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

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 as a hearsay exception.

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 (witnessed firsthand) 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 recorded recollection exception to hearsay?

Answer 11

Recorded information/communications can be entered into evidence if it:

1) concerns a matter that a witness once knew but cannot recall at trial

2) was made/adopted by the witness when it was still fresh in their mind

3) accurately reflects the witness’s personal knowledge at the time they made it

Question 12

what is the public records exception to the hearsay rule?

Answer 12

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 13

What makes evidence relevant?

Answer 13

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

Question 14

What does it mean when a court takes judicial notice?

Answer 14

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 15

Are irrelevant facts admissible?

Answer 15

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

Question 16

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

Answer 16

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 17

Who owes the burden of persuasion?

Answer 17

Whichever party is offering up the evidence.

Question 18

Who owes the burden of production?

Answer 18

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 19

What is an offer of proof?

Answer 19

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

Question 20

Are leading questions proper during direct examination?

Answer 20

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 21

What is the completeness rule?

Answer 21

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 22

When is habit evidence admissible?

Answer 22

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 23

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

Answer 23

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 24

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

Answer 24

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 25

what is the Deadman’s statute?

Answer 25

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 27

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

Answer 27

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

Question 28

What are the 3 basic ways to impeach a witness?

Answer 28

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 29

what is the best evidence rule?

Answer 29

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 30

what are the exceptions to the best evidence rule?

Answer 30

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

Question 31

What is the work products doctrine?

Answer 31

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 32

What is the exception to the work products doctrine?

Answer 32

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 33

When is character evidence admissible in a civil case?

Answer 33

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 34

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

Answer 34

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 35

When can you use a witness’s past criminal convictions to impeach them?

Answer 35

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 36

When can you refresh a witness’s recollection?

Answer 36

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

Question 37

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

Answer 37

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

Question 38

How can physical evidence be authenticated?

Answer 38

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 39

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

Answer 39

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

Question 40

When is an expert’s testimony admissible?

Answer 40

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 43

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

Answer 43

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 44

Which hearsay exceptions require that the declarant be available to testify?

Answer 44

1) Prior statements of identification (ex. police line-up)
2) prior inconsistent statements made under oath
3) prior consistent statements, but must be used to rehabilitate a witness accused of dishonesty

Question 45

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

Answer 45

No if it’s a defendant-witness.

If it’s a normal witness, the juvenile adjudications can’t be brought up for truthfulness if an adult conviction for that offense would
be admissible and admitting it is necessary to determine guilt or innocence

Question 46

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

Answer 46

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.