EVIDENCE

Question 1

What is the purpose of offering a statement as evidence?

Answer 1

To prove it was said (nonhearsay) or to prove it is true

Question 2

What is nonhearsay?

Answer 2

Verbal act or legally operative words, state of mind, effect on listener or reader, prior statements of a trial witness and opposing party’s statements

Question 3

What are some examples of verbal acts?

Answer 3

Defamation, words that show contract formation, etc.

Question 4

What is the state of mind evidence?

Answer 4

Statements like ‘I’m the Queen of England’ to show declarant is crazy.

Question 5

What is the effect on listener or reader used for?

Answer 5

Usually offered to prove motive or intent

Question 6

What prior statements of a trial witness can be used as nonhearsay?

Answer 6

1) Prior statement of identification.
2) Prior inconsistent statement (made under oath at a formal trial, hearing, or deposition and the declarant is at trial subject to cross-examination concerning the statement).
3) Prior consistent statement used to rebut a charge of recent fabrication of improper motive/influence.

Tip: the declarant must be testifying at trial for these to apply.

Question 7

Which are the opposing party’s statement that can be used as non hearsay?

Answer 7

1) Any statement made by the opposing party that is offered against that party
2) Adoptive admissions (statements a person adopts through silence)
3) Agent/employee statements made by the agent/employee offered against the principal during the existence of the relationship and concerning a matter within the scope of the agency/employment
4) Statements by co-conspirators made during the course of and in furtherance of the conspiracy

Tip: Don’t make this harder than it is. If a party says something, it can be used against them without a hearsay issue.

Question 8

What are the hearsay exceptions in which the declarant must be unavailable?

Answer 8

1. **Forfeiture by wrongdoing **
2. Former testimony
3. Statement against interest
4. Dying declaration
5. Statement of personal or family history (e.g., birthdate and marriage date)

Question 9

What constitutes forfeiture by wrongdoing (witness tampering)?

Answer 9

A party engages in wrongdoing to make a witness unavailable for trial.

Question 10

What constitutes former testimony?

Hearsay exception

Answer 10

Declarant is unavailable and had given testimony at a former proceeding or deposition, and it is admitted against a party or someone in privity who had the motive and opportunity to develop the statement.

Question 11

What is a dying declaration?

Answer 11

Declarant is unavailable, the statement was made while he believed death was impending, it concerns the cause or circumstances of death, and it is used in a homicide or civil case.

Tip: memorize these elements!

Question 12

What is a statement against interest?

Answer 12

Declarant is unavailable and made a statement he knew was against his interest at the time the statement was made.

Question 13

What is the Sixth Amendment Confrontation Clause?

Answer 13

In criminal cases, if the statement is testimonial, the declarant is unavailable, and the defendant had no opportunity to cross-examine the declarant, the statement will generally not be admitted (pursuant to the Sixth Amendment Confrontation Clause).

Question 14

What are the hearsay exceptions in which the declarant may be available or unabailable?

Answer 14

1. Present sense impression
2. Excited utterance
3. Then-existing mental, emotional, or physical condition
4. Statement for medical treatment or diagnosis
5. Recorded recollection
6. Business records
7. Public records (made by an agency, but not police reports in criminal cases)
8. Learned treatises (read into evidence if an expert is on the stand)
9. “Catchall” exception (for trustworthy statements)
10. Others (reputation about character, familial relations, etc.)

Question 15

What is a present sense impression?

Answer 15

Declarant describes or explains events as it is happening or immediately thereafter.

Question 16

What is an excited utterance?

Answer 16

There is a startling event, the declarant makes a statement while under the stress of
excitement, and the statement relates to the event.

Question 17

What is a statement of then-existing mental, emotional, or physical condition?

Answer 17

Declarant states his then-existing feelings, physical conditions, or intent.

Question 18

What is a statement for medical treatment or diagnosis?

Answer 18

Declarant makes a statement about past or present symptoms or the cause(s) to get diagnosed or treated.

Question 19

What is a recorded recollection?

Answer 19

A witness has insufficient recollection of the event, but he had personal knowledge of the event at a former time, made or adopted a statement while the event was fresh in his memory, and can vouch for the accuracy of the statement when made or adopted.

Question 20

What are business records?

Hearsay exception

Answer 20

A record made in the regular course of business at or about the time the event occurred that contains information observed by employees of the business (or an independent hearsay exception exists).

Question 21

What reasons there are for excluding relevant evidence?

Answer 21

Relevant evidence is admissible but may be excluded if the probative value is substantially outweighed by a danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.

Question 22

What evidence is permissible at the judge’s discretion?

Answer 22

Real, demonstrative, and experimental evidence are permissible in the judge’s discretion.

Question 23

In which cases a duplicate of a writing, recording, or photograph is inadmissible?

Answer 23

An original writing, recording, or photograph is generally required, but a duplicate is admissible to the same extent as an original unless it is unfair to admit it or there is a genuine question about authenticity

Question 24

What is the best-evidence rule?

Answer 24

One only needs to present documentary evidence when one wants to prove the contents of a writing. This means that the writing is (1) a legally operative document (e.g., a will, contract, etc.), or (2) the witness learned about the event solely from the writing or record and has no independent knowledge of the event.

Tip: this is often the wrong answer choice on the MBE.

Question 25

What are the rules corcening use of **summaries**?

Answer 25

A party may use a summary, chart, or calculation if records are voluminous. However, the proponent must allow the other parties to examine or copy the originals or duplicates and the court may order them to be produced.

Question 26

What does the **completeness rule** state?

Answer 26

When a party introduces part of a writing or transaction, the other party can ask that the rest of it be introduced as well if, in fairness, the rest ought to be considered contemporaneously with it. By introducing the writing or transaction, the party initially offering the evidence has waived any objections based on hearsay, competency, etc.

Question 27

Character evidence is generally *inadmissible* for what?

Answer 27

Character evidence is generally *inadmissible* to prove that someone acted in accordance with his character.

Question 28

In what cases is character evidence admissible in civil cases?

Answer 28

In **civil cases**, it is only admissible in cases regarding **negligent entrustment** or hiring, **defamation**, and **child custody**. It can be proven by (**ROS**) **r**eputation, **o**pinion, and **s**pecific acts.

Question 29

In what cases is character evidence admissible in criminal cases?

Answer 29

In criminal cases, the defendant must open the door and can use (**RO**) **r**eputation or **o**pinion evidence. The prosecution can use (**ROS**) **r**eputation, **o**pinion, and **s**pecific acts.

Question 30

What is **habit and routine practice** evidence?

Answer 30

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

Question 31

How a defendant’s prior bad acts may be proven?

Answer 31

A defendant’s prior bad acts may be admissible to prove (**MIMIC**): **m**otive, **i**ntent, lack of **m**istake, **i**dentity, **c**ommon scheme or plan. ## Footnote Tip: MIMIC can be used in criminal and civil cases.

Question 32

What is **refreshing recollection**?

Answer 32

If a witness’s memory fails him, he may be shown a document or record to jog his memory.

Question 33

What is presumed about the **competency of witnesses**?

Answer 33

Every witness is generally presumed to be competent regardless of religious beliefs, bias, etc

Question 34

What is **judicial notice**?

Answer 34

The court may **judicially notice** a fact that is not subject to reasonable dispute because it is **generally known** within the jurisdiction or it can be **accurately and readily determined** from sources whose accuracy cannot be questioned.

Question 35

What are the **roles of judge and jury**?

Answer 35

The judge decides if evidence is admissible. The jury decides issues of authentication and credibility

Question 36

What is **limited admissibility**?

Answer 36

Sometimes evidence is admissible for one purpose and not another. In such a case, a court may give a limiting instruction to the jury.

Question 37

What is a **presumption**?

Answer 37

A “**presumption**” means that a certain fact is assumed to be true unless the other side provides evidence to the contrary. In a civil case, a presumption can shift the burden of proof to the party against whom the presumption is directed. But the burden of persuasion is not affected and it remains on the party who had it originally.

Question 38

What is the **scope of examination** during a **cross-examination**?

Answer 38

**Cross-examination** (i.e., the questioning of a witness by an opponent) should only cover matters within the scope of direct examination and matters affecting credibility.

Question 39

When can **leading questions** be used?

Answer 39

**Leading questions** (i.e., those that suggest an answer, like “isn’t it true that…”) are permitted on cross-examination. They are only allowed on direct examination (a) to develop preliminary matters (e.g., name and address), (b) for young or forgetful witnesses, or (c) for hostile witnesses or the adverse party.

Question 40

In **self-defense cases**, what type of evidence may a criminal defendant offer regarding the victim?

Answer 40

A criminal defendant may offer evidence of the victim’s violent character using (**RO**) **r**eputation or **o**pinion evidence. The prosecution may rebut by introducing (**RO**) **r**eputation or **o**pinion evidence of the victim’s or defendant’s character.

Question 41

When can **prior sexual misconduct of a defendant** be admitted in court?

Answer 41

If a **defendant** is accused of a **sexual assault** or child molestation, the court may admit evidence that the defendant committed **any other sexual assault** or child molestation. The evidence may be considered on **any matter to which it’s relevant**, including that he acted in accordance with his character. ## Footnote Tip: remember that only specific acts can be offered.

Question 42

In a criminal case, what can specific instances of a **victim's prior sexual misconduct** be used to prove?

Answer 42

In a **criminal case, specific instances** can be offered to prove the source of **semen, injury**, or other physical evidence; **consent**; or when excluding it would violate the defendant’s **constitutional rights**.

Question 43

In a civil case, when is evidence of a victim's prior sexual misconduct admissible?

Answer 43

In a **civil case**, evidence is not admissible unless the probative value substantially outweighs the danger of harm or unfair prejudice. The court may admit reputation evidence only if the victim places it in controversy.

Question 44

What can a **prior inconsistent statement** used for?

Answer 44

If a party makes a prior statement that is inconsistent with her testimony at trial, it may be used for impeachment. Tip: it may also be used as “substantive evidence” (i.e., the truth of the matter asserted) if it falls within a hearsay exception or exclusion (e.g., prior inconsistent statement or an opposing party’s statement).

Question 45

What is required for extrinsic evidence to be permitted in the case of a prior inconsistent statement?

Answer 45

Extrinsic evidence may be used only if the witness is given an opportunity to explain or deny the statement at some point. This does not apply if the witness is the opposing party, not in court at all, or if the interests of justice require.

Question 46

What type of bias can be suggested regarding a witness?

Answer 46

If a witness is a family member, friend, enemy of a party, paid by the party, granted immunity, or if other circumstances show bias, then that can be used to suggest the witness has motive to lie.

Question 47

When can extrinsic evidence be used regarding bias of a witness?

Answer 47

Extrinsic evidence may be used only if the witness is asked about the facts that suggest bias and the witness denies those facts.

Question 48

What types of convictions are allowed into evidence under the federal rules?

Answer 48

There are two categories of convictions that are allowed into evidence under the federal rules: (1) felony or misdemeanor convictions where the prosecution is required to prove an act of dishonesty or false statement as part of the crime—these are automatically admitted, and (2) felony convictions that meet a balancing test that weighs the probative value and prejudice.

Question 49

What is the time limit for admitting evidence of a conviction?

Answer 49

If more than 10 years have passed since the witness’s conviction or release from confinement for it, whichever is later, evidence of the conviction is generally not admissible.

Question 50

Can specific instances of misconduct be used to impeach a witness?

Answer 50

If a witness engaged in a “bad act” that is probative of truthfulness (e.g., lying and cheating) he may be questioned about it on the stand.

Question 51

Is extrinsic evidence permitteed regarding specific instances of misconduct?

Answer 51

Extrinsic evidence is not permitted! If the witness denies the misconduct, evidence is not admissible to prove that it occurred.

Question 52

What conditions allow for the impeachment of a witness due to contradiction?

Answer 52

A witness may be impeached during cross-examination if she made a mistake or lied about anything she said during direct examination.

Question 53

Can extrinsic evidence be used against a witness that contradicts himself?

Answer 53

If the witness won’t admit her mistake, extrinsic evidence may be used as long as the fact at issue is not a collateral (irrelevant) fact. ## Footnote One must confront the witness prior to offering extrinsic evidence.

Question 54

Can sensory deficiencies ot a witness be used against him?

Answer 54

Anything that concerns the witness’s perception or memory (e.g., if the witness is deaf, blind, has a bad memory, etc.) can be used to suggest the witness is mistaken. ## Footnote Extrinsic evidence is permitted.

Question 55

What is required for a party to call a character witness for truthfulness?

Answer 55

A party may call its own character witness to testify that the witness in question has a bad reputation for truthfulness or, in the character witness’s opinion, that the witness is not truthful. ## Footnote The witness is extrinsic evidence.

Question 56

What qualifies a witness as an expert?

Answer 56

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify if it is **helpful** to the trier of fact and based on **sufficient** facts or data.

Question 57

What are the bases on which an expert may base their opinion?

Answer 57

An expert may base an opinion on (1) **personal knowledge**, (2) facts that are **in the record** and made known to the expert by a hypothetical or testimony at trial, or (3) facts not in the record if they are the **kind of facts** other experts would reasonably rely on.

Question 58

What is the **ultimate issue rule**?

Answer 58

An expert opinion may embrace an ultimate issue. But, in a criminal case, an expert witness must not state whether the defendant had the requisite mens rea.

Question 59

What are the requirements for a lay witness's opinion to be admissible?

Answer 59

A lay witness’s opinion is admissible if it is **rationally** based on the witness’s perception; **helpful** to determining a fact; and **not** based on scientific, technical, or other specialized knowledge. A lay witness must have **personal knowledge**.

Question 60

What is required for a court to exclude a nonparty witness?

Answer 60

At a party’s request a court must order a nonparty witness to be excluded. However, a court cannot authorize excluding a ***party***, a person whose presence is essential to the claim or defense, or someone authorized to be present.

Question 61

What must a proponent produce to authenticate an item?

Answer 61

The proponent must produce evidence **sufficient to support a finding** that the item is what the proponent claims it is.

Question 62

Who can authenticate handwriting?

Answer 62

To authenticate handwriting, one may use (1) a **lay witness** who was familiar with the handwriting **before the litigation**, (2) an **expert witness**, or (3) the **trier of fact** (e.g., the jury may compare the handwriting with an authenticated specimen).

Question 63

Who can authenticate a voice?

Answer 63

Anyone can authenticate a **voice**—including a lay person—even if the person acquired familiarity with the voice solely for the purpose of litigation

Question 64

Who can authenticate a photograph?

Answer 64

Anyone who has **personal knowledge** of the scene in the photograph may authenticate it. ## Footnote Tip: the photographer is not necessary to authenticate a photograph!

Question 65

Which are the privileges regarding confidentiality?

Answer 65

* **Spousal immunity** * **Confidential communications** * **Attorney-client privilege** * **Psychotherapist-patient privilege** * **Work-product doctrine**

Question 66

What are the conditions for **spousal immunity** in a criminal trial?

Answer 66

(1) it applies in a **criminal trial**, (2) it is held by the **witness spouse**, and (3) the parties must be **married at the time of trial**.

Question 67

What are the conditions for **confidential communications** between spouses?

Answer 67

(1) it applies in a **civil or criminal trial**, (2) it is held by **both spouses**, (3) the **communication was confidential**, and (4) it was made **during the marriage**.

Question 68

What does **attorney-client privilege** protect?

Answer 68

The privilege applies to **confidential communications between an attorney and client** (or either’s agent) or prospective client **made for the purpose of obtaining legal advice**.

Question 69

What does the **psychotherapist-patient privilege** protect?

Answer 69

Confidential communications between a patient and a doctor for the purpose of diagnosis or treatment are protected.

Question 70

Under what conditions can **work-product doctrine** materials be discovered?

Answer 70

Material prepared for litigation may not be discovered absent a showing of a “**substantial need” and “undue hardship**.”

Question 71

Is **insurance coverage** admissible to prove negligence?

Answer 71

No, **insurance coverage** is inadmissible to prove negligence but may be used for other purposes (e.g., to show agency, ownership, control, or bias).

Question 72

Are **subsequent remedial measures** admissible to show negligence?

Answer 72

**Subsequent remedial measures** are inadmissible to show negligence or guilt but may be used for impeachment, to show ownership or control, or to show feasibility of precautionary measures if disputed.

Question 73

Are offers to settle a disputed claim and statements made during negotiations admissible?

Answer 73

No

Question 74

Is an offer to pay medical bills admissible to prove liability?

Answer 74

No

Question 75

Is a **guilty plea** admissible as evidence?

Answer 75

Yes

Question 76

Are statements made during negotiations that did not result in a guilty plea admissible?

Answer 76

No. An offer to plead guilty, a guilty plea later withdrawn, a no contest plea, and statements made during negotiations that did not result in a guilty plea are inadmissible.