Evidence

Question 1

Rule 105

Answer 1

limited admissibility

Question 2

Rule 106

Answer 2

rule of completeness

Question 3

Rule 401 - test for relevant evidence

Answer 3

evidence is relevant if it
(a) has any tendency to make a fact more or less probable than it would be without the evidence; and
(b) the fact is of consequence in determining the action

Question 4

Rule 403 - test for exclusion of relevant evidence

Answer 4

court may exclude relevant evidence if its PROBATIVE VALUE is SUBSTANTIALLY OUTWEIGHED by a danger of unfair prejudice, confusing issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence

Question 5

A rebuttable presumption shifts___, but not___, to the opposing party. Under the “bursting bubble” approach followed by the Federal Rules in a civil case, a presumption “bursts” (i.e., no longer has a preclusive effect) after the introduction of sufficient evidence by the opposing party to sustain a contrary finding.

Answer 5

burden of production; but not the burden of persuasion

Question 6

what does the bursting bubble approach to presumption describe?

Answer 6

FR in civil case - presumption “bursts” / no longer applies / has preclusive effect after introduction of sufficient evidence by opposing party to sustain contrary finding (i.e. burden of production was met by party at disad by presumption)

Question 7

when is evidence of habit admissible?

Answer 7

habit may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice

Question 8

when can impeachment be conducted through extrinsic evidence?

Answer 8

1. witness has opp to explain or deny & opposing party has opposed to q witness about statement, or
2. justice so requires

Question 9

permissible uses for admitting evidence of other crime, wrong, or act

Answer 9

motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident

Question 10

when can evidence of a person’s character or character trait be proven through specific instances of conduct?

Answer 10

1. on cross examination of a character witness (who testified about opinion or reputation)
2. when person’s character or character trait is essential element of charge, claim, or defense
3. spec instances of sex assault victim’s sexual behavior to prove someone other than D was source of physical evidence
4. spec instances of vic sex behavior if to prove consent or offered by prosecutor

Question 11

when can other evidence be used if original or reliable duplicate of document is not available?

Answer 11

1. originals lost or destroyed (not by proponent’s bad faith)
2. originals not attainable by judicial process
3. opponent had original, knew it was required and failed to produce, or
4. content not closely related to controlling issue

Question 12

best evidence rule

Answer 12

generally requires that original recording, writing, or photograph be produced to prove its contents

apple when witness is testifying based off acts learned from doc - vs. personal knowledge

real or physical evidence not subject to it

Question 13

post trial juror testimony is admissible if it addresses…

Answer 13

1. extraneous prejudicial information brought to jury’s attention
2. outside influence improperly brought to bear on a juror, or
3. a mistake made in entering verdict on verdict form

Question 14

a juror is generally prohibited from testifying after trial about jury deliberations, including…

Answer 14

1. any statement made/ incident that occurred duty jury deliberations
2. effect of anything upon that jurors or another juror’s vote
3. any juror’s mental processes concerning verdict

Question 15

when does the hearsay exception for recorded recollection allow a record to be read into evidence?

Answer 15

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

Question 16

when can the hearsay exception for recorded recollection allow a record to be received as an exhibit?

Answer 16

only if offered on cross by adverse party to witness

Question 17

when can impeachment of a witness’s character for untruthfulness be shown through extrinsic evidence?

Answer 17

reputation or opinion testimony; OR
if specific instances of conduct, only for conviction for felony or crime of dishonesty

Question 18

if a witness was convicted of a crime/released >10 years ago, when can that conviction be used as impeachment?

Answer 18

must be a felony or crime of dishonesty, and

still presumed inadmissible unless
- probative value substantially outweighs prejudicial effect, and
- reasonable notice given

Question 19

when is a crime of dishonesty admissible for impeachment of a witness?

Answer 19

if convicted or released <10 years ago, admissible

otherwise, inadmissible unless PV > PE and reasonable notice

Question 20

when is a duplicate admissible?

Answer 20

duplicate is admissible to the same extent as the original and w/o the need to explain the unavailability of the original, unless
1. genuine q raised about original’s authenticity, or
2. circumstances make it unfair to admit the duplicate

Question 21

when is a felony admissible as impeachment against a witness?

Answer 21

if witness crim D: inadmissible unless PV > PE

if not crim D, admissible unless PE substantially > PV

Question 22

standard for expert witness qualification

Answer 22

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in opinion if more likely than not that (i) testimony is based on sufficient facts or data, (ii) testimony is the product of reliable principles and methods, and (iii) expert’s opinion reflects a reliable application of the principles and methods to the facts of the case

Question 23

standard for opinion testimony for lay witness

Answer 23

To be admissible, a lay witness’s opinion must be (i) rationally based on the perception of the witness; and (ii) helpful to a clear understanding of the witness’s testimony or the determination of a fact in issue

generally only allowed to testify regarding common sense impressions

Question 24

business record exception

Answer 24

excepted from the hearsay rule if the record was (i) kept in the course of a regularly conducted activity, (ii) made as a regular practice for that activity, and (iii) made at or near the time of the act or event by someone with knowledge.

Question 25

hearsay exceptions only applying when declarant is unavailable

Answer 25

1. former testimony
2. dying declaration
3. statement against interest
4. statement of personal or family history
5. statement offered against a party that wrongfully caused the declarant’s availability

Question 26

hearsay exceptions not requiring unavailability

Answer 26

1. excited utterance
2. present sense impression
3. statement of present mental / physical condition
4. statement made for purpose of medical treatment or diagnosis
5. recorded recollection
6. business record exception
7. public records
8. catch-all

Question 27

documents constituting self-authenticating evidence

Answer 27

1. public documents with official’s signature and certification by 2nd official/seal
2. certified copies of public records / of regularly conducted activities
3. newspapers, periodicals, official publications
4. docs with trade inscription
5. acknowledged docs
6. commercial paper w signature and related docs

Question 28

difference between what the offering party may admit under the recorded recollection exception vs. opposing party

Answer 28

offering party may read/enter into evidence a record that meets the exception’s requirements (witness once knew but can no longer recall; made/adopted record when fresh in mind; accurately reflects wit knowledge)

only opposing party can offer as exhibit

Question 29

difference between treatment of refreshed recollection materials vs. recorded recollection

Answer 29

both require that witness knew but can no longer recall fact, but only recorded recollection (permitting introduction into evidence by the offering party) requires further that 1. wit made or adopted record while fresh in mind and 2. record accurately reflects wit’s knowledge

Question 30

when is evidence of a victim’s sexual behavior/predisposition admissible in a civil proceeding involving sexual misconduct?

Answer 30

only admissible if court determines that the probative value of the evidence substantially outweighs the danger of harm to the victim and unfair prejudice to any party

Question 31

when is a hearsay statement by a company’s employee admissible against the company for its truth?

Answer 31

1. the employee is authorized to make such a statement, or
2. it is made about a matter within the scope of the employee-employer relationship and during the relationship

Question 32

when can a criminal defendant offer evidence of his own character?

Answer 32

1. good character, if that trait is pertinent to the crime charged, and
2. truthful character that was attacked after the defendant testified at trial

Question 33

when are offers to pay medical expenses admissible?

Answer 33

1. not admissible to prove liability for injury
2. conduct or statements not part of the offer to pay medical expenses are admissible even if made contemporaneously with offer

Question 34

requirements for statement against interest (to be admissible)

Answer 34

declarant unavailable, and statement
1. is contrary to declarant’s proprietary or pecuniary interest,
2. tends to invalidate the declarant’s claim against another, or
3. exposes declarant to civil or criminal liability

Question 35

what are the two main examples of purposes for which evidence of liability insurance is admissible?

Answer 35

1. to impeach witness with evidence of self-interest, bias, or prejudice
2. to prove agency, ownership, or control

Question 36

judicial notice requirements

Answer 36

must be fact not subject to reasonable dispute that is either
1. generally known within the territorial jx of the trial court, or
2. capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned

Question 37

judicial notice standard in a criminal case

Answer 37

judicial notice recommends a conclusion to the jury wrt the issue but does not conclusively bind the jury

Question 38

judicial notice standard in a civil case

Answer 38

judicial notice conclusively establishes facts for the purposes of the litigation