Evidence

Question 1

What facts are subject to judicial notice/when may a judge take notice of an adjudicative fact?

Answer 1

Only facts that are not subject to reasonable dispute because they are either:
-Generally known within the jurisdiction of the trial court; or
-Capable of being accurately and readily determined from sources whose accuracy cannot reasonably be questioned.

Question 2

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

Answer 2

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

Question 3

What are the 4 requirements to admit a record under the recorded recollection hearsay exception?

Answer 3

1. The record is on a matter that the witness once knew about;
2. The witness made/adopted the record when the matter was fresh in the witness’s memory;
3. The record accurately reflects the witness’s knowledge; and
4. The witness states that they cannot recall the event well enough to testify and accurately, even after consulting the record on the stand.

Question 4

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

Answer 4

The party offering the evidence ordinarily bears the burden to persuade the judge by a preponderance of the evidence.

Question 5

What is an offer of proof?

Answer 5

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.

-It is often made outside the presence of the jury as it can include hearsay or otherwise inadmissible evidence that could prejudice the jury.

Question 6

What is the plain error rule?

Answer 6

A plain error is one that is obvious to the reviewing court.
-A plain error that affects a substantial right is grounds for reversal.
-Not required to preserve via objection.

Question 7

Explain the completeness doctrine.

Answer 7

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.
-The adverse party party may do so over a hearsay objection.

Question 8

When are leading questions proper on direct examination?

Answer 8

Leading questions are proper on direct examination when necessary to develop the witness’s testimony, including:
-Preliminary background matters;
-Hostile witnesses; and
-Minors or those with difficulty communicating.

Question 9

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

Answer 9

Evidence of a witness’s conviction following a pardon is not admissible.

Evidence of a witness’s conviction may be used for impeachment purposes even while pending appeal, but evidence of the pendency is also admissible.

Question 10

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

Answer 10

To be entitled, the alleged victim must establish that:
-The destruction was intentional;
-The destroyed evidence was relevant to the issue about which the party seeks such inference; and
-The alleged victim acted with due diligence as to the destroyed evidence.

*The presumption is rebuttable.

Question 11

What is the difference between direct and circumstantial evidence?

Answer 11

Direct: Identical to the factual proposition that it is offered to prove.

Circumstantial: Tends to indirectly prove a factual proposition through an inference from collateral facts.

Question 12

To what proceedings do the Federal Rules of Evidence apply? What proceedings are exempt from these rules?

Answer 12

The Federal Rules generally apply to all civil and criminal proceedings before US district courts, courts of appeal, Bankruptcy Court, and Claims Court, and in proceedings before US magistrates.

Exceptions:
-Court determinations of preliminary questions of fact governing admissibility;
-Grand jury proceedings; and
-Criminal proceedings for issuance of a search warrant, preliminary examination, extradition, consideration of bail, sentencing, and granting/revoking probation.

Question 13

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

Answer 13

The opinion must be:
-Rationally based on the perception of the witness; and
-Helpful to a clear understanding of the witness’s testimony or the determination of a fact in issue.

*Must not be based on scientific, technical, or specialized knowledge.

Question 14

When is habit evidence admissible?

Answer 14

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.

*May be admitted without corroboration or an eyewitness.

Question 15

What 5 hearsay exceptions only apply when the hearsay declarant is unavailable?

Answer 15

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

Question 16

When must a preliminary hearing on admissibility be conducted outside the presence of the jury?

Answer 16

When the hearing involves:
-The admissibility of a confession;
-When the defendant in a criminal trial is a witness and so requests it; or
-When justice so requires.

Question 17

What is the difference between the application of a Dead Man’s Statute in a criminal case versus a civil case?

Answer 17

Criminal: Dead Man’s Statutes do not apply in criminal cases.

Civil: Applies to prevent a party with a financial interest in the outcome of a case to testify adversely about a communication or transaction with a person whose estate is a party to the case.

Question 18

What are 2 methods by which handwriting can be authenticated?

Answer 18

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 19

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

Answer 19

The prosecution can offer:
-Rebuttal evidence of the victim’s good character when the defendant has introduced evidence of the victim’s bad character; and
-Evidence of the victim’s character trait for peacefulness in homicide cases to rebut evidence that the victim was the first aggressor.

Question 20

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

Answer 20

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.

*Must pass Rule 403 balancing test.

Question 21

What is the Rule 403 balancing test?

Answer 21

If the probative value evidence is substantially outweighed by the danger of unfair prejudice then courts have discretion to exclude it.

Question 22

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

Answer 22

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

Question 23

What 4 categories of witnesses may not be excluded from the courtroom to prevent them from hearing the testimony of other witnesses?

Answer 23

1. A party who is a natural person;
2. 1 officer or employee of a party that is not a natural person if that officer or employee has been designated as the party’s representative by its attorney;
3. Any person whose presence is essential to a party’s preservation of its case; and
4. A person whose presence is permitted by statute.

Question 24

What 2 requirements must be met to use a conviction as impeachment evidence if more than 10 years have elapsed since the latter of the conviction or release from confinement?

Answer 24

The conviction is admissible if:
1. Its probative value substantially outweighs its prejudicial effect (REVERSE 403); and
2. The proponent gives the adverse party reasonable written notice of intent to use the evidence.

Question 25

What is the “bursting bubble” approach to burden shifting?

Answer 25

A rebuttable presumption no longer has a preclusive effect after the opposing party introduces sufficient evidence to sustain a contrary finding.
-If contrary evidence is introduced, the burden of persuasion remains on the party who had it originally.

Question 26

Describe the manner of proof used for admitting convictions to impeach a witness.

Answer 26

Evidence of a prior conviction may be produced by way of an admission by the witness on direct or cross-examination, as well as by extrinsic evidence.

Question 27

What are the 3 standards of proof?

Answer 27

1. Perponderance of the evidence;
2. Clear and convincing evidence;
3. Beyond a reasonable doubt.

Question 28

What is the definition of hearsay?

Answer 28

Hearsay is an out of court statement offered to prove the truth of the matter asserted.

Question 29

List 3 examples of preliminary questions of admissibility that a judge rather than a jury would determine.

Answer 29

1. The admissibility of evidence;
2. Whether a privilege exists; and
3. Whether a person is qualified to be a witness.

Question 30

What 2 elements do the Confrontation Clause of the 6th Amendment require in order for out-of-court testimony statements to be used against a criminal defendant?

Answer 30

1. The declarant is unavailable; and
2. The defendant must have had a prior opportunity to cross-examine the declarant.

*The confrontation clause does not preclude the admission of a dying declaration as hearsay, even if the statement is testimonial.

Question 31

At what time can a court take judicial notice?

Answer 31

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.

*The court may not take judicial notice against a criminal defendant for the first time on appeal.

Question 32

What 2 things must the proponent demonstrate to the court to determine whether the subject matter of an expert’s proposed testimony is proper?

Answer 32

1. Is the subject matter scientific, technical, or other specialized knowledge; and
2. Will it help the trier of fact understand the evidence or determine a fact in issue.

Question 33

What are the 3 requirements to admit a record under the records of regularly conducted activity hearsay exception?

Answer 33

1. The record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling;
2. The making of the record was a regular practice of that activity; and
3. The record was made at or near the time by someone with knowledge.

Question 34

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

Answer 34

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

*Lesser standard than a preponderance of the evidence.

Question 35

What are the present sense impression and excited utterance hearsay exceptions?

Answer 35

Present Sense Impression: A statement describing or explaining an event or condition that is made while or immediately after the declarant perceived it.

Excited Utterance: A statement made about a startling event or condition while the declarant is under the stress of excitement that it caused.

*A present sense impression must be a description of the event, whereas an excited utterance need only relate to the exciting event.

Question 36

How may a party to a telephone conversation authenticate statements made during that conversation as having been made by a particular individual?

Answer 36

By testifying that:
-The caller recognized the speaker’s voice;
-The speaker knew facts that only a particular person would know;
-The caller dialed a number believed to be the speaker’s, and the speaker identified themself upon answering; or
-The caller dialed a business and spoke to the person who answered about business regularly conducted over the phone.

*A voice call can be identified by any person who has heard the voice at any time, including one made familiar solely for the purposes of litigation.

Question 37

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

Answer 37

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:
-All of the originals are lost or destroyed, and not by the proponent acting in bad faith;
-The original cannot be obtained by any available judicial process;
-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
-The document is not closely related to a controlling issue.

Question 38

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

Answer 38

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:
-It is offered in a criminal case;
-An adult’s conviction for that offense would be admissible to attack the adult’s credibility; and
-Admitting the evidence is necessary to fairly determine guilt or innocence.

Question 39

What are 3 ways in which tangible evidence may be authenticated?

Answer 39

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 be easily tampered with or confused with a similar item.

Question 40

What is required for evidence to be relevant?

Answer 40

Evidence is relevant if:
-It has any tendency to make a fact more or less probable that it would be without the evidence; and
-The fact is of consequence in determining the action.

Question 41

When may “work product” be subject to discovery?

Answer 41

Work product is not subject to discovery unless the party seeking disclosure:
-Demonstrates a substantial need for the information; and
-Cannot obtain the information by any other means without undue hardship.

*Mental impressions, conclusions, and trial tactics of an attorney are always protected from discovery.

Question 42

What is the “rape shield” rule?

Answer 42

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

Question 43

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

Answer 43

When character is an essential element of a claim or defense.

Character may be proved by reputation, opinion, and specific instances of a person’s conduct.

Question 44

What are 3 instances in which specific acts are admissible in criminal cases?

Answer 44

1. When character is an essential element of a charged crime or defense and a defendant offers specific acts inconsistent with the crime;
2. For non-propensity purposes; and
3. When a character witness is asked on cross-examination about specific acts committed by the person about whom the witness is testifying.

Question 45

What are 5 non-hearsay uses for out-of-court statements?

Answer 45

A statement is non-hearsay if offered:
1. To prove that the statement was made;
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 46

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

Answer 46

If the statement:
-Was against the declarant’s interest at the time it was made; and
-Would not have been made by a reasonable person unless they believed it to be true.

Question 47

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

Answer 47

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.

Question 48

For what 2 purposes are compromise offers and negotiations inadmissible as a public policy exclusion?

Answer 48

Compromise offers and any conduct or statements made during compromise negotiation are inadmissible by either party:
-To prove or disprove the validity or amount of a disputed claim; or
-For impeachment by a prior inconsistent statement or contradiction.

Question 49

What are exceptions to the best evidence rule?

Answer 49

Original unavailable - Other evidence can be used to prove contents if:
-The original is lost or destroyed;
-The original is not attainable by judicial process;
-Opponent had the original, knew it was required, and failed to produce it; or
-The contents are not closely related to a controlling issue.

Admission by party: Contents can be proven by the opposing party’s testimony, deposition, or written statement.

Public Record - Contents of public records can be proven by:
-Certified copy;
-Copy of records & comparison testimony; or
-Other evidence if the above proof is not reasonably obtainable.

Question 50

Evidence of a defendant’s previous bad acts is inadmissible for propensity purposes, but what can such evidence be used for?

Answer 50

Evidence of prior bad acts can be used to prove:
1. Motive/opportunity
2. Intent
3. Mistake/accident (absence of)
4. Identity
5. Common scheme/plan

Question 51

When is evidence of liability insurance admissible?

Answer 51

Evidence that a person was or was not insured against liability is inadmissible to prove a person acted negligently or wrongfully.

Evidence of liability insurance is admissible for nonsubstantive purposes:
-To impeach a witness with evidence of self-interest, bias, or prejudice; or
-To prove agency, ownership, or control.

Question 52

When is hearsay not within an exception admissible?

Answer 52

Hearsay may be used to impeach a declarant as an inconsistent statement.

*It cannot be used as substantive proof.

Question 53

What are the 8 hearsay exceptions that are deemed inherently reliable?

Answer 53

1. Present sense impression
2. Excited utterance
3. Past recollection recorded
4. Then-existing mental/physical condition
5. Statement for medical diagnosis/treatment
6. Business & public records
7. Documents & statements on property interest
8. Certificates of birth, marriage, baptism

Question 54

What hearsay exceptions are available only if the declarant is unavailable?

Answer 54

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.

Question 55

How does the impeachment of hearsay declarants operate differently from the impeachment of witnesses?

Answer 55

Hearsay declarants: Need not be given an opportunity to explain or deny the offered impeachment evidence.

Witnesses: Can only be impeached with an inconsistent statement if the witness is given the opportunity to explain or deny the statement and the opposing party can question the witness about the statement.

*Ask: Is the person testifying being treated as a witness or the hearsay declarant?

Question 56

When may hearsay within hearsay be admitted?

Answer 56

Hearsay within hearsay is only admissible if both are excluded or excepted from hearsay.

Question 57

When is former testimony admissible as a hearsay exception?

Answer 57

Former testimony is admissible if:
1. The declarant is unavailable;
2. The testimony was given at a trial, hearing, or deposition in the current case or a different proceeding that involved similar parties and issues; and
3. The party against whom the testimony is offered had an opportunity and similar motive to develop that testimony through direct or cross-examination of the declarant.

Question 58

In what ways can habit or routine practice evidence be proven?

Answer 58

Habit and routine practice can be proven by evidence of:
1. Specific instances of conduct that tend to show a regular response to a specific, recurring situation; or
2. Opinion testimony of a witness with personal knowledge of the habit or routine practice.

*It is admissible regardless of whether it is corroborated.

Question 59

When may summaries be used to prove the contents of documents?

Answer 59

A proponent of writings, recordings, or photographs may use summaries, charts, or calculations to prove contents if the proponent establishes:
1. The originals are voluminous and cannot be conveniently examined in court;
2. The originals would be admissible;
3. The originals were made available for other parties to examine and copy; and
4. The summary is fair and accurate.

Question 60

Is a document prepared in anticipation of trial a business record?

Answer 60

No.

Question 61

What evidence can be used to attack the credibility of a witness’s testimony?

Answer 61

The credibility of a witness’s testimony can be attacked by showing specific instances of conduct that illustrate the witness’s bias through:
1. Intrinsic evidence: Questioning the witness about the conduct; or
2. Extrinisic evidence: From any source other than the witness’s own testimony.

Question 62

Generally, statements made during settlement or plea negotiations are not admissible against a defendant who participated, but when may a defendant waive this protection?

Answer 62

A defendant may waive this protection if the waiver is made:
1. Knowingly; and
2. Voluntarily.

Question 63

In what manner can a party present evidence of a specific contradiction?

Answer 63

A witness can be impeached with evidence that contradicts their testimony through either:
1. Intrinsic evidence: Testimony elicited from that witness; or
2. Extrinsic evidence: Evidence from any source other than that witness.

*Extrinsic evidence cannot be used to impeach a witness on a collateral matter, it has to be relevant to a material issue in the case.

Question 64

When is evidence of a subsequent remedial measure inadmissible?

Answer 64

Evidence of a subsequent remedial measure is inadmissible to prove:
1. Negligence; or
2. Other culpable conduct.

*A court may allow evidence of subsequent remedial measures for other limited purposes.