Evidence

Question 1

Process to admit/deny testimony:

Answer 1

1. Relevance ➡️
2. Competence ➡️
3. Authentication ➡️
4. Hearsay ➡️
5. Preclusions 🛑

Question 2

Character evidence types: R.O.S.A.

Answer 2

R = reputation
O = opinion
SA = specific acts

Question 3

Types of character evidence methods offered: I.C.E.

Answer 3

I = impeachment (admissible)
C = conformity/propensity (not admissible)
E = element shows ‘character at issue’ offered to show it’s an essential relevant element (admissible but rare - look for first)

Question 4

For ‘character at issue’ claims (E): D.N.I.C.E.

Answer 4

D = defamation
N = negligent entrustment/hiring/supervision
I = immigration
C = child custody
E = entrapment from government inducement (defense in criminal case)

Question 5

Character evidence order

Answer 5

ROSA ➡️ ICE ➡️ E = D.NICE ➡️ I = 3 I’s 4 C-ing ➡️ Sex Crimes for 5!

Question 6

Sex Crimes for 5!

Answer 6

1. Good criminals go first - D offers own good character (R.O)
2. Criminals attack victims - D offers P’s bad character (R.O.)
3. Peaceful dead guys - victims peaceful character offered in criminal homicide cases (R.O)
4. Sexual predators - criminal accused of specific sexual acts (SA)
5. Rape shield - evidence of sexual past is excluded

Question 7

Specific acts offered NOT for character: M.I.M.I.C.+

Answer 7

M = motive
I = intent
M = mistake
I = identity
C = common scheme/plan
+ knowledge, preparation, opportunity, habit and routine

Question 8

Methods for impeachment: 3 I’s 4 C-ing

Answer 8

I = interest, motive, bias
I = incapacity to observe, recall, or relate
I = prior Inconsistent statement (PIS)
C= character evidence for truthfulness by R.O.
C= character evidence for truthfulness by prior bad acts
C= prior Convictions of crimes
C = contradiction of evidence or other witnesses

Question 9

Testimony by experts: S.P.O.T.

Answer 9

S = subject matter special knowledge
P = qualified Person
O = opinion in sufficient facts
T = testimony

Question 10

Lay witness testimony: V.E.M.P.S.

Answer 10

V = value of known property
E = emotional state of others
M = measurements
P = physical descriptors
S = sensory 5 senses

Question 11

Reliability of scientific tests: T.A.P.E.S.

Answer 11

T = tested theory?
A = accepted generally in relevant community
P = peer reviewed
E = error rate
S = standards match

⚠️Note: Frye test minority only requires A (accepted generally in the relevant community)

Question 12

Non-hearsay commonly admissible for limited purpose: C.E.L.V.I.S.

Answer 12

C = capacity to see, hear, speak
E = effect on the listener
L = legally operative facts
V = verbal acts
I = impeachment
S = state of mind

Question 13

Hearsay exception when declarant is unavailable: P.R.I.S.M.

Answer 13

P = privilege
R = refusal to testify
I = incapacity
S = subpoena
M = memory (lack of)

⚠️Note: proponent of testimony has burden of proving declarant is unavailable

Question 14

self-authenticating documents that do not need foundation: C.O.N.T.A.C.

Answer 14

C = certified documents
O = official publications
N = newspapers and periodicals
T = trade inscriptions
A = acknowledged documents
C = commercial papers

Question 15

Admissibility of non-original documents and other evidence: C.L.O.T.S.

Answer 15

C = collateral (not related to controlling issue)
L = lost (unless bad faith)
O = opponent has possession
T = testimony
S = subpoena

Question 16

The issues the proponent must overcome for admissibility of writing: O.P.R.A.H.

Answer 16

O = original writing rule
P = privilege
R = relevancy
A = authentication
H = hearsay

Question 17

Common hearsay exceptions when declarant is unavailable: “San Fran. Fire Dept” S.F.F.D.

Answer 17

S = statement against interest
F = former testimony
F = family history
D = dying declarations