Evidence

Question 1

Relevance Elements

TPCA

Answer 1

Relevance Elements (TPCA, Tendency, Probable, Consequence, Action):
The evidence has a tendency to make a fact more or less probable, AND
The fact is of consequence in determining the action

Question 2

Self-Authenticating Documents

PCP IAC

Answer 2

Self-Authenticating Documents (PCP IAC, Public, Certified, Publications, Inscription, Acknowledged, Commercial)
Public Documents with official’s signature & authorized by official or seal
Certified copies of public records & records of regularly conducted activities
Newspapers, periodicals, & official publications
Documents with trade inscription
Acknowledged documents
Commercial papers, including signature, and related documents

Question 3

Authentication of a machine-generated image of “unseeable” things, like an X-Ray

PWQC

Answer 3

Authentication of a machine-generated image of “unseeable” things, like an X-Ray (PWQC, Process, Working, Qualified, Custody):
Evidence showing accurate process was used
Evidence showing the machine was working properly
Evidence showing the machine operator was qualified
Evidence showing chain of custody

Question 4

After using a writing to refresh witness’s recollection, adverse party may…

ICP

Answer 4

Using a Writing to Refresh a Witness’s Recollection
A party may use a writing to refresh a witness’s recollection when
The witness once had personal knowledge of a fact or event but is now unable to recall it and
The writing will help the witness recall that information
The adverse party may then (ICP, Inspection, Cross, Portion)
Have the writing produced for inspection
Cross-examine the witness about the writing, and
Introduce into evidence any portion of the writing that relates to the witness’s testimony, e.g. to impeach the witness

Question 5

Exceptions to inadmissibility of certain plea negotiations

WAP

Answer 5

Pleas, Plea Discussions & Related Statements
NOT admissible against defendant:
Withdrawn guilty plea
Nolo contendere plea
Statements made during proceeding on above pleas
Statements made during plea discussions with prosecuting attorney
Exceptions (WAP, Waives, Another, Perjury)
Defendant knowingly & voluntarily waives protection
Another statement is properly introduced and statements should be considered together
Criminal proceeding for perjury or false statement if statement made under oath, on record, with counsel present

Question 6

Witness’s Prior Inconsistent Statement.
Which purposes are admissible?

And
How to introduce a witness’s prior inconsistent statement?

EEAQJ

Answer 6

Witness’s Prior Inconsistent Statements
Used for Impeachment
Always admissible to discredit witness’s trial testimony
Used as Substantive Evidence
Admissible to prove truth only if excluded or excepted from hearsay
How to Introduce (EEAQJ, Examining, Extrinsic, Address, Question, Justice)
Examining witness about prior statement
Introducing extrinsic evidence if:
Witness can address & opposing party can question witness about statement OR
Justice so requires

Question 7

Past Recollection Recorded Requirements - When a witness has inadequate memory to testify about a matter for which a record exists, the witness may read the record to the jury if

TRFK

Answer 7

Past Recollection Recorded Requirements - When a witness has inadequate memory to testify about a matter for which a record exists, the witness may read the record to the jury if (TRFK, Testifies, Reflects, Fresh, Knowledge):
The record concerns a matter about which the witness once had knowledge
The record was prepared or adopted by witness when the matter was fresh
The record accurately reflects the witness’ knowledge; AND
The witness testifies he has insufficient memory of the event to testify fully and accurately (even after consulting the writing while on the stand)
If the past recollection recorded is an audio recording, it can be played for the jury rather than read into the record by the witness

Question 8

In what types / stages of proceedings are the Federal Rules of Evidence suspended / inapplicable

QG B PEPSI

Answer 8

Exceptions to Application of Federal Rules of Evidence (QG B PEPSI, Quick Get Bob a PEPSI, Question, Grand, Preliminary, Extradition, Probation, Sentencing, Issuance):
Court’s determination of a preliminary question of fact governing admissibility
Grand jury proceedings; and
Criminal proceedings for:
Issuance of a search warrant or a criminal summons
Preliminary examination in a criminal case
Extradition or Rendition
Consideration of bail or other release
Sentencing; and
Granting or revoking probation or supervised release

Question 9

Judge’s Preliminary Questions of Fact (

PHAQ

Answer 9

Judge’s Preliminary Questions of Fact (PHAQ, Privilege, Hearsay, Admissibility, Qualified):
Admissibility of Evidence
Whether a privilege exists
Whether a person is qualified to be a Witness
Hearsay Exception

Question 10

Preliminary Hearings Are Conducted outside the presence of the jury in three circumstances

CRU

Answer 10

Preliminary Hearings Are Conducted outside the presence of the jury in three circumstances (CRU, Confession, Request, Unfair)
When the issue is the admissibility of a confession in a criminal trial
When the defendant in a criminal case is a witness and makes that request; and
When the interests of justice otherwise require (unfair prejudice to a party)

Question 11

Some witness may not be excluded from courtroom

SPRE

Answer 11

Some witness may not be excluded (SPRE, Statute, Person, Representative, Essential)
A party who is a natural person
An officer or employee of a party that is not a natural person if that officer or employee has been designated as the party’s representative by its attorney
A person who is permitted by statute to remain in the courtroom, or
Any person whose presence is essential to a party’s presentation of its case

Question 12

Evidence is relevant if it is both

MP

Answer 12

Evidence is relevant if it is both (MP, Material, Probative):
Material (related to some issue in the case) and
Probative (having a tendency to prove or disprove some fact)

Question 13

Risks that might substantially outweigh probative value

WUMC

Answer 13

Risks that might substantially outweigh probative value (WUMC, Waste, Unfair, Misleading, Confusion):
Confusion of the issues,
Unfair prejudice,
Misleading the jury, or
Waste of time

Question 14

“Mimic” evidence - not used for character propensity argument; used for some other purpose

MIMIC

Answer 14

“Mimic” evidence - not used for propensity argument; used for some other purpose (MIMIC, Motive, Intent, Mistake, Identity, Common):
Motive - prior acts (particularly criminal acts, because these are otherwise not usually admissible) can be introduced as evidence if they form a motive for the current allegation (prior criminal act that is being covered up by current criminal act)
Intent - prior acts such as a history of selling drugs can be used to show that the defendant’s current possession of drugs was likely intended to be used for sale
Absence of mistake - if defendant is claiming that current criminal allegation was a mistake, prior similar “mistakes” can be introduced to show a pattern that reduces the strength of the mistake claim
Identity, Modus Operandi - if defendant’s crime is similar to crimes previously committed by the defendant in a way that helps identify him, these prior acts are admissible
Common plan or scheme - if defendant’s present crime is only understandable in the context of prior crimes, these prior crimes may be admissible

Question 15

Habit Evidence

CROCE

Answer 15

Habit Evidence (CROCE, Conformity, Routine, Organization, [no] Corroboration, [no] Eyewitness)
Allowed to prove action in conformity with the habit
Something that is routine, regular, or automatic
Can also be the habit of an organization
Does not require corroboration or eyewitness

Question 16

Standards of Proof

PCB

Answer 16

Standards of Proof (PCB, Preponderance, Clear, Beyond)
Preponderance of the evidence
Clear and Convincing Evidence
Beyond a Reasonable Doubt

Question 17

Subjected to a Competency Test to Determine if

RNA

Answer 17

Subjected to a Competency Test to Determine if (RNA, Recall & Narrate, Appreciates)
Able to recall & narrate the occurrence, AND
Appreciates the importance of the truth

Question 18

Specific Evaluation for a Child’s Competence

IF IT

Answer 18

Specific Evaluation for a Child’s Competence (IF IT, Intelligence, Falsehood, Importance, Truth)
Child’s intelligence
Ability to differentiate between truth and falsehood, AND
Understanding of the importance of telling the truth

Question 19

Dead Man’s Statute

Answer 19

Dead Man’s Statute (not included in the FRE) - limits the ability of witnesses to testify about transactions with people who are deceased
The key word is TESTIFY. Evidence can still be admitted about the deceased party’s transactional participation, but not in the form of testimony from a surviving party to the contract.
Dead Man’s Statutes do not not apply in criminal cases
In civil cases, a party with a financial interest in the outcome of a case is not permitted to testify adversely about a communication or transaction with a person whose estate is a party to the case
Rationale is to protect a decedent’s estate from parties who claim the decedent said or did something that affects the financial outcome of the case. Federal Rules do not include a Dead Man’s Statute, and thus may arise when the federal court applies state law

Question 20

Exceptions - a juror may testify after trial about whether

OIVEPIR

Answer 20

Exceptions - a juror may testify after trial about whether (OIVEPIR, Outside Influence, Verdict, Extraneous Prejudicial Information, Racial):
Extraneous, prejudicial information was improperly brought to the jury’s attention (i.e. provided with inadmissible evidence)
An outside influence was improperly brought to bear on a juror (i.e. a juror was bribed or threatened)
A clerical or technical error was made in entering the verdict onto the verdict form; OR
A juror made a clear statement that relied on racial stereotypes or animus in convicting a defendant

Question 21

Specific Acts Are Admissible In Criminal Cases When

EPC

Answer 21

Specific Acts Are Admissible In Criminal Cases When (EPC, Element, [non-]Propensity, Cross):
Character is an essential element of a charged crime (or a defense) and a defendant offers specific acts inconsistent with the crime
Non-propensity purpose (MIMIC Evidence - Motive, Intent, Absence of Mistake, Identity, Common plan); AND
When a character witness is asked on cross-examination about specific acts committed by the person about whom the witness is testifying

Question 22

If more than ten years have elapsed since the conviction (or release from confinement, whichever is later), than evidence of the conviction is admissible only if

NO

Answer 22

If more than ten years have elapsed since the conviction (or release from confinement, whichever is later), than evidence of the conviction is admissible only if (NO, Notice, Outweighs):
The probative value of the conviction, supported by specific facts, substantially outweighs its prejudicial effect; and
The proponent gives an adverse party reasonable advance notice in writing

Question 23

Impeachment by Evidence of Juvenile Adjudication - only permitted when

CAN D

Answer 23

Impeachment by Evidence of Juvenile Adjudication - only permitted when (CAN D, Criminal, Adult’s, Necessary, Defendant):
Not used against to impeach a defendant
Is offered in a criminal case
An adult’s conviction for that offense would be admissible to attack adult witness’s credibility
Admitting the evidence is necessary to fairly determine guilt or innocence
Such evidence is NEVER admissible against a defendant, even if extremely probative and/or used for impeachment. Only a non-defendant witness can be impeached by evidence of a juvenile adjudication

Question 24

Opinions from lay witnesses are admissible with respect to common-sense impressions, such as appearance, intoxication, speed, etc.
To be admissible, a lay witness’s opinion must be

BU

Answer 24

Opinions from lay witnesses are admissible with respect to common-sense impressions, such as appearance, intoxication, speed, etc.
To be admissible, a lay witness’s opinion must be (BU, Based, Understanding):
Rationally based on the perception of the witness; and
Helpful to a clear understanding of the witness’s testimony or the determination of a fact in the case

Question 25

An expert witness may offer opinions or conclusions if

STFU

Answer 25

An expert witness may offer opinions or conclusions if (STFU, Scientific, Technical, Fact, Understand):
The subject matter is scientific, technical, or other specialized information; AND
It will help the trier of fact understand the evidence or determine a fact in issue

Question 26

Courts require that the expert expert

FRAQ

Answer 26

Courts require that the expert expert (FRAQ, Facts, Reliable, Apply, Qualified):
Be qualified by knowledge, skill, experience, training, or education
Base his testimony on sufficient facts or data;
Base his testimony on reliable principles and methods; and
Apply the principles and methods reliably to the facts of the case

Question 27

Tangible Real Evidence (a thing) - Ways to Authenticate

KFC

Answer 27

Tangible Real Evidence (a thing) - Ways to Authenticate (KFC, Knowledge, Features, Custody):
Personal knowledge - testimony of a witness that recognizes and identifies the item
Distinctive features or markings
Chain of custody - technique accounting for the whereabouts of an item along an unbroken chain

Question 28

Handwriting verification

SPK

Answer 28

Handwriting verification (SPK, Sample, Personal Knowledge)
Expert or jury comparing it to a known sample or
Lay witness with personal knowledge of the handwriting (from before the current litigation)
The familiarity with the handwriting at issue cannot be formed during preparation for litigation

Question 29

Telephone conversations voice verification

BRIF

Answer 29

Telephone conversations voice verification (BRIF, Business, Recognized, Identified, Facts)
Caller recognized the speaker’s voice
The speaker knew facts that only a particular person would know
The caller dialed the number believed to be the speaker’s and the speaker identified himself upon answering the phone
The caller dialed a business and spoke with a person who answered questions about business regularly conducted over the phone
A voice can be identified by any person who has heard the voice at any time, including one made familiar solely for the purposes of litigation

Question 30

Best Evidence Rule is Implicated and Requires Original Document When

RC

Answer 30

Best Evidence Rule is Implicated and Requires Original Document When (RC, Relying, Contents:
Witness is relying on the document when testifying, OR
The contents of the document are at issue

Question 31

Best Evidence Exceptions - May introduce other evidence of the contents if

ROCKFLD

Answer 31

Best Evidence Exceptions - May introduce other evidence of the contents if (ROCKFLD, Related, Obtained, Control Knew Failed, Lost, Destroyed):
The original has been lost or destroyed (unless done by the proponent in bad faith);
The original cannot be obtained by any judicial process; or
The party against whom the document is introduced
Had control of the original
Knew that it was going to be at issue at trial, AND
Failed to produce it at trial or hearing
OR
The document is not closely related to a controlling issue

Question 32

Work Product is not subject to discovery UNLESS

DH

Answer 32

Work Product is not subject to discovery UNLESS (DH, Demonstrate, Hardship):
The party can demonstrate a substantial need for the information; and
Show that it cannot otherwise be obtained without undue hardship

Question 33

Exceptions to Physician-Patient Privilege - privilege does not apply if

RIDA

Answer 33

Exceptions to Physician-Patient Privilege - privilege does not apply if (RIDA, Reasons, Illegal, Dispute, Agreed):
The information was for reasons other than treatment
The communication was made for some illegal purpose
A dispute exists between the doctor and patient; or
The patient agreed to waive the privilege
If physical injury is at issue in a lawsuit, the patient is, in some jurisdictions, considered to have waived her privilege inasmuch as it relates to the injury at issue

Question 34

Non-Hearsay If Offered

I RIMES

Answer 34

Non-Hearsay If Offered (I RIMES, Identity, Rehabilitate, Impeach, Mind, Effect, Statement):
To prove that a statement was made
To show effect on recipient
Circumstantial evidence of the declarant’s state of mind
Circumstantial evidence of identity
Solely to impeach or rehabilitate

Question 35

Prior Statements Elements -Admissible non-hearsay when

T CrITes CoRFaIn RCI

Answer 35

Prior Statements Elements -Admissible non-hearsay when (T CrITes CoRFaIn RCI, Testfies Cross, Inconsistent Testimony, Consistent Rebut Fabrication or Influence, Rehabilitate Credibility, Identifies):
The declarant testifies and is subject to cross-examination at trial, AND
The declarant’s statement satisfies one of the following:
It is inconsistent with the declarant’s testimony and was given under penalty of perjury at a trial, hearing, deposition, or other proceeding
It is consistent with the declarant’s testimony and offered to
Rebut an allegation that the declarant recently fabricated that testimony, OR
Rebut an allegation that the declarant has testified due to recent improper influence, OR
Rehabilitate the declarant’s credibility when attacked on other grounds,
OR
It identifies a person as someone the declarant perceived earlier

Question 36

“Unavailable” if the declarant

REMeDeS

Answer 36

“Unavailable” if the declarant (REMeDeS, Refuses, Exempted, Memory, Dead, Subpoenaed):
Is exempted from testifying on grounds of privilege
Refuses to testify
Lacks memory of the subject matter
Is dead or too ill; or
Is absent and cannot be subpoenaed or otherwise made available

Question 37

Hearsay Exceptions when Declarant Unavailable

D FACT

Answer 37

Hearsay Exceptions when Declarant Unavailable (D FACT, Dying, Family, Against, Caused, Testimony)
Former Testimony
Given by an unavailable witness under oath at a prior hearing or deposition
Admissible in a subsequent trial if the party against whom the testimony is being offered had an opportunity and similar motive to develop the testimony by direct or cross-examination at the prior trial, deposition, or hearing
Dying Declarations
Requirements:
Individual believes she is dying
Individual believes death is imminent; and
Statement relates to the cause or circumstances of death
Admissible in a homicide case or a civil case
The declarant does not actually have to die
The declarant must be unavailable in some way

Question 38

Statements Against Interest

TMRT

Answer 38

Statements Against Interest (TMRT, Teenage Mutant Retarded Turtles, Time Made, Reasonable True)
At the time it was made, the statement was against the declarant’s pecuniary, proprietary, civil, or penal interest,
Such that a reasonable person would not have made the statement unless it were true
Exonerating Statements:
Statements that would subject a declarant to criminal liability are not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement
Do not confuse with party admissions. There is no “against interest” requirement in the party admissions doctrine and the statement against interest exception is not limited to parties
Statements of Personal or Family History
Statements concerning the unavailable declarant’s own birth, adoption, marriage, familial relationship, etc. are admissible under this exception
Forfeiture by Misconduct (Declarant Unavailable Due to Party’s Wrongdoing)
If a party engages in wrongdoing for the purpose of making the declarant unavailable to testify, and renders the declarant unavailable, then:
The party cannot claim the declarant is unavailable, and
The door is open to use anything the declarant said against the party

Question 39

PRIMARY Hearsay Exceptions When Declarant May Be Available OR Unavailable

PVT FARM BUMPSI JR

Answer 39

PRIMARY Hearsay Exceptions When Declarant May Be Available OR Unavailable (PVT FARM BUMPSI JR, Private Farm Bumpsi, Junior; Past, Vital, Treatises, Family, Ancient, Religious, Medical, Business, Utterance, Medical, Public, State, Impresion, Judgment, Reputation):
Present Sense Impression
Excited Utterance
State of Mind
Statement For Medical Diagnosis or Treatment
Past Recollection Recorded
Business Records
Public Records
Learned Treatises
Judgment of Previous Conviction
Record of vital statistics
Records of religious organizations
Marriage and baptismal certificates, and other family records
Statements in ancient documents
Market reports and commercial publications
Reputation

Question 40

State of Mind (mental, emotion, or physical condition)

ECC

Answer 40

State of Mind (mental, emotion, or physical condition) (ECC, Existing Condition Conformity)
Statement of a declarant’s then-existing physical, mental, or emotional condition is admissible to prove the existence of that condition
A statement of intent can be used to prove action in conformity with that event

Question 41

Past Recollection Recorded Requirements - When a witness has inadequate memory to testify about a matter for which a record exists, the witness may read the record to the jury if

TRFK

Answer 41

Past Recollection Recorded Requirements - When a witness has inadequate memory to testify about a matter for which a record exists, the witness may read the record to the jury if (TRFK, Testifies, Reflects, Fresh, Knowledge):
The record concerns a matter about which the witness once had knowledge
The record was prepared or adopted by witness when the matter was fresh
The record accurately reflects the witness’ knowledge; AND
The witness testifies he has insufficient memory of the event to testify fully and accurately (even after consulting the writing while on the stand)

Question 42

Admissible if the business record was made

DKTR

Answer 42

Admissible if the business record was made (DKTR, Duty, Knowledge, Time, Regular)
At or near the time of the event it records
By a person with knowledge of the event and under a duty to report (or transmitted by such a person); and
As part of the regular practice of the business to make that kind of record

Question 43

Judgment of Previous Conviction
Admissible to prove any fact that was essential to the judgment if

APNINA

Answer 43

Judgment of Previous Conviction
Admissible to prove any fact that was essential to the judgment if (APNINA, After, Punishable, Not Impeachment, Not Acquittal):
Entered after trial or guilty plea
Crime punishable by death or imprisonment of more than one year
Against defendant, when offered by prosecutor in criminal case for purpose that is NOT impeachment
The judgment was not an acquittal
Note: THERE IS NO EXCEPTION FOR A PRIOR JUDGMENT OF ACQUITTAL

Question 44

Testimonial statements can only be admitted against a criminal defendant if

UO

Answer 44

Testimonial statements can only be admitted against a criminal defendant if (UO, Unavailable, Opportunity):
The declarant is now unavailable; and
The defendant had a prior opportunity to cross-examine the declarant
The Confrontation Clause does NOT preclude the admission of a dying declaration as hearsay, even if the statement is testimonial

Question 45

When a photographer’s photo includes evidence of a person’s whereabouts, if the photographs are available, is the photographer permitted to testify about the contents of the photos?

Answer 45

NO. Unless the photographer can offer testimony evidence not included in the photographs.

Photographs are considered “writings” for the purposes of the best evidence rule.

If the photographs are available, the best evidence rule requires they be used as evidence and NOT testimony about their contents. If the photographs are unavailable, evidence must be introduced to explain their unavailability.

Question 46

Under the Federal Rules, when a statement by party opponent is made as part of an attempt to compromise or negotiate a settlement, is the statement admissible?

Answer 46

NO. Any statements made during the negotiations of a settlement or a compromise regarding a dispute are NOT admissible, even if the statement at issue is not itself an offer of settlement. So long as the statement “accompanied” the offer to compromise or settle, it is swallowed up in the inadmissibility of the statements regarding compromise or settlement negotiations.

Question 47

Can a criminal defendant be impeached by character evidence for truthfulness by evidence of a past conviction 9 years earlier for a misdemeanor involving fraud?

Answer 47

YES.

ANY witness can be impeached with evidence that he has been convicted of ANY crime if it involves dishonesty or false statement, so long as the conviction or release from confinement (whichever is later) was within the past 10 years.

Question 48

Can an expert witness psychologist testify as to his opinion about whether a criminal defendant had the requisite mental state of any element of a crime charged or a defense?

Answer 48

NO.

An expert witness psychologist can testify only as to whether the defendant has the capability of forming the requisite mental state, not whether the defendant ACTUALLY had the requisite state when the crime was committed. This determination is left entirely to the triers of fact to establish.

Question 49

Is a grand jury testimony considered prior testimony for the purposes of a hearsay exclusion?

Answer 49

NO.

Grand jury testimony can be admissible as a prior inconsistent statement, but because the witness could not be cross-examined during the grand jury proceedings, it does not meet the qualifications of prior testimony.

Question 50

Hearsay Exceptions that require the declarant to be unavailable

D FACT

Answer 50

D FACT
Dying Family Against Caused Testimony

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 Unavailability

Question 51

When are past convictions admissible against a defendant as non-character evidence?

MIMIC

Answer 51

MIMIC
Motive Intent Mistake Identity Common

Motive - prior acts (particularly criminal acts, because these are otherwise not usually admissible) can be introduced as evidence if they form a motive for the current allegation
Intent - prior acts such as a history of selling drugs can be used to show that the defendant’s current possession of drugs was likely for sale and not for use
Absence of Mistake - if defendant is claiming the current criminal allegation was the result of a mistake, a prior pattern of similar “mistakes” can be introduced to show that the pattern is not mere coincidence
Idenity / Modus Operandi - if defendant’s crime is similar to crimes previously committed by the defendant in a way that helps identify him, these prior acts are admissible
Common Plan or Scheme / Opportunity - if defendant’s present crime is only understandable in the context of prior crimes, these prior crimes may be admissible

Question 52

Can a lawyer ask leading questions during cross-examination of the lawyer’s own client?

Answer 52

NO.

Leading questions can generally be asked during cross-examination, but not when the attorney conducting cross examination is doing so to his own client.

Question 53

Can a dying declaration be used as evidence in a non-homicide criminal case?

Answer 53

NO.

A dying declaration can only be used in a homicide or civil case. However, the unavailability of the witness does not need to be due to the homicide.

Question 54

In a trial regarding whether an employee is an at-will or an employee who can only be terminated for cause, is testimony that the CEO told the employee that they were doing a good job admissible?

Answer 54

NO.

Evidence pertaining to an employee’s job performance in a trial regarding only the employee’s type of employment is irrelevant.

Question 55

The Fairness factor of the Rule of Completeness

Answer 55

If Fairness does not require the immediate introduction of a piece of a correspondence, the party seeking to admit the correspondence must wait to present evidence in order to introduce the correspondence.

The rule of completeness permits a party to compel the introduction of a statement that in fairness should be considered at the same time as an admitted writing or recorded statement.

Question 56

Exclusion of witnesses from the courtroom: can an investigating officer be excluded from the courtroom by the defendant’s request in a criminal trial?

Answer 56

NO.

Under the exception to the exclusion of witnesses rule, a representative of a non-natural person party cannot be excluded. This exception extends to the lead investigating officer as the representative of the state prosecuting the case.

Question 57

When must expert witnesses be disclosed to the opposing party?

Answer 57

At least 90 days before the set of trial.

Failure to timely disclose will result in the failing party’s use of the expert witness to be prohibited.

However, if an untimely (late) disclosure is justified or harmless, this prohibition will be waived.

Question 58

When an expert witness uses or refers directly to exact language in a treatise (a book, periodical, etc.) as part of their testimony, what is admitted into evidence?

RADC

Answer 58

RADC
Reliable Authority Direct Cross

A statement contained in published treatises or periodicals on a subject of history, medicine, or other science or art is admissible if:
1. The treatise is established as a reliable authority by the testimony of a witness, expert, or by judicial notice, and
2. An expert relied on it during direct examination or it was brought to the expert’s attention on cross examination
When these requirements are met, the STATEMENT contained in the treatise used by the expert may be READ into evidence, and may be used as SUBSTANTIVE evidence and for IMPEACHMENT purposes.
The treatise itself, however, is NOT admitted into evidence

Question 59

If being asked to tesify as to whether a certain handwriting sample is his handwriting and the defendant invokes the 5th Amendment, from what evidence is the 5th Amendment protecting the defendant?

Answer 59

Testimony as to whether the handwriting is his. The handwriting itself is probably not testimonial, especially if it was created for the purpose of trial and said nothing important. Testifying that the handwriting belongs to the defendant IS testimonial, though.

Question 60

When is evidence of a defendant’s character admissible in a civil case to prove the defendant acted in conformity with that character trait?

Answer 60

Only when the defendant’s character is an essential element of a claim or defense.

For example, evidence of a defendant’s reputation for “peacefulness” would not be admissible in a civil case for battery because a characteristic of “peacefulness” is not an element of battery. If a self-defense defense was raised, however, the evidence could be introduced to show who the initial aggressor might have been, if that is at issue.

Question 61

What is the reply letter doctrine of evidence authentication?

RR

Answer 61

ReCUR
Response Content Unlikely Recipient

A reply letter can be authenticated by establishing that the document qualifies as a reply letter.

This is accomplished by showing that:

1. The document was written in response to an earlier communication AND
2. The contents make it unlikely that the response was written by someone other than the recipient of the earlier communication

Question 62

Are documents referred to as an answer to an interrogatory admissible, insofar as the bar against hearsay is concerned?

Answer 62

YES.

The contents in a document that is referred to in an interrogatory is considered an “adopted statement” and therefore it is not hearsay, because interrogatory reponses from an opposing party is not hearsay as “statement made by opposing party.”

Question 63

What is the specificity requirement of habit evidence?

Answer 63

In order for evidence of a person’s conduct to be admissible as habit evidence, the evidence must be sufficiently specific

Question 64

What is an equitable servitude and how is it enforced?

RSPNL

Answer 64

RSPNL
Restriction Successors Purchaser Notice Land

An equitable servitude is a nonpossessory property right created when:

1. There is an intent that a land use restriction is to be enforceable
2. Not only by parties to the agreement but also by their successors-in-interest
3. The person against whom the servitude is to be enforced is a purchaser
4. The person has actual, constructive, or inquiry notice of the servitude
   AND
5. The servitude touches and concerns the land

Equitable servitudes can be enforced by injunctions

Question 65

What is a negative easement?

Answer 65

A negative easement prevents the owner of the servient estate from taking action, typically when it relates to a restriction of light, air, support, or stream water from an articial flow/

Question 66

What is the remey for the violation of a real covenant?

Answer 66

Monetary damages.

This is in contrast to equitable servitudes, which are enforceable via injunctions

Question 67

Is a prior inconsistent statement made under penalty of perjury at trial, hearing, or depositon admissible as substantive evidence?

Answer 67

YES.

A prior inconsistent statement made under oath may be admissible to impeach the declarant’s credibility and as substantive evidence.

Question 68

When former co-clients become involved in a dispute and become adverse to one another, what happens to the attorney-client privilege protection over communications they were both involved in?

Answer 68

The privilege does not apply to communications between former co-clients who are now adverse to each other. These statements are now admissible, provided they are not excluded for some other reason.

Question 69

Does an affidavit qualify as the hearsay exception of “former testimony?”

Answer 69

NO.

The former testimony hearsay exception requires that the declarant was able to be cross-examined at the time the testimony was made. An affidavit does not permit cross-examination.

Question 70

When privileged documents are inadvertently disclosed to an opponent, what must the privilege-claiming party do to avoid waiving privilege over the disclosed documents?

DIPP

Answer 70

DIPP
Disclosure Inadvertent Prevent Prompt

Disclosure does NOT waive privilege IF:
1. Disclosure was made in federal proceeding or to federal agency
2. Disclosure was inadvertent
3. Privilege holder took reasonable steps to prevent disclosure
AND
4. Privilege holder promptly took reasonable steps to rectify error

Question 71

When does a waiver of privilege extend to related privileged documents?

IST

Answer 71

IST
Intentional Same Together

Waiver does NOT extend to undisclosed communication or information UNLESS:
1. Waiver was intentional
2. Disclosed & undisclosed communications or information concern same subject matter
AND
3. Communicatons or information ought, in fairness, to be considered together

Question 72

When must an objection be made to challenge evidence admitted or excluded?

Answer 72

An Objection or Motion to Strike is timely if it is MADE AT THE FIRST OPORTUNITY.

Evidence Admitted:
Opponent of evidence must:
1. Timely object or move to strike AND
2. Unless apparent from context, state specific ground(s) for objection or motion

Evidence Excluded:
Proponent of evidence must:
1. Obtain definitive ruling
AND
2. Unless apparent from context, make timely offer of proof

Question 73

What is the standard of proof required to authenticate physical objects used as evidence?

Answer 73

Whether there is sufficient evidence to support a finding that the items are what the proponent claims them to be.

Question 74

Prior inconsistent statements are always admissible as impeachment evidence. WHEN are prior inconsistent statements admissible as substantive evidence?

Answer 74

Only when the statement is also excepted or excluded from hearsay

Question 75

Who is competent to introduce business records into evidence, aka lay the foundational elements of a business records exception?

Answer 75

Any witness with personal knowledge of the elements of the business records exception can introduce the business records into evidence.

The elements that must be established by personal knowledge are:
1. Records created at or near the time of the recorded event
2. Made by or based on information from someone with personal knowledge of that event; AND
3. Made and kept as regular practice in the course of regularly conducted business activites

Question 76

When can a trial court direct a party as to their mode or order of examining witness and presenting evidence?

TWP

Answer 76

TWP
Truth Wasting Protect

Court has broad discretion over its reasonable control over mode/order of examining witnesses & presenting evidence in order to:
1. Make procedures effective for determining truth
2. Avoid wasting time
3. Protect witnesses from harassment or undue embarrassment

Question 77

Can statements made in the process of negotiation a settlement or compromise to an active or potential civil suit be admitted as evidence to prove the validity of the claim in a subsequent criminal suit over the same incident?

Answer 77

NO.

Unless the negotiations involved a government regulator, investigative, or enforcement agency, statements made during those negotiations cannot be offered as evidence to prove the validity of a claim in a subsequent criminal prosecution.

Such evidence is only ever admissible (in addition to the governmental exception above):
-Proving witness bias or prejudice
-Negating contention of undue delay
-Proving effort to obstruct criminal investigation or prosecution

Question 78

Is it considered “not helpful to the jury’s clear understanding of the testimony” to offer a legal conclusion in one’s testimony?

Answer 78

YES.

To offer a legal conclusion in one’s testimony is prohibited as not being “helpful to the jury’s clear understanding of the testimony.”

Question 79

Can a judge examine a witness beyond what might be necessary to clarify the witness’s testimony?

Answer 79

YES.

Provided the judge does not assume the role of an advocate, the court may examine a witness on the stand, and may even call a witness sua sponte or at the suggestion of a party. The judge MUST permit both parties to also examine the witness.

Question 80

Which of the following self-authenticating types of evidence do not require the proponent to give the opponent notice of the evidence?
1. Business record
2. Trade inscription
3. Public document

Answer 80

The trade inscription and public document are both self-authenticating.

Copies of public records, trade inscriptions, and business records are all self-authenticating, but the proponent of a BUSINESS RECORD must give an adverse party reasonable written notice prior to the trail or hearing of the intent to offer the record and must make the record available for inspection so that the party has a fair opportunity to challenge it.

Question 81

When a defendant opens the door to evidence of the defendant’s own character, can the prosecution use specific examples to rebut this character evidence?

Answer 81

NO.

The prosecution can only use reputation or opinion testimony to rebut or introduce evidence of the defendant’s character, and only when the defendant has opened the door to it.