Evidence

Question 1

Where evidence rules apply

Answer 1

(a) criminal, (b) civil, (c) federal courts

• NOT: grand jury proceedings

Question 2

General rules

Answer 2

No leading questions on direct

Cross may not exceed scope of direct

Hearing outside presence of jury: (a) confession, (b) D criminal defendant and requests it, (c) justice requires

Question 3

Foundation

Answer 3

showing evidence is what party says it is

Question 4

Relevance

Answer 4

evidence helps the fact finder

Question 5

Expert witness

Answer 5

doesn’t need personal knowledge, just: (1) specialized knowledge on issue, (2) based on sufficient facts/data from case, (3) reliable principles, (4) reliably applied principles

Question 6

Lay witness

Answer 6

(1) Personal knowledge

Lay opinion: (1) witness perception, (2) helpful to jury, (3) not scientific

Question 7

Competency

Answer 7

Witness ability to testify (1) truthfully, (2) accurately

Witnesses are presumed competent

Question 8

Chain of custody

Answer 8

Physical history of a piece of evidence from the time of its creation to the time of its presentation in court

P must show chain of custody is “substantially” unbroken

Question 9

Refresh recollection

Answer 9

(1) witness once knew something, (2) can no longer recall, (3) item will help refresh

Question 10

Impeachment

Answer 10

Questioning or discrediting witness credibility

By testifying, witness puts credibility at issue

Any party may impeach witness, but party can only rehabilitate after credibility has been attacked

(a) prior inconsistent statement (b) bias, (c) prior conviction (d) prior bad acts regarding truthfulness, (e) inability to recall/perceive (f) character witness to attack reputation for truthfulness

NOTE:
- Extrinsic evidence can only be used for methods showing specific instances of untruthfulness, whereas for method showing general character for untruthfulness no extrinsic evidence may be used

Question 11

Impeachment: Prior inconsistent statement

Answer 11

If under oath: (a) impeachment AND, (b) substantive evidence

If NOT under oath: (a) impeachment only

Standard of proof: The inconsistency between the witness’s prior statement and current testimony must have a reasonable bearing on the witness’s credibility.

Question 12

Impeachment: Prior conviction

Answer 12

(a) punishable by more than 1 year in jail, (b) crime involved dishonest act

NOTE:
- if D denies, then its admissible evidence in addition to impeachment
- only applies to convictions, not arrests or indictments
- if admitted as prior felony conviction court must also do 403 balancing test, BUT if admitted as prior dishonesty crime no 403 balancing test
- if 10 years have passed since conviction, then modified 403 balancing test (probative value must substantially outweigh unfair prejudice) ((normally its probative value is substantially outweighed by unfair prejudice)

Question 13

Character evidence

Answer 13

Person’s mental and moral qualities

Not admissible to show D acted in conformity with that character, BUT: (a)(i) Criminal D trait pertinent to trial, (ii) D places it at issue, (b) impeach, (c) motive, ((d) plan, (e) preparation, (f) plan (h) intent (j) opportunity (k) (i) D offers against victim (ii) pertinent to trial (but not sexual disposition
- if D uses, state can rebut
- State must give (1) reasonable notice, (2) give reason why admitted, (3) notice in writing

If essential element of crime, can use character evidence in any way

how used:
- direct: reputation/opinion, NOT specific instances, UNLESS proves element of underlying charge
- cross: (a) reputation/opinion AND, (b) specific instances BUT: (i) can’t use extrinsic evidence, and (ii) must have good faith basis

Question 14

habit evidence

Answer 14

automatic response to repeated non-variable situation, not character evidence and is admissible to show D acted in conformity with that habit on certain occasion
- proved with (a) opinion, or (b) specific instances of conduct
- burden of proof: preponderance of evidence evidence shows the habit

Question 15

Relevance

Answer 15

(1) any tendency (2) material fact more or less probable

Question 16

Rule 403

Answer 16

exclude if (1) probative value (2) substantially outweighed by unfair prejudice, confusion, mislead, delay, cumulative, etc.

BUT: opposite presumption (exclude unless probative substantially outweighs prejudice for: (a) D’s prior felony conviction, (b) conviction more than 10 years old, (c) inadmissible expert opinion, (d) victim’s sexual behavior in civil case

Question 17

Hearsay

Answer 17

(1) out of court, (2) statement, (3) offered for truth of matter asserted

NOT HEARSAY:
(a) (1) testifying witness’ prior (2) inconsistent statement, (3) given under penalty of perjury

(b) (1) testifying witnesses prior (2) consistent statement, (3) offered to rebut assertion that it was made up or to rehabilitate

(c) (1) testifying witness prior (2) identification of a person

(d) (1) statement by party opponent,

(e) statement by another that party opponent has explicitly/implicitly adopted

(f) statement by party opponent’s co-conspirator in furtherance of conspiracy

(g) party opponent’s employee within scope of employee relationship

Question 18

Hearsay Exceptions declarant unavailability doesn’t matter

Answer 18

(a) present sense impression,

(b) excited utterance,

(c) current personal state of mind/mental/emotional/physical condition, BUT NOT memory

(d) medical diagnosis,

(e) recorded recollection (1) once knew cant recall, (2) made when fresh, (3) accurately reflects memory

(e) business record, (1) made when fresh, (2) regular course of business NOT anticipation of litigation, (3) custodian, (4) not untrustworthy

(f) public record/absence, (i) activity of office, OR (ii) public official while under legal duty to report (EXCEPT POLICE in CRIM CASE), OR (iii) findings resulting form legally authorized investigation

(g) learned treatises

Question 19

Exceptions declarant unavailability required

Answer 19

Unavailable means: (a) privilege exempt from testifying, (b) refuses, (c) lack of memory, (d) dead (e) long term disability, (f) absent and can’t be located by reasonable measure
- NOTE: not unavailable if moving party caused unavailability

FDIHW

(a) former testimony (1) trail/hearing/deposition, (2) prior opportunity/similar motive to cross examine/ develop testimony

(b) dying declaration (subjective belief impending death) (ONLY civil case/homicide prosecution)

(c) statement against interest

(d) statement of personal/family history

(e) statement against party who intentionally caused declarant’s unavailability

Question 20

807 hearsay catchall exception

Answer 20

(1) circumstantial guarantees of trustworthiness, (2) evidence of material fact, (3) more probative than any other evidence of this point, (4) serve evidence rules general purposes and interests of justice (5) notice given to its introduction

Question 21

Hearsay within hearsay

Answer 21

Hearsay statement referring to another hearsay statement

Admissible if each individual hearsay statement is admissible

Question 22

Judicial notice of facts

Answer 22

(a) generally known, or (b) reliable sources that easily and accurately determine

Question 23

Authentication

Answer 23

Party needs to make minimal prima facie showing evidence is what the party claims it to be

UNLESS: self authenticating
- Categories: gov documents sealed or signed and certified, foreign gov document, certified public records, notarized docs, certified business records, newspapers, trademarks

Question 24

Settlement negotiations/Medical expenses/Subsequent remedial measures

Answer 24

(a) settlement offers/acceptances/negotiations to prove validity/liability amount regarding an actual dispute

(b) offer to pay medical expenses to prove liability, and

(c) subsequent remedial measures to prove liability

• BUT: may be admissible for other purpose besides validity/liability, (ex: to prove bias)

Question 25

Evidence of non-accepted pleas/plea discussions/related statements

Answer 25

In civil and criminal cases, evidence related to non-accepted pleas isn’t admissible if (a) guilty plea later withdrawn, (b) no-contest plea (plea but not admitting liability, (c) statements during proceedings of plea later withdrawn, (d) statements during plea discussions if no plea later
- NOTE:
– (i) doesn’t apply to accepted pleas
– (ii) doesn’t apply to statements made AFTER plea accepted, but BEFORE its withdrawn
– (iii) police interrogations (because interrogations aren’t typically plea negotiations)
– BUT: does allow otherwise inadmissible plea statements be admitted in a later criminal proceeding for perjury or false statements if made (a) under oath, (b) on the record, (c) with counsel present
– BUT: D can waive these rights if waived prior to entering plea negotiations

Question 26

Best evidence rule and ER 1003 and summaries and ER 106 rule of completeness

Answer 26

BER: If document offered to prove truth of its contents, then original of piece of evidence should be used
- NOTE: so if not offered to prove truth of contents BER doesn’t apply

ER 1003: But duplicates admissible unless (a) authenticity dispute, or (b) admitting copy unfair

ER 1006: (1) document is large, (2) original made available, THEN party can use chart/summary in place of full document in court

ER 106: if part of document/evidence introduced, party can request full document be produced

Question 27

Privileges

Answer 27

Marital-communications privilege: (1) civil AND criminal cases, (2) confidential communications, (3) communication occurred between spouses while married
- both have to agree to waive
- confidential = private outside of presence of 3rd parties
- survives the marriage, meaning don’t need to be actively married at time of trial
- NOTE: protects only communications

Spousal-testimonial privilege: (1) ONLY criminal cases, (2) current spouses, may refuse to testify at all against the other
- unilateral decision to invoke or not
- requires spouses to be actively married at time of trial
- NOTE: protects any matter regarding the marriage, not just communications

Physician-patient privilege: (1) patient/doctor relationship, (2) confidential communication, (3) for purpose of treatment/diagnosis
- Only patient can invoke
- does NOT apply in federal courts, only applies in state courts

Attorney-client privilege: (1) attorney/client relationship, (2) confidential communication, (3) for purpose of legal services

Question 28

Service of process requirements

Answer 28

(a) serve physical person, (b) serve domicile with person of suitable age who resides there (c) following state rules (typically certified mail allowed)
- Due process additional requirements: “give D reasonable reasonable notice of lawsuit”
– IF P KNOWS D didn’t get service, P must take “additional reasonable steps to provide notice”