Evidence

Question 1

Exception to where state law is applied instead of evidence law

Answer 1

Law of privilege in a diversity case

Question 2

Except for rules relating to privilege, the Federal Rules do not apply in:

Answer 2

(1) the court’s determination of a preliminary question of fact relating to admissibility
(2) grand jury proceedings; and
(3) other miscellaneous proceedings, including those involving sentencing, extradition, issuing an arrest or search warrant, preliminary examination in a criminal case, bail, and probation.

Question 3

Evidence is relevant if ___

Answer 3

it has any tendency to make the existence
of any fact of consequence to the determination of the action more probable or less probable than it would be without the evidence.

Question 4

Elements of relevance:

Answer 4

• Material: that is, the proposition must be “of consequence” in the case (though it does not need to be the ultimate issue); and
• Probative: meaning, the evidence has “any” tendency to make the proposition more or less likely

Question 5

All relevant evidence is admissible, unless:

Answer 5

• It is kept out by some specific exclusionary rule of evidence that you will be learning about in subsequent modules (hearsay, privilege, public policy exclusions, etc.); or
• The court uses its Rule 403 discretion to keep it out

Question 6

Rule 403

Answer 6

A trial judge has broad discretion to exclude relevant evidence if its probative value is substantially outweighed by a list of dangers

Question 7

Dangers for Rule 403

Answer 7

• Danger of unfair prejudice (there is a danger that the jury will decide the case on an emotional basis)
• Confusion of the issues (the evidence creates a side issue)
• Misleading the jury (there is a danger that the jury will give undue weight to the evidence)
• Undue delay
• Waste of time
• Needless presentation of cumulative (repetitive) evidence

Question 8

Under the Federal Rules, ____ is not a valid ground upon which to exclude relevant evidence.

Answer 8

unfair surpise

Question 9

As a general rule, if evidence involves some time, event, or person other than _____, it is inadmissible.

Answer 9

that involved in the present case

Question 10

Despite the general rule above (evidence relating to another event/time/person don’t survive 403), some recurring situations have produced concrete rules that may allow prior similar occurrences to be admitted, these include:

Answer 10

• Plaintiff’s Accident History—Prior False Claims or Same Bodily Injury
• Similar Accidents or Injuries Caused by Same Event or Condition
• Previous Similar Acts Admissible to Prove Intent
• Sales of Similar Property
• Rebutting Claim of Impossibility
• Causation
• Habit and Business Routine Evidence
• Industry Custom as Evidence of Standard of Care

Question 11

Evidence that a person has previously filed similar tort claims or has been involved in prior accidents is generally inadmissible to show the invalidity of the present claim; all it demonstrates is that the person is litigious or accident-prone.. However, such evidence may be admissible if it tends to show something other than carelessness:

Answer 11

• Evidence that a plaintiff has made previous similar false claims is usually relevant to prove that the present claim is likely to be false.
• Evidence of prior accidents may be admissible where the cause of the plaintiff’s damages is at issue. If the plaintiff previously injured the same part of their body, the evidence may be admitted to show that the plaintiff’s condition is attributable (in whole or in
  part) to the prior injury rather than the current accident.

Question 12

Generally, other accidents involving the defendant are inadmissible because they merely show the defendant’s general character for carelessness. However, evidence of prior accidents or injuries caused by the same event or condition and occurring under ____ is admissible to prove:

Answer 12

substantially similar circumstances

(1) the existence of a dangerous condition,
(2) that the dangerous condition was the cause of the present injury, and
(3) that the defendant had notice of the dangerous condition (if the other accident occurred before the plaintiff’s accident).

Question 13

Many courts are reluctant to admit evidence of the ____ of similar accidents to show absence of negligence or lack of a defect. However, evidence of the absence of complaints is admissible to
show ____

Answer 13

absence; the defendant’s lack of knowledge of the danger.

Question 14

Similar conduct previously committed by a party may be admissible to prove ____ in the current case.

Answer 14

the party’s present motive or intent

Question 15

Evidence of ____ is admissible to prove the property’s value. However, prices quoted in ____ generally aren’t admissible.

Answer 15

sales of similar personal or real property around the same time period; mere offers to purchase

Question 16

The requirement that prior occurrences be similar to the litigated act may be relaxed when used to ____

Answer 16

rebut a claim of impossibility

Question 17

Complicated issues of causation may be established by evidence concerning other ____

Answer 17

times, events, or persons

Question 18

Habit and Business Routine Evidence

Answer 18

Evidence of a person’s habit (or evidence of the routine practice of an organization) is admissible as circumstantial evidence that the person (or organization) acted in accordance with the habit on the occasion at issue in the case.

Question 19

Habit describes a person’s regular response to ____

Answer 19

a specific set of circumstances.

Question 20

There are 2 defining characteristics of habit:

Answer 20

(1) frequency of conduct and
(2) particularity of circumstances.

Question 21

As opposed to habit evidence character describes someone’s general disposition or propensity with respect to ____

Answer 21

general traits.

Question 22

Evidence as to how others in the same trade or industry have acted in the recent past may be offered as evidence of ____.

Answer 22

the appropriate standard of care (to show how the party in the current case should have acted)

–> However, industry custom isn’t conclusive on this point; for example, an entire industry may be acting negligently

Question 23

Public Policy Exclusions

Answer 23

• Liability Insurance
• Subsequent Remedial Measures
• Civil Settlements and Settlement Negotiations
• Plea Discussions
• Payments of and offers to pay medial expenses

Question 24

Evidence of a party’s insurance against liability (or lack thereof) is NOT admissible to show ____

Answer 24

whether the party acted negligently or otherwise wrongfully (meaning, it is inadmissible to prove the party’s fault or
absence of fault).

Question 25

Evidence of a party’s insurance against liability (or lack thereof) is admissible to:

Answer 25

• To prove ownership or control, if disputed;
• To impeach a witness (usually to show their bias); or
• As part of an admission of liability, where the reference to insurance coverage cannot be severed without lessening its probative value as an admission of liability (for example, “Don’t worry, my insurance will pay it off”)

Question 26

Evidence of repairs or other precautionary measures made following an injury is NOT admissible to prove ____

Answer 26

negligence, culpable conduct, a defect in a product or its design, or a need for a warning or instruction.

Question 27

Evidence of repairs or other precautionary measures made following an injury is admissible to:

Answer 27

• To prove ownership or control, if disputed;
• To rebut a claim that a precaution was not feasible; or
• To prove that the opposing party has destroyed evidence

Question 28

Evidence of a compromise (settlement) or an offer to compromise a civil claim is not admissible in any case to:

Answer 28

(1) prove or disprove the validity or amount of a disputed claim, or
(2) impeach a witness by prior inconsistent statement or contradiction.

Question 29

Conduct or statements made in the course of ____—including direct admissions of liability—are also inadmissible for these purposes [prove validity/amount of claim, impeachment].

Answer 29

negotiating a compromise

Question 30

Evidence of settlement is admissible to impeach a witness on the ground of ___

Answer 30

bias.

Question 31

The public policy exclusion for settlements and negotiations only kicks in if there was a claim or some indication that ____. Furthermore, the claim must have been in dispute as to
either ____

Answer 31

a party was going to make a claim (although the party need not have actually filed suit); (1) liability or (2) amount.

Question 32

Rules, conduct or statements made during compromise negotiations regarding a civil dispute with ___ are not
excluded when offered in ____

Answer 32

a governmental regulatory, investigative, or enforcement authority; a criminal case.

Question 33

The following are generally inadmissible in any criminal or civil case against the defendant who made the plea or participated in the discussions:

Answer 33

• Offers to plead guilty;
• Withdrawn guilty pleas;
• Actual pleas of nolo contendere (“no contest”); or
• Statements of fact made during any of the above plea discussions

Question 34

An actual ____ plea (not withdrawn) is generally admissible in related litigation as a statement of an opposing party.

Answer 34

guilty

Question 35

Evidence that a party has paid or offered to pay an injured person’s ___ is inadmissible to prove liability for the injury. However, unlike the situation with settlement negotiations, admissions of fact accompanying such payments and offers are ____

Answer 35

medical, hospital, or similar expenses; admissible.

Question 36

Beware, of an offer to pay medical expenses that is also an offer to settle (for example, “I’ll pay your medical expenses if you drop the case”). In that situation, the ____ applies; meaning, any accompanying statements or conduct would be excluded along with the offer.

Answer 36

more restrictive rule for settlement negotiations

Question 37

Character evidence refers to a person’s ____

Answer 37

general propensity or disposition (such as for honesty, fairness, peacefulness, violence).

Question 38

Character evidence might be offered as substantive evidence (meaning, to prove a fact at issue in the case) for the following purposes:

Answer 38

• To prove a person’s character in the rare situation where their character is directly in issue in the case (meaning, an essential element of a claim or defense); or
• To serve as circumstantial evidence of how a person probably acted during the events of the case. This is also known as “conduct in conformity with character” or “propensity” evidence –> This purpose for offering character evidence is the focus of the federal rule

Question 39

Evidence of a witness’s bad character for truthfulness might be offered for ____

Answer 39

impeachment purposes

Question 40

Potential methods of proving character may be allowed:

Answer 40

• Evidence of the person’s specific acts;
• Opinion testimony of a witness who knows the person; and
• Testimony as to the person’s general reputation in the community

Question 41

The ____ cannot initiate evidence of the defendant’s bad character to show conduct in conformity. However, because the defendant’s life or liberty is at stake, the ____ is permitted to introduce evidence of their own good character to show their innocence.

Answer 41

prosecution; defendant

Question 42

If the defendant introduces evidence of their good character, then the prosecution can ____

Answer 42

rebut with evidence of the defendant’s bad character.

Question 43

Under the Federal Rules, a character witness for the defendant may testify as to the defendant’s good reputation for a ____ and may give their ___

Answer 43

pertinent trait; personal opinion/rep concerning that trait of the defendant (but not specific acts!)

Question 44

A defendant does not put their character in issue merely by ___

Answer 44

testifying

–> Taking the stand places the defendant’s credibility (as opposed to character) in issue; meaning, the prosecution is limited to offering impeachment evidence rather than substantive character evidence.

Question 45

Once the defendant opens the door by introducing character evidence, the prosecution can take either or both of the following actions:

Answer 45

1 - The prosecution can cross-examine the defendant’s character witness regarding the basis for their testimony by asking “Have you heard?” or “Did you know?” questions about specific acts of
the defendant that show the defendant’s bad character for the trait in question
–> The permitted purpose of the cross-examination is to show the character witness’s lack of knowledge, not to prove the defendant’s bad character.

2 - The prosecution can call its own character witnesses to provide reputation or opinion testimony about the defendant’s bad character for the trait in question.

Question 46

____ misconduct, including prior arrests, may be inquired about while cross examining a defendant’s character witness.

Answer 46

Any

Question 47

While cross examining a defendant’s character witness the prosecutor is
limited to inquiry of the witness; they may not introduce any ____ of the misconduct

Answer 47

extrinsic evidence

Question 48

Be careful to distinguish asking a character witness whether they are aware of the defendant’s prior arrests, which is ____, and impeaching a witness with the witness’s own arrests, which is ___

Answer 48

proper; improper

Question 49

Except in sexual assault cases (see 4.3.3, below), the defendant may introduce ____ evidence of a bad character trait of the alleged ___ when it is relevant to show the defendant’s innocence.

Answer 49

reputation or opinion; crime victim

Question 50

Although a victim’s character usually has no bearing on the defendant’s innocence, it becomes relevant when the defendant claims ____ and argues that the victim was the ____

Answer 50

self-defense; first aggressor.

Question 51

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

Answer 51

• The victim’s good character for the same trait, or
• The defendant’s bad character for the same trait

Question 52

The character rules apply where evidence of the victim’s character is being offered for propensity purposes (to prove how the victim likely acted during the altercation at issue). But evidence of a victim’s character might also be offered for a non-propensity purpose—to prove the defendant’s ____

Answer 52

state of mind at the time of the altercation.

–> If the defendant knew at the time of the altercation that the victim had a violent reputation or had committed violent acts in the past, evidence of the victim’s reputation or acts may be admitted to prove the defendant acted reasonably in responding to the victim’s aggression

Question 53

In a ____ case in which the defendant pleads self-defense, evidence of ____ that the victim was the first aggressor (for example, eyewitness testimony that the victim struck first) opens the door to evidence that the victim had ____

Answer 53

homicide; any kind (not just character evidence); a good character for peacefulness.

Question 54

When prosecution can initiate questioning about character evidence

Answer 54

In a homicide case in which the defendant pleads self-defense (i.e., The prosecution can introduce this evidence regardless of whether the defendant has introduced character evidence of the victim’s generally violent propensity).

Question 55

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

Answer 55

sexual behavior or sexual disposition of the victim

Question 56

Exceptions to inadmissibility of Rape Victim’s past behavior - criminal cases

Answer 56

• Specific instances of a victim’s sexual behavior are admissible to prove that someone other than the defendant is the source of semen, injury, or other physical evidence.
• Also, specific instances of sexual behavior between the victim and the defendant are admissible by the prosecution for any reason and by the defense to prove consent.

Question 57

Specific instances of a victim’s sexual behavior with others are admissible to prove that ____

Answer 57

someone other than the defendant is the source of semen, injury, or other physical evidence.

Question 58

Also, specific instances of sexual behavior between the victim and the defendant are admissible by the prosecution for ____ and by the defense to prove ____

Answer 58

any reason; consent.

Question 59

Exception to inadmissibility of Rape Victim’s past behavior - civil cases

Answer 59

In a civil case, evidence of the alleged victim’s sexual behavior is admissible if it is not excluded by any other rule and its probative value substantially outweighs the danger of harm to the victim and of unfair prejudice to any party (reverse 403)

Question 60

In civil rape cases evidence of an alleged victim’s reputation is admissible only if ____

Answer 60

it has been placed in controversy by the victim.

Question 61

Character evidence in a civil case

Answer 61

In civil cases, character evidence is generally inadmissible to prove conduct in conformity; meaning, it cannot be offered to prove how a person probably acted during the events of the current case. This is true regardless of which party seeks to offer the evidence.

–> this applies even in a civil case based on criminal conduct

Question 62

When proof of a person’s character, as a matter of substantive law, is an essential element of a claim or defense, it is said that character is “directly in issue.” This is rare, and for bar exam purposes is generally limited to:

Answer 62

• Defamation cases where truth is a defense (plaintiff’s character is at issue);
• Negligent hiring or entrustment cases (hired/entrusted person’s character is at issue); and
• Child custody cases (parents’ character is at issue)

Question 63

When character is directly in issue, ____ forms of character evidence (reputation, opinion, and specific acts) are admissible.

Answer 63

all

Question 64

Evidence of a person’s other ____ is generally inadmissible if offered solely to prove conduct in conformity/propensity.

Answer 64

crimes, wrongs, or acts

-> In other words, the evidence can’t be offered just to suggest that because the defendant tends to do bad things, they are more likely to have committed the charged crime.

Question 65

Evidence of a person’s other crimes, wrongs, or acts is admissible if relevant to some issue ____ to commit the crime charged

Answer 65

other than their character or propensity

Question 66

Non-character purposes for offering the evidence may include:

Answer 66

MIMIC

• Motive (for example, burning a building to hide embezzlement)
• Intent (to show guilty knowledge or lack of good faith),
• absence of Mistake or accident,
• Identity (for example, “signature” crimes/modus operandi), or
• Common plan or scheme (usually, committing one crime to prepare for another).

Question 67

Even though “MIMIC evidence” is a helpful shorthand, keep in mind that this is not a comprehensive list of permitted purposes. The evidence can be admitted as long as it is relevant to ____

Answer 67

any purpose other than the defendant’s general character or propensity to commit the charged crime.

Question 68

Requirements for admission of misconduct in MIMIC-type contexts: The misconduct may be proved by any evidence, such as witness testimony, the defendant’s criminal conviction, etc. There must be _____ that the defendant
committed the other misconduct.

Answer 68

sufficient evidence to support a jury finding (meaning, a reasonable juror could come to this conclusion).

Question 69

Requirements for admission of misconduct in MIMIC-type contexts - criminal cases

Answer 69

the prosecutor must provide reasonable
notice of any evidence of this type that the prosecutor intends to offer at trial.
Such notice usually must be in writing and provided in advance of trial (but the court may excuse lack of pretrial notice for good cause). The notice must articulate the non-propensity purpose for which the evidence will be offered and the reasoning that supports the purpose.

Question 70

MIMIC evidence is admissible only if the defendant is ____ the non character issue (for example, identity or intent).

Answer 70

actually contesting

Question 71

If a MIMIC category is satisfied, the prosecution may use the evidence of misconduct as part of its ___

Answer 71

case-in-chief.

–> In other words, because MIMIC evidence is being offered for a non-propensity purpose, it is admissible even if the defendant does not “open the door” to character evidence.

Question 72

Evidence of a defendant’s other acts of sexual assault or child molestation is admissible in a criminal or civil case where the defendant is accused of committing an act of ____

Answer 72

sexual assault or child molestation.

–> Such evidence is relevant for any purpose, including the defendant’s propensity to commit sex crimes

Question 73

DEFENDANT’S SIMILAR MISCONDUCT IN SEX-CRIME CASES: The party intending to offer this evidence must disclose it to the defendant _____ before trial (or later with good cause).

Answer 73

15 days

Question 74

Whenever you are faced with a writing on an Evidence question, be alert to 3 potential issues:

Answer 74

(1) authentication,
(2) best evidence rule, and
(3) hearsay.

Question 75

As a general rule, a writing or any secondary evidence of its content will not be received in evidence unless the writing is authenticated by proof that shows that the writing is ____.

Answer 75

what the proponent claims it is

Question 76

In authenticating documents the proof must be ____

Answer 76

sufficient to support a jury finding of genuineness (that is, a reasonable juror could conclude that the writing is genuine).

Question 77

Parties may admit the genuineness of a document by ____. A document can also be authenticated by other evidence.

Answer 77

the pleadings or by stipulation

Question 78

Evidence that may properly authenticate a document:

Answer 78

• Opponent’s admission
• Eyewitness testimony
• Handwriitng verifications
• Ancient docukments
• Reply letter doctrine
• Photographs and Videos
• X-Ray Pictures, Electrocardiograms, Etc.

Question 79

A writing can be authenticated by evidence that the party against whom it is offered has either _____

Answer 79

admitted its authenticity or acted upon it
as authentic.

Question 80

A writing can be authenticated by testimony of anyone who ____. The testimony can be from anyone; it doesn’t have to be from a subscribing witness unless required by statute.

Answer 80

saw it executed or heard it acknowledged

Question 81

A writing can be authenticated by evidence that the maker’s handwriting is genuine. This evidence may be in the form of:

Answer 81

• The opinion of a lay witness (non-expert) who has familiarity with the alleged writer’s handwriting in the course of normal affairs (not acquired for purposes of the current litigation)
• The opinion of an expert who has compared the writing to samples of the alleged writer’s handwriting (can be in preparation for litigation); or
• The fact-finder’s (jury’s) comparison of the writing to samples of the alleged writer’s handwriting

Question 82

Where a lay witness authenticates handwriting the knowledge must be acquired

Answer 82

in the course of normal affairs (not acquired for purposes of the current litigation)

Question 83

An “ancient” document can be authenticated by evidence that it:

Answer 83

• Is at least 20 years old when offered into evidence;
• Is in a condition that creates no suspicion as to authenticity; and
• Was found in a place where such a writing would likely be kept

Question 84

Note that while documents may be authenticated if they are at least
_____, the related hearsay exception for ancient documents will only apply if the document was prepared ____

Answer 84

20 years old; before 1998

Question 85

Reply Letter Doctrine

Answer 85

A writing can be authenticated by evidence that it was written in response to a communication sent to the alleged author.

Question 86

Generally, photographs and videos are admissible only if identified by a witness as a portrayal of _____ and verified by the witness as a ____ of those facts

Answer 86

certain facts relevant to the issue; fair and accurate representation

Question 87

Ordinarily, it is not necessary to call the photographer to authenticate the photograph or video; a witness familiar with ____ is sufficient.

Answer 87

the scene, object, or person

Question 88

If a photograph or video is taken when no person who could authenticate the scene is present, the photograph or video may be admitted upon a showing that ___

Answer 88

the camera was properly operating at the relevant time and that the photograph or video was downloaded from that camera or developed from film obtained from that camera.

Question 89

To authenticate an X-ray it must be
shown that ____

Answer 89

the process used is accurate, the machine was in working order, and the operator was qualified to operate it, finally, a custodial chain must be established to assure that the X-ray has not been tampered with.

Question 90

When a statement is admissible only if said by a particular person (for example, as a statement by an opposing party), authentication as to ____ is required.

Answer 90

the identity of the speaker

Question 91

A voice can be identified by the opinion of ____ who has heard the voice at ____, including after litigation has begun and for the sole purpose of testifying.

Answer 91

anyone; any time

Question 92

Statements made during a telephone conversation can be authenticated by any party to the call who testifies that:

Answer 92

(1) they recognized the other party’s voice;
(2) the speaker had knowledge of certain
facts that only a particular person would have;
(3) they called a particular person’s number and a voice answered as that person or that person’s residence; or
(4) they called a business and talked with the person answering the phone about matters relevant to the business.

Question 93

Self-Authenticating Documents

Answer 93

• Domestic public documents bearing a seal, and similar official foreign public documents;
• Official publications (such as a government pamphlet);
• Certified copies of public records or private records on file in a public office;
• Newspapers and periodicals;
• Trade inscriptions and labels;
• Acknowledged (notarized) documents;
• Commercial paper (including signatures thereon) and related documents; and
• Business records, electronically generated records, and data copied
  from an electronic device, if the records are certified and the proponent gives the adverse party reasonable written notice and an opportunity for inspection

Question 94

Best Evidence Rule

Answer 94

To prove the content of a writing, recording, or photograph (defined broadly to include videos, X-rays, and any tangible collection of data; we’ll use “writing” as shorthand going forward), the original writing must be produced if the terms of the writing are material

Question 95

Secondary evidence of a writing, such as oral testimony, is admissible only if the proponent provides ____

Answer 95

a satisfactory excuse for the original’s absence.

Question 96

When does the best evidence rule apply

Answer 96

• Where the writing is a legally operative or dispositive instrument (that is, the writing itself creates rights and obligations); or
• Where the knowledge of a witness concerning a fact results from having read it in the writing

Question 97

When does the best evidence rule NOT apply

Answer 97

The rule does not apply where the witness has personal knowledge of the fact to be proved, even if the fact happens to also be recorded in a writing.

-> Oral testimony of the fact may be given without producing the original writing that recorded the event.

Question 98

The term original for the BER means:

Answer 98

The writing itself or any counterpart that is intended by the person executing it to have the same effect as an original. This
includes the negative of a photograph or any print of it, or the printout or other readable output of electronically stored information.

Question 99

The term duplicate for the BER means:

Answer 99

An exact copy of an original made by mechanical means (for example, a photocopy or carbon copy).

Question 100

Under the BER duplicates are admissible to the same extent as originals, unless:

Answer 100

(1) the circumstances make it unfair to admit the duplicate, or
(2) a genuine question is raised about the authenticity of the original.

Question 101

It is important to distinguish photocopies and copies made by hand. Photocopies are ____ and, thus, are usually treated the same as originals. In contrast, handwritten copies are considered ____ and are admissible only if the original or a duplicate is unavailable.

Answer 101

duplicates; secondary evidence

Question 102

Valid excuses justifying the admissibility of secondary evidence (under the BER) include:

Answer 102

• Loss or destruction of the original, unless the proponent lost or destroyed the original in bad faith.
• The original cannot be obtained by any available judicial process.
• The original is in the possession of an adversary who, after due notice, fails to produce the original

Question 103

If there is a valid excuse, the Federal Rules permit a party to prove
the contents of a writing by ____ of secondary evidence.

Answer 103

any type (such as handwritten copies, notes, oral testimony, etc.).

-> One type ofsecondary evidence is not preferred over the other.

Question 104

Exceptions to Best Evidence Rule

Answer 104

• Summaries of Voluminous Records
• Certified Public Records
• Writing Is Collateral to Litigated Issue
• Testimony or Written Admission of Opponent

Question 105

When it would be inconvenient to examine a voluminous collection of records in court, the proponent may ____. However, the proponent must make the originals or duplicates ____, and the court may order the proponent to produce the records in court

Answer 105

present their contents in the form of a chart or summary; available for inspection or copying

Question 106

The BER does not apply to copies of public records that are _____

Answer 106

certified as correct or testified to as correct.

Question 107

The BER does not apply where the writing is of ____ to the matter in controversy.

Answer 107

minor importance (that is, collateral)

Question 108

Where the opponent (meaning, the party against whom the writing is being offered) has given testimony, a deposition, or a written admission about the writing’s contents, the proponent may ____ and need not give an excuse for non-production of the original.

Answer 108

use this evidence

Question 109

Ordinarily, it is for the court to make determinations of fact regarding admissibility of duplicates, other copies, and oral testimony as to the contents of an original. However, the Federal Rules reserve the following questions of preliminary fact for the jury:

Answer 109

• Whether the original ever existed;
• Whether a writing produced at trial is an original; and
• Whether the evidence offered correctly reflects the contents of the original

Question 110

Real evidence must be relevant and meet the following legal requirements:

Answer 110

• Authentication
• Condition of Object

Question 111

The real object must be identified as what the proponent claims it to be, either by:

Answer 111

• Testimony of a witness that they recognize the object as what the proponent claims it is (for example, witness testifies that a gun is the one found at the crime scene); or
• Evidence that the object has been held in a substantially unbroken chain of possession (for example, blood taken for blood-alcohol test)

Question 112

To authenticate real evidence the proof must be ____

Answer 112

sufficient to support a jury finding of genuineness (that is, a reasonable juror could conclude that the
object is what the proponent claims it to be).

Question 113

If the condition of the real object is significant, it must be shown to be in ____ condition at trial.

Answer 113

substantially the same

Question 114

Particular Types of Real Evidence (beyond things directly use/relevant to the crime)

Answer 114

• Reproductions and Explanatory Real Evidence
• Maps, Charts, Models, Etc.
• Demonstrations
• Exhibition of Injuries
• Jury View of the Scene

++ While the evidence below is often admissible, remember that the court still has discretion to exclude it under Rule 403 if its probative value is substantially outweighed by the danger of unfair prejudice, waste of time, etc.

Question 115

Relevant photographs, diagrams, maps, or other reproductions are generally admissible. Items used entirely for explanatory purposes are permitted at a trial, but are usually not ____

Answer 115

admitted into evidence (meaning, they are not given to the jury during its deliberations).

Question 116

Maps, charts, models, etc., are usually admissible for the purpose of illustrating testimony, but must be authenticated by testimonial evidence that they are ____

Answer 116

faithful reproductions of the object or thing depicted.

Question 117

The court, in its discretion, may permit experiments or demonstrations to be performed in the courtroom. An experiment must be ____ to those attending the original event. Demonstrations of bodily injury may not
be allowed where the demonstrations would ____.

Answer 117

performed under conditions that are substantially similar

unduly traumatize the injury

Question 118

Exhibition of injuries in a personal injury or criminal case is generally ____,

Answer 118

permitted, but remember that the court has discretion to exclude this evidence for unfair prejudice.

Question 119

The trial court has ____ to permit the jury to view places at issue in the case. The ____ are relevant considerations here.

Answer 119

discretion; need for the view and changes in the condition of the premises following the events at issue in the case

Question 120

Witnesses must pass tests of basic reliability to establish their competency to give testimony, but they are generally ____ until the contrary is established.

Answer 120

presumed to be competent

Question 121

The Rules do not specify any mental or moral qualifications for witness testimony beyond these 2 limitations:

Answer 121

• There must be evidence sufficient to support a finding that the witness has personal knowledge of the matter about which they are to testify (note that proof of personal knowledge may consist
  of the witness’s own testimony); and
• The witness must give an oath or affirmation to testify truthfully

Question 122

The competency of a child depends on the ____ as determined by the trial judge.

Answer 122

capacity and intelligence of the particular child

Question 123

An insane person may testify, provided they understand the obligation to ___ and have the capacity to ____

Answer 123

speak truthfully; testify accurately.

Question 124

The ____ judge may not testify as a witness. Likewise, ___ are incompetent to testify before the jury in which they are sitting.

Answer 124

presiding; jurors

Question 125

During an inquiry into the validity of a verdict or indictment, a juror is generally prohibited from testifying about ____, and the court may not receive evidence of a juror’s statement on such matter

Answer 125

what occurred during deliberations or about anything that may have affected a juror’s vote

Question 126

A juror may testify as to:

Answer 126

• Whether any extraneous prejudicial information was improperly brought to the jury’s attention;
• Whether any outside influence was improperly brought to bear on any juror;
• Whether there is a mistake on the verdict form; or
• Whether any juror made a clear statement that they relied on racial stereotypes or animus to convict a criminal defendant.
  –> Not every comment indicating racial bias will qualify; the court must find that racial animus was a significant motivating factor in the juror’s vote to convict.

Question 127

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 “Dead Man Acts.”___

Answer 127

“Dead Man Acts.”

Question 128

“Dead Man Acts.”

Answer 128

These statutes provide that in a civil case, an interested person (or their predecessor in interest) is incompetent to testify to a personal transaction or communication with a deceased, when such testimony is offered against the representative or successors in interest of the deceased.
-> A person is “interested” if they stand to gain or lose by the judgment, or if the judgment may be used for or against them in a subsequent action.

Question 129

The Federal Rules state that the judge should exercise ____ in order to aid the ascertainment of truth, to avoid wasting time, and to protect witnesses from harassment.

Answer 129

reasonable control over the examination of witnesses
- Several rule apply, but keep in mind that the judge ultimately has discretion to control the questioning.

Question 130

Leading questions (questions that suggest the desired answer) are
generally allowed only on ____

Answer 130

cross examination and are not permitted on direct examination.

Question 131

The court will ordinarily allow leading questions on direct examination in the following circumstances:

Answer 131

• To elicit preliminary or introductory matter;
• When the witness needs help responding because of loss of memory, immaturity, or physical or mental weakness; or
• When the witness is hostile, an adverse party, or a witness affiliated with an adverse party

Question 132

Cross-examination is generally limited to:

Answer 132

• The scope of direct examination, including all reasonable inferences that may be drawn from it, and
• Matters that test the credibility of the witness (the permitted methods of impeachment are covered in the Impeachment module)

Question 133

Improper Questions

Answer 133

Questions that are misleading (cannot be answered without making an unintended admission), compound (requiring a single answer to more than one question), argumentative, conclusionary, cumulative, unduly harassing or embarrassing, call for a narrative answer or speculation, or assume facts not in evidence are improper and are not permitted.

Question 134

Improper Answers

Answer 134

Answers that lack foundation (the witness has insufficient personal knowledge) and answers that are nonresponsive (do not answer the specific question asked) may be stricken.

Question 135

As a general rule, a witness cannot read their testimony from a prepared memorandum; they must testify on the basis of ____

Answer 135

their current recollection.

Question 136

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

Answer 136

read from the writing (should be set aside once memory is refreshed)

Question 137

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

Answer 137

• Have the writing produced at trial;
• Cross-examine the witness about the writing; and
• Introduce portions of the writing relating to the witness’s testimony into evidence

Question 138

If the witness refreshed their memory before taking the stand, an adverse party is entitled to the above options (produced at trial, cross about it, introduce into evidence) only if ____

Answer 138

the court decides that justice requires it.

Question 139

In a criminal case, if the prosecution fails to produce or deliver a writing used to refresh memory as ordered, the judge must ____—and, if justice requires, ____.

When the defense or a party in a civil case fails to comply, the judge has more discretion and can ____

Answer 139

strike the witness’s testimony; declare a mistrial

issue “any appropriate order.”

Question 140

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 ____

Answer 140

read into evidence if a proper foundation is laid.

Question 141

The foundation for a past recorded recollection must include proof that:

Answer 141

• The witness has insufficient recollection to testify fully and accurately (that is, showing the document to the witness fails to jog their memory);
• The witness had personal knowledge of the facts in the record when the record was made;
• The record was made by the witness or under their direction, or it was adopted by the witness;
• The record was made when the matter was fresh in the witness’s mind; and
• The record accurately reflects the witness’s knowledge.

Question 142

Although the past Recorded
Recollection may be read into evidence and heard by the jury, it cannot be admitted into evidence as an exhibit unless ____

Answer 142

offered by an adverse party.

Question 143

Opinions by lay (nonexpert) witnesses are generally inadmissible. However, opinion testimony by a lay witness is admissible when it is:

Answer 143

• Rationally based on the witness’s perception;
• Helpful to a clear understanding of the witness’s testimony or helpful to the determination of a fact in issue; and
• Not based on scientific, technical, or other specialized knowledge

Question 144

An opinion of a lay witness is generally admissible with respect to:

Answer 144

• The general appearance or condition of a person;
• The state of emotion of a person;
• Matters involving sense recognition;
• Voice or handwriting identification;
• The speed of a moving object;
• The value of the witness’s own services or property;
• The rational or irrational nature of another’s conduct; and
• A person’s intoxication

Question 145

Situations Where Opinions of Lay Witnesses Are Not Admissible

Answer 145

A lay witness cannot give an opinion as to whether they (or someone else) acted as an agent or whether a contract was made, as these are legal conclusions that require specialized knowledge.
-> The lay witness may testify only as to the surrounding facts.

Question 146

For expert testimony to be admissible, the proponent must demonstrate to the court that it is more likely than not that:

Answer 146

(1) the subject matter is one where scientific, technical, or other specialized knowledge would assist the trier of fact;
(2) the opinion is based on sufficient
facts or data;
(3) the opinion is the product of reliable principles and methods; and
(4) the expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.

Question 147

The witness must be qualified as an expert. This requirement is satisfied if they possess:

Answer 147

special knowledge, skill, experience, training, or education.

Question 148

The expert’s opinion must be supported by a proper factual basis. The opinion can be based on any of the following possible sources of information:

Answer 148

• Facts based on the expert’s own personal observation
• Facts made known to the expert at trial
• Facts not known personally but supplied to the expert outside the courtroom and of a type reasonably relied upon by other experts in the particular field.

Question 149

Where the experts factual basis if from facts not known personally but supplied to the expert outside the courtroom and of a type reasonably relied upon by other experts in the particular field.

Such facts ____ be admissible
as evidence.

Answer 149

need not

Question 150

But if the facts that an expert relies on would be inadmissible, the proponent of the expert testimony must not ___ to the jury unless the court determines that their ____

Answer 150

disclose the facts; probative value in helping the jury evaluate the expert’s opinion substantially outweighs their prejudicial effect (reverse 403)

Question 151

Unless the court orders otherwise, the expert need not disclose the basis of the opinion on ____. However,
the expert may be required to disclose such information on ____.

Answer 151

direct examination; cross-examination

Question 152

The expert must possess ____ regarding their opinion. A mere ____ is not sufficient.

Answer 152

reasonable probability; guess or speculation

Question 153

Although courts have discretion to consider a wide variety of factors in determining the reliability of expert testimony, the Daubert factors that courts use to determine the reliability of experts’ principles and methodologies:

Answer 153

The “TRAP” mnemonic may help you remember them:
- Testing of principle or methodology
- Rate of error
- Acceptance by experts in the same discipline
- Peer review and publication

Question 154

A relevant excerpt from a ____ may be used during expert testimony.

Answer 154

treatise, periodical, or pamphlet

Question 155

Under the Federal Rules, these “learned treatises” can be used to both ____ under the “learned treatise” exception to the hearsay rule, subject to limitations

Answer 155

impeach experts and as substantive evidence (that is, to prove that what the treatise says is true)

Question 156

Limitations to using learned treatises in expert testiony:

Answer 156

• The treatise must be established as reliable authority by: (1) the testimony of the expert on the stand, (2) the testimony of another expert, or (3) judicial notice;
• The excerpt must be used in the context of expert testimony (cross/direct); and
• The excerpt is read into evidence but cannot be received as an exhibit

Question 157

An expert is generally permitted to render an opinion as to the ___ in the case. However, in a _____, an expert may not state an opinion as to whether the accused did or did not have that.

Answer 157

ultimate issue; criminal case in which the defendant’s mental state constitutes an element of the crime or defense

Question 158

A court has broad discretion to appoint ____ witnesses. On a party’s motion or its own, the court may order the parties to show cause why ____

Answer 158

expert; experts should not be appointed and may ask the parties to submit nominations.

Question 159

What must occur when the court appoints an expert witness:

Answer 159

• The court may then appoint any expert who consents to act, and the court must inform the expert of their duties.
• The expert must advise the parties of any findings they make, and any party may depose the expert, call the expert as a witness, or cross-examine the expert.
• The expert is entitled to reasonable compensation as set by the court.
• The court may authorize disclosure to the jury that the expert was appointed by the court.

Question 160

Upon a party’s request, the trial judge ____ order witnesses excluded from the courtroom. The judge may also do this on their own motion.

Answer 160

must

Question 161

The judge, however, must not exclude a witness where:

Answer 161

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

Question 162

The court may also issue an order prohibiting disclosure of trial testimony to ___ and prohibiting the excluded witnesses from ____ trial testimony

Answer 162

excluded witnesses; accessing

Question 163

The ___ may examine a party’s witness or call its own witness. Each party is entitled to ____ a witness called by the court.

Answer 163

court; cross-examine

Question 164

A party may object to the court’s examining or calling a witness either at that time or at the next available opportunity when ____

Answer 164

the jury is not present.

Question 165

When evidence is admissible only to impeach, it is not being offered as ____ but to show that the witness can’t be trusted

Answer 165

substantive evidence (that is, to prove some fact at issue in the case)

Question 166

Generally, a party is not permitted to bolster or accredit the testimony of their witness until the witness has been ___

Answer 166

impeached.

Question 167

Exceptions to Rule Against Bolstering

Answer 167

• A party may offer evidence that the witness made a timely complaint (in a sexual assault case, for example) or
• a prior statement of identification (usually, identifying the defendant as the
  perpetrator of the charged crime) even if this tends to bolster their in-court testimony.
  –> The prior identification may also serve as substantive evidence that the identification was correct (see hearsay exception)

Question 168

Under the Federal Rules, a witness may be impeached by ____

Answer 168

any party, including the party who called them.

Question 169

A witness may be impeached either b

Answer 169

(1) cross-examination (eliciting facts from the witness that discredit their own testimony) or
(2) extrinsic evidence (calling other witnesses or introducing documents that prove the impeaching facts).
++ different timing rules for when this can happen and when foundation should be laid

Question 170

Methods for impeaching a witness with facts that are specific to the current case

Answer 170

• prior inconsistent statements
• bias
• sensory deficiencies
• contradiction

Question 171

Methods for involve impeaching a witness with their general bad character for truthfulness

Answer 171

• opinion or reputation evidence of
  untruthfulness
• prior convictions
• bad acts

Question 172

A party may show, by cross-examination or extrinsic evidence, that the witness has, on another occasion, made statements ____

Answer 172

inconsistent with their present testimony.

Question 173

To prove a prior inconsistent statement by extrinsic evidence, a ____

Answer 173

proper foundation must be laid and the statement must be relevant to some issue in the case.

Question 174

A prior statement that omits a fact asserted during the current testimony may constitute an inconsistency if ____

Answer 174

it would have been natural for the witness to include the fact in the statement if they believed it to be true.

Question 175

On its own, a witness’s present ____ of a fact is generally not inconsistent with a prior statement relating that fact (however, the court may find an inconsistency where the witness’s memory loss appears to be ___).

On the other hand, if the witness remembers the fact on the stand, but didn’t remember the fact in the prior statement, the earlier lack of memory is generally considered ____.

Answer 175

lack of memory ; feigned

inconsistent

Question 176

Usually, prior inconsistent statements are hearsay, admissible only for impeachment purposes. If, however, a testifying witness’s prior inconsistent statement was ____, it is admissible nonhearsay and may be admitted as substantive evidence of the facts stated (see the Hearsay rule)

Answer 176

made under oath at a prior proceeding

Question 177

Extrinsic evidence can be introduced to prove a prior inconsistent statement only if, at some point:

Answer 177

• The witness is given an opportunity to explain or deny the statement;
  and
• The adverse party is given an opportunity to examine the witness about the statement

Question 178

Under the Federal Rules, the opportunity to explain or deny extrinsic evidence of a prior inconsistent statement can be given ____ introduction of the extrinsic evidence

Answer 178

before or after

Question 179

The foundation requirement for extrinsic evidence of a prior inconsistent statement (giving the witness an opportunity to explain or deny; allowing the adverse party to examine
them) does not apply in the following circumstances:

Answer 179

• The foundation requirement does not apply if the prior inconsistent statement is an opposing party’s statement
• an inconsistent statement by a hearsay declarant can be used to impeach the hearsay declarant despite the lack of a foundation.
• The court may dispense with the foundation requirement where justice requires

Question 180

Evidence that a witness is ____ tends to show that the witness has a motive to lie.

Answer 180

biased or has an interest in the outcome of a case

Question 181

The majority rule is that before a witness can be impeached by extrinsic evidence of bias or interest, they must ____

Answer 181

first be asked about the facts that show bias or interest on cross-examination.

Question 182

The court has discretion to permit extrinsic evidence of bias of a witness even if ____

Answer 182

the witness admits the bias.

Question 183

Evidence that is otherwise inadmissible (such as arrests or liability insurance) may be introduced if relevant to bias, provided ____

Answer 183

the proper foundation is laid.

Question 184

A witness may be impeached by showing, either on ___, that their faculties of perception and recollection were so impaired as to ____

Answer 184

cross-examination or by extrinsic evidence; make it doubtful that they could have perceived those facts.

Question 185

A witness may also be impeached by showing that they had ____ of the facts to which they testified.

Answer 185

no knowledge

Question 186

There is no foundation requirement for proving the sensory deficiency with ____.

Answer 186

extrinsic evidence (meaning, the witness does not need to be confronted with the impeaching fact).

Question 187

Examples of sensory deficiencies that can be used to impeach

Answer 187

Bad eyesight or hearing; poor memory; consumption of alcohol or drugs at the time of the event or while on the witness stand.

Question 188

Although not specifically addressed in the Federal Rules, impeachment by ___ is a recognized method of impeachment.

Answer 188

contradiction

Question 189

If the witness admits the mistake or lie, they have been impeached by ___.

Answer 189

contradiction

Question 190

For impeachment by contradiction extrinsic evidence is ___ unless the ____

Answer 190

permitted; contradictory fact is collateral

Question 191

A witness can be impeached with reputation or opinion evidence of their own bad character for ____, to suggest that they were not telling the truth while on the stand. This is accomplished by ____

Answer 191

truthfulness; calling a character witness to testify about the target witness’s bad reputation or the character witness’s low opinion of the target witness.

Question 192

A witness may be impeached by proof of a ___ for certain crimes.

Answer 192

conviction (an arrest or indictment is not sufficient)

Question 193

A pending review or appeal ____ the use of a conviction for impeachment.

Answer 193

does not affect

Question 194

A witness may be impeached by any crime, felony or misdemeanor, requiring an act of _____. The court has ____ to bar impeachment by these crimes.

Answer 194

dishonesty or false statement; no discretion

Question 195

Although many crimes are arguably dishonest in nature, courts interpret this category of conviction impeachment narrowly to include only crimes in the nature of “___”

Answer 195

crimen falsi (Look for a crime that involves some “uttering or writing of false words.”)

Question 196

A witness may also be impeached by a felony that does not involve dishonesty or false statement, but the court has ____ to exclude these convictions.

Answer 196

discretion

Question 197

For non-dishonesty crime of the witness being impeached is a criminal defendant, the court will exclude the conviction if the prosecution has not shown that _____

Answer 197

its probative value outweighs its prejudicial effect. (This is a more difficult balancing test than for other witnesses.)

Question 198

For non-dishonesty crime on the case of all other witnesses (non-criminal def’s), the court will exclude the conviction if it determines that ___

Answer 198

its probative value is substantially outweighed by its prejudicial effect. This is the standard Rule 403 balancing test, which favors admitting the evidence.

Question 199

Generally, if more than ___ have elapsed since the date of ____, the conviction is inadmissible.

Answer 199

10 years; conviction or the date of release from confinement (whichever is later)

Question 200

The conviction rules apply only for ___ crimes

Answer 200

felony

Question 201

The court may admit an older conviction if:

Answer 201

(1) its probative value substantially outweighs its prejudicial effect (a reverse-Rule 403 balancing test that strongly favors exclusion); and
(2) the proponent gives the adverse party reasonable written notice of their intent to use it.

Question 202

A prior conviction is usually shown by either direct or cross-examination of the witness or by introducing a record of the judgment, although other methods of proof (such as testimony from witnesses) may be permitted.____ is necessary

Answer 202

No foundation

Question 203

If a party introduces evidence of their own prior conviction (to take out the sting of being impeached on cross-examination), they cannot later claim on appeal that ___.

Answer 203

the conviction was erroneously admitted

Question 204

A conviction cannot be used to impeach a witness if the conviction was subject to ___ or equivalent procedure, and either:

Answer 204

a pardon

• The pardon was based on rehabilitation, and the witness has not been convicted of a subsequent felony;
• The pardon was based on innocence (irrespective of any subsequent convictions)

Question 205

Juvenile offenses are generally ____ for impeachment purposes. However, in a criminal case, the judge has the discretion to admit evidence of a juvenile offense committed by a witness ____ if the evidence would be admissible to ___

Answer 205

not admissible; other than the accused

attack the credibility of an adult and if the evidence is necessary to a determination of the accused’s guilt or innocence.

Question 206

A conviction obtained in violation of the defendant’s constitutional rights is invalid for all purposes, including ____

Answer 206

impeachment.

Question 207

Subject to discretionary control of the trial judge, a witness may be interrogated upon cross-examination with respect to an act of misconduct if the act is probative of ___. The cross-examiner must ____

Answer 207

truthfulness; have a good-faith basis to believe the witness committed the misconduct.

Question 208

___ evidence of the bad acts is not permitted.

Answer 208

Extrinsic

Question 209

This method of impeachment (misconduct going to truthfulness)can be accomplished only by____. Additionally, the cross-examiner cannot
refer to any ____ the witness may have suffered as a result of their bad act.

Answer 209

cross examination of the witness; consequences (The rationale is that the consequence (such as an arrest, termination, etc.) is, in essence, a third person’s opinion that the witness committed the act, and thus a form of extrinsic evidence.)

Question 210

Remember that asking about bad acts does not include inquiring about ____.

Answer 210

arrests (an arrest itself is not a bad act, it’s an act of someone else)

–> Thus, it is permissible to ask a witness whether they embezzled money from their employer. It is not permissible to ask them whether they were arrested for embezzlement.

Question 211

Where a witness makes a statement not directly relevant to the issue in the case, the rule against impeachment on a collateral matter prohibits a party from ____ either by extrinsic evidence or by a prior inconsistent statement.

Answer 211

proving the statement untrue

Question 212

The credibility of a hearsay declarant may be attacked (and if attacked, may be supported) by evidence that would be admissible if _____

Answer 212

the declarant had testified as a witness.

Question 213

In particular, the hearsay declarant need not be given the opportunity to explain or deny a ____, In addition, the party against whom the out-of-court statement was offered may ____ and cross-examine them about the statement.

Answer 213

prior inconsistent statement; call the hearsay declarant as a witness

Question 214

For purposes of this rule (impeachment of hearsay declarant), a “hearsay declarant” means a person whose out-of-court statement has been admitted into evidence:

Answer 214

(1) under an exception to the hearsay rule, or
(2) as a vicarious statement
of an opposing party

Question 215

A witness who has been impeached may be rehabilitated by the following methods:

Answer 215

• Good Character for Truthfulness
• Prior Consistent Statement

Question 216

When the witness’s general bad character for truthfulness was attacked (by reputation or opinion testimony, prior convictions, or prior acts of misconduct), ____ may be called to give reputation or opinion testimony about the impeached witness’s good character for truthfulness.

Note that the character witness cannot testify about ____ of truthful conduct by the impeached witness; only reputation and opinion are allowed.

Answer 216

other witnesses

specific acts

Question 217

Rehabilitation must ____ the attack

Answer 217

meet

Question 218

There are 2 situations in which a party can rehabilitate a witness by introducing the witness’s prior consistent statement.

Answer 218

• First, if the testimony of the witness has been attacked by an express or implied charge that the witness is lying or exaggerating because of some motive, a previous consistent statement made by the witness before the onset of the alleged motive is admissible to rebut this evidence.
• Second, if the witness’s testimony is impeached on some different ground (other than a general attack on the witness’s character for truthfulness), such as an inconsistency or a charge of faulty memory, counsel may introduce a prior consistent statement made by the witness if, under the circumstances, it has a tendency to rehabilitate the witness’s credibility.

Question 219

A prior consistent statement that is admissible to rehabilitate a witness’s credibility also is admissible as ____

Answer 219

substantive evidence of the truth of its contents (see the Hearsay rules)

Question 220

Hearsay is ___

Answer 220

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

Question 221

An out-of-court statement that incorporates other hearsay within it (“hearsay within hearsay” or “double hearsay”) is admissible only if

Answer 221

both the outer hearsay statement and the inner hearsay statement fall within an exception to the hearsay rule.

Question 222

When checking for multiple hearsay, look for an out-of-court declarant who ____

Answer 222

repeats or transcribes another person’s statement.

Question 223

For purposes of the hearsay rule, a “statement” is a person’s:

Answer 223

(1) oral or written assertion, or
(2) nonverbal conduct intended as an assertion (like a nod of the head).

Question 224

Nonhuman Declarations

Answer 224

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

Question 225

The term “out-of-court” means that the statement was not made by the declarant at ____

Answer 225

the current trial or hearing.

Question 226

If offered for a ____ purpose, it doesn’t matter that the declarant wasn’t cross-examined when they made the statement.

Answer 226

non-truth

Question 227

Common Non-Truth Purposes (that is, they are not being offered for the truth
of the matter asserted.)

Answer 227

• Verbal acts or legally operative facts (such as words of contract or defamatory words)
• Statements offered to show their effect on the listener or reader (for example, to prove notice in a negligence case)
• Statements offered as circumstantial evidence of declarant’s state of mind (for example, when a party is trying to prove someone’s insanity or knowledge)

Question 228

Do not confuse statements offered as circumstantial evidence of declarant’s state of mind, which are almost always offered as evidence of insanity or knowledge, with statements that reflect directly on declarant’s state of mind (for example, “I feel sad” or “I’m going on a trip tomorrow”), which are usually offered to establish emotion or intent. The former is ____, while the latter is hearsay subject to a _____.

Answer 228

not hearsay; specific exception

Question 229

There are certain statements that meet the basic definition of hearsay (that is, out-of-court statement offered for the truth of the matter asserted), but have been specifically designated as “not hearsay” under the Federal Rules. These statements are often referred to as hearsay ____

Answer 229

“exclusions” or “exemptions,”

Question 230

A statement can be nonhearsay either because ____

Answer 230

(1) it doesn’t fall within the basic definition of hearsay (for example, it’s not being offered for the truth of the matter asserted), or (2) it falls within one of these special hearsay exclusions.

Question 231

Hearsay exemption/exclusions (broad categories):

Answer 231

• Prior Statements of Testifying Witnesses
• Statements by or Attributable to Opposing Party

Question 232

As a general rule, a witness’s own ____ is hearsay and is inadmissible unless an exception applies.

Answer 232

prior out-of-court statement

Question 233

Under the Federal Rules, a prior statement by a testifying witness who is subject to cross-examination is not hearsay if:

Answer 233

1. The prior statement is one of identification of a person as someone
   the witness perceived earlier (even if the witness cannot remember making the identification);
2. The prior statement is inconsistent with the declarant’s in-court testimony and was given under oath at a prior proceeding; or
3. The prior statement is consistent with the declarant’s in-court testimony and is (1) offered to rebut a charge that the witness is lying or exaggerating because of some motive (and the statement was
   made before any motive to lie or exaggerate arose), or (2) offered to rehabilitate a witness whose credibility has been impeached on some other ground (other than a general attack on the witness’s character for truthfulness), such as an inconsistency or charge of faulty memory

Question 234

Remember that these 3 hearsay exclusions apply to statements of ____ only.

Answer 234

testifying witnesses (who is subject to cross)

Question 235

An opposing party’s statement (that is, a statement made by or attributable to a party and offered against that party) is ____ under the Federal Rules.

Answer 235

not hearsay

Question 236

To qualify as an opposing party’s statement, the statement need not have been ____. Personal knowledge is not required; the statement may be predicated on hearsay.

Answer 236

against the declarant’s interest when made, and may even be in the form of an opinion

Question 237

A party’s ____ judicial statements (in pleadings, stipulations, etc.) are conclusive and cannot be contradicted during trial. A party’s ____
judicial statements made during testimony and extrajudicial (out-ofcourt)
statements are not conclusive and can be explained.

Answer 237

formal; informal

Question 238

A party’s formal judicial statement in one case can be admitted against them as an extrajudicial statement in ____

Answer 238

another case.

Example: if a defendant pleads guilty to a traffic charge relating to a car accident, that plea can be admitted against them as an opposing party’s statement in a subsequent civil case arising out of the same accident.

Question 239

Where a party expressly or impliedly ____ in the statement of another, the party’s acquiescence may be admissible against them.

Answer 239

adopts or acquiesces

Question 240

If a party remains silent in the face of an accusatory statement, their silence may be considered an implied acquiescence to the truth of that statement if the following requirements are met:

Answer 240

• The party heard and understood the statement;
• The party was physically and mentally capable of denying the statement; and
• A reasonable person would have denied the accusation

Question 241

Silence in the face of accusations by ____ is almost never considered an admission of a crime.

Answer 241

police in a criminal case

Question 242

Certain statements by another person are admissible against a party because of the relationship between them, including (high level):

Answer 242

• Authorized Spokesperson
• Agents and Employees
• Partners
• Co-Conspirators
• Privies in Title and Joint Tenants (State Courts Only)

Question 243

Statements of a party are NOT receivable against their ____

Answer 243

co-parties merely because they happen to be joined as parties.

Question 244

The statement of a person authorized by a party to ____ can be admitted against the party.

Answer 244

speak on its behalf (such as a statement by company’s press agent)

Question 245

A statement by an agent or employee is admissible against the principal if the statement:

Answer 245

(1) concerned any matter within the scope of their agency or employment, and
(2) was made during the existence of the agency or employment relationship (doesn’t matter whether they are currently working or not)

Question 246

After a partnership is shown to exist, a statement of one partner relating to matters ____ is binding upon their co-partners.

Answer 246

within the scope of the partnership business

Question 247

Statements of one conspirator, made to a third party in ____ at a time when the declarant was ____, are admissible against co conspirators. The court must determine the existence of a conspiracy, and the party’s participation in it, by a ____ standard

Answer 247

furtherance of a conspiracy to commit a crime or civil wrong; participating in the conspiracy

preponderance of the evidence

Question 248

The admission of Statement against an opposing party from those Privies in Title and Joint Tenants applies in ___ Only

Answer 248

State Courts

Note: These statements do not qualify as opposing party statements under the Federal Rules, but may be admissible under one of the hearsay exceptions

Question 249

In most state courts, statements of each ___ owner are admissible against the other, and statements of a former owner of real property made at the time they ___ are admissible against those claiming under them (grantees, heirs, etc.).

Answer 249

joint; held title

Question 250

Before admitting an out-of-court statement as a vicarious statement of an opposing party, the court must make a preliminary determination of ______

In making such a determination, the court must consider the ____, but the statement
alone is ____ to establish the required relationship; there must be some independent evidence.

Answer 250

declarant’s relationship with the party against whom the statement is offered

contents of the statement; not sufficient

Question 251

Three broad categories of hearsay exceptions

Answer 251

• Where declarant is unavailable
• Where it doesn’t matter
• Residual catch all exception

Question 252

HEARSAY EXCEPTIONS—DECLARANT UNAVAILABLE

Answer 252

• Former testimony
• Statements against interest
• Dying declarations
• Statement of personal or family history
• Statements Offered Against Party Procuring Declarant’s Unavailability

Question 253

Statements Offered Against Party Procuring Declarant’s Unavailability

Answer 253

• Are unable to testify due to death or physical or mental illness;
• Are exempt from testifying because of privilege;
• Refuse to testify concerning the statement despite a court order;
• Testify that they do not remember the subject matter; or
• Are absent (beyond the reach of the court’s subpoena), and the proponent is unable to procure their attendance or testimony by process or other reasonable means.

Question 254

A declarant who is able to give deposition testimony in lieu of attending trial is considered to be an ____ witness—except with respect to ____

Answer 254

available; (1) the former testimony exception and (2) the forfeiture by wrongdoing exception

Question 255

A declarant is not considered unavailable for purposes of the hearsay rule if the proponent of the declarant’s statement ____ the declarant’s unavailability (for example, by intimidating or killing them) in order to ____

Answer 255

procured or wrongfully caused; prevent them from attending or testifying (need specific intent)

Question 256

The former testimony of a now-unavailable witness is admissible if:

Answer 256

• The testimony was given under oath at a trial, hearing, or deposition, in the same case or in a different case; and
• The party against whom the testimony is now being offered—or, in a civil case, the party’s predecessor in interest—had an opportunity and similar motive to develop the declarant’s testimony at the prior proceeding by direct, cross-, or redirect examination.
  –> “Predecessor in interest” refers to a person in a privity relationship with the party (examples would include grantor-grantee, testator-executor, or joint tenants).

Question 257

On a practical level, the “opportunity and similar motive” requirement means that the party against whom the testimony is offered (or, in a civil case, their predecessor in interest) must have been ____, and the former action must have involved the ____

Answer 257

a party in the former action; same subject matter (but the causes of action need not be identical).

Question 258

Because grand jury proceedings do not provide the accused with an opportunity for cross-examination, the grand jury testimony of an unavailable declarant is ____ against a defendant under the former testimony exception to the hearsay rule. Be careful not to confuse this with a prior inconsistent statement given under oath by a now-testifying witness (one of the hearsay exclusions discussed in the prior section). Grand
jury testimony is ___ in that case, both as ____ evidence.

Answer 258

not admissible; admissible (impeachment and substantive)

Question 259

Statements Against Interest

Answer 259

A statement of a person, now unavailable as a witness, may be admissible if it was against that person’s pecuniary (money), proprietary (property), or 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.

+ The declarant must also have had personal knowledge of the facts, and must have been aware that the statement was against their interest when they made it.

Question 260

Limitation on Statements Against Penal Interest

Answer 260

In criminal cases, statements against penal interest (meaning, statements that would subject the declarant to criminal liability) must be corroborated.

Question 261

If a person makes a declaration containing statements that are against their interest (for example, “I sold the drugs”) and statements that are not (for example, “X runs the drug ring”), the exception covers only those remarks that _____, not the entire extended declaration.

Answer 261

inculpate the declarant

Question 262

Dying Declarations Exception

Answer 262

In a homicide prosecution or in any civil case, a statement made by a now-unavailable declarant is admissible if:
- The declarant believed their death was imminent (they need not actually die); and
- The statement concerned the cause or circumstances of what the declarant believed to be their impending death.
- Note that the statement must be based on the declarant’s perceptions and
firsthand knowledge of what happened (meaning, an unsupported opinion or speculation will not qualify).

Question 263

Beware of answer choices reflecting the traditional dying declaration rule, which:

Answer 263

(1) required that the declarant ultimately die of the injury, and
(2) could not be used in civil cases.

Question 264

The dying declarations exception only applies in:

Answer 264

Homicide prosecutions (doesn’t include attempted homicide either) and civil cases

Question 265

Statements of Personal or Family History

Answer 265

Statements by a now-unavailable declarant concerning births, marriages, divorces, relationship, genealogical status, etc., are admissible provided that:
- The declarant is a member of the family in question or intimately associated with it; and
- The statements are based on the declarant’s personal knowledge of the facts or their knowledge of family reputation

Question 266

The statement of a person (now unavailable as a witness) is admissible when offered against a party who has engaged or acquiesced in wrongdoing that intentionally procured the declarant’s unavailability. Remember, the statement meets this exception only if ____

Answer 266

the party’s motivation was to prevent the declarant from testifying.
-> If a party killed a declarant (or otherwise prevented them from testifying for a different reason, the declarant’s statement would not fall within this
exception.

Question 267

The following exceptions to the hearsay rule do not require that the declarant be unavailable:

Answer 267

• Excited Utterances
• Present Sense Impressions
• Present State of Mind
• Statements Made for Purposes of Medical Diagnosis or Treatment
• Records of a Regularly Conducted Activity— Business Records
• Official Records and Other Official Writings
• Recorded Recollection
• Learned Treatises
• Ancient Documents
• Documents Affecting Property Interests
• Reputation
• Family Records
• Market Reports

Question 268

Excited Utterances

Answer 268

An out-of-court statement relating to a startling event, made while under the stress of the excitement from the event (meaning, before the declarant had time to reflect upon it), is admissible.

Question 269

Sometimes a “failed” dying declaration may “succeed” as an ____

Answer 269

excited utterance (for example, where the declarant is available or had some hope of survival)

Question 270

Present Sense Impressions

Answer 270

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

Question 271

Present State of Mind Exception

Answer 271

A statement of the declarant’s then existing (present) state of mind (including their motive, intent, or plan) or their emotional, sensory, or physical condition is admissible.

Question 272

Except as to certain facts concerning the declarant’s will, a statement of____ is not admissible to prove the truth of the fact remembered or believed under the present state of mind exception.

Answer 272

memory or belief

Question 273

“state of mind” includes statements about the declarant’s intent to do something in ____, including the intent to engage in conduct with ____.

Answer 273

the future; another person

Question 274

The present sense impression excpetion covers a declarant’s statement—to
_____—about their current physical condition.

Answer 274

anyone

Question 275

Statements Made for Purposes of Medical Diagnosis or Treatment

Answer 275

A statement that describes a person’s medical history, past or present symptoms, or their inception or general cause is admissible as an exception to the hearsay rule if it was made for—and was reasonably pertinent to—medical diagnosis or treatment.

Question 276

For the Statements Made for Purposes of Medical Diagnosis or Treatment exception Statements falling within this exception are usually made to medical personnel, but this is ____

Answer 276

not an absolute requirement.

Question 277

There is a separate hearsay exception for statements of present physical condition, and this exception applies regardless of whether the declarant is seeking medical help. The difference here is that the “medical diagnosis or treatment” exception covers statements of ____

Answer 277

past condition (as well as present condition).

Note: when a declarant makes a statement of present physical condition for the purpose of medical diagnosis or treatment, it could technically be admitted under either exception.

Question 278

Under the Federal Rules, declarations of past physical condition made to a doctor employed to ____ are admissible under this hearsay exception.

Answer 278

testify (that is, making a statement for the purpose of obtaining a “medical diagnosis” includes a diagnosis for the purpose of giving an expert opinion).

Question 279

Business Records Exception

Answer 279

Any writing or record made as a memorandum of any act, event, condition, opinion, or diagnosis is admissible in evidence as proof of that occurrence if the elements are met.

Question 280

Business Records Exception Elements

Answer 280

• “Business”
• Entry Made in Regular Course of Business
• Entry Made Near Time of Event
• Personal Knowledge

Question 281

For the business records exception “Business” includes _____

Answer 281

every business, organization, occupation, or calling, including nonprofit organizations.

Question 282

Entry Made in Regular Course of Business To be admissible:

Answer 282

(1) the record must have been made in the regular course of business and
(2) the business must regularly keep such records (meaning, the entrant must have had a duty to make the entry).

Question 283

Self-serving accident reports prepared primarily for ____ are usually inadmissible.

Answer 283

litigation

Question 284

For the business records exception the entry must be made _____

Answer 284

at or near the time of the event

Question 285

For the business records exception the business record must consist of matters within the personal knowledge of the ____, or within the knowledge of someone with ____

Answer 285

entrant; a duty to transmit such matters to the entrant (generally, a co-worker).

Question 286

Business records and police reports often present a ____ problem.

Answer 286

multiple hearsay (so check that the statements contained inside were also report by someone with duty to report, otherwise = not admissible)

Question 287

Foundation for Business Records

Answer 287

The authenticity of the record must be established by a sponsoring witness, who can be a custodian of records or any person in the business who is knowledgeable about the business’s recordkeeping (it does not need to be the author of the record in question).

Question 288

Foundation for Business Records - ways to achieve:

Answer 288

(1) testifying that the record meets the elements of the business records exception, or
(2) certifying in writing that the record meets the elements of the business records exception.

Question 289

A business record that meets the above requirements may also be used to prove the ____ if it was the regular practice of the business to record all such matters.

Answer 289

nonoccurrence or nonexistence of a matter

Question 290

Even if a business record meets all requirements, it still may be excluded by the court if the opponent makes a showing that ____

Answer 290

the circumstances of the record indicate a lack of trustworthiness.

Question 291

The following records of a public office or agency are admissible:

Answer 291

• Records setting forth the activities of the office or agency (for example, payroll records);
• Recordings of matters observed pursuant to a duty imposed by law (for example, weather bureau records of temperature), but not including police observations in criminal cases; and
• In civil actions and against the government in criminal cases—but
  not against the defendant in a criminal case—records of factual findings resulting from an investigation authorized by law (for example, an FAA report on the cause of a plane crash)

Question 292

For the public records exception the writing must have been made by and within ____, and it must have been made ___ the time of the event.

Answer 292

the scope of the duty of the public employee; at or near

Question 293

As with business records, an otherwise qualifying public record may be excluded by the court if the opponent makes a showing that ____

Answer 293

the circumstances of the record indicate a lack of trustworthiness

Question 294

As a general rule, police reports can be admitted under the public records exception. Even the officer’s opinions and factual (not legal) conclusions can be admitted under this exception. However, public records and reports generally are not admissible ____.

Answer 294

against the defendant in a criminal case

Question 295

Most courts have held that these records (police reports can) can’t be admitted against a criminal defendant under the ____

Answer 295

business records exception (in other words, the business records exception can’t be used as a “back door” toget around this limitation in the public records exception).

Question 296

Records of vital statistics are admissible if reported to a public office in accordance with ____

Answer 296

a legal duty.

Question 297

Statement of Absence of Public Record

Answer 297

Evidence in the form of testimony or a certification from the custodian of public records (or other qualified person) that they have diligently searched and failed to find a record is admissible to prove that the matter was not recorded, or inferentially that the matter did not occur.

Question 298

Statement of Absence of Public Record in criminal cases

Answer 298

A criminal defendant has a right to confrontation and may demand the presence of the person who prepared the
certification.

Thus, in a criminal case, this type of evidence is admissible in the form of a certification only if the prosecution notifies the defense at least 14 days before trial and the defense does not object in writing within 7 days of receiving the notice (unless the court sets a
different timeline).

Question 299

A certified copy of a judgment is always admissible proof that ____. The problem is to what extent ____ in the former proceeding can be introduced to prove facts in the present case.

Answer 299

such judgment has been entered; the facts adjudicated

Question 300

A judgment of a felony conviction is admissible in criminal and civil actions as an exception to the hearsay rule to prove ____. In a criminal case, however, the government may use the judgment for this purpose only against ____; against others, it may be used only for ___

Answer 300

any fact essential to the judgment

the accused; impeachment purposes.

Question 301

The public records exception does not apply to records of ____

Answer 301

prior acquittals.

–> This is because the evidentiary standard is higher in a criminal case (proof beyond a reasonable doubt), so an acquittal is not conclusive as to whether the defendant would be found liable in a civil case.

Question 302

A civil judgment is inadmissible in _____ because of the different standards of proof.

Answer 302

a subsequent criminal proceeding

Question 303

A civil judgment is generally also inadmissible in subsequent ____, subject to certain statutory exceptions—for example, under the Federal Rules, a prior judgment may be admitted to prove matters of personal or family history, or boundaries of land.

Answer 303

civil proceedings

Question 304

Recorded Recollection Hearsay Exception

Answer 304

Under this exception, if a 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 (analog of rule of using document to aid oral testimony)

–> Remember that under this exception, the record can only be read into evidence; it cannot be admitted as an exhibit unless offered by an adverse party.

Question 305

As discussed in the Witnesses module, statements contained in a learned treatise are admissible as substantive proof if

Answer 305

(1) the treatise 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.

–> If admitted, such statements are read into evidence but are not received as an exhibit

Question 306

Remember that learned treatises are admissible only if introduced in the context of ____

Answer 306

expert testimony.

Question 307

Ancient Documents hearsay exception

Answer 307

Under the Federal Rules, statements in any authenticated document prepared before January 1, 1998, are admissible.

Question 308

Documents Affecting Property Interests hearsay exception

Answer 308

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

However, the exception will not apply if later dealings with the property are inconsistent with the truth of the statement asserted or the intent of the document.

Question 309

Reputation hearsay exception

Answer 309

Reputation evidence is hearsay because it summarizes various out-of-court statements by other people—but we know from the Character Evidence module that such testimony is routinely admitted.

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

Question 310

Family Records hearsay exception

Answer 310

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

Question 311

market reports hearsay exception

Answer 311

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

Question 312

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:

Answer 312

i - The hearsay statement must possess sufficient guarantees of trustworthiness. —> In making this determination, the court must consider: (1) the totality of the circumstances in which the statement was made, and (2) any evidence that corroborates the statement.
ii - The statement must be strictly necessary (that is, more probative
as to the fact for which it is offered than any other evidence that the proponent can reasonably produce).
iii. The proponent must give reasonable notice to the adversary as to their intent to offer the statement
–> This includes: (1) the substance of the statement, and (2) the name of the declarant.

Question 313

The notice for the residual exception generally must be given in writing in advance of the trial or hearing, but may be given in any form during the trial or hearing if the court, for ___

Answer 313

good cause, excuses a lack of earlier notice.

Question 314

Under the Confrontation Clause, a hearsay statement will not be admitted (even if it falls within a hearsay exception) where:

Answer 314

• The statement is being offered against the accused in a criminal case (there is no confrontation concern in civil cases);
• The declarant is unavailable;
• The statement was “testimonial” in nature; and
• The accused had no opportunity to cross-examine the declarant’s testimonial statement prior to trial

Question 315

The defendant forfeits their right of confrontation if they ____

Answer 315

committed a wrongful act that was intended to keep the witness from testifying.

Question 316

“Testimonial” evidence includes ____ (such as at a grand jury, prior trial, or preliminary hearing). However, it also includes statements to ____ (sworn and unsworn) and certain documents, as discussed below.

Answer 316

sworn testimony; law enforcement

Question 317

Whether a statement made in response to police interrogation is testimonial depends on its ____

Answer 317

primary purpose

Question 318

If the primary purpose of police interrogation is to enable the police to ____, statements made in the course of the interrogation are nontestimonial

Answer 318

help in an ongoing emergency

Question 319

In determining whether an “ongoing emergency” existed at the time of the interrogation, relevant factors include:

Answer 319

(1) the nature of the dispute (public vs. private);
(2) whether the perpetrator is still at large;
(3) the scope of the threat to the victim and to the public; and
(4) the type of weapon involved.

Question 320

When the primary purpose of the interrogation is to _____, statements are testimonial

Answer 320

establish or prove past events potentially relevant to a later criminal prosecution

Question 321

It has been held that statements by a young child abuse victim to a school teacher about the abuse are ____.

Answer 321

not testimonial (because the primary purpose of the conversation is protection of the child, not prosecution of the perpetrator)

Question 322

Affidavits, certificates, or other written reports that summarize the findings of forensic analysis and have the effect of ____ are testimonial and cannot be admitted unless the defendant previously had an opportunity to cross-examine the
author of the report. The testimony of the analyst’s supervisor who was not involved in the testing is ____ to admit the results.

Answer 322

accusing a targeted individual of criminal conduct (such as fingerprint test results); not sufficient

Question 323

In a criminal case where there is an out of court declarant continue:

Answer 323

Hearsay, confrontation clause

Question 324

Hearsay rules and other exclusionary rules of evidence cannot be applied where such application would ____

Answer 324

deprive the accused of their right to a fair trial or deny their right to compulsory process (DPC)

Question 325

What privilege rules apply and when:

Answer 325

• In a federal court case arising under federal substantive law, privileges are governed by federal common law.
• In a federal court case based on diversity jurisdiction, where state substantive law applies to parties’ claims and defenses (the Erie doctrine, covered in Federal Civil Procedure), the federal
  court must apply privilege law of the state.

Question 326

The Federal Rules have no specific privilege provisions; privilege in federal courts is governed by common law principles as interpreted by the courts. Federal courts currently recognize the following major privileges:

Answer 326

• The attorney-client privilege;
• Spousal immunity;
• The privilege for confidential marital communications;
• The psychotherapist/social worker-client privilege;
• The clergy-penitent privilege; and
• Governmental privileges

Question 327

These privileges are only recognized by certain states (not federal CL)

Answer 327

physician-patient, accountant-client, professional journalist

Question 328

In general to be privileged, a communication must be shown or presumed to have been made ____

Answer 328

in confidence (meaning, not intended to be disclosed to third parties).

Question 329

Any privilege is waived by:

Answer 329

(1) failure to claim the privilege;
(2) voluntary disclosure of the privileged matter by the privilege holder; or
(3) a contractual provision waiving in advance the right to claim a privilege.

Question 330

What actions do not constitute waiver of privilege:

Answer 330

• A privilege is not waived when someone wrongfully discloses information without the privilege holder’s consent.
• A waiver by one joint holder does not affect the right of the other holder to assert the privilege.
• A privilege based on confidential communications is not destroyed because it was overheard by someone whose presence is unknown to the parties. (Under the modern view, in the absence of negligence by the person claiming privilege, even the eavesdropper would be prohibited from testifying)

Question 331

Elements of Attorney-Client

Answer 331

The privilege applies to:
- Confidential communications,
- Between attorney and client (or representatives of either),
- Made during professional legal consultation,
- Unless the privilege is waived or an exception is applicable

Question 332

For the A/C privelge an “attorney” is ____

Answer 332

a member of the bar, or someone the client reasonably believes to be a member of the bar.

Question 333

For the A/C privilege the “client” must be ____ at the time of the communication. Disclosures made before the attorney ____ the case are covered by the privilege.

Answer 333

seeking the professional services of the attorney; accepts or declines

Question 334

Corporations are “clients” within the meaning of the privilege, and statements made by corporate officials or employees to an attorney are protected if ____

Answer 334

the employees were authorized or directed by the corporation to make such statements.

Question 335

The A/C privilege applies to communications only; the privilege does not apply to _____

Answer 335

underlying information, pre-existing documents, or physical
evidence.

Question 336

For the A/C privilege communications made in the known presence and hearing of a stranger are not privileged. However, ____ may be present without destroying the privilege.

Answer 336

representatives of the attorney or client

Question 337

Communications made to third persons (such as administrative assistants, messengers, or accountants) are confidential and covered by the privilege if ____

Answer 337

necessary to transmit information between the attorney and client.

Question 338

A favorite exam topic involves communications between a client and a doctor during an examination made at the attorney’s request (this is usually done to help the attorney evaluate the extent of the client’s injuries). What privilege applies in that case?

Answer 338

The physician-patient privilege (infra) does not apply because no treatment
is contemplated.

However, the attorney-client privilege will apply to these communications between the client and a consulting doctor, as long as the doctor is not called as a testifying expert.

Question 339

If 2 or more clients with a common interest consult the same attorney, their communications with the attorney concerning the common interest are privileged as to ____. But if the joint clients later _____, the privilege does not apply as between them.

Answer 339

third parties; have a dispute with each other concerning the common interest and one client sues the other

Question 340

For the A/C privilege the primary purpose of the communication must be to obtain or render legal services, not to give ____

Answer 340

business advice or social advice.

Question 341

For the A/C privilege the ___ _holds the privilege, and only they can waive it. However, the attorney’s authority to claim the privilege on behalf of the client is ____

Answer 341

client; presumed in the absence of contrary evidence.

Question 342

How long does A/C privilege last

Answer 342

The attorney-client privilege applies indefinitely.
- It continues after the attorney-client relationship ends and even after the client’s death.

Question 343

The client’s ____ has the power to waive the A/C privilege after the client’s death.

Answer 343

estate representative

Question 344

Exceptions to A/C privilege

Answer 344

• If the attorney’s services were sought to aid in the planning or commission of something the client should have known was a crime or fraud
• Where the client has put the legal services at issue in the case
• For a communication relevant to an issue of breach of duty in a dispute between the attorney and client
• Regarding a communication relevant to an issue between parties claiming through the same deceased client

Question 345

Although documents prepared by an attorney for their own use in a case are not protected by the A/C privilege, they are ____ to discovery except in cases of necessity.

Answer 345

not subject (attorney work product)

Question 346

Under the A/C privilegegGenerally, a voluntary disclosure of privileged material operates as a waiver of the attorney-client privilege or work product protection with respect to ____

Answer 346

the disclosed material

Question 347

Under the A/C privilege undisclosed privileged material is subject to the waiver only if
There is no waiver if the disclosure was inadvertent and the holder
took reasonable steps to prevent disclosure and rectify the error.

Answer 347

(1) the waiver was intentional,
(2) the disclosed and undisclosed material concern the same subject matter, and
(3) the material should be considered together to avoid unfairness.

Question 348

Under the A/C privilege there is no waiver if the disclosure was inadvertent and ____

Answer 348

the holder took reasonable steps to prevent disclosure and rectify the error.

Question 349

Under state CL confidential information acquired by a physician is privileged if:

Answer 349

• There was a professional relationship between the physician and patient for the purposes of medical treatment;
• The information was acquired for the purpose of diagnosis or treatment; and
• The information was necessary for diagnosis or treatment (nonmedical information—for example, details of who was at fault in an accident—is not privileged)

Question 350

PHYSICIAN-PATIENT PRIVILEGE - who is the holder

Answer 350

• The privilege belongs to the patient, and the patient may decide to claim or waive it.
• If the patient is unavailable at the time of trial, the physician may claim the privilege on their behalf.

Question 351

The physician-patient privilege does not apply (or is impliedly waived)
if:

Answer 351

• The patient puts their physical condition in issue
• The physician’s assistance was sought to aid wrongdoing
• The communication is relevant to an issue of breach of duty in a dispute between the physician and patient
• The patient agreed by contract (in an insurance policy, for example) to waive the privilege; or
• It is a federal case applying the federal law of privilege

Question 352

State approaches to PHYSICIAN-PATIENT PRIVILEGE in criminal cases

Answer 352

• In some states, the privilege applies in both civil and criminal cases.
• In a number of others, it cannot be invoked in criminal cases generally.
• In still other states, the privilege is denied in felony cases, and in a few states, it is denied only in homicide cases.

Question 353

When a psychiatrist is the doctor involved, the applicable privilege is the ____

Answer 353

psychotherapist-client privilege not the physician-patient privilege

Question 354

Federal courts recognize a privilege for confidential communications between a psychotherapist (psychiatrist or psychologist) or ___ and their patient/client. In most particulars, this privilege operates in the same manner as the ____

Answer 354

licensed social worker; attorney-client privilege

Question 355

Similar to the privileges discussed above, there is no psychotherapist privilege where _____

Answer 355

the patient puts their mental condition at issue in the case (for example, by filing a claim for emotional injuries or asserting an insanity
defense).

Question 356

There are 2 distinct spousal privileges:

Answer 356

the testimonial privilege (commonly known as “spousal immunity”) and the privilege for confidential marital communications.

Question 357

Spousal Testimonial Privilege (Spousal Immunity)

Answer 357

• A married person whose spouse is a defendant in a criminal case may not be called as a witness by the prosecution.
• Moreover, a married person may not be compelled to testify against the legal interests of their spouse in any criminal proceeding, regardless of whether the spouse is the defendant.

Question 358

The Spousal Immunity privilege applies in ___

Answer 358

criminal cases only

Question 359

Scope of the Spousal Immunity privilege

Answer 359

There must be a valid marriage for the privilege to apply, and the privilege lasts only during the marriage (even if the events at issue took place before the marriage)

Question 360

What matters for the spousal immunity privilege is whether the spouses are married at ____

Answer 360

the time of trial.

Question 361

Holder of Spousal Immunity Privilege

Answer 361

In federal court, the privilege belongs to the witness-spouse. This means that the witness-spouse cannot be compelled to testify, but may choose to do so.

Question 362

Privilege for Confidential Marital Communications

Answer 362

In any civil or criminal case, confidential communications between spouses during a valid marriage are privileged.

Question 363

The Privilege for Confidential Marital Communications applies in ____ cases

Answer 363

civil and criminal

Question 364

Holder of Privilege for Confidential Marital Communications

Answer 364

Either spouse can refuse to disclose the communication or prevent any other person from doing so.

Question 365

For the Privilege for Confidential Marital Communications to apply, the marital relationship must exist when ____.

Answer 365

the communication is made
-> Divorce will not terminate the privilege, but communications after divorce are not privileged.

Question 366

Private communications between spouses are generally presumed to be ____ (with exceptions)

Answer 366

confidential (the communication must be made in reliance upon the intimacy of the marital relationship).

Question 367

What is not confidential under the Privilege for Confidential Marital Communications

Answer 367

• Threats or abusive language are not privileged.
• Communications made in the known presence of a third party are not privileged (though statements may still be confidential and privileged if made in the presence of young children living in the home).

Question 368

Neither marriage privilege applies in the following situations:

Answer 368

• Communications or acts in furtherance of a future joint crime or fraud;
• In legal actions between the spouses; or
• In cases where a spouse is charged with a crime against the testifying spouse or either spouse’s children

Question 369

Clergy-Penitent Privilege

Answer 369

Federal courts and many states recognize a privilege for statements made to a member of the clergy, the elements of which are very similar to the attorney-client privilege.

Example: the privilege will apply only if the penitent made the communication to the clergy member in the clergy member’s capacity as a spiritual adviser

Question 370

Governmental Privileges

Answer 370

Official information not otherwise open to the public may be privileged.

Question 371

The government also holds a privilege that protects the identity of ____. The privilege is waived if the informer’s identity is ____

Answer 371

informer (someone who has provided the government with details of a potential crime)

voluntarily disclosed by a privilege holder (an appropriate government representative).

Question 372

Accountant-Client Privilege (State Only)

Answer 372

Many states recognize a privilege for statements made to an accountant, and the elements of this privilege are very similar to the attorney- client privilege. However, there is no federal accountant-client privilege.

Question 373

Professional Journalist Privilege (State Only)

Answer 373

There is no constitutional right for a professional journalist to protect their source of information; only certain states recognize such a privilege.

Question 374

The burden of proof encompasses:

Answer 374

(1) the burden of producing or going forward with the evidence and
(2) the burden of persuasion

Question 375

Burden of Production

Answer 375

The party who has the burden of pleading usually has the burden of producing or going forward with evidence sufficient to make out a prima facie case

Question 376

Once the party has satisfied the burden of production, it is incumbent upon the other side to _____

Answer 376

come forward with evidence to rebut the accepted evidence

Question 377

After the parties have sustained their burden of production of evidence, the question is whether ____

Answer 377

the party with the burden of persuasion has satisfied it.

Question 378

The burden of persuasion for civil cases
is usually by a ____ , although some civil cases (such as fraud or an oral contract to make a will) require proof of ____. The burden of persuasion for criminal cases is ____.

Answer 378

preponderance of the evidence (more probably true than not true); clear and convincing evidence (high probability)

beyond a reasonable doubt.

Question 379

The Federal Rules distinguish preliminary facts to be decided by ____

Answer 379

the jury from those to be decided by the judge.

Question 380

Preliminary Facts Decided by Jury

Answer 380

• The jury decides certain preliminary facts relating to whether evidence is relevant at all.
• whether evidence is authentic, whether a person was acting as a party’s agent in a breach of contract case, and whether a witness has personal knowledge of the facts of their testimony.

Question 381

Before such a question is brought before the jury, the judge must determine that ____ that the preliminary fact exists.

Answer 381

there is sufficient proof to support a jury finding

Question 382

Preliminary Facts Decided by Judge

Answer 382

Facts affecting the competency of the evidence (meaning, whether it is admissible under the rules of evidence) must be determined by the trial judge

For example: Is a witness mentally competent to testify? Does a privilege exist? Does the evidence meet the requirements of a hearsay exception?

Question 383

Under the Federal Rules the judge is ____ by the rules of evidence, except ____.

Answer 383

not bound; privilege

–> Remember, this evidence isn’t necessarily being introduced at trial; the judge is simply considering it to determine if other evidence should be admitted at trial.

Question 384

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

Answer 384

discretion

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

Question 385

An accused may testify on any preliminary matter (for example, circumstances surrounding an allegedly illegal search) without subjecting themselves to ____. Furthermore,
testifying about the preliminary matter does not subject the accused to cross-examination about ____

Answer 385

testifying at trial generally (i.e., it does not waive privilege against self-incrimination); other issues in the case.

Question 386

Judicial notice is the ____

Answer 386

recognition of a fact as true without formal presentation of evidence.

Question 387

A court may take judicial notice of any fact that is ____

Answer 387

“not subject to reasonable dispute”

Question 388

A court may take judicial notice of any fact that is “not subject to reasonable dispute” because:

Answer 388

• The fact is generally known within the trial court’s jurisdiction
  or
• The fact can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned

Question 389

Courts often take judicial notice of the reliability of _____ as a type of “generally known” fact. The court will admit these test results into evidence upon a showing that ____

Answer 389

well-established scientific tests and principles (such as radar speed tests, ballistics tests, and paternity blood tests)

the test was properly conducted.

Question 390

Judicial notice can be taken at ____ stage of the proceedings (and can even be taken for the first time ____).

Answer 390

any; on appeal

Question 391

If a court does not take judicial notice of a fact on its own accord, a party must ____. If the party does this, the court is required to take judicial notice of the fact.

Answer 391

formally request that notice be taken and provide the court with the necessary
information

Question 392

A judicially noticed fact is conclusive in a ___ case but not in a ___ case.

Answer 392

civil; criminal (In a criminal case, the jury is instructed that it may, but is not required to, accept the judicially noticed fact as conclusive)

Question 393

The Federal Rules, and thus their requirements, govern only judicial notice of ____ facts. ____ facts (meaning, those relating to legal reasoning and lawmaking), such as the rationale behind the spousal privilege, need not be generally known nor capable of indisputable verification to be judicially noticed.

Answer 393

“adjudicative” (meaning, those that relate to the particular case)

“Legislative”

Question 394

Courts MUST take judicial notice of ____ law and the official regulations of those governments.

Courts MAY take judicial notice of ____.

Answer 394

federal and state

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

Question 395

A presumption is a rule that requires that ____.

Answer 395

a particular inference be drawn from an ascertained 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 gives rise to the presumption.

Question 396

Mail delivery presumption

Answer 396

A letter, properly addressed, stamped, and mailed, is presumed to have been delivered

Question 397

Death Presumption

Answer 397

If a person is inexplicably absent for a continuous period of 7 years and they have not been heard from, they are presumed dead.

Question 398

Suicide Presumption

Answer 398

When cause of death is in dispute, there is a presumption in civil cases that it was not suicide.

Question 399

The presumption against suicide applies in ___

Answer 399

civil cases only

Question 400

Legitimacy presumption

Answer 400

Every person is presumed to be legitimate (meaning, born to legally married parents).

Question 401

Sanity presumption

Answer 401

Every person is presumed sane in civil and criminal cases until the contrary is shown.

Question 402

Ownership of Car presumption

Answer 402

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.

Question 403

Chastity Presumption

Answer 403

Every person is presumed chaste and virtuous.

Question 404

Regularity presumption

Answer 404

It is presumed that persons acting in an official office are properly performing their duties.

Question 405

Continuance presumption

Answer 405

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 with things of that nature.

Question 406

Solvency presumption

Answer 406

A person is presumed solvent, and every debt is presumed collectible.

Question 407

Bailee’s Negligence Presumption

Answer 407

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 the presumption that the bailee was negligent.

Question 408

Marriage Presumption

Answer 408

Upon proof of a marriage ceremony, a marriage is presumed valid.

Question 409

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

Answer 409

production

Question 410

Remember that a presumption does not shift the burden of ____. It remains on the
same party throughout a trial

Answer 410

persuasion

Question 411

A presumption is overcome or destroyed when the adversary ____.

Answer 411

produces some evidence contradicting the presumed fact
-> Once sufficient contrary evidence is admitted, the presumption is of no force or effect.

Question 412

In a criminal case the judge cannot instruct the jury that it ____; the judge must instruct them that they ___ regard the basic facts as sufficient evidence of the presumed fact.

Answer 412

must find a presumed fact against the accused; may

Question 413

A permissible inference may allow the party to ____, but does not ____

Answer 413

meet their burden of production (establish a prima facie case); shift the burden to the adversary.

Question 414

Because it cannot be rebutted, a conclusive presumption (for example, that a child under age 7 cannot commit a crime) is really a rule of ___

Answer 414

substantive law.

Question 415

When 2 or more conflicting presumptions arise, the judge should apply the presumption founded on _____

Answer 415

the weightier considerations of policy and logic.

Question 416

Under the Federal Rules, ____ 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 416

state law

Question 417

Rule of completeness

Answer 417

Where part or all of a statement is introduced into evidence, the adverse party may require the proponent of the evidence to introduce any other part—or any related statement—that ought in fairness to be considered at the same time.
–> The adverse party may do so over a hearsay objection.

Question 418

Evidence may be admissible for one purpose but not another, or admissible against one party but not another. In these situations, the court must, upon timely request, ____

Answer 418

restrict the evidence to its proper scope and instruct the jury accordingly (limiting instruction).

Question 419

The court may exclude the evidence entirely if it determines that, even with a ____, the probative value of the evidence with respect to its legitimate purpose would be substantially outweighed by danger of unfair prejudice with respect to its incompetent purpose (in other words, the judge may exclude the evidence if it fails the Rule 403 balancing test).

Answer 419

limiting instruction

Question 420

A party may claim error in the court’s ruling if it affects a ____ of the party.

Answer 420

substantial right

Question 421

If the court admitted evidence, the party opposing its admission needs to make a ____ or move to strike the evidence. Once the court rules definitively on the record (either before or at trial), the party ____ renew its objection or offer of proof to
preserve the claim of error for appeal.

Answer 421

timely objection; doesn’t have to

Question 422

If the court excluded evidence, the proponent of the evidence needs to ____, unless its substance was apparent from the context.

Answer 422

inform the court of the evidence’s substance by an offer of proof

Question 423

Objections at trial should be made after ____, but before ___, if the question calls for inadmissible information.

Otherwise,
a motion to strike must be made ____

Answer 423

the question; the answer

as soon as an answer emerges as inadmissible.

Question 424

At a deposition, objections to the form of a question, or to a testimonial privilege, should be made when ____ or it may be waived. Objections based on the substance of a question or answer may be postponed until ____

Answer 424

the question is asked; the deposition is offered in evidence.

Question 425

Failure to object is deemed a waiver of ____ for objection.

Answer 425

any ground
-> In other words, if no objection is made, otherwise inadmissible evidence will be admitted.

Question 426

An objection may be either specific (for example, “Objection, hearsay”) or general (“I object”). The Federal Rules call for a specific objection unless ____

Answer 426

the ground for the objection was apparent from the context.

Question 427

A party who introduces evidence on a particular subject thereby asserts its relevance and cannot complain if ___

Answer 427

their adversary offers evidence on the same subject.

Question 428

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

Answer 428

examining; opposing

Question 429

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

Answer 429

“except”

This was a common law rule that has
been abolished.

Question 430

An offer of proof may be made, disclosing the ____, to persuade the trial court to hear the evidence and to preserve the evidence for review on appeal.

Answer 430

nature, purpose, and admissibility of rejected evidence

Question 431

An offer of proof 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 to be made in _____

Answer 431

question-and- answer form (meaning, the lawyer conducts their examination of the
witness so that the judge hears exactly what the witness would have said in front of the jury).

Question 432

The court may take notice of a plain error affecting a substantial right of a party, even if ____

Answer 432

the claim of error wasn’t properly preserved.

Question 433

A judge ____ on the weight of the evidence in federal courts.

Answer 433

may comment

Question 434

To the extent practicable, the judge must conduct a jury trial so that inadmissible evidence is not ____

Answer 434

suggested to the jury by any means.