Evidence

Question 1

Common Preliminary Questions

Answer 1

A judge can rule on preliminary questions for court without regard to hearsay exceptions

1) Expert Qualifications
2) Competency of a lay witness
3) Chain of custody
4) Legality of search/seizure
5) Foundational facts for application of privilege
6) Foundational facts for hearsay exclusion or exception
7) If Miranda rights given
8) Voluntariness of a criminal confession

Question 2

Excluding Relevant Evidence

Answer 2

General test is whether the probative value substantially outweighs the risks of certain dangers:

1) unfair prejudice
2) Confusion issues - leads jury to focus on a nonmaterial matter
3) Misleading jury
4) Delay/waste of time
5) Needlessly cumulative

Question 3

Character Evidence Criminal Defendant

Answer 3

Admissible by Plaintiff when:
1) Essential element - must present only reputation opinion testimony or specific instance of conduct

But prosecutor may rebut with same

2) Pertinent Trait - may present only reputation/opinion testimony

Prosecution can rebut by reputation/opinion on own witnesses and cross examining D’s with specific instance of conduct (limited to ask questions in good faith
about specific bad acts and have knowledge of the question - hunch not enough)

Question 4

Character Evidence for Propensity

Answer 4

Generally inadmissible but

1) Criminal or victim’s character:
a) Any criminal case -

D may introduce own pertinent trait or victim’s pertinent trait (excluding rape shield law)

But Prosecutor may show D bad character or in victim case, show D’s same bad traits and rebut bad traits of victim

2) Witness Character for truthfulness
a) untruthful reputation or opinion,
b) conviction of felony or crime of dishonesty
c) Bad act - probative of truthfulness

Question 5

Noncharacter Purposes for Admitting Crime or Bad Act

Answer 5

1) Motive: to show purpose for committing charged crime
2) Intent: to establish guilty mind or negate good faith
3) Absence of Mistake: to negate mistake or accident and prove deliberate act
4) Identity: to connect D to crime with unique pattern of behavior (ie, criminal signature)
5) Common plan or scheme: to show preparation or planning
6) Other: to show knowledge of crime, opportunity to commit crime, consciousness of guilt, etc.

Question 6

Handwriting

Answer 6

Method of Authentication of Document:
1) Comparison - expert witness or trier of fact (jury) compares authenticated against disputed handwriting
2) Non-expert opinion - witness with personal knowledge of authentic handwriting not acquired for litigation gives opinion on disputed handwriting

Cannot arise when the lay witness only has knowledge of the witness as a result of the trial

Question 7

Test for Competency of Witnesses

Answer 7

Generally person is presumed competent to testify

Can be challenged if:
1) Judge - cannot testify at trial
2) Juror - cannot testify at trial
3) Age
4) Mental Impairment
5) Intoxication

Test for last three:
1) able to recall and narrate the occurrence (personal knowledge) AND
2) appreciates importance of the truth

Asks questions do you know right and wrong; will you tell the truth; do you remember that day

Question 8

Best Evidence Rule

Answer 8

Must produce original or reliable duplicate to prove contents of document relied on by witness or whose contents are at issue

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

Question 9

Evidence of Subsequent Remedial Measures

Answer 9

Generally inadmissible to:
1) prove negligence or other culpable conduct
2) prove defect in product or product design
3) prove need for product warning or instruction

Admissible to show:
1) prove feasibility of precautionary measures
2) impeach witness
40 Prove ownership or control

Question 10

Hearsay

Answer 10

Out-of-court statement offered to prove the truth of the matter asserted

Must be a person’s assertion that was intend to be an assertion

Hearsay not implicated when made by a machine or animal (dog barking)

Question 11

Prior Indentification

Answer 11

Out-of-Court identification exception to hearsay if
1) the declarant testifies and is subject to cross-examination at trial AND
2)declarant’s statement satisfies either

a) It is inconsistent with the declarant’s testimony and was given under penalty of perjury at trial, hearing, deposition, or other proceeding,
b) consistent with declarant’s testimony and offered to rebut an allegation that the declarant recently fabricated the testimony or has testified due to recent improper influence or rehabilitate declarant’s credibility when attacked OR
c) identifies a person as someone the declarant perceived earlier

Unavailable when the declarant is deceased or otherwise absent at trial

Question 12

Hearsay Exception for Judgment of Previous Conviction

Answer 12

Final judgment of conviction admissible if:
1) entered after trial or guilty plea
2) crime punishable by death or imprisonment of more than one year
3) admitted to prove any fact essential to judgment AND
4) against D, when offered by prosecutor in criminal case for purpose other than impeachment

Does not apply to judgments of acquittal because do not establish innocence

Question 13

Exceptions to Attorney-Client Privilege

Answer 13

1) Crime-Fraud - communication made to further ongoing or future crime/fraud; disclosure can be compelled by party seeking discovery about the crime
2) Deceased Client - resolves dispute over deceased client’s testamentary intent; disclosure can be compelled by attorney
3) Self-Defense - use to defend against malpractice of ethical claim against the attorney; disclosure can be compelled by attorney
4) Fiduciary - constitutes legal advice between corporate fiduciaries and corporation’s attorney; disclosure can be compelled by attorney
5) Joint Representation - made during attorney’s prior representation of joint clients; disclosure can be compelled by any joint client in subsequent litigation between joint clients

Question 13

Attorney Client Privilege

Answer 13

communications between an attorney and client are privileged and protected from disclosure, discovery, or admission in a legal proceeding if they were:
a) made to obtain legal advice and/or representation AND
b) intended to be and kept confidential

Client holds this privilege, and attorney cannot disclose the confidential communication unless the client waives the privilege or meets an exception

Question 13

Public Records

Answer 13

Can be an exception to hearsay when the records or statements of public office/agency admissible if they set forth:

Existing Public Records - activates of office or agency; matters observed pursuant to legal duty (excluding police observations in criminal cases) OR factual findings from legal investigation if offered in civil case or against government in criminal case

Absence of Public Records - evidence that diligent search failed to locate public record or statement admissible if: introduced through testimony or self-authenticating evidence certified AND in criminal cases, prosecutor gives written notice of intent to offer certification 14 days before trial and defendant does not object in writing within 7 days of receiving notice

Question 14

Impeachment Methods

Answer 14

Witness may be impeached by evidence that directly contradicts the witness’s testimony on a material issue. This can be done through:
a) intrinsic evidence - testimony elicited from the witness sought to be discredited AND
b) extrinsic evidence - evidence from any source other than the witness’s own testimony

1) Character for Truthfulness - reputation or opinion testimony; involved in and bad act or involving criminal conviction of felony or crime of dishonest; can be shown through extrinsic or intrinsic
2) Self-interest/bias - motive to lie or partiality to party
3) Prior Inconsistent Statement - witness prior statement inconsistent with present testimony
4) Specific contradiction - evidence directly contradicting witness’s testimony on material issue
5) Sensory abilities - evidence showing witness’s senses were impaired by physical/mental condition or environmental factors

Question 15

Present Recollection Refreshed

Answer 15

Any item may be used to refresh witness’s memory regardless of admissibility if:
1) witness once knew but is now unable to recall fact or event AND
2) item will help witness recall that information

Question 16

Recorded Recollection

Answer 16

Record is admissible hearsay if it:
1) contains information witness once knew but cannot recall well enough to testify fully and accurately
2) was made or adopted by witness when matter was fresh in their mind AND
3) accurately reflects witness’s knowledge at time record was made

Question 17

Rule of Completeness

Answer 17

Allows a party to immediately respond to a writing or recorded statement that has been introduced by an opposing party; may introduce any part of the previously admitted writing or recorded statement or any other writing or recorded statement that in fairness should be considered at the same time

Question 18

Spousal-Immunity

Answer 18

Shields witness-spouse from testifying against spouse in criminal case about matters that occurred before or during marriage

Privilege Held: witness-spouse

Duration: only during active marriage

Question 19

Marital-Communications

Answer 19

Protects against disclosure of confidential spousal communications made during marriage in criminal and civil cases

Privilege Held: both spouses

Duration: continues after divorce

Question 20

Juror Witness

Answer 20

During Trial - may not testify before jury where sitting; objection outside jury’s presence must be permitted

After Trial or Indictment: may not testify about jury deliberations

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

Question 21

X-Ray and Electrocardiograms Authentication

Answer 21

Authentication requires proof that:
1) the process for creating the evidence was accurate
2) the machine that produced the evidence was working properly AND
3) operator of the machine was qualified to operate it