evidence

Question 1

Criminal Burdens of Proof for Prosecution & Defendant

Answer 1

Question 2

How to think about “burden of proof” conceptually

Answer 2

Question 3

Denial v. affirmative defense

Answer 3

Question 4

How to shift burden of proof

Answer 4

Question 5

Types of facts judicially noticed

Answer 5

Question 6

Must jury accept noticed fact as true (civil & criminal)

Answer 6

Question 7

Character evidence for substantive use flowchart

Answer 7

Question 8

Character evidence admissibility flowchart

Answer 8

Question 9

Rules relating to content of writings, recordings, and photographs

Answer 9

1. Best evidence rule
2. admissibility of other evidence of content (original not required when CLOTS applies–collateral issue, lost, opponent possession / refused delivery, testimony/admission by opponent, subpoena cannot obtain original)
3. Summaries of voluminous writings, recordings, photos

Question 10

Requirements for opinion testimony by lay witnesses

Answer 10

Question 11

Proper scope of lay, non-expert opinion (i.e., actual topics)

Answer 11

Question 12

Are legal conclusions by lay witnesses admissible?

Answer 12

NO

Question 13

Bases of opinion testimony by experts

Answer 13

Question 14

Expert opinions on ultimate issue

Answer 14

Question 15

attorney client privilege

Answer 15

Question 16

Declarant unavailable hearsay exceptions

Answer 16

I Don’t Have The Witness:

Interest, against
Dying Declaration
History, personal/family
Former testimony
Wrongdoing/forfeiture (made unavail)

Question 17

Hearsay exceptions, availability immaterial

Answer 17

My Big TRICEPS

Medical diagnosis/treatment
Business records

Treatise
Recollection recorded
Impression, present sense (present sense Impression)
Conviction
Excited utterance
Public records
State of mind

Question 18

Items for which extrinsic evidence of authenticity is not required

Answer 18

Question 19

Authentication principle (evidence) (what is authentication in relation to admissibility)

Answer 19

condition precedent to admissibility

Question 20

What does authentication require (i.e., what’s the standard)

Answer 20

sufficient evidence to support finding that matter in question is what its proponent claims it to be

Question 21

“sufficient evidence” for authentication purposes

Answer 21

that which a reasonable person could find “genuine” by a preponderance of the evidence

Question 22

who determines admissibility / weight

Answer 22

admissibility: judge
weight: jury

Question 23

What evidence needs to be authenticated

Answer 23

generally, only tangible evidence

Question 24

What kind of witness is required for extrinsic authentication

Answer 24

sponsoring witness

Question 25

Direct physical evidence authentication method

Answer 25

someone with personal knowledge of, or familiarity with the item, or a “custodian of records” testifies to authenticate

Question 26

Circumstantial physical evidence authentication methods

Answer 26

may be authenticated by chain of custody, ancient documents rule, or other distinctive characteristics

Question 27

Rule of completeness

Answer 27

• one party introduces part of writing/recording/oral statements
• adverse party may immediately introduce any other part which, in fairness, out to be considered in conjunction

Question 28

general competency rule, evidence

Implications for age, for example

Answer 28

generally, everyone is competent to testify (no age limit, goes to weight for jury to determine)

Question 29

personal knowledge requirements for lay and expert witnesses

Answer 29

lay witness: must have personal knowledge
expert witness: need not

Question 30

competency of judge as witness

Answer 30

The presiding judge may not testify in a trial (the objection is automatic and need not be made)

Question 31

competency of juror as witness

Answer 31

Question 32

Impeachment by prior crime flow chart

Answer 32