Evidence

Question 1

Rule 403

Answer 1

excludes evidence if the probative value is substantially outweighed by
1. Unfair prejudice;
2. Confusion of the issues;
3. Misleading the jury;
4. Undue delay/waste of time; or
5. Needless presentation of cumulative evidence

Question 2

Subsequent remedial measures

Answer 2

Inadmissible
- to prove liability, fault, or that product was defective
Admissible
-to impeach, show feasibility of repair, or prove ownership/control if in dispute

Question 3

Compromise offers or negotiations

Answer 3

inadmissible to prove
liability
Amount of offer
or to impeach;

includes conduct or statements made in conjunction with the offer

Question 4

Offers to pay medical expenses

Answer 4

inadmissible
-to prove liability;

admissible
-conduct or statements
-made in conjunction with the offer are admissible

Question 5

Plea negotiations

Answer 5

no contest, withdrawn guilty pleas and statements made
while negotiating plea bargain are inadmissible;

unless another statement was already admitted and fairness requires

Question 6

Liability insurance

Answer 6

whether or not one is insured is inadmissible to prove liability/fault;
admissible to show agency, ownership/control, or witness bias (impeachment)

Question 7

Sexual conduct of victim

Answer 7

evidence of sexual behavior of the victim (V) is generally inadmissible
* Criminal case:
Except to prove consent
or another party is source of the evidence
* Civil case:
Except if probative value substantially outweighs harm to
V/prejudice to a party

Question 8

Sexual conduct of Defendant

Answer 8

admissible in sexual assault/molestation case
unless barred by rule 403

Question 9

CHARACTER EVIDENCE(Civil case)

Answer 9

inadmissible to prove conduct in conformity with the character trait
◦ Exceptions
-character is an essential element to a claim or defense
(e.g., defamation)
-proving past sexual assault/molestation in a sexual
assault/molestation case
-show plaintiff’s character for violence as proof of defendant’s
reasonableness in self-defense claim in assault or battery action
-Prior bad acts
-only admissible for (MIMIC)
motive, intent, absence of mistake, identity, common plan

Question 10

Character evidence (Criminal case)

Answer 10

Character of defendant inadmissible to prove propensity
Exceptions
♦ D may introduce reputation or opinion evidence of her good
character
♦ Prosecution may rebut D’s evidence with character evidence about
the same trait

Character of victim
♦reputation or opinion of victim character is admissible to prove a defense
♦ Prosecution may rebut with reputation, opinion or specific acts

Specific (bad) acts
♦inadmissible if to prove conforming conduct (propensity)
♦ Admissible if to show motive, intent, absence of mistake, identity,
common plan(MIMIC), if prosecutor gives notice;
♦ Admissible as character evidence if essential element of the crime
or defense

Question 11

impeachment crime 10 years OR LESS of confinement or release

Answer 11

• Criminal defendant probative value outweighs prejudicial effect
• other witness
  subject to 403

Question 12

impeach with crime of dishonesty or false statement

Answer 12

♦ dishonesty or false statement Always allowed(misdemeanor or felony)
No dishonesty or false statement must be punishable by death or over 1 year

Question 13

impeach with crimes over 10 years

Answer 13

◦ if >10 years, probative value must substantially outweigh prejudice
+ give notice

Question 14

Authentication and self authentication

Answer 14

Physical evidence must be authenticated by sufficient evidence that it is what it proports to be
-physical objects
- documents
-oral statements
— must authenticate identity of speaker

self authenticating records(certified public official records)

Question 15

Impeachment

Answer 15

may attack witness Character for untruthfulness with reputation or opinion
-Can inquire about specific acts on cross but extrinsic evidence not allowed
if W denies act must accept their answer

Question 16

Habit

Answer 16

admissible to prove conforming conduct with a particular habit;
habit is a consistent repeated response to a specific situation (more specific than character)

Question 17

Judicial Notice

Answer 17

fact is not subject to reasonable dispute because:
o Generally known within the community, or
o Can be accurately and readily determined from reliable sources

Civil: Must ACCEPT
Criminal: May accept

Question 18

Best Evidence Rule

Answer 18

When attempting to prove the contents of a writing, recording, or photograph
* The original document or a reliable duplicate must be produced

if original is unobtainable, lost or destroyed, or
opposing party refuses to produce it,
or it regards a collateral matter

Question 18

Best Evidence Rule Alternative proof(summaries )

Answer 18

allowed for public records, voluminous records and party admission

must make original documents available at a reasonable time and place

Court may choose to require proponent to produce originals

Question 18

Parole evidence rule

Answer 18

Extrinsic evidence cant contradict if integrated

extrinsic evidence allowed to attack validity of terms or explain terms

Partial integration—contains some but not all agreed upon terms
• Extrinsic evidence that adds to writing admissible
• Evidence that contradicts not admissible

Question 19

witness competence and impeachment

Answer 19

personal knowledge plus oath to testify truthfully
- any party may impeach a witness

Question 20

Prior inconsistent statement

Answer 20

Prior Inconsistent Statements inconsistent with testimony
* Extrinsic evidence only admissible if W given opportunity to explain or deny,

unless witness unavailable or opposing party
impeaching a hearsay declarant, if statement qualifies as an
opposing party statement, or
if justice so requires ( statement discovered after W unavailable)
* statement made under oath at a prior event (e.g., hearing), it
might be admissible for substance/truth and not limited to
impeachment purposes

Question 21

Methods of impeaching witness

Answer 21

Character or criminal record
prior inconsistent statement
Bias—always relevant to show W has motive to lie, (majority) after laying a foundation
4. Sensory deficiency—show W is physically or mentally impaired or circumstances interfered
5. Hearsay declarant—okay to impeach as if on the stand; no opportunity to explain required

Question 22

rehabilitation

Answer 22

can rebut impeachment through prior consistent statement or evidence of good character

truthfulness only if character for honesty was attacked

Question 23

Present recollection refreshed

Answer 23

may show witness document but witness must testify without it from memory
document not admissible but other side may inspect

Question 24

past recollection recorded

Answer 24

Hearsay exception
1witness once had knowledge
made record while fresh in their mind
accurately reflects witness knowledge
2but now has insufficient recollection of to testify even after reading it:
may be read into evidence, but received as an exhibit only
if offered by an adverse party

Question 25

Lay opinion testimony

Answer 25

—generally not allowed, unless:
* To prove common sense impressions e.g., appearance, intoxication, speed, handwriting
* based on W’s perception and helpful to clarify understanding of the issue

Question 26

Expert witness

Answer 26

allowed if scientific, technical, or specialized testimony will help the trier of fact, and:
* Qualified by knowledge, skill, training, experience, or education;
* Based on sufficient facts or data personally observed or made aware of;
* Product of reliable methods reasonably relied on by experts in the field;
* Applied the methods and principles reliably to the facts; and
* Reasonably certain in her opinion (probably true, no guessing).
* May embrace ultimate issue but not criminal defendant’s mental state

Question 27

Spousal immunity

Answer 27

spouses may not be required to testify against each other in criminal case
* Witness spouse is the holder (majority) and may choose to testify
* Applies to events before or during marriage; expires upon divorce or annulment
2. Marital communication during marriage protected in civil or criminal cases
* Both spouses hold the privilege (majority); only communicating spouse holds (minority)
* Applies to communications during marriage; does not expire
3. Exception: Spouses suing each other or when the crime charged is against the spouse/child

Question 28

attorney client privilege

Answer 28

—protects communications made during or when seeking the relationship
1. Client is the holder; only the client (or e.g., a guardian) can waive; lasts indefinitely, even after
client dies
2. Attorney’s work product is protected
3. Exception if services sought for future crime/fraud or if client in dispute with attorney

Question 29

PHYSICIAN-PATIENT privilege

Answer 29

protects statements made for purpose of obtaining medical treatment
(based on state law; does not apply to cases brought in federal court where state law does not
apply)
1. Patient is the holder; if attorney requests the consultation, limited to treatment
2. Exceptions:
* Information revealed does not relate to treatment;
* Patient’s physical condition at issue;
* Made as part of crime or tort;
* A dispute exists between physician and patient; or
* Patient waived by contract.

Question 30

PSYCHOTHERAPIST-PATIENT privilege

Answer 30

protects statements made to psychotherapist/licensed social
worker
1. Patient is the holder
2. Exceptions—if result of court order, mental condition at issue or at commitment proceeding

Question 31

unknown eavesdropping

Answer 31

Eavesdropper does not destroy the privilege but some courts allow eavesdropper to testify