Evidence

Question 1

Logical Relevance

Answer 1

When evidence tends to make the existence of any fact of consequence to the determination of the action more or less probable than without the evidence.

Question 2

Hearsay

Answer 2

An out of court statement by a declarant, offered to prove the truth of the matter asserted.

Question 3

Statement by Opposing Party

Answer 3

When offered by an opponent, is admissible as non hearsay. It is not necessary for the statement to be against the speaker’s interest to be admissible.

Question 4

Subsequent Remedial Measures

Answer 4

Evidence of safety measures or repairs after an accident is inadmissible to prove negligence or to prove defective design in a products liability case but it is admissible to prove ownership or control, to rebut a claim of no feasible precaution, or to prove destruction of evidence.

Question 5

Settlement Offers

Answer 5

Offers to settle are inadmissible to prove the validity or amount of a disputed claim. Statements made during settlement discussions are inadmissible.

Question 6

Statement Against Interest

Answer 6

If the declarant is unavailable, their statement is admissible if against the declarant’s financial interest or it would subject the declarant to criminal liability. In a criminal case, if offered to exculpate the defendant, the declarant must offer corroborating circumstance showing the declarant’s statement is trustworthy.

Question 7

Unavailability

Answer 7

Court exempts due to privilege, the declarant is dead or sick, the proponent cannot procure the declarant’s attendance, the declarant refuses to testify (despite a court order), or declarant’s memory fails.

Question 8

Discretionary Exclusion (FRE 403)

Answer 8

A trial judge can exclude evidence if: the probative value substantially outweighs the danger of unfair prejudice; it could cause confusion of the issues; it could mislead the jury; it could cause undue delay; or it is a waste of time.

Question 9

Liability Insurance

Answer 9

Evidence of liability insurance is not admissible to prove negligence or ability to pay but is admissible to prove ownership or control or to impeach a witness.

Question 10

Offers to Pay Medical Expenses

Answer 10

Evidence of payments or offers to pay medical expenses are inadmissible to prove liability for the injuries in question. Accompanying admissions of fact, however, are admissible.

Question 11

Withdrawn Guilty Pleas

Answer 11

Evidence of withdrawn pleas, offers to plea, and related statements are inadmissible

Question 12

Character Evidence

Answer 12

Character evidence goes to the general character of a person and conveys a moral judgment.

Generally, character evidence is not admissible to prove that a person acted in conformity with their character on a particular occasion, unless character is an essential element of the charge, claim, or defense.

However, character evidence may be admissible for other purposes, such as impeachment or rebuttal.

Question 13

Habit Evidence

Answer 13

Habit evidence describes a person’s regular response to specific circumstances without moral judgment.

Question 14

Character Evidence in a Civil Case to Prove the Defendant’s Conduct

Answer 14

Character evidence in a civil case to prove the defendant’s conduct is inadmissible unless character is at issue or if it is independently relevant for a purpose other than character such as motive, intent, mistake, identity, or common plan or scheme (MIMIC).

Evidence of prior sexual assault or child molestation when offered in a civil case arising out of sexual assault or child molestation is admissible.

Question 15

Character Evidence in a Criminal Case to Prove the Defendant’s Conduct

Answer 15

Character evidence offered in a criminal case to prove defendant’s conduct is generally inadmissible, except:

(1) when defendant has opened the door by offering evidence of his good character,
(2) when prior sexual assault or child molestation is offered in a criminal case arising out of sexual assault or child molestation,
(3) when character is at issue such as entrapment, or
(4) when it is independently relevant to prove something other than character such as MIMIC.

If evidence of victim’s character has been admitted by the court, the prosecution may offer evidence that the defendant has the same character trait.

Question 16

Character Evidence in a Criminal Case to Prove the Victim’s Conduct

Answer 16

In a criminal case, character evidence to prove a victim’s conduct is generally inadmissible. However, if the defendant “opens the door” by introducing evidence of the victim’s bad character, this prohibition is lifted. Once this door is open:

(1) Opinion and reputation evidence regarding the victim’s character may be introduced on direct examination.
(2) Specific acts that pertain to the victim’s character can be delved into during cross-examination.

Question 17

Character evidence offered in rape cases to prove victim’s sexual behavior or disposition

Answer 17

Opinion and reputation are always inadmissible. Specific instances of conduct or specific acts admissible only (1) to prove someone other than defendant was the source of semen or injury, (2) to prove prior acts of consensual sex between victim and defendant, and (3) to avoid violation of defendant’s constitutional rights.

Question 18

Authentication

Answer 18

To be admitted, a writing or other physical evidence must be authenticated by proving it is what the proponent claims it to be. Oral statements must also be authenticated, especially when the identity of the speaker is important. Statements made during a telephone call may be authenticated by testimony showing (1) witness recognition of the speaker’s voice, (2) the speaker’s knowledge of certain facts that only a particular person would have, or (3) the speaker’s identification.

Question 19

Best Evidence Rule

Answer 19

Applies only when evidence offered to prove material terms of writing, defined broadly to include any collection of data in tangible form.

Original writing must be produced to prove its contents.

Duplicates are admissible as originals, unless:

1. there is a genuine question about the authenticity of the original checks; or
2. circumstances make it unfair to offer the duplicate

Handwritten copies are not duplicates.

Question 20

Competency

Answer 20

All persons are presumed competent to be a witness.

A witness must demonstrate an understanding of the duty to tell the truth and have personal knowledge of the matter about which they are testifying.

Personal knowledge is established by showing the witness has the capacity to observe, recollect, and communicate about the events in question.

These capacities are also central to the witness’s credibility.

Question 21

Personal Knowledge

Answer 21

A witness must have personal knowledge of the matter about which she is called to testify

Question 22

Lay Opinion Testimony

Answer 22

Inadmissible unless
(1) rationally based on the witness’s perception,
(2) helpful to a clear understanding of his testimony, and
(3) not based on scientific, technical or other specialized knowledge (STSK).

Question 23

Expert Opinion Testimony

Answer 23

Admissible if

(1) subject matter is appropriate and helpful,
(2) witness is qualified,
(3) opinion is believed with reasonable certainty, and
(4) opinion is reliable and supported by proper factual basis.

Reliability judged under Daubert factors: (1) publication and peer review, low error rate, testability, retestability, and reasonable acceptance.

Question 24

Impeachment by prior inconsistent statement of witness

Answer 24

Prior inconsistent statements made by a witness are admissible for impeachment purposes only and cannot be used as substantive evidence, unless they were made under oath in a prior legal proceeding, in which case they are admissible as nonhearsay.

Question 25

Impeachment with Felony Conviction

Answer 25

Convictions for felonies involving dishonesty or false statements, such as perjury, forgery, or fraud, are generally admissible without any need for the court to balance the evidence, unless the conviction is more than 10 years old. Convictions for felonies not related to dishonesty or false statements may be admitted at the court’s discretion. In the case of a criminal defendant, the conviction is inadmissible unless its probative value outweighs the unfair prejudice (reverse balancing). If the conviction is used to impeach another witness, it is generally admissible unless the unfair prejudice outweighs the probative value.

Question 26

Impeachment with misdemeanor convictions

Answer 26

Admissible if involving dishonesty or false statements. The court will exercise no balancing unless the conviction is over 10 years old. Inadmissible if misdemeanor does not involve dishonesty or false statements.

Question 27

Impeachment with evidence of specific bad acts (not felony or misdemeanor)

Answer 27

Impeachment through specific bad acts (excluding felonies and misdemeanors) can be utilized in cross-examination to question a witness’s character for truthfulness, subject to the court’s discretion to weigh the evidence. The introduction of extrinsic evidence is not permitted.

Question 28

Impeachment with evidence of character for untruthfulness

Answer 28

Impeachment with character evidence for untruthfulness allows the admissibility of opinion and reputation testimony that pertains to a witness’s truthfulness or untruthfulness.

Question 29

Attorney-client privilege

Answer 29

Attorney-client privilege protects confidential communications between an attorney and client or their representatives, made to facilitate professional legal services, unless waived by the client. The privilege extends to authorized corporate employees/agents communicating with the corporation’s attorney. Exceptions include seeking professional services for crime or fraud, communications between parties with a common interest, and communications concerning alleged breaches of duty between the lawyer and client.

Question 30

Doctor-Patient Privilege

Answer 30

While the Federal Rules of Evidence do not recognize a doctor-patient privilege, the majority of states provide patients with the privilege to prevent disclosure of confidential information shared with a physician for medical treatment purposes.

Exceptions to this privilege include:
(1) cases where the patient’s physical or mental condition is at issue,
(2) professional services sought for crime or fraud or escape after a crime or tort, and
(3) allegations of breach of duty between the patient and doctor or therapist, such as in malpractice actions.

Statements that deal with nonmedical matters cannot be covered under the doctor-patient privilege.

Question 31

Privilege Against Self-Incrimination

Answer 31

Under the 5th Amendment, a witness cannot be compelled to testify against themselves. Any witness compelled to appear in a civil or criminal proceeding may refuse to give an answer that ties the witness to the commission of a crime.

Question 32

Marriage - Spousal Immunity

Answer 32

When the privilege of spousal immunity is invoked, a married person whose spouse is a defendant in a criminal case may not be called as a witness by the prosecution. A married person may not be compelled to testify against the legal interests of their spouse in any criminal proceeding, regardless of whether the spouse is the defendant.

There must be a valid marriage for the privilege to apply, and the privilege lasts only during the marriage (even if the events at issue took place before the marriage). What matters is whether the spouses are married at the time of trial.

The witness-spouse is the only one who can assert this privilege.

Question 33

Marriage - Confidential Marital Communications

Answer 33

In any civil or criminal case, confidential communications between spouses during a valid marriage are privileged. Either spouse can refuse to disclose the communication or prevent any other person from doing so.

For this privilege to apply, the marital relationship must exist when the communication is made. Divorce will not terminate the privilege, but communications after divorce are not privileged.

Both spouses can assert this privilege.

Question 34

Hearsay Exceptions - Witness Unavailable

Answer 34

(1) Former testimony;
(2) Dying declaration;
(3) Statement against interest;
(4) Statement of personal or family history;
(5) Statement offered against a party that wrongfully caused the declarant’s unavailability