Evidence

Question 1

Logical Relevance

Answer 1

Evidence is relevant if it tends to make the existence of any fact of consequence more or less probable than it would without the evidence. Relevant evidence may be (but is not always) admissible. Irrelevant evidence is inadmissible.

Question 2

Discretionary Exclusion of Relevant Evidence

Answer 2

A court may exclude logically relevant evidence if its probative value is substantially outweighed by the danger of 1) unfair prejudice; 2) confusion of the issues; 3) misleading the jury; 4) waste of time; and 5) undue delay.

Question 3

Witness competency and excluding witnesses

Answer 3

Testifying witnesses must be competent, meaning they must satisfy requirements of basic reliability. Witnesses are generally presumed to be competent. To be competent, witness must have (“PMCS”):
1) personal knowledge – Witness’s testimony must be based on their own perceptions; 2) Memory - witnesses must have the ability to remember; 3) Communication - witnesses must be able to relay their perceptions either directly or through an interpreter; and 4) Sincerity - Witness must take an oath or affirm to tell the truth.

Question 4

Lay opinions

Answer 4

lay opinion testimony is admissible if it is: 1) rationally based – opinion is rationally based on W’s perception; 2) helpful – opinion is helpful to the trier of fact; 3) not expert – not based on scientific, technical, or other specialized knowledge

Question 5

Expert opinion

Answer 5

expert opinion testimony is admissible if: 1) helpful – must be helpful to the trier of facts; 2) qualified – expert must possess special knowledge, skill, experience, education, or training; 3) reasonable certainty – expert must believe in her opinion to a reasonable degree of certainty; 4) proper factual basis – opinion must be based on facts; 5) reliable principals relied upon - scientific evidence such as per tested and capable or retesting, published, has low error rate, and reasonably accepted in field of study.
Experts cannot give opinion as to D’s mental state in a criminal trial if it is an element of a crime or defense.

Question 6

Dying Declaration

Answer 6

a hearsay statement is admissible if the declarant made the statement under the belief of impending death. Requirements: 1) the declarant is currently unavailable; 2) the out-of-court statement was made under the belief of impending death; 3) the statement was made regarding the cause or circumstances surrounding the belief of impending death

Question 7

Spousal communication privilege

Answer 7

Applies to criminal cases only. A person whose spouse is a D in a criminal case cannot be: a) called as a witness by the prosecution, or b) compelled to testify against his spouse in a criminal matter. Only the witness spouse may invoke the privilege (D cannot prevent). Privilege can only be invoked during marriage.

Question 8

Martial communication privilege

Answer 8

Applies to civil and criminal cases. Confidential communications made during the marriage are privileged in any later proceeding and applies even if spouses divorce after confidential communication was made. Either spouse may invoke the privilege. A spouse can lose the privilege if he breaks confidentiality by telling a third party, but the other spouse still retains privilege. Must be an actual communication and does not apply to acts.
Exceptions – 1) suits between spouses; 2) suits in which one spouse is charged with a crime or a tort against children; 3) suits in which spouses are co-defendants

Question 9

Which 3 main hearsay exceptions require “unavailability?”

Answer 9

1) former testimony; 2) statements against interest; 3) dying declaration; statements of personal or family history; statements offered against party procuring declarant’s unavailability.

Question 10

Past Recollection Refreshed

Answer 10

Use of documents to refresh W’s memory during testimony. Anything can be used to refresh memory. W cannot read aloud but May read and then continue unassisted. Opponent may inspect and offer into evidence. Document cannot be read into evidence.

Question 11

Recorded Recollection

Answer 11

1) W once had knowledge of the record’s subject matter;
2) W’s memory is insufficient to testify as to the record’s contents (present recollection refresh wasn’t enough)
3) Record was made or adopted by W when the matter was fresh in their memory; and
4) Record accurately reflects W’s knowledge