Evidence

Question 1

When do federal rules of evidence NOT apply?

Answer 1

State law re: privilege in diversity cases
Preliminary questions of fact relating to admissibility, grand jury proceedings, and other misc proceedings (sentencing, arrest, etc.)

Question 2

Relevance

Answer 2

Tendency to make fact of consequence more or less probable than w/o it

Question 3

Admissibility of evidence that a person filed past similar claims/prior accidents

Answer 3

Inadmissible to show invalidity of present claim
Admissible to show P made previous similar false claims or that P’s condition is due to a prior accident

Question 4

Admissibility of evidence of other accidents involving D

Answer 4

Only admissible if prior accidents/injuries caused by same event under similar circumstances to prove existence of dangerous condition, cause of injury, and notice

Question 5

Admissibility of evidence of prior conduct

Answer 5

Admissible to prove motive/intent or habit (requires frequency of conduct and particularity of circumstances)

Question 6

Public Policy Exceptions to Admission

Answer 6

Liability insurance – Presence/lack not admissible to show negligence
Subsequent remedial measures - not admissible to show negligence, culpability, defect, or need for warning
Civil settlements/negotiations (and conduct during) - not admissible to prove/disprove validity or amount in claim or impeach a witness
Plea discussions inadmissible against D who made plea/participated, but admissible in related litigation
Payments/Offers to Pay inadmissible to prove liability

Question 7

Character Evidence - Defined

Answer 7

A person’s general propensity or disposition (typically witness testimony)

Question 8

Character Evidence - Offered For

Answer 8

Prove a person’s character when character is an essential element of case (RARE)
Circumstantial evidence of how person probably acted (conformity)
Evidence of witness’s bad character for truthfulness (impeachment)

Question 9

Character Evidence - Types of Evidence

Answer 9

Evidence of specific acts, opinion testimony of witness who knows them, or testimony re reputation in community

Question 10

Character Evidence - Criminal Ds

Answer 10

Prosecutor cannot initiate, but D can introduce good evidence (and then P can rebut with evidence of bad character or cross D’s witness with “did you know’ qs to show witness’s lack of knowledge)
No specific acts/instances

Question 11

Character Evidence - Criminal Victims

Answer 11

D may introduce rep/opinion evidence when relevant to show D’s innocence (self defense)
P can rebut with rep/opinion about victim’s good character for same trait or D’s bad character for same trait

Question 12

Character Evidence - Sexual Assault Victims

Answer 12

Evidence offered to prove sexual behavior/disposition > inadmissible
Criminal exceptions: semen is from someone else or consent
Civil exceptions: R403 (favors inadmissibility)

Question 13

Character Evidence - Civil Cases

Answer 13

Character inadmissible to prove conduct in conformity unless character is directly at issue (but habit evidence allowed)

Question 14

Using Evidence of Misconduct for Non-Character Purposes

Answer 14

MIMICO
Motive, intent, absence of mistake, identity, common plan, or opportunity
Misconduct can be shown via any evidence (subject to 403) with reasonable notice to D

Question 15

Character Evidence - D’s Misconduct in Sex-Crime Cases

Answer 15

Evidence of D’s other sex crimes admissible if D accused of committing it again
Relevant for any purpose and may include acts, but must give D notice 15 days before trial

Question 16

Excluding Otherwise Relevant Evidence

Answer 16

Probative value substantially outweighed by unfair prejudice (403)
Liability insurance
Remedial measures
Settlement offers
Withdrawn guilty pleas
Offers to pay medical expenses

Question 17

Writings - Authentication

Answer 17

Requires proof that writing is what proponent claims (support jury finding it genuine)

Question 18

Writings - Authentication - Forms of Proof

Answer 18

Pleadings, stipulation, opponent’s admission, eyewitness testimony, handwriting verification (lay person, expert, or jury), ancient docs (20+ yrs), reply letter, photos/videos (accurate portrayal of relevant facts), Xray/electrocardiograms (validity of process + custodial chain)

Question 19

Authentication - Oral Statements

Answer 19

Voice – anyone who has heard voice, including after litigation began
Telephone – party to call testifies that they recognized other voice, speaker had particular knowledge, they called that person’s number, or they called a business and talked with the person about business

Question 20

Authentication - Self-Authenticating Documents

Answer 20

Public docs with a seal, official publications, certified records, newspapers, trade labels, notarized docs, commercial papers, business records, and data

Question 21

Best Evidence Rule

Answer 21

If proving content of writing, the original must be produced if terms are material
Secondary evidence admissible only with a satisfactory excuse
Doesn’t apply if witness has personal knowledge of facts to be proved

Question 22

Best Evidence Rule - Defining an Original

Answer 22

An original is the writing intended by author to have the same effect as original
Duplicates may be valid unless it is unfair or there are questions about authenticity

Question 23

Best Evidence Rule - When Secondary Evidence is Admissible

Answer 23

Satisfactory explanation re nonproduction of OG
Valid: loss/destruction (not bad faith), cant be obtained through judicial process, possession of adversary who fails to produce

Question 24

Best Evidence Rule - Exceptions

Answer 24

Summaries of huge records, certified public records, writing is collateral, testimony/written admission of opponent

Question 25

Best Evidence Rule - Court vs Jury Decisions

Answer 25

Court determines admissibility of duplicates/oral testimony re contents of original Jury determines existence of OG, whether doc is OG, and whether evidence is accurate reflection of OG

Question 26

Real Evidence - Requirements for Use

Answer 26

Must be relevant AND authenticated (what proponent claims)

Question 27

Real Evidence - Authentication

Answer 27

Authenticated via testimony of witness that they recognize it, or evidence of chain of possession (standard: sufficient to support jury finding) Maps/models > faithful reproductions; demonstrations > conditions similar + no dramatization; exhibition of injuries > allowed unless 403; jury view of scene > trial judge discretion

Question 28

Witnesses - Competence

Answer 28

Witness are generally presumed to be competent until contrary established Must have evidence sufficient to support finding that witness has personal knowledge AND witness gives oath to testify truthfully

Question 29

Witnesses - Competence - Children

Answer 29

Judge determines capacity/intelligence case-by-case

Question 30

Witnesses - Competence - Insanity

Answer 30

May testify if understand must speak truth and can testify accurately

Question 31

Witnesses - Competence - Others

Answer 31

Judge presiding MAY NOT testify Jurors cannot testify before own jury or on matters re deliberation Dead-Man Acts: Interested person cannot testify re personal transaction with deceased if offered against reps of deceased person

Question 32

Witnesses - Form of Questioning - Leading Questions

Answer 32

Allowed only on cross (EXCEPTIONS: preliminary matters, help due to age/mental state, or witness is hostile/adverse party)

Question 33

Witnesses - Form of Questioning - Scope of Cross

Answer 33

Scope of direct + reasonable inferences drawn, matters which test credibility

Question 34

Witnesses - Using Documents to Aid - Refreshing Recollection

Answer 34

Witness may use any writing or object to refresh recollection Requires: witness claim inability to remember Doc is not offered into evidence, but witness just looks it over then testifies Adverse party may have writing produced at trial, cross witness about writing, or introduce portions of writing into evidence

Question 35

Witnesses - Form of Questioning - Improper Questions

Answer 35

Misleading, compound, argumentative, conclusionary, cumulative, harassing/embarrassing, speculation, or assume facts not in evidence

Question 36

Witnesses - Using Documents to Aid - Past Recollection Recorded

Answer 36

Witness has insufficient memory even after consult of writing > record read into evidence with proper foundation Record is read to the jury Foundation requires: witness w/ insufficient recollection, witness had personal knowledge when made, record made by witness or at their direction, made when matter fresh in mind, record accurate reflection Read into evidence and heard by jury, but not admitted into evidence unless offered by an adverse party

Question 37

Witnesses - Opinion Testimony - Lay Opinions

Answer 37

Inadmissible unless: based on perception, helpful, w/o special knowledge

Question 38

Witnesses - Opinion Testimony - Expert Opinions - Admissibility

Answer 38

Admissible if subject one where special knowledge would help, opinion is based on facts/data, opinion is from reliable methods, and opinion is reliable application of such methods to facts of case

Question 39

Witnesses - Opinion Testimony - Expert Opinions - Proper Factual Basis

Answer 39

Personal, known at trial, or supplied If facts would be inadmissible > must not disclose unless R403

Question 40

Witnesses - Opinion Testimony - Expert Opinions - Daubert Factors Re Reliability

Answer 40

Testing of principal/method, rate of error, acceptance by experts in same discipline, peer review/publication

Question 41

Witnesses - Opinion Testimony - Expert Opinions - Treatises

Answer 41

Treatises may be used to impeach experts or establish reliability

Question 42

Witnesses - Opinion Testimony - Expert Opinions - Ultimate Issues

Answer 42

Expert generally permitted to render opinion re ultimate issue in case UNLESS criminal case where mental state is element of crime

Question 43

Witnesses - Exclusion/Sequestration

Answer 43

Upon party request, judge must order witnesses excluded Judge may not exclude party (or officer), person whose presence is essential to claim/defense, or person authorized to be there via statute

Question 44

Witnesses - Impeachment

Answer 44

Witness may be impeached by any party, including party who called them Party is not permitted to bolster a witness until they have been impeached

Question 45

Witnesses - Impeachment Methods - Prior Inconsistent Statements

Answer 45

Statement inconsistent w/ present testimony Extrinsic evidence requires proper foundation unless of opposing party, hearsay declarant, or as justice requires Admissible only for impeachment purposes UNLESS statement was under oath + opportunity for cross

Question 46

Witnesses - Impeachment Methods - Bias

Answer 46

Evidence that witness is biased/has interest > motive to lie Foundation: must be asked about the facts that show bias/interest on cross

Question 47

Witnesses - Impeachment Methods - Sensory Deficiencies

Answer 47

Showing (cross/extrinsic) that perception/recollection were impaired so they could not have perceived those facts (or had no knowledge to begin with) No foundation requirement

Question 48

Witnesses - Impeachment Methods - Contradiction

Answer 48

Cross: can try to make witness admit they lied/mistaken re a fact on direct If witness admits: impeached by contradiction If witness doesn’t, extrinsic evidence allowed unless fact is irrelevant

Question 49

Witnesses - Impeachment Methods - Character for Untruthfulness - Op/Rep

Answer 49

Opinion/reputation evidence: allowed to suggest person does not tell truth; Character witnesses may testify re reputation or opinion, but not specific acts

Question 50

Witnesses - Impeachment Methods - Character for Untruthfulness - Prior Convictions

Answer 50

Crimes involving dishonesty Felony not involving dishonesty: criminal D > exclude if R403; civil D > admit unless 403 Remote convictions over 10+ years are inadmissible > can admit in extraordinary circumstances if R403 and notice No foundation requirements Conviction cant be used if pardoned (and based on rehab w/no relapse or innocence)

Question 51

Witnesses - Impeachment Methods - Prior bad acts involving untruthfulness

Answer 51

Witness may be crossed re act of misconduct probative of truthfulness Extrinsic evidence is NOT permitted, but can refer to consequences May not inquire into arrests

Question 52

Witnesses - Impeachment Methods - Hearsay Declarant

Answer 52

Can be attacked/supported by evidence admissible if they had testified Party against whom statement is offered may call declarant & cross Inconsistent statement of declarant may be offered into evidence

Question 53

Witnesses - Impeachment Methods - Rehabilitation of Impeached Witness

Answer 53

Explanation on redirect Rep/opinion of good character for truthfulness Prior Consistent Statement (before alleged motive)

Question 54

Hearsay - Defined

Answer 54

Statement made out of court offered to prove the truth asserted Statement is an oral/written assertion or conduct intended as one Excluded bc lack of opportunity for contemporaneous cross-examination and memory is faulty

Question 55

Hearsay - Non Truth Purposes

Answer 55

Verbal acts/legally operative facts (“I heard David say, ‘I accept’”) Show effect on reader (“I heard them tell the manager”) Circumstantial evidence of state of mind (“I plan to work from home”)

Question 56

Hearsay - Non-Hearsay Under Federal Rules (EXEMPTIONS)

Answer 56

Prior Statements of Testifying Witnesses Statements by Opposing Party

Question 57

Hearsay - Non-Hearsay Under Federal Rules - Prior Statement of Testifying Witness

Answer 57

Admissible if prior statement by testifying witness subject to cross AND is (1) prior identification, (2) inconsistent with testimony and under oath, or (3) statement rebuts charge of lying bc motive or rehabilitates impeached witness credibility

Question 58

Hearsay - Non-Hearsay Under Federal Rules - Opposing Party Statement

Answer 58

Admissions of a party-opponent Judicial statements: formal > cannot contradict; informal > explained at trial Adoptive statements: party adopts statement, silence may count if reasonable person would deny (UNLESS POLICE ASKING) Vicarious statements: attributable through relationship (spokespersons, agents/employees within scope and during relationship, partners, co-conspirators in furtherance)

Question 59

Hearsay - Exceptions - Declarant Unavailable - Unavailability

Answer 59

Unavailable due to: death, privilege, refusal, doesn’t remember, absent DOESN’T COUNT if proponent caused unavailability

Question 60

Hearsay - Exceptions - Declarant Unavailable - List

Answer 60

Former Testimony Statement Against Interest Dying Declaration Statement of Personal/Family History Statement Offered Against Party Procuring Declarant's Unavailability

Question 61

Hearsay - Exceptions - Declarant Unavailable - Former Testimony

Answer 61

Testimony under oath in case AND party against whom it is offered had opportunity/motive to direct/cross/examine declarant

Question 62

Hearsay - Exceptions - Declarant Unavailable - Statement Against Interest

Answer 62

Statement against a person’s monetary, property, or criminal interest such that a person wouldn’t have made unless believed true

Question 63

Hearsay - Exceptions - Declarant Unavailable - Dying Declarations

Answer 63

Homicide or civil > if declarant believed death was imminent and statement was re cause/circumstances of impending death

Question 64

Hearsay - Exceptions - Declarant Unavailable - Statement of Personal/Family History

Answer 64

Member of family/intimately associated AND based on personal knowledge of facts or family reputation

Question 65

Hearsay - Exceptions - Declarant Unavailable - Statement Offered Against Party Procuring Declarant's Unavailability

Answer 65

Statement of declarant always admissible

Question 66

Hearsay - Exceptions - Declarant's Availability Immaterial - List

Answer 66

Excited Utterance Present Sense Impression Present State of Mind Statement Made for Medical Diagnosis/Treatment Business Records Official Records/Writings Recorded Recollection Learned Treatises Ancient Docs Documents Affecting Property Interests Reputation Family Records

Question 67

Hearsay - Exceptions - Declarant's Availability Immaterial - Excited Utterance

Answer 67

Out-of-court statements on startling events (under stress)

Question 68

Hearsay - Exceptions - Declarant's Availability Immaterial - Present Sense Impression

Answer 68

Statement describing/explaining event/condition made while or immediately after declarant perceives (no time to lie)

Question 69

Hearsay - Exceptions - Declarant's Availability Immaterial - Present State of Mind

Answer 69

Statement of then-present state of mind or experience Motive, intent, plan / emotion, sensory, or condition

Question 70

Hearsay - Exceptions - Declarant's Availability Immaterial - Business Records

Answer 70

Made as a memo if business, made in course of business (business regularly does), made at/near time of event, and personal knowledge (of entrant or someone with duty to transmit info to entrant)

Question 71

Hearsay - Exceptions - Declarant's Availability Immaterial - Statement Made for Medical Diagnosis/Treatment

Answer 71

Describing medical history, symptoms, or cause (past or present) made for purposes of medical diagnosis or treatment

Question 72

Hearsay - Exceptions - Declarant's Availability Immaterial - Official Records/Writings

Answer 72

Records re activities of office, observations (not police) Factual findings from legal investigation not admissible against criminal D Judgements always admissible to prove entered (prior civil judgements and crim acquittals are excluded)

Question 73

Hearsay - Exceptions - Declarant's Availability Immaterial - Recorded Recollection

Answer 73

Only read into evidence, not admitted

Question 74

Hearsay - Exceptions - Declarant's Availability Immaterial - Learned Treatises

Answer 74

If treatise established as reliable authority and relied upon by expert

Question 75

Hearsay - Exceptions - Declarant's Availability Immaterial - Documents Affecting Property Interests

Answer 75

If statement is relevant to document’s purpose DOESN’T APPLY if later dealings are inconsistent

Question 76

Hearsay - Exceptions - Declarant's Availability Immaterial - Catch All Exception

Answer 76

If statement is not covered, may be admitted if: possesses sufficient guarantees of trustworthiness (totality of circumstances + evidence) and is strictly necessary (more probative than anything else) + give notice to adversary Notice includes substance and name of declarant

Question 77

Hearsay - Won't be Admitted Even with Exception

Answer 77

Offered against accused in criminal case, declarant is unavailable, statement was testimonial (sworn, to law enforcement in non-emergencies, affidavits), and accused can’t cross them pre-trial

Question 78

Privileged Testimony

Answer 78

Permits person to refuse to disclose and prohibit others from disclosing If under fed substantive law > fed common law; diversity > state law

Question 79

Privileged Testimony - Waiver

Answer 79

Failure to claim, voluntary disclosure, or contractual provision waiving

Question 80

Privileged Testimony - Attorney-Client

Answer 80

Confidential communication between atty & client during legal consult Only client can waive it, atty claims on their behalf Exceptions: crime/fraud, legal services at issue, breach of duty

Question 81

Privileged Testimony - Attorney-Client - Work Product

Answer 81

Not privileged, but not subject to discovery unless necessary

Question 82

Privileged Testimony - Spousal Immunity

Answer 82

Married person can’t be called to testify against spouse who is Defendant (or against spouse's legal interest) Must be valid marriage, privilege lasts during marriage Privilege belongs to witness-spouse, who can choose to testify NOT: for crime/fraud, legal actions, or crimes against witness spouse/child

Question 83

Privileged Testimony - Confidential Marital Communications

Answer 83

Confidential communications during valid marriage are privileged Either spouse can invoke & prevent other from disclosing Marital relationship must have existed when communication was made NOT: threats/abusive language, crime/fraud, legal actions, crime against

Question 84

Privileged Testimony - Therapist/Social Worker/Clergy

Answer 84

Similar to atty-client Must have intended communication to be confidential No privilege if patient puts their mental condition at issue

Question 85

Privileged Testimony - Governmental

Answer 85

Info not open to public may be privileged

Question 86

Privileged Testimony - Physician/Patient

Answer 86

Only state privilege Confidential if professional relationship for medical treatment, info was for purpose of diagnosis/treatment, and was necessary for that Exceptions: physical condition at issue, sought to aid in wrongdoing, relevant for breach of duty, patient waived by contract

Question 87

Procedural Questions - Burden of Production

Answer 87

Typically same as party w/ burden of pleading Sufficient to made out a prima facie case

Question 88

Procedural Questions - Burden of Persuasion

Answer 88

Proof required Civil > preponderance; criminal > beyond reasonable doubt

Question 89

Procedural Questions - Preliminary Questions - Jury

Answer 89

Prelim facts regarding whether evidence is relevant (authenticity, knowledge)

Question 90

Procedural Questions - Preliminary Questions - Judge

Answer 90

Facts on competency/admissibility of evidence (competency, privilege, hearsay exceptions) Judge can consider any non-privileged evidence even if not admissible

Question 91

Procedural Questions - Judicial Notice of Fact

Answer 91

Recognition a fact is true w/o formal evidence Because generally known OR accurately/readily determined Conclusive in civil case, but not criminal

Question 92

Procedural Questions - Presumptions

Answer 92

Rule that requires inference be drawn from facts (substitute for proof) Shift burden of production to party against whom presumption operates Examples: mail delivery, death if absent 7+ years, against suicide, legitimacy, sanity, driver as owner of car, proper performance of duties, continued existence, solvent, marriage, bailee’s negligence

Question 93

Procedural Questions - Judicial Notice of Law

Answer 93

Federal and State Law, municipal, Congress, etc.

Question 94

Procedural Questions - Rule of Completeness

Answer 94

When introducing party of statement, adverse party can require evidence of any other part (or related statements) that should be considered too (fairness)

Question 95

Procedural Questions - Limited Availability

Answer 95

Evidence may only be admissible for specific purpose, so court can instruct jury Limiting instruction if it would be sufficient If limiting instruction insufficient, can exclude if 403

Question 96

Procedural Questions - Rulings on Evidence

Answer 96

Appeal: Party may claim error if it affects substantive right of party; if evidence is admitted, party had to make timely motion Court can take notice of plain error even if not properly preserved

Question 97

Rule 403 Balancing Test

Answer 97

Court may exclude relevant evidence ONLY if probative value is substantially outweighed by danger of unfair prejudice, confusion of issues, misleading jury, undue delay, waste of time, repetitive evidence Favors admission

Question 98

Reverse Rule 403 Balancing Test

Answer 98

Court may admit relevant evidence ONLY IF probative value substantially outweighs danger of unfair prejudice, confusion of issues, misleading jury, undue delay, waste of time, repetitive evidence Favors exclusion