Evidence

Question 1

Can L ask W about specific prior bad acts that happened outside the suit?

Answer 1

Yes, to impeach the W by showing character for truthfulness or untruthfulness, so long as L had a reasonable basis for asking, such act was probative of untruthfulness

Question 2

Is an arrest considered a “bad act” that L can use to impeach W for?

Answer 2

No, do not qualify as a bad act that can be used to attack truthfulness

Question 3

When is the deadline for submitting jury instruction requests?

Answer 3

Before or at close of evidence, or other reasonable deadline that court sets.

Question 4

What must parties show if they want to submit jury instruction requests after the deadline (before or at close of evidence)?

Answer 4

The request relates to an issue that the party could not have reasonably anticipated by the deadline OR the court permits it

Question 5

What must a party do if they fail to preserve an error for appeal by failing to object at trial?

Answer 5

Party must show that the error should be reviewed for plain error that affected the party’s substantial rights

Question 6

What is a business record?

Answer 6

Business record may be offered as an exception to hearsay when the recording or writing is made:

1) In the course of regularly conducted business
2) Near the time of activity
3) Made by someone with personal knowledge

Question 7

When is relevant evidence excluded?

Answer 7

When risks substantially > probative value

Question 8

When is a preliminary hearing required?

Answer 8

When the hearing involves the admissibility of a confession, when D in a criminal case is a witness and requests it, when interest of justice requires

Question 9

When can character evidence be introduced in civil cases?

Answer 9

Only when it is an essential element of a claim or defense and with regard to sex crimes.

Question 10

Can character evidence be introduced in civil cases using specific acts?

Answer 10

Yes

Question 11

When is it OK to dive into sexual reputation of victim in a civil case?

Answer 11

Only when victim brings it up first and when probative value substantially > risk of unfair prejudice to victim

Question 12

When can character evidence be introduced by D about D in a criminal case?

Answer 12

Whenever in order to prove he has some character that rebuts the charge.

Question 13

Can D introduce specific acts about his character in a criminal case?

Answer 13

No. Only Prosecutor may inquire into specific acts on cross and only to rebut D’s character witness if prosecutor hsa a reasonable basis for asking.

Question 14

When is it OK to dive into sexual reputation of a victim in a criminal case?

Answer 14

Never

Question 15

When is it OK to dive into sexual reputation of D in a criminal case?

Answer 15

When D’s conduct involves rape, sexual assault, etc. then character evidence may be admitted to show a certain propensity so long as it’s relevant

Question 16

When do deadman statutes apply - civil or criminal cases?

Answer 16

Civil cases only

Question 17

Can an L use character evidence to impeach a W?

Answer 17

Yes. Can bring in character witnesses for reputation or opinion and can cross-examine the original witness about specific bad acts if the prosecutor has a reasonable basis for asking

Question 18

When can you use prior inconsistent statements to impeach a W?

Answer 18

Whenever to prove what W said themselves during testimony. If it’s extrinsic evidence, can only use it if you give W a chance to explain themselves

Question 19

If the crime or felony occurred more than 10+ years, when can evidence of the prior conviction be used to impeach a W?

Answer 19

If the PV substantially > prejudicial effect

Question 20

If the crime occurred less than 10+ years, and the crime involves dishonesty and false statements, when can evidence of the prior conviction be used to impeach a W?

Answer 20

Whenever

Question 21

If the crime occurred less than 10+ years, and the crime involves a felony, when can evidence of the prior conviction be used to impeach a W?

Answer 21

If you’re impeaching the criminal D as a W - Only if PV > PE

If you’re not impeaching the criminal D as a W, admissible unless PE substantially > PV

Question 22

When can juvenile adjudications be used to impeach a W?

Answer 22

Only if it’s offered in a criminal case, the Defendant himself is not a W, the adult’s conviction for that offense would be admissible to attack the adult’s credibility if it meets the normal test for conviction of a crime for impeachment, and when admitting the evidence is necessary to fairly determine guilt or innocence

Question 23

Is it OK to refresh a witness’ memory using the prosecutor’s own notes?

Answer 23

Yes. Anything can be used to refresh the W’s memory!

Question 24

Is it OK to impeach a hearsay declarant by introducing prior bad acts?

Answer 24

Yes. Hearsay declarant doesn’t need to be there to explain or deny the statement.

Question 25

Can a D waive their right for statements made during settlement/plea negotiations to not be admitted against them?

Answer 25

Yes, so long as they waive it knowingly and voluntarily.

Question 26

What is the reply letter doctrine?

Answer 26

A form of authentication of a letter.

A document was written in response to an earlier communication and the contents make it unlikely that the response was written by someone other than the recipient of the earlier communication

Question 27

When can you use leading questions on direct?

Answer 27

When your own direct W is hostile/adverse

When it’s a preliminary background matter

When it’s to refresh your W’s memory

When it’s to question Ws that need special attention

Question 28

Can all hearsay exceptions can be used substantively?

Answer 28

Yes! Which means they can all be used to impeach too

Question 29

Use immunity

Answer 29

Immunity only from using the witness’ own words against them.

Includes any evidence they may find from those words.

Question 30

Transactional immunity

Answer 30

Complete protection from future prosecution for anything mentioned in the testimony

Question 31

Who can lay the groundwork for a business records exception to hearsay?

Answer 31

Anyone with personal knowledge of the elements that would make a business record

Question 32

Does the business records exception to hearsay apply to illegal activity too?

Answer 32

Yes. So a ledger kept by a drug dealer counts

Question 33

Do the federal rules of evidence apply to grand jury proceedings?

Answer 33

No except for the rules on privilege

Question 34

Are statements made during compromise/settlement negotiations in a civil dispute allowed for substantive or impeachment purposes in a criminal dispute?

Answer 34

No!

Question 35

What’s the acronym for hearsay exceptions when the declaration is unavailable?

Answer 35

Forfeit - Forfeiture by misconduct

Former - Former statements by W that was given under oath and party against whom statement is being offered had motive to develop testimony

Interests - Statement against interests

Or

Dead - Dying declarations

Family - Statement of Declarant’s family history

Question 36

Can a fire marshall’s report be admitted in its entirety, including activities, observations, and factual findings?

Answer 36

Yes

Question 37

Do federal rules of evidence apply to probation revocation hearings?

Answer 37

No; therefore a court can hear otherwise inadmissible hearsay evidence or inadmissible lay opinion (say, a lay opinion that is not based on firsthand experience)

Question 38

When CAN inadmissible evidence be introduced?

Answer 38

For the purposes of rebutting other inadmissible evidence in order to cure the prejudicial effect caused by the first inadmissible evidence