Evidence

Question 1

When may evidence be excluded under rule 403?

Answer 1

relevant evidence can be excluded if its probative value is substantially outweighed by any of the following dangers:

unfair prejudice – evidence tends to encourage the jury to decide the case on improper grounds

confusing the issues – evidence leads the jury to focus on a nonmaterial matter

misleading the jury – evidence creates misconceptions in the jurors’ minds

undue delay or wasting time – presenting the evidence will cause unnecessary delay or waste time

needless cumulation – similar evidence on the same issue has already been admitted

Question 2

What is the mercy rule and how does it operate?

Answer 2

mercy rule allows a criminal defendant to introduce evidence that his/her character is inconsistent with the crime charged—e.g., a defendant’s character for peacefulness is inconsistent with a charge of battery. But under this rule, the defendant only may do so through:

reputation testimony – testimony by someone sufficiently familiar with the defendant’s reputation among associates or in the community or

opinion testimony – testimony sharing an opinion on the defendant’s character that is based on personal knowledge and familiarity with the defendant.

Question 3

Are specific instances of conduct admissible to show character of the defendant?

Answer 3

NO

Question 4

When may the prosecutor ask questions of a character witness about specific incidents?

Answer 4

Questions about specific acts committed by the defendant are permitted because knowledge (or lack thereof) of the defendant’s past behavior goes to the witness’s credibility. But such questions must be asked by the prosecution in good faith. This means that questions based on a hunch will not suffice—even when the hunch proves accurate.

Question 5

What is MIMIC evidence?

Answer 5

Motive

To show purpose for committing charged crime

Intent

To establish guilty mind or negate good faith

Absence of Mistake

To negate mistake or accident & prove deliberate act

Identity

To connect defendant to crime with unique pattern of behavior (ie, criminal signature)

Common plan or scheme

To show preparation or planning

Other

To show knowledge of crime, opportunity to commit crime, consciousness of guilt, etc.

Question 6

What are the requirements for testifying to the authenticity of handwriting?

Answer 6

A lay witness with personal knowledge of the claimed author’s handwriting may testify as to whether a document is in that person’s handwriting. But the witness must not have become familiar with the handwriting for the purpose of the litigation. If the witness did so, the witness must be qualified as a handwriting expert.

Question 6

What must be evaluated for a child to testify?

Answer 6

intelligence
ability to differentiate between truth and falsehood and
understanding of the importance of telling the truth.

Question 7

When is the best evidence rule implicated?

Answer 7

when a witness is relying on the document while testifying (not seen here) or

when the contents of the document are at issue (e.g., a written agreement in a breach-of-contract dispute, a will in a probate action).

Question 7

Is there a hearsay exception for acquittals?

Answer 7

There is no exception for judgments of acquittal because they do not establish innocence—they merely establish that the prosecution failed to meet its burden of proof.

Question 8

When may a prior inconsistent statement be introduced as substantive evidence?

Answer 8

the statement was given under penalty of perjury at a trial, hearing, deposition, or other proceeding and

the declarant testifies and is subject to cross-examination at the current trial.

Question 9

What evidence may be used to impeach a witness?

Answer 9

A witness can be impeached (i.e., discredited) with evidence of self-interest or bias that may motivate the witness to testify falsely—e.g., benefits received in exchange for testimony. Since such evidence bears on the witness’s credibility, it can be raised on cross-examination or introduced extrinsically through other sources.

Question 10

May the spouse of a party be excluded from a courtroom?

Answer 10

Yes

Question 11

Discuss presumptions

Answer 11

If a party destroys evidence, there is a rebuttable presumption that the evidence is adverse to that party. A rebuttable presumption shifts the burden of productions. Federal courts generally follow the bursting bubble approach if couterproof is offered.

Question 12

May a party bolster a witness’s character for truthfulness prior to that trait being attacked?

Answer 12

No.

Question 13

A declarant is considered unavailable as a witness when

Answer 13

the declarant lacks memory of the subject matter of the statement

Question 14

May statements made during a failed plea negotiation be used to impeach the defendant?

Answer 14

No.

Question 15

Can a printout from a machine be hearsay?

Answer 15

No. Automatic recording by a machine (like a heart rate monitor) is not hearsay because it’s not human.

Question 16

Is a witness’s juvenile conviction admissible in a civil case to attack a witness’s character?

Answer 16

No.

Question 17

How may a witness be impeached?

Answer 17

A witness may be impeached (i.e., discredited) by evidence that directly contradicts the witness’s testimony on a material issue. This can be done through both:

intrinsic evidence – testimony elicited from the witness sought to be discredited and
extrinsic evidence – evidence from any source other than the witness’s own testimony.

Question 18

Explain the rule of completeness

Answer 18

It allows an adverse party to then introduce any other part of that writing or recorded statement (or another writing or recorded statement) that in fairness should be considered at the same time. This rule allows for the admission of statements that are otherwise inadmissible to ensure a fair understanding of the previously admitted statement. But those statements must be explanatory of OR relevant to the previously admitted statement.

Question 19

When does the recorded recollection exception apply to overcome hearsay?

Answer 19

if it:

concerns a matter that a witness once knew but cannot recall at trial
was made or adopted by the witness when the matter was fresh in his/her mind and
accurately reflects the witness’s personal knowledge at the time it was made.

Question 19

Discuss the 410 bar on evidence and its exceptions

Answer 19

bars evidence of the following in civil and criminal cases:

withdrawn guilty pleas

nolo contendere pleas

statements made during plea proceedings and

statements made during plea negotiations with the prosecution that did not result in a guilty plea or resulted in a guilty plea that was later withdrawn.

However, exceptions exist for the latter two statements. Such statements are admissible if another statement from the same proceeding/discussion is introduced and the two statements should in fairness be considered together. They are also admissible if the current proceeding is for perjury or false statement and the statement was made under oath, on the record, and with counsel present.

Question 20

Does an affidavit qualify for the former testimony exception?

Answer 20

No

Question 21

Is an arrest without a conviction admissible for the purpose of specific evidence of conduct for impeachment?

Answer 21

No. An arrest doesn’t qualify as a bad act.

Question 22

When may a juror’s post trial testimony be admissible?

Answer 22

it addresses:

extraneous prejudicial information brought to the jury’s attention
an outside influence improperly brought to bear on a juror or
a mistake made in entering the verdict onto the verdict form.

Question 23

How may a witness’s character for truthfulness be attacke?

Answer 23

reputation or opinion testimony about the witness’s character for truthfulness or

specific instances of conduct (SICs)—i.e., convictions for felonies or crimes of dishonesty OR prior bad acts that relate to the witness’s character for truthfulness

A SIC that involves a conviction for a felony or crime of dishonesty can be introduced intrinsically (i.e., through the witness’s testimony) or extrinsically (i.e., from other sources). In contrast, a SIC involving a mere bad act may only be introduced intrinsically.

Question 24

What may the opposing party do with documents used to refresh a witness’s memory?

Answer 24

have the writing produced for inspection

cross-examine the witness about the writing and

introduce into evidence any portion of the writing that relates to the witness’s testimony—e.g., to impeach the witness

Question 25

What evidentiary rule controls the judge when she is considering admissibility?

Answer 25

The rules of privilege.

Question 26

What is the effect of the bursting bubble approach?

Answer 26

The opposing party in a civil suit can overcome a rebuttable presumption by producing sufficient evidence to contradict the presumed fact.* Once this occurs, the presumption “bursts” and the fact finder (here, the jury) must weigh the evidence to decide the issue. Conversely, if no contrary evidence is introduced, the judge must instruct the jury to accept the presumption.

Question 27

How can a conviction be used against the defendant in a civil case?

Answer 27

A conviction that is no more than 10 years old and concerns a felony not involving dishonesty is admissible against a witness in a civil case unless the conviction’s probative value is substantially outweighed by its prejudicial effect.

Question 28

Are statements that are offered to illustrate the declarant’s world view or belief system hearsay

Answer 28

No

Question 29

How is a photograph authenticated?

Answer 29

A photograph is authenticated by having a witness with personal knowledge—i.e., knowledge based on firsthand observation or experience—of the thing depicted testify that the photograph fairly and accurately depicts that thing.

Question 30

How is physical representation of something that could not otherwise be seen—e.g., an electrocardiogram or x-ray image, authenticated?

Answer 30

the process for creating the evidence was accurate
the machine that produced the evidence was working properly and
the operator of the machine was qualified to operate it.

Question 31

What exceptions allow a declarant to testify to their former statements?

Answer 31

inconsistent with the declarant’s testimony and was given under penalty of perjury at a trial, hearing, deposition, or other proceeding

consistent with the declarant’s testimony and offered to (1) rebut a charge of recent fabrication or improper influence or (2) rehabilitate the declarant’s credibility when attacked on other grounds or

identifies a person as someone the declarant perceived earlier.

Question 32

Can a statement made by an opposing party be admitted?

Answer 32

Yes, so long as that statement is offered against the opposing party.

Question 33

Is there a hearsay exception for civil judgements?

Answer 33

No

Question 34

What can happen if inadmissible evidence is improperly admitted?

Answer 34

The court may permit that party to introduce additional inadmissible evidence (e.g., hearsay) for the purpose of rebuttal. This is known as a curative admission and is meant to remedy the prejudicial effect caused by the previously admitted evidence.

Question 35

In a jury trial, the jury determines what as it relates to secondary evidence?

Answer 35

an asserted document ever existed
another document produced at a hearing or trial is the original or
other evidence of content accurately reflects the content.

Question 36

A conviction for a felony not involving dishonesty that is not more than 10 years old is admissible against a criminal defendant-witness

Answer 36

if the prosecution shows that its probative value outweighs the prejudicial effect to the defendant.

Question 37

May the judge tell the jury that they must apply the presumptions in a rebuttable presumption?

Answer 37

Yes, but only if the opposing party fails to rebut it with contrary evidence.

Question 38

Under FRE 606, what may a juror not testify to in a posttrial inquiry into the validity of a verdict?

Answer 38

any statement made, or incident that occurred, during jury deliberations
the effect of anything upon that juror’s or another juror’s vote or
any juror’s mental process concerning the verdict.

Question 39

Is extrinsic evidence permissible to impeach any witness without first questioning the witness?

Answer 39

Yes

Question 40

When is evidence of a conviction not admissible for impeachment?

Answer 40

if it was the subject of a pardon, annulment, or certificate of rehabilitation based on (1) a finding of innocence or (2) a finding of rehabilitation with no subsequent felony convictions.