Evidence

Question 1

When is evidence Relevant?

Answer 1

1. When it has any tendency to make a fact more or less probable than it would be without the evidence;AND2. The fact is of consequence in determining the action.Priority: HIGH

Question 2

_Rule 403 Exclusions_A court may exclude evidence if its probative value is substantially outweighed by a danger of what?

Answer 2

• Unfair prejudice;* Confusing the issues;* Misleading the jury;* Undue delay;* Wasting time; OR* Being needlessly cumulative.Priority: HIGH

Question 3

When is evidence Unfairly Prejudicial?

Answer 3

When the evidence is:1. Unnecessary;AND2. Might cause the jury to improperly sympathize or dislike a party.Priority: HIGH

Question 4

When is evidence of Subsequent Remedial Measures NOT admissible?

Answer 4

To prove:* Negligence;* Culpable conduct;* A defect in product or design; OR* A need for a warning or instruction.*But, it may be admissible to impeach or prove a disputed issue of ownership, control, or feasibility of precautionary measures.Priority: HIGH

Question 5

When are Settlement Offers and statements made during Settlement Negotiations NOT admissible?

Answer 5

• To prove the validity or amount of a disputed claim (claim must be filed or threatened); OR* To impeach by a prior inconsistent statement or contradiction.*It may be admitted to: prove bias/prejudice of a witness, negate a contention of undue delay, or prove obstruction in a criminal matter.Priority: Medium

Question 6

What Pleas and Plea Negotiations are NOT admissible in a subsequent civil or criminal case?

Answer 6

1. Statements made during plea discussions.2. A nolo contendere plea.3. A defendant’s guilty plea that was later withdrawn.4. Statements made during a proceeding for (a) nolo contendere plea, or (b) later withdrawn guilty plea.Priority: Medium

Question 7

Evidence of paying or promising/offering to pay for medical expenses or bills is NOT admissible to prove what?

Answer 7

Liability(even if there is no disputed claim)*However, any related statements or factual admissions ARE admissible.Priority: Medium

Question 8

Evidence of Liability Insurance is NOT admissible to prove what?

Answer 8

Culpability(that a person acted negligently or wrongfully)*However, a court may admit it for another purpose (e.g. proving bias/prejudice of witness, agency, ownership, control, or motive).Priority: Medium

Question 9

Physical evidence may be Authenticated through what means?

Answer 9

• Witness testimony; OR* By evidence that shows it has been held in a substantially unbroken chain of custody.Priority: Medium

Question 10

Voice recordings may be Authenticated by whom?

Answer 10

By anyone who:1. Has heard the person speak (either firsthand or electronically);AND2. Identified the recorded person as the speaker.Priority: Medium

Question 11

What is the Best Evidence Rule?

Answer 11

The original writing, recording, or photograph is required to prove its content, unless:* It is a reliable duplicate;* All of the originals are lost or destroyed (not by the proponent acting in bad faith);* An original cannot be obtained by judicial process;* It was not produced after proper notice was given; OR* It is not closely related to a controlling issue.Priority: Medium

Question 12

_Character Evidence_Character evidence may be offered as circumstantial evidence to prove propensity (that a person acted in conformity with the character trait) in what limited circumstances?

Answer 12

1. Criminal cases – by defendant OR by prosecution if the defendant “opens the door”.2. Victim’s character (in non sex-offense cases) – to prove defendant’s innocence; prosecution may rebut.3. Homicide cases – by defendant to show self-defense, prosecution may offer evidence of victim’s character for peacefulness if defendant claims victim was aggressor.4. Sex offense cases – not admissible, unless exceptions apply.5. Civil cases – only if sex offense cases exception applies.Priority: HIGH

Question 13

_Character Evidence_What are the exceptions in Sex Offense Cases that allow character evidence (to prove a victim’s sexual behavior or predisposition) to be admissible?

Answer 13

1. Civil cases: If its probative value substantially outweighs the danger of harm to the victim and unfair prejudice to any party. (Evidence of the victim’s reputation is admitted only if the victim placed it in controversy).2. Criminal cases: If offered to prove the defendant was not involved in the sex crime, to prove consent, if offered by the prosecution, OR if exclusion would violate the defendant’s Constitutional rights.Priority: HIGH

Question 14

_Character Evidence_How may character evidence be proven?

Answer 14

By Reputation or Opinion — In all instances.By Specific Acts/Instances — Only allowed: a) on Cross-Examination of a character witness; OR b) if “Character in Issue”.*Note: Special rules apply to evidence of a Victim’s Character in Sex-Offense cases.Priority: HIGH

Question 15

Prior Bad Acts may be admissible for NON-PROPENSITY purposes, such as?

Answer 15

Proving:* Motive;* Identity;* Absence of mistake or accident;* Intent;* A common plan or scheme;* Opportunity;* Preparation; OR* Knowledge.Priority: HIGH

Question 16

What must a proponent show in order to offer Prior Bad Acts as evidence?

Answer 16

1. That the prior act was committed by a preponderance of the evidence (vague references are insufficient);2. That its probative value substantially outweighs the danger of unfair prejudice; AND3. Proper notice (in criminal cases).Priority: HIGH

Question 17

When is evidence of a person’s Habit or an organization’s Routine Practice admissible?

Answer 17

To prove that on a particular occasion the party acted in accordance with the habit or routine practice.*This may be admitted regardless of corroboration or eyewitnesses.Priority: HIGH

Question 18

Extrinsic Evidence of Prior Inconsistent Statements are only admissible to impeach, if it’s what?

Answer 18

1. Relevant to a material issue at trial (other than the witness’s credibility);AND2. A proper foundation is shown (witness is given a chance to explain/deny, and the adverse party is given a chance to examine the witness about it).*BUT, the above limitation is NOT applicable to statements by a party opponent.Priority: Medium

Question 19

Evidence of prior convictions may be admissible to attack a witness’s character for truthfulness in which instances?

Answer 19

1. Prior felony or misdemeanor convictions involving dishonesty – a dishonest act or false statement.2. In Felonies that DO NOT involve dishonesty when: * The witness is not a criminal defendant (criminal/civil); * In a criminal case where the witness IS a defendant, BUT the probative value outweighs the prejudicial effect.*A felony is a crime punishable by death or imprisonment over 1-year.*Evidence of a conviction is NOT admissible if it has been pardoned/annulled on a finding of innocence.Priority: HIGH

Question 20

In what circumstance may a witness’s credibility be attacked on cross-examination with specific instances of conduct (i.e. prior bad acts)?

Answer 20

Only when:The conduct is probative of the witness’s character for truthfulness or untruthfulness.**BUT, extrinsic evidence is NEVER admissible to attack/support such instances of a witness’s credibility.Priority: HIGH

Question 21

How can a witness’s Character for Truthfulness (credibility) be attacked or supported?

Answer 21

By:* Reputation testimony about the witness’s character for truthfulness or untruthfulness in the community; OR* Opinion testimony about the witness’s character.**Evidence of truthful character is only admissible AFTER the witness’s character for truthfulness has been attacked.Priority: Medium

Question 22

May a witness’s ability to observe, remember, or relate facts accurately be attacked on impeachment?

Answer 22

YES, a witness may be impeached on these issues on:* cross-examination; OR* with extrinsic evidence.Priority: Medium

Question 23

How may a hearsay declarant’s credibility be impeached (when a hearsay statement has been admitted into evidence)?

Answer 23

By any evidence that would be admissible if the declarant had testified as a witness.*A court may admit evidence of inconsistent statements/conduct regardless of when the statement occurred or if the declarant had the opportunity to explain or deny it.Priority: Medium

Question 24

When is Refreshing a Witness’s Recollection using a document permitted?

Answer 24

When:1. The witness once had a personal knowledge of the matter,2. But is unable to recall the matter when testifying.**Only the opposing party may offer the document into evidence.Priority: HIGH

Question 25

When may a court take Judicial Notice?

Answer 25

When indisputable facts are either:* Commonly known in the community; OR* Readily capable of verification and cannot be reasonably questioned.Priority: Medium

Question 26

What is a Lay Witness?When is Lay Witness testimony admissible?

Answer 26

Any person who gives testimony in a case that is NOT called as an expert. Their testimony is admissible if they are competent to testify (competency is presumed under the FRE).They must take an oath to tell truth and only testify to matters of personal knowledge.Priority: HIGH

Question 27

When may a Lay Witness offer an opinion?

Answer 27

If it is:1. Rationally based on the witness’s perception;2. Helpful to clearly understand the testimony or to determine a fact in issue;AND3. Not based on scientific, technical, or other specialized knowledge.Priority: HIGH

Question 28

When is Expert Witness testimony permitted?

Answer 28

When the:1. Witness is qualified as an expert;2. Testimony is helpful to the trier of fact;3. Testimony is based on sufficient facts/data;4. Testimony is based on reliable principles/methods; AND5. Witness reasonably applied the principles/methods to the facts of the case.Priority: HIGH

Question 29

_Expert Testimony_What is reliability based on?

Answer 29

On the methodology’s:1. Testability;2. Publication & Peer Review;3. Error Rate;4. Standards & Controls; AND5. Whether it’s generally accepted in the field.Priority: HIGH

Question 30

What is Hearsay?

Answer 30

1. An out of court statement,2. That is offered to prove the truth of the matter asserted.*Hearsay is ONLY admissible if it falls under an exception.*A statement is an oral/written assertion or nonverbal conduct if intended as an assertion (it MUST assert something).Priority: HIGH

Question 31

What is Non-Hearsay?

Answer 31

An out of court statement that is offered to prove something other than the truth of the statement. It IS admissible.Non-Hearsay includes:1. Verbal acts of independent legal significance.2. Statements to show the effect on the listener.3. A prior inconsistent statement used to impeach.4. Circumstantial evidence of the speaker’s state of mind.Priority: HIGH

Question 32

What is a Statement by a Party Opponent?(deemed non-hearsay under the FRE)

Answer 32

1. Any statement offered against an opposing party,2. That either: * Was made by the party in an individual or representative capacity; * Is adopted or believed to be true; * Was made by an authorized person; * Was made by the party’s agent or employee; OR * Was made by the party’s co-conspirator in furtherance of the conspiracy.Priority: HIGH

Question 33

When are Prior Statements by a declarant witness deemed Non-Hearsay?

Answer 33

1. If the declarant testifies;2. If the declarant is subject to cross examination; AND3. If the prior statement was: * Inconsistent with their testimony and given under penalty of perjury; * Identifies a person as someone they perceived earlier; OR * Is consistent with the declarant’s testimony and is offered to rebut that they are lying or to rehabilitate their credibility when attacked.Priority: HIGH

Question 34

_Hearsay Exceptions_What is a Present Sense Impression?

Answer 34

A statement describing an event made by the declarant;* While observing the event; OR* Immediately thereafter.Priority: HIGH

Question 35

_Hearsay Exceptions_What is an Excited Utterance?

Answer 35

A statement:1. Relating to a startling event or condition,2. Made while the declarant was under the stress of excitement that the event/condition caused.Priority: HIGH

Question 36

_Hearsay Exceptions_Business Records are an exception to the Hearsay rule. When are they admissible?

Answer 36

If it is:1. A record of events, conditions, opinions, or diagnoses;2. Kept in the regular course of business;3. Made at or near the time of the matter described;4. Made by a person with knowledge of the matter;5. The regular practice of the business to make the record;AND6. The opponent party does not show a lack of trustworthiness in making the record.Priority: HIGH

Question 37

_Hearsay Exceptions_Are Statements made for Medical Diagnosis or Treatment an exception to Hearsay rule?

Answer 37

YES, when:1. It’s made for and reasonably pertinent to a medical diagnosis, AND2. It describes medical history or symptoms (past or present).Priority: HIGH

Question 38

_Hearsay Exceptions_Are Statements of Mental, Emotional, or Physical Conditions an exception to the Hearsay rule?

Answer 38

Yes, the declarant’s then existing state of mind (motive, intent, or plan) OR their emotional, sensory, or physical condition are exceptions to the Hearsay rule.HOWEVER:Statements of memory or belief offered to prove a fact believed or remembered are NOT admissible, unless it relates to the validity/terms of the declarant’s will.Priority: HIGH

Question 39

_Hearsay Exceptions_What is a Dying Declaration?In what cases may it be offered?

Answer 39

It is a Hearsay exception, and is admissible when:1. The declarant is unavailable;2. The declaration was made under a sense of impending death;AND3. Was about the circumstances that put the declarant in the position of impending death.It may be used in civil cases and criminal homicide cases.Priority: Medium

Question 40

_Hearsay Exceptions_When is a declarant deemed Unavailable?

Answer 40

If he:* Is exempted due to privilege;* Refuses to testify despite a court order;* Testifies that he doesn’t remember the matter;* Can’t be present to testify due to death or illness; OR* He is beyond the reach of the court’s subpoena.Priority: Medium

Question 41

_Hearsay Exceptions_What records are admissible under the Government or Public Records hearsay exception?

Answer 41

1. Policies and practices of a public office.2. Observations in accordance with duties by law (except police reports in criminal cases).3. Factual findings from a legally authorized investigation, BUT only in: * Civil cases; and * Against the government in criminal cases.Priority: Medium

Question 42

_Hearsay Exceptions_When is a Past Recollection Recorded admissible?

Answer 42

If:1. The witness had personal knowledge of the events at one time;2. The writing was made/adopted by the witness;3. The writing was made while the events were still fresh;4. The writing is accurate;AND5. The witness can no longer remember the event.Priority: Medium

Question 43

_Right to Confront Witnesses_When does an out-of-court statement violate a Defendant’s 6th Amendment rights?

Answer 43

When:1. The statement is testimonial;2. The declarant is unavailable to be cross-examined at trial;AND3. The defendant didn’t have an opportunity to cross-examine the declarant before trial.**Exceptions: dying declarations, wrongdoing by a defendant.Priority: HIGH

Question 44

What types of statements are testimonial in nature?

Answer 44

1. Statements made to grand juries;2. Affidavit or Certified Report with forensic lab results; AND3. Statements made to police whose primary purpose is to collect testimony to be used at a later trial.(It is NOT testimonial if used to assist police in an emergency.)Priority: HIGH

Question 45

What is Spousal Immunity?

Answer 45

A witness-spouse in a valid marriage may refuse to testify against his/her spouse in a criminal case.*Spousal Immunity DOES NOT apply in civil cases.Priority: Medium

Question 46

What is the privilege of Confidential Marital Communications?

Answer 46

Communications between spouses are privileged if:1. Made during the course of a valid marriage; AND2. Were intended to be confidential.*Applies in both civil and criminal cases.Priority: Medium

Question 47

In what circumstances do the Spousal Privileges (spousal immunity and confidential marital communications) NOT apply?

Answer 47

1. In cases between the spouses.2. When a spouse commits a crime against the other spouse or their children.Priority: Medium

Question 48

What is the Attorney-Client Privilege?

Answer 48

It protects confidential communications between an Attorney and Client from disclosure if the communication:1. Was confidential; AND2. Made to facilitate legal services.*The client holds the privilege.Priority: Medium

Question 49

When does the Attorney-Client Privilege NOT apply?

Answer 49

When:* Legal services are sought to further a crime or fraud;* There is litigation related to the breach of duty between attorney and client; OR* Jointly represented clients are subsequently involved in a civil litigation against each other.Priority: Medium

Question 50

What is the Physician-Patient Privilege?

Answer 50

It protects confidential communications between a Physician and Patient from disclosure if the communication:1. Was confidential; AND2. Made for the purpose of medical diagnosis or treatment.*The patient holds the privilege (not the physician).Priority: HIGH

Question 51

When is the Physician-Patient Privilege recognized?(state vs. federal)

Answer 51

Most States: DO recognize the privilege_Federal Courts_: DO NOT recognize the privilege*Exception: Federal courts will recognize it when:1. it’s a civil case;2. a claim/defense is based on state law; AND3. state law recognizes a physician-patient privilege.Priority: HIGH