Evidence

Question 1

When is evidence Relevant?

Answer 1

1) When it has any tendency to make a fact more or less probable than it would be without the evidence;
AND
2) The fact is of consequence in determining the action.

*Relevant evidence is admissible unless another rule or
exclusion provides otherwise.

Priority: HIGH

Question 2

Rule 403 Exclusions

A court may exclude evidence if its probative value is outweighed by a danger of what?

Answer 2

The court may EXCLUDE relevant evidence if its probative value is substantially outweighed by a danger of:
a) Unfair prejudice;
b) Confusing the issues;
c) Misleading the jury;
d) Undue delay;
e) Wasting time; OR
f) Being needlessly cumulative.

Priority: HIGH

Question 3

When is evidence Unfairly Prejudicial?

Answer 3

When the evidence is:
1) Unnecessary;
AND
2) Might cause the jury to improperly sympathize or dislike a party.

Priority: HIGH

Question 4

When is evidence of Subsequent Remedial Measures NOT admissible?

Answer 4

To prove:
a) Negligence;
b) Culpable conduct;
c) A defect in product or design; OR
d) A need for a warning or instruction.

*But, it may be admissible to impeach or prove a disputed issue of ownership, control, or feasibility of precautionary measures.

Priority: Medium

Question 5

When are Settlement Offers and statements made during Settlement Negotiations NOT admissible?

Answer 5

a) To prove the validity or amount of a disputed claim; OR
b) To impeach by a prior inconsistent statement or contradiction.

Priority: Medium

Question 6

What Pleas and Plea Negotiations are NOT admissible in a subsequent civil or criminal case?

Answer 6

1) Statements made during plea discussions;
2) A nolo contendere plea ( D doesn’t admit or dispute the charge; OR
3) A defendant’s guilty plea that was later withdrawn.

Priority: Medium

Question 7

Evidence of paying or promising/offering to pay for medical expenses or bills is NOT admissible to prove what?

Answer 7

NOT admissible to prove liability, BUT any related
statements or factual admissions are admissible.

Priority: Medium

Question 8

Evidence of Liability Insurance is NOT admissible to prove what?

Answer 8

Culpability

(that a person acted negligently or wrongfully)

*However, a court may admit it for another purpose (i.e. proving bias/prejudice of witness or proving agency/ownership/control).

Priority: Medium

Question 9

All Evidence MUST be authenticated before being admitted.

Physical evidence may be Authenticated through what means?

Answer 9

a) Witness testimony; OR
b) By evidence that shows it has been held in a substantially unbroken chain of custody.

Priority: Medium

Question 10

All Evidence MUST be authenticated before being admitted.

Voice recordings may be Authenticated by whom?

Answer 10

By anyone who:
1) Has heard the person speak (either firsthand or electronically);
AND
2) Identified the recorded person as the speaker.

Priority: Medium

Question 11

What is the Best Evidence Rule?

Answer 11

The original writing, recording, or photograph is required to prove its content, UNLESS:
a) It is a reliable duplicate (a photocopy);
b) All of the originals are lost or destroyed and not by the offering party acting in bad faith;
c) An original cannot be obtained by judicial process;
d) It was not produced after proper notice was given to the party in control and against whom it would be offered against; OR
e) It is not closely related to a controlling issue.

Priority: Medium

Question 12

Character Evidence

Answer 12

Generally, character evidence is
NOT admissible to prove propensity (that a person acted
in conformity with a character trait on a particular
occasion).
− BUT, character evidence is generally ALLOWED
for non-propensity purposes (i.e. when character
is an ultimate issue in the case → defamation).

See below for specific rules when Character Evidence
MAY be offered as circumstantial evidence to prove
propensity.

Question 13

Character Evidence in Criminal Cases

Defendant’s Character

Answer 13

D can ALWAYS offer evidence of his own
character.

Prosecution is NOT allowed to prove D acted in
accordance with D’s character trait UNLESS D
opens the door

Question 14

Character Evidence in Criminal Cases

Victim’s character (not involving rape)

Answer 14

D can offer reputation and opinion evidence to
show victim’s character to show D’s innocence.

If D presents evidence of victim’s character,
Prosecution can offer evidence of:
(a) victim’s good character (for the same trait); or
(b) D’s bad character (for the same trait).

Question 15

Character Evidence in Criminal Cases

Victim’s character (homicide case)

Answer 15

Prosecution can show victim’s peacefulness
only if D claims victim was the aggressor (self defense).

Question 16

Character Evidence in Criminal Cases

Victim’s character (involving rape/sex offenses)

Answer 16

Generally, NOT admissible to prove victim’s
sexual behavior/predisposition.
− EXCEPTIONS → court may admit evidence:
(a) if offered to prove D was not involved in the sex
crime;
(b) of sexual relations between D and
victim to prove consent (but, Prosecutor may
offer such evidence for any reason); OR
(c) if its exclusion violates D’s constitutional rights.

Question 17

Character Evidence in Civil Cases

General Rule

Answer 17

Character evidence to prove propensity
is generally NOT admissible in a civil case.

Exceptions:
(1) when character is directly in issue (i.e defamation, negligent entrustment or hiring, child custody)
(2) victim’s character (alleged sexual misconduct case)
Victim’s sexual behavior/predisposition is
admissible if its probative value substantially
outweighs the danger of:
(1) harm to any victim; AND
(2) unfair prejudice to any party.

Victim’s reputation is admissible ONLY IF the
victim has placed it in controversy.

Question 18

Character Evidence in Civil Cases

Victim’s character (alleged sexual misconduct) Exception

Answer 18

Victim’s sexual behavior/predisposition is
admissible if its probative value substantially
outweighs the danger of:
(1) harm to any victim; AND
(2) unfair prejudice to any party.

Victim’s reputation is admissible ONLY IF the
victim has placed it in controversy.

Question 19

Character Evidence

Character evidence may be offered as circumstantial evidence to prove propensity (that a person acted in conformity with the character trait) in what limited circumstances?

Answer 19

1) Criminal cases – by defendant OR by prosecution if the defendant “opens the door”.
2) Victim’s character (except in rape cases) – to prove defendant’s innocence.
3) Homicide cases – prosecution may offer evidence of the victim’s character for peacefulness ONLY IF D claims victim was the aggressor (self-defense)
4) Sex offense cases – not admissible, unless exceptions apply.
5) Civil cases – only if sex offense cases exception applies.

Priority: HIGH

Question 20

Character Evidence

What are the exceptions in Sex Offense Cases that allow character evidence (to prove a victim’s sexual behavior or predisposition) to be admissible?

Answer 20

1) Civil cases: If its probative value substantially outweighs the danger of harm to the victim and unfair prejudice to any party. (Evidence of the victim’s reputation is admitted only if the victim placed it in controversy).

2) Criminal cases: If offered to prove the defendant was not involved in the sex crime, to prove consent, if offered by the prosecution, OR if exclusion would violate the defendant’s Constitutional rights.

Priority: HIGH

Question 21

Character Evidence

How may character evidence be proven?

Answer 21

Direct examination → opinion, reputation

Cross-examination → opinion, reputation,
specific acts.

Priority: HIGH

Question 22

Prior Bad Acts (crimes, wrongs, acts) General Rule

Answer 22

Generally NOT admissible to show propensity.

Question 23

Prior Bad Acts may be admissible for NON-PROPENSITY purposes, such as?

Answer 23

“MIMIC” + OP

Prior bad backs are admissible for non-propensity purposes:
a) Motive;
b) Identity;
c) Mistake (absence of)
d) Intent;
e) Common plan or scheme;
f) Opportunity; OR
g) Preparation.

Priority: HIGH

Question 24

What must a proponent show in order to offer Prior Bad Acts as evidence?

Answer 24

1) That the prior act was committed (by a preponderance of the evidence); AND
2) That’s the probative value substantially outweighs the danger of unfair prejudice.

Priority: HIGH

Question 25

Prior Bad Acts

Sexual Assault/Child Molestation Exception

Answer 25

prior bad acts of sex crimes are ADMISSIBLE if D is accused
of such conduct.

Question 26

Habit/Routine Practice

Answer 26

Admissible to show that a person (or organization) acted in accordance with their habit or routine practice on a particular occasion.

Habit = a regular response to a repeated situation.

Priority: HIGH

Question 27

Prior Inconsistent Statement (Impeachment)

Answer 27

If a party makes a prior statement that is inconsistent with her testimony at trial, it may be used for impeachment.

Question 28

When is extrinsic evidence of a prior inconsistent statement admissible for impeachment?

Answer 28

admissible ONLY IF:
1) Relevant to a material issue at trial (one other
than the witness’s credibility); AND
2) Proper foundation is shown (witness is first
given an opportunity to explain or deny the
statement and an adverse party is given an
opportunity to examine the witness about it).

*The above requirements DO NOT apply when extrinsic
evidence is offered against a party opponent.

Priority: Medium

Question 29

When can evidence of prior convictions be admitted into evidence for impeachment?

Answer 29

1) Prior felony or misdemeanor convictions where the crime involves dishonesty or false statement.
2) felony convictions that meet a balancing test where probative value outweighs any prejudicial effect

10 year exception: If 10-years have passed (from conviction or release from jail – whichever is later), the conviction is NOT admissible unless:
1) its probative value outweighs its prejudicial
effect; AND
2) the proponent provides reasonable written
notice to the adverse party.

*A felony is a crime punishable by death or imprisonment over 1-year.

*Evidence of a conviction is NOT admissible if it has been pardoned/annulled on a finding of innocence.

Priority: HIGH

Question 30

When can Specific Instances of Conduct (Prior Bad Acts) be admissible for impeachment?

Answer 30

A witness’s credibility may be attacked on CROSS-EXAMINATION with specific
instances of conduct (prior bad acts) ONLY IF:
(1) the conduct is probative of the witness’s character for truthfulness or untruthfulness.

*only on cross-examination

Extrinsic evidence is NOT PERMITTED. if the witness denies the misconduct, extrinsic evidence is not admissible to prove that it occurred.
(getting the witness to admit it is the only way to prove the act)

Priority: HIGH

Question 31

How can a witness’s Character for Truthfulness (credibility) be attacked or supported?

Answer 31

A witness’s credibility may be attacked or supported by:
a) Reputation testimony about the witness’s character for truthfulness untruthfulness; OR
b) Opinion testimony.

*BUT, evidence of the witness’s truthful character is
admissible ONLY AFTER ATTACKED.

Priority: Medium

Question 32

May a witness’s sensory deficiencies be used to impeach the witness?

Answer 32

Anything that concerns the witness’s perception or memory (i.e. if the witness is deaf, blind, has bad memory) can be used to suggest the witness is mistaken.

Extrinsic evidence is admissible for this purpose

Priority: Medium

Question 33

When can bias be used for impeachment?

Answer 33

if a witness is a family member, friend, enemy of a party, paid by a party, granted immunity, or if other circumstances show bias, then that. an be used to suggest the witness has motive to lie.

Extrinsic evidence may be used only if the witness is asked about the facts that suggest bias and the witness denies those facts.

Question 34

when can contradictory facts be used for impeachment?

Answer 34

A witness may be impeached during cross examination if she made a mistake or lied abut anything she aid during direct examination.

If the witness won’t admit her mistake, extrinsic evidence may be used as long as the fact at tissues is not a collateral (irrelevant) fact

Question 35

When is evidence admissible to rehabilitate a witness’s character?

Answer 35

evidence of truthful character is admissible ONLY after the witness’s truthfulness is attacked.

Question 36

When is Refreshing a Witness’s Recollection by showing them a document or record permitted?

Answer 36

When:
1) The witness once had a personal knowledge of the matter,
2) But is unable to recall the matter when testifying.

**Only the opposing party may offer the document into evidence.

Priority: HIGH

Question 37

When may a court take Judicial Notice?

Answer 37

A court may take judicial notice of indisputable facts:
a) commonly known in the community; OR
b) readily capable of verification and that cannot be
reasonably questioned.

Priority: Medium

Question 38

What is a Lay Witness?

When is Lay Witness testimony admissible?

Answer 38

is any person who gives testimony in a case that is not called as an expert.

Testimony is admissible if the witness:
1) is competent to testify (competency is
presumed unless rebutted); AND
2) has personal knowledge of the matter.

Lay witness may offer an opinion ONLY IF it’s:
1) rationally based on witness’s perception (personal knowledge);
2) helpful to clearly understand the testimony or
determine a fact (not a legal conclusion); AND
3) not based on scientific, technical, or other
specialized knowledge.

Priority: HIGH

Question 39

When is Expert Witness testimony permitted?

Answer 39

When the:
1) Witness is qualified as an expert;
2) Opinion is helpful to the jury;
3) Witness believes in the opinion to a reasonable degree of certainty;
4) Opinion is supported by sufficient facts/data;
AND
5) Opinion is based on reliable principles/methods that were reliably applied.

Reliability → is based on (1) publication and peer review, (2) error rate, (3) testability, AND (4) if it’s generally accepted in the field.

Priority: Medium

Question 40

Expert Testimony

What is reliability based on?

Answer 40

On the methodology’s:
1) Publication and peer review;
2) Error rate;
3) Testability;
AND
4) Whether it is generally accepted in the field.

Priority: Medium

Question 41

What is Hearsay?

Answer 41

1) An out of court statement,
2) That is offered to prove the truth of the matter asserted.

*Hearsay is ONLY admissible if it falls under an exception or exclusion

Statement = a person’s oral or written assertion.
− A nonverbal act is a statement if it’s intended as
an assertion.

Multiple Hearsay – each level of hearsay MUST fall
within an exception or exclusion to be admissible.

Priority: HIGH

Question 42

What is Non-Hearsay?

Answer 42

An out of court statement that is offered to prove something other than the truth of the statement. It is ADMISSIBLE.

Non-Hearsay includes:
1) Verbal acts of independent legal significance.
2) Statements to show the effect on the listener.
3) A prior inconsistent statement used to impeach.
4) Circumstantial evidence of the speaker’s state of mind.

Priority: HIGH

Question 43

Hearsay Exclusions

What is a Statement by a Party Opponent?

Answer 43

1) Any statement offered against an opposing party, AND
2) That is:
a) made by the party (or their
representative);
b) adopted or believed to be true by the party (silence may be sufficient);
c) made by an authorized person;
d) made by an agent/employee of the party acting within their scope; OR
e) made by a co-conspirator.

Priority: HIGH

Question 44

Hearsay Exclusion

Prior Statements by a declarant witness

Answer 44

A prior statement by a declarant-witness is deemed non-hearsay if:
1) Declarant testifies;
2) Declarant is subject to cross-examination
about the prior statement; AND
3) The prior statement:
a) was inconsistent with prior-testimony and given under oath in a prior court proceeding or deposition;
b) declarant identifies a person as someone they perceived earlier; OR
c) is consistent with prior testimony and is offered to either (i) rebut that the
declarant is lying, or (ii) to rehabilitate declarant’s credibility.

Priority: HIGH

Question 45

Hearsay Exclusion

Co-Conspirator Admission

Answer 45

A statement by a coconspirator is admissible when offered against another
co-conspirator if:
1) Conspiracy existed between the declarant &
defendant;
2) Statement was made during the conspiracy;
3) Statement was in furtherance of the conspiracy; AND
4) The conspiracy is proven by independent
evidence (outside the statements themselves).

Question 46

Hearsay Exceptions

What is a Present Sense Impression?

Answer 46

A statement describing an event made by the declarant:
a) While observing the event; OR
b) Immediately thereafter.

*A few minutes after the event is ok.

Priority: HIGH

Question 47

Hearsay Exceptions

What is an Excited Utterance?

Answer 47

A statement relating to:
1) a startling event or condition,
2) Made while the declarant was under the stress of excitement that the event/condition caused.

• a slight delay between the event and statement is okay

Priority: HIGH

Question 48

Hearsay Exceptions

Business Records are an exception to the Hearsay rule. When are they admissible?

Answer 48

Admissible if it’s:
1) A record of events, conditions, opinions, or diagnoses;
2) Kept in the regular course of business;
3) Made at or near the time of the matter described;
4) Made by a person with knowledge of the matter;
5) is the regular practice of the business to make the record;
AND
6) The opponent party does not show a lack of trustworthiness.

Priority: HIGH

Question 49

Hearsay Exceptions

Statements Made for Medical Diagnosis/Treatment

Answer 49

Not excluded by the hearsay rule when the statement:
1) is made for (and reasonably pertinent to) medical diagnosis or treatment; AND
2) describes medical history or symptoms (past or present).

*Statements that are not relevant to medical diagnosis or
treatment DO NOT fall within this hearsay exception.

Priority: HIGH

Question 50

Hearsay Exceptions

Statements of Mental, Emotional, or Physical Conditions

Answer 50

Admissible when the statement is of declarant’s:
a) then-existing state of mind (motive, intent, or
plan); OR
b) emotional, sensory, or physical condition.

*BUT, statements of memory or belief are NOT
admissible unless it relates to the validity or terms of the
declarant’s will.

Priority: Medium

Question 51

Hearsay Exceptions

Dying Declaration

In what cases may it be offered?

Answer 51

Elements to be admissible:
1) The declarant is unavailable;
2) statement made under a sense of impending death; AND
3) statement was about the circumstances or cause that put the declarant in the position of impending death.

*ONLY ALLOWED in civil cases and criminal homicide cases.

Priority: Medium

Question 52

Hearsay Exceptions

When is a declarant deemed Unavailable?

Answer 52

deemed unavailable if the witness:
a) is exempt due to privilege;
b) Refuses to testify despite a court order;
c) doesn’t remember;
d) Can’t be present to testify due to death or illness; OR
e) is beyond the reach of the court’s subpoena and cannot be procured by reasonable means.

Priority: Medium

Question 53

Hearsay Exceptions

Statement against Interest

Answer 53

Admissible if:
1) it’s a statement against the declarant’s penal, proprietary, or pecuniary interest when made;
2) declarant has firsthand knowledge;
3) a reasonable person in the declarant’s position would have made the statement only if they believed it to be true; AND
4) declarant is unavailable.

*Criminal cases → it must be supported by corroborating
circumstances that clearly indicate its trustworthiness.

Question 54

Hearsay Exceptions

Public Records

Answer 54

The following records are admissible:
a) a record describing policies and practices of a public office;
b) observations made by someone in accordance with his duties by law (but excludes police reports in criminal case); OR
c) factual findings from a legally authorized investigation (but only in civil cases or against the government in a criminal case).

*BUT, such records will NOT be admitted if the opponent
party shows a lack of trustworthiness.

Priority: Medium

Question 55

Hearsay Exceptions

Past Recollection Recorded

Answer 55

Is a record made on a matter the witness once knew about, but now cannot
recall well enough to testify fully and accurately.

Is admissible if:
1) witness had personal knowledge at one time;
2) writing was made or adopted by the witness;
3) it was made while the event was still fresh in the
witness’s mind;
4) is accurate; AND
5) witness can no longer remember the event.

*The record may be READ into evidence, BUT it can only
be received as an EXHIBIT if offered by an adverse party.

Priority: Medium

Question 56

Statement of Personal or Family History

Answer 56

Declarant must be a member of the family in question or intimately associated with the family.

(i.e. birthdate, marriage date)

Question 57

Right to Confront Witnesses (6th Amendment)

Answer 57

The Confrontation Clause gives a criminal defendant the right
to confront witnesses against him.

Question 58

Right to Confront Witnesses

When does an out-of-court statement violate a Defendant’s 6th Amendment rights?

Answer 58

The use of an out-of-court statement (even if within a hearsay exception) violates the 6th Amend. and is barred when:
1) The statement is testimonial;
2) Declarant is unavailable to be cross-examined at trial; AND
3) D did not have an opportunity to cross-examine the declarant before trial.

Priority: HIGH

Question 59

What types of statements are testimonial in nature?

Answer 59

Statements made to:
a) Grand juries;
b) Affidavit or Certified Report with forensic lab results; OR
c) The police whose primary purpose (when viewed objectively) was to collect testimony to be used at a later trial.

*A statement to assist the police in an ongoing
emergency is NOT testimonial.

Ongoing Emergency – Existence of an ongoing
emergency determined by:
(1) nature of the dispute;
(2) potential harm to the victim;
(3) threat to additional identifiable victims;
(4) generalized threat to the public;
(5) type of weapon; and
(6) whether suspect is at large or located, but not apprehended.

Priority: HIGH

Question 60

Privilege of Spousal Immunity

Answer 60

A witness-spouse in a valid marriage MAY refuse to testify against their spouse
in a criminal case.
− Only the witness-spouse holds this privilege –
but privilege ends after divorce.

*Spousal immunity DOES NOT apply in civil cases.

Priority: Medium

Question 61

Privilege of Confidential Marital Communications?

Answer 61

Communications between spouses are privileged if:
1) made during the course of a valid marriage; AND
2) were intended to be confidential.

*Either spouse may assert the privilege, and it applies
after divorce.
*Privilege applies in BOTH civil and criminal cases.

Priority: Medium

Question 62

In what circumstances do the Spousal Privileges (spousal immunity and confidential martial communications) NOT apply?

Answer 62

1) In cases between the spouses.
2) When a spouse commits a crime against the other spouse or their children.

Priority: Medium

Question 63

Attorney-Client Privilege?

Answer 63

Protects confidential communications between and attorney and client if:
1) intended to be confidential; AND
2) made to facilitate legal services.

The client holds the privilege and may waive it by
disclosing info to a third-party (but it’s not waived
through inadvertent disclosure).

Priority: Medium

Question 64

When does the Attorney-Client Privilege NOT apply?

Answer 64

Attorney-Client Privilege DOES NOT apply when:
a) legal services are sought to further a crime or fraud;
b) a litigation is related to a breach of duty between the attorney and client; OR
c) joint clients are later involved in civil litigation against each other.

Priority: Medium

Question 65

Attorney Work Product Doctrine

Answer 65

Protects from disclosure all materials prepared by an attorney (or his agents) in anticipation of or during litigation.

− Exception → If a party shows: (1) a substantial
need exists; AND (2) a substantial equivalent
cannot be obtained without undue hardship.

Question 66

What is the Physician-Patient Privilege?

Answer 66

Most States → recognize the privilege if:
(1) it’s a confidential patient communication,
(2) made to a physician,
(3) for the purpose of medical diagnosis or
treatment.

− The patient holds the privilege, BUT it may be
waived when a medical condition is placed in
issue (i.e. personal injury lawsuit).

Priority: Medium

Question 67

When is the Physician-Patient Privilege recognized?

(state vs. federal)

Answer 67

Most States: DO recognize the privilege

Federal Courts: DO NOT recognize the privilege

*Exception: Federal courts will recognize it when:
1) it’s a civil case;
2) a claim/defense is based on state law; AND
3) state law recognizes a physician-patient privilege.

Priority: Medium

Question 68

Psychotherapist-Patient Privilege

Answer 68

ALL states recognize the privilege, which protects:
1) confidential patient communications,
2) made to a psychotherapist (psychologist,
psychiatrist, or social worker),
3) for the purpose of psychological treatment.

*The patient holds the privilege and may waive it.

Exceptions – include:
▪ Court-ordered examinations.
▪ Civil commitment proceedings to determine if
hospitalization is required.
▪ When the condition is placed “in issue” by the
patient.
▪ The dangerous-patient exception – the
therapist has a duty to warn when he knows (or
should know) that the patient poses a serious
threat of violence to foreseeable victims.