Evidence Flashcards

Question

Define: Character Evidence

Answer 1

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

Answer 2

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

Answer 3

* Specific acts * Opinion testimony * Reputation testimony

Answer 4

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

Answer 5

* Generally **INADMISSIBLE** to prove conformity * **Limited Exception**: sexual assault or child molestation cases ## Footnote 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**

Answer 6

* 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)

Answer 7

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!

Answer 8

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.

Answer 9

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.

Answer 10

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.

Answer 11

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

Answer 12

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.

Answer 13

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.

Answer 14

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.

Answer 15

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.

Answer 16

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.

Answer 17

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.

Answer 18

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

Answer 19

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

Answer 20

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) **M**otive; (2) **I**ntent; (3) **M**istake (absence of) (4) **I**dentity (5) **C**ommon scheme or plan. **Also includes**: Opportunity, preparation, plan, knowledge, lack of accident.

Answer 21

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.

Answer 22

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.

Answer 23

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.

Answer 24

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.

Answer 25

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.

Answer 26

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.

Answer 27

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.

Answer 28

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.

Answer 29

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)

Answer 30

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.

Answer 31

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)

Answer 32

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.

Answer 33

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).

Answer 34

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.

Answer 35

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 .

Answer 36

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.

Answer 37

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.

Answer 38

(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.

Answer 39

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**.

Answer 40

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

Answer 41

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

Answer 42

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

Answer 43

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.

Answer 44

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.

Answer 45

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.

Answer 46

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.

Answer 47

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.

Answer 48

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.

Answer 49

* 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

Answer 50

Any party, including the party who called them

Answer 51

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

Answer 52

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?

Answer 53

1. **P**rior inconsistent statements 2. **B**ias 3. **S**ensory deficiencies 4. **C**ontradiction

Answer 54

1. **O**pinion or **R**eputation evidence of untruthfulness 2. **P**rior convictions 3. **P**rior bad acts involving untruthfulness

Answer 55

* 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)

Answer 56

(1) NOT **C**ollateral (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 **W**itness **O**pportunity to explain or deny (3) Give **A**dverse party **O**pportunity to examine witness **EXCEPTIONS**: 1. **P**rior inconsistent statement is opposing party's statement 2. **H**earsay declarant is being impeached 3. **J**ustice requires

Answer 57

* 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

Answer 58

* 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** ## Footnote Bad eyesight/hearing, poor memory, consumption of alcohol/drugs

Answer 59

* 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)

Answer 60

Testimony admissible to show admissible impeached witness has **poor character for truthfulness** (to show they were not telling the truth while on stand) ## Footnote Type of character evidence

Answer 61

* 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 ## Footnote * Prior conviction used to prove witness' conduct = Inadmissible * Prior conviction to impeach credibility as witness = Admissible

Answer 62

* Interrogation permitted if misconduct is probative of truthfulness * Extrinsic evidence prohibited if defendant denies bad act ## Footnote Ex) Lying Ex) Arrest =/= bad act

Answer 63

* **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

Answer 64

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)

Answer 65

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.

Answer 66

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

Answer 67

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.

Answer 68

Statements from different trial or hearing can be hearsay.

Answer 69

(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.

Answer 70

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

Answer 71

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.

Answer 72

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

Answer 73

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

Answer 74

Statements by or attributable to an opposing party are not hearsay

Answer 75

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

Answer 76

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

Answer 77

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.

Answer 78

(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.

Answer 79

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.

Answer 80

(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.

Answer 81

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.

Answer 82

(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.

Answer 83

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.

Answer 84

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.

Answer 85

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

Answer 86

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. ## Footnote 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

Answer 87

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.

Answer 88

- 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.

Answer 89

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)

Answer 90

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.

Answer 91

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.

Answer 92

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.

Answer 93

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.

Answer 94

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

Answer 95

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

Answer 96

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.

Answer 97

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.

Answer 98

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.

Answer 99

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

Answer 100

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

Answer 101

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

Answer 102

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

Answer 103

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.

Answer 104

*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.

Answer 105

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 ## Footnote Excludes statement made to friend or family!

Answer 106

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.

Answer 107

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.

Answer 108

* 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)

Answer 109

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

Answer 110

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

Answer 111

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

Answer 112

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

Answer 113

**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

Answer 114

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

Answer 115

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

Answer 116

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

Answer 117

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

Answer 118

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. ## Footnote 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!

Answer 119

* **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)

Answer 120

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

Answer 121

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 ## Footnote 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...)

Answer 122

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 ✍️

Answer 123

* 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

Answer 124

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

Answer 125

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

Answer 126

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!

Answer 127

Ability to refuse to disclose and prevent others from disclosing relevant information | Rationale: certain relationships must be protected

Answer 128

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

Answer 129

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.

Answer 130

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

Answer 131

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

Answer 132

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

Answer 133

Eavesdropper does not destroy privilege

Answer 134

**(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**

Answer 135

1) Yes 2) Yes

Answer 136

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

Answer 137

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

Answer 138

Client holds privilege but attorney can claim it for client

Answer 139

Indefinitely, even after death or termination

Answer 140

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

Answer 141

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

Answer 142

* 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.

Answer 143

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**

Answer 144

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)

Answer 145

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

Answer 146

(1) Testimonial (2) Confidential marital communications

Answer 147

* 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

Answer 148

* 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

Answer 149

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

Answer 150

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

Answer 151

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.

Answer 152

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.

Answer 153

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

Answer 154

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

Answer 155

The burden of proof encompasses: (1) Burden of production; **or** (2) Burden of persuasion

Answer 156

* 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.

Answer 157

* 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.

Answer 158

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.

Answer 159

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.

Answer 160

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?

Answer 161

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.

Answer 162

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.

Answer 163

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.

Answer 164

Court recognizing fact as true without formal presentation of evidence.

Answer 165

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).

Answer 166

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.

Answer 167

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.

Answer 168

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.

Answer 169

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

Answer 170

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.

Answer 171

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.

Answer 172

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

Answer 173

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.

Answer 174

* 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.

Answer 175

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.

Answer 176

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.

Answer 177

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.

Answer 178

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

Answer 179

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.

Answer 180

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!

Answer 181

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)

Answer 182

A party may claim error in the court's ruling if it affects a **substantial right**of 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.

Answer 183

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

Answer 184

* 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.

Answer 185

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.

Answer 186

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.

Answer 187

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

Answer 188

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

Answer 189

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.

Answer 190

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.

Answer 191

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

Answer 192

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