Evidence

Question 1

Confrontation clause

Answer 1

Secures a defendant’s right to confront witnesses offering testimonial evidence against him/her in a criminal case

Question 2

What is testimonial evidence?

Answer 2

Evidence made primarily for use in a criminal investigation.

EX:
* Witness statements made to police
* Grand jury testimony
* Lab results
* Transcripts of prior testimony
* Affidavits

Question 3

When is testimonial evidence admissible?

Answer 3

When: (1) declarant is unavailable as a witness at trial, AND (2) the defendant had a prior opportunity to cross-examine the declarant

Question 4

Medical records (hearsay exception)

Answer 4

Statements regarding how a patient was injured (not who is responsible for the injury) are admissible

Question 5

Character Evidence

Answer 5

In civil cases, evidence of a person’s character is inadmissible to prove that the person acted in accordance with that character on the occasion at issue unless character is an essential element of a claim or defense.

Question 6

Refreshing recollection while on witness stand

Answer 6

The opposing party MUST be allowed to inspect it, cross-examine the witness on it, and introduce any relevant portion into evidence.

Question 7

How is documentary evidence authenticated through handwriting verification?

Answer 7

1) Non-expert opinion – a lay witness with personal knowledge of the claimed author’s handwriting (not acquired for the current litigation) testifies that a document is in the author’s handwriting; OR
2) Comparison – an expert witness or the trier of fact compares the writing in question with another writing that has been authenticated.

Question 8

What is an adjudicative fact?

Answer 8

One that is important to the outcome of particular case

Question 9

When can judicial notice be taken?

Answer 9

At any stage of a proceeding – including on appeal, so long as it is not unfair to the opposing party and does not disrupt the fact finder’s authority.

Question 10

Can a judge examine a witness during trial?

Answer 10

Yes, FRE 614 authorizes the court to develop or clarify testimony by: (1) calling a witness sua sponte or at the suggestion of a party and/or (2) examining a witness, regardless of who called the witness.

Question 11

When can a party object to the court’s questioning of a witness?

Answer 11

Objection may be postponed until the next opportunity where the jury is no longer present in the courtroom.

Question 12

Prior inconsistent statement

Answer 12

Always admissible to discredit witness’ trial testimony; however, can be used as substantive evidence to prove truth only if excluded or excepted from hearsay (i.e.)

Question 13

Business record exception

Answer 13

Records that are (1) made at or near the time of the recorded event (or act, condition, opinion, diagnosis); (2) made by or based on information from someone with personal knowledge of that event; and (3) made and kept as a regular practice in the course of regularly conducted business activities.

NOTE: Records made in preparation for litigation do not fall under this exception.

Question 14

Past recollection recorded

Answer 14

A record may be read into evidence if: (1) a witness once knew the recorded information but cannot recall it at trial; (2) the witness made or adopted the record when the matter was fresh in his/her mind; and (3) the record accurately reflects the witness’ personal knowledge at the time it was made.

Question 15

When is a witness qualified to provide expert opinion testimony

Answer 15

When the witness has specialized knowledge, skill, experience, education, or training in a subject that pertains to an issue in litigation.

Question 16

When is expert testimony admissible?

Answer 16

If the court determines that it is BOTH:

(1) relevant – testimony will help the trier of fact understand the evidence or determine a fact in issue AND

(2) reliable – testimony is based on sufficient facts or data and product of reliable principles and methods that have been reliably applied by the expert to the facts of the case

Question 17

Two methods of verifying handwriting

Answer 17

(1) Non-expert opinion – lay witness with personal knowledge of the claimed author’s handwriting (not acquired for the current litigation) testifies as to whether a document is in the author’s handwriting

(2) Comparison – an expert witness or the trier of fact compares the writing in question with another writing that has been authenticated

Question 18

Rule of completeness

Answer 18

An adverse party may introduce any other part of the admitted statement OR any other statement that should, in fairness, be considered with the admitted statement.

PP: This rule seeks to remedy the misleading effects that an out-of-context or incomplete statement may have on a fact finder.

Question 19

Best evidence rule

Answer 19

Requires that an original or reliable duplicate of a recording, writing, or photograph be produced to prove its contents. However, a party may use other, secondary evidence (i.e. testimony) to prove a document’s contents if certain factual conditions are established (eg, all originals are lost or destroyed)

Question 20

Who determines whether a party has fulfilled the factual conditions for admitting secondary evidence (Best Evidence Rule)

Answer 20

Usually it is a determination for the court; however, in a jury trial, the jury determines issues about whether:
(1) an asserted document ever existed;
(2) another document produced at a hearing or trial is the original; or
(3) other evidence of content accurately reflects the documents content.

Question 21

What is the scope of cross-examination questions limited to?

Answer 21

(1) the subject matter of direct examination and (2) matters affecting the witness’ credibility.

Question 22

What can a party introduce to attack a witness’ credibility?

Answer 22

(1) Prior inconsistent statement made by the witness; (2) a motive for the witness to lie (eg, bias against a party) or (3) specific instances of conduct that are probative of the witness’ character for truthfulness.

Question 23

When can a specific instance of conduct be introduced extrinsically (i.e. from other sources)?

Answer 23

When it relates to a criminal conviction for a felony or crime of dishonesty

Question 24

Statement against interest

Answer 24

One that is: (1) contrary to the declarant’s proprietary (ie, ownership) or pecuniary (monetary) interest, (2) tends to invalidate the declarant’s claim against someone else, or (3) exposes the declarant’s to civil or criminal liability

Question 25

Offer of compromise (i.e. settlement offer)

Answer 25

Inadmissible to prove the validity or amount of a disputed claim. However, this rule only applies if there was an actual dispute regarding a party’s liability or the value of a claim at the time the offer was made.

Question 26

Out of court statement made by and offered against a party opponent

Answer 26

Excluded from the hearsay rule (i.e. hearsay). The opposing party’s statement is admissible as substantive evidence as long as it is relevant and not prohibited by other evidentiary rules.

Question 27

How can one attack the credibility of a witness?

Answer 27

By introducing reputation, opinion testimony, or specific instances of conduct (SICs) that are probation of the witness’ character for untruthfulness

Question 28

Character evidence

Answer 28

Generally not admissible because too prejudicial.

Note — CE is about bad things one of the parties did in the past.

Question 29

Judicial notice

Answer 29

Facts that are accepted — no reason to waste time disputing/opinion.

Question 30

If party requests judicial notice must judge accept?

Answer 30

Yes

Question 31

Character evidence when a person’s character is directly in issue

Answer 31

Character can be proved by reputation or opinion testimony OR specific instances of conduct

Question 32

Best evidence rule

Answer 32

Only applies when a defendant’s contents are at issue — ie, when (1) the document is used to prove the happening of an event, (2) the document has a legal effect, or (3) the witness is testifying based on facts from the document

Question 33

Character Evidence when character is “in issue”

Answer 33

When plaintiff’s character is “in issue” – i.e., an essential element of the claim or defense under the substantive law, character evidence is relevant both to whether the plaintiff has a certain character and to the extend of damages. (FRE 405 – when character is in issue, it can be proved by evidence of reputation, opinion, or specific acts)

Question 35

Absence of business records hearsay exception

Answer 35

Absence of entries in business records are admissible as substantive evidence if: (1) evidence is offered to prove matter did not occur or exist, (2) the record was regularly kept for that kind of matter, and (3) opponent does not establish a lack of trustworthiness

Question 36

Learned Treatise

Answer 36

Under the learned treatise exception, if the court finds a publication to be a reliable authority, then if a statement in the publication is “called to the attention of an expert witness on cross-examination or relied on by the expert on direct examination,” then the statement “may be read into evidence but not received as an exhibit.”

Question 37

Negligence per se

Answer 37

Three requirements: (1) defendant violated a statute, (2) the statute was designed to protect against the same type of accident that the defendant’s conduct caused, and (3) the accident victim falls within the class of persons the statute was designed to protect.

Question 38

When are attorney-expert communications NOT privileged?

Answer 38

(1) when they relate to the expert’s compensation, or (2) identify facts, data, or assumptions provided by the attorney that the expert considered or relied on in forming his/her opinions.

Question 39

Can a criminal defendant offer evidence of their good character?

Answer 39

Yes, but only if it is pertinent to the charges against them.

EX: A defendant who is charged with battery (crime of violence) may offer evidence of his/her peaceful nature. Such evidence must be in the form of reputation or opinion testimony

Question 40

How is a photograph authenticated?

Answer 40

By having a witness with personal knowledge, i.e. knowledge based on firsthand observation or experience – of the thing depicted testify that the photograph fairly and accurately depicts that thing.

Question 41

Does relevant tangible evidence need to be property authenticated before it can be introduced into evidence?

Answer 41

Yes

Question 42

Dying declaration

Answer 42

(1) declarant must be unavailable; (2) the case must be a civil or homicide case, (3) the statements must relate to the cause or circumstance of death, and (4) the statement must be made under belief of impending death.