Evidence

Question 1

What are the hearsay exceptions for when the declarant is unavailable?

Answer 1

1) former testimony,
2)dying declarations,
3)statements against interest,
4) unavailability due to party misconduct,
5) statements on family history

Question 1

What are hearsay exceptions where the declarant’s availability is immaterial?

Answer 1

present sense impressions, excited utterances, state of mind statements, statements for medical diagnosis/treatment, past recollection recorded, business records, public records, learned treatises

Question 2

What does it mean for a witness to be “unavailable” to testify?

Answer 2

1) witness refuses to testify
2) witness is exempt because of some privilege
3) witness is dead or gravely ill
4) witness doesn’t have memory of the subject matter

Question 3

If there’s a type of allowed character evidence, what form must it take?

Answer 3

Reputation or opinion testimony

Question 4

If a criminal defendant introduces evidence of their own good character, what can the prosecution do?

Answer 4

This opens the door for the prosecutor to bring in evidence of defendant’s bad character.

Prosecutor can now cross-examine the defendant’s character witness and bring up specific past acts of the defendant to impeach the witness.

Question 5

Under character evidence, when can prior bad acts be admissible?

Answer 5

When they’re used to prove something other than propensity such as motive, intent, mistake’s absence, identity, or common plan/scheme (MIMIC)

Question 6

What does Federal Rule of Evidence 403 say?

Answer 6

A court can exclude relevant evidence if its probative value is substantially outweighed by other considerations such as unfair prejudice, misleading the jury, undue delay of the proceeding, or confusing the issues

Question 7

Are statements by party opponents considered hearsay?

Answer 7

No. Any prior statement by a party opponent is admissible.

Question 8

How can handwriting/signatures be authenticated as evidence?

Answer 8

1) an expert or trier of fact compares the disputed handwriting with an authentic version of the handwriting

2) A lay witness with personal knowledge (has seen writer make the handwriting before) of the authentic signature can give opinion testimony about the disputed signature’s authenticity

Question 9

what is an exception to the spousal immunities?

Answer 9

If it’s a criminal case and the defendant spouse is accused of committing a crime against the other spouse or one of their children.

Question 9

What are the two types of spousal immunities?

Answer 9

1) martial communications. Held by both spouses. Prevents the disclosure of communications made in confidence between spouses during the marriage.

2) spousal immunity. A spouse cannot be compelled to testify against their spouse unless they want to.

Question 10

What are the exceptions to the attorney-client privilege rule?

Answer 10

1) if the client dies

2) if it’s a dispute between the client and attorney over the attorney’s representation

3) if the communications were made by the client to further some crime or fraud

Question 11

what is the public records exception to the hearsay rule?

Answer 11

records/statements of public agencies and/or offices are admissible as evidence if they set forth:
1) activities of that office/agency

2) matters observed pursuant to the office’s/agency’s legal duties (excludes police reports/observations)

3) factual findings resulting from legal investigation if offered in (1) civil case or (2) against government in criminal case

Question 12

What makes evidence relevant?

Answer 12

if it has any tendency to make a material fact more or less probable than it would be without the evidence

Question 13

What does it mean when a court takes judicial notice?

Answer 13

It means that the fact/question isn’t subject to any reasonable dispute as to its truthfulness (ex. we take judicial notice that the sky is blue)

Question 14

Are irrelevant facts admissible?

Answer 14

No. For a fact to be admissible, it must be relevant.

Question 15

What are the two kinds of burdens typically owed in a case?

Answer 15

Burden of production and persuasion.

For civil cases, the persuasion burden is a preponderance of the evidence. For a criminal trial, it’s beyond a reasonable doubt.

Question 16

Who owes the burden of persuasion?

Answer 16

Whichever party is offering up the evidence.

Question 17

Who owes the burden of production?

Answer 17

Whichever party is offering up the evidence, although that burden can shift onto the non-moving party if the moving party creates a rebuttable presumption

Question 18

What is an offer of proof?

Answer 18

an oral or written explanation of the relevance and admissibility of the evidence being offered by the proponent on the record.

Question 19

Are leading questions proper during direct examination?

Answer 19

Typically not, unless one of the 3 exceptions apply:
1) hostile witness
2) witness is a minor who has difficulty communicating
3) preliminary background matters

Question 20

What is the completeness rule?

Answer 20

If a party offers part of a statement/document as evidence, the opposing party can move to have the whole statement/document admitted in to give clarification/context.

Question 21

When is habit evidence admissible?

Answer 21

To prove that the person or organization acted in accordance with the habit or routine on a particular occasion. It may be admitted without corroboration or an eyewitness.

Question 22

When can a victim’s past sexual conduct be brought up?

Answer 22

Almost never, although there are 2 exceptions:
1) to prove that any physical evidence (ex. semen) belonged to the victim; or
2) evidence of past sex with defendant to prove that the victim and defendant had consensual sex in the past

Question 23

When can a prosecutor introduce evidence of a victim’s good character?

Answer 23

1) As rebuttal evidence after the defendant already attacked the victim’s character; or
2) In a homicide, to prove the victim’s peacefulness and that they weren’t the initial aggressor

Question 24

what is the Deadman’s statute?

Answer 24

Only applies in civil cases. A party with a financial interest in the outcome of a case is not permitted to testify adversely about a communication or transaction with a person whose estate is a party to the case.

Question 26

When can a defendant’s past sexual crimes be brought up?

Answer 26

evidence that the defendant committed any other sexual
assault or molestation is admissible to prove any relevant matter.

Question 27

What are the 3 basic ways to impeach a witness?

Answer 27

1) show they have sensory incompetence (ex. blind or deaf)
2) show that they have a character for dishonesty/untruthfulness
3) show that they’re bias

Question 28

what is the best evidence rule?

Answer 28

No describing the contents of the document when you can just show the document.

If the contents of a document are at issue, or a witness is relying on the contents of the document, the best evidence rule requires that the original document be produced to prove its contents

Question 29

what are the exceptions to the best evidence rule?

Answer 29

1) all of the originals of the document are lost/destroyed, and not by the party acting in bad faith

2) the originals cannot be obtained via judicial process

3) the party against whom the document was going to be used had control over it last, knew that it was going to be used, and failed to produce it at court

4) notarized public records.

5) Voluminous writings. A concise chart or summary can be used instead.

Question 30

What is the work products doctrine?

Answer 30

documents prepared by a lawyer in anticipation of litigation are not discoverable.

A lawyer’s mental impressions of a client/case are NEVER discoverable.

Question 31

What is the exception to the work products doctrine?

Answer 31

1) if the party can demonstrate a substantial need for the work product; and
2) the party cannot otherwise get the work product without undue hardship

Question 32

When is character evidence admissible in a civil case?

Answer 32

When character is an essential element of a defense and/or claim.

If it’s admissible, the character evidence may be proved by reputation, opinion, and specific instances of a person’s conduct.

Question 33

When are specific past acts admissible in a criminal case as character evidence?

Answer 33

1) If it’s being used for a purpose other than proving propensity (MIMIC)

2) when a character witness is asked on cross-examination about specific acts committed by the person about whom the witness is testifying.

3) When character is an essential element of a charged crime (or of a defense) and a defendant offers specific acts inconsistent with the crime

Question 34

For impeachment purposes, when can you use a witness’s past criminal convictions?

Answer 34

1) If the past crime involved dishonesty or fraud, you can impeach them for untruthfulness

2) If the past crime doesn’t involve dishonesty, you can impeach them only if the crime was a felony punishable by death or at least 1 year in prison, and they were convicted within the last 10 years

If the witness is the defendant, then the past non-dishonest crime must also have its probative value substantially outweigh its prejudicial risk

Question 35

When can you refresh a witness’s present recollection?

Answer 35

You can use any writing to refresh a witness’s memory when the witness had personal knowledge of a fact/event but now can’t remember, but that writing will help them recall it

Adverse party may inspect item and they can enter relevant portions as evidence

Question 36

What must you do to get a piece of tangible/physical evidence admitted into the case?

Answer 36

Authenticate it by creating a prima facie showing that the object is what you say it is

Question 37

How can physical evidence be authenticated?

Answer 37

1) testimony from someone who has personal knowledge of the object

2) Comparison of object with an authenticated specimen (done by trier of fact or expert witness)

3) Chain of custody. Showing that there’s been an unbroken account of the object’s location from the time it was obtained up until now

4) Distinctive characteristics. Testimony about object’s unique patterns, design, appearance, or contents

Question 38

What kind of evidence does the best evidence rule apply to?

Answer 38

Only writings, photographs, or recordings. Doesn’t apply to physical evidence.

Question 39

When is an expert’s testimony admissible?

Answer 39

If it’s:
1) reliable, meaning that it’s based on sufficient facts and data and the product of reliable methods; and
2) relevant, meaning it will help the trier of fact understand the evidence or determine the fact at issue

Question 42

What’s the difference between judicial notice in a civil case and a criminal case?

Answer 42

In a civil case, if a fact is given judicial notice, the judge tells the jury that it MUST accept the fact as conclusive

In a criminal case, if a fact is judicially noticed, the judge tells the jury that they MAY OR MAY NOT accept the fact as conclusive

Question 43

Which statements aren’t considered hearsay even if they’re being offered for the truth of the matter they’re asserting?

Answer 43

1) Prior statements of identification (ex. police line-up)
2) prior inconsistent statements made under oath at a prior proceeding
3) prior consistent statements, if they’re being used to rehabilitate a witness accused of dishonesty

Question 44

Can you bring up a witness’s juvenile adjudications for impeachment purposes?

Answer 44

No if it’s a defendant-witness.

If it’s a normal witness, the juvenile adjudications can be brought up to attack a character witness’s truthfulness if:
1) it’s being offered in a criminal trial
2) if an adult conviction for that offense would
be admissible to attack a witness’s creditability; and
3) admitting it is necessary to fairly determine guilt or innocence

Question 45

When can you use past convictions for impeachment of a witness in a civil case?

Answer 45

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.

Question 46

What is the past recollection recorded exception to hearsay?

Answer 46

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

The past recording may be read into evidence, but received as an exhibit only
if offered by an adverse party

Question 47

What are the two types of refreshing a recollection?

Answer 47

1) Past recollection recorded: a hearsay exception about a witness’s past recording of something they witnessed

2) Present recollection refreshed: a tool used to refresh a currently testifying witness, refreshing their memory about something they’re testifying about

Question 48

Can past sexual acts be brought up in a civil case?

Answer 48

Yes. In a civil case involving sexual misconduct or child molestation, evidence concerning past sexual assault or child molestation by a defendant (doesn’t require the past acts to be a conviction)

Question 49

When MUST a court take judicial notice of a fact?

Answer 49

if a party requests them to do so and provides the court with the necessary information to do so.

Question 50

In a criminal case, when can a defendant offer character evidence of their good character traits as being inconsistent with the crime they’re charged with?

Answer 50

A defendant can introduce evidence of good character as being
inconsistent with type of crime charged, but the character evidence being offered must be:
1) pertinent to the crime charged, and
2) in the form of reputation or opinion testimony

Question 51

Can evidence of a subsequent remedial measure be admissible to prove negligence and/or product defectiveness?

Answer 51

No, subsequent remedial measures after the injury are not admissible to prove that the product was defective or negligent

They can be admissible for some other purpose, such as proving feasibility of precautionary measures, ownership of product, or control of product.

Question 52

What is the statement for the purpose of receiving medical treatment/diagnosis exception to hearsay?

Answer 52

an out-of-court statement describing medical history or past or present symptoms that’s made for the purpose of receiving medical diagnosis or treatment

this statement can be made to anyone, not just doctors

Question 53

What sort of evidence/statements are excluded from evidence on public policy grounds?

Answer 53

1) Subsequent remedial measures
2) liability insurance
3) Plea negotiations
4) offers to pay medical expenses
5) settlement offers/negotiations

Question 54

When is an offer to pay medical expenses not admissible as evidence?

Answer 54

Evidence that a defendant paid or offered to pay medical expenses is not admissible to prove liability for a plaintiff’s injuries

Question 55

what is the present state of mind exception to hearsay?

Answer 55

A statement of the declarant’s then-existing state of mind is not excluded as hearsay. A statement of present intent, motive, or plan can be used to prove conduct in conformity with that state of mind.

Question 56

If a party “opens the door” about their character by introducing character evidence, can the opposing party introduce prior bad acts to rebut that character evidence?

Answer 56

Generally no. Even if a party opens the door of character evidence, the rebutting character evidence must still take the form of reputation or opinion testimony.

The exception is on cross-examination of a non-party character witness. Then, the prosecutor may question a defendant’s character witness about specific instances of the defendant’s conduct, but no extrinsic evidence can be admitted.

Question 57

What information can a party discover during the discovery process?

Answer 57

nonprivileged information that is (1) relevant to any party’s claim or defense and (2) proportional to the needs of the case.

Question 58

Can a party use discovery to compel information from an expert witness who isn’t expected to testify?

Answer 58

acts known and opinions held by an expert not expected to testify, including the expert’s identity, are privileged and not discoverable unless:

1) that information relates to a court-ordered physical or mental examination; or
2) exceptional circumstances make it impracticable to obtain the information by other means—e.g., a party dies and cannot be evaluated.

Question 59

post-trial, what isn’t a juror allowed to talk/testify about?

Answer 59

Posttrial juror testimony is generally inadmissible if it concerns:
(1) any statement made, or incident that occurred, during jury deliberations (2) the effect of anything upon that juror’s or another juror’s vote, or
(3) any juror’s mental process concerning the verdict.

Question 60

post-trial, what can a juror talk/testify about?

Answer 60

May testify about improper extraneous prejudicial information, outside influence, or mistake on verdict form

Question 61

what is the plain error rule?

Answer 61

A plain error is one that is obvious to the reviewing court.

A plain error that affects a substantial right is grounds for reversal, even if no objection was made.

Question 62

If an unavailable party’s out-of-court statement is admitted under a hearsay exception, can the opposing counsel impeach the unavailable declarant?

Answer 62

Yes. If a witness communicates a third party’s hearsay statement (ex. boyfriend testifying about what his girlfriend said), the opposing party can still impeach the statement even if the third party isn’t testifying or available.

Question 63

What is the dying declaration hearsay exception?

Answer 63

A statement made under the reasonable belief of impending death that relate to the cause or circumstances of the impending death

Question 64

If a party thinks the trial court erred in excluding certain evidence, how can they preserve the issue for an appeals court?

Answer 64

The party wanting the evidence admitted must:
1) obtain a definitive ruling on the issue (trial judge definitely says yes or no to the evidence being excluded) and
2) make a timely offer of proof on the record (i.e., an explanation for how and why the evidence is relevant)

Question 65

If a party thinks the trial court erred in allowing in certain evidence, how can they preserve the issue for an appeals court?

Answer 65

The party opposing the admission of evidence must:
1) timely object or move to strike during the trial; and
2) Unless it’s apparent from context, state the specific grounds for why they’re objecting/moving to strike

Question 66

When can a party request that a witness be removed from the courtroom?

Answer 66

Yes. At a party’s request, the court must order the exclusion of a witness from the courtroom so that the party cannot hear the testimony of the other witnesses, unless an exception applies

Question 67

What are the exceptions that prevent a court from ordering a witness leave the courtroom?

Answer 67

1) A witness who is essential to the presentation of the case;
2) A person, such as a crime victim, who is permitted by state rule to remain in the
courtroom; or
3) A party in the case

Question 68

when has a party lost their standing to make an objection based on hearsay or their confrontation clause rights?

Answer 68

When it’s established by a preponderance of the evidence that the party wrongfully caused the declarant’s unavailability and did so intending that resulting absence

Question 69

If a party wants to preserve their right to challenge the admission of certain evidence, what must they do?

Answer 69

1) timely object or move to strike; and
2) state the specific grounds for their objection or motion to strike

an objection is timely if it’s made at the first opportunity (i.e., right when the evidence is offered up at trial)

Question 70

does the former testimony exception to hearsay apply to former grand jury testimony?

Answer 70

No. Grand jury testimony can’t be admissible under the former testimony exception