Evidence

Question 1

What is the balancing test when determining whether a testifying criminal defendant can be impeached with a conviction not involving dishonesty?

Answer 1

When the witness is the criminal defendant, evidence of a felony conviction for a crime not involving dishonesty or false statement is admissible only if its probative value outweighs the prejudicial effect to that defendant.

Note: This is a stricter than usual standard to afford greater protection to criminal defendants. Jury members often struggle to limit the use of the conviction to impeach credibility, rather than to determine guilt or innocence.

Question 2

What requirements must be met for the opinion of a lay witness to be admissible?

Answer 2

The opinion must be:

(i) Rationally based on the perception of the witness; and

(ii) Helpful to a clear understanding of the witness’s testimony or the determination of a fact in issue.

Additionally, the opinion must not be based on scientific, technical, or specialized knowledge.

Question 3

Explain the completeness doctrine.

Answer 3

When a party introduces part of a statement, an adverse party may:

• Compel the introduction of an omitted portion of the statement if:
  
  • In fairness, it should be considered at the same time, such as when the omitted portion explains or clarifies the admitted portion.
• The adverse party may do so over a hearsay objection.

[Note: This rule allows the adverse party to have the omitted portion admitted immediately to ensure the finder of fact is not viewing the evidence too narrowly. This is really a rule of fairness.]

Question 4

What is the rule of completeness?

Answer 4

When a party introduces part of a statement, an adverse party may compel the introduction of an omitted portion of the statement if, in fairness, it should be considered at the same time.

Question 5

What is the proper scope of cross-examination?

Answer 5

The scope of cross-examination is generally limited to the subject matter of the direct-examination and the credibility of the witness. The court has broad discretion in this area.

Question 6

With respect to preliminary questions of admissibility, who has the burden of persuasion?

Answer 6

The party offering the evidence ordinarily bears the burden of persuasion.

[Note: The party offering the evidence is often referred to as the moving party, or the proponent.]

Question 7

With respect to preliminary questions of admissibility, what is the burden of persuasion?

Answer 7

The party offering the evidence ordinarily bears the burden to persuade the judge by:
* A preponderance of the evidence.

[Note: This is also expressed as more likely than not.]

Question 8

What is required for evidence to be “relevant?”

Answer 8

Evidence is relevant if:

(i) It has any tendency to make a fact more or less probable than it would be without the evidence (i.e., probative);

AND

(ii) The fact is of consequence in determining the action (i.e., material).

Question 9

When is a judge permitted to be called as a witness in a trial over which she is presiding?

Answer 9

A judge is absolutely barred from testifying as a witness in the trial in which she is presiding.

Question 10

In what six situations does the physician-patient privilege not apply?

Answer 10

(i) The information was acquired for reasons other than treatment;

(ii) The patient’s physical condition is at issue;

(iii) The communication was made as part of the commission of a crime or tort;

(iv) A dispute exists between the physician and the patient;

(v) The patient contractually agreed to waive the privilege; or

OR

(vi) A case is brought in federal court and state law does not apply (e.g., most cases that involve a federal question).

Question 11

When does a statement by an unavailable declarant qualify as a “statement against interest” hearsay exception?

Answer 11

If the statement:

(i) Was against the declarant’s interest at the time it was made;

AND

(ii) Would not have been made by a reasonable person unless he believed it to be true.

Question 12

For impeachment purposes, distinguish between the pendency of an appeal of a conviction and a pardon.

Answer 12

A pardon releases the punishment and eliminates the guilt for the offense, so that in the eyes of the law the offender is as innocent as if he had never committed the offense.
* Evidence of the witness’s conviction is not admissible if it has been the subject of a pardon.

A witness’s conviction may be used for impeachment purposes even if:
* An appeal is pending. Evidence of the pendency is also admissible.

Question 13

When may the prosecution offer evidence of an alleged victim’s good character in a criminal case?

Answer 13

The prosecution can offer:

**(i) **Rebuttal evidence of a victim’s good character when the defendant has introduced evidence of the victim’s bad character;

AND

(ii) Evidence of the victim’s character trait for peacefulness in homicide cases to rebut evidence that the victim was the first aggressor.

Question 14

List three examples of preliminary questions of admissibility that a judge, rather than a jury, would determine.

Answer 14

(i) the admissibility of evidence;

(ii) whether a privilege exists;

(iii) whether a person is qualified to be a witness.

[Note: Judges also determine whether an exception would apply to allow hearsay into the record.]

Question 15

What are the two ways that a criminal defendant may “open the door” for the prosecution to introduce bad character evidence about the defendant?

Answer 15

The defendant opens the door to evidence of his own character if the defendant introduces evidence of:

(i) The defendant’s good character;

OR

(ii) The victim’s bad character.

• The prosecution may rebut the defendant’s claims by attacking the defendant’s character.

Question 16

What are five non-hearsay uses for out-of-court statements (i.e. uses that prove something other than the truth of the matter asserted)?

Answer 16

A statement is non-hearsay if offered:

(1) To prove that the statement was made (i.e., as legally operative fact);

(2) To show the effect on the recipient;

(3) As circumstantial evidence of the declarant’s state of mind;

(4) As circumstantial evidence of identity; or

(5) Solely to impeach or rehabilitate.

Question 17

Who bears the burden of production in a criminal case?

Answer 17

The moving party in a criminal case is the prosecution. Therefore the government bears the burden of production, or moving forward, with the evidence.

[Note: Failure to meet this burden could result in a judgment of acquittal.]

Question 18

When does the intentional destruction of evidence raise a presumption or inference that such evidence would have been unfavorable to the party that destroyed the evidence?

Answer 18

To be entitled to such an inference, the alleged victim must establish that:

(i) The destruction was intentional;

(ii) The destroyed evidence was relevant to the issue about which the party seeks such inference;

AND

(iii) The alleged victim acted with due diligence as to the destroyed evidence.

[Note: This presumption is rebuttable.]

Question 19

When are leading questions proper on direct examination?

Answer 19

Leading questions are proper on direct examination when necessary to develop the witness’s testimony, including:

(i) preliminary background matters;

(ii) hostile witnesses;

AND

(iii) minors or those with difficulty communicating.

Question 20

What are the four requirements to admit a record under the recorded recollection hearsay exception?

Answer 20

(i) The record is on a matter that the witness once knew about;

(ii) The witness made/adopted the record when the matter was fresh in the witness’s memory;

(iii) The record accurately reflects the witness’s knowledge;

AND

(iv) The witness states that she cannot recall the event well enough to testify fully and accurately, even after consulting the record on the stand.

Question 21

What two elements do the Confrontation Clause of the Sixth Amendment require in order for out-of-court testimonial statements to be used against a criminal defendant?

Answer 21

(i) The declarant must be unavailable;

AND

(ii) The defendant must have had a prior opportunity to cross-examine the declarant.

[Note: The Confrontation Clause does not preclude the admission of a dying declaration as hearsay, even if the statement is testimonial.]

Question 22

When is a juror permitted to be called as a witness in a trial in which she is presently a juror?

Answer 22

A juror may not testify as a witness at trial in front of the members of the jury.

Question 23

At what time can a court take judicial notice?

Answer 23

Judicial notice can be taken at any time during a proceeding, including:
* On appeal, whether:
* Upon request of a party or by the court’s own initiative.

[Note: The court may not take judicial notice against a criminal defendant for the first time on appeal.]

Question 24

When are subsequent remedial measures inadmissible?

Answer 24

When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove:

• Negligence;
• Culpable Conduct;
• A Defective Product or Design;

OR

• The Need for a Warning or Instruction.

Question 25

What does the best evidence rule require, and what are its exceptions?

Answer 25

If the contents of a document are at issue, or a witness is relying on the contents of the document, the best evidence rule requires that the original document be produced to prove its contents, unless:

(i) All of the originals are lost or destroyed, and not by the proponent acting in bad faith;

(ii) The original cannot be obtained by any available judicial process;

(iii) The party against whom the original would be offered:
* (a) had control of the original;
* (b) was on notice that the original would be the subject of proof; **AND **
* (c) failed to produce it at the trial or hearing;

OR

(iv) The document is not closely related to a controlling issue.

Question 26

What is the plain error rule?

Answer 26

• A plain error is one that is obvious to the reviewing court.
• A plain error that affects a substantial right is grounds for reversal, even if no objection was made.

Question 27

Under what five circumstances is a declarant considered unavailable for the purposes of hearsay exceptions?

Answer 27

An unavailable declarant is a person who:

(1) Is exempt on the grounds of privilege;

(2) Refuses to testify despite a court order to do so;

(3) Lacks memory of the subject matter of the statement;

(4) Is unable to testify due to death, infirmity, or physical or mental disability;

OR

(5) Is absent and cannot be subpoenaed or otherwise made to be present.

Question 28

When may an expert testify as to facts and data that the expert has not personally observed?

Answer 28

When experts in the particular field would reasonably rely on those kinds of facts and data in forming an opinion on the subject.

[Note: If such facts are inadmissible, the proponent nevertheless may disclose them to the jury if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect.]

[Also note: An expert may state an opinion and give the reasons for it without first testifying as to the underlying facts or data, unless the court orders otherwise.]

Question 29

What is the definition of hearsay?

Answer 29

Hearsay is a statement that the declarant makes at a time other than while testifying at the current trial or hearing (i.e., an out-of-court statement) that is offered to prove the truth of the matter asserted.

Question 30

When may a witness be impeached by evidence of a juvenile adjudication?

Answer 30

Evidence of a juvenile adjudication is NOT admissible against a defendant. Another witness may be impeached by evidence of a juvenile adjudication, but ONLY IF:

(i) it is offered in a criminal case,
(ii) an adult’s conviction for that offense would be admissible to attack the adult’s credibility;

AND

(iii) admitting the evidence is necessary to fairly determine guilt or innocence.

[Note: Remember, regardless of how probative a juvenile adjudication might be, if it is being used against a criminal defendant, it is inadmissible.]

Question 31

What is the difference between direct and circumstantial evidence?

Answer 31

• Direct evidence is identical to the factual proposition that it is offered to prove.
• Circumstantial evidence tends to indirectly prove a factual proposition through an inference from collateral facts.

Question 32

What is limited admissibility?

Answer 32

• Limited admissibility means that evidence may be admissible for one purpose but not for another, or against one party but not against another.
• In these cases, if a party makes a timely request, the court must restrict the evidence to its proper scope and instruct the jury accordingly.

Question 33

What standard of proof applies to the authentication of tangible evidence?

Answer 33

The proponent of the evidence must produce sufficient evidence to support a finding that the thing is what its proponent claims it is.

[Note: This is a lesser standard than a preponderance of the evidence.]

Question 34

What is an offer of proof?

Answer 34

An offer of proof is an oral or written explanation of the relevance and admissibility of the evidence being offered by the proponent on the record.

[Note: An offer of proof is often made outside the presence of the jury as it can include hearsay or otherwise inadmissible evidence that could prejudice the jury.]

Question 35

What is the “rape shield” rule?

Answer 35

Evidence offered to prove the victim’s sexual behavior/predisposition is generally inadmissible in any proceeding involving sexual misconduct.

Question 36

What facts are subject to judicial notice?

Answer 36

Only those facts that are not subject to reasonable dispute because they are either:

• (i) generally known within the territorial jurisdiction of the trial court;

OR

• (ii) capable of being accurately and readily determined from sources whose accuracy cannot reasonably be questioned are subject to judicial notice.

Question 37

What are the two spousal privileges?

Answer 37

• Spousal Immunity:
  
  • For the duration of their marriage, a married person cannot be compelled to testify against their spouse in any criminal proceeding.
• Confidential Marital Communications:
  
  • Communication made between spouses while they were married is privileged.

Question 38

When is character evidence admissible in civil cases, and in what forms?

Answer 38

• When character evidence is an essential element of a claim or defense.
• When admissible in a civil case, character may be proved by:
  • reputation;
  • opinion; AND
  • specific instances of a person’s conduct.

Question 38

What are three ways in which tangible evidence (e.g., murder weapon) may be authenticated?

Answer 38

1. By testimony of personal knowledge of the object;

2. By testimony of its distinctive characteristics;

3. By chain of custody when a physical object that could easily be tampered with or confused with a similar item (e.g., a blood sample)

Question 39

What are the three types of prior statements by a declarant witness that are defined by the FRE as non-hearsay?

Answer 39

(1) Prior inconsistent statements made under penalty of perjury;

(2) Prior consistent statements admitted to (i) rehabilitate the witness’s credibility or (ii) rebut a suggestion of recent fabrication or improper motive, as long as the prior statement was made before the witness had reason to fabricate;

(3) Prior statements of identification of a person after perceiving that person

Question 40

What are the two methods by which handwriting can be authenticated?

Answer 40

1. An expert witness or the trier of fact may compare the writing in question with another writing that has been proven to be genuine;

OR

2. A lay witness with personal knowledge of the claimed author’s handwriting may authenticate the handwriting, as long as the witness did not become familiar with the handwriting for the purposes of the current litigation.

Question 41

When is habit evidence admissible?

Answer 41

Evidence of a person’s habit or an organization’s routine is admissible to prove that the person or organization acted in accordance with the habit or routine on a particular occasion.
* It may be admitted without corroboration or an eyewitness.

Question 42

When can evidence that a criminal defendant committed another sexual assault be admitted?

Answer 42

In a criminal case in which a defendant is accused of sexual assault, attempted sexual assault, or conspiracy to commit sexual assault, evidence that the defendant committed any other sexual assault is admissible to prove any relevant matter.

[Note: The court does have discretion to exclude such evidence under Rule 403 when the probative value is substantially outweighed by the danger of unfair prejudice.]

Question 43

What three requirements must be met for a qualified expert witness to offer opinion testimony?

Answer 43

The witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion if the proponent demonstrates that it more more likely than not that:

(i) The testimony is based on sufficient facts or data;

(ii) The testimony is the product of reliable principles and methods;

AND

(iii) The expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.

[Note: The expert must also possess a reasonable degree of certainty in her opinion, which may be expressed using language such as “probably.” Also note: While a witness may state an opinion about a matter, even though the opinion embraces an ultimate issue in the case, an expert may not state an opinion about whether a criminal defendant had the requisite mental state of any element of the crime charged or of a defense.]