Evidence

Question 1

Can a criminal defendant introduce evidence that his character is inconsistent with the crime charge? How?

Answer 1

A criminal defendant may introduce evidence that his character is inconsistent with the crime charged, but only through reputation or opinion testimony—not specific instances of conduct.

Question 2

Are questions about specific acts committed by a defendant permitted?

Answer 2

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 3

When is mimic evidence available? When can it be excluded?

Answer 3

Evidence of a criminal defendant’s prior crimes or bad acts may be admissible for relevant, noncharacter purposes (i.e., MIMIC evidence). However, this and other relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. 

Question 4

When can a witness with a prior conviction be impeached?

Answer 4

Any witness can be impeached with evidence of a prior conviction for a crime involving dishonesty (e.g., embezzlement) if the conviction occurred within the previous 10 years.

Question 5

When is a child’s competence?

Answer 5

A child’s competence to testify depends on the child’s intelligence, ability to differentiate between truth and falsehood, and understanding of the importance of telling the truth. And as a non-expert witness, the child must have personal knowledge of a matter to testify about it.

Question 6

Can a lay person authenticate a persons handwriting?

Answer 6

A lay witness with personal knowledge of a claimed author’s handwriting may testify as to whether a document is in that person’s handwriting. However, the lay witness must not have become familiar with the handwriting for the purpose of the current litigation.

Question 7

What is the best evidence rule?

Answer 7

The best evidence rule requires that the original document or a reliable duplicate be produced to prove the contents of a writing. But this rule applies only when a witness is relying on the document when testifying or the contents of the document are at issue.

Question 8

When is evidence of remedial measure in admissible?

Answer 8

Evidence of a remedial measure is inadmissible if it was undertaken by the defendant after the plaintiff was injured. A remedial measure undertaken before the plaintiff was injured is not subject to exclusion.

Answer 9

The rule against hearsay bars the admission of an out-of-court statement made by a person—not a machine or animal—that is offered to prove the truth of the matter asserted therein.

Answer 10

A prior inconsistent statement is admissible nonhearsay if (1) it was given under penalty of perjury at a trial, hearing, deposition, or other proceeding and (2) the declarant testifies and is subject to cross-examination. It can also be introduced extrinsically for impeachment purposes if the witness has the opportunity to explain or deny, and the adverse party can examine the witness about the statement.

Answer 11

A witness can be impeached with evidence of self-interest or bias that may motivate the witness to testify falsely—e.g., benefits received in exchange for testimony.

Answer 12

A prior inconsistent statement is ALWAYS admissible for impeachment purposes, even if it’s hearsay. If she is under oath, then indication of reliability.

Answer 13

Under the hearsay exception for absent public records, testimony by a public official that a diligent search failed to disclose a public record is admissible to prove that the record does not exist—if the public office regularly kept records for a matter of that kind.

Answer 14

The rule of completeness applies when a party introduces all or part of a writing or recorded statement. It then allows an adverse party to compel the introduction of any other part—or any other writing or recorded statement—that in fairness should be considered at the same time.

Answer 15

The marital-communications privilege protects confidential communications made between spouses during the marriage. Under the majority view, either spouse may assert the privilege—even after termination of the marriage—and (1) refuse to testify about the communication or (2) prevent the other spouse from testifying.

Answer 16

Hearsay is an out-of-court statement offered for the truth of the matter asserted therein. Under the rule against hearsay, such statements are inadmissible absent an exclusion or exception. However, a statement that is offered for some other purpose does not implicate the hearsay rule and is therefore admissible without an applicable hearsay exclusion or exception.

Here, the plaintiff is offering the girlfriend’s statement to show how he was able to recall the date on which the accusations were published—not to prove that the friend in fact went to the movies on that day. Since the statement is not being offered for its truth, it is not barred by the hearsay rule. Therefore, the court should not strike the plaintiff’s testimony about the girlfriend’s statement from the record.

Answer 17

Character evidence is generally inadmissible when it is used to prove that a person acted in conformity with his/her character during the litigated event. But such evidence is admissible substantively in rare instances when character (or a character trait) is an essential element of a civil claim, criminal charge, or asserted defense—e.g., in a defamation action. In such cases, character evidence can be introduced by any party through either:

reputation or opinion testimony on that essential character trait or
specific instances of conduct (e.g., prior instances of adultery) demonstrating that trait.

Answer 18

Evidence of a person’s habit is admissible to prove that the person acted in accordance with that habit on a particular occasion.

Answer 19

Evidence of subsequent remedial measures is inadmissible to prove negligence or other culpable conduct. But a court may allow evidence of such measures for other limited purposes such as (1) resolving a dispute about the feasibility of precautionary measures, (2) impeaching a witness, or (3) proving ownership or control.

Answer 20

A lay witness may testify to any relevant matter of which he/she has personal knowledge. This means that the witness must have perceived the matter firsthand and have a present recollection of that observation.

Answer 21

A party can attack any witness’s character for truthfulness with reputation or opinion testimony OR with specific instances of conduct (SICs) that are probative of that character (Choice A). Only two types of SICs are admissible for this purpose: (1) convictions for a felony or crime of dishonesty and (2) other bad acts. However, a mere arrest does not qualify as a bad act that can be used to attack a witness’s character for truthfulness. That is because an arrest for misconduct is not itself misconduct.

Here, the witness was arrested for writing bad checks—an act that is probative of a person’s character for untruthfulness (Choice D). But the witness was never convicted due to a lack of evidence that he had committed the crime. And since the arrest alone cannot be introduced to attack the witness’s character for truthfulness, the prosecutor should not be allowed to ask the question.

Answer 22

The “then-existing state of mind” exception applies to statements about the declarant’s motive, intent, or plan. But this exception does not apply to mere statements of memory or belief—e.g., the nephew’s recounting of taking the woman’s car—unless they relate to the declarant’s will.

Answer 23

The statement against interest exception applies to hearsay statements that (1) are contrary to an unavailable declarant’s proprietary or pecuniary interest, (2) tend to invalidate the declarant’s claim against someone else, or (3) expose the declarant to civil or criminal liability. That is because a reasonable person in the nephew’s position would only make the statement if it were true since it exposed him to liability for conversion and the crime of larceny.

Answer 24

The “dying declaration” exception applies to statements that (1) were made while an unavailable declarant believed his/her death was imminent and (2) concerned the circumstances of that impending death. But here, there is no indication that the nephew believed his death was imminent, and his statement did not pertain to the circumstances of his death.

Answer 25

The “excited utterance” exception applies to statements that (1) relate to a startling event or condition and (2) were made while the declarant was still under the stress of excitement caused by that event or condition. Neither element is met here.

Answer 26

A video recording is authenticated when a witness with personal knowledge of the thing depicted testifies that the recording fairly and accurately depicts that thing.

Answer 27

A record may be read into evidence if it (1) concerns a matter that a witness once knew but cannot recall at trial, (2) was made or adopted by the witness when the matter was fresh in his/her mind, and (3) accurately reflects the witness’s personal knowledge at the time it was made. But only an adverse party may introduce the record. However, only the party opposing the use of the record may introduce it as an exhibit.

Answer 28

Under the hearsay exception for a declarant’s then-existing state of mind, a statement of present intent, motive, or plan can be used to prove later conduct in conformity with that state of mind. This exception is unnecessary here because the defendant’s statement falls into a hearsay exclusion. But since the woman’s statement is inadmissible hearsay, the roommate’s testimony is also inadmissible.

Answer 29

Hearsay within hearsay (i.e., double hearsay) is inadmissible unless both statements fall under a hearsay exclusion or hearsay exception.

Answer 30

A prior inconsistent statement is a witness’s past statement that is inconsistent with the witness’s current testimony. This type of statement is inadmissible to prove the truth of the matter asserted therein (i.e., as substantive evidence) unless it is excepted or excluded from the hearsay rule. It is excluded from hearsay (i.e., is nonhearsay) if:

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.

Here, the witness’s prior inconsistent statement—that she saw the defendant in possession of the stolen goods the day after the store was robbed—was given under penalty of perjury at the defendant’s criminal trial. And since the witness testified and was subject to cross-examination at the civil trial, her prior inconsistent testimony is admissible nonhearsay and can be used as substantive evidence

Answer 31

A prior inconsistent statement may also be used to impeach a witness if it is introduced intrinsically—i.e., through the witness’s own testimony. But it can only be introduced extrinsically if the witness is given the opportunity to explain or deny the statement AND the opposing party is given the opportunity to examine the witness about the statement.

Here, the owner seeks to introduce the witness’s prior inconsistent statement extrinsically. The witness can still explain or deny the statement, and the defendant can still question the witness about the statement. Therefore, the witness’s testimony from the criminal case should also be admitted for impeachment purposes

Answer 32

The prosecution cannot introduce evidence that a criminal defendant committed similar crimes or bad acts to prove that the defendant had the propensity or inclination to commit the charged crime (Choice D). That is because the probative value (i.e., degree of relevance) of such character evidence is substantially outweighed by the danger of unfair prejudice. In other words, the danger that the jury may convict the defendant for having a bad character—not for committing the charged crime—is too high.

Answer 33

The prosecution cannot introduce evidence that a criminal defendant committed similar crimes or bad acts to prove that the defendant had the propensity or inclination to commit the charged crime (Choice D). That is because the probative value (i.e., degree of relevance) of such character evidence is substantially outweighed by the danger of unfair prejudice. In other words, the danger that the jury may convict the defendant for having a bad character—not for committing the charged crime—is too high.

However, such character evidence is admissible if it is offered for a relevant, noncharacter purpose (i.e., MIMIC). This includes showing similarities in preparation and planning between the prior act and the charged offense. But here, the circumstances of the man’s prior act are too unrelated to the current charge to show preparation or a common plan. The only common denominator between the two is that the man falsely imprisoned women (Choice C). Therefore, this evidence is not admissible.

Answer 34

The court must decide preliminary questions of fact related to whether evidence is admissible, a privilege exists, or a witness is qualified. Any hearing on these matters must be conducted outside the jury’s presence if (1) the matter involves the admissibility of a confession, (2) a defendant in a criminal case is a witness and so requests, or (3) justice so requires.

Answer 35

Statements made by and offered against a party-opponent are nonhearsay and therefore admissible substantively unless barred by another evidentiary rule. Under FRE 411, evidence that a party was (or was not) covered by liability insurance is not admissible as substantive proof of negligence or wrongdoing.

Answer 36

Hearsay is an out-of-court statement offered to prove the truth of the matter asserted therein and is generally inadmissible. However, certain statements are excluded from the hearsay rule and are considered nonhearsay. This includes statements made by and offered against a party-opponent—like the defendant’s statements being offered by the plaintiff. Nonhearsay statements are admissible substantively (i.e., for their truth)—unless they are barred by another evidentiary rule.

Answer 37

Under the “bursting bubble” approach, a rebuttable presumption “bursts” when the opposing party in a civil case produces sufficient evidence to contradict the presumed fact. The fact finder must then weigh the evidence to decide the issue.

Question 39

Convictions for felonies not involving dishonesty that are no more than 10 years old are admissible against a civil witness unless the party opposing the introduction of the conviction shows that its probative value is substantially outweighed by its prejudicial effect.

Answer 40

Authenticating an item of evidence that is a physical representation of something that could not otherwise be seen requires proof that (1) the process for creating the evidence was accurate, (2) the machine that produced the evidence was working properly, and (3) the operator of the machine was qualified to operate it.

Answer 41

The will is a document that has legal effect, so the best evidence rule applies. And since that rule provides that a duplicate is generally admissible to the same extent as the original, the duplicate is admissible.

Question 42

When is evidence relevant?

Answer 42

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

Question 43

When can you use a journal entry exception/

Answer 43

A journal entry used to prove a point is hearsay, but there are exceptions. One is Federal Rule of Evidence 803(5). If a witness can’t remember something they once knew, their written record can be used if:

The witness once knew the details.
They wrote it when it was fresh in their memory.
The writing is accurate.
They can’t remember the event even after reading the record.
The journal can be read to the jury but not shown as an exhibit unless the other side wants it. If these steps are followed, the journal entry can be read to the jury as past recollection recorded.

Question 44

What is relevant evidence? And what makes it admissible or not?

Answer 44

Evidence is relevant if it tends to make the existence of any fact of consequence more or less probable than it would be without the evidence

Relevant evidence may be (but is not automatically) admissible
Irrelevant evidence is inadmissible

Limitations on relevance:

Logical relevance does not equal probative value — evidence can have high relevance but low probative value
Discretionary exclusion — courts can exclude relevant evidence if its probative value is substantially outweighed by its danger of unfair prejudice or confusion
See Card 2 - Discretionary Exclusion of Relevant Evidence
Public policy exclusions — evidence can be excluded in instances where allowing its inclusion could run counter to public policy considerations
E.g., evidence of liability insurance, subsequent remedial measures, settlement offers, guilty pleas withdrawn, and offers to pay medical expenses
See Card 3 - Exclusion of Relevant Evidence on Public Policy Grounds

Question 45

Similar occurrences and habit

Answer 45

Similar occurrences — evidence of prior similar occurrences concerning the time, event, or person in the present controversy is often inadmissible as irrelevant or as presenting an unfair risk of prejudice

However, similar occurrences may be relevant for other purposes
Admissible uses — similar occurrences may be admissible to prove:
Causation
Prior accidents demonstrating:
A pattern of fraudulent claims
Pre-existing conditions
Intent or absence of mistake
To rebut a defense of impossibility
Value (e.g., similar transactions can establish value)
Industry custom (e.g., to prove standard of care)
Business routine (e.g., to show that a particular event occurred)

Habit — a person’s habit may be relevant and admissible to show that the person acted in conformity with that habit on a given occasion

Conduct must be highly specific and frequently repeated (i.e., a person’s regular response to a specific set of circumstances)
Look for regular, instinctive, habitual conduct
E.g., evidence that a person habitually goes down a particular stairwell two steps at a time could be admissible as circumstantial evidence that she did so at the time in question

Question 46

Balancing test elements

Answer 46

Balancing test — to exclude relevant evidence, probative value must be substantially outweighed by the danger of unfair prejudice

Question 47

Impeachment vs. character evidence

Answer 47

Impeachment vs. character — be sure to understand whether evidence of a person’s character is being used as substantive character evidence or impeachment evidence

Substantive character evidence is subject to greater admissibility restrictions than impeachment

Question 48

Evidence of d’s character in criminal cases.

Answer 48

In criminal cases, D may introduce evidence of her good character, which the prosecution (P) may rebut; with limited exceptions, P may not first introduce evidence of D’s character

Question 49

In civil and criminal cases, specific instances of D’s bad conduct are generally inadmissible to prove character (i.e., action in conformity therewith), but admissible if independently relevant

Answer 49

In civil and criminal cases, specific instances of D’s bad conduct are generally inadmissible to prove character (i.e., action in conformity therewith), but admissible if independently relevant

I.e., prior bad acts are inadmissible unless the acts are relevant to an issue other than D’s character or criminal disposition
Exception — in sexual assault or molestation cases, evidence of D’s prior acts of sexual assault or molestation is admissible (see card 6)