Evidence

Question 1

Photograph Admissibility

Answer 1

To be admissible, a photograph must be: 1) identified by a witness as a portrayal of certain facts relevant to the issue, and 2) verified by the witness as a correct representation of those facts.

It is not necessary to call the photographer to authenticate the photo. It is sufficient if the witness who identifies the photo is familiar with the scene or object depicted.

Question 2

Affidavits that Summarize Findings of Forensic Analysis (Fingerprint test)

Answer 2

Affidavits that summarize the findings of forensic analysis and have the effect of accusing the defendant of criminal conduct are testimonial in nature and are not admissible into evidence against the defendant unless the preparer is unavailable and the defendant previously had an opportunity to cross-examine

Criminal defendant has the constitutional right, under the Confrontation Clause, to confront and cross-examine the witnesses against him

Question 3

Statement Against Interest Exception to Hearsay

Answer 3

Requires that the declarant be unavailable as a witness

A statement of a person, now unavailable as a witness, may be admissible if it was against that person’s pecuniary, proprietary, or penal interest when made.

Statement Against Interest Requires:
1) statement must have been against pecuniary, proprietary, or penal interest when made, such that a reasonable person in declarant’s position would have made it only if she believed it to be true
2) declarant must have had personal knowledge of the facts
3) declarant must have been aware that the statement was against her interest and she must have had no motive to misrepresent when she made the statement, and
4) the declarant must be unavailable as a witness

A declarant is unavailable if:
1) she is exempted from testifying bc the court rules that a privilege applies,
2) she refuses to testify concerning the statement despite a court order to do so
3) she testifies to not remembering the subject matter of the statement,
4) she cannot testify bc she has died or is ill
5) she is absent and the statement’s proponent is unable to procure her attendance or testimony by process or other reasonable means

Question 4

State of Mind Exception to Hearsay

Answer 4

A declaration of intent to do something in the future is admissible as circumstantial evidence tending to show that the intent was carried out

Question 5

Business Record Exception

Answer 5

A writing or record made as a memorandum or record of any act, transaction, occurrence, or event is admissible as proof of such act, transaction, occurrence, or event if:
REMEMBER: 1) regular business activity, 2) customary, 3) knowledge, at or near
1) it was made in the course of a regularly conducted business activity
2) if it was customary to make the type of entry involved (entrant must have had a duty to make the entry).
3) The business record must consist of matters within the personal knowledge of the entrant or within the personal knowledge of someone with a business duty to transmit such matters to the entrant
4) The entry must have been made at or near the time of the transaction.

The document is admissible without either the informant or the recorder if authenticated by a custodian or any other proper authentication witness.

Applies to records kept by any: business, organization, occupation, or calling, whether or not for profit so also churches, hospitals, schools.

Question 6

Declaration of Present Physical Sensation Exception to Hearsay Rule

Answer 6

Statements of symptoms being experienced, including the existence of pain, are admissible even if not made to a doctor or other medical personnel

Question 7

Evidence of Def’s Bad Character

Answer 7

Prosecution cannot initiate evidence of def’s bad character. Prosecution can ONLY offer such evidence after the accused has put his character in issue by either: 1) Taking the stand (thus placing his credibility in issue) OR 2) Offering evidence of his good character for a pertinent trait (ONLY through reputation or opinion testimony)

-ex: crim def accused of murder is allowed to present evidence that he is a nonviolent person

Question 8

Evidence of Def’s Other Crimes/Misconduct in Criminal Case

Answer 8

In a criminal case, evidence of def’s other crimes or misconduct is inadmissible if offered solely to establish criminal disposition.

EXCEPTION: Evidence of other crimes or misconduct can be admitted if such acts are relevant to some other issue than the character of the defendant to commit the crime charge.

Evidence may be used to show: Motive, Opportunity, Intent, Preparation, Plan, Knowledge, Identity, or Absence of Mistake

REMEMBER: Evidence of a def’s other crimes or misconduct are NOT admissible to establish criminal propensity, but can be admissible to show: motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake
With this, they may also be offered substantively.

Question 9

Impeachment of Witness by Prior Bad Acts & Conviction

Answer 9

A witness can be impeached on cross-examination by inquiry into Specific Acts of Misconduct that are ONLY probative of truthfulness!!

1) ANY Crime Involving Dishonesty or False Statement → witness may be impeached by crime, felony, or misdemeanor requiring an act of dishonesty or false statement. Only crimes involving DUF (deceit, untruthfulness or falsification). Look for crimes involving some uttering or writing of false words. Ex: perjury, false statement, criminal fraud, embezzlement, false pretense

2) Felony Conviction → if conviction does not involve crime of dishonesty or false statement, then only FELONY convictions may be admitted. Felony convictions are subject to a balancing test. 10 yr limit since date of conviction or release from confinement (whichever is more recent)

1) ANY crimes involving dishonesty or false statement
2) If crime does not relate to dishonesty or false statement then ONLY felony convictions, 10 yr limit
3) But, if witness denies, cannot introduce extrinsic evidence of the specific bad act to prove it, bc remember just trying to impeach their credibility

Question 10

Bolster Testimony

Answer 10

A party CANNOT bolster the testimony of a witness until the witness has been impeached

Question 11

Prior Consistent Statement

Answer 11

A Prior Consistent Statement is admissible ONLY when:
1) offered to rebut a charge that a witness is lying bc of some improper motive, OR
2) to rehabilitate the credibility of a witness who has been impeached on some other non-character ground

prior consistent statement: 1) improper motive or 2) rehab credibility of witness

Question 12

403

Answer 12

Relevant evidence can be excluded if its probative value is substantially outweighed by the danger of:
unfair prejudice, confusion of the issues, misleading the jury, undue delay, waste of time, or needless presentation of cumulative evidence.

Question 13

Relevant Evidence

Answer 13

Evidence is relevant if it has any tendency to prove or disprove a fact that is of consequence to the action

Question 14

Payments Of & Offers to Pay Medical Expenses

Answer 14

Offers to pay medical expenses are excluded & not admissible to prove liability for the injury

BUT, statements made in connection with offers to pay medical expenses ARE admissible, such as admissions of fact

BUT, BUT if an offer to pay medical expenses is also an offer to settle, then the more restrictive rule for settlement negotiations applies. And any accompanying statements or conduct would be excluded w/ the offer

Question 15

Impeachment Methods

Answer 15

(1-4 involve impeaching with facts specific to the current case)
1) Prior Inconsistent Statements (defense may offer extrinsic evidence of a witness’s prior inconsistent statement for the limited non-hearsay purpose of impeaching the witness after the witness has been given an opportunity to explain or deny the statement)
2) Bias or Interest
3) Sensory deficiencies
(extrinsic evidence may be admitted to impeach testimony by raising questions about a witness’s ability to perceive the events that transpired)
4) Contradiction

(5-7 Involve Impeaching a witness with their general bad character for truthfulness)
5) Reputation or Opinion Evidence of Untruthfulness
6) Prior Conviction
7) Bad Acts

REMEMBER: Please Be Sensitive Connie Reputation People Believe

Question 16

Lay Opinion Testimony is Admissible

Answer 16

Lay opinion testimony is admissible when:
1) it is rationally based on the perception of the witness;
2) it is helpful to a clear understanding of her testimony or to the determination of a fact in issue
3) It is NOT based on scientific, technical, or other specialized knowledge

Lay witness CANNOT speak on issues of causation, that is for experts. causation=experts!!!!!
(ex: the plaintiff giving an opinion on why he thinks the stock crashed. NO.)

Question 17

Refreshing Recollection

Answer 17

1) Can use ANYTHING writing or object) to refresh witness’s memory (does not need to be in evidence).

2) Can refresh ONLY when witness testifies as to a lack of memory about the document’s contents.

Still based on witness’s personal knowledge, just refreshing it. Not trying to enter item in evidence, just trying to jog witness’s memory.

Remember cannot read from writing bc it is not in evidence.

When a witness had used a writing to refresh his recollection on the stand, ONLY the adverse party can introduce the writing into evidence

Question 18

Past Recollection Recorded

Answer 18

After a witness’ memory has been refreshed & they still cannot remember, record itself, that was made or adopted by a witness, can be read into evidence if a proper foundation is laid

1) Witness forgets & can’t remember,
2) Refreshed & still does not remember
3) Record was made by them and
4) Fresh & accurate when they wrote it down

** If don’t see someone forgetting then past recollection recorded probably not right answer

Proper Foundation for Recorded Recollection Admissibility (to be read into evidence):
1) Witness had personal knowledge of the facts when record was made,
2) Record was made by the witness or under their direction or was adopted by the witness
3) Record was made when the matter was fresh in witness’s mind, and
4) Record accurately reflects witness’s knowledge

REMEMBER: Can be read into evidence. BUT, cannot be received as an exhibit unless offered by adverse party.

Question 19

Prosecution Response when Def Puts their Character at Issue

Answer 19

If the defendant puts her character at issue by having a character witness testify as to his opinion or reputation of the defendant, the prosecution may rebut in the following manner:

1) Cross-examine that witness: by inquiring whether the reputation witness knows or has heard of particular instances of the defendant’s misconduct pertinent to the trait in question
(so can inquire into specific instances of that trait on cross, but cannot introduce any extrinsic evidence bc remember purpose is just to show character witness’s lack of knowledge, not to prove def’s bad character)
and
2) New Character Witness: By calling its own character witness to testify to the defendant’s bad reputation or their opinion of the defendant’s character for the particular trait involved (and if calling own witness, needs to stick to reputation or opinion testimony)

-REMEMBER: Evidence of other crimes or misconduct is admissible if these acts are relevant to some issue other than the defendant’s character or disposition to commit the crime charged. But, may be admissible for other purposes to show: motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or lack of accident whenever these issues are relevant in either a criminal or civil case

Question 20

Settlement & Settlement Negotiations

Answer 20

Evidence of a settlement or an offer to compromise a civil claim are excluded & are NOT admissible to prove/disprove liability for a disputed claim, the validity or amount of a disputed claim, or to impeach a witness by prior inconsistent statement or contradiction.

REQUIRES:
1) Disputed Claim: only kicks in if there was a claim or some indication that a party was going to make a claim (but party does not need to have actually filed suit)
2) Offer to Settle

ALSO, conduct or statements made in course of negotiation a compromise (including direct admissions of liability, are also NOT admissible.

Question 21

Excited Utterance Hearsay Exception

Answer 21

A declaration made by a declarant:
1) during or soon after a startling event or condition
2) made under the stress of excitement caused by the startling event or condition
is admissible as an exception to the hearsay rule.

Declaration must concern the immediate facts of the startling occurrence

Look for statements with !

Question 22

Admission by Party Opponent

Answer 22

Admission by party opponent is not hearsay. Statement by an agent or employee concerning any matter within the scope of her agency or employment, made during the existence of the agency or employment relationship, are admissible against the principal.

Question 23

Attorney-Client Privilege

Answer 23

APP requires that:
1) the attorney-client relationship exist at the time of communications
2) the client, or her representative, must be seeking the professional services of the attorney at the crucial time.

Attorney-client privilege applies indefinitely. Privilege survives the client’s death & even termination of the attorney-client relationship

EXCEPTIONS:
1) Communications made in the known presence and hearing of a stranger or other unprotected third party are NOT protected. If client discloses content of communication to a 3rd person not associated with atty-client relationship, then privilege is lost.

2) Privilege will NOT apply if client sought or obtained services of atty in order to enable or aid someone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud.

Question 24

What out-of-court statements of a testifying witness are categorized as Nonhearsay?

Answer 24

1) Prior inconsistent statements made under oath

2) Prior statements of identification: a declarant’s prior statement identifying someone she perceived earlier is NOT hearsay if the declarant is now testifying at trial & subject to cross about the prior statement. (even if an officer lets say is testifying about the witness’s prior id → that’s ok as long as witness is still present in courthouse & can be recalled)

3) Prior consistent statements that rehabilitate the witness

Otherwise, general rule is that a declarant-witness’s out-of-court statements are hearsay if offered for their truth and must fall within an exception to be admissible

Question 25

Scope of Cross-Examination

Answer 25

The scope of cross-examination is generally limited to:
1) Matters brought up on direct examination, AND
2) Matters concerning the witness’s credibility (impeachment). A witness may properly be questioned on cross-examination regarding prior bad acts ONLY if the act of misconduct is probative of truthfulness & as long as the probative value is not substantially outweighed by the danger of confusion, delay, or wasting time.

Question 26

Use of Learned Treatise Exception

Answer 26

Hearsay exception allows portions of learned treatises to be read into evidence. BUT, this exception applies ONLY when the treatise is being used on direct or cross-examination of an expert witness

Question 27

Federal Common Law Privileges

Answer 27

Privilege is a legal rule that protects communication within special relationships from compelled disclosure in a court proceeding. AKA Within some special relationships, parties cannot be forced to give testimony regarding communication, including non verbal communication within that relationship

1) Attorney-Client Privilege
2) Spousal Immunity
3) Confidential Marital Communications
4) Psychotherapist Privilege
5) Clergy-Penitent/Priest Parishioner Privilege

Question 28

Confidential Marital Communications

Answer 28

Requires 1) parties to be married at time of communication AND 2) must be a confidential communication (watch out for context and location)

Only applies if the communication was intended to be private & made in reliance on the sanctity of the marriage

Applies in BOTH criminal & civil cases

Survives termination of marriage (divorce, death)

Both spouses hold the privilege → either party can assert the privilege by refusing to testify regarding communications during the marriage or by preventing the other party from doing so.

Central idea is that spouses should be able to speak openly & honestly within the marriage.

EXCEPTIONS:
1) Revealed to 3rd party: If the communication was ever revealed to a 3rd party, the parties cannot then claim privilege.
2) Spouse suing the other (ex: divorce action)
3) When one spouse is charged w/ crime against other or their shared children (ex: domestic violence case)

Question 29

Spousal Immunity/Testimonial Privilege

Answer 29

Spouse of a criminal defendant cannot be forced to testify against his/her partner. But, if spouse chooses to testify they can disclose events before and even during the marriage.

Prevents a spouse from being compelled to testify against her spouse in a criminal case.

ONLY applies in criminal cases

Only testifying spouse holds privilege (they can choose to testify)

Have to be married at time of trial (has to be lawful marriage, no sham Vegas marriage)

Privilege terminated at divorce.

Designed to protect the spousal relationship. We don’t want to force spouses to testify against each other as that could jeopardize their relationship.

EXCEPTIONS:
1) Revealed to 3rd party: If the communication was ever revealed to a 3rd party, the parties cannot then claim privilege.
2) Spouse suing the other (ex: divorce action)
3) When one spouse is charged w/ crime against other or their shared children (ex: domestic violence case)

Question 30

Habit Evidence

Answer 30

Habit & Business Routine Evidence describes a person or businesses regular response to a specific set of circumstances.

Habit requires: 1) Frequency of conduct & 2) Specific set of circumstances in which it occurs

Evidence of a person’s habit or evidence of the routine practice of an org is admisisble as circumstantial evidence that the person (or org) acted in accordance with the habit on the occasion at issue.

NOT habit: officer testifying def resisted arrest 3 times before over a span of 10 yrs is not frequent enough to constitute habit. This would be impermissible character evidence. (propensity: evidence of a person’s other acts is generally inadmissible to show how a person probably acted on a particular occasion)

Question 31

Handwriting

Answer 31

Lay opinion is permissible and often essential to identify handwriting.

First, a foundation must be laid to show familiarity with the voice or handwriting. Under the FRE, a non-expert may express an opinion that handwriting is genuine, based on familiarity with it that was not acquired for the current litigation. A lay witness who has personal knowledge of the handwriting of the supposed writer may state his opinion as to whether the document is in that person’s handwriting, thus authenticating it. However, a non-expert cannot become familiar with the handwriting merely for the purpose of testifying. If there’s a lot of documents, FRE only requires that some specimens be authenticated.

After a lay witness has authenticated the handwriting, the FRE allows for an expert witness OR a trier of fact to compare the authenticated specimen with another sample and determine the genuineness of the sample.

Question 32

FRE Do Not Apply

Answer 32

Except for the rules relating to privilege, the Federal Rules of Evidence do NOT apply in:
1) Court’s determination of a preliminary question of fact relating to admissibility
2) Grand jury proceedings, and
3) Other miscellaneous proceedings including sentencing, tradition, issuing arrest or search warrant, preliminary examination in a criminal case, bail, and probation.

Question 33

Preliminary Facts Decided by Judge

Answer 33

Facts affecting the competency of evidence/ whether it is admissible under the rules of evidence must be determined by a judge.

Judge decides:
1) Is a witness mentally competent to testify?
2) Does a privilege exist?
3) Does the evidence meet the requirements of a hearsay exception?

Both sides are permitted to present evidence & argument about the admissibility of the evidence.

Judge is NOT bound by rules of evidence except privilege.

Hearing should be conducted outside the presence of the jury. Whether the jury should be excused during the prelim fact determination is generally within the discretion of the trial judge.

Jury MUST be excused if:
1) hearing involves admissibility of a confession
2) def in a crim case is testifying at the hearing & requests jury be excused or
3) justice so requires

Question 34

Inadvertent Disclosure

Answer 34

An inadvertent disclosure will not operate as a waiver of attorney-client privilege if the holder of the privilege “promptly takes reasonable steps to rectify the error”

ex: if party learned of inadvertent disclosure but waited until day before trial to rectify the error, that is not prompt so disclosure operates as a waiver to the specific documents disclosed.

Waiver of Privilege Extending to Undisclosed Communication or Information → a waiver of privilege extends to an undisclosed communication or information only if the waiver is intentional, the disclosed or undisclosed communications or info concern the same subject matter, and in fairness they ought to be considered together. If original disclosure was inadvertent and not intentional, then waiver does not extend to undisclosed communications.

Question 35

Expert Witness Testimony

Answer 35

An expert may state an opinion if the subject matter is one where technical, scientific, or specialized knowledge would help the trier of fact understand the evidence and determine a fact at issue.

An expert may give opinion testimony on direct examination without disclosing the basis of the opinion!!! (ex: that selling “apples” is code for coke)

An expert’s opinion must be based on sufficient facts and data, and the expert must employ a reliable methodology.

Sufficiency of expert’s basis for her opinion and reliability of expert’s methodology are PRELIMINARY questions for the court to determine by a preponderance of the evidence
(party has to show by a preponderance of the evidence that the expert based her opinion on sufficient facts and data and employed a reliable methodology)

Question 36

Best Evidence Rule

Answer 36

To prove the content of a writing, recording, or photograph including videos, X-rays & any tangible collection of data, the original writing must be produced if the terms of the writing are material.

Secondary evidence of the writing, such as oral testimony, is admissible only if the proponent provides a satisfactory excuse for the original absence. ONLY applies to documentary evidence!!

Valid excuses justifying admissibility of secondary evidence include:
1) loss or destruction of OG unless proponent lost or destroyed OG in bad faith
2) OG cannot be obtained by any available judicial process (its in possession of a 3rd parry outside the jrdx & cannot be obtained despite a reasonable effort)
3) OG is in possession of an adversary who, after due notice, fails to produce original.

If valid excuse, FRE permits a party to prove contents of a writing by any type of secondary evidence such as handwritten copies, notes or oral testimony.

But, remember, best evidence rule does NOT apply if the person has personal knowledge of what would be shown by recording (they were the one having the conversation, at the scene, etc)

Question 37

Objection

Answer 37

An objection must be raised immediately upon hearing the witness relate inadmissible hearsay

Question 38

Preserving Objection for Appeal

Answer 38

Atty must state a specific basis for the objection to preserve the right to appeal

Question 39

Authentication

Answer 39

Authentication is required for all physical & documentary evidence (non-testimonial evidence) to prove that it is what it purports to be

Question 40

Psychotherapist Privilege

Answer 40

Mental health professionals: Psychologists & licensed therapists

1) There must be an actual doctor-patient relationship at time of communication
2) Only information needed for actual medical care is protected. Extra details not related to patient’s treatment are not protected just bc they were shared with the doctor
3) Communication must have been shared with the expectation of privacy (can’t be made in front of a 3rd party or in a situation where privacy is not reasonable like crowded hospital waiting room)

EXCEPTIONS:
1) Where doctor has obligation to testify about types of illness or injuries such as sexual abuse, gun shot wounds or venerial diseases
2) To defend themselves from civil suits (allegations of medical malpractice)

Question 41

Clergy-Penitent Privilege

Answer 41

Protects communications b/w a religious leader and an individual seeking counseling.

Can extend to a variety of spiritual leaders: rabbis, monks.

For privilege to apply:
1) the comm. must have been made directly to a clergy member who was acting in a spiritual capacity, and
2) must have intended to be confidential

Does NOT apply to:
-group spiritual practice
-alcoholics anonymous groups led by church

EXCEPTIONS:
1) specific crimes such as sexual abuse of children

Question 42

Hearsay Evidence Violates Confrontation Clause

Answer 42

In criminal cases, def may argue that the use of hearsay evidence violates his right to confront and cross-examine witnesses against him.

Under the Confrontation Clause, a hearsay statement will not be admitted (even if it falls within a hearsay exception) when:
1) the statement is offered against the accused in a criminal case
2) the declarant is unavailable
3) the statement is testimonial in nature
4) accused had no opportunity to cross-examine the declarant’s testimonial statement prior to trial

Statements are Testimonial if:
-Made during course of police interrogations, including interviews by police at crime scenes, as long as the focus of the interrogation is on investigating a completed crime, not on managing an ongoing emergency
-If a statement is not made to a law enforcement agent, it is less likely to be found to be testimonial
-A statement to a friend or family member will rarely be considered testimonial bc it is unlikely that the purpose of questioning was to create a substitute for in-court testimony