Evidence

Question 1

Federal Rules Applicability / Non-Applicability

Answer 1

• FRE applicable in all Civil and Criminal federal proceedings
• Except for rules relating to PRIVILEGE, FRE do not apply in:
  (1) Preliminary fact determinations by judge
  (2) Grand jury proceedings
  (3) Other miscellaneous (Sentencing; Extradition; Bail; Probation)

Question 2

General Rule of Admissibility

Answer 2

• Irrelevant evidence never admissible
• Relevant evidence admissible unless kept out by some other evidence rule

Question 3

Define: Relevance

Answer 3

Evidence is relevant if it has any tendency to make the existence of any fact that is (1) of consequence to the determination of the action (2) more probable or less probable that it would be without the evidence

Evidence must be logically and legally relevant to be admissible. Logical relevance simply requires that the evidence make a disputed fact of consequence more or less probable. Evidence is legally relevant if its probative value is not substantially outweighed by the danager of unfair prejudice, waste of time, misleading the jury, or needless presentation of cumulative evidence.

Question 4

What does it mean to be “of consequence”?

Answer 4

Offered to prove a fact that the applicable substantive law in this case says is of consequence

Question 5

What does it mean to be “more probable or less probable”?

Answer 5

Use your common sense and explain why the probability has increased or decreased, even if it’s obvious!

Question 6

Probative Value 🆚 Relevance

Answer 6

• Probative Value = the degree to which evidence affects a fact of consequence
• Relevance = evidence is relevant if it affects the probabilities of fact of consequence to any degree even the slightest (yes or no answer)

Question 7

Court’s Discretion to Exclude Relevant Evidence (403)

Answer 7

Judge has discretion to exclude evidence if probative value SUBSTANTIALLY OUTWEIGHED by the dangers of:
1. Unfair prejudice
2. Confusion of issues
3. Misleading jury
4. Waste of time
5. Undue delay
6. Repetitive

Question 8

Define: Unfair Prejudice

Answer 8

Evidence has the potential to move the jury to decide the case on some IMPROPER BASIS, such as:
(1) Emotion
(2) Evidence admissible on limited basis (1 item of evidence that’s relevant to prove 2 facts of consequence; admissible for 1 and inadmissible for other)

Question 9

Define: Similar Occurrences

Answer 9

When evidence involves some time, event, or person other than that involved in the present case, usually inadmissible; however, some rules allow prior similar occurrences to be admitted.

Question 10

Similar Occurrences - Admissible

(1) Similar Accidents or Injuries Caused by Same Condition

Answer 10

Evidence of prior accidents or injuries caused by the same event or condition and occurring under substantially similar circumstances is ADMISSIBLE to prove:
(1) Existence of dangerous condition
(2) Causation
(3) Notice to defendant

Question 11

Similar Occurrences - Admissible

(2) Plaintiff’s Prior Accidents or Claims & 2 Exceptions

Answer 11

Evidence of a plaintiff’s prior accidents or claims is usually INADMISSIBLE; all it demonstrates is that the plaintiff is litigious or accident-prone.

2 Exceptions
(1) Pre-existing condition: evidence of prior accidents may be admissible where the cause of plaintiffs damages is at issue. If plaintiff previously injured the SAME part of their body, evidence may be admitted to show that plaintiff’s condition is attributable to the prior injury rather than the current accident.

(2) Pattern of false claims: evidence that a plaintiff has made previous similar false claims is usually relevant to prove that the current claim is likely to be false

Question 12

Similar Occurrences - Admissible

(3) Previous Similar Acts to Prove Intent

Answer 12

Similar conduct previously committed by a party may be admissible to prove the party’s present motive or intent in the current case

Question 13

Similar Occurrences - Admissible

(4) Rebutting Claim of Impossibility

Answer 13

Evidence of similar occurrences may be admitted to rebut a claim of impossibility

Question 14

Similar Occurrences - Admissible

(5) Comparable Sales to Establish Value

Answer 14

Value of property may be at issue in certain cases, such as in a condemnation action, or to prove the amount of damages where property has been harmed or destroyed. In this situation, evidence of the sale price of similar property is admissible if it was in the same are and sold at around the same time

Question 15

Similar Occurrences - Admissible

(6) Habit Evidence

Answer 15

• Admissible as circumstantial evidence person acted in accordance with habit on occasional issue
• Habit: regular response to a specific set of circumstances; repeated conduct; evidence objectively describes conduct without suggesting anything about person’s morality
• Compared to Character Evidence: describes someone’s general disposition or propensity (I.e., “careful driver”) and usually conveys moral judgment; usually not admissible to prove how a person acted during events of the case

Question 16

Similar Occurrences - Admissible

(7) Routine Practice Evidence

Answer 16

Organization’s routine practice admissible as evidence of how organization acted in current case

Question 17

Similar Occurrences - Admissible

(8) Industrial Custom Evidence

Answer 17

Evidence as to how others in the same trade or industry have acted in the recent pas is admissible as evidence of appropriate standard of care (to show how the party in the current case should have acted). However, industry custom in’t conclusive on this point.

Question 18

Liability Insurance

Answer 18

• INADMISSIBLE to prove
  (1) Negligence or wrongful conduct
  (2) Ability to pay
• ADMISSIBLE to prove
  (1) Ownership or control
  (2) Impeachment
  (3) Part of an admission of liability

Question 19

Subsequent Remedial Measures

Answer 19

• INADMISSIBLE to prove
  (1) Negligence
  (2) Culpable conduct
  (3) Defect in product or its design
  (4) Need for a warning or instruction
• ADMISSIBLE to prove
  (1) Ownership or control
  (2) Rebut a claim that precautions were not feasible
  (3) Destruction of evidence by opposing party

Question 20

Civil Settlement Offers or Negotiations

Answer 20

Settlements, offers, conduct or statements in negotiations are
* INADMISSIBLE
(1) To prove or disprove validity or amount of a disputed claim
(2) Impeach witness by prior inconsistent statement or contradiction
* ADMISSIBLE for all other purposes

Question 21

When Does Public Policy Excusion for Settlements and Negotiations Apply?

Answer 21

Disputed claim required, i.e., evidence is excluded only if
(1) Claim or threat of claim
(2) Disputed as to validity or amount

Ex) “It was all my fault, lets settle” = admissible
Ex) “My neck hurts, gonna see a lawyer” = inadmissible

Question 22

Limited Exception: Civil Dispute with Government Authority

Answer 22

Conduct or statements made during compromise negotiations regarding a civil dispute with a governemntal regulatory, investigative, enforcement authority are NOT excluded when offered in a CRIMINAL case

Question 23

Withdrawn Guilty Pleas & Offers to Plead Guilty

Answer 23

• INADMISSIBLE for nearly all purposes:
  Offers to plead guilty
  Withdrawn guily plea
  Actual no contest pleas
  Statements in plea discussions
• ADMISSIBLE for actual guilty plea that was not withdrawn in related litigation as a statement of an opposing party (See hearsay)

Question 24

Offers to Pay & Payment of Medical Expenses

Answer 24

• INADMISSIBLE to prove culpable conduct
• ADMISSIBLE for all other purposes (Admissions of fact accompanying an offer to pay medical expenses)

Ex) “I’ll pay your hospital bill” = inadmissible
Ex) “I shouldn’t have dropped that banana peel on stairs” = admissible
Ex) “If you sign release form, I will pay your hospital bill. I shouldn’t have dropped banana peel on stairs” = inadmsisible, falls under settlement rule, not this rule

Question 25

Define: Character Evidence

Answer 25

• Person’s general propensity or disposition to act in a certain way
• Conveys a moral judgement (violent, honest, peaceful)

Question 26

3 Purposes for Offering Character Evidence

Answer 26

• Prove person’s character when directly in issue (rare)
• Prove how person probably acted (conduct in conformity/propensity evidence) - often inadmissible
• Impeachment

Question 27

3 Methods of Proving Character

Answer 27

• Specific acts
• Opinion testimony
• Reputation testimony

Question 28

3 Step Approach to Analyzing Charater Evidence

Answer 28

1. What type of evidence? (specific acts, opinion, reputation)
2. Civil or criminal case?
3. Offered to prove pertinent trait?

Question 29

Character Evidence in Civil Cases (& Limited Exception)

Answer 29

• Generally INADMISSIBLE to prove conformity
• Limited Exception: sexual assault or child molestation cases

Ex) To prove defendant drove negligently, plaintiff calls witness who testifies defendant has reputation for being a reckless driver = inadmissible

Ex) Civil action for assault arising out of defenant’s alleged molestation of child plaintiff. Defendant denies molestation. Plaintiff offers evidence that defendant molested other children = admissibe

Question 30

Character in Civil Cases Directly in Issue (3)

Answer 30

• Defined: When proof of a person’s character, as a matter of substantive law, is an essential element of a claim/defense, character is directly in issue
• When character is directly at issue, all forms of character evidence (reputation; opinion; specific acts) are admisisble

(1) Defamation cases where truth is a defense (plaintiff’s character at issue)
(2) Negligent hiring or entrustment cases (hired/en trusted person’s character at issue)
(3) Child custody cases (parents’ character at issue)

Question 31

Defendant’s Character Evidence in CRIMINAL CASES

Answer 31

General rule, the prosecution CANNOT initiate evidence of the Defendant’s bad character to show conduct in conformity.

Exception - Sexual assault and child molestation cases - can introduce evidence!

Question 32

Open the Door

Answer 32

Defendant is permitted to “open the door” and introduce evidence of their own good character to show their innocence. Notably, the prosecution then can rebut Defendant’s character.

Question 33

Character Evidence Allowed in Criminal Case

Answer 33

Defendant may offer evidence of their own good character to prove their conduct in the case.
Evidence must concern a:

(1) Pertinent trait; and
(2) Such trait must be in the form of reputation and/or opinion testimony.

*CANNOT provide specific acts of good conduct to prove character.

Question 34

Prosecution’s Options After D Opens the Door

Answer 34

The prosecution can:

(1) Call their own character witnesses to provide reputation or opinion testimony about the Defendant’s bad character for the trait in question;
(2) Prosecution can cross-examine the Defendant’s character witness regarding the basis of their testimony and ask about specific instances of the Defendant’s conduct. (“Have you heard D once attacked his professor?”)

• This evidence of specific instances is only admissible to impeach the Defendant’s witness - to show lack of knowledge of D’s character. Not admissible to show Defendant’s character.

Question 35

Cross Examination

Answer 35

Prosecution can ask specific instances only to impeach the Defendant’s witness. Not admissible to show Defendant’s character.

Question 36

D’s Introduction of Victim’s Character in Criminal Cases

Answer 36

Defendant has the key and can offer reputation and/or opinion testimony concerning victim’s character for relevant trait. Prosecution can then rebut.

NOTE: Prosecution cannot offer evidence of the victim’s reputation before Defendant has opened the door.

NOTE: This is not allowed in sexual assault cases. Defendant does not have the key to introduce evidence on victim’s character in SA cases.

Question 37

Prosecution Rebuttal re: Victim’s Character in Criminal Case

Answer 37

Once Defendant has introduced evidence of a victim’s bad character for pertinent trait (usually violence), the prosecution may rebut with reputation or opinion evidence of:

(1) Victim’s good character for the same trait; or
(2) Defendant’s bad character for the same trait.

Question 38

Homicide Case - Prosecution Can Initiate

Answer 38

In a homicide case which the defendant:

(1) Pleads self-defense;
(2) Evidence of ANY kind that the victim was the first aggressor;
(3) Opens the door to evidence that the victim had a good character for peacefulness.
(4) Prosecution can introduce this evidence regardless of whether the D has introduced character evidence of the victim’s generally violent propensity.

Question 39

Rape Shield Law - Victim’s Character in Sexual Assault Case

Answer 39

In any civil or criminal proceeding involving alleged sexual misconduct, evidence offered to prove the sexual behavior or sexual disposition of the victim is generally inadmissible.

Question 40

EXCEPTIONS for Admission of Victim’s Character in SA Criminal Cases

Answer 40

Specific instances of a victim’s sexual behavior are admissible to prove:

(1) Someone other than the Defendant is the source of semen, injury, or other physical evidence;
(2) Sexual behavior between victim and the Defendant is admissible by the prosecution for any reason and by the defense to prove consent.

Question 41

EXCEPTIONS for Admission of Victim’s Character in SA Civil Cases

Answer 41

Evidence of the alleged victim’s sexual behavior is admissible if:

(1) Not excluded by any other rule; and
(2) Probative value substantially outweighs the danger of harm to the victim and of unfair prejudice to any party.

Question 42

Sexual Assault Cases Civil & Criminal

Evidence of Victim’s Reputation

Answer 42

Only admissible if it has been placed in controversy by the victim.

Question 43

Other Misconduct for Non-Character Purpose

Answer 43

Person’s other misconduct generally inadmissible if offered solely to prove conduct in conformity BUT may be admissible if offered for non-character purpose.

Question 44

Independently Relevant (MIMIC)

Answer 44

Evidence of a person’s other crimes, wrongs, or acts is admissible if relevant to some issue other than their character or propensity to commit the crime charged (or the alleged act in civil cases).

Non-character purposes of offering the evidence may include (MIMIC):
(1) Motive;
(2) Intent;
(3) Mistake (absence of)
(4) Identity
(5) Common scheme or plan.

Also includes: Opportunity, preparation, plan, knowledge, lack of accident.

Question 45

Requirements for Admissibility of Misconduct under MIMIC

Answer 45

Misconduct may be proved by any evidence: witness testimony, defendant’s criminal conviction, etc. But, there must be evidence sufficient to support a jury finding that the Defendant committed the other misconduct. Additionally, the evidence of the misconduct will also be subject to the 403 balancing test.

(Rule 403) REMEMBER, the Judge always has discretion to exclude relevant evidence if the danger of unfair prejudice substantially outweighs the probative value.

Question 46

Defendant’s Similar Misconduct in SA Criminal or Civil Cases

Answer 46

Defendant’s other similar acts are admissible during its case-in-chief in any criminal or civil case involving alleged sexual assault or child molestation. Prosecution must disclose the evidence to the Defendant 15 days before trial (or later w/ good cause)

Note - Prosecution can introduce specific acts to show Defendant’s propensity to commit the act at issue in the case.

Question 47

Competency of Witnesses

Answer 47

Witness must pass tests of basic reliability to establish their competency to give testimony, but they are generally presumed to be competent until the contrary is established.

Question 48

Federal Rules of Competency

Answer 48

The witness must:

(1) Have personal knowledge of the matter about which they are to testify; and
(2) Must give an oath or affirmation to testify truthfully.

Question 49

Modern Modification of Competency

Answer 49

Federal Rules have removed the common law witness disqualifications for lack of religious belief, conviction of a crime, and interest in the lawsuit. However, the following has been modified:

(1) Children-case-by-case determination - Competency of children depends on the capacity and intelligence of the particular child as determined by the trial judge.
(2) Insanity - An insane person may testify, provided they understand the obligation to speak truthfully and have the capacity to testify accurately.
(3) Judge and Jurors - Presiding Judge may NOT testify as a witness. Likewise, jurors are incompetent to testify before the jury in which they are sitting. But, there are exceptions:

• Jurors may testify as to:
  (1) Extraneous prejudicial information;
  (2) Outside influence;
  (3) Mistake in verdict form;
  (4) Another juror’s clear statement that they relied on racial stereotypes or animus to convict a criminal defendant.

Question 50

Lack of Personal Knowledge v. Hearsay Objections

Answer 50

Is the fact that the witness testifies to the same fact that the witness perceived w/ his/her sense? If not, personal knowledge is the proper objection.

Examples:
- Blind witness testifying Defendant shot the victim. Her testimony is based on what she heard someone else say. Defense can raise lack of personal knowledge objection.

• Blind witness testimony based on what the Sherriff told her. Defense will be hearsay - she is repeating the Sherriff’s out of court statement.

Question 51

Dead Man Acts

Answer 51

Ordinarily, a witness is not disqualified merely because they have an interest in the outcome of the litigation. However, some states have what are known as the “Dead Man Acts”. These statutes provide that in a civil case, an interested person is incompetent to testify to a personal transaction or communication w/ a deceased, when such testimony is offered against the representative or successors in interest of the deceased.

Person is “interested” if they stand to gain or lose by the judgment, or if the judgment may be used for or against them in a subsequent action.

Question 52

Form of Questioning Allowed

Answer 52

Fed Rules state that the Judge should exercise reasonable control over the examination of witnesses in order to:

(1) Aid the ascertainment of truth;
(2) Avoid wasting time; and
(3) Protect witnesses from harassment.

Question 53

Leading Questions During Cross-Examination

Answer 53

Leading questions are generally allowed only on cross-examination. But it is limited to:

(1) Scope of direct examination, including all reasonable inferences that may be drawn from it; and
(2) Matters that test the credibility of the witness (impeachment)

Question 54

Leading Questions During Direct Examination

Answer 54

Leading questions are NOT permitted during direct examination. HOWEVER, the court will ordinarily allow leading questions on direct in the following circumstances:

(1) Preliminary or introductory matter (your name is Jane Doe? You live on Main Street?);
(2) Witness needs help responding (Witness is young);
(3) Witness is hostile, adverse party, or affiliated w/ adverse party.

Question 55

Other Improper Questions

Answer 55

Questions that are:

(1) Misleading;
(2) Compound (requiring a single answer to more than on question);
(3) Argumentative;
(4) Narrative (not properly focused);
(5) Assume facts not in evidence;
(6) Nonresponsive (do not answer the specific question asked)

Question 56

Using Documents to Aid Oral Testimony

Answer 56

Generally, a witness cannot read their testimony from a prepared memorandum; they must testify on the basis of their current recollection.

However, a memorandum or other record MAY be used in certain circumstances.

*Check for hearsay issues whenever a witness uses a document on the stand.

Question 57

Refreshing Recollection

Answer 57

Witness may use any writing or object for the purpose of refreshing their present recollection. They usually may NOT read from the writing while testifying because the writing is not authenticated and not in evidence (thus, there is no hearsay concern).

Question 58

Refreshing Recollection - Adverse Party’s Options

Answer 58

Whenever a witness has used a writing to refresh their memory while on the stand, an adverse party is entitled to:

(1) Have the writing produced at trial;
(2) Cross-examine the witness about the writing; and
(3) Introduce portions of the writing related to the witness’s testimony into evidence.

Question 59

Recorded Recollection - Exception to Hearsay Rule

Answer 59

Recorded recollection is an exception to the hearsay rule. Where a witness states that they have insufficient recollection of an event to enable them to testify fully and accurately, even after they have consulted a memorandum or other record given to them on the stand, the record itself may be read into evidence if a proper foundation is laid which includes:

(1) Witness has insufficient recollection to testify fully and accurately;
(2) Witness had personal knowledge of the facts in the record when the record was made;
(3) Record was made by the witness or under their direct, or it was adopted by the witness;
(4) Record was made or adopted when the matter was fresh in the witness’s mind; and
(5) Record accurately reflects the witness’s knowledge .

Question 60

Opinion Testimony

Answer 60

The general policy of the law is to prohibit admissibility of opinion evidence except in cases where the courts are sure that it will be (1) Necessary or (2) at least helpful.

Question 61

Lay Opinion Testimony

Answer 61

Generally inadmissible, however where no better evidence can be obtained opinions by lay (nonexpert) witnesses are admissible if:

(1) Rationally based on the witness’s perception (logical connection from their perception and opinion stated);
(2) Helpful to a clear understanding of the witness’s testimony or helpful to determine of a fact in issue; and
(3) Not based on scientific, technical, or other specialized knowledge.

Question 62

Situations Where Opinions of Lay Witnesses Are Admissible

Answer 62

(1) General appearance or condition of a person;
(2) State of emotion of a person;
(3) Matters involving sense recognition;
(4) Voice or handwriting identification;
(5) Speed of a moving object;
(6) Value of the witness’s own services of property;
(7) Rational or irrational nature of another’s conduct; and
(8) Person’s intoxication.

Lay witness may NOT give an opinion on whether party was:
(1) Acting as an agent; or
(2) Contract was made.

Question 63

Expert Witness Testimony

Answer 63

Federal Rules provide that for expert testimony to be admissible the witness must be:

(1) Qualified as an expert;
(2) Reasonably certain;
(3) Subject matter of the testimony is one that would be helpful to the jury;
(4) Opinion must be based on sufficient facts and data;
(5) Opinion is the product of reliable principles;
(6) Expert must have reliably applied the principles and methods to the facts of the case.

Question 64

Qualification as Expert

Answer 64

There is showing the witness has specialized knowledge, skill, experience, training, or education.

Question 65

Reasonable Certainty

Answer 65

The expert must have a reasonable level of certainty in the correctness of the opinion. A mere guess or speculation is not sufficient.

Question 66

Opinion Must be Helpful

Answer 66

Subject matter must be one where specialized knowledge would be helpful to the jury.

Question 67

Based on Proper Factual Basis

Answer 67

Expert’s opinion must be supported by a proper factual basis. The opinion can be based on any of the following (3):

(1) Facts based on expert’s own observations;
(2) Facts made known to expert at trial; or
(3) Facts of a type reasonably relied upon by other experts in the field.

Question 68

Expert Testimony: Court Determines Reliability (Daubert Factors)

Answer 68

Federal courts determine the reliability of all expert testimony and have discretion to consider a wide variety of factors. The Daubert factors include whether the expert’s testimony has been subject to:

(1) Testing;
(2) Peer review and publication;
(3) Error rate;
(4) Standards controlling operation;
(5) General acceptance by other experts in the field.

Question 69

Learned Treatises - Exception to Hearsay

Answer 69

An excerpt from a treatise, periodical, or pamphlet may be used during expert testimony not only to impeach experts, but also as substantive evidence under the learned treatise exception to the hearsay rule, subject to:

(1) Treatise must be established and reliable authority by:
- (a) testimony of the expert on the stand;
- (b) testimony of another expert; or
- (c) judicial notice;
(2) Excerpt must be used in the context of expert testimony; and
(3) Excerpt is read into evidence but cannot be received as an exhibit.

Question 70

Expert Opinion on Ultimate Issues

Answer 70

Generally, expert is permitted to render an opinion as to the ultimate issue in the case. However, experts may not state an opinion as to whether the accused did or did not have the mental state in issue in a criminal case.

Question 71

Court-Appointed Experts

Answer 71

A court has broad discretion to appoint expert witnesses. On a party’s motion or its own, the court may order the parties to show cause why experts should not be appointed and may ask the parties to submit nominations.

The court may then appoint any expert who consents to act, and the court must inform the expert of their duties.
Expert must:
(1) Advise the parties of any findings they make;
(2) Any party may depose the expert (call the expert as a witness or cross-examine);
(3) Expert is entitled to reasonable compensation by the court;
(4) Court may authorize disclosure to the jury that the expert was appointed by the court.

Question 72

Exclusion and Sequestration of Witnesses

Answer 72

Upon a party’s request, the trial judge MUST order witnesses excluded from the courtroom. The judge may also do this on their own motion. The judge however may NOT exclude:

(1) Party or a designated officer or employee of the party;
(2) Person whose presence is essential to the presentation of the party’s claim or defense; or
(3) Person statutorily authorized to be present.

Question 73

Bolstering Witness Testimony: Admissibility & Exception

Answer 73

• Bolstering a wintess’s testimony generally prohibited unless and until credibility is attacked.
• Exception: A party may offer evidence that the witness made a timely complaint or a prior statement of identification even if this tends to bolster their in-court testimony
• Prior identification may also serve as susbtantive evidence that the identification was correct

Question 74

Who may impeach a witness?

Answer 74

Any party, including the party who called them

Question 75

Forms of Impeachment

Answer 75

1. Cross-examination of witness
2. Extrinsic evidence (other witness or documents)

Question 76

Impeachment Analysis Steps (3)

Answer 76

1. Source of impeachment evidence: cross-examination or extrinsic evidence?
2. If it is extrinsic evidence: can it be admitted under impeachment method being used?
3. Any foundation requirements?

Question 77

Impeachment Methods: Facts Specific to Case (4)

Answer 77

1. Prior inconsistent statements
2. Bias
3. Sensory deficiencies
4. Contradiction

Question 78

Impeachment Methods: General Bad Character for Untruthfulness (3)

Answer 78

1. Opinion or Reputation evidence of untruthfulness
2. Prior convictions
3. Prior bad acts involving untruthfulness

Question 79

Impeachment

Prior Inconsistent Statements

Answer 79

• May be done on examination of witness or with extrinsic evidnce
• Extrinsic evidence must be
  (1) Relevant and
  (2) Foundation required
• Admissible for impeachment purposes only
• Admissible as substantive evidence when made under oath at prior proceeding (Admissible Nonhearsay)

Question 80

Impeachment: Prior Inconsistent Statement

Foundation for Extrinsic Evidence Requirements (3) & Exceptions (3)

Answer 80

(1) NOT Collateral (Probative of some fact consequence to the case or says something about witness’s credibility beyond just showing witness made an inconsistent statement)
(2) Give Witness Opportunity to explain or deny
(3) Give Adverse party Opportunity to examine witness

EXCEPTIONS:
1. Prior inconsistent statement is opposing party’s statement
2. Hearsay declarant is being impeached
3. Justice requires

Question 81

Impeachment

Bias or Interest & Foundation for Extrinsic Evidence

Answer 81

• Evidence that a witness is biased or has an interest in outcome of a case tends to show that the witness has a motive to lie
• Extrinsic evidence allowed, but witness generally must be questioned about bias first on cross-examination

Question 82

Impeachment

Sensory Deficiencies

Answer 82

• Showing their perception and recollection were so impaired to make it doubtful they could have perceived facts or show they had no knowledge of facts
• Admissible on examination of witness or by extrinsic evidence
• No foundation requirement

Bad eyesight/hearing, poor memory, consumption of alcohol/drugs

Question 83

Impeachment

Contradictory Facts

Answer 83

• Cross-examiner can try to make witness admit they lied or were mistaken about some fact they testified to during direct examination
• Extrinsic evidence generally permitted unless imepaching fact is collateral (Not material to issues in case and says nothing about witness credibilty except to contradict them)

Question 84

Impeachment

Opinion or Reputation Evidence of Untruthfulness

Answer 84

Testimony admissible to show admissible impeached witness has poor character for truthfulness (to show they were not telling the truth while on stand)

Type of character evidence

Question 85

Impeachment

Conviction of Crime

Answer 85

• Witness may be impeached by proof of conviction (not arrest/indictment) for certain crimes:
  (1) Any crime involving dishonesty or false statement - Court CANNOT exclude (perjury, false statement, criminal fraud, embezzlement, false pretense)
  (2) Felony not involving dishonesty or false statement - Court has discretion to EXCLUDE these convictions. Balancing test depends on whether witness being impeached is the defendant in criminal case OR someone else?
  (a) Criminal Defendant: Court EXCLUDES conviction if prosecution has NOT shown that its probative value outweighs its prejudicial effect (difficult)
  (b) Any Other Witness: Court EXCLUDES conviction if it determines its probative value is substantially outweighed by its prejudicial effect (403 balancing test favors admitting evidence)
• Remoteness: Generally inadmissible if more than 10 years have passed since date of conviction or release from confinement, whichever is later. Court may allow if probative value substantially outweighs prejudicial effect (Reverse 403) and proponent gives adverse party reasonable written notice of intent to use it
• Method of Proof: On examination of witness or by extrinsic evidence (record of judgment)
• Effect of Pardon: Conviction cannot be used to impeach if (1) Pardon based on rehabilitation and no subsequent felony convicion or (2) Pardon based on innocence
• Juvenile convictions are generally not admissible for impeachment
• A conviction obtaned in violation of defendant’s constituional rights is invalid for all purposes, including impeachment

• Prior conviction used to prove witness’ conduct = Inadmissible
• Prior conviction to impeach credibility as witness = Admissible

Question 86

Impeachment

Bad Acts Involving Untruthfulness

Answer 86

• Interrogation permitted if misconduct is probative of truthfulness
• Extrinsic evidence prohibited if defendant denies bad act

Ex) Lying
Ex) Arrest =/= bad act

Question 87

Impeachment of Hearsay Declarant

Answer 87

• Hearsay Declarant: a person whose out-of-court statement has been admitted into evidence (1) under an exception to hearsay or (2) vicarious statement of an opposng party
• Impeached to same extent as in-court witness
• Need not be given opportunity to explain or deny prior inconsistent statement

Question 88

Rehabilitation (3)

Answer 88

A witness who has been impeached may be rehabilitated by:
1. Explanation on direct
2. Good character for truthfulness: when witness’s general bad character for truthfulness was attacked (by reputation/opinion testimnoy, prior convictions, or prior acts of misconduct), then other witnesses may be called to give REPUTATION or OPINION testimony about the impeached witness’s good character for truthfulness (but not of specific acts of truthful conduct)
3. Prior Consistent Statement: allowed in 2 situations:
(1) When testimony of witness has been attacked by an express or implied charge that witness is lying or exaggerating because of some motive, a previous consistent statement made by the witness BEFORE the onset of alleged motive is admissible to rebut this evidence
(2) Other non-character grounds (i.e., inconsistency or faulty memory)
* Prior consistent statement is admissible to rehabiitate witness’s credibility is admissible as substantive evidene of truth of its contents (NOT hearsay)

Question 89

Hearsay

Answer 89

A statement, other than one made by the declarant while testifying at the current trial or hearing, offered in evidence to prove the truth of the matter asserted.

If a statement is hearsay, and no exception to the rule applies, the evidence must be excluded upon appropriate objection.

Question 90

“Statement”

Answer 90

Statement is a person’s:
(1) oral or written assertion; or
(2) nonverbal conduct intended as an assertion (like a nod of the head)

Question 91

Nonhuman Declarations

Answer 91

There is no such thing as animal or machine hearsay; there must be out-of-court statement by a person.

i.e. Indicator from a drug-sniffing dog is not hearsay.

Question 92

“Not Made At Current Trial or Hearing”

Answer 92

Statements from different trial or hearing can be hearsay.

Question 93

“Offered to Prove the Truth of the Matter Asserted”

Answer 93

(1) Find the statement;
(2) Determine what it is offered to prove. (who offered the statement and is it relevant to prove in that party’s case?)
(3) Consider whether jury will be misled if declarant was lying? If yes - it’s hearsay.

Question 94

Non-Hearsay Evidence

Answer 94

(1) Verbal acts/legally operative language;
(2) Effect on the listeners or reader;
(3) Circumstantial evidence of declarant’s state of mind.

Question 95

Testifying Witness’s Own Out-of-Court Statement Can Be Hearsay

Answer 95

Don’t be fooled by wrong answer choices like “Not hearsay because it is the witness’s own statement”.

If a witness is testifying on the stand and refers to their own out-of-court statement, it is hearsay.

Question 96

Hearsay Within Hearsay

Answer 96

Admissible only if each statement falls within an exception (or is otherwise admissible over a hearsay objection)

Question 97

Hearsay Exclusions - Certain Prior Statements by Testifying Witnesses

Answer 97

Prior statements by a testifying witness who is subject to cross-examination is not hearsay if:

(1) Prior statement of identification;
(2) Prior inconsistent statements made under oath;
(3) Certain prior consistent statements when:
(a) witness charged w/ lying; or
(b) exaggerating due to recent motive, and statement predates motive; when witness impeached on other non-character ground

Question 98

Hearsay Exclusions - Statements by Opposing Party

Answer 98

Statements by or attributable to an opposing party are not hearsay

Question 99

Hearsay Exclusions - Judicial and Extrajudicial Statements

Answer 99

A party’s formal judicial statements (in pleadings, stipulations, etc) are conclusive and cannot be contradicted during trial.

Question 100

Hearsay Exclusions - Adoptive Statements

Answer 100

Party’s express or implied adoption of another’s statement can be used against them.

Question 101

Hearsay Exclusions - Adoptive Statements (Silence)

Answer 101

Party’s silence in face of accusation admissible if:
(1) Party heard and understood it;
(2) Party was physically and mentally capable of denying it ; and
(3) Reasonable person would have denied the accusation if they believed it was not true.

Question 102

Hearsay Exclusions - Vicarious Statements by Opposing Party

Answer 102

(1) Statement of a person authorized by a party to speak on its behalf (spokesperson).
(2) A statement by an agent or employee is admissible against the principal if the statements:
(a) Concerned any matter within the scope of their agency or employment; and
(b) During the existence of the agency or employment relationship.
(3) Statement of one partner relating to matters within the scope of the partnership;
(4) Statements of one co-conspirator made in furtherance of conspiracy

NOTE: Statements of a co-party are not receivable against their co-parties merely because they happened to be joined as parties.

Question 103

Hearsay Exceptions - Declarant Unavailable

Answer 103

Hearsay exceptions - even if evidence is hearsay, it still can be admissible if it falls within just 1 hearsay exception.

(1) Death or illness;
(2) Privilege;
(3) Refusal to testify despite court order;
(4) Inability to remember subject matter;
(5) Absent and attendance cannot be procured.

Question 104

Hearsay Exceptions - Former Testimony

Answer 104

(1) Declarant unavailable;
(2) Testimony was given under oath;
(3) Party against whom testimony now being offered (or in civil cases, their predecessor in interest) had opportunity and similar motive to develop it.

Question 105

Hearsay Exceptions - Statements Against Interest

Answer 105

Statements against unavailable declarant’s:
(1) Pecuniary (money),
(2) Proprietary (property), or (3) Penal (criminal) interest when made, such that a reasonable person in the declarant’s position would have made it only if they believed it to be true.

• In criminal cases, statements against penal interest must be corroborated.

Question 106

Hearsay Exceptions - Dying Declarations

Answer 106

(1) Unavailable declarant;
(2) Homicide prosecution or any civil case;
(3) Declarant believed their death was imminent (they need not actually die); and
(4) Statement concerned cause or circumstances of what the declarant believed to be their impending death.

Question 107

Hearsay Exceptions - Statements of Personal or Family History

Answer 107

Statements by unavailable declarant concerning birth, death, marriages, divorces, relationships, are admissible provided that:

(1) Declarant is a member of the family in question or intimately associated with; and
(2) Statements are based on the declarant’s personal knowledge of the facts or their knowledge of family reputation.

Question 108

Hearsay Exceptions - Statements Offered Against Party Procuring Declarant’s Unavailability

Answer 108

Unavailable declarant’s statements admissible against party who intentionally caused declarant to be unavailable.

i.e. If a party killed a declarant or paid them to prevent the declarant from testifying.

Question 109

Excited Utterance - Hearsay Exceptions

Answer 109

An out-of-court statement relating to a startling event, made while under the stress of the excitement from the event is admissible.

Question 110

Present Sense Impressions - Hearsay Exception

Answer 110

A present sense impression is a statement that describes or explains an event or condition, and is made while or immediately after the declarant perceives the event or condition.

Declarant has no time to fabricate their statement.

Tricky Double Present Sense Impression! = Tape recording of X relaying info in real-time to police on the phone, as reported by Y while Y was observing event

Question 111

Present State of Mind - Hearsay Exception

Answer 111

A statement of the declarant’s then-existing state of mind or their emotional, sensory, or physical condition is admissible. However, a statement of memory or belief is not admissible to prove the truth of the fact remembered or believed.

Question 112

Statement Made for Medical Diagnosis for Treatment - Hearsay Exception

Answer 112

• Statements describing medical history, past or present symptoms, or their inception or general cause.
• Must be made for and reasonably pertinent to medical diagnosis or treatment.
• Usually declarant will be describing their own condition, but this is not required.

Question 113

Business Records - Hearsay Exception

Answer 113

Record or act, event, condition, opinion, or diagnosis admissible if:

(1) Business - includes every business, organizations, occupation, or calling including nonprofit orgs;
(2) Entry made in regular course of business and business regularly keeps such records;
(3) Made near time of event;
(4) Consists of matters within personal knowledge of entrant (or someone else who had duty to transmit information to entrant)

Question 114

Business Records - Foundation

Answer 114

Custodian of records or other qualified witness must provide either:

(1) In-court testimony that the record meets the elements of the business records exception; or
(2) Written certification that the record meets the elements of the business records exception.

Question 115

Business Records to Prove Nonoccurence of Matter

Answer 115

A business record that meets the (4) elements may also be used to prove the nonoccurrence or nonexistence of a matter if it was the regular practice of the business to record all such matters.

Question 116

Court May EXCLUDE Business Record

Answer 116

Even if a business record meets all (4) requirements, it still may be excluded by the Court if the opponent makes a showing that the circumstances of the record indicate a lack of trustworthiness.

Question 117

Public Records - Hearsay Exceptions

Answer 117

Records of a public office or agency are admissible including:

(1) Activities of the office or agency (payroll records);
(2) Matters observed pursuant to legal duty but not including police observations in criminal cases;
(3) Records of factual findings resulting from legally authorized investigation but not against defendant in criminal cases.

Public employee, acting within the scope of the duty, and it must have been made at or near the time of the event.

Court may exclude public record if opponent makes a showing that the circumstances of the record indicate a lack of trustworthiness.

Question 118

Public Records - Hearsay Exceptions (Police Reports)

Answer 118

Generally, police reports are not admissible against criminal defendant under public records or business records exceptions.

Question 119

Judgments - Hearsay Exception

Answer 119

Certified copy of judgment always admissible as proof that judgment was entered.
- Additionally, felony conviction admissible to prove any fact essential to the judgment. In a criminal cases, admissible only against accused.

• Prior criminal acquittal is excluded
• Judgment in prior civil cases is generally excluded

Question 120

Recorded Recollection - Hearsay Exception

Answer 120

Testifying witness’s memory cannot be revived, a party may introduce a memorandum or other record that the witness made or adopted at or near the time of the event.

Statements are READ into evidence but are not received as an exhibit, unless offered by an adverse party.

Question 121

Learned Treatises - Hearsay Exception

Answer 121

A learned treatise are admissible as substantive proof if the treatise

(1) Is established as reliable authority; and
(2) The excerpt is relied upon by an expert during direct examination or brought to an expert’s attention on cross examination.

Statements are READ into evidence but are not received as an exhibit.

Question 122

Reputation - Hearsay Exception

Answer 122

Reputation evidence is hearsay but there are several hearsay exceptions that admit reputation evidence to prove: (1) character; (2) personal or family history; (3) land boundaries; and (4) community’s general history.

Question 123

Ancient Documents - Hearsay Exception

Answer 123

Statements in any authenticated document prepared before January 1, 1998 are admissible.

Question 124

Documents Affecting Property Interests - Hearsay Exception

Answer 124

A statement in a document affecting an interest in property is admissible if the statement is relevant to the document’s purpose. (deed, will)

Question 125

Family Records - Hearsay Exception

Answer 125

Statements of fact concerning personal or family history contained in family bibles, jewelry engravings, genealogies, tombstone engraving are admissible.

Question 126

Market Reports - Hearsay Exception

Answer 126

Market reports and other published compilations are admissible if generally used and relied upon by the public or by persons in a particular occupation.

Question 127

Catch-all - Hearsay Exception

Answer 127

For a hearsay statement that is NOT covered by a specific exception to be admitted, the Federal Rules provide a catch-all exception, which imposes the following conditions:

(1) Trustworthy (totality of circumstances and evidence that corroborates the statement);
(2) Strictly necessary;
(3) Reasonable notice to adversary.

Question 128

Confrontation Clause

Answer 128

*Only applies to criminal cases - not applicable in civil cases.

Under the confrontation clause of the Sixth Amendment, a hearsay statement will NOT be admitted (even if it falls within an exception) where:

(1) Statement is being offered against the accused in a CRIMINAL case;
(2) Declarant is unavailable;
(3) Statement was testimonial in nature; and
(4) Accused had no opportunity to cross-examine the declarant’s testimonial statement prior to trial.

• Defendant forfeits their right of confrontation if they committed a wrongful act that it was intended to keep the witness from testifying.

Question 129

“Testimonial” Statement

Answer 129

Includes sworn testimony (such as at a grand jury, prior trial, or preliminary hearing). Also, statements made to law enforcement was to:
(1) aid in ongoing emergency = non testimonial; or
(2) to provide information for later prosecution = testimonial

Excludes statement made to friend or family!

Question 130

Affidavits or Written Reports of Forensic Analysis - Testimonial

Answer 130

Affidavits, certificates, or other written reports that summarizes findings of forensic analysis and have the effect of accessing a targeted individual of criminal conduct are considered testimonial - confrontation clause will be sustained - unless defendant previously had an opportunity to cross-examine the author of the report.

Question 131

Due Process Rights

Answer 131

Hearsay rules and other exclusionary rules of evidence cannot be applies where such application would deprive the accused of their right to a fair trial or deny their right to compulsory process.

Question 132

Authentication of Writings & Spoken Statements (Standard)

Answer 132

• Writing or any secondary evidence of its content must be authenticated by proof that shows the writing is what the proponent claims it is
  * Proof must be sufficient to support a jury finding of its genuineness (A reasonable juror could conclude the writing is genuine)

Question 133

Methods of Authentication

Answer 133

1. Opponent’s admission
2. Eyewitness testimony of someone with knowledge
3. Handwriting verifications:
   (i) Lay opinion on handwriting (if lay witness has pre-existing knowledge)
   (ii) Expert opinion on handwriting
   (iii) Jury’s comparison of handwriting
4. Reply letter doctrine
5. Ancient documents
6. Photographs
7. X-Ray Pictures, Electrocardiograms

Question 134

Authentication

Reply Letter Doctrine

Answer 134

Authentication by evidence that document was written in response to communication sent to alleged author

Question 135

Authentication

Ancient Documents

Answer 135

Document authenticated if:
1. At least 20 years old
2. In non-suspicious condition
3. Found in place where such a writing would likely be kept

Question 136

Authentication

Photographs

Answer 136

1. Must be identifid by witnesses as fair and accurate representation of facts depicted
2. Generally, photographer need not testify
3. Unattended camera requires showing proper operation of camera

Question 137

Authentication

X-Rays, Electrocaardiograms, Etc.

Answer 137

Cannot be authenticated by testimony of a witness that is a correct representation of facts.
1. Must be shown that the process used is accurate,
2. Machine was in working order,
3. Operator was qualified to operate it
4. Custodial chain must be established to assure X-ray has not been tampered with

Question 138

Authentication of Oral Statements 🗣️☎️

Answer 138

When a statement is admissible only if said by a particular person, authentication as to the identity of speaker is required:
1. Voice identification: by any person who has heard the voice at any time
2. Telephone conversations: Statement can be authenticated in the following ways:
(i) Party to call recognized speaker’s voice
(ii) Speaker had knowledge of certain facts
(iii) Speaker answered phone number and identified themselves as the person in queston or their residence
(iv) Speaker who answered business’s phone talked about business matters

Question 139

Self-Authenticating Documents

Answer 139

1. Domestic public documents with seal
2. Official publications
3. Certified copies of public records
4. Newspapers and periodicals
5. Trade inscriptions and labels (tag/label thaat purports to have been attached in coursed of business and indicates ownership/control/origin)
6. Acknowledged (notarized) documents
7. Commercial paper
8. Business records and electronically generated records with certification

Question 140

Define

Best Evidence Rule

Answer 140

To prove the content of a writing, recording, or photograph, the original must be produced if the terms are material (subject to certain exceptions)

Question 141

Applicability of Best Evidence Rule (2)

Answer 141

Evidence is offered to prove the content of a writing, recording, or photograph.

2 situations this happens:
1. Writing is a legally operative or dispositive instrument (i.e., writing itself creates rights/obligations = deed/will)
2. Knowledge of a witness concerning a fact results from having read it in writing

Question 142

When Best Evidence Rule Does Not Apply

Answer 142

The fact to be proved has an existence independent of any writing.
Any witness with personal knowledge may testify as to those facts; a writing also depicting those facts is not required.

Ex) Witness to murder testifies as to date of death. Defense makes a best evidence rule objection on grounds that the date of death is contained on a written death certificate. Best Evidence Rule does not apply!

Question 143

Define

Originals & Duplicates

Answer 143

• Original: writing itself, or any counterpart intended to have same effect. This includes the negative of photo or any print of it, or printout or other readable output of ESI.
• Duplicate: Exact copy made by mechanical means (machine, carbon, photo copies, BUT NOT HANDWRITTEN COPIES)

Question 144

Admissibility of Duplicates

Answer 144

Admissible to same exent as original, unless either:
(1) Circumstances make it unfair to admit duplicate or
(2) Genuine issue raised as to authenticity of original

Question 145

Admissibility of Secondary Evidence of Contents

Answer 145

If proponent cannot produce the original writing or an admissible duplicate in court, they may offer secondary evidence of its contents (such as handwritten copies, notes, or oral testimony) if a satisfactory explanation is given for the non-production of the original:
1. Original lost or destroyed not in bad faith
2. Original cannot be obtained by any available judicial process
3. Original in possession of adversary who fails to produce it

If there is a valid excuse, FRE permits a party to prove the contents o a writing by ANY type of secondary evidence (handwritten, copies, notices, oral testimony…)

Question 146

Exceptions to Best Evidence Rule (4)

Answer 146

1. Summaries of voluminous records
2. Certified copies of public records
3. Writing is collateral to litigated issue
4. Opponent testified or gave written admisson about contents of writing ✍️

Question 147

Functions of Court and Jury re originals/duplicates

Answer 147

• Generally court makes determinations of fact regarding admissibility of duplicates, other copies, and oral testimony as to the contents of an original.
• However FRE reserve the ollowing questions of preliminary fact for the jury:
  1. Whether oringinal ever existed
  2. Whether a writing prodced at trial is an original
  3. Whether the evidence offered correctly reflects contents of original

Question 148

Real Evidence

Answer 148

Actual physical evidence addressed directly to the trier of fact. May be direct, circumstantial, original, prepared (demonstrative)

Question 149

Real Evidence Admissibility Requirements

Answer 149

1. Relevant
2. Object must be identified as what the proponent claims it to be by recognition testimony or chain of custody – Proof must be sufficient to support jury finding
3. If condition of object is significant, it must be shown to be in substantially same condition at trial

Question 150

Types of Real Evidence

Answer 150

1. Reproduction and explanatory real evidence
2. Maps, charts, models
3. Demonstratons
4. Exhibition of injuries
5. Jury view of the scene

Remember: 403 still applies!

Question 151

Define

Privilege

Answer 151

Ability to refuse to disclose and prevent others from disclosing relevant information

Rationale: certain relationships must be protected

Question 152

What Privilege Law Applies in Federal Court?

Federal question versus diversity

Answer 152

• Federal Question cases = Federal common law applies
• Diversity cases = State privilege law applies

Question 153

Federal Common Law Privileges

Answer 153

1. Attorney-Client
2. Spousal immunity
3. Confidential marital communications
4. Psychotherapist/social worker-patient
5. Clergy-penitent
6. Governmental

No doctor-patient privilege under federal law.

Question 154

Who May Assert Privilege?

Answer 154

Privilege is personal to holder. Sometimes may be asserted on holder’s behalf.

Question 155

Privilege

Confidentiality

Answer 155

Communication must be shown or presumed to have been made in confidence

Question 156

Privilege

Waiver

Answer 156

1. Failure to claim
2. Voluntary disclosure
3. Contractual waiver

Question 157

Privilege

Eavesdropper

Answer 157

Eavesdropper does not destroy privilege

Question 158

Attorney-Client Privilege

Answer 158

(1) Confidential communications = Not underlying info, pre-existing docs, or physical evidence. Client must intend confidentiality.
(2) Between attorney (member of bar or anyone reasonably believed by client to be member of bar) and client (and either’s representative)
- Corporations: statements made by corporate officials or employees to an attorney are protected if employees were authorized or directed by the corporation to make such statements

(3) During professional legal consulation
Not to give business or social advice
(4) Unless exception applies

Question 159

Does privilege apply here?

Doctor hired by lawyer.
1) Statements by client to doctor?
2) Doctor’s report to attorney?

Answer 159

1) Yes
2) Yes

Question 160

Attorney Client Privilege - Third Persons

Answer 160

Communications remain privileged if made in presence of 3P who are present to facilitate legal services

Question 161

Attorney-Client Privilege - Joint Client Rule

Answer 161

When joint clients have common interest, their communicatiosn with attorney are NOT privileged if they sue each other, but privileged as to third parties.

Question 162

Is preliminary interview privileged?

Plaintiff interviews lawyer and discusses case but decides not to hire

Answer 162

Yes

Question 163

Who holds attorney-client privilege?

Answer 163

Client holds privilege but attorney can claim it for client

Question 164

Attorney Client Privilege Duration

Answer 164

Indefinitely, even after death or termination

Question 165

Attorney-Client Privilege Exceptions

Answer 165

1. Attorney’s services sought to aid in crime or fraud
2. Communication relevant to an issue of breach of duty in a dispute between attorney and client (malpractice case e.g.)
3. Client put legal services at issue (in tax fraud prosecution, defendant defends on the ground that she relied on advice on her attorney in reporting income)
4. Communication relevant to an issue between parties claiming htough the same deceased client

Question 166

Attorney’s Work Product

Answer 166

While documents prepared by by their own use in a case are not protected by the prvilege, they are not subject to discovery except in cases of necessity

Question 167

Limitations on Waiver of Attorney-Client Privilege and Work Product Rule

Answer 167

• Voluntary disclosure of privileged material operates as waiver of attorney-client privilege or work product only with respect to disclosed material.
• Undisclosed privileged material is subject to waiver only if:
  (1) Waiver was intentional
  (2) Disclosed and undiscosed material concern same subject matter and
  (3) Material should be considered together to avoid unfairness.
• There is no waiver if the disclosure was inadvertant and the holder took reasonable steps to prevent disclosure and rectify error.

Question 168

Physician-Patient Privilege (State Privilege Only)

Answer 168

Confidential information acquired by physician privileged if:
1. Professional relationship existed
2. Information was acquired for purposes of diagnosis or treatment
3. Information was necessary for diagnosis or treatment

• Privilege belongs to patient (may decide to claim or waive it)
• If patient is unavailable at time of trial, physician may claim privilege on behalf.
• State law of privilege is applied in diversity actions

Question 169

Exceptions: Physician-Patient Privilege

Answer 169

1. Patient put physical condition at issue (personal injury)
2. Assistance sought to aid wrongdoing
3. Dispute between physician and patient (medical malpractice)
4. Patient agrees to waive privilege (insurance policy)
5. Criminal cases (some states)

Question 170

Pyschotherapist / Social Worker Patient Privilege

Answer 170

• Operates like attorney-client privilege
• No privilege where patient puts mental condition at issue

Question 171

2 Privileges Relating to Marriage

Answer 171

(1) Testimonial
(2) Confidential marital communications

Question 172

Spousal Testimonial Privilege (Immunity) - Criminal Cases Only

Answer 172

• In criminal cases, prevents defendant’s spouse from being compelled to testify against defendant
• Spouses must be married at time of TRIAL
• Privilege lasts only during marriage
• Witness-Spouse (NOT THE ACCUSED) holds privilege

Question 173

Confidential Marital Communications Privilege

Answer 173

• Applies in any civil or criminal case
• Either spouse can refuse to disclose the communication or prevent any other person from doing so.
• Spouses must have been married at time of communication (privilege remains if they get divorced)
• Private communications between pouses are generally presumed to be confidential.
• Communications made in known presence of third party OR Threats or abusive language are NOT privileged

Question 174

Exceptions to Marital Privileges

Answer 174

Neither privilege applies in following:
1. Communications or acts in furtherance of a future joint crime or fraud
2. Legal actions between spouses
3. Spouse charged with crime againsts other spouse or either spouse’s children

Question 175

Clergy-Penitent Privilege

Answer 175

Protects statements made by penitent to clergy member in clergy member’s capacity as spiritual advisor

Question 176

Privilege Against Self-Incrimination

Answer 176

Witness cannot be compelled to testify against themselves. Any witness compelled to appear in a civil/criminal prceeding may refuse to give an answer that ties witness to the commission of a crime.

Question 177

Governmental Privileges

Answer 177

Official info not otherwise open to the public may be privielged. Gov holds privielge that protects identity of informer privilege is waived if informer’s identity is voluntarily disclosed by a privilege holder.

Question 178

Accountant-Client Privilege (State Only)

Answer 178

Privilege for statements made to accountant and elements of this privilege are similar to attorney-client

Question 179

Professional Journalist Privilege (State Only)

Answer 179

No constitutional right for a professiolnal journalist to protect their source of information; only certain states recognize such privilege.

Question 180

Burdens of Proof

Answer 180

The burden of proof encompasses:

(1) Burden of production; or
(2) Burden of persuasion

Question 181

Burden of Production

Answer 181

• The party who has a burden of pleading usually has the burden of producing or going forward with evidence sufficient to make out a prima facie case (create a fact question of the issue for the trier of fact)
• Once the party has satisfied the burden of predicted it is incumbent upon the other side to come forward with evidence to rebut the accepted evidence.

Question 182

Burden of Persuasion

Answer 182

• Civil cases - Usually preponderance of the evidence (more probably true than not true),
  — Some civil cases such as fraud or *oral contract *to make a will require proof of clear and convincing evidence (high probability)
• Criminal cases - Beyond a reasonable doubt.

Question 183

Preliminary Facts Decided by Jury

Answer 183

The jury decides fact questions relating to relevance, including authenticity, whether a person as a party’s agent in a breach of contract case, and whether a witness has personal knowledge of the facts of their testimony.

Question 184

Preliminary Questions Screened by Judge

Answer 184

Before such a question is brought before the jury, the judge must determine that there is sufficient proof to support a jury finding that the preliminary facts exist.

Question 185

Preliminary Facts Decided by Judge

Answer 185

Facts affecting the competency of the evidence must be determined by the trial judge, including:

(1) Is a witness mentally competent to testify?
(2) Does a privilege exist?
(3) Does the evidence meet the requirements of a hearsay exception?

Question 186

Judge May Consider All Non-Privileged Evidence

Answer 186

The Federal Rules permit the trial judge to consider any non-privileged relevant evidence when making a preliminary fact determination, even if such evidence would not be admissible at trial.

Judge is NOT bound by the rules of evidence, except privilege. The judge can consider hearsay evidence, authenticated evidence, etc. This evidence is not necessarily being introduced at trial - the judge is simply considering it to determine if other evidence should be admitted at trial.

Question 187

Presence of Jury

Answer 187

Whether the jury should be excused during the preliminary fact determination is generally within the discretion of the trial judge. However, the jury must be excused if:

(1) Hearing involves the admissibility of a confession;
(2) Defendant in a criminal case is testifying at the hearing and requests that the jury be excused; or
(3) Justice so requires.

Question 188

Testimony by Accused Does NOT Waive Privilege Against Self-Incrimination

Answer 188

An accused may testify on any preliminary matter without subjecting themselves to testifying at trial generally.
- Testifying about the preliminary matter does not subject the accused to cross-examination about other issues in the case.

Question 189

Judicial Notice

Answer 189

Court recognizing fact as true without formal presentation of evidence.

Question 190

Judicial Notice

Facts Appropriate for Judicial Notice

Answer 190

Facts not subject to reasonable dispute because either:

(1) Generally known within trial court’s jx (i.e. city of NY is located in NY State);
(2) Can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned (i.e. Oct. 10, 2017 was a Tuesday).

Question 191

Judicial Notice

Scientific Tests

Answer 191

Courts often take judicial notice of the reliability of well-established scientific tests and principles as a type of “generally known” fact.
- The court will admit theses test results into evidence upon a showing that the test was properly conducted.

Question 192

Judicial Notice

Procedural Issues

Answer 192

Judicial notice can be taken at any stage of the proceedings (can even be taken for the first time on appeal).

If a court does not take judicial notice of a fact on its own accord, a party must formally request that notice be taken and provide the court with the necessary information. If the party does this, the court is required to take judicial notice of the fact.

Question 193

Judicial Notice

Conclusiveness

Answer 193

Judicial noticed fact is conclusive in a civil case but NOT in a criminal case.

• In a civil case, the court must instruct the jury to accept the judicially noticed fact as conclusive.
• In a criminal case, the jury is instructed that it may but NOT required to accept the judicially voiced fact as conclusive.

Question 194

Judicial Notice

Adjudicative Facts

Answer 194

Adjudicative facts are those related to the particular facts and are subject to the judicial notice rules.

Question 195

Judicial Notice

Legislative Facts

Answer 195

Legislative facts are those relating to legal reasoning and lawmaking. The judicial notice rules are not applicable, the judge has the power to decide what policies should govern in a particular case.

Question 196

Judicial Notice

Judicial Notice of Law - Mandatory or Permissive

Answer 196

Courts must take judicial notice of federal and state law and the official regulations of the forum state and the federal gov’t.

Courts may take judicial notice of municipal ordinances and private acts or resolutions of Congress or of the local state legislature. Laws of foreign countries may also be judicially noticed.

Question 197

Substitute Proof

Presumptions

Answer 197

A presumption is a rule requiring particular inference be drawn from an ascertained (proven) set of facts. It is a form of substitute proof, because proof of the presumed fact is rendered unnecessary once evidence has been introduced of the basic fact that give rise to the presumption.

Common Presumptions:

(1) Mail delivery - A letter properly addressed, stamped, and mailed, is presume to have been delivered;
(2) 7-year absence - If a person is inexplicably absent for a continuous period of 7-years and they have not been heard from, they are presumed dead;
(3) Against Suicide - When cause of death is in dispute, there is a presumption in civil cases that it was not suicide;
(4) Legitimacy - Every person is presumed to be legitimate (born to legally married parents);
(5) Sanity - Every person is presumed sane in civil and criminal cases until contrary is shown;
(6) Ownership of Car - Agent Driver - proof of ownership of a motor vehicle creates the presumption that the owner was the driver or that the driver was the owner’s agent;
(7) Chastity - every person is presumed chaste and virtuous;
(8) Regularity - Presumed that persons acting in an official office are properly performing their duties;
(9) Continuance - Proof of the existence of a person or condition at a given time raises a presumption that it continued for as long as it is usual w/ things of that nature;
(10) Solvency - A person is presumed solvent, and every debt is presumed collectible;
(11) Bailee’s Negligence - Proof of delivery of goods in good condition to a bailee and failure of the bailee to return the goods in the same condition create a presumption that the bailee was negligent;
(12) Marriage - Proof of a marriage ceremony, a marriage is presumed valid.

Unconstitutional to give jury instruction that imposes a mandatory presumption as to an element of a charged crime

Question 198

Effect of Presumption

Answer 198

Until rebutted, a presumption operates to shift the burden of production to the party against whom the presumption operates.

NOTE: Presumption does NOT shift the burden of persuasion. The burden of persuasion remains on the same party throughout a trial.

Question 199

Rebutting Presumption in Civil Cases

Answer 199

• A presumption is overcome or destroyed when the adversary produces some evidence contradicting the presumed fact.
• Once sufficient contrary evidence is admitted, the presumption is of no force or effect.

Question 200

No Mandatory Presumption in Criminal Cases

Answer 200

Special considerations apply when true presumptions arise in the criminal context. The judge cannot instruct the jury that it must find a presumed fact against the accused; the judge must instruct them that they MAY regard the basic facts as sufficient evidence of the presumed fact.

NOTE: In a criminal case if a presumed fact establishes guilt it is an element of the offense, or negates a defense, it must be proved beyond a reasonable doubt.

Question 201

Permissible Inferences

Answer 201

A permissible inference may allow the party to meet their burden of production (establish a prima facie base) but does not shift the burden to the adversary.

i.e. inference of undue influence when a will’s drafter is also the principal beneficiary.

Question 202

Conclusive Presumption

Answer 202

Conclusive presumptions cannot be rebutted so it is really a rule of substantive law.

i.e. a child under age 7 cannot commit a crime.

Question 203

Conflicting Presumptions

Answer 203

When (2) or more conflicting presumptions arise, the Judge should apply the presumption founded in the weightier considerations of policy and logic.

Question 204

Choice of Law Re: Presumption in Civil Actions

Answer 204

Under the Federal Rules, state law governs the effect of a presumption concerning a fact that is an element of a claim or defense to which, under the Erie doctrine, the rule of decision is supplied by State Law.

Question 205

Rule of Completeness Doctrine

Answer 205

When some or all of a writing or recorded stated is admitted:

(1) Adverse party may require proponent to introduce any other part; or
(2) Any related writing or recorded statement;
(3) That ought in fairness be considered at the same time.

The adverse party may do so over a hearsay objection!

Question 206

Limited Admissibility

Answer 206

Evidence may be admissible for one purpose but not another, or admissible against one party but not another. In these situations:

(1) Judge must, upon timely request, issue limiting instruction to the jury accordingly.
(2) Judge may also exclude evidence entirely under Rule 403 balancing test (probative value must outweigh)

Question 207

Preserving Claim of Error for Appeal

Answer 207

A party may claim error in the court’s ruling if it affects a substantial rightof the party. If the court admitted evidence, the party opposing its admission needs to:

(1) Make a timely objection and specific objection; or
(2) Move to strike the evidence.

Question 208

Judge Erroneously Excluded Evidence

Answer 208

The party offering the evidence must make timely offer of proof.

Question 209

Timing Objections

Answer 209

• Objections at trial should be made after the question, but before the answer if the question calls for inadmissible information.
• Otherwise, a motion to strike must be made as soon as an answer emerges as inadmissible.
• At a deposition, objections to the form of a question, or to a testimonial privilege, should be made when the question is asked or it may be waived.
• Objections based on the substance of a question or answer may be postponed until the deposition is offered in evidence.

NOTE: Failure to object is deemed a WAIVER of any ground for objection. If no objection is made, otherwise inadmissible evidence will be admitted.

Question 210

Specificity of Objections

Answer 210

An objection may be either specific (“Objection, hearsay”) or general (“I object”).
The Federal Rules call for a specific objection unless the ground for the objection was apparent from the context.

Question 211

Opening the Door

Answer 211

A party who introduces evidence on a particular subject thereby asserts its relevance and cannot complain if their adversary offers evidence on the same subject.

Question 212

Motion to Strike - Unresponsive Answers

Answer 212

If an answer is unresponsive but otherwise admissible, only examining counsel can move to strike the answer; opposing counsel cannot.

Question 213

Exceptions

Answer 213

It is not necessary for a party to except from a trial ruling in order to preserve the issue for appeal.

Question 214

Offers of Proof

Answer 214

An offer of proof may be made, disclosing the nature, purpose, and admissibility of rejected evidence, to persuade the trial court to hear the evidence and to preserve the evidence for review on appeal.
- It may be made by witness testimony, a lawyer’s description of what the evidence would have been, or tangible evidence marked and offered.
- The court can require the offer of proof be made in question and answer form.

Question 215

Plain Error Doctrine

Answer 215

The court may take notice of a plain error affecting a substantial right of a party, even if the claim of error was not properly preserved.

Question 216

Judicial Power

Judicial Power to Comment Upon Evidence

Answer 216

A judge may comment on the weight of the evidence in federal courts.

Question 217

Shielding Jury from Inadmissible Evidence

Answer 217

To the extent practicable, the judge must conduct a jury trial so that inadmissible evidence is not suggested to the jury by any means.