Evidence

Question 1

Exceptions to admissibility of evidence that plaintiff has filed previous similar tort claims

Answer 1

1) Evidence that P has made similar false claims may be relevant to prove present claim is likely to be false

2) Prior accidents may be admissible where the cause of the P’s damages is at issue (P injured same part of body, may admit evidence to show that some damages may be attributable to other accident).

Question 2

Evidence of prior accidents or injuries caused by the same event or condition and occurring under substantially similar circumstances is admissible to prove:

Answer 2

1) The existence of a dangerous condition

2) that the dangerous condition was the cause of the present injury, and

3) that the D had notice of the dangerous condition

Question 3

Admissibility of Habit Evidence

Answer 3

Admissible as circumstantial evidence to show that the person (or org) acted in accordance with the habit on the occasion at issue in the case.

Question 4

Two defining characteristics of a habit:

Answer 4

1) frequency of conduct and 2) the particularity of circumstances

Question 5

Evidence of Industry Custom

Answer 5

May be offered as evidence of the appropriate standard of care (not conclusive evidence bc entire industry may not be following standard of care)

Question 6

Evidence of liability insurance

Answer 6

NOT admissible to show if a party acted negligently

Question 7

Exceptions for admitting liability insurance

Answer 7

1) To prove ownership or control, if disputed

2) To impeach a witness (usually to show bias) or

3) As part of an admission of liability (Don’t worry, my insurance will pay it off).

Question 8

Subsequent remedial measures
1) Inadmissible
2) Admissible

Answer 8

1) Inadmissible: To prove negligence, culpable conduct, a defect in its product or design, or a need for a warning instruction.

2) Admissible: To prove ownership or control, to rebut a claim that precautions were impossible, or to prove destruction of evidence.

Question 9

Settlement offers or negotiations
1) Inadmissible
2) Admissible

Answer 9

1) Inadmissible: To prove or disprove the validity or amount of a disputed claim, or to impeach by prior inconsistent statement or contradiction

2) Admissible: For all other purposes.

Question 10

Offers to pay and payment of medical expenses:
1) Inadmissible
2) Admissible

Answer 10

1) Inadmissible: To prove culpable conduct

2) For all other purposes (admission of facts accompanying an offer to pay medical expenses, for example)

Question 11

Withdrawn Guilty Pleas and Offers to Plead Guilty
1) Inadmissible
2) Admissible

Answer 11

1) Inadmissible: For nearly all purposes

2) Admissible: Not admissible

Question 12

When may character evidence be offered?

Answer 12

1) To prove a person’s character in the rare situation where their character is directly in issue (an essential element of the claim or defense) OR

2) To serve as circumstantial evidence of how a person probably acted during the events of the case.

3) Sometimes evidence of a person’s bad character for truthfulness may be offered for impeachment purposes.

Question 13

Who can initiate character evidence?

Answer 13

Only the defendant.

Question 14

How can the defense prove character?

Answer 14

A character witness for the D may testify as to the D’s good reputation or a pertinent trait and may give their personal opinion concerning that trait for the D.

Question 15

Prosecution’s response to Defense introducing character evidence:

Answer 15

• The prosecution can cross examine the witness by asking “Did you know” questions about specific acts of the D (purpose to prove lack of knowledge, not D’s bad character)
• The prosecution can call its own character witnesses (after D has initiated) to provide reputation or opinion testimony about the D’s bad character.

Question 16

Can defense introduce character evidence of a victim?

Answer 16

Except in sexual assault cases, the D may introduce reputation or opinion evidence of a bad character trait of the alleged crime victim when it is RELEVANT to the show the D’s innocence (most commonly, to show the the D was using self defense and the victim was the first aggressor).

Question 17

How may prosecution rebut character evidence of a victim?

Answer 17

Reputation or opinion evidence of:

1) The victim’s good character for the same trait

2) The defendant’s bad character for the same trait.

Question 18

When my the prosecutor allow evidence for the good character of a victim?

Answer 18

In a homicide case in which a victim pleads self defense, a prosecutor may offer evidence that victim has a character for peacefulness.

Question 19

When is character evidence admissible in a civil case?

Answer 19

When proof of a person’s character is an essential element of the claim or defense:

• Defamation cases where truth is a defense
• Negligent hiring or entrustment cases (hired/entrusted person’s character at issue)
• Child custody cases

When character is directly at issue, ALL forms of character evidence are admissible.

Question 20

When is evidence of another person’s crimes admissible?

Answer 20

If it is relevant to some other issue other than their character or propensity to commit the crime charged.

MIMIC
Motive
Intent
Mistake (absence of)
Identity
Common plan or scheme

Prosecutor must provide notice of this evidence.

Question 21

What are the three things you should look at for when faced with writing on an Evidence question?

Answer 21

1) Authentification
2) Best evidence rule
3) hearsay

Question 22

Common methods of authentication of a document

Answer 22

1) Opponent’s Admission
2) Eyewitness Testimony
3) Handwriting Verifications
4) Ancient Document
5) Reply Letter Doctrine
6) Photographs and videos (if identified by a witness)
7) X-ray, Electrocardiograms, ect.

Question 23

How can statements made during a telephone conversation be authenticated?

Answer 23

1) They recognized the other party’s voice
2) The speaker had knowledge of certain facts that only a particular person would have
3) they called a particular person’s number and a voice answered as that person or that person’s residence, OR
4) they called a business and talked with the person answering the phone about matters relevant to the business.

Question 24

What is the best evidence rule?

Answer 24

The prove the content of a writing, recording, or photograph, the original writing must be produced if the terms of the writing are material.

Secondary evidence of the writing, such as oral testimony, is only admissible if the proponent provides a satisfactory excuse for the original’s absence.

Question 25

When does the best evidence rule apply?

Answer 25

1) Where the writing is a legally operative or dispositive instrument (writing itself creates rights and obligations); or

2) Where the knowledge of a witness concerning a fact results from having read it in the writing.

Question 26

When does the best evidence rule NOT apply?

Answer 26

When the witness has personal knowledge of the fact to be proved, even if that fact also happens to be recorded in writing. Oral testimony of the fact may be given without producing the original writing that recorded the event.

Question 27

Define “original copy”

Answer 27

The writing itself or any counterpart that is intended by the person executing it to have the same effect as the original (includes a negative of any photograph or any print of it, or the printout or other readable output of electronically stored information).

Question 28

Define “duplicate copy”

Answer 28

An exact copy of an original made by mechanical means (photocopy, carbon copy).

NOT handwritten copies.

Question 29

When are duplicates admissible in place of originals?

Answer 29

Always, unless:

1) the circumstances make it unfair to admit the duplicate, or

2) a genuine question is raised about the authenticity of an original

Question 30

Exceptions to best Evidence Rule

Answer 30

1) Summaries or Voluminous Records
2) Certified Public Records
3) Writing is collateral to litigated issue
4) Testimony or Written Admission of Opponent

Question 31

Two limitations to witness competency:

Answer 31

1) Evidence sufficient to support a finding the a witness has personal knowledge of the matter about which they are to testify

2) The witness must give an oath or affirmation to testify truthfully

Question 32

What is a Dead Man Act?

Answer 32

In a civil case, an interested person (or their predecessor in interest) is incompetent to testify to a personal transaction or communication with a deceased, when such testimony is offered against the representative or successors in interest to the deceased. A person is “interested” if they stand to gain or lose by the judgment, or if the judgment may be used for or against them in a subsequent action.

NOTE: NO Federal Dead Man Act!

Question 33

Present Recollection Refreshed

Answer 33

• Any writing may be used to refresh a witnesses memory
• The witness cannot read from the writing while testifying
• The is no hearsay problem, because the writing is not offered as evidence.

Question 34

Recorded Recollection

Answer 34

• Only a record that meets several foundational requirements may be used
• The record itself is read into evidence (but is not received as an exhibit unless offered by an adverse party)
• This is hearsay, but it falls within an excpetion to the hearsay rules.

Question 35

Foundational Requirements for admitting Recorded Recollection

Answer 35

1) The witness has insufficient recollection to testify fully and accurately

2) The witness had personal knowledge of the facts in the record when the record was made.

3) The records was made by the witness or under their direction, or it was adopted by the witness.

4) The recored was made when the matter was fresh in the witness’s mind; and

5) The record accurately reflects the witness’s knowledge.

Question 36

Requirements of Opinion Testimony by Lay (non-expert) Witnesses

Answer 36

• Rationally based on the witnesses perception
• Helpful to a clear understanding of the witness’s testimony or helpful to the determination of a fact in issue; and
• Not based on scientific, technical, or other specialized knowledge.

Question 37

Situations where opinions of lay witnesses are not admissible

Answer 37

Cannot give opinion as to whether they (or someone else) acted as an agent or whether a contract was made, as these are legal conclusions that requires specialized knowledge. The lay witness may only testify as to the surrounding facts.

Question 38

Requirements for admissibility of expert witness testimony

Answer 38

1) The subject matter is one where scientific, technical, or other specialized knowledge would assist the trier of fact

2) The opinion is based on sufficient facts or data

3) the opinion is the product of reliable principles and methods

4) the expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.

Question 39

Daubert Factors

Answer 39

TRAP

Testing of principle or methodology
Rate of error
Acceptance by experts in the same discipline
Peer review and publication

Question 40

Which party may impeach a witness?

Answer 40

A witness may be impeached by any party.

Question 41

Extrinsic evidence may be used to prove a prior inconsistent statement only if, at some point:

Answer 41

• The witness is given an opportunity to explain or deny the statement; and
• The adverse party is given an opportunity to examine the witness about the statement.

Question 42

Exception to the foundation requirement for prior inconsistent statements:

Answer 42

Is the prior inconsistent statement is offered by the opposing party against the other party.

Question 43

Impeachment with bias

Answer 43

Not specifically addressed by the federal rules, lots is left to the court’s discretion.

Majority rule: Before a witness can be impeached by extrinsic evidence of bias or interest, by must first be asked about the facts that show bias or interest on cross examination.

Question 44

Impeachment for sensory deficiencies

Answer 44

May be impeached by showing that their faculties of perception and recollection were so impaired as to make it doubtful that they could have perceived those facts.

No foundation requirement

Question 45

Impeachment for contradictory facts

Answer 45

My impeach through cross-examination, or extrinsic evidence if the contradiction is not collateral.

Question 46

Impeachment by proof of a conviction for certain crimes:

Answer 46

Allowed for any crime involving dishonesty or false statement. Must be a crime that involves some “uttering or false words.”

May also be impeached by other felonies, but the court has discretion to exclude those convictions. Generally, if more than 10 years have elapsed, inadmissible.

Question 47

Impeachment by Bad Acts involving untruthfulness

Answer 47

Subject to discretionary control of the trial judge, a witness may be interrogated upon cross examination with respect to an act of misconduct if the act is probative of truthfulness. The cross examiner must have a good faith basis to believe that the witness committed the misconduct.

Extrinsic Evidence is NOT permitted, and cross examiner cannot refer to any consequences the witness may have suffered as a result of their bad act.