Evidence

Question 1

Logical Relevance

Answer 1

Probative. and material

Question 2

Legal Relevance

Answer 2

Court may exclude evidence if its probative value is substantially outweighed by: unfair prej, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence

Question 3

Subsequent remedial measures

Answer 3

Not admissible to prove negligence, defective product design or culpable conduct

Question 4

Subsequent remedial measures admissible

Answer 4

to show agency, ownership, or control of property for impeachment purposes

Question 5

compromise offers and settlement negotiations

Answer 5

Not admissible to: (1) prove or disprove the validity or amount of a disputed claim or (2) impeach a witness by prior inconsistent statement or contraction.

*Evidence of settlement is admissible to impeach a witness on the ground of bias

Question 6

Offers to pay medical expenses

Answer 6

not admissible to prove liability for injuries. Conduct or statements accompanying the offer to pay are admissible (factual admissions accompanying an offer to pay are admissible)

Question 7

Guilty Pleas

Answer 7

not admissible: withdrawn guilty pleas, no contest pleas, statements made while negotiating with prosecutors, and statements made during plea negotiations

Question 8

when guilty pleas admissible

Answer 8

If fairness dictates or for perjury hearings

Question 9

Liability insurance

Answer 9

not admissible to prove whether the person acted negligently or otherwise wrongfully, but may show bias, prejudice, proving agency, ownership, or control

Question 10

character evidence

Answer 10

Character evidence is evidence of a person’s character or a person’s specific character trait. Three forms: reputation, opinion, specific instanves

Question 11

Character evidence in civil cases

Answer 11

Not admissible for propensity purposes unless character is an essential element of a claim or defense OR the case is based on the defendant’s sexual misconduct

Question 12

Character evidence in a criminal case

Answer 12

Prosecution CANNOT introduce evidence of a defendant’s bad character to prove that the defendant has the propensity to commit a crime

Question 13

Character evidence in criminal case raised by D

Answer 13

D may open the door and present positive character evidence as long as it is pertinent to the crime charged and through reputation or opinion testimony

Question 14

Prosecution rebutting D’s character evidence

Answer 14

Can rebut by calling its own character witness (who is limited to opinion or reputation testimony) or cross examining d’s character witness (Qs about specific instances allowed)

Question 15

Evidence of victim’s character in criminal cases

Answer 15

A criminal defendant may introduce reputation or opinion testimony of the victim’s character if it is relevant to one of the defenses asserted. Prosecution may rebut with evidence that D has same character trait or victim has a relevant positive trait

Question 16

Sexual Evidence in civil cases involving sexual misconduct

Answer 16

Evidence offered to prove a victim’s sexual behavior or misconduct may be admissible if its probative value substantially outweighs the danger or harm to the victim and unfair prejudice to any party

Question 17

Character Evidence in Homicide Cases

Answer 17

Prosecution may admit evidence of a victim’s character for non-violence only if the defendant claims the victim was the aggressor

Question 18

When specific instances of conduct are allowed - MIMIC

Answer 18

Specific instances of conduct are generally NOT admissible to show propensity, BUT are admissible to show: motive, intent, absent of mistake, identity, or common plan or preparation

Question 19

MIMICS are allowed if:

Answer 19

(1) sufficient evidence to support a jury finding that the defendant committed the prior act AND the probative value of the specific instances of conduct is NOT substantially outweighed by the danger of unfair prejudice to the jury

Question 20

Habit

Answer 20

may be admitted to prove that on a particular occasion, person acted in accordance. Court may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness

Question 21

Impeachment for Character

Answer 21

A witness’s credibility may be attacked by introducing character evidence of the witness’s untruthfulness through reputation or opinion testimony. NO BOLSTERING. On cross, creds may be attacked with specific instances if (1) specific instance regards the truthfulness of the witness; (2) there is a good faith belief in the prior misconduct; AND (3) the specific instance does NOT involve an arrest or a consequence of an arrest

Question 22

Extrinsic evidence and impeaching character

Answer 22

NOT admissible !!

Question 23

Impeachment by Prior Conviction

Answer 23

felony or misdemeanor involving dishonest admissible (subject to ten year restriction), prior felony not involving dishonesty in if it is legally relevant

Question 24

10 year limitation

Answer 24

If more than 10 years has elapsed since conviction or release (whichever is later) of ANY crime, the prior conviction is subject to a reverse legal relevance test. Party introducing has to show the probative value substantially outweighs danger of unfair prejudice

Question 25

Evidence of prior conviction is not admissible if the conviction was:

Answer 25

pardoned, annulled, or later found innocent

Question 26

Impeachment with PIC

Answer 26

A witness’s credibility may be attacked by introducing the witness’s prior inconsistent statements. Extrinsic evidence may only be introduced if the witness is given an opportunity to explain or deny the prior inconsistent statement. Extrinsic evidence of a prior inconsistent statement CANNOT be used to attack creds re a collateral matter

Question 27

Impeaching for Sensory

Answer 27

may be attacked by showing witness has a deficiency in ability to perceive, recall, or relate information that is NOT collateral

Question 28

Attacking a hearsay declarant’s credibility

Answer 28

When a hearsay statement has been admitted in evidence, the declarant’s credibility may be attacked, and then supported, by any evidence that would be admissible for those purposes if the declarant had testified as a witness. Court may admit evidence of the declarant’s inconsistent statement or conduct, regardless of when it occurred or whether the declarant had an opportunity to explain or deny it. If the party against whom the statement was admitted calls the declarant as a witness, the party may examine the declarant on the statement as if on cross

Question 29

Lay witness testimony

Answer 29

allowed if rationally based on the witness’s perception, helpful to clearly understanding the witness’s testimony or to determining a fact in issue AND NOT based on scientific, technical, or other specialized knowledge

Question 30

Expert testimony

Answer 30

may testify if qualified by possessing sufficient knowledge, skill, experience, training, or education. testimony will help the trier of fact understand the evidence, based on sufficient facts or data, testimony is product of reliable methods and the expert has reliably applied the principles and methods to the facts of the case

Question 31

What can’t expert give opinion on

Answer 31

whether a criminal D had requisite mental state for the crime charged

Question 32

spousal immunity

Answer 32

a witness in a valid marriage may refuse to testify against her spouse in ANY criminal proceeding (including grand jury). Witness spouse holds

Question 33

confidential marital communications

Answer 33

communications between spouses are privileged if: made during the course of a valid marriage AND intended to be confidential

Question 34

differences in spousal/marital comms

Answer 34

Marital comms held by both spouses, applies to both criminal and civil proceedings and extends beyond the end of the marriage

Question 35

Atty-client privilege when client is a corp

Answer 35

some states limit to the control group members, under federal law, atty client priv extends to non-control group members if they are communicating to seek legal advice for the corp.

Question 36

when does atty-client priv not apply

Answer 36

legal services sought to further crime or fraud, litigation involving a dispute between the atty and client, or co-clients are later adverse parties involved in civil litigation against each other

Question 37

atty client priv and disclosure

Answer 37

intentional disclosure of confidential communications to a third party is a waiver, inadvertent disclosure does not waive if client took reasonable steps to prevent and rectify

Question 38

Authentication broad statements

Answer 38

All tangible evidence must be authenticated. Tangible evidence is any evidence not presented as oral or verbal testimony. Authentication requires that a party show that the time being introduced as evidence is what the party claims it to be.

Question 39

Authentication of physical evidence

Answer 39

witness testimony or chain of custody

Question 40

Authentication of documentary evidence

Answer 40

stipulation, witness testimony, or handwriting verification

Question 41

Handwriting verification

Answer 41

an expert witness or trier of fact can compare, or a non-expert witness with personal knowledge of the handwriting in question can verify the handwriting. non-expert cannot become familiar with the handwriting to prepare for litigation

Question 42

oral statement authentication

Answer 42

may be authenticated by any person who has head the person’s voice through any means. It is irrelevant whether the voice was heard in preparation for litigation

Question 43

Best evidence rule

Answer 43

A party MUST provide the original document or an accurate duplicate when: the contents of the document are at issue, OR the witness is relying on the document when testifying

Question 44

NON-HEARSAY STATEMENTS

Answer 44

Verbal acts of independent legal significance, effect on the listener, declarant’s mental state or state of mind AND impeachment purposes

Question 45

ADMISSIBLE NON-HEARSAY

Answer 45

Prior inconsistent statements are admissible for substantive purposes if: (1) declarant is testifying at trial and is subject to cross; (2) the statements were previously made under oath; and (3) prior statements are inconsistent. Not made under oath? Cool, can be used for impeachment.

Prior consistent statements are admissible to rebut a claim of fabrication if declarant is testifying and subject to cross and the prior consistent statement was made before the declarant had motive to fabricate

Prior statements of identification admissible for substantive purposes if declarant is testifying at trial and subject to cross

Admissions by a party opponent when: (1) adoptive admissions; (2) vicarious admissions

Question 46

HEARSAY WHEN D UNAVAILABLE

Answer 46

dying declaration, statement against interest, former testimony, forfeiture by wrongdoing

Question 47

Former testimony hearsay exception

Answer 47

admissible if declarant unavailable, statement was prior testimony given at a trial hearing or deposition AND opposing party had an opportunity or similar motive to develop the testimony through cross or direct (so grand jury does NOT qualify)

Question 48

Dying Declaration

Answer 48

Civil and homicide only: (1) d unavailable; (2) believed her death was imminent and (3) pertains to cause or circumstances of death

Question 49

Statement against interest

Answer 49

(1) d unavail (2) against pecuniary, penal, or proprietary interest; and (3) a reasonable person would not have said it unless he believed it to be true

Question 50

Present Sense

Answer 50

Statement made by the declarant in which she describes an event as it takes place or immediately thereafter

Question 51

Excited utterance

Answer 51

Concerns a startling event made by the declarant when the declarant is under the stress of the event

Question 52

State of Mind

Answer 52

A statement of a declarant’s then existing state of mind or emotional, sensory, or physical condition is admissible to prove the declarant’s state of mind or conduct.

Question 53

Medical Treatment

Answer 53

statement of person’s past or present condition is admissible so long as it is made for the purpose of medical diagnosis or treatment

Question 54

Recorded recollection

Answer 54

The record may be read into evidence if the witness cannot recall events or information provided that: (1) the record is about a matter the witness once had personal knowledge of; (2) the record was made or adopted by the witness when the matter was fresh in the witness’s mind; (3) the record accurately reflects the witness’ personal knowledge AND (4) the witness can no longer recall the events or information well enough to testify, even after reviewing the writing while on the stand. ONLY OPPOSING COUNSEL CAN DECIDE TO ENTER IT AS AN EXHIBIT

Question 55

Present Recollection Refreshed

Answer 55

Allows a witness to glance at almost any item to refresh memory on the stand. Item taken away and NOT admitted into evidence

Question 56

Business Records

Answer 56

A business record is admissible as a valid exception to the hearsay rule if the record is: (1) kept in the course of regularly conducted business AND (2) made by a person with knowledge of the matter at or near the time of the matter’s occurence

Question 57

Confrontation Clause

Answer 57

The Confrontation Clause guarantees a person accused of a crime the right to confront witnesses against him in a criminal action.

Question 58

Confrontation Clause 2

Answer 58

The use of an out of court statement (even if it falls under a valid hearsay exception or testimonial privilege) violates the defendant’s constitutional rights if: (1) proceeding is criminal action; (2) statement is testimonial; (3) declarant unavailable to be cross examined and (4) defendant did NOT have an opportunity to cross-examine the declarant at a proceeding prior to trial

Question 59

7 ways to impeach

Answer 59

prior inconsistent statement, bias, conviction of a crime, bad acts, reputation or opinion for untruthfulness, sensory deficiencies, contradiction