Evidence

Question 1

Role of Judge vs Role of Jury

Answer 1

Jury: decides questions of fact.

Court: decides questions of law. Question of whether a piece of evidence gets in is a question of law.

Question 2

Preliminary Questions

Answer 2

Evidence issues which are decided prior to trial through motions in limine or preliminary hearings. For preliminary factual decisions, the court is not bound by the federal rules of evidence.

Question 3

Are preliminary hearings conducted in front of jury?

Answer 3

Conducted outside presence of jury in three circumstances:
1. When the issue is the admissibility of a confession in a criminal trial;
2. When the defendant in a criminal case is a witness and makes that request; and
3. When the interest of justice otherwise require – where it would be unfairly prejudicial to a party.

Question 4

Challenging an evidence ruling on appeal

Answer 4

Evidentiary ruling can be reversed on appeal only if:
1. A substantial right of a party has been affected – it was not a harmless error; and
2. The judge was notified of the mistake of trial and given a chance to correct it.

Question 5

Plain error rule

Answer 5

An error that is obvious on its face. An appellate court will sometimes reverse the case to prevent a miscarriage of justice, even if no objection or offer of proof was made at trial.

Question 6

Notifying the court of an evidentiary issue to preserve it for appeal

Answer 6

Either through objection or offer of proof.

Objection: if the court has admitted evidence that should have been excluded, the party must subject and explain why the evidence should have been excluded.

Offer of proof: if the court refuses to admit evidence that should have been admitted, must make an offer of proof on the record. An offer of proof is an explanation to the court what the evidence would have been and why it should have been admitted. Not required if substance and logic of the evidence is straightforward and clear on surface.

Question 7

Limited Admissibility Rule (Rule 105)

Answer 7

Evidence may be admissible for one purpose, but not for another purpose. Upon request of the objecting party, the court will give a jury a limiting instruction.

Question 8

Rule of Completeness (Rule 106)

Answer 8

If a party introduces part of a written statement, the opposing party may introduce other portions of that statement that are necessary to put the admitted portion into perspective. Other portions may be introduced, even if they would otherwise be inadmissible.

Question 9

Judicial Notice

Answer 9

Courts acceptance of a fact is true without requiring formal proof. If not subject to reasonable dispute, the court will instruct the jury to accept that fact is proven.

Facts not subject to reasonable dispute:
- Generally known within the territorial jurisdiction of the court;
- Accurately and readily determined by sources whose accuracy cannot reasonably be questioned.

In criminal cases, the court will instruct the jury that it may, but does not have to, find the fact. In civil cases, the court will instruct the jury that it must accept the fact as proven.

Question 10

Leading Questions

Answer 10

A lady question suggests the answer within the question. Generally not permitted on direct examination (when you call your own witness)..

EXCEPTIONS:
- to elicit preliminary background information not in dispute;
- the witness has trouble communicating due to age or infirmity; or
- When you call a hostile witness or an adverse party.

Question 11

Refreshing a witnesses’ recollection

Answer 11

Allowed to help the witness remember by showing them a document or something else, typically a person‘s notes. The witness can look at the notes, put the note aside, and proceeded to testify from present memory – this is called present recollection.

The document does not become evidence, and the witness cannot read from it. The opposing party is allowed to look at and inspect the document, and may show it to the jury.

Question 12

Cross-examination

Answer 12

Courts limit the scope of cross examination to the subject of direct examination, but they are permitted to allow broad inquiry. Allowed to use leading questions in cross examination.

Question 13

Improper Questions - evidence

Answer 13

1. Compound questions – a question that asks for several answers.
2. Facts not in evidence – a question that assumes facts which aren’t evidence.
3. Argumentative questions – not really a question, just intended to bother or harass the witness.
4. Questions calling for inappropriate conclusions – a conclusion the witness is not qualified to make.
5. Repetitive questions – has already been asked and answered. The lawyer can continue to ask the question if the witness has not actually answered it.

Question 14

Exclusion of Witnesses

Answer 14

Witnesses must be excluded from the courtroom upon the request of either party to prevent the witnesses from hearing the testimony of others.

EXCEPTIONS:
- a witness who is essential to the presentation of the case;
- a person, such as a crime victim, who is permitted by state rule to remain in the courtroom;
- a party in the case

Question 15

Burden of Production

Answer 15

Party must produce enough evidence to get the issue to the jury

Question 16

Burden of persuasion

Answer 16

Party must convince jury to decide in their favor

Question 17

Civil Cases - standard of burden of proof

Answer 17

Standard is usually preponderance of the evidence

Question 18

Criminal cases - Standard of burden of proof

Answer 18

Reasonable doubt standard

Question 19

Destruction of evidence - presumption

Answer 19

If a party destroys evidence, there is a presumption that it would have been adverse to that party

Question 20

FRE Rule 401 and 402

Answer 20

Evidence must be relevant, and if evidence is irrelevant, it is in admissible. All relevant evidence is admissible, unless excluded by a specific rule.

Relevance makes the fact an issue more likely than it would be without the evidence – has a different definition than the everyday use of the word

Question 21

Direct v Circumstantial evidence

Answer 21

Direct evidence - equivalent to what it was offered to prove – for example, eyewitness testimony

Circumstantial evidence - evidence from which affect can be inferred

Question 22

Exclusion of relevant evidence (FRE 403)

Answer 22

Even if evidence is relevant, and there is no rule of evidence excluding it, court has discretion to exclude relevant evidence if certain risks substantially outweigh its probative value. Risks include confusion of the issues, unfair, prejudice, misleading, the jury, or a waste of time.

Question 23

Character Evidence - General rule

Answer 23

A party is prohibited from using character evidence to prove that a person acted in conformity with a particular character trait.

Character evidence can be used when a character is an issue in the case

Question 24

Methods of proving character

Answer 24

When character evidence admissible, it can only be proved by reputation or opinion testimony – it cannot be proved by specific bad acts that aren’t related to the course of action

Question 25

Character evidence in civil cases

Answer 25

A propensity argument can almost never be made. In a civil case involving child molestation or sexual assault, the plaintiff can introduce evidence of the defendant prior act of that sort.

Question 26

Character evidence in criminal cases - D’s bad character

Answer 26

Prosecution is not allowed to introduce the bad character of defendant

Question 27

Character evidence in criminal cases - D’s good character

Answer 27

A defendant can introduce evidence of a positive character trait. This opens the door dash the prosecutor is then free to rebut the defendant claims by attacking the defendant’s character. If this happens, the prosecutor can cross examine the defendants witnesses with questions about specific acts from the past.

Question 28

Criminal cases - Evidence about victim’s character

Answer 28

A defendant can bring evidence about the victims character., Including evidence about a pertinent trait of the victim – usually only happens in homicide or assault cases when the defendant is arguing at the victim started the altercation. This opens the door, the prosecution can introduce evidence that the victim is not violent, using reputation or opinion, but not specific acts

Question 29

Criminal cases - D’s past crimes or bad acts

Answer 29

In some cases, evidence of a defendant pass, crimes or bad acts can be introduced for some other purpose – not used for propensity. Other purposes are: - Prior act relevant for motive; - Prior act relevant for intent; - Absence of mistake; - modus operandi; - common act or scheme.

Question 30

Habit Evidence

Answer 30

Habit evidence is allowed to prove action in conformity with the habit. Evidence of something that is routine, regular, automatic – this can also include the habits of an organization.

Question 31

What is a competent witness?

Answer 31

Anyone who has personal knowledge of the matter about which they’re going to testify and he’s willing to make an oath to tell the truth

Question 32

FRE - Testimonies of children

Answer 32

Whether the child has personal knowledge and is mature enough to understand the obligation to tell the truth and his willing to promise to tell the truth

Question 33

Dead Man’s Statute (not included in FRE)

Answer 33

Courts can limit the ability of witnesses to testify about transactions with people who are deceased

Question 34

Juror as a witness.

Answer 34

A juror cannot testify as a witness in a trial in front of the jury in which he sits.

Question 35

FRE 606(b)

Answer 35

A juror cannot testify as a witness in an inquiry into the validity of a verdict or indictment as to: - Any statement made during deliberations; - Any incident that occurred during deliberations; and - the effect of anything upon any juror’s mind.

Question 36

Exceptions to FRE 606(b)

Answer 36

A juror may testify after trial about whether: - extraneous, prejudicial information was improperly brought to the jury’s attention; - influence was improperly brought to bear on a juror; - A clerical or technical error was made in entering the verdict on the verdict form; or - A juror made a clear statement that he relied on racial stereotypes in convicting a D.

Question 37

Impeaching a witness

Answer 37

Three ways to impeach witness: - show the witness is dishonest and has a bad character for truthfulness and untruthfullness - Bias - showing that the witness has some reason to lie or shade the facts - Sensory competence - the witness is mistaken in someway – did not see or hear things as well as they think

Question 38

Impeaching a witness - showing character for truthfulness or untruthfullness

Answer 38

Can introduce character witnesses who will testify that the target witness is dishonest – can be attacked through character or reputation, not prior specific incidents.

Question 39

FRE 608(b)

Answer 39

A witness can be cross-examined on specific acts of dishonesty. It must be probative of untruthfulness – I have to take the victims answer. Must have good faith basis for asking the question.

Question 40

Criminal convictions - Impeaching a witness for truthfulness or untruthfulness

Answer 40

Can be used to impeach a witness in 4 ways: - crimes involving dishonesty or false statement. - If witness was convicted of felonies (crimes punishable by death or more than one year in prison). Court will allow impeachment with the prior felony conviction, unless the risk of prejudice substantially outweighs the probative value. If it is a criminal defender – evidence of a prior felony conviction is admissible only if its proper value outweighs a prejudicial effect. - Old convictions – if more than 10 years have passed since the conviction or release from confinement conviction is only admissible if probative value substantially outweigh prejudicial effect, and the proponent gives an adverse party reasonable advance notice. - pardon – conviction may not be used for impeachment if witness has been pardoned.

Question 41

Impeaching a witness - Prior inconsistent statement

Answer 41

A witness can be impeached because of a prior inconsistent statement. Can be done with any kind of statement, and can be proved by extrinsic evidence. (only if the witness is given the opportunity to deny or explain the evidence)

Question 42

Impeachment of a hearsay declarant

Answer 42

When an out of court statement comes in through an exception to the hearsay rule, the person who made that statement is acting like a witness and can be impeached.

Question 43

Rehabilitation of an impeached witness

Answer 43

Can happen in one of 3 ways: - Give witness chance to clarify and explain - Prior inconsistent statement - can be rehabilitated by a statement that occurred before the motive to give an inconsistent statement arose; and - If witness is being attacked as having bad character for truthfulness, evidence can be introduced bolstering witnesses’ character for truthfulness

Question 44

Lay Witnesses - Requirements for admissibility (opinion)

Answer 44

General rule: Facts not opinions required. Opinions allowed with respect to common sense impressions (appearance, speed etc). For lay witness opinion to be admissible: - based on the perception of the witness; - Helpful to a clear understanding of the witnesses testimony, or the determination of a fact in the case.

Question 45

Expert witnesses - when can they offer opinions or conclusions

Answer 45

Where: - the subject matter is scientific, technical, or other specialized information; and - it will help the trial affect understand the evidence or determine a fact an issue.

Question 46

Daubert Test - Expert witness

Answer 46

Courts require that the expert: - be qualified by knowledge, skill, experience, training or education; - Base, his testimony was sufficient facts or data; - Base his testimony on reliable principles and methods; and - Applied the principles and methods reliably to the facts of the case.

Question 47

Expert testimony - Testifying about mental state

Answer 47

Courts do not allow experts to testify about whether a criminal defendant had the requisite mental state of any element of a crime or defense.

Question 48

Tangible evidence - Authentication

Answer 48

Authentication required for all tangible evidence – must show evidence sufficient to support the document or thing is what the party claims it to be.

Question 49

Real evidence - Ways to authenticate

Answer 49

- Witness testimony - Distinctive features or markings - Chain of custody - accounting for whereabouts of an item along an unbroken chain

Question 50

Documentary evidence - ways to authenticate

Answer 50

- by stipulation of the parties; - eyewitness testimony, combined with distinctive features; - Reply letter doctrine - authenticated by evidence that it was written in response to another letter - Ancient documents - handwriting verification Some documents can be self authenticating

Question 51

Ancient documents

Answer 51

- at least 20 years old; - In a condition unlikely to create suspicion; and - Was found in a place where such documents would be if they were authentic

Question 52

How to verify handwriting?

Answer 52

Expert or jury comparing it to a known sample; or lay witness with personal knowledge of the handwriting from before the current litigation.

Question 53

Self-authenticating documents (FRE 902)

Answer 53

INCLUDES: - public documents bearing a government seal; - Certified copies of public records; - Official publications issued by a public authority; - Trade inscriptions; - notarized documents; -Commercial paper

Question 54

Authenticating telephone communications

Answer 54

— caller recognized the speaker’s voice; - the speaker knew something that only a particular person would know; - the caller dialed the number believed to be the speakers, and the speaker identified themselves upon answering the phone; - Caller dialed business and spoke with a person who answered questions about the business regularly conducted over the phone

Question 55

Best evidence Rule (original document rule)

Answer 55

Rule - no describing the documents instead of showing them, unless you really need to. Witness testimony about the document not allowed when you can just produce the actual document.

Question 56

Best evidence rule - Duplicates

Answer 56

Duplicates are fine, unless: - there is a genuine question about the authenticity of the original; or - In fairness, the original should be required.

Question 57

Exceptions to best evidence rule

Answer 57

- Unavailable - Original has been lost or destroyed, cannot be obtained by any judicial process; or party against whom document is introduced had control of original and knew it was going to be at issue in trial. - Public records - Certified copy allowed - Voluminous writings - can be presented in form of chart or summary, but originals or duplicates must be made available for inspection by other party. - Admission by a party

Question 58

Parol Evidence Rule

Answer 58

General rule: Excludes evidence that, if introduced, would change the terms of a written contract. If contract is fully integrated, no extrinsic evidence that would change the terms. Exceptions: - To clarify an ambiguity; - To prove a custom of trade or course of dealing; - Show fraud, duress, mistake or illegal purpose; - Show whether consideration has or has not been paid

Question 59

FRE - Privileges

Answer 59

FRE - no specific privilege provisions Federal courts instructed to: - deferred to general principles of federal common law when it comes to most privileges; - When deciding state law issues when sitting in diversity jurisdiction, apply specific state laws regarding privileges

Question 60

Attorney-Client Privilege

Answer 60

General Rule: protects confidential communication between a client and a lawyer, if the communication was for the purposes of securing legal advice. Neither of the lawyer or the client can be forced to testify about the communication.

Question 61

Waiver of attorney-client privilege

Answer 61

-failure to assert a privilege in a timely manner; - Voluntary disclosure of the information; - express waiver, even by contract - Failure to take precautions on the part of the lawyer

Question 62

Attorney-client privilege: Corporate Client

Answer 62

Depends on who the client is on behalf of corporation. Some courts will use “control group” test - people with sufficient power to control conduct of corporation. Federal courts say the focus should be on the nature of the communication. Communication made by employee about matters within scope of employment for purposes of seeking legal advice is privileged, even if employee is not member of control group.

Question 63

Exceptions to attorney-client privilege

Answer 63

- Future crime or fraud: If client communications are for purposes of getting lawyer’s help with furtherance of a crime or fraud, communication is not privileged. - Disputes between the lawyer and the client.

Question 64

Work-Product Doctrine

Answer 64

Applies to documents prepared by a lawyer in anticipation of litigation - will be protected. Mental impressions of the attorney (trial tactics, conclusions, theories of the case) cannot be obtained. Some type of work product that can be obtained: - where the party demonstrates substantial need for the information; and - Shows that cannot otherwise be obtained without undue hardship.

Question 65

Physician-Patient Privilege

Answer 65

Not recognized under federal law, but recognized by many states. Statements made by a patient to a doctor for the purpose of obtaining medical treatment are privileged. Exceptions: No privilege if: - the information was for reasons other than treatment; - the communication was made for some illegal purpose; - a dispute exists between the doctor and patient; or - the patient agreed to waive the privilege

Question 66

Psychotherapist/patient privilege

Answer 66

Recognized in federal court, and most jurisdictions. Applies to confidential communication communications between a patient and a psychiatrist, psychologist, or licensed social worker for the purpose of treatment. Exceptions: - If the communication was the result of a court ordered exam; or - Taken as part of a commitment proceeding

Question 67

5th amendment protection against self-incrimination

Answer 67

Prevent the witness from being required to give incriminating testimony against themselves – does not apply to corporations. Applies only to current statements. If there is no risk of criminal trouble, there is no privilege.

Question 68

Confidential marital communications

Answer 68

Protects communications made between spouses in confidence in reliance on the sanctity of marriage – it is held by both spouses. The spouse can refuse to reveal confidential communications, but also prevent the other from revealing the communications. Survives after marriage.

Question 69

Spousal Immunity

Answer 69

Gives the spouse the right to refuse to testify in a criminal case against the other spouse. Covers testimony about anything, whether before or during marriage, but applies only if you are currently married to the person. Exceptions: - if one spouse is suing the other; or -When one spouse is charged with a crime against the other spouse or the children of either of the spouses

Question 70

Admissibility of evidence of liability insurance

Answer 70

Evidence that a person was or was not insured against liability is not admissible to prove negligence or wrongdoing. Exception is when evidence of insurance covering is relevant for some other purpose

Question 71

Subsequent Remedial Measures

Answer 71

Evidence of repairs or changes made after an accident are not admissible to prove negligence, culpable conduct, defective product, or design, or an inadequate warning.

Question 72

Settlement offers or negotiations

Answer 72

A settlement offer made by any party is not admissible to prove the validity or the amount of a disputed claim. It also cannot be used as a prior inconsistent statement to impeach, but may be admissible if it serves another purpose, such as proving bias.

Question 73

Offers to pay medical expenses

Answer 73

Not admissible to prove liability for injuries. Statements made or conduct accompanying the offer can be admissible.

Question 74

Plea negotiations

Answer 74

Not admissible in a civil or criminal case.

Question 75

Victim’s past sexual conduct

Answer 75

General rule – evidence of victims past sexual behavior or sexual predisposition is not admissible in a criminal case involving sexual misconduct. Exceptions - Criminal case: - Evidence of the victims past sexual conduct is admissible to show the defendant was or was not the source of physical evidence, or to show the victims past sexual conduct with the defendant to show consent. - Maybe admissible in certain circumstances when exclusion would be too unfair to the defendant. Exceptions - Civil: - Evidence of the victims pass, sexual conduct or predisposition is admissible only if it’s probative value outweigh the danger of harm to the victim and unfair prejudice to any party. - Evidence of reputation is only admissible if the victim raises it.

Question 76

Defendant’s past sexual conduct

Answer 76

In criminal or civil case where a defendant is accused of committing an active sexual assault or child molestation, evidence that the defendant committed any other sexual assault or child molestation is admissible to prove any relevant matter.

Question 77

Hearsay - Definition

Answer 77

An out of court statement offered to prove the truth of the matter asserted.

Question 78

Is a statement offered to show effect on person who heard it hearsay?

Answer 78

No

Question 79

Multiple hearsay

Answer 79

If there is multiple levels of hearsay, you will need an exception or exclusion of each level of hearsay for the statement to be admissible

Question 80

Exclusion from hearsay rule - Prior inconsistent statement of witness

Answer 80

If the person who made the statement testifies as a witness and is subject to cross examination, a prior inconsistent statement made under oath at a trial, hearing, or deposition are admissible as substantive evidence.

Question 81

Exception to hearsay rule - Prior consistent statements

Answer 81

Can be used to rehabilitate a witness when accused of recent fabrication or improper motive. Can also be used as proof of the truth of a matter asserted. If person who made the statement is available to testify

Question 82

Exception to hearsay rule - Prior statement of identification

Answer 82

Previous out of court identification other person after perceiving that person is admissible. For example, a lineup at a police station.

Question 83

Exception to hearsay rule: Admissions of party opponent

Answer 83

If a statement that is being introduced against a party is the party’s own prior statement, then it is not hearsay. Must be offered by opposing party.

Question 84

Exception to hearsay rule: Adoptive Admissions

Answer 84

Statement made by something else, which is then expressly or impliedly adopted. Statement can sometimes be adopted by silence: - Party heard statement and understood; - party had ability to respond; and - a reasonable person similarly situated would have denied the statement.

Question 85

Exception to hearsay rule: Vicarious admissions

Answer 85

Statements made by persons authorized to speak on a parties behalf (PR reps, lawyers). Include statements made by agents or employees if made within the scope of employment.

Question 86

Exclusion from hearsay: Co-conspirators

Answer 86

Statements made by co-conspirators during and in furtherance of a conspiracy are admissible against other co-conspirators.

Question 87

Hearsay exception: Declarant unavailable

Answer 87

Must first show that the declarant (person who made the out of court statement) is unavailable to testify as a witness. Declarant is unavailable if: - Is exempted from testifying on grounds of privilege; - Refuses to testify; - Lacks memory of subject matter; - Is dead or too ill; - Is absent and cannot be subpoenaed or otherwise made available

Question 88

hearsay unavailable declarant exception - categories

Answer 88

1. Former testimony - Given by unavailable witness at a prior hearing or deposition. Admissible in subsequent trial if party against whom testimony is being offered had opportunity and similar notice to develop the testimony by direct or cross-examination at prior trial. 2. Dying declarations - If person believes they are dying, believes death is imminent and statement relates to cause or circumstances of death. 3. Statements against interest - at time statement was made, statement was against D’s interests. Reasonable person would not make statement unless it was true. 4. Statements of personal or family history - statements concerning unavailable declarant’s own birth, adoption, marriage, familial relationships are admissible 5. Forfeiture by misconduct - If party engages in wrongdoing for purpose of making D unavailable to testify, then party cannot claim D is unavailable, and door is open to use anything declarant said against party.

Question 89

Steps for hearsay problem

Answer 89

1. Determine whether statement is hearsay by definition - look for out of court statement and if it is being used from proof of truth of matter asserted. 2. See whether it falls into exclusion to hearsay rule. 3. Determine if declarant is unavailable in order to use that set of hearsay exceptions. 4. See whether remaining exceptions might allow admission of hearsay statement

Question 90

Hearsay exception - Present sense impression

Answer 90

Statement made while the declarant was receiving the event (or immediately after) - describes or explains event

Question 91

Hearsay exception - excited utterance

Answer 91

Statement relating to certain event or condition while declarant is still under stress of excitement caused by event or condition

Question 92

Hearsay exception - state of mind

Answer 92

Statement of declarant’s then-existing physical, mental or emotional condition is admissible to prove existence of that condition. Statement of intent can be used to prove action in accordance with that intent.

Question 93

Hearsay exception - Statements made for purpose of medical diagnosis/treatment

Answer 93

Made to describe declarant’s medical history or past or present symptoms, or cause of injury, if pertinent to treatment or diagnosis. Does not need to be made by the patient or to the doctor.

Question 94

Hearsay exception - Past recollection recorded

Answer 94

When witness has inadequate memory to testify about a matter for which a record exists, witness may read record to jury if: - Record concerns matter about which witness once had knowledge; - Record was prepared or adopted by witness when matter is fresh; - record accurately reflects the witnesses knowledge; and - Witness testifies he has insufficient memory of event to testify fully and accurately.

Question 95

Hearsay exception - Business Records

Answer 95

Any record of writing of an act of event made in course of regularly conducted business activity. Admissible if record was made: - At or near time of event it records; - By person with knowledge of event and under duty to report it; - As part of regular practice of the business to make that kind of record.

Question 96

Exception to hearsay - Public Records

Answer 96

Applies to certain records of public agencies and administrators. Three types of things which may be admissible: - Activities; - Observations; and - Factual findings. Police reports are admissible public records in civil cases and against government in criminal cases, but not admissible against criminal defendant.

Question 97

Confrontation Clause (6th Amendment)

Answer 97

Criminal defendants have the right to be confronted with the witnesses against them. Witnesses must testify in front of the accused unless they’re special accommodations necessary to protect interests of vulnerable witness.’

Question 98

Posttrial juror testimony

Answer 98

Posttrial juror testimony is admissible if it concerns (1) extraneous prejudicial information brought to the jury's attention, (2) an outside influence improperly brought to bear on a juror, or (3 a mistake made in entering the verdict onto the jury form.

Question 99

Extrinsic evidence of witnesses prior inconsistent statement

Answer 99

Admissible only if the impeached witness has the opportunity to explain or deny and the adverse party can examine witness about the statement (or if justice so requires)

Question 100

Reply Letter Doctrine

Answer 100

A document can be authenticated by establishing that it qualifies as a reply letter. To do so, the proponent must show that (1) the document was written in response to an earlier communication and (2) the contents make it unlikely that it was written by someone other than the recipient of the earlier communication.