Evidence

Question 1

FRE does not apply to

Answer 1

• in summary contempt, grand jury, arrest warrant, probation, and other stages

1. Preliminary question of fact on admissibility (before or during trial)
2. Grand jury proceedings
3. Extradition/rendition
4. Arrest warrants
5. Preliminary examination in a criminal case
6. Sentencing
7. Probation or bail

Question 2

standard of review on appeal for FRE

Answer 2

abuse of discretion

Question 3

if no objection, standard of review

Answer 3

(iii) Appellate judges can reverse only if plain error affected a substantial right
* “Substantial right” means if the ruling was different, the outcome of the case would have been different
* So, most errors constitute as harmless error  the outcome was not affected

Question 4

Relevance

Answer 4

(i) it has any tendency to make a fact more or less probable than it would be without evidence AND
(ii) The fact is of consequence in determining the action

Question 5

unfair prejudice

Answer 5

The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following:
unfair prejudice,
confusing the issues,
misleading the jury,
undue delay,
wasting time, or
needlessly presenting cumulative evidence

Question 6

factors for 403 unfair prejudice

Answer 6

CRAVE
connection to the case
reducing harm by redactions
alternatives available to show same fact
value given to the case incorrectly (overvaluing)
emotions, bias, or prejudice likely to occur

Question 7

subsequent remedial measures

Answer 7

c) When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of subsequent measures is not admissible to prove
(i) Negligence
(ii) Culpable conduct
(iii) A defect in product or design
(iv) A need for a warning or instruction

d) But for another purpose it is admittable like
* Impeachment
* Proving ownership, control or feasibility – if disputed

Question 8

Settlements

Answer 8

(iii) ALL conduct or statements during negotiations excluded
* Will promote candid conversations
* Includes your own statements

f) Can admit for following purposes
(i) Proving a witness bias or prejudice
(ii) Negotiating a contention for undue delay
(iii) Proving obstruction for criminal investigation of a prosecutor
(iv) Criminal cases when a civil claim is involved in a public office such as regulatory, investigative

Question 9

competence

Answer 9

To testify in court a witness must be (1) competent; (2) have personal knowledge; and (3) take an oath or affirmation
anyone is competent

Question 10

personal knowledge

Answer 10

witness may testify to a matter only if the evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter
(i) Relates to the senses  can testify to what they have seen, heard or sensed themselves

Question 11

leading questions on direct (4)

Answer 11

1. To establish pedigree information
2. To direct witness’s attention to a relevant place or time – new chapter
3. To help a witness who is hesitant, confused, or having trouble recalling
   a. Youth, nervousness, illness, memory problems
4. If they are a hostile witness
   a. One who is likely to resist party’s position
   b. If evasive or uncooperative to answering the judge will declare witness hostile

Question 12

refresh witness memory

Answer 12

a) For a writing to be used the witness must state (1) she does not remember the answer to the question and (2) seeing the writing would refresh the witness’s memory
(i) Then take it away and asked if it refreshed their memory

AP can admit into evidence

Question 13

rule of completeness

Answer 13

allows an adverse parties of the party that offers a document or recorded statement into evidence to introduce any remaining portions that in fairness ought to be considered at the same time.

Question 14

procedural constraints on extrinsic evidence

Answer 14

• If extrinsic, the witness who made the statement must have an opportunity to explain the inconsistency and opposing counsel must have a chance to question the witness about the inconsistency

1. Can be an issue if introduce after they left the stand
   a. Exception if justice so requires

Question 15

crime over 10 years old

Answer 15

probative value must substantially outweigh prejudicial effect

Question 16

crime of dishonesty

Answer 16

judge must admit unless there was a pardon in innocence & no subsequent crime or juvenile exception

Question 17

if felony crime for witness (not D)

Answer 17

admit unless unfair prejudice substantially outweighs probative value (Rule 403 test)
a. Apply five factors! CRAVE

Question 18

if felony crime and defendant

Answer 18

admit if probative value outweighs prejudicial effect to that defendant
a. Reverse five factors (I took some deserved candy)
i. Impeachment value  truth telling crime it would be highly probative
ii. Timing of prior conviction & subsequent criminality long ago more UP
iii. Similarity to prior crime and one being charged with PJ high If similar
iv. Importance of defendant’s testimonyrisk of D not testifying PJ high
v. Centrality of credibility how important is W testimony?

Question 19

mercy rule

Answer 19

(i) Criminal defendants have a latitude in presenting a defense
(ii) Defendant can offer testimony about a pertinent trait
* Prosecution can rebut that specific trait after
* Limit: must be related to a pertinent trait and comply with rape shield
(iii) Defendant can offer evidence of an alleged victims pertinent trait
* Prosecution can rebut it or offer proof defendant has such trait

Question 20

character propensity

Answer 20

prohibits character evidence when it is used to suggest that a person acted consistently with their character/specific trait on a particular occasion

Question 21

when character is an element

Answer 21

• Negligent entrustment
  1. Arguing one carelessly trusted an item with the plaintiff – show defendant knew something about the party’s character and negligently ignored that knowledge
• Child custody
  1. Best interest of the child depends on what the judge believes about the character of the parties
• Defamation
  1. Statement has to be proven false – reputation is brought in
• Entrapment defense
  1. Prove defendant lacked predisposition to a crime
  a. Criminal or noncriminal character is an element

Question 22

character exceptions for other purposes

Answer 22

• Motive
  1. Previous act or crime motivated the charged one
• Plan
  1. Similar suspicious fires – commonality
• Identity
  1. Must be very detailed, signature elements
  a. Unusual feature to crime and common characteristics
  2. Conditions to be met Identity must be at issue; AND there must be strong similarities between charged and other crime
• Opportunity
  1. Access to place or tools on occasion to show special opportunity
• Knowledge
  1. Like opportunity or when knowledge is an element of the crime
  a. Safe cracking example
• Intent
  1. Prove a defendant possessed the intent necessary to commit a crime
  2. Have broadened intent that can be blurred with propensity  drug cases where intent is hard to prove
• Res gestae
  1. To complete the story
  2. Permitted use of other propensity evidence

Question 23

habit

Answer 23

• Specific, repeated responses to a particular situation or stimulus
  1. Usually morally neutral and has higher probative value
  2. Entities routine practice
  (iii) Factors
• Specific conduct
• In distinctive situations
• On a regular basis

Question 24

civil case rap shield

Answer 24

• If probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party
• AND Court can admit victim’s reputation only if the victim has placed it in controversy

Question 25

rape shield

Answer 25

a) Generally restricts evidence of victim’s prior sexual encounters or sexual reputation or predisposition

Question 26

exceptions to rape shield

Answer 26

(i) Physical evidence

(ii) Prior acts with D
* D can use to show consent
* P can use for any purpose
* fantasies

(iii) Satisfy constitution – catchall
* Give D opportunity to defend themselves
* Usually to show victim’s credibility Is lacking or allegations are false
* Most courts reject alleged victims promiscuous behavior to prove that defendant reasonably believed she consented

Question 27

hearsay rule

Answer 27

2) Hearsay is a (1) statement that (2) the declarant does not make while testifying at a trial or hearing AND (3) it is offered to prove for the truth of the mattered asserted in the statement
a) It is an out of court statement offered for the truth of the matter asserted

Question 28

machine hearsay

Answer 28

(i) If fully automatic process not a statement
(ii) If information or signal originated from human  statement

Question 29

other purposes than the truth of the matter asserted

Answer 29

• Knowledge of the speaker  showing one had knowledge of circumstances
• The fact a speaker made a statement
• Notice to the listener risks and dangers explained
• Publication in a defamation case  show another saw the statement
• Effect on a listener  Reasonable fear of bodily harm
• Legally binding statements  contract acceptance, consent to trespass
• Prior inconsistent statement  not offered for the truth but for the credibility
  1. Non hearsay purpose &is not collateral because important related to claim
  2. Offered to show witness said different things at different times
• Any other fact offered instead of the truth of the matter asserted

Question 30

nonhearsay

Answer 30

Prior statements by witness AND
opposing party statement

Question 31

exceptions to hearsay where D availability immaterial

Answer 31

b) Excited utterance
c) Present sense impression
d) Medical records
e) State of mind

g) public records

Question 32

Witness inconsistent statements

Answer 32

nonhearsay (i) Admissible for TOMA if it is inconsistent with witness’s current testimony; made under penalty of perjury; occurred at depo or trial, hearing or other proceeding
* Different from 613 because can be used to impeach and for the content
* Memory loss = inconsistent

Question 33

witness consistent statements

Answer 33

(i) Offered to rebut charge that witness fabricated or rehab witness’s credibility when witness was attacked on other grant
* Show the credibility has been attacked and the consistent statement has probative value in rehabilitating credibility
NO oath or proceeding

Question 34

witness prior Identification

Answer 34

nonhearsay when (i) A statement of identification is admissible if the person who made the identification testifies at trial and is subject to cross x
* Closer in time to the event

Question 35

declarant must be available exceptions

Answer 35

(i) Recorded recollection
(ii) Business records
* Or certification
(iii) Prior statements – on stand & cross

Question 36

present sense impression

Answer 36

a) Statements that describe or explain an event as it unfolds
(i) No complex analysis or interpretation of the event
* Will redact statements here
b) Made WHILE event unfolds or immediately after (within seconds)
(i) Depends on facts – searching for phone example

Question 37

excited utterance

Answer 37

a) Speak while excited about event and related to event
(i) Subjective standard – this particular declarant
* Genuine excitement or stress
b) Relates to event
(i) Can be beyond description here – analysis or interpretation is okay

Question 38

statement of mind

Answer 38

declarant’s expression of state of mind or sensory, emotional, or physical condition
(i) Motive, intent, plan, mental feeling, pain, bodily health, hunger, thirst
* Court will redact external facts or explanation
1. BUT they may be used to prove state of mind
a. Not offered for TOMA – to show exception applies – purpose is key
b. Happy – because promotion at work

Question 39

medical treatment

Answer 39

a) Statement that is made for and is reasonably pertinent to medical diagnosis or treatment and
(i) Describes medical history; past or present symptoms or sensations; their inception, or their general cause
(ii) 3 requirements
* Patient is subjectively seeking diagnosis or treatment - PURPOSE
* Reasonably pertinent to diagnosis or treatment – objective
1. Responses to dr questions are usually pertinent
* Statement fits in one of three categories
1. Accounts of medical history
2. Description of past or present symptoms
3. Reports about inception of condition or general cause thereof

Question 40

recorded recollection

Answer 40

a) Made when the declarants memory is fresh and is available to testify under oath & subject to cross about circumstances in which she recorded the statement
(i) Only if witness can no longer remember what the information, but she once did remember and that OOC reflects the old information

(i) Record
(ii) Eliminated memory of important details
(iii) Concerns matter once had knowledge of
(iv) Made OR adopted by witness
(v) Reflects accurately witness’s knowledge
(vi) Done when it was fresh in memory

Question 41

business records

Answer 41

(i) Any record
* Expansive almost any document or data compilation
(ii) Personal knowledge
* Recorded by one with personal knowledge or conveyed to the person who made it by someone with knowledge
* Insiders within the business only
1. Not customers or third party
* Made at or near that time  reasonable time
(iii) Made in course of regularly conducted business activity
* Carried routinely out
* Done for the business
* Organization has a regular practice of keeping records
(iv) Qualified witness must introduce into evidence
* Document’s custodian. One who can testify:
1. Record kept in course of regularly conducted business
2. Record was kept in regular practice
3. Record made by one with personal knowledge
* Witness is either available or there is a certification
(v) Not admissible if there is an indication of the lack of trustworthiness
* Optional for the opposing party
* Trustworthy here means  argue not trustworthy because made in anticipation of litigation
* If made in prep for litigation assume untrustworthy
1. Altered document
2. Or after injury – not admissible
(vi) Business = broad

Question 42

public records

Answer 42

(i) Record
* Broad any memo report date compilation
(ii) Public office  any public agency
* State local federal
(iii) Falls within
* Activities engaged by public officer
* A matter observed by public agency, but not in a criminal case against the defendant, a matter observed by a law enforcement personnel in an adversarial setting
1. Wide range of concrete facts
2. Agency has a duty to report
3. In a civil case or against the govt in a criminal case, Investigations from a legally authorized investigation

Question 43

former testimony

Answer 43

: A statement made outside of the current trial offered for the truth of what the witness had asserted
(i) Exception for prior testimony when previous witness is unavailable to offer live testimony
* Opposing counsel had the opportunity to question declarant in prior proceeding
with similar motive

Question 44

dying declarant

Answer 44

(i) Declarant must be unavailable
* Death or other reason
(ii) Must be a civil or homicide proceeding
* So not most criminal cases
(iii) Declarant must believe death is imminent & it is inevitable
* Subjective belief
* Very close – hours
(iv) Statements are only admissible if they concern cause or circumstances of death
* Substance of the statement

Question 45

statement against interest

Answer 45

a) Declarant is unavailable
b) Can admit OOC statements that were against the declarant’s interest at the time they were made
c) Requirements
(i) Unavailable declarant
(ii) Statement against declarant’s interest when made
* Subjective belief at that time
(iii) Three ways it can be against the interest
* Contrary to her proprietary or pecuniary interest
* Render invalid a claim
* Expose declarant to civil or criminal liability

Question 46

forfeiture rule

Answer 46

a) Admits hearsay against a party who engaged or acquiesced in wrongdoing that intentionally caused the witness’s unavailability

Question 47

admission of party opponent others

Answer 47

• Directly made by party
• Party has adopted as her own
• Party authorized another to speak on that subject
  1. Letter of recommendation
• Party’s agents or employees statements
  1. Agent / employees with the scope of relationship and while it existed
  2. Could be silence if the circumstances show lack of denial is so unnatural as to support an inference that the undenied statement was true or reasonable person would speak up rather than remain silent
  a. Not usually law enforcement situations
  b. Normally induce a response?

Question 48

co conspirator statement

Answer 48

co conspirator statement if (1) made by coconspirator; (2) made in furtherance of the conspiracy; and (3) statement was made during the conspiracy

Question 49

confrontation clause

Answer 49

in all criminal prosecutions, the accused shall enjoy the right to cross examine people who make testimonial statements against him