Evidence

Question 1

Specific Acts (think non-criminal acts) admissible for Character Evidence

Answer 1

Civil - if element of cause of action, then specific acts are allowed

Criminal - Only if element of cause of action.

If defendant opens the door and puts on a character witness, you can cross-examine about specific acts.

Unless MIMIC, then specific acts may be admissible because they are not propensity.

Question 2

Recorded Recollection Hearsay Exception

Answer 2

(1) record is on a matter witness once knew about

(2) Witness made the record when it was fresh in her memory

(3) Record accurately reflects the witness’s knowledge

(4) witness testifies that she cannot recall the event well enough to testify fully, even after consulting record on stand

RESULT: Witness can read the record to the jury from the stand. Cannot introduce record into evidence, though.

Contrast with Refreshing a Witness’s recollection, in which the witness CANNOT read to the jury

Question 3

Burden of proof for evidence admissibiliy

Answer 3

When relevance is conditional on a fact, the court must examine all of the evidence and decide whether a jury could reasonably find the conditional fact by a preponderance of the evidence

Question 4

Preserving evidentiary arguments on appeal

Answer 4

If ADMITTED, but you want it excluded, must make an OBJECTION

If EXCLUDED, but you want it admitted, must make an OFFER OF PROOF (made outside presence of jury)

Must be brought unless plain error - for plain error review, must also show that the plain error affected the party’s substantial right.

Question 5

Completeness rule

Answer 5

If one party introduces part of a writing, the opponent may get admission of the ENTIRE document, even if they are otherwise inadmissible.

BUT, it is only necessary if it must give context to the writing.

Question 6

Destruction of evidence giving rise to presumption that it was unfavorable (elements)

Answer 6

(1) destruction was intentional

(2) material was relevant to the issue

(3) the alleged victim acted with due diligence concerning the evidence.

Question 7

When can a lay witness (non-expert) give opinion testimony?

Answer 7

opinion is (1) rationally based on the perception of the witness; and (2) helpful to a clear understanding of the witness’s testimony.

Cannot be based on scientific, technical testimony

Question 8

Admissibility of habit testimony

Answer 8

Admissible of person’s habit or routine is admissible to prove the person acted in conformity with that habit or routine.

Common fact patterns say “always” “routinely” or “never”

Question 9

Hearsay Exceptions (when declarant is UNAVAILABLE)

Answer 9

• former testimony
• dying declaration
• statement against interest
• statement of personal or family history
• statement offered against a party that wrongfully caused unavailability of declarant

UNAVAILABLE includes when refuse to testify under Fifth Amendment

Question 10

Deadman’s Statute

Answer 10

Does not apply in criminal case

In civil cases, a party with a financial interest in the outcome of the case cannot testify about communications with a decedent who’s estate is a party to the case.

Question 11

Admissibility of victim’s good character (by prosecution)

Answer 11

(1) when defendant introduces evidence of victim’s bad character

(2) when defendant is claiming victim was first aggressor, prosecution can introduce evidence of victim’s character for peacefulness

Question 12

Evidence of defendant’s prior sexual convictions

Answer 12

If defendant is on trial for any sexual crime or civil cause of action, the prosecution can introduce evidence of any other sexual assault committed by defendant.

Question 13

What witnesses CANNOT be excluded from the courtroom?

Answer 13

(1) a party (not an entity)
(2) the agent of an entity, if designated as the representative
(3) any person who is essential to the party’s presentation of its case
(4) person whose presence is permitted by statute (victim)

Question 14

Impeachment of witnesses by using CONVICTIONS

Answer 14

(1) crimes involving dishonesty or false statement

(2) Felonies (punishable by death or more than 1 year)
——–If non-criminal defendant, admissible unless prejudice substantially outweighs probative value. presumed admissible. Same 403 analysis
——–If criminal defendant, admissible only if probative value outweighs prejudicial effect. presumed inadmissible, reverse 403

(3) Old convictions (greater than 10 years) only admissible if probative value substantially outweighs prejudicial effect. Must give notice

(4) pardoned for convictions not admissible, BUT convictions pending appeal ARE admissible

(5) juvenile convictions - cannot be used against defendant. Can be used against non-party only if adult conviction would be admissible and used in criminal trial. Can never be used in in civil trial.

Question 15

Confrontation Clause Rule

Answer 15

Typically, out of court testimonial statements are not allowed, UNLESS

1 - declarant is now unavailable; and

2 - defendant had a prior opportunity to cross examine that person.

Question 16

Business records hearsay exception

Answer 16

1 - record was kept of a regularly completed activity of the organization

2 - The making of the record itself was a regularly completed activity; (not prepared in anticipation of litigation) and

3 - record was made at or near the time by someone with knowledge

Question 17

Present sense impression vs. excited utterance

Answer 17

Both exceptions to hearsay

PSI - statement made while or immediately after event describing the event (narrating)

EU - statement about a startling event made while the declarant is under the stress or excitement of it

Question 18

Best evidence rule

Answer 18

limits ability to present evidence of contents of DOCUMENTS (recording, writing, or photograph. not real or physical evidence) when its contents are at issue, meaning:

1 - document is used as proof of event

2 - document has actual legal effect (K or will)

3 - witness is testifying based on facts known only from document

Must present actual document.

Copy is OK if (1) there is no genuine dispute as to its authenticity; or (2) circumstances make it unfair to admit.

Question 19

When is evidence relevant

Answer 19

1 - it has a tendency to make a fact more or less probable than it would be without the evidence; and

2 - the fact is of consequence in the action

Question 20

Rape shield law

Answer 20

evidence of a victim’s sexual behavior/predisposition is generally inadmissible in any proceeding involving sexual misconduct

If criminal, to show person other than D was the source, or to show consent.

If civil, reverse 403 (probative value substantially outweighs prejudice).

Question 21

When are prior specific acts admissible in criminal case?

Answer 21

1 - when character is essential element of crime

2 - non-propensity purpose (MIMIC)

3 - character witness is cross-examined. Evidence of an arrest that was later dropped is probably not allowed. Further, you cannot cross examine about specific bad acts against the criminal defendant unless he opens the door.

Question 22

Out-of-court statements that are NOT hearsay (5)

Answer 22

statement is offered:

(1) to prove the statement was made (verbal act)

2 - show effect on recipient

3 - mental state of declarant

4 - Identity; or

5 - solely to impeach or rehabilitate

Question 23

Statement against interest

Answer 23

applicable only when declarant unavailable

(1) - was against declarant’s interest at time it was made; and

(2) would not be made by a reasonable person unless it was true

*if offered in criminal case and exposes criminal to liability, there must also be corroborating evidence indicating its trustworthiness.

Question 24

Settlement offers

Answer 24

such statements or conducts made during negotiations are inadmissible

(1) - to prove or disprove the validity or amount of a disputed claim; or

(2) - for impeachment by a prior inconsistent statement or contradiction.

To apply, there must be a DISPUTED claim

IMPORTANT, this can be waived, even by a criminal defendant in plea bargaining.

Question 25

403

Answer 25

last resort

If prejudicial effect substantially outweighs the evidence’s probative value, then inadmissible.

Question 26

Character evidence in civil cases

Answer 26

Typically inadmissible to prove a person acted in accordance with that character

EXCEPTION: character is an essential element of a claim or defense.

Question 27

When can DEFENDANT (not prosecution) introduce evidence of victim’s character?

Answer 27

Limited times, when it is relevant to their defense asserted (rape shield laws prevent sexual character evidence)

Question 28

When character evidence is admissible for a propensity purpose, how should it be introduced

Answer 28

reputation or opinion only

Specific bad acts only allowed for MIMIC and when essential element of crime or civil action.

ALSO, cross-examiner can cross examine about specific bad acts against character witness.

Question 29

When can you bolster a witness’s credibility

Answer 29

only after the witness’s credibility has been attacked

Question 30

Impeachment by witness’s character for untruthfulness

Answer 30

Must be by reputation or opinion evidence.

Specific bad acts inadmissible, except (1) when character witness is, (2) cross-examined

Question 31

Refreshing witnesses recollection

Answer 31

can be given item to refresh recollection, but must return item before testifying (cannot read from it)

opposing party then has a right to inspect item and admit relevant portions into evidence to provide context (if it wants to admit substantive portions, must meet admissibility rules)

Question 32

Requirements for qualifying an expert witness

Answer 32

1 - qualified as expert based on knowledge, skill, training, experience, or education

2 - testimony based on sufficient facts/data

3 - testimony is product of reliable methods and principles

4 - testimony reflects reliable application to facts of case

5 - reasonable degree of certainty

CANNOT be on whether the Criminal D had requisite mental state, but can be on ultimate issue

CAN be based on evidence that is otherwise inadmissible if experts in field typically rely on such evidence

Question 33

Spousal Immunity vs. Confidential marital communications

Answer 33

Spousal immunity - married persons cannot be compelled to testify against their spouse. Witness-spouse holds privilege in majority. Ends upon divorce or annulment

Confidential marital communications - both spouses hold privilege (can refuse to testify or prevent spouse from testifying) if it will be about communications made during marriage, lasts indefinitely.

NEITHER privilege applies if it is a crime by one spouse against another spouse or their children.

Question 34

Attorney-client privilege

Answer 34

(1) - confidential communication between client
(2) - made for the purpose of obtaining or providing legal advice

Exists until waived

Corporations - not just control group, but also employees when it is (1) about employees corporate duties, and (2) made for the purpose of legal advice for corporation

Question 35

Exceptions to Attorney client privilege

Answer 35

Crime/fraud

dispute between attorney and client

former clients who are now adverse

two parties who claim through same deceased client

Work-product rule

Question 36

Public Policy exclusions

Answer 36

Subsequent remedial measures

Compromise offers and negotiations

Promise to pay medical expenses

Plea negotiations

Liability Insurance

Sexual conduct (rape shield)

Question 37

Dying declaration unavailable exception to hearsay

Answer 37

(1) declarant believes her death is imminent
(2) statement pertains to cause/circumstances of death
(3) applies only to homicide or civil cases

Question 38

When does the defendant open the door as to his character?

Answer 38

(1) - offers evidence of his own character pertinent to the crime; or

(2) offers evidence of the victim’s character, in which prosecution can then show evidence that he has same trait.

Question 39

Limitation on cross-examining on specific instances of conduct

Answer 39

Must be made in good faith, not on a hunch.

Question 40

When can a lay witness authenticate a writing?

Answer 40

If they are familiar with the handwriting and did not become familiar with it to prepare for litigation

Question 41

Prior Statements

Answer 41

These are NOT hearsay. Declarant MUST be present and testify at trial.

Prior Inconsistent - if the prior statement was inconsistent and made under penalty of perjury, it can be admitted to impeach AND substantive evidence.

Prior Consistent - rebut a charge against declarant that they recently fabricated their testimony. Must be made before declarant had reason to fabricate.

Prior statement of identification - admissible as substantive evidence, even if they don’t remember identifying.

Question 42

Testimonial Evidence

Answer 42

Statements made to police officers generally testimonial, unless it is to assist police with emergency.

Confrontation clause issue.

Question 43

Fifth Amendment right against self-incrimination

Answer 43

Allows witness to refuse to give testimony that would tend to incriminate them.

ONLY applies to current statements

Does NOT apply to corporations

Does NOT apply to physical characteristics or mannerisms

Question 44

Juror as witness

Answer 44

Generally, prohibited from testifying about (1) statement made during deliberation, (2) effect of anything on juror’s decision, or (3) the juror’s mental process in reaching the verdict.

BUT, juror can testify if (1) prejudicial extraneous information became available, (2) outside influence improperly brought on juror; or (3) mistake on juror form.

Question 45

When can a specific instance of conduct be introduced to impeach a witness?

Answer 45

1 - for a criminal conviction - it can be introduced intrinsically or extrinsically (either by the witness herself or with conviction record)

2 - for other specific bad acts that go toward truthfulness, it can only be introduced intrinsically (by the witness herself)

Question 46

How can you establish a witness’s bias by affiliation?

Answer 46

Intrinsic evidence - on cross examination

Extrinsic evidence - by using any other source other than the witness’s testimonyx

Question 47

What documents are self-authenticating?

Answer 47

Gov’t authorized documents

Certified public records - includes the observations and conclusions of an individual under a duty to make such reports of legal investigations. Includes conclusions.

Newspapers.

Question 48

When is the doctor patient privilege waived?

Answer 48

Many states hold that this privilege is waived when the patient places their condition at issue in a personal injury case.

Question 49

Authenticating a voice

Answer 49

Can be done by someone familiar with the voice (even if they became familiar with it for the litigation)

Does not need to be authenticated by someone saying that they called and identified themselves, but that is sufficient.

Question 50

Adjudicative Fact (judicial notice)

Answer 50

Fact not subject to reasonable dispute because (1) it is generally known within the community, or (2) can be accurately and readily determined from reliable sources.

Result, court MUST take judicial notice if offered by a party. court MAY take judicial notice sua sponte

Civil - must accept as conclusive
Criminal - may accept as conclusive

Question 51

What proceedings to the FRE NOT apply to?

Answer 51

1. The court’s determination of a preliminary question of fact governing admissibility;
2. Grand jury proceedings; and
3. Criminal proceedings for: issuance of a search or arrest warrant or a criminal summons; preliminary examination in a criminal case; extradition or rendition; consideration of bail or other release; sentencing; and granting or revoking probation or supervised release.

Question 52

Impeachment by prior inconsistent statement

Answer 52

Can be introduced intrinsically (on cross) or

Extrinsically, but only if the witness had an opportunity to explain or deny the statement, and the opposing party can question the witness about it.

Question 53

When will a prior inconsistent statement be available as substantive evidence?

Answer 53

1 - if prior inconsistent statement was made under penalty of perjury; or

2 - the prior inconsistent statement is excluded or excepted from hearsay.

Otherwise, prior inconsistent statement is always available for impeachment purposes, because it is not being offered for the truth of the matter asserted (hearsay)

Question 54

When will statements made by coconspirators nonhearsay?

Answer 54

When made during and in furtherance of the conspiracy. This is an extension of the party-opponent exclusion from hearsay.

Question 55

Which does federal law recognize - psychotherapist-patient or doctor-patient privilege

Answer 55

Psychotherapist-patient.

Federal common law does not recognize doctor-patient privilege