Evidence

Question 1

What are the types of specialized relevance?

Answer 1

1) Subsequent Remedial Measures
2) Offers of Compromise
3) Payment of Medical Expenses
4) Criminal Plea Discussions
5) Liability Insurance

Question 2

What purposes are prohibited in subsequent remedial measures?

Answer 2

1) Negligence
2) Culpable conduct
3) Defects in product or design
4) Need for warning or instruction

Question 3

What purposes are permitted in subsequent remedial measures?

Answer 3

1) Impeachment
OR IF DISPUTED
2) Ownership
3) Control
4) Feasibility of precautionary measures

Question 4

What are important distinctions of subsequent remedial measures?

Answer 4

Does NOT apply to PAST remedial measures (comes in only if disputed) = admissible

Third-party remedial measures = admissible

Question 5

What purposes are prohibited in offers of compromise?

Answer 5

1) Compromise or attempt to compromise a disputed claim
2) Conduct or statements in negotiations to prove or disprove the validity or amount of disputed claim

Question 6

What purposes are permitted for offers of compromise?

Answer 6

1) Criminal cases if a party to the negotiations was a governmental unit
2) Proving witness bias
3) Lack of undue delay
4) Efforts to obstruct criminal investigation

Question 7

What are important distinctions of offers of compromise?

Answer 7

ONLY applies if the conduct or statements occurred during the actual compromise negotiations/settlements & ONLY if disputed

Question 8

What purposes are prohibited for payment of medical expenses?

Answer 8

Offer of payment for medical expenses to prove liability

Question 9

What purposes are permitted for payment of medical expenses?

Answer 9

Statements made surrounding the offer or payment

Question 10

What is an important distinction of payment of medical expenses?

Answer 10

Do NOT have to be in dispute

Question 11

What is purpose are prohibited for criminal plea discussions?

Answer 11

1) Guilty plea later withdrawn
2) Nolo contendere plea
3) Statements in plea proceedings
4) Statements in plea proceedings with the prosecutor or agent

Question 12

What purposes are permitted for criminal plea discussion?

Answer 12

1) To complete a partial account of plea discussions
2) In a perjury prosecution if a statement is under oath, on record, and in the counsel’s presence

Question 13

What purposes are prohibited in liability insurance?

Answer 13

1) To prove whether a person acted negligently
2) To prove whether a person acted wrongfully

Question 14

What purposes are permitted for liability insurance?

Answer 14

1) Witness’s bias or prejudice
2) Agency
3) Ownership
4) Control

Question 15

What purposes are prohibited in character evidence?

Answer 15

A person’s character or character trait to prove that person acted in accordance

Question 16

What purposes are prohibited to show prior bad acts in character evidence?

Answer 16

Another crime, wrong, or act is to show on a particular occasion the person acted in accordance with the character

Question 17

What purposes are permitted for prior bad acts in character evidence?

Answer 17

Motive
Intent
Mistake
Identity
Common scheme or plan
+ knowledge, preparation, plan, opportunity

Question 18

What is an important distinction of prior bad acts?

Answer 18

+Modus operandi = signature crime if IDENTITY is at issue

Question 19

What purposes are permitted for proof of defendant’s or victim’s character?

Answer 19

1) Pertinent character of criminal defendant offered by accused
2) Pertinent character of the victim offered by the defendant
3) Peaceful character of homicide victim offered by prosecutor to rebut
4) Character of a witness

Question 20

What is an important distinction of character evidence of proof of a defendant’s or victim’s character?

Answer 20

Only allowed if the defendant “opens the door” i.e. allowing positive character witness OR testifying in their defense

Only allowed in criminal cases

Question 21

What are permitted methods of proving character?

Answer 21

1) Opinion or reputation evidence
2) Element of claim or defense can explicitly involve someone’s character (negligence/defamation/fraud)
3) Relevant specific instances on cross-examination

Question 22

When is evidence of habit permitted and prohibited?

Answer 22

Permitted - person’s habit or organization’s routine to prove that acted in accordance
Prohibited - if used as an inference about a person’s character

Question 23

When is a victim’s sexual behavior or predisposition permitted?

Answer 23

1) To prove a source of semen or injury
2) Proof of prior sexual behavior with the accused (consent)
3) When constitutionally required

Question 24

When is a victim’s sexual behavior or predisposition prohibited?

Answer 24

1) Prove the victim engaged in other sexual behavior
2) Prove a victim’s sexual predisposition

Question 25

When is reputation evidence admissible to show a victim’s sexual behavior or predisposition?

Answer 25

Civil cases - reputation admissible if a victim has put it in controversy

Question 26

What are the exceptions to the character evidence rule

Answer 26

Similar Crimes in Sexual Assault and Child Molestation (criminal & civil)

Question 27

When is reputation or opinion evidence for impeachment permitted for character for untruthfulness?

Answer 27

Opinion or reputation evidence for truthfulness or untruthfulness but only if the witness’s character has been attacked

Question 28

When is specific instances of conduct for impeachment prohibited?

Answer 28

Extrinsic evidence (any source outside of testimony) of specific instances of conduct in order to attach or support the witness’s character for truthfulness

Question 29

What are specific instances of conduct permitted for impeachment purposes?

Answer 29

On cross-examination any party can offer evidence of specific instance of conduct probative character for untruthfulness & stuck with answer on cross-examination

Question 30

When are prior convictions prohibited for impeachment purposes?

Answer 30

1) 10 year ban from date of release (release of incarceration)
2) Pardon / annulment
3) Juvenile adjudication
4) Theft crimes

Question 31

When are prior convictions permitted for impeachment purposes?

Answer 31

1) Felonies (punishable by more than 1 year incarceration)
2) Crimes of dishonesty within 10 years (perjury, criminal fraud, embezzlement, forgery, counterfeiting)

Question 32

What are the balancing tests applicable for prior convictions for impeachment purposes?

Answer 32

1) Witness is NOT defendant = 403 - unfair prejudice substantially outweighs probative value – may be excluded
2) Criminal defendant AS witness = probative value outweighs unfair prejudice - must be admitted
3) Any witness - Crime older than ten years = probative value substantially outweighs unfair prejudice – must be admitted
4) Crimes of dishonesty within 10 years - no balancing test = automatically comes in

Question 33

What are the four basic categories of hearsay exceptions/exclusions?

Answer 33

801(d)(1): Past Statement of a Testifying Witness
801(d)(2): Opposing Parties’ Statements
803: Exceptions applicable regardless of the declarant’s availability
804: Exceptions applicable only if the declarant is unavailable

Question 34

What are the elements of prior inconsistent statements offered substantively for hearsay?

Answer 34

1) Declarant-witness testifies at trial or hearing
2) Declarant-witness is subject to cross-examination
3) Statement is inconsistent with the witness’s live testimony
4) Statement was made under penalty of perjury at the trial hearing, other proceeding, or deposition

Question 35

What are the elements of prior inconsistent statements for hearsay?

Answer 35

1) Declarant-witness testifies at trial or hearing
2) Declarant-witness is subject to cross-examination
3) The statement is inconsistent with the witness’s live testimony
4) The statement if offered “to rebut an express or implied charge that declarant recently fabricated evidence or “to rehabilitate the declarant’s credibility”

Question 36

What are the elements of statements of identification?

Answer 36

1) Declarant-witness testifies at trial or hearing
2) Declarant-witness is subject to cross-examination
3) Statement identified the person after the witness perceived that person

Question 37

What are the kinds of past statements of a testifying witness?

Answer 37

1) Prior Inconsistent Statement Offered Substantively
2) Prior Inconsistent Statement
3) Statements of identification

Question 38

What are the kinds of opposing party statements?

Answer 38

1) Simple Party Admissions
2) Adoptive Admissions
3) Vicarious Admissions: Authorized Statements
4) Vicarious Admissions: Agency Statements
5) Co-conspirators

Question 39

What is a simple party admission?

Answer 39

Statement is offered against an opposing party and was made by the party in an individual or representative capacity

Question 40

What is an adoptive admission?

Answer 40

Statement is offered against an opposing party and is the one the party manifested or adopted or believed to be true

Question 41

What are the elements of silence as an adoptive admission?

Answer 41

1) Adopted state was heard and understood by the party against whom its offered
2) The party was at liberty to respond
3) The circumstances naturally called for a response
4) The party failed to respond

Question 42

What are vicarious admissions: authorized statements?

Answer 42

The statement is offered against an opposing party and was made by a person whom the party authorized to make a statement on the subject

Question 43

What are the elements of vicarious admissions for agency statements?

Answer 43

1) Speaker must be an agent or employee of the party
2) The statement must relate to a matter within the scope of agency or employment
3) Statement must have been made during the relationship

Question 44

What are the elements of a co-conspirators statements?

Answer 44

1) Existence of a conspiracy
2) Defendant is a member of the conspiracy
3) The statement was made during the existence of the conspiracy
4) Statement was made in furtherance of the conspiracy

Question 45

What are the types of hearsay exceptions regardless of a declarant’s availability?

Answer 45

1) Present Sense Impression
2) Excited Utterances
3) Statements Concerning State of Mind or Physical Condition
4) Statements Made for Medical Treatment or Diagnosis
5) Recorded Recollection
6) Records of regularly conducted
7) Public Records and Reports
8) Residual Catch all

Question 46

What are the elements of a present sense impression?

Answer 46

1) An event or condition occurs
2) The statements describes that event or condition
3) The statement is made while the declarant perceives it or immediately thereafter

Question 47

What is the timing, scope, and focus of a present sense impression?

Answer 47

Timing: Statement occurs at the same time as event/condition or immediately thereafter
Scope: Limited to description no analysis
Focus: Timing of statement

Question 48

What are the elements of excited utterances?

Answer 48

1) A startling event or condition occurs
2) Statement relates to the condition that event or condition
3) The declarant was under the stress of excitement caused by the event or condition when she made the statement

Question 49

What is the timing, scope, and focus of excited utterances?

Answer 49

Timing: Statement occurs while the declarant is under the stress of excitement
Scope: Must relate to event; can include analysis
Focus: Emotional state of the declarant

Question 50

What are the elements of statements concerning state of mind?

Answer 50

1) Statement concerns the declarant’s then-existing state of mind or physical condition
2) Statement does not include of memory or belief if offered to prove the fact remembered
3) Unless the statement of memory or belief relates to the validity of the terms of the declarant’s will

Question 51

What are the elements for statements made for medical diagnosis or treatment?

Answer 51

1) Statement concerns the declarant’s then-existing state of mind or physical condition
2) Statement does not include of memory or belief if offered to prove the fact remembered
3) Unless the statement of memory or belief relates to the validity of the terms of the declarant’s will

Question 52

What are the important distinctions statement made for medical diagnosis and treatment?

Answer 52

1) No limit on who makes the statement or to whom the statement is made
2) Statement of diagnosis is not within the exception
3) Exceptions only covers statements for the purpose of obtaining a medical diagnosis not all statement to medical personnel

Question 53

What are the elements of a recorded recollection?

Answer 53

1) The writing is a record of facts about which the witness once had knowledge
2) The witness now have insufficient recollection to testify as to those facts
3) The writing was made or adopted by the witness
4) At a time when the matter was fresh in their memory
5) The writing accurately reflects that prior knowledge

Question 54

What are the elements of regularly conducted activity?

Answer 54

1) Record is made at or near the time of the event it describes
2) By someone with knowledge of the event
3) The record is kept in the course of regularly conducted activity
4) It was the business’s regular practice to make the record
5) Conditions are proved by custodian or records or certification

Question 55

What are the elements of public records and reports?

Answer 55

1) Records setting forth the activities of an office or agency
2) Matters observed pursuant to duty imposed by law (no police records for criminal cases)
3) Findings resulting from an investigation pursuant to legal authority

Question 56

What are the elements of the residual “catch-all” exception?

Answer 56

1) Evidence is supported by “sufficient guarantees of trustiworthiness”
2) Evidence is more probative on the point which it is offered than any other evidence the proponent can obtain through reasonable efforts
3) Proponent provides reasonable notice of intent to offer a statement under the exception

Question 57

What are additional elements found in the residual “catch-all” provision?

Answer 57

Necessity + Trustworthiness
No motive to lie
Deterrent effect of detection or fear of punishment
Statement is made under such publicity that an error would be determined

Question 58

What are the types of exceptions when the declarant is unavailable?

Answer 58

1) Past Testimony
2) Dying Declarations
3) Statements Against Interest
4) Forfeiture by Wrongdoing

Question 59

What are the elements of past testimony?

Answer 59

1) Declarant is unavailable
2) Declarant testified at prior hearing or deposition
3) The party against whom the state is offered had opportunity to examine the declarant at the prior hearing or deposition
4) The party had a motive to examine the declarant at the prior hearing or deposition that is similar to the motive it has in the instant proceeding

Question 60

What are the elements of a dying declaration?

Answer 60

1) Declarant is unavailable
2) This is a homicide prosecution or any civil action
3) The statement was made while the declarant believed their death was imminent
4) The statement concerns the cause or circumstances of what the declarant believes to be their impending death

Question 61

What are the factors used to determine motive in past testimony?

Answer 61

1) The type of proceeding in which the testimony is given
2) Trial strategy
3) Potential financial penalties or stakes
4) Number of issues and parties

Question 62

What are important distinctions about dying declarations?

Answer 62

State of mind key: declarant must be conscious of “swift and certain doom”

Personal knowledge required

Question 63

What are the elements of statements against interest?

Answer 63

1) Declarant is unavailable
2) Statement is one that a reasonable person would only make it believed to be true when made
It was so contrary to the declarant’s financial/property interest
It had so great a tendency to invalidate the declarant’s claim against someone else
It exposed the declarant to civil or criminal liability
3) If offered in a criminal case against penal interest it is supported by corroborating circumstances that clearly indicate trustworthiness

Question 64

What are the elements of forfeiture by wrongdoing?

Answer 64

1) Declarant is unavailable
2) The party wrongfully cause (or acquiesced in wrongfully causing) the declarant’s unavailability
3) The party intended to cause the declarant’s unavailability

Question 65

What are the questions you ask before analyzing an evidence question?

Answer 65

1) What evidence is being considered?
2) For what purpose is the evidence being offered?
3) Who is offering the evidence?
4) Civil or criminal trial?

Question 66

What is probativeness?

Answer 66

Any tendency to make a fact more or less probable

Question 67

What is materiality?

Answer 67

The fact is of consequence to the pending action

Question 68

What is the 403 balancing test?

Answer 68

A court may exclude relevent evidence if it substantially outweighed by a danger of one or more
1) Unfair prejudice
2) Confusing the issues
3) Misleading the jury
4) Undue delay
5) Wasting time

Question 69

What is the test for relevance?

Answer 69

Does evidence have any tendency to affect the probability of the existence of a material fact?

Question 70

What is the difference between General preliminary questions and conditional relevance?

Answer 70

general preliminary questions - The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible.

conditional relevance - ould a reasonable jury find that this fact exists by the preponderance of the evidence?

Question 71

What is the basic test for admissibility?

Answer 71

1) Is the evidence relevant?
2) Is the evidence excluded by another rule or law?
3) Is the probative value substantially outweighed by risk or unfair prejudice, undue delay, jury confusion?

Question 72

What are the Gordon factors and when do they apply?

Answer 72

Any witness
1) Nature of the crime: violent crimes are less probative of truthfulness; this factor weighs against admission
2) Time of conviction and subsequent history
3) Similarity between offenses: Similarity of the convictions weighs against admission
4) Importance of defendant’s testimony: The more important the testimony, the more reluctant the court should be to admit conviction
5) Centrality of credibility: If defendant’s testimony is important, so is credibility

Question 73

What are factors for child competency?

Answer 73

1) Capacity to perceive and remember events
2) Capacity to communicate events intelligibly
3) Understanding the difference between truth and lie, obligation to tell the truth
4) Capacity to respond intelligibly to questions on cross

Question 74

What is hearsay?

Answer 74

An out of court statement offered for the truth of the matter asserted offered by the declarant

Question 75

What are non-typical examples of hearsay?

Answer 75

1) Nonverbal conduct
2) Reenactments
3) Indirect / implied assertions

Question 76

What are non-hearsay categories?

Answer 76

1) Statements offered to prove the effect on the listener
2) Verbal acts or legally operative words– words that constitute legal acts or have legal consequences (examples: “I will kill you” = threat or “I accept” = legally operative, or “Thank you”(no truth or falsity in that statement)
3) Inconsistent statements offered to impeach
4) Non-assertive words or conduct
5) Circumstantial evidence of state of mind
A direct state of mind is hearsay to prove intent/motive/other state of mind (Example: “I hate Joe to prove the speaker had animus towards Joe)
Statements that only indirectly show state of mind may be non-hearsay (Example: “Joe is a thief” to prove speaker had animus towards Joe)
6) Circumstantial proof of knowledge
Only available in unusual circumstances
7) To show words were spoken

Question 77

What is the basic hearsay analysis?

Answer 77

1) Is an out of court statement being offered?
2) Is it being offered to prove the truth of the matter asserted?
3) Does an exception or exclusion apply?

Question 78

What are causes of unavailability?

Answer 78

1) Privilege - 804(a)(1)
2) Refusal to testify - 804(a)(2)
3) Lack of memory - 804(a)(3)
4) Death or then-existing infirmity - 804(a)(4)
5) Absence - 804(a)(5)

Question 79

Where are there no confrontation clause issues?

Answer 79

No Confrontation Clause Issues:
1) Statement is not being offered for its truth (Non-hearsay)
2) Civil cases, or statement is offered against the prosecution
3) The declarant testifies
4) The statement was made under oath and the defendant had the opportunity for cross-examination
5) Statements admitted by forfeiture

Question 80

When is testimony evidence barred?

Answer 80

1) The declarant testifies
OR the declarant is unavailable AND the defendant had prior opportunity to cross

Question 81

What is testimonial?

Answer 81

1) “Solemn declarations made for the purpose of proving some fact”
2) Formalized testimonial material
3) Statements made with “the primary purpose of assisting in a prosecution”

Question 82

What is not testimonial?

Answer 82

1) Casual and offhand remarks
2) Co-conspirators’ statements (during and in furtherance of a conspiracy)
3) Business records (unless they are testimonial…)
4) Statements made with the primary purpose of assisting in an “ongoing emergency”

Question 83

What are the Daubert factors?

Answer 83

1) Has the theory been or can it be tested?;
2) Has the theory been subject to publication and/or peer review?;
3) The technique known error rate;
4) The existence and maintenance of standards controlling the technique’s operation; and
5) The degree of acceptance in the scientific community (Fyre)
6) FIT - does it really help the trier of fact?

Question 84

What are the proper sources of facts and data for expert testimony?

Answer 84

1) Firsthand knowledge
2) Facts or data learned at trial (i.e. admitted evidence)
3) Inadmissible fact or data if they are of a type reasonably relied upon experts in the field - may not be disclosed to the jury unless the court determines that their probative value in assisting the jury to evaluate the expert’s opinion substantially outweighs their prejudicial effect

Question 85

What are the basic questions for an expert analysis?

Answer 85

1) Are they an expert?
2) Would this testimony assist the jury?
3) Does this opinion rest on proper data? (personal knowledge, facts or data learned at trial?
4) Is it reliable? Daubert factors

Question 86

What are the three recognized federal privileges?

Answer 86

only protects confidential communications
1) Attorney-client
2) Clergy-penitent
3) Psychotherapist-patient

Question 87

What makes evidence unfairly prejudicial?

Answer 87

1) Leads jury to give improper weight to a piece of evidence or confuse its meaning
2) Distracts the jury from the real issue and induces them to decide the case on an improper basis
3) Admissible for one purpose but not another - danger that jury will use evidence for impermissible use

Question 88

How are the methods of proving character allowed?

Answer 88

• Only opinion and reputation testimony allowed on direct examination
• Relevant specific instances allowed on cross-examination

Question 89

What is impeachment by contradiction?

Answer 89

Common law Hitchcock doctrine prohibits extrinsic evidence to contradict a witness on a collateral matter
Collateral matter - something that does not have independent probative value (i.e. witnesses or documents that don’t matter for the actual merits of the case)

Question 90

What is authentication?

Answer 90

1) Proponent of evidence must show that it really is what they say it is
2) “Laying foundation” the process of demonstrating that evidence is what you say it is
3) Standard of proof: evidence “sufficient to support a finding that the item is what the proponent claims it is”
4) Opponent can present evidence that the evidence is not authentic even after it’s admitted

Question 91

When is secondary evidence permitted?

Answer 91

1) Originals are lost or destroyed, not by the proponent and not in bad faith;
2) Originals cannot be obtained by the judicial process;
3) The party against whom it is being offered controls it and was put on notice to bring it to trial, but doesn’t or;
4) The writing is not closely related to a controlling issue

Question 92

What is layperson opinion testimony limited to?

Answer 92

1) Rationally based on witness’s perception
2) Helpful to clearly understanding the witness’s testimony or to determining a fact in issue and
3) Not based on scientific, technical, or other specialized knowledge with the scope of Rule 702

Question 93

What is the foundation for expert testimony?

Answer 93

Witness must be qualified;
Testimony must be on a proper topic;
Opinion must be supported by a proper factual basis;
Opinion must be based on reliable principles, reliably applied to the facts; and
Testimony must survive Rule 403

Question 94

What are improper topics for expert testimony?

Answer 94

1) Matters of common knowledge
2) Legal opinions and certain opinion on “ultimate issue”
3) Credibility of witnesses
4) Accuracy of eyewitness identification

Question 95

How is an expert qualified?

Answer 95

A witness who is qualified as an expert by knowledge, skill, experience, training or education may testify in the form of an opinion

Question 96

What are the three exceptions to federal privileges?

Answer 96

1) Attorney-client (survives the client’s death)
2) Clergy-penitent
3) Psychotherapist-patient

Question 97

What are the elements of inadvertent disclosure?

Answer 97

1) Disclosure was inadvertent
2) The party took reasonable steps to prevent disclosure
2) The party took reasonable steps to rectify the errors

Question 98

What is the different between the two martial privileges?

Answer 98

1) Spousal testimonial privilege - privilege not to testify against your spouse
2) Marital confidences privilege - confidential communications between spouses

Question 99

Where does spousal testimonial privilege apply?

Answer 99

1) Criminal cases
2) Witness can assert
3) Does the privilege survive the marriage? No
4) Rationale: to protect sanctity of marriage

Question 100

Where does martial confidences apply?

Answer 100

1) Both criminal/civil cases
2) Both spouses can assert privilege
3) This privilege does survive the marriage (as long as they were made while they were married)
4) Rationale: Protecting privacy and encouraging free communication