Evidence

Question 1

Relevancy of Evidence

HIGH

Answer 1

To be admissible, evidence must be relevant.

Evidence is relevant if:
* it has any tendancy to make a fact more or less probable AND
* the fact is of consequence in determining the action.

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

Note: If question asks whether evidence is admissible, always briefly analyze whether evidence is relevant.

Question 2

Rule 403 Exclusions

HIGH

Answer 2

Under FRE 403, court may exclude relevant evidence if its probative value is substantially outwieghed by danger of:
* unfair prejudice (occurs when evidence is uneccessary AND might cause the jury to improperly sympathize with or dislike a party)
* confusing the issues
* misleading the jury
* undue delay
* wasting time
* or being needlessly cumulative

Note: Court has option to limit the unfair prejudice by limiting scope of evidence or examination to specific topics.

Question 3

Subsequent Remedial Measures
(Evidence Exclusion)

HIGH

Answer 3

Subsequent remedial measures are measures taken that would have made an earlier injury or harm less likey to occur.

Evidence of subsequent remedial measures is not admissible to prove:
* negligence
* culpable conduct
* a defect in a product or desin OR
* a need for warding or desruction

However court may admit for other purposes including:
* impeachment
* to prove ownership or control

Note: Examples of SRMs include company rules, installation of safety devices, post-incident discipliine or termination of an employee.

Question 4

Settlement Offers

MED

Answer 4

Offers to settle claims, offers to compromite and statements made during settlement negotitation are not admissible to:
* prove validity or amount of a disputed claim
* to impeach by a prior inconsistent statement or contradiction

Court may admit evidence for another purpose such as: proving bizas, negating undue delay or proving obstruction.

Note: There has to be an actual dispute for protection to apply.

Question 5

Plea Deals and Negotiations

MED

Answer 5

Not admissible in a subsequent civil or criminal case:
* statements made during plea discussions
* a nolo contedere plea (where defendant neither admits or disputes a charge)
* a defendant’s guilty plea that was later withdrawn

Question 6

Offers to Pay Medical Epenses

MED

Answer 6

Evidence of paying or promising to pay medical expenses or bills is not admissible to prove liablity (even if claim is not disputed).

Any related statements or factual admissions (other than the offer to pay) are admissible.

Question 7

Liability Insurance

MED

Answer 7

Evidence of liability insurance is not admissible to prove culpability.

Court may admit evidence of liability insurance for a diferent purpose such as proving bias of a witness or proving agency/ownership/control.

Question 8

Authentication of Evidence

MED

Answer 8

All evidence must be authenticated (proved it is actuall ywhat the party purports it to be) before abeing admitted into evidence.

Physical Evidence: authenticated through witness testimony or evidence showing it has been held in a substantially unbroken chain of custody.

Voice Recordings: autheticated by anyone who has heard the person speak AND identified the recorded person as the speaker.

Handwriting/Handwritten Letter: Handwriting may be authenticated by a nonexpert’s opinion testimony stating that the handwirting is genuine based on a familiarity with it and which was not acquired for th current litigation.

Question 9

Best Evidence Rule

MED

Answer 9

For writings, recordings or photographs, the original is required to prove its contents unless:
* it is a reliable duplicate (photocpy)
* all originals are lost or destroyed (and not on purpose)
* original cannot be obtained by any judicial process
* it was not produced after proper notice was given to the party in control and against whom it would offered against
* it is not closley related to a controlling issue

Question 10

Character Evidence

HIGH

Answer 10

Evidence of a person’s character is not admissible to show propensity (i.e. acted within character on particular occasion).

However, character evidence is generally admissible for any non-propensity purpose. (ex: when character is ultimate issue in case, i.e. defamation)

Question 11

Proving Propensity
(Character Evidence)

HIGH

Answer 11

Character evidence ma ybe offere as circumstantial evidence to prove propensity in limited circumstances:

• Defendant’s Character: In criminal cases D may always introduce evidence of their own character, but P not unless D does so first. (“Opens the Door”).
• Victim’s Character: Except in rape cases, D may offer evidence of victim’s character to prove defendant’s innocence. If D does, prosecution may present evidence of (i) victim’s good character for the same trait or (ii) defendant’s bad character for same trait
• Homicide: P may offer evidence of P’s character for peacefulness only if D claims victim was aggressor (i.e. self defense argument)
• Sex Offense: Evidence offered to prove a victim’s sexual behavior is not admissible. (Generally but see exceptions)

*Civil Cases: Character evidence cannot be introduced in a civil case to prove propensity, unless exception for sex offense cases applies.

Question 12

Methods of Proving Character

HIGH

Answer 12

Character evidnece ma ybe proven in the following ways:
* on direct examination by opinion testimony or testimony of reputation in the community
cross examination of the character witness by opinion or repuation or specific acts

If a person’s character is an essential element of af charge, claim or defense, it may also be proven by specific instances of the person’s conduct.

Question 13

Propensity Character Evidence in Sex Offense Cases

HIGH

Answer 13

Civil Case: Cour may admit evidence offered to prove a victim’s sexual b ehavior or predisposition if its provative value substantially outweights the danger of (i) harm to any victim and (ii) unfair prejudice to any party.
* Court may only admit evidence of a victim’s reputation only if the victim the victim has placed it in controversy.

Criminal Case: Court may admit
* evidence of specific instances of a victim’s sexual behavior if offered to prove that defendant was not involved in the sex crime
* evidence of sexual relations between defendant and victim if offred by D to prove consent or by P for any reason
* evidence whose exclusion would violate defendnat’s constitutional rights

Question 14

Prior Bad Acts
(MIMIC Evidence)

HIGH

Answer 14

Evidenceo of prior bad acts is not admissible to show propensity, but may be admissible for other non-propensity purposes.

Admissible for proving MIMIC:
* Motive
* Identity
* Absence of Mistake or Accident
Intent
* Common Plan or Scheme
* Opportunity
* Preparation

To offer, must show:
* by a preponderance of the evidence (more likey than not), that prior act was commited AND
* probative value substantially outwieghts the danger of unfair prejudice

D’s prior acts of sexual assault or child molestation are admissible if accused of similar conduct

Question 15

Habit or Routine Practice

HIGH

Answer 15

Evidence of a person’s habit or an organization’s routine practice may be admitted to prove that party acted in accordance with habit or routine practice.

Habit is a regular response to a repeated sutuation. has four elements:
* Specificity
* repitition
* duration AND
* is semi-automatic or reflexive

Question 16

Prior Inconsistent Statements
(Impeachment)

MED

Answer 16

Prior inconsistent statements are admissible to impeach a witness’s trial testimony. Party does not need to show unless requested by adverse party’s attorney.

Extrensic evidence of the prior inconsistent statements is admissible only if:
* relevant to a material issue at trial (other than witness’s credibility) AND
* proper foundation is shown (witness given opportunity to exxplain or deny and adveerse party is given opportunity toexamine the witness about it.

Above limitation on extrinsic evidence is not appliable to statements by a party opponent.

Question 17

Prior Convictions
(Impeachment)

HIGH

Answer 17

Evidence of prior convictions may be admitted to attack a witness’s character for truthfulness in certain instances.
* prior felony or misdemeanor convictions involving dishonesty are always admissible to impeach. Other misdemeanors are not.
* theft crimes are not dishonesty crimes, unless a specific dishonest act or false statement is proven when D commited crime.
* felonies not involving dishonesty are admissible: (i) in civil or criminal case where witness is not a criminal defendant and (ii) in a criminal case where the witness is a defendant, but only if the provative value outweighs its prejudicial effect.

Note: Evidence of conviction not admissible if crime pardoned or anulled.

Note: A felony is a crime punishable by death or for impronment for more than one year.

Question 18

Prior Convictions - Over 10 Yrs
(Impeachment)

HIGH

Answer 18

If 10 years have passed since the later of the conviction or release from confinement, evidence of conviction is only admissible if:
* its probative value substantially outweights it prejudicial effect AND
* the proponent gives and adverse party reasonable written notice of the intent to use

Question 19

Specific Instances of Conduct
(Impeachment)

HIGH

Answer 19

A witness’s credibility may be attacked on cross with specific instances of conduct (prior bad acts( if the conduct is probative of the witness’s character for truthfulness.

Extrinsic evidence is not admissible to support those specific instances. (i.e. can’t bring in documents or testimony of another witness).

Question 20

Character for Truthfulness
(Impeachment)

MED

Answer 20

A witness’s credibility may be attacked or supported by:
* reputation testimony
* opinion testimony

Evidence of the witness’s truthul character is admissible only after witness’s charachter for truthfulness has been attacked.

Question 21

Witness Bias
(Impeachment)

MED

Answer 21

A witness’s bias, interest, motive or corruption is always relevant for impeachment.

Proof of bias is relevant.

Question 22

Hearsay Declarants

MED

Answer 22

When a hearsay declarant’s statement has been admitted into evidence, declarant’s credibility may be attacked by any evidence that would be admissible if the declarant had testified as a witness.

The party against whom the statement was admitted may call the declarant as a witess, and cross-examine the declarant on the statement.

Question 23

Refreshing Recollection

HIGH

Answer 23

Refreshing a witness’s recollection using a document is permitted when
* witness had personal knowledge of the mater
* but is unable to recall it while testifying

Witness is able to read the document, but only opposing party may offer document into evidence.

Question 24

Judicial Notice

MED

Answer 24

A court may take judicial notice of indisputable facts that are:
* commonly known
* or readily capable of verification AND cannot reasonably be questioned

A court must take notice if a party requests it and supplies the court wit hthe necessary information.

Criminal: court must instruct jury that they MAY accept noticed fact as conclusive

Civil case: court MUST instruct jurty to accept noticed fact as conclusive

Note: Notice can be taken at any stage of the proceeding
Ex: Court calling another court to get info is not commonly known.

Question 25

Lay Witness

MED

Answer 25

A lay witness must be competent to testify. Competency is generally presumed.

Witness may only testify on matters that they have personal knowledge of.

Lay witness may offer an opinion if it is:
* based on witness’s perception
* helpful to clearly understand the witness’s testimony or to determine a fact in issue (no legal conclusions AND
* not based on scientific, technical or other specialized knowledge

Question 26

Expert Witness Testimony

MED

Answer 26

Expert testimony is permitted when:
* witness is qualified as an expert
* opinion is helpful to jury
* witness believes in opinion to reasonable degree of certainty
* opinion is supported by sufficient facts or data AND
* opinion is based on reliable principles and methods that were reliably applied

Preliminary questions concerning the qualification of a person to be a witness shall be determined by the court. The court is not bound by the rules of evidence except those with respect to privileges.

Note: In criminal case, expert witness cannot state an opinion about whether the defendant had the requisite mental state that is an element of the crime or a defense.

Question 27

Hearsay

HIGH

Answer 27

Hearsay is:
* an out of court statement
* offered to prove the truth of the matter asserted

Hearsay is only admissible if it falls under an exception.

Statement means a person’s oral assertion, written assertion or nonverbal conduct, if the person intended it as an assertion.

Question 28

Multiple Hearsay

HIGH

Answer 28

When evidence contains hearsay within hearsay, each level of hearsay must fall withi an exception to be admissible.

Question 29

Non-Hearsay

HIGH

Answer 29

If an out of court statement is offered to prove something other than the truth of the statement, it is non-hearsay and is admissible.

Common non hearsay statements include:
* verbal acts of independent legal significance
* statements offered to show effect on the listener
* prior consistent statemets used to impeach
* circumstantial evidence of the speaker’s state of mind

Non-Hearsay Include: Statements by a Party Opponent.

Question 30

List of Hearsay Exclusions

HIGH

Answer 30

• Statements by a Party Opponent
• Prior Statements by a Witness
• Co-Conspirator Admissions
• Present Sense Impression
• Excited Utterance
• Business Records
• Statements made for Medical Diagnosis/Treatment
• Statements of Mental, Emotional or Physical Condition
• Dying Declaration
• Statement Against Interest
• Public Records
• Past Recollection Recorded

Question 31

Statements by a Party Opponent
(Non-Hearsay)

HIGH

Answer 31

Statements by a party opponent are non-hearsay.

A statement by a party opponent is any statement offered against an opposing party that either:
* was made by the party in an individual or representative capacity
* is adopted or believed to be true by the party (silence is enough if reasonable person would deny)
* was made by a peron authorize to make a statement on the subject
was made by the party’s agent or employee on a matter within the scope of that relationship
* was made by the party’s co-conspirator during and in furtherance of the conspiracy.

Question 32

Prior Statements by a Witness
(Non-Hearsay)

HIGH

Answer 32

Prior statements by a declarant-witness are non-hearsay, if:
* declarant testifies
* declarant is subject to cross-examination about a prior statement AND
* prior statement
(i) was inconsistent with declarant’s testimony and was given under penalty of perjury at a court poceeding or deposition
(ii) identifies a person as someone the declarant perceived earlier or
(iii) is consistent with the declarant’s testimony and is offered to either (a) rebut that the declarant is lying or (b) to rehabilitate the declarant’s credibility as a witness when attacked on another ground.

Question 33

Co-Conspirator Admissions
(Hearsay Exceptions)

MED

Answer 33

A co-conspirator’s statement is admissible if offered against another conspirator if:
* conspiracy existed between declarant and defendant
* statement was made during the conspiracy
* the statement was in furtherance of the conspiracy AND
* some indpendent evidence to establish the existence of the conspiracy is proven (outside of the statements themselves)

Question 34

Present Sense Impression
(Hearsay Exception)

HIGH

Answer 34

A present sense impression is a statement describing an event made by the declarant:
* while observing the event OR
* immediately after.

Question 35

Excited Utterance
(Hearsay Exception)

HIGH

Answer 35

An excited utterance is a statement:
* realting to a startling event or condition
* made while declarant was under stress of excitement that event/condition caused

Question 36

Business Records
(Hearsay Exception)

HIGH

Answer 36

Business record is admissible if it is:
* a record of events, conditions, opinions or diagnoses
* kept in the regular course of business
* made at or near the time of the matter described
* made by a person with knowledge of the matter
* is the regular practice of the business to make such a record AND
* the opponent paty does not show that the record was made under circmstances indicating a lack of trustworthiness

Note: Courts have held that law enforcement reports are inadmissible against a criminal defendant under the business records exemption.

Question 37

Statments made for Medical Diagnosis/Treatment
(Hearsay Exception)

HGH

Answer 37

A statement is not excluded by hearsay rule when the statement:
* is made for and reasonably pertinent to medical diagnosis or treatment AND
* describes medical history or symptoms

Statements not relevant to diagnosis or treatment (ex statements of fault) generally do not fall into the exception.

Question 38

Statements of Mental, Emotional or Physical Condition
(Hearsay Exception)

HIGH

Answer 38

Statements of then-existing state of mind (motive, intent, plan) or emotional sensory, or phyiscal condition are an exception to hearsay rule.

But statements of memory or belief offered to prove a fact remembered/believed is not admissible unless it relates to the validity or terms of the declarant’s will.

Question 39

Dying Declaration
(Hearsay Exception)

MED

Answer 39

A dying delcaration may only be used in a civil case or a criminal homicide case.

Elements:
* declarant must be unavailable
* statement was made uner a sense of impending death AND
* statement was about the circmstances or cause that put declarant in the position of impending death.

Question 40

Unavailable Declarant

N/A

Answer 40

A declarant is deemed unavailable a a witness if they are:

• exempted from testifying due to privilege
• refuse to testify despite cour order
• testifies that the ydo not remember the subject matter
• cannot be present to testify because of death or illnesss OR
• declarant is beyond reach of court’s subpoena and attendance cannot be procured by reasonable means.

Question 41

Statement Against Interest
(Hearsay Exception)

HIGH

Answer 41

A statement against interest is admissible when:
* statement is against declarant’s penal, proprietyar, or pecuniary interest when made
* declarant has firsthand knowledge
* reasonable person in declarant’s position would have made the statement only if person believed it to be true AND
* declarant is unavailable

If offered in criminal case, must be supported by corroborating circumstances that clearly indiciate its trustworthiness.

Question 42

Public Records
(Hearsay Exception)

MED

Answer 42

Following records are admissible under government or public records hearsay exception:

• record describing policies and practices of a public office
• observations made by someone in accordance with their duties by law (except police reports in criminal cases) AND
• factual findings from a legally authorized investigation (only in civil l cases or against government in criminal cases.

If opposing party shows record was made under circumstances indicating a lack of trustworthiness, record will not be admitted.

Question 43

Past Recollection Recorded
(Hearsay Exception)

MED

Answer 43

Past recollection recorded is a record made on a maatter the witness once knew about but now cannot recall well enough to testify fully and accurately.

Admissible if:
* witness had personal knowledge of the events at one time
* writing was made or adopted by the witness
* writing was mae while events were till fresh in the mind of witness
* writing is accurate AND
* witness can no longer remember the event

Record may be read into evidence if admitted, but may only be received as an exhibit if it is offered by an adverse party.

Question 44

Right to Confront Witness
(6th Amendment)

HIGH

Answer 44

Confrontation clause gives criminal defendant right to confront witnesses against them.

Use of out of court statement (even if it has a hearsay exception) violates a defendant’s 6th amengment rights when:

• the statement is testimonial
• declarant is unavailable to be cross examined AND
• defendant did not have an opportunity to cross-examine declarant before trial.

Following statements are testimonial:
* statements made to grand juries
* an affidavit or reort containing forensic lab results
* statments made to police whose primary purpose is to collect testimony to be used at a later trial (but if purpose to help police in an emergency not testimonial).

Question 45

Spousal Immunity

MED

Answer 45

A witness-spouse in a valid marriage may refuse to testify against his or her spouse in a criminal case (even if spouse is not a defendant(.

Witness-spouse holds the privilege and privilege ends after divorce.

Does not apply in civil cases.

Note: Privilege does not apply in cases between spouses or when spouse commits crime against other spourse or their children.

Question 46

Confidential Marital Communications

MED

Answer 46

Communications between a husband and wife are pirivleged in both civil and criminal cases if:
* made during course of a valid marriage AND
* were intended to be confidential

Privilege is held by both spouses and applies even after divorce.

Note: If content is disclosed to third party, no privilege no longer applies.

Note: Privilege does not apply in cases between spouses or when spouse commits crime against other spourse or their children.

Question 47

Attorney Client Privilege

MED

Answer 47

Attorney-Client privilege protects confidential communications between an attorney and client from disclosure if:
* communiciation was confidential (not knowingly made in front of 3rd parties) AND
* communication was made to facilitate legal services.

Privilege remains even after client dies. Client holds privilege and may waive it at any time.

Privilege does not apply when:
* legal services are sought to furthr a crime orfraud
* there is litigation related to a breach of duty between attorney and client OR
* jointly represented clients are subsequently involved in civil litigation against each other

Question 48

Attorney Work Product Doctrine

MED

Answer 48

Work product doctrine protects all materials prepared by an attorney (or agents) in anticipation of or during litigation.

Materials are protected unless a party can show:
* substantial need for the materials exist AND
* a substantial equivalent of the materials cannot be obtained without undue hardship

Question 49

Physician-Patient Privilege

HIGH

Answer 49

General Rule: Confidential patient communications made to a physicianfor the purpose of medical diagnosis or treatment are privileged.

Most states: Reconize privilege.

Federal Courts: Do not recognzize physician-patient privilege.
* State law governs privilege for civil cases reagarding a claim or defense for which state law supplies the rule of decision. (e.g. in a diversity action filed in federal court).

Waiver: Patient holds the privilege (not physician); may be waived by patient when medical condition is “at issue”.

Question 50

Therapist- Patient Privilege

MED

Answer 50

Therapist-Paitnet privilege protects:
* confidential patient communications
* made to a therapist (pyschologist, therapist, social worker)
* for the purpose of physchological treatment

Patient holds privilege and can waive it. All states recognize.

Exceptions (based on state and federal law):
* court-ordered exams
* civil commitment proceedings (hospitalization)
* when phsychological condition placed at issue by patient
*dangerous-paitent exception - therapist has duty to warn when knows that patient poses serious threat of violence to foreseeable victims