evidence

Question 1

when is hearsay against criminal defendants unconstitutional?

Answer 1

*testimonial statement
*declarant now unavailable with no prior opportunity to cross-examine

Question 2

when is due process implicated for criminal defendants?

Answer 2

when the defendant is restricted from presenting a defense

Question 3

describe forfeiture by misconduct

Answer 3

if a party engages in wrongdoing to make a declarant unavailable, they can’t claim the declarant is unavailable and anything the declarant said against them can now be used

Question 4

potential contents for the public records exception

Answer 4

*activities
*observations
*factual findings

Question 5

exception to the public records exception

Answer 5

law enforcement reports are only allowed in civil cases or against the government in criminal cases

Question 6

elements of past recorded recollection exception

Answer 6

*the record concerns a matter the witness once had knowledge of
*the record was prepared or adopted by the witness when the matter was fresh
*the record accurately reflects the witness’s knowledge
*the witness testifies that they have sufficient memory of the event to testify fully and accurately

Question 7

elements of business record exception

Answer 7

*made at or near the time of the recorded event
*by a person with knowledge of the event and a duty to record
*as part of regular business practices

Question 8

other hearsay exceptions (11)

Answer 8

*present sense impression
*excited utterance
*for medical diagnosis or treatment
*present physical, mental, or emotional state (e.g., then-existing state of mind so acting in conformity with intent)
*past recollection recorded
*business records
*public records
*absence of public search (with diligent search)
*learned treatises
*judgment of previous conviction (punishable by imprisonment of 1+ years)
*reputation

Question 9

what makes a witness unavailable?

Answer 9

*exempt due to privilege
*dead or too ill
*refuses to testify
*lacks memory of subject matter
*otherwise absent and can’t be subpoenaed

Question 10

hearsay exceptions for unavailable declarants (4)

Answer 10

*former testimony: under oath + the party had an opportunity and a similar motive to develop testimony
*dying declarations: only available in homicide and civil actions
*statements against interest: against pecuniary or proprietary interest, subject to civil or criminal liability, invalidates claim against another
*statements of personal or family history
*forfeiture by misconduct

Question 11

elements for dying declarations

Answer 11

*the declarant believed they were dying
*the declarant believed that such death was imminent
*the statement is about the cause of or some other relevance to their death

Question 12

define hearsay

Answer 12

an out-of-court statement made to prove the truth of the matter asserted

Question 13

name several nonhearsay purposes

Answer 13

*verbal action or legally operative fact
*effect on the listener
*state of mind (soundness)
*proof of D’s worldview or beliefs
*D had notice of a fact or condition

Question 14

name two types of not hearsay

Answer 14

*testifying declarant: prior inconsistent statements made under oath in a judicial process, prior consistent statements, prior identification
*admission of party opponent: includes statements adopted and made by agents or co-conspirators

Question 15

public policy exceptions to admissibility

Answer 15

*liability insurance
*subsequent remedial measures
*settlement and plea negotiations and offers
*offer to pay medical expenses
*past sexual conduct

Question 16

exceptions to the past sexual conduct public policy exception (criminal vs. civil)

Answer 16

*to prove D is not the source of physical evidence
*to prove consent
*when it is unfair to D

vs.

anytime the probative value substantially outweighs any prejudice

Question 17

exceptions to the best evidence rule

Answer 17

*unavailable documents: lost/destroyed, other party has control
*public records: certified copy required
*voluminous writings
*admission by a party (deposition, testimony, or written statement)
*collateral issue

Question 18

four types of privilege

Answer 18

*attorney-client: confidential communication to secure legal advice
*doctor/therapist-patient
*5A against self-incrimination
*spousal, including confidential marital communication and spousal immunity

Question 19

what can form the basis of an expert opinion?

Answer 19

*personal knowledge
*evidence at trial
*information reasonably relied upon by experts in the field

Question 20

requirement for authentication

Answer 20

evidence sufficient to support a finding the thing is what the party says it is

Question 21

what is the best evidence rule?

Answer 21

if a witness is discussing a document’s contents, which are at issue, the document must be provided

Question 22

define “at issue” for the best evidence rule

Answer 22

*the document is proof of an event
*the witness only learned of an event from the document
*the document has actual legal effect

Question 23

Daubert factors

Answer 23

*qualified by knowledge, skill, training, experience, or education
*base testimony on sufficient facts or data
*base testimony on reliable principles and methods
*apply those principles and methods reliably to the facts of the case

Question 24

three ways to rehabilitate a witness

Answer 24

*chance to clarify/explain
*prior consistent statements
*rebut an attack of untruthfulness with reputation or opinion testimony of truthfulness

Question 25

when is testimony about specific prior acts allowed?

Answer 25

*character at issue in case
*MIMIC
*prosecutor cross-examining D’s witnesses about D’s pertinent trait or a victim’s trait (on rebuttal)
*cross-examining about truthfulness (if have a reasonable basis for the question)

Question 26

when are criminal convictions admissible (generally vs. for criminal defendants) for attacking truthfulness?

Answer 26

*crime of dishonesty or false statements
*convicted of a felony
*AS LONG AS less than 10 years unless reverse 403 can be satisfied

vs.

the probative value must outweigh any prejudice

Question 27

what witnesses can’t be excluded from the courtroom?

Answer 27

*parties to the case
*witnesses essential to the case presentation
*a person permitted by state rule to remain

Question 28

topics a juror can testify about post-verdict

Answer 28

*extraneous, prejudicial information improperly brought to the jury’s attention
*outside influences improperly brought to bear on a juror
*clerical or technical errors on the verdict form
*reliance on racial stereotypes for a conviction

Question 29

define relevance

Answer 29

*makes the fact at issue (of consequence in deciding the action) more likely than it would be without the evidence (inc. going towards weight or credibility of admissible evidence)
*material + probative

Question 30

when can relevant evidence be excluded?

Answer 30

when any prejudice substantially outweighs the probative value

Question 31

general allowances for admitting character evidence

Answer 31

*when character is an essential element
*for impeachment
*prior acts for MIMIC (motive, intent, absence of mistake, identity/MO, common plan or scheme)

Question 32

when does a party adopt a statement by silence (adoptive admission)?

Answer 32

*present and understood the statement
*ability and opportunity to deny
*a reasonable person would have denied the statement

Question 33

define the rule of completeness

Answer 33

if a party introduces part of a document (written statement), the other party may introduce other portions of that document or another statement, even if usually inadmissible, for context if in fairness they should be considered at the same time

Question 34

define curative admission

Answer 34

when the court erroneously admits evidence, it may allow the introduction of additional inadmissible evidence to rebut the previously inadmissible evidence and remove unfair prejudice

Question 35

may evidence be admitted when proof of its relevance has not yet been introduced?

Answer 35

*yes, on the condition that proof be introduced later
*must show sufficient evidence that a reasonable jury could find the fact by a preponderance of the evidence

Question 36

what constitutes personal knowledge for witnesses?

Answer 36

*perceived the matter firsthand
*present recollection of that observation

Question 36

examples of when character is at issue in a civil/criminal case (character evidence)

Answer 36

*defamation: P’s character
*negligent entrustment: person entrusted
*child custody: parent/guardian
*entrapment: D
*negligent hiring: person hired

Question 37

what type of conviction is never allowed in a civil case or against a criminal defendant to prove truthfulness?

Answer 37

a juvenile adjudication

Question 38

types of impeachment

Answer 38

*bias
*sensory ability
*character evidence for truthfulness
*specific contradiction
*prior inconsistent statements

Question 39

what two purposes may a prior inconsistent statement be used for?

Answer 39

*impeachment
*substantive evidence if meet hearsay rules

Question 40

define collateral matter

Answer 40

matter irrelevant to the case’s outcome, so extrinsic evidence of it is inadmissible

Question 41

requirement for witness opinions

Answer 41

*lay witness: must be helpful to the trier of fact in understanding the witness’s testimony
*expert: based on expert knowledge and will help the trier of fact understand the evidence or determine a fact in issue

Question 42

when are duplicates not allowed under the best evidence rule?

Answer 42

*a genuine question about the original’s authenticity exists
*the circumstances make it unfair to admit the duplicate

Question 43

to what documents does the best evidence rule apply?

Answer 43

recordings, photographs, and writings only

Question 44

issues the jury determines about documents (related to best evidence rule)

Answer 44

*whether the document ever existed
*which document is the original
*whether other evidence introduced reflects the content of the document

Question 45

requirements for an inadvertent disclosure to NOT be a waiver of attorney-client or work product privilege

Answer 45

*disclosure made in a federal proceeding or to federal agency
*disclosure was inadvertent
*privilege holder took reasonable steps to prevent disclosure
*privilege holder promptly took reasonable steps to rectify error

Question 46

when is a specific act allowed for impeachment based on character evidence?

Answer 46

only for prior convictions

Question 47

when is a party entitled to the rebuttable presumption that destroyed evidence was unfavorable to the party that destroyed it?

Answer 47

*the destruction was intentional
*the evidence was relevant
*the injured party sought the evidence with due diligence

Question 48

when is extrinsic evidence allowed for impeachment?

Answer 48

*anytime except to show character for untruthfulness
*in that instance, only allowed to show prior conviction