Evidence

Question 1

confidential marital communications privilege

Answer 1

covers confidential marital communications bw spouses WHILE THEY WERE MARRIED &
privilege extends beyond termination of marriage

Question 2

Spousal immunity privilege

Answer 2

A currently married person may not be compelled to testify against his spouse in any criminal proceeding

Can only be asserted during a valid marriage

Question 3

Is a motel clerk’s consent to governmental search of a guest sufficient to justify a search?

Answer 3

No

Question 4

“Opening the door” to attacks on character applies only to

Answer 4

criminal proceedings

Question 5

When can a party bring up specific instances of conduct to prove character evidence in a civil trial?

Answer 5

When character evidence is an essential element of a claim/defense

For crim, molestation cases specific instances of conduct are admissible

Question 6

Must a party object after court makes a definitive ruling on the admissibility of evidence?

Answer 6

No

Question 7

When is withdrawal appropriate in CL conspiracy?

Answer 7

Not possible the moment agmt is created

Question 8

bursting bubble approach to presumptiosn

Answer 8

once an opposing party has produced sufficient evidence to overcome a presumption, the presumption bursts and the fact finder must weigh the evidence to decide the issue

Question 9

in federal diversity cases, which law supplies the rule of decisions and PRESUMPTIONS related to the claim/defense

Answer 9

state law

Question 10

party may attack a W for character for truthfulness by introducing

Answer 10

1. reputation/opinion testimony about the character or
2. pertinent SPECIFIC INSTANCES of W’s conduct (e.g., crime of dishonesty/felony)

Question 11

When can felony conviction be admissible to impeach a witness

Answer 11

When
1. felony conviction (not involving dishonesty) is less than 10 years old &
2. W is not a criminal ∆

UNLESS probative value is SUBST’LLY outweighed by its prejudicial effect

EXCEPTION: when conviction has been pardoned, annulled, or cert. of rehabilitation

Question 12

6A confrontation clause

Answer 12

bars admission of testimonial statements made by an unavail. decl. unless the ∆ has had the opp. to cross-examine that decl.

Question 13

6A Confrontation Cl Exception

Answer 13

When criminal ∆ wrongfully and intentionally causes decl.’s unavailabiltiy

Question 14

Best Evidence Rule

Answer 14

original/reliable duplicate of a recording, writing, or photograph be produced to prove its documents

Question 15

Best Evidence Rule exception

Answer 15

When:
1. all originals are lost/destroyed &
2. loss/destruction was not a product of the party’s bad faith

Question 16

objection to use unavailable decl’s hearsay statement is forfeited if:

Answer 16

party
1. wrongfully caused decl’s unavailability &
2. did so intending that result

must be proven by PREPONDERANCE OF EVIDENCE

Question 17

Character evidence inadmissible to

Answer 17

prove that the person acted in accordance w/that character trait on a particular occasion

Question 18

Can expert witnesses be subject to cross-examination?

Answer 18

Yes, re: adequacy of the expert’s knowledge (general knowledge in their field of expertise + specific knowledge of the facts underlying their testimony)

Question 19

Hearsay state of mind exception

Answer 19

Statement of the declarant’s then-existing state of mind–statements of motive, intent, or plan

Question 20

Where both the tape recording of a conversation and the W is available at trial, is the testimony of the W barred by Best Evidence Rule?

Answer 20

No (a special rule)

Question 21

Best Evidence Rule applies to which 3 things

Answer 21

1. recording
2. writing
3. photograph

to prove the document’s content

Question 22

Are offers to compromise not in the process of compromise negotiations admissible

Answer 22

Not admissible

Question 23

Exceptions to Compromise Offers & Negotiations Rule

Answer 23

1. made during negotiations in civil dispute involving gov’t regulatory, investigative, or enforcement agency AND offered in subsequent CRIMINAL case; or
2. a. proving W’s bias/prejudice;
   b. negating contention of undue delay;
   c. proving effort to obstruct criminal investigation/prosecution

Question 24

Is a statement about pregnant a then-existing physical condition?

Answer 24

Yes, and is excluded from hearsay

Question 25

Past recollection recorded hearsay exception only applies

Answer 25

To records that 1. concerns a matter a W once knew but cannot recall at trial [If W remembers this exception CANNOT be used], 2. made by or based on information from someone with personal knowledge, and 3. made & kept as a regular practice in the course of regular activities of the business

Question 26

Witness's character for truthfulness can be attacked by SIC only on

Answer 26

cross-examination if: 1. the bad act is probative of the W's truthful char. AND 2. inquiry is made in good faith

Question 27

generally, extrinsic evidence cannot be used to prove SIC involving a prior bad act that

Answer 27

did not result in a criminal conviction

Question 28

collateral evidence rule (evidence)

Answer 28

cannot use of extrinsic evi to impeach a W on a collateral issue (i.e., an issue irrelevant to the outcome of the case)

Question 29

Expert witness may offer an opinion on an ultimate issue (i.e., pt that is sufficient to resolve the case)

Answer 29

in civil cases; but in criminal case, expert may NOT offer opinion about whether the ∆ possessed the requisite mental state for the charged crime/asserted defense

Question 30

Authentication requires clear and convincing evidence that item is what the proponent claims it to be

Answer 30

No it requires an even lesser std (more than 50%)--preponderance of the evidence

Question 31

Declarant is considered unavailable if:

Answer 31

1. absent from trial or hearing AND 2. proponent could not obtain the Decl's attendance by subpoena or other reasonable means

Question 32

character evidence admissible in which civil cases

Answer 32

1. defamation 2. child custody 3. negligent entrustment 4. misrepresentation/fraud

Question 33

Admissible evidence of medical diagnosis/treatment

Answer 33

describe medical history, symptoms, or general cause NOT WHO was responsible for their injury

Question 34

proper rehabilitation of W only pertains to

Answer 34

truthful character not perception of an event--e.g., W's ability to perceive the ∆ in the dim light

Question 35

T/F: ∆'s 6A right to confrontation places constraints on the use of the Decl's prior out-of-ct statement when the Decl. is available for cross-examination at trial

Answer 35

False Bc when a co-∆-Decl. also testifies, ∆ has the opportunity to confront the witness on cross-examination

Question 36

warrantless search incident to lawful arrest limited to

Answer 36

1. person's body and areas in his/her immediate reach AND 2. conducted immediately before/after a valid arrest

Question 37

Is a person's mere presence with a criminal enough to create probable cause

Answer 37

No, not a reasonable belief (i.e., greater than mere suspicion) that the person arrested committed a crime

Question 38

if hearsay statement is contingent on something happening

Answer 38

it is not a state-of-mind exception