Evidence

Question 1

The issue is whether the woman may assert an affirmative defense.

Answer 1

Even if the prosecution proves the elements of battery, a defendant can establish that they were justified in committing the battery if they were acting in self-defense. The defendant must prove they reasonably believed they were in danger of severe bodily harm or death and that they responded with only as much force as was required to repel the attack.

Question 2

The issue is whether the eyewitness’s testimony is admissible. [eyewitness wanted to testify that friend said to D that they were going to send anyone who messed with them to the hospital and that D responded by nodding affirmatively and giving a thumbs-up]

Answer 2

As a rule, only relevant evidence is admissible. Relevant evidence is that which tends to make a material fact more or less probable.

[D alleges self-defense, so D’s agreement with friend suggests D’s use of force was not justified b/c she already planned to engage in some type of violence/friend’s statement and woman’s response are both relevant to a material fact at issue (i.e., whether use of force was justified)

Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. Hearsay is inadmissible unless it falls within an exception or an exclusion to the hearsay rule. A statement may include nonverbal conduct intended as an assertion, such as nodding yes.

[nodding/thumbs-up are statements]

However, a statement made by a party to the current litigation is not hearsay if offered by an opposing party.

[nodding/thumbs-up not hearsay]

Alternatively, a statement of present intent, motive, or plan can be admissible as a hearsay exception to prove conduct in conformity with that state of mind.

[D agreed with friend’s statement about present intent to commit violence against anyone who annoyed them, D’s agreement admissible to show she acted in conformity with that intent

Friend’s statement is also admissible b/c not being offered to prove truth of matter asserted, instead, offered to provide context for the woman’s response, so not hearsay]

Question 3

The issue is whether the testimony regarding seeing the woman previously is improper character evidence.

Answer 3

In a criminal case, the prosecution is not permitted to introduce evidence of a defendant’s bad character to prove that the defendant has a propensity to commit crimes and therefore is likely to have committed the crime in question. However, if the defendant makes their character an issue in the case by offering evidence of their good character or the victim’s bad character, the defendant opens the door to allow the prosecution to rebut that evidence.

Question 4

The issue is whether the eyewitness’s prior conviction is a proper topic and method for impeachment.

Answer 4

Any witness may be impeached by evidence that they have been convicted of a crime that involved dishonesty or false statement, regardless of the punishment imposed or the prejudicial effect of the evidence. However, conviction for a crime not involving fraud or dishonesty is admissible to impeach only if the crime is punishable by death or imprisonment for more than one year. A crime involves dishonesty or false statement if establishing the elements of the crime requires proof of admission of an act of dishonesty or false statement.

Here, the woman’s conviction was punishable by up to six months in jail and therefore is only admissible if it involved a crime of dishonesty or false statement. In most jurisdictions, shoplifting is not a crime of dishonesty because it does not require proof of an act of dishonesty or false statement. Therefore, here, where there is no evidence that the woman’s specific conviction involved dishonesty, the cross-examination should not be allowed.

Question 5

The issue is whether the hospital record itself and Victor’s statement within the hospital record each must fall within a hearsay exception.

Answer 5

Hearsay is an out-of-court statement offered to prove the truth of the matter asserted and is inadmissible unless it falls within an exception. Hearsay within hearsay (double hearsay) is admissible as long as each level of hearsay falls within a hearsay exception.

Question 6

The issue is whether a hearsay exception applies to the hospital record.

Answer 6

A record or other writing of any act or event made in the course of regularly conducted business is admissible under the business-records exception to the hearsay rule. To be admitted, the custodian of the record or other qualified witness must establish that the record was made (1) at or near the time of the event, (2) by a person with knowledge of the event and under a duty to report it, and (3) as part of a regular practice of making the kind of entry in question during the regular course of business.

Question 7

The issue is whether Victor’s statement within the hospital record is admissible.

Answer 7

A statement that is made for the purpose of describing medical history or past or present symptoms, pain, or other sensation is admissible if it is made to a physician or other medical personnel for the purpose of medical diagnosis or treatment. A statement of the cause or source of the condition is admissible if it is reasonably pertinent to diagnosis or treatment.

Question 8

The issue is whether a spouse may assert the confidential marital communications privilege to avoid testifying with respect to communications with a deceased spouse.

Answer 8

The confidential marital communications privilege provides that communications made between spouses while they were married are privileged if the communication was made in reliance on the sanctity of marriage. The privilege protects communications made during the marriage, even if the marriage no longer exists or if one of the parties to the marriage is dead. Under the majority view, both spouses hold the privilege for all communications between them. When one spouse has revealed the contents of those communications to a third party, then confidentiality no longer exists and the privilege should not apply. In a minority of jurisdictions, only the communicating spouse can assert the privilege.

Question 9

The issue is whether an inconsistent hearsay statement is admissible to impeach a hearsay declarant.

Answer 9

Once a hearsay statement is admitted into evidence, the hearsay declarant’s credibility may be attacked by any evidence that would be admissible if the declarant had testified as a witness. Any inconsistent statement, even a hearsay statement, made by the declarant may be admitted to impeach the declarant’s credibility.

Question 10

The issue is whether a witness’s description of a robber provided just minutes after viewing the robbery is inadmissible hearsay.

Answer 10

Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. Hearsay evidence is generally inadmissible unless it falls within a hearsay exception or exclusion.

A present sense impression is an out-of-court statement describing or explaining an event or condition that is made while or immediately after the declarant perceived it. A present sense impression is an exception to the hearsay rule and admissible regardless of the declarant’s availability to testify.

An excited utterance is a statement made about a shocking or startling event made while the declarant is under the stress of excitement that it caused. An excited utterance is an exception to the hearsay rule and admissible regardless of the declarant’s availability to testify.

Question 11

The issue is whether it violates the 6th Amendment to admit a nontestifying witness’s out-of-court statement that was made to police during questioning within minutes of viewing the crime.

Answer 11

A statement that is made for the primary purpose of ascertaining past criminal conduct is testimonial. By contrast, a statement made primarily to enable police to render aid to meet an ongoing emergency is not testimonial. For an out-of-court testimonial statement (i.e., hearsay) to be admissible against a criminal defendant, the 6A Confrontation Clause requires that the declarant must be unavailable and the defendant must have had a prior opportunity to cross-examine the declarant. To determine whether a statement is testimonial requires an objective analysis of the circumstances regardless of the subjective purpose of the participants.owever, a statement that is not testimonial does not violate the Confrontation Clause. In determining whether a statement is testimonial, an objective analysis of the circumstances is key, and courts look to the primary purpose of the statement. Statements made under circumstances that would cause an objective witness to reasonably conclude that the statement would be available for use at a later trial (e.g., statements made during a custodial examination to an investigator, or in an affidavit) are testimonial. A statement made to police with the primary purpose of enabling police to help meet an ongoing emergency (e.g., during a 911 call) is not testimonial.

Question 12

The issue is whether the victim’s out-of-court vocal identification of the defendant is inadmissible hearsay.

Answer 12

A voice can be identified by any person who has heard the voice at any time (including one made familiar solely for the purposes of litigation). It makes no difference whether the voice was heard firsthand or through mechanical or electronic transmission or recording.

[Victim could ID voice but hearsay]

A previous out-of-court identification of a person after perceiving that person is not hearsay and may be admissible as substantive evidence by the testimony of the declarant-witness. Even if the witness has no memory of the prior identification, it will be admissible because the witness is subject to cross-examination about the prior identification.

Question 13

The issue is whether the “known drug dealer” testimony was improper character evidence.

Answer 13

In a criminal case, the prosecution is not permitted to introduce evidence of a defendant’s bad character to prove the defendant has a propensity to commit crimes and therefore is likely to have committed the crime in question.

However, evidence of a defendant’s crimes or other wrongful acts are admissible for a non-propensity purpose such as proving motive, oppportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.

Question 14

The issue is whether the mechanic’s opinion testimony about the brake inspection is relevant and admissible under the FRE.

Answer 14

All relevant evidence is admissible unless excluded by a specific rule, law, or constitutional provision. Evidence is relevant if (1) it has any tendency to make a fact more or less probable than it would be without the evidence (i.e., probative), and (2) the fact is of consequence in determining the action (i.e., material).

[mechanic testimony relevant b/c more probably W’s brakes bad]

However, a lay witness (non-expert) is generally not permitted to testify as to his opinion, except with respect to the lay witness’s common-sense impressions. To be admissible, a lay witness’s opinion must be (1) rationally based on the witness’s perception, and (2) helpful to a clear understanding of the witness’s testimony or a fact in issue.

[mechanic’s test. based on personal perception of truck, test. that he believed brakes worn would help jury determine whether woman caused accident, thus admissible as a lay opinion]

By contrast, a witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion if the proponent demonstrates to the court that it is more likely than not that (1) the testimony is based on sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.

[if mechanic met expert elements, test. based on sufficient facts b/c inspected himself; if inspection product of reliable principles, mechanic’s test. could be admitted as an expert opinion]

Question 15

The issue is whether the invoice is admissible under the business records exception to hearsay.

Answer 15

Even relevant evidence may be excluded by the rule against hearsay. Hearsay is an out-of-court statement that is being offered to prove the truth of the matter asserted.

[invoice relevant b/c tends to make more probable accident caused by W; but invoice is mechanic’s written OOC statement offered to prove W’s brakes were faulty = hearsay]

Hearsay evidence is generally inadmissible unless it falls within an exception or exclusion. A business record is excepted from the hearsay rule if the record was (1) kept in the course of a regularly conducted activity, (2) made as a regular practice for that activity, and (3) made at or near the time of the act or event by someone with knowledge.

[Analysis. “If these facts are established when the mechanic is examined in court, then the invoice will be admissible under the business records hearsay exception.”]

Question 16

The issue is whether the woman’s statement to the doctor about her existing neck injury is privileged.

Answer 16

Relevant evidence may be inadmissible because it is privileged. Although there is no common-law privilege covering statements made by a patient to a physician, most states’ statutes protect such communications when made for the purpose of obtaining medical treatment. However, in many states, a patient is deemed to have waived the privilege by placing her condition at issue in a personal injury lawsuit.

Question 17

The issue is whether the woman’s statement to the doctor about her existing neck injury is inadmissible hearsay.

Answer 17

An out-of-court statement made by a party to the current litigation is not hearsay when offered for its truth by an opposing party. Here, the woman’s out-of-court statement is being offered by the man (opposing party) to prove that her pain is due to arthritis, not the accident. Therefore, because the woman is a party to the current litigation, her statement to the doctor is not hearsay and is admissible by the man to prove the accident did not cause her neck injury.

Alternatively, a statement describing past or present symptoms is not excluded as hearsay if the statement was made for the purpose of medical diagnosis or treatment. The woman told the doctor, “I have suffered from painful arthritis in my neck for the past five years” as the woman received treatment for her neck pain after the accident. Therefore, the woman’s statement is also admissible because it was made for the purpose of treating her neck pain.

Question 18

The issue is whether the roommate’s testimony, that the man is always texting even while driving, is character or habit evidence.

Answer 18

In a civil case, evidence of a person’s character trait is generally inadmissible to prove that the person acted in accordance with that trait on a particular occasion. However, evidence of a person’s habit is admissible to prove that the person acted in accordance with the habit on a particular occasion. A habit is a person’s particular routine reaction to a specific set of circumstances. Because habit evidence can run afoul of the bans on character evidence and prior bad acts evidence, courts generally limit habit evidence to proof of relevant behaviors that are not just consistent but semi-automatic.

Question 19

The issue is whether the mechanic’s text message is relevant and admissible under a hearsay exception or as non-hearsay.

Answer 19

As a rule, evidence must be relevant to be admissible, and all relevant evidence is admissible unless excluded by a specific rule, law, or constitutional provision. Evidence is relevant if (1) it has any tendency to make a fact more or less probable, and (2) the fact is of consequence in determining the action.

[Relevant b/c tends to make brake malfunctioning more probable and woman’s knowledge of brakes is of consequence in determining whether she was negligent]

Hearsay is an out-of-court statemetn offered to prove the truth of the matter asserted. A hearsay statement may be an oral or written assertion and can be nonverbal conduct intended as an assertion. Hearsay evidence is generally inadmissible unless it falls within an exception or exclusion.

[Mechanic’s text is hearsay b/c assertion made out of court and being used to prove that brakes needed to be repaired]

Under the present sense impression exception, a statement describing or explaining an event or condition that is made while or immediately after the declarant perceived it is not excluded as hearsay.

[Mechanic’s text described the condition of the scooter immediately after he perceived it while servicing it]

Additionally, a record of an event or condition is not excluded as hearsay if: (1) the record was kept in the course of a regularly conducted activity of a business, (2) the making of the record was a regular practice of that activity, and (3) the record was made at or near the time by someone with knowledge.

[As long as mechanic regularly sends this type of text, could be a business record]

Alternatively, a statement offered to prove something other than the truth of the matter asserted is not hearsay. For example, a statement offered to shoe the effect on the person who heard it or to show the person’s state of mind is not hearsay.

[Text may be offered to prove woman had notice brakes needed repair and was negligent b/c rode scooter after receiving text/offering text for this purpose doesn’t violate hearsay rule b/c it would not be introduced to prove brakes needed repair]

Question 20

The issue is whether the woman’s question to the mechanic asking if the scooter was safe to ride is relevant and admissible.

Answer 20

Applying the relevance rules as stated above, the woman’s question to the mechanic is relevant because it has some tendency to make it more probable that the scooter brakes did or did not malfunction and has some tendency to show the woman complied with her duty of care. There are no hearsay concerns because the woman’s statement is not an assertion. She asked the mechanic whether the scooter was safe to ride. This question does not communicate any information that can be offered for its truth. Therefore, the woman’s question is likely relevant and admissible.

Question 21

The issue is whether the woman’s testimony describing the mechanic’s thumbs-up is relevant and admissible as non-hearsay.

Answer 21

Applying the relevance rules as stated above, the mechanic’s thumbs-up is nonverbal conduct intended as an assertion (i.e., a statement), and the thumbs-up is relevant because it makes it more probable that the scooter was safe to ride at the time of the accident, a fact of consequence in determining if the woman acted negligently. However, the mechanic’s thumbs-up is subject to the rule against hearsay because it is a statement being used to prove the truth of the matter asserted (that “yes” the scooter was safe to ride). The thumbs-up does not fit under the exception for a present sense impression because the mechanic gave the thumbs-up after he perceived the condition of the scooter, not immediately after. It does not appear that any other hearsay exceptions apply. Therefore, the thumbs-up is inadmissible if used to prove that the scooter was safe.

However, a statement is not hearsay if offered to prove something other than its truth–e.g., to show the statement’s effect on the person who heard it. Here, the mechanic’s thumbs-up can be used to show that the woman believed the scooter was safe to ride after seeing the mechanic’s thumbs-up. This makes it less likely that the woman was negligent because it was reasonable to believe the mechanic’s assertion that the scooter was safe to ride. Therefore, the woman’s testimony as to the thumbs up is admissible to show the reasonableness of her conduct.

Question 22

The issue is whether the letter can be ussed to impeach the eyewitness for bias.

Answer 22

Because a witness may be influenced by his relationship to a party, his interest in testifying, or his interest in the outcome of the case, a witness’s bias or interest is always relevant to the credibility of his testimony. Although the FRE do not expressly require that a party ask the witness about an alleged bias before introducing extrinsic evidence of that bias, many courts require that such a foundation be laid before extrinsic evidence of bias can be introduced.

Here, the eyewitness’s letter to the man acknowledged their 10 years of friendship, which suggests that the eyewitness has an interest in protecting the man. This could affect the credibility of his testimony, and therefore, cross-examination on this issue is relevant and should be allowed.

Question 23

The issue is whether crying is the type of communication protected from admission by the privilege against self-incrimination or inadmissible under the hearsay rule.

Answer 23

An incriminating statement obtained as the result of custodial interrogation may not be used against the suspect at a subsequent criminal trial unless the police first provided procedural safeguards effective to secure the constitutional privilege against self-incrimination (i.e., Miranda warnings). Miranda protections apply only to testimonial or compelled communicative evidence by a suspect who is in custody and under interrogation. To be testimonial, the communication must relate to a factual assertion or disclose information. Custody can only be established if a reasonable person under similar circumstances would believe she was in custody. [Crying is not testimonial as no information was disclosed; there was merely the sound of crying. Although D was technically being interrogated (i.e., asked a direct question by the officer) the defendant was not in custody at that time. A reasonable person who had invited an officer into his own home would not have believed that he was in police custody.]

Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. [Here, the crying is not hearsay, as it is not a statement at all, let alone one offered to prove the truth of itself.]

Question 24

The issue is whether the officer’s notes are admissible under an exception to the hearsay rule.

Answer 24

[Hearsay Rule]

[Here, the document containing the officer’s notes is an out-of-court statement being offered to prove that the defendant had made the statements contained in the notes. Therefore, the notes are hearsay and inadmissible unless an exception or exclusion applies.]

The recorded recollection hearsay exception allows a witness to read a record into evidence when (1) the record was on a matter the witness once knew about, (2) the record was made when the matter was fresh in the witness’s memory, (3) the record accurately reflects the witness’s knowledge at that time, and (4) the witness cannot recall the event well enough to testify to fully and accurately, even after consulting the record on the stand.

Question 25

The issue is whether the officer’s notes are admissible as an exhibit.

Answer 25

A written documentn admitted as a recorded recollection may be read to the jury, but it may not be received as an exhibit unless it is offered as such by the adverse party.

Question 26

The issue is whether the in-court testimony from the trucking company representative that less than one hour after the accident, the trucking company began an internal investigation into the accident, which resulted in the truck driver being fired, is admissible.

Answer 26

Under the FRE, a party may not admit evidence of a subsequent remedial measure to show fault. Evidence showing a subsequent remedial measure is inadmissible if the evidence is introduced to prove that the defendant was culpable for the actions in the case. A subsequent remedial measure is an action to fix or to correct a previous action to prevent it from happening again. The public policy behind this prohibition is to encourage individuals to fix or correct potentially harmful courses of action without fear of liability.

Question 27

The issue is whether the woman’s cellphone picture of the truck driver’s letter is admissible.

Answer 27

The best evidence rule requires the production of the original document, photograph, recording, or video when the contents of the item are called into question. Typically, duplicates are admissible so long as their authenticity is not subject to reasonable dispute. If a party has lost a document, in the exercise of good faith, the duplicate will be admissible.

Hearsay is an out of court statement offered to prove the truth of the matter asserted. A statement is against the declarant’s interest and will be admissible if the declarant is presently unavailable, and at the time the statement was made, it was against the declarant’s penal, pecuniary, or proprietary interest such that a reasonable person would have made the statement only if it were true. A declarant is unavailable if they are absent and their presence cannot be obtained by judicial process, the declarant is dead, the declarant now lacks any memory, or the opposing party wrongfully procured the declarant’s unavailability.

Question 28

The issue is whether the truck driver’s doctor may testify in court about the truck driver’s past medical history and treatment.

Answer 28

There is no federally recognized physician-patient privilege, but a federal court sitting in diversity will recognize the evidentiary privileges of the state in which it sits, including the physician-patient privilege. Under that privilege, a patient (or the physician on behalf of the patient) may bar the entry of communications made to a physician for the purposes of seeking medical treatment. Although held by the patient, the physician will typically assert the privilege on behalf of the patient unless a waiver of the privilege has occurred.

Question 29

The issue is whether (a) a witness who lacks memory can be impeached by a prior inconsistent statement, and (b) whether extrinsic evidence of that statement is admissible.

Answer 29

(a). Under the FRE, a litigant is generally allowed to impeach a witness’s credibility by introducing a prior inconsistent statement, as long as the inconsistency involves an issue relevant to the facts of the case. A witness’s testimony as to lack of memory can be considered an inconsistency for which a prior inconsistent statement may be introduced.

(b). Extrinsic evidence of the prior inconsistent statement used to impeach a witness’s credibility may be admitted only if the witness is given an opportunity to explain or deny the statement and the opposing party is given the opportunity to examine the witness about it. However, this opportunity is not mandated if justice so requires (e.g., if the statement is discovered after a witness becomes unavailable).

Question 30

The issue is whether Witness’s out of court statement constituted hearsay, and if so, whether it falls within any hearsay exclusion or exception.

Answer 30

Hearsay is an out of court statement offered to prove the truth of the matter asserted. A hearsay statement may be an oral or written assertion and can be nonverbal conduct intended as an assertion. Hearsay evidence is generally inadmissible unless it falls within an exception or exclusion, or is deemed non-hearsay. Under the FRE, a previous out of court identification of a person after perceiving that person is deemed non-hearsay if the witness is testifying at the current trial and is subject to cross-examination.

[Part of statement identifying D as person Witness saw admisisble b/c W testified at trial and was subject to cross concerning the ID]

However, the remaining portion of Witness’s prior inconsistent statement, “I saw D attack V and then run away with V’s bag,” is not non-hearsay, because only prior inconsistent statements made under oath at a trial, hearing, or deposition qualify as non-hearsay and can be admitted as substantive evidence therefor.

Question 31

The issue is whether a criminal defendant may introduce evidence of his good character through testimony about his reputation.

Answer 31

Generally, character evidence is inadmissible. However, in a criminal case, the defendant is permitted to introduce evidence of his good character as being inconsistent with the type of crime charged, as long as the evidence is in the form of the defendant’s reputation in a community or opinion testimony by another witness. The “community” includes people the defendant engages with on a regular basis.

Question 32

The issue is whether the court should find the man’s statement admissible.

Answer 32

Evidence must be relevant to be admissible. Evidence is relevant if it has any tendency to make a fact more or less probable than it would be without the evidence (i.e., probative) and is of consequence in determining the action (i.e., material).

Hearsay is an out-of-court statement offered for the truth of the matter asserted. Even relevant evidence is inadmissible under the hearsay rule unless it falls within a hearsay exception or exclusion. A statement made out of court is not hearsay if offered to prove something other than the statement’s truth.

Question 33

The issue is whether the woman’s incriminating statement while in custody is admissible against her.

Answer 33

Under the Fifth Amendment, a person in police custody has a constitutional right to receive Miranda warnings (or waive them) prior to being interrogated in order to secure the privilege against self-incrimination. Custody for Miranda purposes is either a formal arrest or a restraint on freedom of movement to the degree associated with a formal arrest. Custody is established if a reasonable person under similar circumstances would believe she was not free to leave. Interrogation is either express questioning by the police or any words or actions that the police know or should know are reasonably likely to elicit an incriminating response.

If the police fail to inform the suspect of her Miranda rights, any incriminating statement obtained as the result of custodial interrogation generally may not be used against the suspect at a subsequent trial. The incriminating statement may be suppressed—even if the defendant intended it to be exculpatory—unless an exception applies. One exception to the Miranda requirement permits the police to question a suspect without Miranda warnings when the public’s safety is at risk.

[Here, the woman was in custody because a reasonable person would not have felt free to leave her office after she had shot someone, two police officers seized her gun upon their arrival, and one of the officers blocked her doorway. The woman was interrogated because the police officer asked her a direct question that might incriminate her—i.e., whether she had other weapons. Though the officer performed a custodial interrogation without first giving the woman Miranda warnings, the officer questioned her about additional weapons in order to secure his safety and the safety of others gathered nearby. And because the public’s safety was at risk, the court should find that the failure to give Miranda warnings would not bar the woman’s statement from being admitted.]

Question 34

The issue is whether the woman’s incriminating statement is relevant and excluded from hearsay.

Answer 34

Relevant out-of-court statements made by a party to the litigation at hand are excluded from the definition of hearsay (i.e., are not hearsay) when offered for their truth by an opposing party.

Question 35

The issue is whether the custodian’s statement to the police officer is relevant and falls within an exception to the hearsay rule.

Answer 35

The custodian’s out-of-court statement to the police officer is relevant because it has a tendency to make a fact (i.e., the time and place of the alleged crime) more probable. If the statement is offered to prove time and place, it is hearsay; but it may fit within at least one hearsay exception. The hearsay exception for present sense impression includes a statement that describes an event while or immediately after the declarant perceived it.

Question 36

The issue is whether the court should admit the prior felony conviction as impeachment evidence.

Answer 36

Pursuant to Rule 609, in civil cases, the admission of evidence of a felony conviction is subject to Rule 403, which says that a court may exclude relevant evidence if its probative value is substantially outweidghed by other factors. However, Rule 403 does not protect the witness against admission of prior convictions involving dishonesty or false statement–which must be admitted by the court. Rule 403 factors include (1) unfair prejudice, (2) confusion of the issues, (3) misleading the jury, (4) waste of time or undue delay, and (5) needless presentation of cumulative evidence.

[10+ year old convictions only come in if probative value substantially outweighs prejudicial effect and the proponent has provided adverse party with reasonable written notice]

[Sex crimes are generally not considered relevant to credibility, so probative value is relatively low. Dude’s 7 year old conviction for sexually assaulting his 13 y/o daughter should be excluded b/c likely to inflame the jury and highly prejudicial, but little bearing on credibility]

Question 37

The issue is whether the inmate should be permitted to cross the guard about lying on his resume and introduce the resume and the guard’s academic transcript.

Answer 37

Rule 608(b) allows witnesses to be cross-examined about specific instances of prior non-conviction misconduct probative of untruthfulness in order to attack the witness’s character for truthfulness. The court’s decision to allow cross-examination of the guard’s prior dishonest behavior depends on the probative value of such evidence balanced against the danger of unfair prejudice to the guard or any other Rule 403 concern. [B/c probative value is very strong and is not substantially outweighed by any 403 concerns, cross should be permitted]

Although Rule 608(b) allows cross-examination about specific instances of prior misconduct probative of untruthfulness, extrinsic evidence offered to prove such misconduct is not admissible. The court does not have discretion to admit this extrinsic evidence.

Question 38

The issue is whether the trial court erred by denying Dana an opportunity to be heard before it took judicial notice of the weather on October 18.

Answer 38

Before a court takes judicial notice of a fact, a party has a right to be heard on the issue. This is important because once a trial court takes judicial notice of a fact in a civil lawsuit, like here, it is conclusively established. In any situation of judicial notice ,the court must allow a rebuttal when one party seeks to have the court take judicial notice of a fact when that fact is essential to the case and is not collateral. The inquiry as to whether an opportunity to be heard must then turn on whether the fact was essential to the case.

Question 39

The issue is whether there was sufficient authentication and foundation for the court to take judicial notice of the weather conditions.

Answer 39

Judicial notice of a fact may be taken when the fact is either common knowledge in a jurisdiction or is known to be true because it is recorded in the public record by a government agency. There is a hearsay exception for public records. Public records can be authenticated by a certification from the record keeper.

Question 40

The issue is whether the photograph of Defendant’s tattoo and the former gang leader’s anticipated testimony about it is inadmissible character evidence.

Answer 40

Under the FRE, character evidence is generally inadmissible to show that a person acted in conformity with his character. However, in certain circumstances, the same evidence that would show a propensity may be used to show something else, such as motive, intent, absence of mistake, identity, or common plan or scheme. However, all evidence admitted for non-propensity purposes must still be able to overcome its prejudicial effect. If the evidence is offered for non-propensity purposes, then the probative value of the evidence cannot be outweighed by its prejudicial effect under the FRE 403 balancing test.

[Photo evidence and testimony that a tattoo is a gang tat and that the different numbers mean the gang member committed different crimes can be offered for motive/identity purposes, but a judge may exclude or redact some of the picture or the testimony to prevent the substantial prejudice such testimony brings]

Question 41

The issue is whether the report is admissible under the public records exception.

Answer 41

A public record is admissible as an exception to the hearsay rule when it is prepared by a public office or agency, made in the course of the office or agency’s authority, that reports on matters within the scope of the office or which the office has a duty to report. In criminal cases, public records prepared by law enforcement, while public records, are not admissible under this exception.

Question 42

The issue is whether the woman’s past sexual behavior is relevant and admissible.

Answer 42

Pursuant to the “rape shield” rule, evidence offered to prove the sexual behavior or predisposition of an alleged victim of sexual assault is generally inadmissible in both civil and criminal proceedings. However, in a civil case, evidence offered to prove an alleged victim’s sexual behavior or predisposition is admissible if its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party.

Here, the woman has alleged that her injuries were especially traumatic because of her belief in sexual abstinence before marriage and her lack of prior sexual experience. Consequently, the woman’s prior sexual conduct has great probative value in determining the extent of her injury. On the other hand, this evidence is not likely to harm the woman or unfairly prejudice her sexual assault claim. Therefore, the court would likely grant the man’s motion to admit the evidence.

Question 43

The issue is whether evidence of the man’s offer to pay the woman $10,000 and his offer to pay her medical expenses should be excluded as compromise offers.

Answer 43

Evidence of compromise offers made by a party are not admissible to prove the validity of a disputed claim. Similarly, evidence of the payment, offer to pay, or promise to pay medical or similar expenses resulting from an injury is not admissible to prove liability for the injury. However, unlike a compromise offer, the validity or amount of a claim need not be in dispute for an offer to pay medical expenses to be inadmissible.

Offer to pay medical expenses doesn’t come in, but offer to pay woman $10k four months before she filed suit is admissible because no disputed claim yet.