Evidence

Question 1

What is a recorded recollection? Does a recorded recollection need to be in writing?

Answer 1

A memorandum made or adopted at or near the time of the event need not be in writing.

(Example: a voice memo or recording).

Question 2

Are prior inconsistent statements admissible as substantice evidence?

Answer 2

No, they are inadmissable as substantive evidence UNLESS they were given under oath subject to the penalty of purgery at trial, a hearing, or other proceeding like a deposition.

Question 3

Who determines the qualifications for an expert witness? What do they consider?

Answer 3

Judge. They may do so without regard to the rules of hearsay.

Question 4

Are offers to compromise protected? What must there be in order for there to be an offer to compromise?

Answer 4

Offers to compromise are protected, AND SO ARE “conduct or statements made in the course of compromise negotiations”.

There must be a conflict present.

Question 5

Does a defendant party have to also be a party of the prior proceeding, in order to have the opportunity to develop testimony, and have the “prior testimony” rule used against them?

Answer 5

Yes.

Question 6

When can prior consistent statements be used?

Answer 6

They cannot be used to support the testimony of a witness unless the witness testifies, and the prior consistent statement is offered, to rebutt an implied or express charge against the declarant of recent fabrication or improper influence or motive.

Question 7

What are the limitations on cross-examination?

Answer 7

Unless the court has given permission, cross-examination should be limited to:
(1) The subject matter of direct examination, and
(2) Matters affecting credibility.

Question 8

How are judicailly-noticed facts treated in criminal trials? Does it matter if the fact is generally known in the court’s jurisdiction?

Answer 8

Instruction on a judicially-noticed fact must amount to no more than a permissable inference. “The jury may, but is not required to…”

No, as long as the fact is not subject to reasonable dispute.

Question 9

Former witness testimony (under oath) is only admissible when who is present in the current action?

Answer 9

The party against whom the testimony is offered or, in civil cases, the party’s predecessor in interest must have been a party in the former action.

Question 10

Can a court allow a jury to examine an entire learned treatise?

Answer 10

No, due to the risk that jurors may look at non-germane sections of the text and improperly rely upon them in rendering a verdict.

Question 11

What are the four ways an attacking party may impeach a witness by contradiction?

Answer 11

(1) Using cross-examination to get a witness to conceed that she was wrong in her direct testimony, or at least get her to hedge or retract what she’d previously stated unequivocally.
(2) Using other previously-introduced testimony or physical evidence as a weapon during cross to show that the witness had lied or is mistaken.
(3) Showing that the witness has previously made statements inconsistent with the witness’s testimony at trial (impeachment by prior inconsistent statement).
(4) Introducing new evidence - either testimony by a second witness or physical evidence - showing that the original witness’s story is not correct.

Question 12

When may an expert witness NOT offer their opinion on a party’s mental state? When CAN they?

Answer 12

In a criminal trial (mens rea).

In a civil trial an expert may offer their opinion to aid the trier of fact.

Question 13

What is considered “relevant” evidence?

Answer 13

Evidence having any tendency to make the existence of any fact that is of consequence to the determination of an action more or less probable than it would be without the evidence.

Question 14

Can the trier of fact (jury or judge) compare an authenticated handwriting specimen to other handwritings? Who else can?

Answer 14

Yes. So can an expert witness. So can a lay person (if their familiarity was not aquired during current litigation).

Question 15

VERY IMPORTANT - Prior acts or crimes are NOT admissible to show conformity or imply bad character, but, when can prior bad acts or crimes be admissible?

Answer 15

To show the following:
(1) Motive
(2) Opportunity
(3) Intent
(4) Preparation or Plan
(5) Knowledge
(6) Identity
(7) Absence of Mistake
(8) Lack of Accident

Question 16

Is there any burden shifting in cases of judicial notice?

Answer 16

No.

Question 17

May a court take judicial notice of a relevant fact whether a party requests it or not?

Answer 17

Yes.

Question 18

When does the statement against interest exception to the hearsay rule apply?

Answer 18

Only when the declarant is unavailable.

Question 19

What is hearsay?

Answer 19

An out of court statement offered for the truth of the matter asserted.

Question 20

Is evidence of other crimes, wrongs, or acts admissible to prove the character of a person or conformity therewith?

Answer 20

NO. NO. NO.

Question 21

What must be present in order to be a “present sense impression”?

Answer 21

An attempt to explain any event or condition.

Question 22

May an expert express an opinion on the defendant’s mental state at issue for a crime?

Answer 22

No, an expert may not state an opinion as to whether the defendant did or did not have any mental state at issue in criminal cases.

Question 23

What is the “best evidence rule”? When does the “best evidence rule” apply?

Answer 23

In proving the terms of a writing (recording, photograph, or X-ray), where the terms are material, the original writing must be produced.

Secondary evidence of the writing, such as oral testimony regarding the writing’s contents, is permitted ONLY AFTER it has been shown that the original is unavailable for some reason other than serious misconduct of the proponent.

Only applies to writings, recordings, and photographs.

Question 24

How may the prosecution rebut a criminal defendant who has “opened the door” by calling a witness to testify to defendant’s good reputation or good opinion of the defendant?

Answer 24

(1) By calling its own character witness to testify to the defendant’s bad reputation or their opinion of the defendant’s character.
(2) On cross examination, by inquiring whether the reputation witness knows or has heard of particular instances of the defendant’s misconduct pertinent to the trait in question.

Question 25

When may a court allow an opposing party to examine a recorded recollection? When must the court allow an examination?

Answer 25

The court may allow the party to examine it “if justice so requires”.

The court must allow the party to examine it if the recorded recollection is used during a witness’ testimony.

Question 26

If a defendant claims that a confession is inadmissable, how is the court to proceed?

Answer 26

The defendant is entitled to a hearing on the issue, the hearing must be conducted so that the jury cannot hear it.

Question 27

When are specific acts of good character admissible for a defendant?

Answer 27

Only when the character trait is the ultimate issue in the case.

Question 28

When is an expert’s opinion considered to be supported by a proper factual basis? What are the three possible sources of information?

Answer 28

(1) Facts that the expert knows from his own observation;
(2) Facts presented in evidence at trial and submitted to the expert, usually through a hypothetical question;
(3) Facts not in evidence that were supplied to the expert out of court, and which are the type reasonably relied upon by experts in the particular field in forming opinions on the subject.