conviction is subject to a reverse 403. The party introducing the evidence must show the probative value of the evidence substantially outweighs the danger of unfair prejudice.

Question 18

Never Admissible Prior-Convictions

Answer 18

1. Conviction was pardoned;
2. Annulled; OR
3. Later found innocent

Question 19

Prior Inconsistent Statements

Answer 19

A witness’ credibility may be attacked by introducing the witness’ prior inconsistent statements. However, any extrinsic evidence may be introduced only if the witness is given a chance to explain or deny the prior inconsistent statement.
REGARDLESS, extrinsic evidence of a prior inconsistent statement CANNOT be used to attack the witness’ credibility regarding a collateral matter.

Question 20

Sensory Competence

Answer 20

A witness’ credibility may be attacked by showing the witness has a deficiency in her ability to perceive, recall, or relate information (e.g., Memory Loss) that is NOT collateral.

Question 21

Opinion testimony of a Lay Witness

Answer 21

a lay witness is any person who gives testimony that is not termed as an expert. Lay witnesses are presumed competent unless proven otherwise. Questions about mental competence go to the weight of the evidence, not admissibility.

Question 22

Lay Witness Opinion Testimony Restrictions

Answer 22

Opinion Testimony by a lay witness is limited to one that is:
(1) Rationally based on the witness’ perception;
(2) Helpful to clearly understanding the witness’ testimony or to determining a fact in issue.
(3) NOT based on scientific, technical, or otherwise specialized tesimony within the scope of an expert witness.

Question 23

Expert Witnesses

Answer 23

Expert Witnesses may testify in the form of an opinion or otherwise if:
(1) the expert witness is qualified by possessing sufficient knoweldge, skill, experience, training, or education.
(2) The testimony is based on sufficient facts or data.
(3) The testimony is the product of reliable principles and methods; AND
(4) The expert has reliably applied the principles and methods to the facts of the case.

An expert can give an opinion as to the ultimate issue of the case but CANNOT give an opinion regarding a criminal defendant’s requisite mental state.

Question 24

Spousal Immunity

Answer 24

Under Federal Law a witness in a valid marriage may refuse to testify against their spouse in ANY criminal proceeding. (Includes Grand Jury).

In federal court and most states, the witness-spouse holds the privilege and may choose whether or not to testify. In a minority of states defendant-spouse holds it and can prevent their testimony.

Question 25

Confidential Marital Communications

Answer 25

Communications between spouses are privileged if:
(1) Made DURING the course of a valid marriage; AND
(2) Communication was intended to be confidential

Unlike spousal immunity, this privilege:
(1) is held by BOTH spouses
(2) Applies to both criminal and civil proceedings; AND
(3) Extends **beyond the end of marriage **

Question 26

Attorney-Client Privilege

Answer 26

Communications between an attorney and a client or a person seeking to become a client are privileged if the communications were:
(1) Made to facilitate legal services;
(2) Intended to be confidential;

If the client is a corporation:
(1) Some states limit attorney client privilege to the control group members;
(2) Under Federal-Law, ACP extends to all employees if they are communicating to seek legal advice for the corporation.

Client holds the privilege and it exists until the client waives it (even after the client’s death). Intentional Disclosure of confidential communications to a third party constitutes a valid waiver of attorney-client privilege.** Inadvertant disclosure** does **NOT waive **privilege if the client took reasonable steps to prevent and rectify the disclosure.

Question 27

Exceptions to Attorney-Client Privilege

Answer 27

Does not apply when:
(1) Legal Services sought to further crime or fraud;
(2) There is litigation involving a dispute between the attorney and a **client **(e.g., malpractice); OR
(3) Co-Clients are later adverse parties involved in civil litigation against each other.

Question 28

Authentication of Tangible Evidence

Answer 28

All tangible evidence must be authenticated. Tangible evidence is any evidence not presented as oral or verbal testimony.
Authentication requires that the party shows the item being introduced as evidence is what the party claims it to be.

Question 29

Authentication of Physical Evidence

Answer 29

Physical Evidence may be authenticated through:
1. Witness Testimony: (i.e. Personal knowledge of the witness who has familiarity with the object); OR
2. Chain of Custody:(Witness can verify the whereabouts of evidence from collection to trial).

Question 30

Authentication of Documentary Evidence

Answer 30

Documentary Evidence (Letters, contracts, etc.) can be authenticated through:
1. Stipulation:Both Parites agree;
2. Witness Testimony: OR
3. Handwriting Verification
(a) An Expert Witness or trier of fact can verify handwriting in question with another writing that has proven to be genuine.
(b) A non-expert witness with personal knowledge of the handwriting in question can verify the handwriting (e.g., a father may be able to verify his son’s handwriting). A non-expert cannot become familiar with the handwriting in order to prepare for litigation.

Oral Statements may be authenticated by ANY person who has heard the person’s coice through any means. It is irrelevant whether the voice was heard in preparation for litigation.

Question 31

Self- Authenticating Documents

Answer 31

The following documents are self-authenticating and DO NOT require extrinsic proof of authenticity:
1. Public Documents bearing a seal;
2. Certified copies of public records;
3. Official publiciations issued by a public authority;
4. Newspapers and periodicals;
5. Notarized documents;
6. Commercial paper;
7. Trade inscriptions (i.e., affixed signs, tags, labels, etc.)
8. Records of regularly conducted business activity certified by a custodian of the records.

Question 32

Best Evidence Rule

Answer 32

A party MUST provide the original document (applies to the writings, recordings, photographs, electronic documents, x-rays, and videos) or an accurate duplicate when:
(1) The contents of the documents at issue; OR
(2) The Witness is relying on the document when testifying.

A handwritten copy of the original is NOT an accurate duplicate and is only admissible when the original or duplicate is lost, destroyed, or otherwise unobtainable.

Question 33

Hearsay

Answer 33

Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. Hearsay is NOT admissble unless it falls under a valid exception.

A “statement” includes a person’s oral assertions, written assertions, or nonverbal conduct if the person intended it as an assertation.

Question 34

Non-Hearsay

Answer 34

If an out of court statement is NOT offered to prove the truth of the matter asserted, the statement is NOT hearsay and is admissible. Common examples of statements not offered to prove the truth of the matter asserted (therefore admissible) include:
(1) Verbal acts of independant legal significance
(2) Statements offered to show the effect on the listener;
(3) Statements offered to show the defendant’s mental state or state of mind;
(4) Statements for impeachment purposes

Question 35

Prior Inconsistent Statements (non-hearsay)

Answer 35

Prior Inconsistent Statements are admissible for substantive purposes if:
(a) The Declarant is testifying at trial and is subject to cross examination;
(b) The statements were previously made under penalty of perjury; AND
(c) The prior statements are inconsistent with present testimony being given at trial.

If the statements were NOT previously made under penalty of perjury they can be offered only for impeachment purposes.

Question 36

Prior Consistent Statements (Non-Hearsay)

Answer 36

Prior Consistent Statements are admissible to rebut a claim that the declarant is fabricating or has recent motive to fabricate the statement in court if:
(a) the declarant is testifying at trial and subject to cross-examination; AND
(b) The prior consistent statement was made before the declarant had a motive to fabriacate the stateement.

Question 37

Prior Statement of Identification (Non-Hearsay)

Answer 37

Admissible for substantive purposes if the declarant is testifying at trial and is subject to cross examination.

Question 38

Admissions of a Party Opponent (Non-Hearsay)

Answer 38

Prior out of court statements made by a party to the current litigation that are offered by the opposing party are admissible as non-hearsay.
(a) Adoptive Admissions:Silence is considered an adoptive admission if the party heard and understood the statement and remained silent where a reasonable person would have denied the statement.
(b) Vicarious Admissions:Statements made by an authorized spokesperson, an agent within the scope of and durign the agency relationship, or co-conspirator during and in furtherance of the conspiracy are considered vicarious admissions and imputed on the party opponent.

Question 39

Unvailability of Declarant

Answer 39

A declarant is deemed to be unavailable as a witness if the declarant:
(1) Is exempted from testifying because the court rules a privilege applies;
(2) Refuses to testify a court orderto do so;
(3) Testifies not remembering the subject matter;
(4) Cannot be present or testifying because of a death or then-existing infirmity, physical illness, or mental illness; OR
(5) Is absent and the statement’s proponent has not been able, by process or other reasonable means to procure the declarant’s attendence.

Question 40

Hearsay Exceptions Requiring Declarant’s Unavailability

Answer 40

ONLY applies if the declarant is deemed unavailable:
(1) Former testimony;
(2) Dying Declaration;
(3) Statements against Interest; AND
(4) Forefeiture by wrongdoing.

Question 41

Former Testimony (Declarant Unavailability)

Answer 41

Former testimony is admissible if:
(1) The Declarant is unavailable;
(2) The statement was prior testimony given at a trial hearing or deposition; AND
(3) The opposing party had an opportunity and similar motive to develop the testimony through cross or direct examination.
(a) Prior testimony at a grand jury does NOT qualify as former testimony.

Question 42

Dying Declaration (Declarant Unavailable)

Answer 42

**A statement is admissible if: **
(1) The declarant is unavailable;
(2) The declarant believed their death was imminent when they made the statement (do not NEED to actually die); AND
(3) The statement pertains to the cause or circumstances of their death.

The Dying Declaration exception is ONLY available homicide and civil case

Question 43

Statement Against Interest (Declarant unavailable)

Answer 43

A statement is admissible if:
(1) The Declarant is unavailable;
(2) The Statement is against the declarant’s self interest; AND
(a) I.E., the statement exposes the declarant to civil or criminal liability or potential economic loss.
(3) A Reasonable person would NOT have made the statement unless he believed it to be true.

Question 44

Forefeiture by Wrongdoing

Answer 44

1. A party forefeits her hearsay objection if the party intentionally or wrongfully makes the declarant unavailable to testify as proven by a preponderence of the evidence (i.e., Statements that would normally be inadmissible hearsay can be introduced against the wrongdoer through forefeiture by wrongdoing)
2. The act that makes the witness unvailable need NOT be criminal to qualify as forefeiture by wrongdoing (e.g., sending someone away on vacation to a foreign country.)

Question 45

Present Sense Impression Hearsay Exception

Answer 45

A present sense impression is admissible as a valid exception to the hearsay rule. A present sense impression is a statement made by the declarant in which she describes and event as it takes place or immediately thereafter.

Question 46

Excited Utterance Hearsay Exception

Answer 46

An exceited utterance is admissible as a valid exception to the hearsay rule. An excited utterance is a stateement that concerns a startling event, made by the declarant when the declarant is still under stress from the startling event.

Question 47

State of Mind Hearsay Exception

Answer 47

1. A statement of the declarant’s then-existing state of mind (e.g., motive, intent, or plan) OR emotional, sensory, or physical condition (e.g., mental feeling, pain, or bodily health) is admissible to prove the declarant’s state of mind or the declarant’s conduct.
2. A statement regarding memory, a past belief, or a past state of mind to prove the fact remembered or believed is NOT admissible unless it relates to the validity or terms of the declarant’s will.

Question 48

Statement for Medical Diagnosis or Treatment Hearsay Exception

Answer 48

A statement of a person’s past or present condition is admissible so long as it is made for the** purpose of medical diagnosis or treatment**. The statement is admissible even if it is made:
(1) To nurses, family members, or any other non-medical individuals; OR
(2) To enable a physician to testify at trial (as long as the statement is made for medical diagnosis or treatment, it is admissible).

Question 49

Recorded Recollection Hearsay Exception

Answer 49

The record may be read into evidence if the witness cannot recall events or information provided that:
(1) The record is about a matter the witness once had personal knowledge of;
(2) The record was made or adopted by the witness when the matter was fresh in the witness’ mind.
(3) The record accurately reflects the witness’s personal knowledge; AND
(4) The Witness can no longer recall the events or information well enough to testify, even after reviewing the writing while on the stand.

Under recorded recollection, the record may be read into evidence, however ONLY opposing counsel can decide to enter it as an exhibit.

Question 50

Present Recollection Refreshed

Answer 50

An evidentiary rule that allows a witness to glance at almost any item (usually a writing) to refresh her memory while on the stand (the item is taken away while the witness is testifying and it is NOT admitted into evidence).

Question 51

Recorded Recollection

Answer 51

Recorded Recollection: A writing made or adopted by the witness that accurately reflects their personal knowledge (opposing counsel may allow the writing to be admitted into evidence)

Question 52

Business Records Exception

Answer 52

A) A business record is admissible as a valid exception to the hearsay if the record is:
(1) Kept in the course of regularly conducted business; AND
(2) Made by the person with knowledge of the matter at or near the time of the matter’s occurrence (e.g., a secretary who logs calls as they come in).

B) A business record is NOT admissible if the opponent can show that the source or preparation of the record lacks trustworthiness.

Question 53

Testimonial Statement

Answer 53

A common issue is whether statements made to police at testimonial. A **statement **made to police whose primary purpose is to collect evidence to be used in a future criminal prosecution is testimonial is testimonial.

A statement made to police whose primary purpose is to provide assistance in an ongoing emergency is NOT testimonial.

Question 53

Violation of the Confrontation Clause

Answer 53

The use of an out-of-court statement (even if it falls under a valid hearsay exception or testimonial privilege) violates the defendant’s constitutional rights under the Confrontation Clause if:
(1) The proceeding is a criminal action(not civil);
(2) The statement is testimonial
(a) A statement is testimonial if the declarant would reasonably expect that the statement would be used for prosecution purposes.
(3) The declarant is unavailable to be cross-examined at trial; AND
(4) The Defendant did NOT have an opportunity to cross-examine the declarant at a proceeding prior to trial.

Question 53

6th Amendment Confrontation Clause

Answer 53

The 6th Amendment Confrontation Clause guarantees a person accused of a crime the the right to confront witnesses against him in a criminal action (i.e., the right to be present at trial to cross-examine the prosecution’s witnesses).

Question 53

Judicial Notice of Fact

Answer 53

Judicial Notice allows a court to accept indisputable facts as true without requiring formal proof, if the facts are:
(1) Commonly known in the community
(2) Readily capable of verification

Civil juries MUST accept judicial notice of fact as true.

Criminal juries may or may not accept judicial notice of a fact as true.