Evidence

Question 1

Relevance

Answer 1

Threshold question = Any tendency to make the existence of any material fact more or less probable than it would be without the evidence

Relevant evidence is:
1) material = of consequence
2) probative = any tendency to make the proposition more or less likely
- only needs to shift the probability sightly

Question 2

Federal Rules of Evidence are generally applicable in all civil and criminal federal proceedings, except:

Answer 2

1) preliminary fact determinations by judge
2) grand jury proceedings
3) other miscellaneous proceedings:
- sentencing
- extradition
- bail
- probation

Question 3

General rule of admissibility

Answer 3

All relevant evidence is admissible unless:
1) it is kept out by a specific exclusionary rule of evidence or
2) the court uses its Rule 403 discretion to keep it out

Question 4

Rule 403 balancing test

Answer 4

Court’s broad discretion to exclude relevant evidence probative value is substantially outweighed by the danger of one of the following considerations:
- unfair prejudice
- confusion of the issues
- misleading the jury
- undue delay
- waste of time
- repetitive evidence

Question 5

General rule for similar occurrences

Answer 5

If evidence involves some time, event, or person OTHER than that involved in the present case, it is INADMISSIBLE –> doesn’t survive the 403 balancing test

Exceptions:
1) P’s accident history - prior false claims or same bodily injury
2) Similar accidents or injuries caused by same event or condition
3) previous similar acts admissible to prove intent
4) habit and business routine evidence
5) industry custom as evidence of standard of care

Question 6

Plaintiff’s accident history

Answer 6

P’s other lawsuits or accidents are generally inadmissible, UNLESS they tend to show something other than carelessness of P:
1) prior false claims to prove present claim is false
2) prior accidents involving same body part when causation is at issue

Question 7

Similar accidents or injuries caused by same event or condition

Answer 7

Evidence of prior accidents or injuries caused by the same event or condition and occurring under substantially similar circumstances is admissible to prove:
1) existence of a dangerous condition
2) dangerous condition was the cause of the present injury
and
3) that D had notice of the dangerous condition (if it occurred before the P’s accident)

Evidence of absence of complaints is admissible to show D’s lack of knowledge of the danger

Question 8

Previous similar acts admissible to prove intent

Answer 8

Party’s similar conduct previously committed is admissible to prove their present motive or intent in the current case

Question 9

Habit and business routine evidence

Answer 9

Admissible as circumstantial evidence that the person or organization acted in accordance with the habit on the occasion at issue in the current case

Habit = regular response to a specific set of circumstances:
1) frequency of conduct
2) particularity of circumstances

Question 10

Industry custom as evidence of standard of care

Answer 10

Evidence as to how others in the same trade or industry have acted in the recent past is admissible as the appropriate standard of care, but NOT conclusive on the point

Question 11

Public policy exclusions

Answer 11

1) liability insurance
2) subsequent remedial measures
3) civil settlements and settlement negotiations
4) plea discussions
5) payments of and offers to pay medical expenses

Question 12

Liability insurance

Answer 12

Inadmissible to prove negligence or wrongful conduct

Admissible for other purposes:
1) prove ownership or control, if disputed
2) impeach a witness
3) as part of an admission of liability (“Don’t worry, my insurance will pay it off”)

Question 13

Subsequent remedial measures

Answer 13

SRM = repairs or other precautionary measures made following an injury

Inadmissible to prove negligence, culpable conduct, product or design defect, or need for a warning or instruction

Admissible for other purposes:
1) to prove ownership or control, if disputed
2) to rebut a claim that a precaution was not feasible
3) to prove that the opposing party has destroyed evidence

Question 14

Civil settlements and settlement negotiations

Answer 14

Evidence of a compromise or offer to compromise a civil claim and conduct or statements during negotiations are inadmissible to:
1) prove or disprove the validity or amount of a dispute claim or
2) impeach a witness by prior inconsistent statement or contradiction

Evidence of settlement IS ADMISSIBLE to impeach a witness on ground of bias

For exclusion to apply, there must be a claim in dispute as to:
1) liability or
2) amount

Question 15

Limited exception to inadmissibility of settlement negotiations rule

Answer 15

Conduct or statements in civil negotiation with government or regularity authority are admissible in a criminal case

Question 16

Plea discussions

Answer 16

Inadmissible in any criminal or civil case against the D who made the plea or participated in discussions:
1) offers to plead guilty
2) withdrawn guilty pleas
3) actual pleas of nolo contendere (no contest)
4) statements of fact made during any of above plea discussions

Question 17

Payments of and offers to pay medical expenses

Answer 17

Inadmissible to prove liability for the injury

BUT admissions of fact accompanying such payments and are offers are ADMISSIBLE

Question 18

Character evidence

Answer 18

Refers to a person’s general propensity or disposition, such as for honesty, fairness, peacefulness, violence, etc.

Question 19

Admissibility of character evidence

Answer 19

Character evidence is admissible as substantive evidence for:

1) proving a person’s character when directly in issue
- trait is an essential element
- RARE

2) proving how a person probably acted during the events of the case
- conduct in conformity with character or propensity evidence

3) impeachment, but only for truthfulness character trait
- attacking credibility of the witness

Question 20

Allowable methods for proving character

Answer 20

1) evidence of person’s specific acts
2) opinion testimony of a witness who knows the person
3) testimony as to person’s general reputation in the community

Question 21

D’s character in a criminal case

Answer 21

Prosecution can not initiate evidence of D’s bad character to show conduct in conformity

BUT D can introduce evidence of their own good character -> opens the door for prosecution to rebut with evidence of D’s bad character

Question 22

How D can prove character

Answer 22

With a character witness as to:
1) D’s good reputation for a pertinent trait and
2) their personal opinion concerning that trait of the D

Question 23

When D takes the witness stand in his own defense…

Answer 23

He does NOT open the door to the issues of his character

Only his credibility is at issue when he takes the stand to testify

Question 24

Once D opens the door by introducing character evidence, prosecution can:

Answer 24

1) Cross-examine D’s character witness regarding the basis for their testimony by asking questions about specific acts of D that shows D’s bad character for the trait in question
- purpose = to show witness’s lack of knowledge, NOT prove D’s bad character
- NO extrinsic evidence of D’s previous misconduct –> P can only ask if witness knows of the conduct

2) Call its own character witness to prove REPUTATION or OPINION testimony about D’s bad character for the trait in question

Question 25

Victim’s character in criminal case - when D can initiate

Answer 25

D can offer reputation and/or opinion testimony concerning victim’s character for relevant trait when it is relevant to show D’s innocence

D claiming self-defense and arguing that victim was the first aggressor

Question 26

D introducing evidence of victim’s character…

Answer 26

Opens door for prosecution to introduce evidence about:
1) victim’s good character for same trait or
2) D’s bad character for the same trait

Question 27

When prosecution can introduce evidence of a victim’s character

Answer 27

Prosecution can offer evidence of a victim’s character for peacefulness in a homicide case where D pleads self-defense

Evidence of any kind that victim was first aggressor opens the door for evidence that victim was peaceful

Admissible even if D hasn’t introduced evidence of victim’s generally violent propensity

Question 28

Rules for rape victim’s past behavior

Answer 28

Evidence to prove sexual behavior or disposition of a rape victim is generally inadmissible except:

In a criminal case:
1) specific instances of victim’s behavior are admissible to prove that someone OTHER THAN D is source of physical evidence
2) instances of sexual conduct between D and victim to prove consent

In a civil case:
1) Admissible if not excluded by another rule AND
2) its probative value substantially outweighs danger of harm to victim and unfair prejudice

Question 29

Admissibility of character evidence in civil cases

Answer 29

Generally inadmissible to prove conduct in conformity UNLESS character is an essential element of a claim or defense:
1) defamation where truth is a defense
2) negligent hiring or entrustment and
3) child custody cases

Question 30

Evidence of other misconduct

Answer 30

Generally inadmissible if offered solely to prove propensity

Admissible for non-character purposes (independently relevant) if D is contesting the non-character issue = MIMIC:
Motive
Intent
Mistake (absence of)
Identity
Common plan or scheme

Question 31

Requirements for admissibility of misconduct evidence

Answer 31

Misconduct for non-character purposes may be proved by any evidence, as long as it is sufficient to support a jury finding that D committed the other misconduct

Subject to 403 balancing test

In a criminal case = prosecutor must give reasonable notice to D

Question 32

D’s similar misconduct in sex-crime cases

Answer 32

Evidence of a D’s other acts of sexual assault or child molestation is admissible in a criminal OR civil case for any purpose (even showing propensity) where D is accused of committing such an act

Question 33

Three issues for writings

Answer 33

1) authentication
2) best evidence rule
3) hearsay

Question 34

Authentication of writings and spoken statements

Answer 34

Writing or secondary evidence of its content must be authenticated by proof that shows the writing is what proponent claims it is

Standard of proof = sufficient to support a jury finding of genuineness

Question 35

Methods of authentication

Answer 35

1) Opponent’s admission

2) eyewitness testimony of someone with knowledge

3) handwriting verifications
- lay opinion of someone with pre-existing knowledge
- expert opinion
- jury’s comparison

4) ancient documents = authenticated if:
- at least 20 years old when offered
- in a condition that creates no suspicion
- found in a place such a writing would be kept

5) Reply letter doctrine = document can be authenticated by evidence it was written in response to a communication sent to alleged author

6) Photos and videos = must be identified by witness as fair and accurate representation of facts depicted

Question 36

Authentication of oral statements

Answer 36

1) voice identification = can be familiar with voice for sole purpose of testifying (different from handwriting)

2) phone conversation = authenticated by any party to the call who:
- recognized speaker’s voice
- speaker had knowledge of certain facts that only a particular person would know
- speaker answered and identified themselves
- speaker who answered business’s phone discussed business matters

Question 37

Self-authenticating documents

Answer 37

Extrinsic evidence is not required to authenticate:
- public documents bearing a seal
- official publications
- certified copies of public records or private records on file in a public office
- newspapers and periodicals
- trade inscriptions and labels
- notarized documents
- commercial paper
- business records

Question 38

Best evidence rule

Answer 38

Original document rule

To prove the content of a writing, recording, or photo, the original writing must be produced if the terms of the writing are material

Secondary evidence admissible ONLY IF proponent has a good excuse for not producing original

Question 39

When does the best evidence rule apply?

Answer 39

1) where the writing is a legally operative or dispositive instrument
- writing itself creates rights and obligations

2) where the knowledge of a witness concerning a fact results from having read it in the writing

Question 40

Best evidence rule does NOT apply when…

Answer 40

The witness has personal knowledge of the fact to be proved, even if the fact happens to also be recorded in a writing

Oral testimony of the fact may be given without producing the original writing that recorded the event

Question 41

Originals and duplicates

Answer 41

Original = writing itself, or any counterpart intended to have the same effect

Duplicate = an exact copy made by mechanical means

Question 42

Admissibility of duplicates

Answer 42

Admissible to same extent as originals unless:
1) circumstances make it unfair to admit the duplicate or
2) a genuine question is raised about the authenticity of the original

Handwritten copy ≠ duplicate, but secondary evidence and only admissible if original or duplicate is unavailable

Question 43

Admissibility of secondary evidence

Answer 43

Valid excuses justifying admissibility:
1) loss or destruction of original (unless proponent destroyed in bad faith)
2) original cannot be obtained by any available judicial process
3) original is in the possession of an adversary who fails to produce original after due notice

Question 44

Exceptions to the best evidence rule

Answer 44

1) summaries of voluminous records
- may be presented in form of summary or chart
- must be made available for inspection or copying

2) certified copies of public records

3) writing is of minor importance (collateral) to litigated issue

4) opponent testified or gave written admission about contents of writing

Question 45

Questions of fact reserved for the jury

Answer 45

1) whether original ever existed
2) whether a writing produced at trial is an original
3) whether the evidence offered correctly reflects the contents of the original

Question 46

Real evidence

Answer 46

Actual physical evidence addressed directly to the trier of fact

May be direct, circumstantial, original or demonstrative

Question 47

Admissibility of real evidence

Answer 47

1) authentication = identified as what proponent claims it to be by:
- testimony of a witness that they recognize the object or
- evidence that object has been held in a substantially unbroken chain of possession

2) Condition of object = must be shown in substantially the same condition at trial

Question 48

Competency of witnesses

Answer 48

Witnesses are generally presumed to be competent until the contrary is established

No qualifications required beyond:
1) personal knowledge of the matter about which they are to testify
2) giving an oath or affirmation to testify truthfully

Question 49

CL disqualifications

Answer 49

1) lack of religious belief
2) conviction of a crime
3) interest in the lawsuit

Not disqualifiers in modern law

Question 50

Leading questions

Answer 50

Generally allowed only on cross-examination, NOT direct

Question 51

Leading questions allowed on direct examination:

Answer 51

1) to elicit preliminary or introductory matters
2) when witness needs help responding because of loss of memory, etc.
3) when witness is hostile, an adverse party, or affiliated with adverse party

Question 52

Scope of cross-examination

Answer 52

Generally limited to:
1) scope of direct, including all reasonable inferences that may be drawn from it
2) matters that test credibility of the witness (impeachment)

Question 53

Improper questions and answers

Answer 53

Questions:
- misleading
- compound
- argumentative
- conclusionary
- cumulative
- unduly harassing or embarrassing
- call for a narrative answer or speculation
- assume facts not in evidence

Answers:
- lack foundation
- nonresponsive

Question 54

Using documents to aid oral testimony

Answer 54

Generally witnesses cannot read their testimony from a prepared document, they must testify on the basis of their current recollection

Exceptions:
1) refreshing collection = present recollection revived
2) Past recollection recorded = recorded recollection

Question 55

Present recollection revived

Answer 55

Witness may use any writing or object for the purpose of refreshing their present recollection
- cannot READ from the writing while testifying

Question 56

Safeguards against abuse for present recollection revived

Answer 56

When witness has used a writing to refresh their memory while on the stand, adverse party is entitled to:
1) have writing produced at trial
2) cross the witness about the writing
3) introduce portions of writing relevant to testimony into evidence

Question 57

Failure to produce or deliver a writing for present recollection in a criminal case

Answer 57

If prosecution fails to produce or deliver a writing as ordered, judge MUST strike the witness’s testimony

Question 58

Past recollection recorded

Answer 58

If witness has insufficient recollection even after consulting a writing, the writing may be read into evidence IF a proper foundation is laid:
1) witness has insufficient recollection to testify fully and accurately
2) witness had personal knowledge of the facts when record was made
3) record was made by the witness or adopted by them
4) record was made when the matter was fresh in their mind
5) record accurately reflects witness’s knowledge (witness vouches for it)

Question 59

Opinion testimony by lay witnesses

Answer 59

Generally inadmissible UNLESS:
1) rationally based on witness’s perception
2) helpful to determination of fact in issue AND
3) not based on specialized knowledge

Question 60

Admissible opinions of lay witnesses

Answer 60

1) general appearance or condition of a person
2) state of emotion
3) matters involving sense recognition
4) voice or handwriting identification
5) speed of moving object
6) value of own services or property
7) rational or irrational nature of another’s conduct
8) intoxication

Question 61

Opinion testimony by expert witnesses

Answer 61

Must be more likely than not that:
1) the subject matter is one where specialized knowledge would be helpful to trier of fact
2) opinion is based on sufficient facts or data
3) opinion is product of reliable principles and methods
4) opinion reflects a reliable application of principles and methods to facts of case

Question 62

Proper factual basis for expert opinion

Answer 62

Facts are:
1) based on expert’s own observation
2) made known to expert at trial
3) supplied to expert outside courtroom that are of a type reasonably relied upon by other experts in the field

Question 63

Judge as the gatekeeper of expert opinion

Answer 63

Courts determine the reliability of all expert testimony, based on the Daubert factors = TRAP

Testing of principle or methodology
Rate of error
Acceptance by experts in the same discipline
Peer review and publication

Question 64

Using learned treatises during examination of an expert witness

Answer 64

Learned treatises may be used to impeach experts AND as substantive evidence if:
1) established as reliable authority
2) called to expert’s attention on cross or relied upon by expert on direct
3) read into evidence (but not received as an exhibit)

Question 65

Expert opinion on ultimate issues

Answer 65

Generally permitted except for in a criminal case where D’s mental state constitutes an element of the crime or defense –> expert cannot state an opinion as to whether accused did or did not have the mental state in issue

Question 66

Exclusion and sequestration of witnesses

Answer 66

Upon a party’s request, trial judge MUST order witnesses excluded from courtroom except:
1) the party or party’s designated representative
2) person whose presence is essential to presentation of claim or defense or
3) person statutorily authorized to be present

Question 67

Bolstering witness testimony is…

Answer 67

generally prohibited before witness has been impeached by the opposing party

Question 68

Forms of impeachment

Answer 68

1) cross examination
2) extrinsic evidence
- sometimes foundation must be laid first
- sometimes not allowed at all

Question 69

Impeachment methods that involve impeaching a witness with facts that are specific to the current case

Answer 69

1) prior inconsistent statements
2) bias
3) sensory deficiencies
4) contradiction

Question 70

Impeachment methods that involve impeaching a witness with general bad character for truthfulness

Answer 70

1) opinion or reputation evidence of untruthfulness
2) prior convictions
3) prior bad acts involving truthfulness

Question 71

Prior inconsistent statements

Answer 71

Party may show by cross-examination or extrinsic evidence that the witness has previously made statements inconsistent with their present testimony
- must lay proper foundation for use of extrinsic evidence

Question 72

Prior inconsistent statements are admissible as substantive evidence when…

Answer 72

they are made under oath at prior proceeding
- admissible nonhearsay

Question 73

Laying foundation for use of EE for prior inconsistent statements

Answer 73

Before or after introducing EE:
1) must give W an opportunity to explain or deny the statement AND
2) must give adverse party an opportunity to examine the witness about the statement

Question 74

Exceptions to foundation requirement for using EE for prior inconsistent statements

Answer 74

1) statement is that of an opposing party
2) hearsay declarant is being impeached
3) justice so requires

Question 75

Bias

Answer 75

May be impeached by EE if proper foundation is laid = W must be first be asked about the facts that show bias on cross-examination

Question 76

Sensory deficiencies

Answer 76

Admissible on cross-examination or EE without laying a foundation
- W does not need to be confronted with the impeaching fact first

Question 77

impeachment by contradiction

Answer 77

W may be impeached by trying to get them do admit they lied or were mistaken about a fact.
- If W sticks with their story, EE may be used UNLESS the contradictory fact is collateral (has no significance to case or credibility)

Question 78

Opinion or reputation evidence of untruthfulness

Answer 78

Impeachment accomplished by calling a character witness to testify about the target witness’s bad reputation or character for untruthfulness

Question 79

Impeachment by proof of a conviction

Answer 79

May be used for certain crimes:
1) any crime (felony or misdemeanor) involving dishonesty or false statement
2) felony not involving dishonesty or false statement based on balancing test:
- criminal D = excluded if probative value does not outweigh prejudicial effect
- all other W’s = 403 balancing test

Question 80

Remote convictions for impeachment

Answer 80

Not admissible if more than 10 years have elapsed since date of conviction or date of release (whichever is later)

BUT under extraordinary circumstances, it may be admitted if:
1) probative value substantially outweighs prejudicial effect and
2) reasonable written notice to adverse party

Question 81

EE of conviction for impeachment

Answer 81

No foundation required for EE
- usually shown by direct or cross-examination of witness or by introducing record of judgment

Question 82

Conviction cannot be used to impeach if

Answer 82

1) pardon based on rehabilitation and no subsequent felony conviction
2) pardon based on innocence
3) juvenile conviction
4) constitutionally defective conviction

Question 83

Prior bad acts involving untruthfulness

Answer 83

Must have good-faith basis to believe the W committed the misconduct
- EE NOT permitted
- can only be accomplished by cross-examination of W
- no reference to any consequences that may have resulted
- arrest ≠ bad act

Question 84

Impeachment of hearsay declarant

Answer 84

Declarant may be impeached to the same extent (by any method) as an in-court witness
- need not be given opportunity to explain or deny prior inconsistent statement

Question 85

Rehabilitation of impeached witness

Answer 85

1) explanation on redirect

2) good character for truthfulness if attacked on that ground
- reputation or opinion testimony

3) prior consistent testimony
- when W was attacked with a charge of lying or exaggerating because of some motive, and the statement pre-dates the motive
- when W impeached on other non-character ground
- also admissible as substantive evidence

Question 86

Hearsay

Answer 86

A statement, other than one made by the declarant while testifying at the current trial or hearing, offered in evidence to prove the truth of the matter asserted

Question 87

Statement (hearsay)

Answer 87

1) oral or written assertion
2) nonverbal conduct intended as an assertion (e.g., head nod)

Question 88

Not made at current trial or hearing (hearsay)

Answer 88

out of court = statement was made outside of CURRENT trial or proceeding

Question 89

Offered to prove the truth of the matter asserted

Answer 89

What’s being offered is being offered to prove that it is true

Question 90

Common non-truth purposes

Answer 90

Statements that are not hearsay (nonhearsay) because they are not being offered for the truth of the matter asserted:
1) verbal acts or legally operative facts
- e.g., contract or defamatory words
2) statements to show their effect on the listener or reader
- e.g., notice for negligence case
3) statements offered as circumstantial evidence of declarant’s state of mind
- e.g., “I am Elvis Presley” offered to prove D is insane.

Question 91

Special hearsay exclusions

Answer 91

Statements that meet the definition of hearsay but are exempted as hearsay (come in as substantive evidence):
1) prior statements of testifying witnesses
2) statements by or attributable to opposing party

Question 92

Prior statements of testifying witnesses

Answer 92

Prior statement of a testifying witness who is subject to cross-examination is not hearsay if prior statement is:
1) making an identification
2) inconsistent with declarant’s in court testimony and was under under oath
3) consistent with in-court testimony and offered:
- to rebut charge of lying and statement was made before any motive to lie arose or
- to rehabilitate witness impeached on some other ground than lying

Question 93

Statements by or attributable to opposing party - judicial and extrajudicial

Answer 93

1) judicial statements = conclusive and cannot be contradicted during trial
2) extrajudicial statements = not conclusive and can be explained

Question 94

Statements by or attributable to opposing party - adoptive statements

Answer 94

Where party was expressly or impliedly adopts or acquiesces in statement of another

Includes silence in face of accusatory statement if party:
- heard and understood statement
- was physically and mentally capable of denying the statement
- reasonable person would have denied accusation

Question 95

Statements by or attributable to opposing party - vicarious statements

Answer 95

Certain statements by another person are admissible against a party because of the relationship between them:
1) authorized spokesperson
2) agents and employees
- matter within scope of agency/employment
- during existence of agency/employment
3) partners if within scope of partnership
4) co-conspirators if made in furtherance of a conspiracy

Question 96

Hearsay exceptions - declarant unavailable

Answer 96

These exceptions condition admissibility of the statement on the present unavailability of declarant to testify:

1) former testimony
2) statements against interest
3) dying declarations
4) statements of personal or family history
5) statements offered against party procuring declarant’s unavailability

Question 97

Grounds for unavailability

Answer 97

1) death or illness
2) privilege
3) refusal to testify despite a court order
4) inability to remember the subject matter
5) absent and attendance cannot be procured

Question 98

Former testimony of a now unavailable witness is admissible if:

Answer 98

1) testimony was given under oath
2) party against whom testimony is now being offered had opportunity and similar motive to develop it

Question 99

Statements against interest

Answer 99

Statement against unavailable declarant’s pecuniary, proprietary or penal interest WHEN MADE

Question 100

Statements by an opposing party vs statements against interest

Answer 100

Opposing party:
1) statement need not have been against interest when made
2) Declarant need not have personal knowledge of facts
3) declarant need not be unavailable
4) declarant must be a party

Against interest:
1) statement must have been against interest when made
2) declarant must have personal knowledge of facts
3) declarant must be unavailable
4) declarant need not be a party

Question 101

Limitations on statements against penal interest

Answer 101

In criminal cases, statements against penal interest (subjecting declarant to criminal liability) must be corroborated

Question 102

Dying declarations

Answer 102

Homicide prosecution or ANY civil case:
1) declarant believed their death was imminent
2) statement concerned cause or circumstances of impending death

compare traditional rule:
- required actual death
- could not be used in civil cases

Question 103

Statements offered against party procuring declarant’s unavailability

Answer 103

Admissible when offered against a party who has engaged or acquiesced in wrongdoing that intentionally procured declarant’s unavailability
- ONLY applies if the party’s MOTIVATION was to prevent declarant from testifying

Question 104

Hearsay exceptions - declarant’s unavailability immaterial

Answer 104

These exceptions do not require the declarant to be unavailable

1) excited utterances
2) present sense impressions
3) present state of mind
4) statements made for purposes of medical diagnosis or treatment
5) records of regularly conducted activity
6) official records and other official writings
7) recorded recollection
8) learned treatises
9) ancient documents
10) documents affecting property interests
11) reputation
12) family records
13) market reports

Question 105

Excited utterance

Answer 105

1) relates to startling event
2) made while under the stress of excitement from the startling event

Question 106

Present sense impression

Answer 106

1) describes or explains an event or condition
2) made while or immediately after the declarant perceives the event or condition

Question 107

Present sense of mind

Answer 107

Includes statements of then-existing (present) state of mind (motive, intent or plan) or emotional, sensory or physical condition

Statement of memory or belief is NOT admissible to prove truth of fact remembered or believed

Question 108

Statements made for medical treatment

Answer 108

1) describing medical history, past or present symptoms or their inception or general cause
2) must be made for and reasonably pertinent to medical diagnosis or treatment

• includes a diagnosis for the purpose of giving an expert opinion

Question 109

Business records

Answer 109

1) made in regular course of business
2) near time of event
3) consists of matters within personal knowledge of entrant (or someone who had duty to transmit information to entrant)

Question 110

Required foundation for business records

Answer 110

Custodian of records or other qualified witness must provide either:
1) in-court testimony or
2) written certification

Question 111

Business records to prove nonoccurence of matter

Answer 111

Admissible if business regularly recorded such matters, but did not in this case

Question 112

Official records and other official writings

Answer 112

1) Public records and reports
- police reports are not admissible against a criminal D
2) records of vital statistics
3) statement of absence of public record
4) judgments

Question 113

Recorded recollection

Answer 113

Document recorded or adopted at or near the time of the event can be read into evidence if the W cannot remember/memory can’t be revived
- can only be read into evidence
- can only be admitted as an exhibit unless offered by an adverse party

Question 114

Residual catch-all hearsay exception

Answer 114

Hearsay statement may be admitted if:
1) trustworthy
2) strictly necessary
3) proponent gave reasonable notice to adversary

Question 115

Hearsay and the confrontation clause

Answer 115

Hearsay statement will not be admitted where:
1) it’s being offered against the accused in a criminal case
2) declarant is unavailable
3) statements was testimonial in nature and
4) accused had no opportunity to cross-examine declarant

Question 116

Testimonial statement (confrontation clause)

Answer 116

1) sworn testimony or
2) statements to law enforcement for later prosecution

NOT statements to aid in an ongoing emergency

Question 117

Affidavits or written reports of forensic analysis (testimonial nature)

Answer 117

If they have the effect of accusing a targeted individual of criminal conduct, they ARE testimonial and cannot be admitted unless D previously had opportunity to cross-examine author of the report

Question 118

Applying federal or state privilege law in a federal court

Answer 118

Federal question case = privileges governed by federal common law

Diversity = Erie –> federal court must apply privilege law of the state

Question 119

Federal common law privileges

Answer 119

1) attorney-client
2) spousal immunity
3) privilege for confidential marital communications
4) psychotherapist/social worker-client privilege
5) clergy-penitent privilege
6) governmental privileges

Question 120

Confidentiality and privilege

Answer 120

To be privileged, communication must have been made in confidence

Question 121

Comments on using privilege

Answer 121

Comments on someone’s claim of privilege are forbidden

Question 122

Waiver of privilege

Answer 122

1) failure to claim privilege
2) voluntary disclosure of privileged matter by privilege holder
3) contractual provision waiving in advance

• NOT waived if communication was overheard by someone whose presence is unknown to the parties

Question 123

Physician-patient privilege

Answer 123

State privilege only

1) professional relationship
2) information acquired for diagnosis or treatment
3) information necessary for diagnosis or treatment

Question 124

Exceptions to physician-patient privilege

Answer 124

1) patient puts physical condition in issue
2) doctor’s assistance was sought to aid wrongdoing
3) communication is relevant to issue of breach of duty in dispute between doctor and patient
4) patient agreed by contract to waive privilege
5) federal case applying federal law of privilege (doesn’t apply)

Question 125

Spousal immunity

Answer 125

Married person whose spouse is a criminal D may not be called as a witness by the prosecution
- cannot be compelled to testify against legal interests of spouse in any criminal proceeding
- applies in criminal cases only
- must be a valid marriage
- privilege belongs to witness-spouse, not D-spouse

Question 126

Privilege for confidential marital communications

Answer 126

Confidential communications between spouses during a valid marriage are privileged
- applies in criminal or civil cases
- either spouse can refuse to disclose and prevent the other from disclosing information
- marital relationship must exist when communication is made
- divorce does not terminate the privilege
- communication must be made in reliance on marital intimacy/confidentiality

Question 127

Neither marital privilege applies when:

Answer 127

1) joint crime/fraud
2) legal actions between spouses
3) spouse charged with crime against other spouse or either spouse’s children

Question 128

Burden of production

Answer 128

Party who has burden of pleading has burden of producing evidence sufficient to make out a prima facie case
- once prima facie case is made, other side must come forward with evidence to rebut

Question 129

Burden of persuasion (proof)

Answer 129

Civil cases = preponderance of the evidence
- sometimes clear and convincing

Criminal = beyond reasonable doubt

Question 130

Preliminary facts decided by jury

Answer 130

FIRST = judge determines that there is sufficient proof to support a jury finding that the preliminary fact exists

THEN = Jury decides issues affecting relevance including:
1) whether evidence is authentic
2) whether person was acting as an agent
3) whether witness has personal knowledge of facts of their testimony

Question 131

Preliminary facts decided by judge

Answer 131

Judge must determine facts affecting the competency of the evidence including:
1) is a witness mentally competent to testify?
2) does a privilege exist?
3) does the evidence meet the requirements of a hearsay exception

Judge can consider all non-privileged evidence when making determination

Question 132

Presence of jury during preliminary fact determination

Answer 132

Within the discretion of trial judge, but jury MUST be excused if:
1) hearing involves whether confession is admissible
2) D in criminal case is testifying at hearing and requests jury be excused
3) justice so requires

Question 133

Testimony by accused during preliminary fact determination

Answer 133

Accused can testify on any preliminary matter without subjecting themselves to testifying at trial or being cross-examined about other issues

Question 134

Judicial notice

Answer 134

Court recognizes a fact as true without formal presentation of evidence

1) any fact not subject to reasonable dispute
2) required on party’s request
3) conclusive in a civil case but NOT in a criminal case
4) govern adjudicative facts (those relating to the particular case)

Question 135

Presumptions

Answer 135

Rules that require a particular inference be drawn from an ascertained set of facts

Question 136

Common presumptions

Answer 136

1) mail delivery
2) death from 7-year absence
3) against suicide
4) legitimacy
5) sanity
6) ownership of car-agent driver
7) chastity
8) proper performance of duties in official office
9) solvency
10) marriage

Question 137

Effect of presumption

Answer 137

Operates to shift the burden of production to the party against whom the presumption operates

Question 138

Limited admissibility of evidence

Answer 138

If evidence is admissible on limited bases, judge must - upon timely request - issue a limiting instruction to the jury
- judge may also exclude evidence entirely under Rule 403