Evidence

Question 1

Logical relevance

Answer 1

Evidence is relevant if it has a tendency to make a fact more or less probable than it would be without the evidence

Question 2

Legal Relevance

Answer 2

Relevant evidence may be excluded if it’s probative value is substantially outweighed by the danger of unfair prejudice

Question 3

Authentication

Answer 3

All tangible evidence must be authenticated. Must produce sufficient evidence to support finding that the thing is what it’s claimed to be

Question 4

Present recollection refreshed

Answer 4

A witness may examine any item to refresh memory. The relevant portions of the item can be introduced into evidence by the adverse party

Question 5

Civil cases where character evidence is admissible

Answer 5

1. Defamation
2. Child custody
3. Negligent hiring
4. Fraud

Question 6

Character evidence types that defendant can use in crim cases

Answer 6

Can use reputation or opinion evidence, NOT SPECIFIC INSTANCE

Question 7

Prosecutor’s character evidence

Answer 7

Can use reputation, opinion, or specific instance IF
1) D opens door
2) It’s MIMIC evidence
3) D claims self-defense
4) D accused of sex crime

Question 8

Lay witness opinion testimony

Answer 8

Opinion is admissible if it is rationally based on witness’s perception and personal knowledge

Question 9

Expert Witness

Answer 9

Qualified as an expert by knowledge, skill, experience, or training. Cannot give opinion on mental state of D (mens rea)

Question 10

Leading Questions on direct exam

Answer 10

Only when:
1) shy or timid child
2) a hostile witness
3) to lay foundation

Question 11

Judicial notice

Answer 11

Civil: jury MUST accept fact as true
Criminal: jury MAY accept face as true

Question 12

Ways to impeach

Answer 12

PBS BCBC

1) prior inconsistent statement
2) Bias/Motive
3) sensory defects
4) Bad reputation or opinion about witness’s character for truthfulness
5) Criminal conviction
6) Bad Acts (specific instances of misconduct)
7) Contradiction (between direct and cross-examination)

Question 13

Hearsay exceptions for unavailability

Answer 13

Sit Down For Fuck’s Sake
Statement against interest
Dying declaration
Former testimony
Forfeiture by wrongdoing
Statement of personal/family history/relationship

Question 14

Hearsay exceptions regardless of availability

Answer 14

1) Statement for medical treatment
2) then existing state of mind
3) recorded recollection
4) excited utterance
5) present sense impression
6) public/business records
7) treatises, periodicals, pamphlets

Question 15

Statement for medical diagnoses hearsay exception

Answer 15

Statement about past or present symptoms OR ITS CAUSE for the purpose of getting diagnosed

Question 16

Then existing mental, emotional, physical state of mind

Answer 16

Mental: I am planning on going to LA
Emotion: I love her that’s why I couldn’t kill her
Physical state: I have a headache, I feel pain

Question 17

Recorded Recollection

Answer 17

Witness on the stand and cannot remember document made/adopted by witness; can be READ into evidence

Question 18

Excited utterance

Answer 18

Startling event and declaring makes statement while under the stress of excitement, STATEMENT RELATES TO THE EVENT

Question 19

Present sense impression

Answer 19

Describing something while observing it happen

Question 20

Public Record hearsay exception

Answer 20

Record or statement of public office/agency; observations by someone with a duty to report (LIKE A FIRE MARSHALL OR OFFICER’S REPORT)

Question 21

Skip

Answer 21

Skip

Question 22

Business record hearsay exception

Answer 22

ABC
At or near time of occurrence by someone with knowledge of the event, made during ordinary COURSE of business

Question 23

Dying declaration exception

Answer 23

Unavailable, believed he was dying, about why he is dying, homicide or civil cases only

Question 24

Former testimony hearsay

Answer 24

Unavailable, opponent was party to a former case, case was about same subject, made under oath, and party against whom testifying now had opportunity to cross examine before

Question 25

Statement against interest

Answer 25

UNAVAILABLE, statement by a party or nonparty that makes declarant look liable/guilty

Question 26

Admissions (hearsay exception)

Answer 26

Statement made by party or one of the parties admits fault. Admissible as non-hearsay

Question 27

Vicarious admissions hearsay exception

Answer 27

Statements made by employees about company are admissible

Question 28

Adoptive statements hearsay exception

Answer 28

Party does not respond when a reasonable person would object

Question 29

Prior consistent statement

Answer 29

My statement now is consistent with what I said before. Refutes charges of improper motive or fabrication

Question 30

Prior inconsistent statement

Answer 30

Prior statement made by declarant, made under oath, inconsistent with current testimony

Question 31

Prior identification

Answer 31

Declaring testifying about an earlier identification

Question 32

Liability insurance

Answer 32

Can be used to show control, ownership, agency, or bias

Question 33

Completeness rule

Answer 33

When admitting a portion, the whole document may be admitted for fairness

Question 34

Prior conviction impeachment if more than 10 years

Answer 34

If more than 10 years since release from incarceration or conviction, then:
1) probative value substantially outweighs prejudicial effect AND
2) reasonable written notice of intent to use conviction at trial is give