Evidence

Question 1

How to attack credibility of the declarant when a hearsay statement has been admitted into evidence

Answer 1

By any evidence that would be admissible for the purposes, if the declarant had testified as a witness

Question 2

When can the attorney ask a witness about specific conduct?

Answer 2

To impeach a witness by showing the witness has some reason to favor one side in the case (bias)

Question 3

Evidence of conviction of a crime involving dishonest or false statement comes in:

Answer 3

Always to impeach if the conviction was within 10 years

Question 4

When does a conviction older than 10 years come in

Answer 4

A judge allows it, because:
the probative value of the conviction substantially outweighs its prejudicial effect, and
The adverse party has been properly notified

Question 5

When can a criminal defendants juvenile conviction come in

Answer 5

Generally never

Question 6

When is cross examination of prior bad acts allowed

Answer 6

At the discretion of the trial court, if they are probative of truthfulness. Not Allowed for irrelevant topics

Question 7

Character evidence is admissible in a civil case to

Answer 7

Prove a particular character trait, when that character trait is an essential element of the claim or defense

Question 8

When is character evidence admissible to prove the defendant or plaintiff is a “good person”

Answer 8

Never
For civil — particular trait, that is an essential element to the claim or defense
For criminal — inadmissible unless D raises first

Question 9

When is evidence of a victims sexual disposition or behavior generally allowed?

Answer 9

In civil cases

In criminal cases, only allowed in specific instances

Question 10

Specific instances a victims sexual disposition is allowed in criminal cases

Answer 10

1. Offered to prove that a person other than the accused was the source of injury, semen, or other physical evidence; or
2. Specific instances of sexual behavior between the victim and accused to prove consent

Question 11

In a criminal case, when can the prosecution present evidence of defendants bad character

Answer 11

Only after defendant presents evidence of victims bad character for the same trait

Question 12

The privilege of self incrimination can be used to avoid what kind of liability

Answer 12

Criminal liability only

Question 13

The federal privileges for confidential communications are

Answer 13

1. Licensed social worker and client
2. Psychotherapist/psychiatrist and client
3. Attorney and client

Trick: Some states have physician/patient but it is not a federal privilege and only applies to statements while the Dr. Is tending to the patient in the course of treatment

Question 14

Evidence that a business or firm had an established business routine is relevant as tending to show

Answer 14

A particular event occurred

Question 15

When may spousal immunity be invoked?

Answer 15

In criminal cases only,
1. Regarding matters that took place before the marriage, and
2. Regarding matters during the marriage

Effect: prohibits the spouse of a criminal defendant from being called as a witness

Question 16

In jurisdictions where physician patient privilege applies, when is it not applicable to communications

Answer 16

When a person puts her physical condition in issue

Ex: suing for personal injuries

Question 17

Is a secret tape recording admissible?

Answer 17

Only to impeach a witnesses testimony as a prior inconsistent statement

Question 18

Improper character evidence

Answer 18

Evidence of a prior bad acts to prove that on the present ocasión the defendant acted in conformity

Question 19

Crime or Fraud Exception

Answer 19

There is no attorney client privilege if the services were sought or obtained to enable or aid to commit what the client knew, or reasonably should have known, to be a crime or fraud

Question 20

Exceptions to admit crimes or wrongdoings to prove a persons character on a particular occasion acted in conformity

Answer 20

To prove:
Motive, intent, absence of mistake or lack of accident, identity, common scheme or plan

Question 21

A court must exclude witnesses at all times of the trial if

Answer 21

Requested by a party, and after giving testimony is expected to be recalled

Question 22

Doctrine of present recollection refreshed

Answer 22

Any item may be used to refresh the witnesses memory, including leading questions, documents or objects.

If the witness having seen the refreshing object can testify from memory the item will not be considered evidence.

Question 23

Is a photocopy of testimony used to refresh recollection admissible evidence?

Answer 23

No it is only admitted to refresh memory of what was said, not trying to prove the contents of the document

Question 24

Voice identification

Answer 24

Giver of the opinion does not need to be positive in the identification. The witness is permitted to say merely that the voice was similar

Question 25

Testimony by a child should be admitted if

Answer 25

There is sufficient basis for believing that the child has personal knowledge and understands the obligation to testify truthfully.

There is no minimum age to testify

Question 26

Past Recollection recorded

Answer 26

A hearsay exception for past recollections recorded if it meets 4 elements:

1. Memorandum rates to first hand knowledge witness had at the time
2. Record was made or adopted by witness when the recollection was fresh in memory
3. There is an impairment to witnesses memory of the events
4. The record correctly reflects the witnesses original knowledge

Question 27

Adoptive admission

Answer 27

A statement is not hearsay if it is offered against a party and is a statement of which the party manifested and adoption or belief in its truth

Ex. Silence or conduct - “this is my partner” and the “partner” shakes hands

Question 28

P she’s chimney sweep, as evidence she assumed the risk D wants to testify he told P not to use fireplace for 24 hrs to allow chemicals to evaporate. Is this hearsay?

Answer 28

No because it is not offered for its truth. The statement is offered to show its effect on the listener, here P

In a negligence case, where knowledge of a danger is at issue, a statement of warning is admissible for the limited purpose of showing knowledge or notice on the part of the listener

Question 29

Picture admissibility

Answer 29

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

Extra info:
It is sufficient if the witness who identifies the photograph is familiar with the scene or object depicted. It is not necessary to authenticate the photo

Question 30

Confrontation clause

Answer 30

A criminal defendant has the constitutional right to confront and cross examine the witness against him

Question 31

Affidavits in criminal trial

Answer 31

testimonial in nature

and

not admissible into evidence against the defendant unless the preparer is unavailable and the defendant previously had an opportunity to cross examine

Question 32

Statement against interest

Answer 32

Is an exception to hearsay, requires the declarant be unavailable as a witness

Question 33

A declarant is unavailable if:

Answer 33

1) she is exempted from testifying because the court rules that a privilege applies

2) she refuses to testify concerning the statement despite a court order

3) she testifies to not remember the subject matter of the statement

4) she cannot testify because she has died or is ill

Or

5) she is absent and the statements proponent is unable to procure her attendance or testimony by process or other reasonable means

Question 34

Witness list admissibility

Answer 34

Admissible as a record of a regularly conducted activity (business record)

Question 35

Business record exception

Answer 35

A writing or record made as a memorandum or record of any act, transaction, occurrence or event is admissible
as proof of such act,etc
if it was made in the course or regularly conducted business activity
And if it was customary to make the type of entry involved

Must consist of matters within the personal knowledge of the entrant of someone with a business duty to transmit such matters to the entrant

Must have been made at or near the time of the transaction

Question 36

In a criminal case evidence of the defendants other crimes or misconduct is

Answer 36

Inadmissible if offered solely to establish criminal disposition

Exception: if relevant to show some other issue than the character of the defendant to commit the crime charged, such as
Motive
Intent
Mistake (absence of)
Identity
Common scheme

Question 37

Improper method of impeachment

Answer 37

When a witness is interrogated upon cross examination with respect to misconduct that is NOT probative or truthfulness

Ex: charge of assault, without the conviction (a conviction of assault WOULD be admissible)

Question 38

Proper method of impeachment

Answer 38

Interrogation of a witness on cross examination regarding misconduct that is probative of truthfulness

Question 39

Testimony of a witness -prior inconsistent statement is

Answer 39

Admissible for impeachment

Question 40

Extrinsic evidence of bias requires what to happen

Answer 40

A foundation to be laid

Question 41

Prior convictions of crimes requiring proof or admission of dishonesty or false statement

Answer 41

Permites unless over 10 years have passed since the date of conviction or date of release - whichever is later

Question 42

“If you or any member of your family requires medical treatment our company will pay fully. We will not have it said our company’s negligence resulted in the illness of a local family”

Is an example of

Answer 42

An opposing party’s statement that it was negligent - admissible

Question 43

A witness who was present at a will execution who testifies to the decedents mental state at the time is

Answer 43

Admissible as proper Opinion Testimony

Question 44

Present sense impression

Answer 44

Exception to hearsay, a statement made contemporaneously with a perceived event or occurrence or immediately after
Ex: “it’s cold” “we’re going really fast”

(Note: this is different from an excited utterance which is made spontaneously, during the stress or excitement of the event ex: “look out!”)

Question 45

For a photo to be admissible what must first happen procedurally

Answer 45

A foundation must be laid:
I.e. the photo must be identified by a witness
as a portrayal of certain facts relevant to the issue
and verify it as a correct representation of those facts

Question 46

Eyewitness looks at mugbook photos and identifies D as robber.
In court eyewitness is unable to identify D as robber.
Can prosecutor have officer testify the eyewitness identified D from photos at police station?

Answer 46

Yes the testimony is admissible bc the statement is identification. And is not excluded by the hearsay rule

A declarants prior statement identifying someone perceived earlier is not hearsay if witness is present for cross examination

Question 47

Witness says D told him: “I’m going to return this car as soon as I work things out with my wife”
Admissible?

Answer 47

Yes as a statement by the D of his then existing state of mind

Question 48

Statements of a declarants then existing state of mind

Answer 48

Exception to hearsay
Can be regarding motive, intent or emotions

Question 49

Declarants prior consistent statement

Answer 49

Can only be used to “bolster” to rehabilitate a witness who’s credibility has been impeached
When allowed it can come in as substantive evidence

Question 50

Expert testimony should be admitted if

Answer 50

Relevant to issues of causation and helpful to the jury