EVIDENCE

Question 1

Explain the general rule re subsequent remedial measures

Answer 1

Subsequent remedial measures are typically inadmissible to prove: negligence, culpable conduct, product defect or need for a warning. BUT there are exceptions!

Question 2

What are the exceptions to the general rule for subsequent remedial measures?

Answer 2

If one of these matters is at issue, the evidence may be admissible to show:
1. Ownership (if disputed)
2. Control
3. Feasibility (of a safer condition or design) - i.e. to rebut a claim that a precaution was not feasible - only admissible if D disputes it.
4. To prove that opposing party has destroyed evidence.

Question 3

What are the requirements for someone being a witness?

Answer 3

Every person is competent to be a witness as long as:
1. They have personal knowledge of the matter about which they are to testify
2. The give an oath/affirmation to testify truthfully

SO a witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. AND before testifying, every witness is required to declare that they will testify truthfully, by oath or affirmation administered in a form calculated to awaked the witness’s conscience and impress the witness’s mind with the duty to do so.

Question 4

Can children be witnesses?

Answer 4

Yes!
Competency of a child = case by case basis. Depends on capacity and intelligence of the particular child – as determined by a judge. A child’s age is irrelevant to whether their testimony is probative.

Question 5

Is a witness’ bias relevant for impeachment?

Answer 5

YES! A witness’ bias, interest, partiality or possible corruption is always relevant for impeachment because the jury or fact finder is entitled to all evidence that will help in its determination of accuracy and truth in a witness’ testimony. Evidence that a witness is biased or has an interest in the outcome of a suit tends to show that the witness has a motive to lie. SO a witness may always be impeached by extrinsic evidence of bias or interest, provided a proper foundation is laid.

Question 6

What are the impeachment methods that involve impeaching a witness with facts that are specific to the current case?

Answer 6

1. Prior inconsistent statements
2. Bias
3. Sensory deficiencies
4. Contradiction

Question 7

What are the impeachment methods that involve impeaching a witness with their general bad character for truthfulness?

Answer 7

1. Opinion or reputation evidence of untruthfulness
2. Prior convictions
3. Bad Acts

Question 8

What is the best evidence rule and when does it apply?

Answer 8

If a party seeks to prove the contents of a writing/recording/photo, the party must either:
(1) produce the writing/recording/photo
(2) provide an acceptable excuse

The best evidence rule only applies when the party is seeking to prove the contents of a writing/rec/photo which arises when:
1. the writing is a legally operative document (i.e.e the writing itself creates rights and obligations - e.g. deeds, mortgages, contracts); OR
2. the witness’s knowledge concerning a facts results solely from reading about them in the writing/seeing photo/video. (i.e. they did NOT perceive the event personally).

THERE ARE EXCEPTIONS!

Question 9

When does the best evidence rule not apply?

Answer 9

When a witness has personal knowledge of the facts in the writing and the facts to be proved.

Question 10

Under the best evidence rule, when will a party be excused from producing the original? What is the standard of proof needed to prove this?

Answer 10

1. Original is in possession of an adversary who after due notice, fails to product original
2. Has been lost or destroyed without bad faith
3. Cannot be obtained with legal process, e.g. in possession of a 3rd party outside of jurisdiction

Standard of proof: the preponderance of the evidence

IF this applies - the party can instead prove the contents of the evidence by ANY type of secondary evidence (e.g. handwritten copies, notes, oral testimony).

Question 11

What are the exceptions to the best evidence rule?

Answer 11

1. Voluminous records (provided via summary/chart where more convenient BUT proponent must make originals/duplicates available for inspection/copying, court may order them to be produced in court).
2. Certified copies of public records
3. Collateral documents (court determines doc is unimportant to issues in the case)
4. Testimony/written admission of opponent (testimony/deposition/written admission by opponent about writing’s contents is admissible)

Question 12

What is the rule on duplicates in evidence?

Answer 12

A duplicate is admissible to the same extent as an original unless:
1. there is a genuine question about the authenticity of the original
2. it would be unfair to admit the duplicate

In these cases - you need to see the original

NB - handwritten copies are not duplicates, they are secondary evidence and admissible only if the original or duplicate is unavailable.

Question 13

What is a duplicate for the purposes of evidence?

Answer 13

It is an exact copy of the original made by mechanical means (e.g. photocopy or carbon copy).

Question 14

What is the business records exception to the hearsay rule?

Answer 14

A record is admissible if it was made in the course of a regularly conducted business activity and it was customary to make that type of entry (i.e. the entrant had a duty to make the entry). The record itself must also have been maintained in conjunction with a business activity.

E.g. someone making notes after a business meeting, on their own initiative to help them remember what happened at the meeting is NOT a BRE - not made during the regular course of business, made specifically to help her remember what heppened in the meetings.

Question 15

How does an inadvertent disclosure affect a-c privilege?

Answer 15

An inadvertent disclosure will NOT operate as a waiver of the a-c privilege if the holder of the privilege ‘promptly takes reasonable steps to rectify the error’.

Question 16

Explain the limitations on the waiver of AC priv and the work product rule (disclosed and undisclosed).

Answer 16

General rule: a voluntary disclosure of privileged material operates as a waiver of the AC priv or work product protection only with respect to the disclosed material.

Undisclosed privileged material is subject to waiver only if: (1) waiver was intentional; (2) the disclosed and undisclosed material concerned the same subject matter, and (3) the material should be considered together to avoid unfairness.

Question 17

What are the hearsay exceptions where the declarants availability is immaterial? (7)

Answer 17

1. Excited utterances
2. Present sense impressions
3. Present state of mind
4. Declarations of physical condition and statements for the purpose of medical treatment or diagnosis
5. Business and public records
6. Recorded recollection
7. Official records and other writings

Question 18

Explain the statement of absence of a public record, what is it? When does it apply?

Answer 18

Under the official records exception to hearsay, evidence in the form of a testimony or a certification from the custodian of public records (or other qualified person) that they have diligently searched and failed to find a record IS admissible to prove that the matter was not recorded OR to infer that the matter did not occur e.g. jail records.

NB - criminal defendants have a right to confrontation and may demand the presence of the person who prepared the certification.

Question 19

Define hearsay

Answer 19

An out-of-court statement, offered into evidence to prove the truth of the matter asserted.

Statements not offered for the truth of the mater asserted, but offered to show the effect on the listener will generally not be hearsay.

Question 20

Is establishing identity a hearsay matter?

Answer 20

Establishing identity is a non-hearsay purpose, it is circumstantial evidence of identification. It is not an out of court statement being offered for the truth of the matter asserted.

Question 21

What is past recollection recorded? Is it hearsay?

Answer 21

This happens where a witness states that have insufficient recollection of an event to be able to testify fully and accurately, even after consulting a memorandum (i.e. present recollection refreshed). The record itself is then read into evidence IF:
1. the witness has insufficient recollection to testify fully and accurately
2. the witness had personal knowledge of the facts in record when record was made
3. record was made by the witness or under their direction or it was adopted by the witness
4. record was made when the matter was fresh in witness’ mind
5. witness can attest that when it was made, the writing was accurate.

Yes, it is hearsay BUT it falls within a specific exception to the hearsay rule.

Question 22

What is present recollection refreshed? Is it hearsay?

Answer 22

Any writing or photo etc. can be used to refresh a witness’s memory. The witness cannot read from the writing while testifying as it is NOT authenticated and NOT in evidence.

No it is not hearsay - the writing is NOT offered into evidence.

Question 23

In past recollection recorded, a memorandum is read into evidence and heard by the jury BUT can it be admitted into evidence?

Answer 23

A past recollection recorded, record may be admitted into evidence as an exhibit ONLY if offered by an adverse party.

Question 24

What is the general rule on opinion testimony?

Answer 24

General rule = to prohibit admissibility of opinion evidence except in cases where the courts are sure that it will be necessary or at least helpful

Question 25

When is opinion testimony by a lay witness admissible?

Answer 25

1. It is based on the witness’s perception
2. Helpful (for understanding witness’s testimony/determination of a fact in issue)
3. Not based on specialized knowledge (scientific/technical)

Question 26

Examples of admissible opinions of lay witnesses?

Answer 26

1. General appearance or condition of a person
2. State of emotion
3. Matters involving sense recognition
4. Voice of handwriting identification
5. Speed of a moving object
6. Value of own services
7. Rational or irrational nature of another’s conduct
8. Intoxication

Question 27

How can handwriting be verified?

Answer 27

A writing is authenticate by evidence that the maker’s handwriting is genuine. Includes:
1. Opinion of a lay (non-expert) witness who has familiarity with the alleged writer’s handwriting in the course of normal affairs
2. Opinion of an expert who has compared the writing to samples of the alleged writer’s handwriting
3. Fact-finder (jury) comparison of original to samples

Question 28

What does the A-C privilege apply to?

Answer 28

Only to confidential communications made for the purpose of facilitating legal representation of the client. E.g. an attorney’s fees and how much the D has paid would not qualify - fee arrangements and payments are generally outside the protection of the A-C privilege.

Question 29

What are the hearsay exceptions where the declarant is unavailable?

Answer 29

1. Former testimony
2. Statements against interest
3. Dying declarations
4. Statements of personal or family history
5. Statements offered against party procuring defendant’s unavailability

Question 30

When is a declarant ‘unavailable”

Answer 30

1. He is exempt from testifying - court rules a privilege applies
2. He refuses to testify despite a court order to do so
3. He testifies to not remembering the subject matter
4. He is unable to - death/physical or mental illness
5. He is absent (e.g. beyond reach of court’s subpoena)

Question 31

What is the rule re mandatory presumptions in criminal cases?

Answer 31

In a criminal case, a judge cannot instruct the jury that it must find a presumed fact against the accused - the judge must instruct them that they MAY regard the basic facts as sufficient evidence of the presumed fact.

In a criminal case, if a presumed fact establishes guilt, is an element of the offense, or negates a defense, it must be proved beyond a reasonable doubt. This is because in a criminal case, the accused is presumptively innocent until the prosecution proves every element of the offense beyond a reasonable doubt SO in a criminal case, presumptions cannot shift the burden of producing evidence or of persuading the fact finder to the accused. SO in a criminal case, a ‘presumption’ is no more than a permissible inference.

Question 32

For the prior testimony of an unavailable hearsay declarant hearsay exception, do the parties have to be identical in the prior and current case?

Answer 32

No! You just need the party against whom the testimony is offered to have been a party in the former action.

Question 33

What is required for the former testimony exception to the hearsay rule?

Answer 33

1. The declarant is unavailable (i.e. testimony of a now-unavailable witness given at a trial)
2. The testimony was under oath
3. There was an opportunity for cross examination

Question 34

Do the issues at the prior trial have to be the same as those at the current trial for the former testimony hearsay exception to apply?

Answer 34

No! It is enough if the ‘subject matter’ f the testimony is the same - i.e. the party against whom the testimony is offered must have had an opportunity and similar motive to develop declarant’s testimony at the prior hearing.

Question 35

What are leading questions and are they permitted?

Answer 35

A question is leading when it suggests to the witness the fact that the examiner expects and wants to have confirmed. Questions calling for ‘yes’ or ‘no’ answers and questions framed to suggest the answer desired are usually leading.

They ARE permitted on CROSS examination and are sometimes allowed on direct in non-crucial areas if no objection is made.

Question 36

Explain the rules around sequestering witnesses

Answer 36

Upon a party’s request, the trial judge MUST order witnesses be excluded from the courtroom so that they cannot hear the testimony of other witnesses. Any party has the absolute right to require the judge to exclude all witnesses from hearing other witnesses’ testimony. The judge does NOT have discretion to deny the request.

If a witness was permitted to observe the testimony of other witnesses for the same side, he would be able to tailor his testimony so that it matched this other testimony. To prevent this, nearly all courts have the power to exclude other witness from the courtroom while one witness is testifying.

Question 37

Can matters affecting the credibility of a witness be raised on cross if they haven’t been asked on direct examination?

Answer 37

Yes - matters affecting the credibility of a witness can be raised on cross-examination, regardless of whether they have been asked on direct examination.

Question 38

In what cases can the ‘dying declaration’ hearsay exception for unavailable declarants be used?

Answer 38

ONLY in a prosecution for homicide or any civil action. SO if there is a criminal action, it has to be homicide for the dying declaration exception to apply.

Question 39

Can a judge consider hearsay when ruling on preliminary questions?

Answer 39

Yes, of course! In making an admissibility determination, the court is NOT bound by the rules of evidence except those with regard to privileges and so may consider hearsay.

Question 40

Does the declarant need to have died for a dying declaration?

Answer 40

No, he does not need to have died but he must be unavailable at the time the statement is offered

Question 41

What is required for a statement by an available declarant to be classed as an ‘excited utterance’ hearsay exception?

Answer 41

An excited utterance is a statement made by a declarant during or soon after a startling event.

It must be made under the stress of excitement produced by the startling event and must concern the immediate facts of the startling occurrence.

E.g. a declarant is assaulted (startling event) and makes a statement immediately after the beating trying to identify the perpetrator (excited utterance) so = admissible.

Question 42

Can an expert offer an opinion that touches on the ultimate issue in the case?

Answer 42

Yes, an expert opinion is NOT objectionable just because it embraces an ultimate issue. BUT THERE IS ONE EXCEPTION!!! In a criminal case, in which the D’s mental state constitutes an element of the crime of defense, an expert may NOT state an opinion as to whether the accused did or did not have the mental state at issue. Such ultimate issues are for the trier of fact alone.

Question 43

Can an expert give an opinion as to the D’s ultimate state of mind?

Answer 43

No, this is a matter for the jury to decide.

Question 43

If a client seeks his attorney’s advice in the furtherance of an illegal activity, the AC privilege is waived but does the attorney have to to know that the client is committing a crime?

Answer 43

No! When a client seeks his attorney’s advice in furtherance of planning to commit an illegal activity, the AC priv does not apply, regardless of whether the attorney was aware of the illegal activity,

Question 44

Define ‘relevant’ evidence

Answer 44

Evidence having any tendency to make the existence of any fact that is of consequence to the determination of an action more or less probable than it would be without the evidence.

Question 45

Upon what grounds can a trial judge exclude relevant evidence? (list)

Answer 45

A trial judge has broad discretion to exclude relevant evidence if:
1. Its probative value is substantially outweighed by the danger of unfair prejudice
2. Confusion of the issues
3. Misleading the jury
4. Undue delay
5. Waste of time
6. Needless presentation of cumulative evidence

Question 46

When can/can’t evidence of liability insurance be used?

Answer 46

Evidence that a person was/was not insured against liability is NOT admissible to prove whether the person acted negligently or otherwise wrongfully. BUT it can be admitted for another purpose:
1. to prove ownership/control (if disputed)
2. to impeach a witness (usually for bias)
3. as part of an admission of liability (e.g. ‘don’t worry my insurance will pay it off’).

Question 47

Can a judge presiding at a trial testify in that trial as a witness?

Answer 47

No!

Question 48

When can character evidence be admitted?

Answer 48

When a person’s character is the ultimate issue (i.e. an essential element of the claim or defense under the substantive law) in the case.

e.g. a slander case where a D makes a statement that the P has an unsavory character - the P’s character is considered ‘at issue’.

Question 49

When admissible, what types of character evidence are permitted?

Answer 49

So when character is ‘at issue’ it can be proved by evidence of:
1.Specific acts to demonstrate character
2. A witness’s opinion of that character
3. Testimony as to the person’s general reputation in the community

Question 50

By which methods can a witness be impeached?

Answer 50

A witness may be impeached either by cross-examination (by eliciting facts from the witness that discredit his own testimony) or by extrinsic evidence (by calling other witnesses or introducing documents that prove impeaching facts).

Question 51

Explain the rule re impeachment on collateral matter

Answer 51

When a witness makes a statement not directly relevant to the issue in the case, the rule against impeachment on a collateral matter prohibits a party from proving the statement untrue either by extrinsic evidence or by a prior inconsistent statement.

Question 52

When considering impeachment by contradiction, what is the most important rule to consider?

Answer 52

The collateral issue rule - which bans extrinsic evidence on collateral issues. The collateral issue rule will not ban such evidence when the issue is material or important to the outcome of the case.

Question 53

What does impeachment by contradiction involve?

Answer 53

Cross-examiner, while questioning, can try to make witness admit they lied/mistaken about some fact they testified to during direct examination. If witness admits mistake/lie, they are impeached by contradiction.

Question 54

Bad acts (without conviction) is a method of impeaching a witness on the basis of his character. How can it be used in court?

Answer 54

A witness may be asked about prior bad acts if those acts relate to/are probative of truthfulness (i.e. an act of deceit or lying). BUT extrinsic evidence of bad acts is NOT permitted so impeachment can only be achieved on CROSS.

An example of a bad act would be lying on an application for something or passing counterfeit money.

Question 55

When asking about bad acts (that are probative of truthfulness) on cross, can a cross examiner inquire about an arrest as a result of the act?

Answer 55

NO! A cross examiner cannot refer to any consequences that the witness may have suffered as a result of their bad act (e.g. arrest, termination etc) as this is a form of EXTRINSIC EVIDENCE and EE is not allowed for bad acts - you can only establish on cross.

Question 55

What is the confrontation clause - explain!

Answer 55

NB - CC ONLY APPLIES TO CRIM CASES

Under CC, a hearsay statement will NOT be admitted (even if it falls within a hearsay exception) where:
1. The statement is being offered against the accused in a criminal case (no confrontation concern in civil cases);
2. The declarant is unavailable;
3. The statement was ‘testimonial’ in nature; and
4. The accused had no opportunity to cross-examine the D’s testimonial statement prior to trial

Rationale = the 6th amendment requires that D be confronted with the witnesses against him.

SO prosecution cannot offer testimonial hearsay in violation of D’s right to cross-examine the declarant.

Question 56

In what court/case is physician/patient privilege not recognised?

Answer 56

The federal courts do not recognize a physician-patient privilege. When a case based on federal civil rights law is brought in federal court, the assertion of privilege should be governed by federal common law.

Question 57

For the purposes of the confrontation clause, what kind of statements are considered ‘testimonial’ in nature?

Answer 57

1. Sworn testimony (e.g. at grand jury/prior trial/preliminary hearing)
2. Statements to law enforcement (sworn/unsworn) if the primary purpose of the questioning is to establish or prove past events potentially relevant to later prosecution (i.e. in FURTHERANCE OF A CRIMINAL PROSECUTION, not to help with an emergency). E.g. business records as they are NOT prepared for the purpose of being used in a criminal prosecution.

BUT statements are NOT testimonial if the primary purpose of the questioning is to enable police assistance to meet an ongoing emergency.

Question 58

Explain Dead Man Acts

Question 59

Explain spousal privilege and how it works

Answer 59

When the privilege of spousal immunity is INVOKED, a married person whose spouse is the D in a criminal case may not be called as a witness by the prosecution, and a married person may not be compelled to testify against their spouse in any criminal proceeding.

The witness spouse alone has a privilege to refuse to testify adversely against her husband - she may be neither compelled to testify nor foreclosed from testifying. The choice is his/hers.

Question 60

What are the two hearsay exceptions involving statements of physical condition

Answer 60

1. Statements of the declarant’s present physical condition, regardless of the purpose for which the statement is being made
2. Statements made for the purpose of obtaining medical diagnosis or treatment

Question 61

When can a statement made for the purpose of obtaining medical diagnosis/treatment be a hearsay exception?

Answer 61

A statement that describes a person’s medical history, past or present symptoms, or their inception or general cause is admissible as an exception to the hearsay rule IF it was made for - and reasonably pertinent to - medical diagnosis or treatment.

The cause/source of the injury MUST be reasonably pertinent to diagnosis/treatment to be admissible. Statements assigning fault or identifying a perpetrator are generally NOT considered pertinent.

Question 62

Are statements by family members/bystanders admissible under the medical diagnosis hearsay exception?

Answer 62

YES as long as the statements were clearly made to obtain a diagnosis or treatment for the patient.

Question 63

Explain the structure for analyzing impeachment

Answer 63

First: witness can be impeached by cross or by extrinsic evidence

Second: there are certain traditional impeachment devices/methods, these include:
prior inconsistent statements; bias; prior convictions; bad acts; opinion/rep for untruthfulness; sensory deficiencies and contradiction.

Third: For each of these methods, ask the question - is the examiner limited to impeachment by cross or may they produce extrinsic evidence?

Fourth: IF extrinsic is permissible, must a foundation be laid first by inquiry on cross?

Question 64

Describe the key points for impeachment method: prior inconsistent statements

Answer 64

1. May be proved by cross or intrinsic
2. A proper foundation must be laid - the witness must be given an opportunity to explain/deny the statement AND the adverse party must be given an opportunity to examine witness about the statement
3. The statement must be relevant to some issue in the case (not a collateral matter)
4. Usually PIS = hearsay and admissible only for impeachment purposes BUT they can also be admissible nonhearsay (see other card)

NB: Court can dispense of foundation req when justice requires – e.g. witness has left stand and is unavailable when inconsistent statement is discovered

AND NO foundation req if PIS is an opposing party’s statement (i.e. the witness is the opposing party) – no need to give them the opportunity to explain the PIS.

Question 65

Which impeachment methods permit extrinsic evidence BUT require a foundation to be laid?

Answer 65

Prior inconsistent statements
Bias/interest

Question 66

What is an opposing party statement?

Answer 66

It is a hearsay exception: any statement made by a party is admissible non-hearsay if offered against that party

Anything the D says, the P can offer against the D
Anything the P says, the D can offer against the P

No foundation required!

Question 67

When can a prior inconsistent statement be admissible non hearsay?

Answer 67

If a testifying witness’s prior inconsistent statement is made under oath (i.e. ‘sworn testimony’) at a prior proceeding/deposition it is admissible nonhearsay and may be admitted as substantive evidence of the facts stated.

Question 68

Describe the key points for impeachment method: bias

Answer 68

1. Witness is usually impeached by extrinsic evidence
2. A proper foundation must be laid: the witness must FIRST be asked about the facts that show bias/interest on cross
   IF the witness admits the facts, court has the discretion as to whether to allow the extrinsic evidence to be introduced as further proof of bias/interest.

Question 69

Describe the key points for impeachment method: prior convictions (8 points)

Answer 69

1. Proof of CONVICTION is required (arrest/indictment is insufficient)
2. Either by admission on direct/cross OR by introducing a record of the judgment.
3. No foundation needs to be laid
4. 10 year rule (from conviction/date of release from confinement)
5. Crimes of dishonesty of false statement are always admissible (needs to involve the speaking or writing of false words) e.g. perjury, false statement, embezzlement, fraud (NOT crimes of violence, drugs, theft).
   6.Felonies not involving dishonestly or false statement may be admissible BUT court has discretion to exclude
6. Misdemeanors not involving dishonesty = NOT admissible (misdo involving dishonesty IS admissible)
7. IF in a criminal case, the witness being impeached is the accsued, felony conviction will only be admitted if prosecution shows probative effect outweighs prejudicial.

Question 70

Describe the key points for impeachment method: bad acts (4 points)

Answer 70

1.Bad acts (without conviction) that reflect adversely on witness’s character for truthfulness
2. Cross ONLY, extrinsic evidence is NOT permitted
3. If witness denies act, cross-examiner cannot refute by producing further evidence/calling other witnesses
4. Cross-examiner CANNOT refer to any consequences the witness may have suffered as a result of their bad act (arrest, termination) = equivalent to extrinsic evid

Question 71

Describe the key points for impeachment method: opinion or reputation of untruthfulness

Answer 71

1. General method: ask other witnesses about the witness’ general reputation for truth and veracity in the community in which they live.
2. Character witness can give rep/opinion testimony BUT NO specific instances of conduct.

Question 72

Describe the key points for impeachment method: sensory deficiencies

Answer 72

1.Witness impeached by showing that their faculties of perception and recollection were so impaired as to make it doubtful that they could have perceived those facts.
E.g. bad eyesight, poor memory, consumed alcohol or drugs at the time of the event or while on witness stand.
2. Cross OR by use of extrinsic evid
3. NO foundation req for the extrinsic evid (i.e. witness does not need to be confronted with the impeaching fact).

Question 73

Which impeachment methods do not permit extrinsic evidence?

Answer 73

Bad acts

Opinion/rep for untruthfulness is done by asking witnesses about the other w’s general rep for truthfulness in community (so not really extrinsic).

Question 74

Descibe the key points for impeachment method: contradiction

Answer 74

1. • Cross-examiner, while questioning, can try to make witness admit they lied/mistaken about some fact they testified to during direct examination, if witness admits mistake/lie = impeached by contradiction.
2. Extrinsic evidence can be used to prove contradictory fact (where witness sticks to their story) UNLESS the fact is collateral

Question 75

What does laying a foundation mean and when is it required?

Answer 75

Laying a foundation is required when extrinsic evidence is introduced to impeach a witness for either prior inconsistent statements or for bias.

Laying a foundation means that before the witness can be impeached under these methods, he first needs to be asked about the relevant facts on cross.

Question 76

When does the best evidence rule not apply?

Answer 76

When the the witness has personal
knowledge of the fact to be proved, even if the fact happens
to also be recorded in a writing/recording etc.

Oral testimony of the fact
may be given without producing the original writing that
recorded the event.

Best evidence rule applies only when a witness testifies about the content of a writing/recording. Here the witness is testifying about what they PERSONALLY HEARD so not BER.

Question 77

Does a declarant have to be present at a trial to be impeached?

Answer 77

NO! The credibility of an unavailable declarant may be attached by evidence that would be admissible if the declarant had testified as a witness.

Question 78

In the case of impeachment by bias/prior inconsistent statemement, a foundation is required for extrinsic evidence. So what happens if the witness is no longer available for trial?

Answer 78

Foundation req may be dispensed with where ‘justice so requires’ - e.g. where witness is no longer available.

Question 79

What happens to the foundation req if a prior inconsistent statement is admitted to impeach a declarant who does not testify at trial?

Answer 79

Statements may sometimes be admitted even though the declarant does not testify at trial, e.g. a valid hearsay exception such as an excited utterance is admitted.

When a hearsay statement has been admitted into evidence, the credibility of the declarant may be attacked (even if they did not testify) AND if attacked, may be supported by any evidence that would be admissible if declarant had testified as a witness. In these instances, the declarant need not be given the opportunity to explain/deny the prior statement.

Question 80

What are the three major concerns with character evidence?

Answer 80

1. Purpose (for which it is offered)
2. Method (used to prove character)
3. Kind of case (civil/criminal)

Question 81

When is evidence of specific acts permissible? (Character evidence)

Answer 81

General rule: when a person is charged with one crime, extrinsic evidence of their other crimes/misconduct is inadmissible if such evidence is offered solely to establish criminal disposition.

Question 82

When and how can character evidence be used to impeach

Question 83

Character evidence is permitted when a person’s character is ‘directly in issue’. What are the types of cases where this is the case?

Answer 83

1. Defamation = cases where truth is a defense
2. Negligent hiring or entrustment = hiring/entrusted person’s character is at issue
3. Child custody cases = parents’ character at issue

When character is directly in issue, ALL FORMS of character evidence (reputation, opinion, and specific acts) are admissible.

Question 84

What are the three reasons for using character evidence?

Answer 84

1. Prove person’s character when directly in issue (rare)
2. Prove how a person probably acted (conduct in conformity/propensity evidence)
3. Truthfulness - i.e. impeachment purposes

Question 85

What are the methods of proving character

Answer 85

1. Evidence of a person’s specific acts
2. Opinion testimony of a witness who knows the person
3. Testimony as to a person’s general reputation in the community

Question 86

Is a defendant’s plane ticket that he bought to attempt to flee the jurisidiction admissible?

Answer 86

YES because it is RELEVANT evidence - relevance = ‘any tendency to make a fact (or consequence) more probable than it would be without the evidence’. Evidence that the D tries to flee from prosecution - that he purchased an airplane ticket to another country using an alias - satisfied the definition of relevance because it makes his guilt more probable than it would without the evidence.

IT Is NOT relevant as motive as proof of motive is generally relevant and admissible but evidence of an intent to flee sheds no light on his motive to commit the crime. The evidence is irrelevant to motive so it is not admissible for the purpose of proving motive.

Question 87

Scenario where clear BER is met and document is relevant for admission but question ends with ‘the office manager’s testimony that the invoices show ten deliveries is…’ - what is the KEY here

Answer 87

BE careful with best evidence rule questions - here the office manager is trying to admit his TESTIMONY. The business records themselves would be admissible but the manager’s oral testimony ABOUT the records would only be admissible in the event that the records themselves were shown to be unavailable, pursuant to the best evidence rule.