Evidence

Question 1

For evidence to be relevant, it must be:

Answer 1

(1) MATERIAL (proposition must be “of consequence” in the case, even though it does not need to be the ultimate issue) AND

(2) PROBATIVE (evidence has ANY tendency to make that fact of consequence more or less likely .

Question 2

Rule 403

Answer 2

COURT’S RULE 403 DISCRETION (balancing test: probative value vs. these pragmatic considerations)

Judge has discretion to exclude evidence if its probative value is SUBSTANTIALLY outweighed by any of the following (this list is EXHAUSTIVE! these are the ONLY considerations) Considerations:
-unfair prejudice
-confusion of issues
-misleading jury
-undue delay
-waste of time
-cumulative

Question 3

PLAINTIFF’S OTHER LAWSUITS OR ACCIDENTS

Answer 3

Evidence that a person has previously filed similar tort claims or has been involved in prior accidents is generally inadmisssible to show the invalidity of the present claim; all it demonstrates is that the person is litigious or accident-prone.

May be admissible to show something other than carelessness, such as:
—-prior false claims to prove present claim is false.
——prior accidents involving same body part when causation at issue.

Question 4

SIMILAR ACCIDENTS CAUSE BY SAME EVENT OR CONDITION

Answer 4

Generally, other accidents involving the DEFENDANT are inadmissible because they merely show the D’s general character for carelessness.

BUT, evidence of prior accidents or injuries caused by the same event or condition under SUBSTANTIALLY SIMILAR CIRCUMSTANCES is
Admissible to Prove:
(1) existence of dangerous condition
(2) causation
(3) notice of defendant (only if the other accident occurred before the P’s accident)

Question 5

Previous Similar Acts Admissible to Prove Intent

Answer 5

Party’s previous similar conduct admissible to show their present motive or INTENT in current case.

Question 6

Sales of Similar Property

Answer 6

Evidence of sales of similar personal or real property around the same time period is admissible to prove the property’s value.

However, prices quoted in mere offers to purchase generally aren’t admissible.

Question 7

Rebutting Claim of Impossibility

Answer 7

Similar occurrences admissible to rebut claim that occurrence at issue was impossible (rebutting claim that incident was impossible).
(for example, the defendant’s claim that the car will not go above 50 miles per hour can be rebutted by showing occasions when the car went more than 50 miles per hour).

Question 8

HABIT AND BUSINESS ROUTINE EVIDENCE

Answer 8

Admissible as circumstantial evidence that person/org. acted in accordance with habit on occasion

HABIT: Regular response to specific set of circumstances.
—–2 defining characteristics: (1) Frequency of conduct and (2) particularity of circumstances.

Question 9

INDUSTRIAL CUSTOM
EVIDENCE

Answer 9

Admissible as evidence of appropriate standard of care/ to show how party in current case should have acted.
Isn’t conclusive however (entire industry may be acting negligently)

Question 10

Liability insurance

Answer 10

Inadmissible to prove negligence/wrongful conduct.

However admissible to prove:
* To prove ownership or control, if disputed;
* To impeach a witness (usually to show their bias); or
* As part of an admission of liability, where the reference to insurance coverage cannot be severed without lessening its probative value as an admission of liability (for example, “Don’t worry, my insurance will pay it off”)

Question 11

Subsequent Remedial Measures

Answer 11

Inadmissible to prove negligence, culpable conduct, defect, or need for warning or instruction.

However, it may be admissible for some other relevant purpose such as:
—to prove ownership or control, if disputed;
—to rebut a claim that a precaution was not feasible; or
—to prove that the opposing party has destroyed evidence

Question 12

Civil Settlements and Settlement Negotiations

Answer 12

Settlements, offers, and conduct or statements in negotiations INADMISSIBLE to:
(1) prove validity or amount of claim OR
(2) impeach by prior inconsistent statement or contradiction.

Conduct or statements made in the course of negotiating a compromise—including direct admissions of liability—are also inadmissible for these purposes.

HOWEVER, evidence of settlement is admissible to impeach a witness on the ground of BIAS.

Question 13

CIVIL SETTLEMENTS AND SETTLEMENT NEGOTIATIONS—DISPUTED CLAIM REQUIRED

Answer 13

The public policy exclusion for settlements and negotiations only kicks in if there was a claim or some indication that a party was going to make a claim (although the party need not have actually filed suit). Furthermore, the claim must have been in dispute as to either (1) liability or (2) amount.

Question 14

CIVIL SETTLEMENTS AND SETTLEMENT NEGOTIATIONS —LIMITED EXCEPTION

Answer 14

Conduct or statements in civil negotiation with gov/regulatory authority admissible in criminal case

Question 15

Plea Discussions

Answer 15

The following are generally inadmissible in any criminal or civil case against the defendant who made the plea or participated in the discussions:

-offers to plead guilty
-withdrawn guilty pleas
-no-contest pleas
-statements in plea discussions

BUT an actual guilty plea (not withdrawn) is generally admissible in related litigation as a statement of an opposing party.

Question 16

Payments of and Offenses To Pay Medical Expenses

Answer 16

Inadmissible to prove liability for the injury.

But the accompanying admissions of fact admissible.

Question 17

Defendant’s Character in Criminal Case

Answer 17

Prosecution can’t initiate, but D can! (which then opens the door for P).

Defendant can’t prove by reputation and/or opinion testimony concerning pertient trait.

Question 18

How Defendant Proves Character

Answer 18

a character witness for the D may testify as to the D’s good REPUTATION for a PERTINENT TRAIT and may give their personal OPINION concerning that trait of the defendant.

Remember that a D does NOT put their character at issue merely by testifying. Taking the stand places the defendant’s CREDIBILITY (as opposed to character) in issue; meaning, the prosecution is limited offering impeachment evidence rather than substantive character evidence.

Question 19

Prosecution’s Options—Cross-Examination of Defendant’s Character Witness and Rebuttal

Answer 19

Cross-examine D’s character witness regarding basis for testimony by asking “have you heard” about specific acts of the D. To show character witness lacks knowledge, not to prove the D’s bad character.

“Have you heard?”

“Did you know?”

HOWEVER MAY NOY INTRODUCE EXTRINSIC EVIDENCE OF THIS.

Question 20

Whenever you are faced with a WRITING on an Evidence question, be alert to 3 potential issues:

Answer 20

(1) authentication

(2) best evidence rule and

(3) hearsay

(in addition to relevance)

Question 21

Standard for Authentication

Answer 21

As a general rule, a writing or any secondary evidence of its content
will not be received in evidence unless the writing is authenticated by proof that shows that the writing is what the proponent claims it is. The proof must be sufficient to support a jury finding of genuineness (that is, a reasonable juror could conclude that the writing is genuine).

Question 22

Examples of Authentication

Answer 22

Opponent’s admission
—A writing can be authenticated by evidence that the party against whom it is offered has either admitted its authenticity or acted upon it as authentic.

Eyewitness testimony of someone with knowledge.
—A writing can be authenticated by testimony of anyone who saw it executed or heard it acknowledged. The testimony can be from anyone; it doesn’t have to be from a subscribing witness unless required by statute.

Handwriting Verifications.
—Lay opinion on handwriting (if lay witness has pre-existing knowledge/familiarity with handwriting in normal course of affairs not for purposes of the litigation)
—Expert opinion on handwriting (compares to samples)
—Jury comparison of handwriting

Ancient Documents
-Document can be authenticated if:
—at least 20 years old,
—in suspicious condition AND
—Found in place where such a writing would likely be kept.
—(hearsay exception for ancient docs will only apply if the document was prepared before 1998)

Reply Letter Doctrine
—Document can be authenticated by evidence it was written in response to communication sent to alleged author.

Photographs and Videos
—Must be identified by witness as fair and accurate representation of facts depicted
—Generally, photographer need not testify.
-UNATTENDED CAMERA.
—Photograph/video admissible if camera was properly operating and photograph/video came from that camera.

X-Ray Pictures, electrocardiograms, Etc.
—machine was working. make sure X-ray had not been tampered with.

Question 23

Compare:Authentication of Oral Statements

Answer 23

—authentication of the identity of the speaker is required.

Voice Identification
—Voice can be identified by any person who has heard the voice at any time (!!!even after litigation has begun AND for the sole purpose of testifying). (in contrast to handwriting!)

Telephone Convo:
-Statements authenticated in following ways:
(1) party to call recognized speaker’s voice
(2) speaker had knowledge of certain facts
(3) speaker answered phone number and identified themselves or their residence, OR
(4) speaker who answered business’s phone talked about business matter

Question 24

Best Evidence Rule

Answer 24

This rule is more accurately called the “original document rule.” To prove the content of a writing, recording, or photograph (defined
broadly to include videos, X-rays, and any tangible collection of data; we’ll use “writing” as shorthand going forward), the ORIGINAL writing must be produced if the terms of the writing are MATERIAL.

Secondary evidence of the writing, such as oral testimony, is admissible ONLY IF the proponent provides a satisfactory excuse for the original’s absence. The key inquiries are:
* What does it mean to “prove the contents” of a writing?
* What is an “original?”
* What are the exceptions to the best evidence rule?

Question 25

When Does the Best Evidence Rule Apply?

Answer 25

2 MAIN SITUATIONS:

(1) where writing is legally operative or dispositive (that is, the writing itself creates rights and obligations); OR

(2) Where witness’s knowledge concerning a fact results from having seen/read the writing.

Question 26

When does the Best Evidence Rule Not Apply

Answer 26

Witness has personal knowledge of facts

The rule does not apply where the witness has personal knowledge of the fact to be proved, even if the fact happens to also be recorded in a writing. Oral testimony of the fact may be given without producing the original writing that recorded the event.

Question 27

best evidence rule.
Definitions of:
–Orignial
–Duplicate

Answer 27

ORIGINAL: Writing itself, or any counterpart intended to have same effect.

DUPLICATE: Exact copy made by mechanical means. (key here: not human copies)

Question 28

Duplicates are admissible to the same extent as originals, unless:

Answer 28

—circumstances make it unfair to admit duplicate OR
—Genuine issue raised as to authenticity of OG.

Question 29

WHEN SECONDARY EVIDENCE ADMISSIBLE:

Answer 29

OG lost or destroyed (unless proponent destroyed in bad faith)

OG cannot be obtained (usually becus in possession of third party outside the jurisdiction and cannot be obtained despite reasonable effort. …)

OG in possession of adversary who, after due notice, fails to produce it

Question 30

EXCEPTIONS TO BEST EVIDENCE RULE

Answer 30

Summaries of voluminous records

Certified copies of public records
—the rule does not apply to copies of public records that are certified as correct or testified to as correct.

Collateral writings.
—if writing is of minor importance (collateral) to the matter in controversy.

Opponent (party against whom the writing is being offered) testified or gave written admission about contents of writing, proponent may use this evidence and need not give an excuse for non-production of the OG.

Question 31

Conditions of Real Evidence Admissibility

Answer 31

(1)Authentication
(standard: judge does not have to be personally convinced, just that there is sufficient proof to support a jury finding of genuineness)
—testimony of a witness that they recognize the object as what the proponent claims it is; OR
—evidence that the object has been held in a substantially unbroken chain of possession.

(2) Condition of object
—if the condition of the object is significant, it must be shown to be in substantially the same condition at trial.

Question 32

Real Evidence is

Answer 32

actual physical evidence.

Question 33

Leading Questions

Answer 33

Generally allowed on Cross-Examination, and are not permitted on direct examination.

BUT, the court will ordinarily allow leading
questions on DIRECT examination in the following circumstances:

—Preliminary or introductory matters

—Witnesses needs help responding

—Witness is hostile, adverse party, or affiliated with adverse party

Question 34

Cross-examination is generally limited to:

Answer 34

Scope of direct examination; and

Matters that test witness’s creditability (impeachment)

Question 35

Refreshing Recollection—Present Recollection Refreshed/Revived

Answer 35

A witness may use ANY writing or object for the purpose of refreshing their present recollection.

They usually may not read from the writing while testifying because the writing is not authenticated and NOT in evidence (and thus, there is NO HEARSAY PROBLEM).

Question 36

Recorded Recollection

Answer 36

Where a witness states that they have insufficient recollection of an event to enable them to testify fully and accurately, even after they have consulted a memorandum or other record given to them on the stand, the record itself may be read into evidence if a proper FOUNDATION is laid. The foundation must include proof that:
—Witness had personal knowledge of facts when record was made
—Record was made by witness, made under witness’s direction, or adopted by witness
—Record was made when matters were fresh in witness’s mind; AND
—Record accurately reflects witness’s knowledge (witness vouches for its accuracy)

Although the record may be read into evidence and heard by the jury, it cannot be admitted into evidence as an exhibit UNLESS offered by an ADVERSE party. The rationale is that we don’t want the jury giving the record undue weight; it should serve as a substitute for the witness’s testimony and nothing more. While this may seem like a minor point, it tends to come up on the bar exam.

This is HEARSAY, but it falls within a specific EXCEPTION to the hearsay rule.

Question 37

Situations Where Opinions of Lay Witnesses are NOT Admissible

Answer 37

A lay witness cannot give an opinion as to whether they (or someone else) acted as an AGENT or whether a CONTRACT was made, as these are legal conclusions that require specialized knowledge. The lay witness may testify only as to the surrounding FACTS.

Question 38

EXPERT WITNESS TESTIMONY—GENERAL REQUIREMENTS:

Answer 38

-Helpful to jury
-based on sufficient facts or data
-reliable principles and methods
-witness qualified by specialized
-knowledge, skill, experience, training or education

Question 39

EXPERT TESTIMONY—PROPER FACTUAL ABSIS

Answer 39

(1) Facts based on expert’s own observation.
(2) Facts made known to expert at trial (ex: reviews testimony at trial, or counsel relates facts to expert in form of hypo)
hypo needs to be supported by evidence
(3) Facts supplied to expert outside courtroom that are of a type reasonably relied upon by other experts in field (don’t have to be admissible in evidence for expert to rely upon them. if inadmissible must not disclose facts into jury unless probative value substantially outweighs prejudice) (cocked in favor of not permitting/reverse rule 403 balancing test).

Question 40

EXPERT TESTIMONY—COURT DETERMINES RELIABILITY
-4 MAIN DAUBERT FACTORS

Answer 40

“TRAP”
-Testing of principle of methodology
-Rate of error
-Acceptance by experts in the same discipline
-Peer review and publication

Question 41

EXPERT OPINION ON ULTIMATE ISSUES

Answer 41

Generally permitted, EXCEPT testimony concerning defendant’s mental state in criminal case.

Question 42

Impeachment

Answer 42

Impeachment refers to discrediting a witness. When evidence is admissible only to impeach, it is not being offered as substantive evidence (that is, to prove some fact at issue in the case) but to show that the witness can’t be trusted.

Bolstering the witness’s testimony is generally prohibited. Bolstering is strengthening the credibility of a witness before their credibility has even been attacked.

Any party may impeach (including the party who called that witness to the stand)

Question 43

Exceptions to Rule Against Bolstering

Answer 43

In certain cases, a party may offer evidence that the witness made
a TIMELY COMPLAINT (in a sexual assault case, for example) or a PRIOR STATEMENT OF IDENTIFICATION (usually, identifying the defendant as the perpetrator of the charged crime) EVEN IF this tends to BOLSTER their in-court testimony.
The prior identification may also serve as substantive evidence that the identification was correct (see the Hearsay
module).

Question 44

Forms of Impeachment

Answer 44

Cross examination OR

Extrinsic evidence (other witnesses or documents)

Certain grounds for impeachment require that a
foundation be laid during cross-examination before extrinsic evidence can be introduced. Other grounds allow impeachment to be accomplished only by cross-examination and not by extrinsic evidence.

Impeaching a W with FACTS that are SPECIFIC TO CURRENT CASE:
1. Prior inconsistent statements
2 Bias
3. Sensory deficiencies
4. Contradiction

Impeaching a W with their GENERAL BAD CHARACTER for TRUTHFULNESS:
5. Opinion or reputation evidence of untruthfulness,
6.Prior convictions
7.Prior bad acts involving untruthfulness

Question 45

Impeachment by Prior Inconsistent Statements

Answer 45

A party may show, by CROSS-EXAMINATION or EXTRINSIC EVIDENCE, that the witness has, on another occasion, made statements inconsistent with their present testimony.

To prove the statement by EXTRINSIC EVIDENCE, a proper FOUNDATION must be laid and the statement must be relevant to some issue in the case.

A prior statement that OMITS a fact asserted during the current testimony may constitute an inconsistency IF it would have been natural for the witness to include the fact in the statement if they believed it to be true.

On its own, a witness’s PRESENT LACK OF MEMORY of a fact is generally NOT inconsistent with a prior statement relating that fact
(however, the court MAY find an inconsistency where the witness’s
memory loss appears to be feigned).
On the other hand, if the witness remembers the fact on the stand, but didn’t remember the fact in the prior statement, the earlier lack of memory is generally considered inconsistent.

Question 46

PRIOR INCONSISTENT STATEMENTS ADMISSIBILITY as Substantive Evidence

Answer 46

Generally admissible for impeachment purposes only

BUT admissible as substantive evidence WHEN MADE UNDER OATH AT PRIOR PROCEEDING (nonhearsay)

Question 47

PRIOR INCONSISTENT STATEMENTS—FOUNDATION FOR EXTRINSIC EVIDENCE

Answer 47

BEFORE OR AFTER introducing extrinsic evidence must:
—Give witness opportunity to explain or deny the statement; and
—Give adverse party opportunity to examine witness about the statement

Question 48

PRIOR INCONSISTENT STATEMENTS—EXCEPTIONS TO FOUNDATION REQ. FOR EXTRINSIC EVIDENCE

Answer 48

no foundation required where:

(1)if prior inconsistent statement is an opposing party’s statement
(2) hearsay declarant is being impeached
(3) justice requires

Question 49

Bias or Interest

Answer 49

Witness has motive to lie.

Extrinsic evidence of bias allowed
But only if witness is FIRST asked about bias/interest on cross-examination.

Evidence that is otherwise inadmissible (such as arrests or liability insurance) may be introduced if relevant to bias, provided the proper foundation is laid.

Question 50

Sensory Deficiencies.

Answer 50

A witness may be impeached by showing, EITHER on cross-examination OR by extrinsic evidence, that their faculties of perception and recollection were so impaired as to make it doubtful that they could have perceived those facts. A witness may also be impeached by showing that they had no knowledge of the facts to which they testified.

There is NO FOUNDATION REQUIREMENT for proving the sensory deficiency with extrinsic evidence (meaning, the witness does not need to be confronted with the impeaching fact)

Question 51

Contradictory Facts

Answer 51

The cross-examiner, while questioning the witness, can try to make the witness admit that they lied or were mistaken about some fact they testified to during direct examination. If the witness admits the mistake or lie, they have been impeached by contradiction. BUT, if the witness sticks to their story, the issue becomes whether extrinsic evidence may be used to prove the contradictory fact. The
answer is yes, extrinsic evidence is permitted UNLESS the contradictory fact is collateral (meaning, it has no significant relevance to the case or to the witness’s credibility;

Extrinsic evidence permitted UNLESS impeaching fact collateral.

Question 52

Opinion or Reputation Evidence of Untruthfulness

Answer 52

Testimony from character witness admissible to show impeached witness has poor character for truthfulness. Accomplished by character witnessing testifying about target witness’s bad reputation or the character witness’s low opinion of the target witness. (BUT NO SPECIFIC INSTANCES OF CONDUCT!)

Question 53

Conviction of Crime

Answer 53

W may be impeached by proof of a conviction (an arrest or indictment is NOT sufficient) for certain crimes. A pending review or appeal does not affect the use of a conviction for impeachment.

A witness may be impeached by ANY CRIME, felony or misdemeanor, requiring an act of DISHONESTY OR FALSE STATEMENT. The court has no discretion to bar impeachment by these crimes!

A W may be impeached by a FELONY that does NOT involve dishonesty or false statement:
-BUT court has discretion to exclude
Balancing Test depends on:
—Criminal D is being impeached: court excludes conviction unless probative value outweighs prejudicial effect (more difficult balancing test)
—Any other Ws:court excludes conviction if probative value substantially outweighs by prejudicial effect (Rule 403)

Question 54

PRIOR CONVICTIONS—REMOTENESS

Answer 54

Generally inadmissible if more than 10 years have passed since date of conviction or release from confinement, whichever is later.
BUT court may admit if: (1) probative value substantially outweighs prejudicial effect (a reverse 403 that favors exclusion) ; AND (2) the proponent gives the adverse party reasonable written notice of their intent to use it.

Question 55

PRIOR CONVICTIONS—EFFECT OF PARDON

Answer 55

Conviction cannot be used to impeach if the conviction was subject to pardon or equivalent procedure, and either:
—pardon based on rehabilitation and no subsequent felony conviction, or
—pardon based on innocence

Question 56

PRIOR CONVICTIONS—METHOD OF PROOF

Answer 56

On either direct or cross-examination of witness OR by extrinsic evidence (producing a record of the judgment, but other methods of proof like testimony may be permitted)

No foundation requirement.

Question 57

PRIOR BAD ACTS INVOLVING UNTRUTHFULNESS

Answer 57

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 (that is, an act of deceit or lying. The cross-examiner must have a GOOD-FAITH BASIS to believe the W committed the misconduct.

Extrinsic evidence prohibited. This method of impeachment can only be accomplished by CROSS EXAMINATION. Also, the cross-examiner CANNOT REFER TO ANY CONSEQUENCES the W may have suffered as a result of their bad act.
–does not include inquiring about arrests. An ARREST ITSELF IS NOT A BAD ACT.

Question 58

IMPEACHMENT OF HEARSAY DECLARANT

Answer 58

Hearsay declarant may be impeached to same extent as in-court witness.

Need NOT be given opportunity to explain or deny prior inconsistent statement

Question 59

Rehabilitation

Answer 59

A W who has been impeached may be rehabilitated by the following methods:
–Explanation on redirect
–Good character for truthfulness (reputation or opinion testimony. no specific acts)
–Prior Consistent Statement (2 situations) (also prior consistent statement that is admissible to rehabilitate is also admissible as substantive evidence)
(1) When W attacked with charge of lying or exaggerating becus of some motive, and statement pre-dates motive
(2) When W impeached on other non-character ground (such as an inconsistency or a charge of faulty memory)

Question 60

Hearsay Within Hearsay

Answer 60

Admissible only if EACH hearsay statement falls within exception.