Evidence

Question 1

Assuming Questions

Answer 1

Questions that assume facts not established are prohibited

Question 1

Prior Bad Acts Evidence

(MIMIC)

Answer 1

Prior bad acts, although generally unadmissible as character evidence, are admissible to show:

(MIMIC)

• motive
• intent
• absence of mistake
• identity
• common plan
• opportunity
• preparation

Question 2

Burden of Production

Answer 2

The party with the burden of production must:

• make a prima facie case
• present enought evidence that a reasonable trier of fact could infer proof
  
  • LOVID: location, offense, venue, ID, date

This burden may shift from one party to another

• by rebuttable presumption

Question 2

Burden of Persuasion

(Standard of Proof)

Answer 2

The degree to which legally sufficient evidence must be presented - enough to convince trier of fact.

• preponderance:
  
  • most facts in civil cases
  • facts that make other facts relevant in criminal case
• clear and convincing
  
  • ​fraud
• beyond reasonable doubt
  
  • elements of criminal charges

This burden does not shift.

*** In a criminal case, the state may place the burden of persuasion for defenses that do not controvert the elements of a crime on the defendant.

Question 3

Character Evidence - Defendant

(Criminal Cases)

**always remember to end with unfair prejudice balance**

Answer 3

Evidence of defendant’s character is generally inadmissable to prove propensity

• defendant may present evidence of good character that is inconsistent with type of crime charged
  
  • must be opinion or reputation
  • prosecution may **impeach **with contrary character evidence of same trait​ (D has opened the door)
    
    • defendant does not open the door by taking the stand as a witness
      
      • D may be impeached as witness, but prosecution is still not free to offer character evidence
• where character trait is essential element, defendant may introduce specific prior acts inconsistent with the crime

Question 3

Character Evidence - Defendant

(Civil)

Answer 3

Character evidence is generally not admissable to show propensity or conformity

• character evidence is admissable where it is an essential element of the crime or defense
  
  • defendant’s character for peacefulness is not an element of either battery or self-defense
  • specific instances of conduct are also permissable
    
    • where sexual misconduct is alleged, instances of past sexual assault/child molestation are admissable

Question 4

Character Evidence - Victim

(Criminal Cases)

Answer 4

Defendant may introduce character evidence of victim’s trait that is relevant to a defense asserted

• must be in the form of opinion or reputation
• prosecution may then rebut with good character evidence

Question 4

Character Evidence - Witness

(Criminal Convictions)

Answer 4

Criminal convictions are permitted by admission or extrinsic to impach character for tuthfulness if

• ​the crime involved dishonesty or false statements, or
  
  • ​no matter how prejudicial
• was punishable by death or more than a year in prison and within 10 years ago
  
  • if not within 10 years, probative value must substantially outweigh prejudice and reasonable notice must be given
  • for criminal defendant, probative value must outweigh prejudicial effect
  • court may exclude for any witness if probative value is substantially outweighed by prejudice
• ​may not be admitted if pardoned, expunged, rehabbed
• may introduce juvenile convictions only in a criminal case and only if
  
  • ​witness is not a defendant
  • an adult conviction for that offense would be admissible
  • admission is necessary to fairly determine guilt or innocence
  • can admit to show bias

Question 6

Character Evidence - Witness

(Generally)

Answer 6

Evidence of character for truthfulness is admissable to impeach or bolster

• may only be proved by either opinion or reputation evidence.
• specific instances are permitted to impeach on cross
• criminal convictions are permitted if (by admission or extrinsic evidence)
  
  • ​the crime involved dishonesty or false statements, or
  • punishable by death or more than a year in prison and within 10 years ago
• prior inconsistent statements are permitted
• may not bolster truthfulness unless attacked
  
  • impeachment on the basis of bias or mistake does not count as an attack

Question 7

Character Evidence - Witness

(Prior Inconsistent Statements)

Answer 7

prior inconsistent statements are permitted to impeach character for truthfulness

• not required to show/disclose to witness under cross the statements, but must show/disclose to adverse attorney on request
• extrinsic evidence of statements only permitted if witness is given opportunity to explain or deny and opposing party may examine witness about it as well, unless
  
  • impeaching a hearsay declarant
  • impeaching statement that qualifies as an opposing party’s statement

Question 8

Character Evidence - Witness

(Specific Instances)

Answer 8

Specific instances of conduct are permitted to impeach on cross

• but may not introduce extrinsic evidence to show character (may use to show bias!)
  
  • ​documents whose foundation is established by witness being impeached might not be extrinsic

Question 9

Compound Questions

Answer 9

Questions that have multiple parts and could require multiple answers are prohibited.

Question 11

Cross Examination

Answer 11

Limited to:

• scope of the direct
• credibility

Question 11

Cross Examination

Answer 11

• generally limited to subject matter and witness credibility
  
  • court may allow inquiry into additinal matters
• defendant’s testimony on preliminary matters, such as admissability of confession, has not opened the door to cross-examination on other issues

Question 13

Curative Admission

Answer 13

Where irrelevant evidence is admitted and timely objected to, the court may allow admission of additional irrelevant evidence to rebut.

Question 13

Dead Man Statutes

Answer 13

In some jurisdictions (not Federal jurisdiction), any person directly addected financially by the outcome of a case may be disqualified as a witness

• includes their predecessors in interest
• protects heirs, legatees, devisees, executors, and personal representatives
• protected parties may waive the protection by
  
  • failing to object to disqualified witness testimony, or
  • introducing evidence of a conversation or transaction to which the statute applies

Question 14

Destruction of Evidence

Answer 14

Rebuttable presumption that destroyed evidence was unfavorable to destroying party on a particular issue if opponent establishes 1. Destruction was intentional 2. Destroyed evidence was relevant to the issue 3. Victim did due diligence to substitute for evidence

Question 15

Direct Evidence

Answer 15

Evidence that is identical to the fact it is offered to prove

• eye-witness accounts

Question 16

Evidentiary Objections

Answer 16

Two ways to notify a court of an erroneous ruling:

Objection: counsel provides grounds to prevent evidence from being admitted

Offer of Proof: where evidence is excluded, made outside the presence of the jury to preserve the objection for the appellate court; must explain relevance and admissability of the testimony

• Once a judge has made a definative ruling, no need to renew objection
• no objection necessary where plain error is invoked

Question 17

Expert Witnesses***

Answer 17

Whether expert is sufficiently expert is determined by judge.

Rule 703 does allow an expert to rely on hearsay in reaching a conclusion, so long as other experts in the field would reasonably rely on such information. But the rule distinguishes between expert reliance on the hearsay and admitting the hearsay at trial for the jury to consider. Generally speaking, hearsay will not be admissible when offered only because the expert relied upon it. The probative value of the hearsay in illustrating the basis of the expert’s opinion must substantially outweigh the risks of prejudice and confusion that will occur when the jury is told about the hearsay.

Question 18

Extrinsic Evidence

Answer 18

Extrinsic evidence is

• permissable to impeach a witness’s testimony
• permissable to prove prior inconsistent statement of a witness if:
  
  • witness has opportunity to explain or deny
  • opposing counsel has opportunity to also examine witness about it
• not permissable to prove specific conduct that witness has denied
  
  • document that has foundation in witness’s testimony might not be considered extrinsic

Question 19

Habit Evidence

**look for language such as “always” or “every time”**

**terms “often” or “frequently” are more likely to imply character**

Answer 19

Permissible to show that defendant likely did certain actions on this occasion

• must be sufficiently specific

Question 20

Prior Inconsistent Statements

Answer 20

A witness’s prior statement that is inconsistent with a material part of the witness’s testimony may be used to impeach the witness.

• may be entered as substantive evidence
• extrinsic evidence of a witness’s prior inconsistent statement may be introduced only if
  
  • the witness is given the opportunity to explain or deny the statement and
  • the opposing party is given the opportunity to examine the witness about it.

Question 21

Inadvertant Disclosure

Answer 21

Federal rule: attorney’s inadvertent disclosure of a communication protected by attorney-client privilege operates as waiver of the privilege if attorney fails to take prompt, reasonable steps to rectify the error.

• if state law is more protective of attorney-client privilege than federal law, state law governs
• rule does not apply if disclosure was made in a state court proceeding and the applicable state law does not treat disclosure as waiver.

Question 22

Circumstantial Evidence

Answer 22

Evidence that indirectly proves a fact through inference

*** Perfectly acceptable

Question 23

Invocation of 5th Amendment

(Evidence)

Answer 23

• May be invoked in both criminal and civil suits
• Both defendants and witnesses can invoke 5th Amendment rights to avoid testifying
• If granted derivative-use immunity, cannot avoid testifying
  
  • Does not protect against suit in civil case
  • foreign liability does not preclude being compelled to testify where use immunity is offered
• it is proper for the jury to draw an adverse inference in a civil case from a party’s assertion of the privilege against self-incrimination
  *

Question 24

Irrebuttable (Conclusive) Presumptions

Answer 24

May not be challenged

If state law governs the effect of a presumption, Erie doctrine applies

Question 26

Judicial Discretion

(Trial Proceedings)

Answer 26

Parties are free to present evidence in the manner they choose, but

• order of witnesses & presentation of case within discretion of court to effectively determine truth, avoid wasted time, and prevent witness harassment
• judge may call & question witnesses

Question 27

Judicial Notice

Answer 27

Judge must take judicial notice of adjudicative facts, on motion or own initiative,​ if generally known in the judge’s territory or readily and accurately determinable, if supplied with the necessary information

• adjudicative facts: those related to parties/activities activities
  
  • may not take notice of legislative facts (legal reasoning)
• civil juries must accept these facts as true
  
  • criminal juries may accept these facts as true
• may not take judicial notice against a criminal defendant for the first time on appeal

Question 28

Judicial Evidentiary Role

Answer 28

Judge: trier of law

• determines which evidence is admissible (confessions, on motion of criminal defendant, on own initiative)
  
  • may consider hearsay in making determination
  • may not consider privileged evidence
• determines whether child is competent to testify

Question 30

Jury Evidentiary Role

Answer 30

Jury: trier of fact

• determines the weight/credibility of evidence admitted
• finds facts that lead to enhanced sentencing
  
  • does not determine whether sentences run consecutively or concurrently

Question 30

Juror Testimony

(Grand Juries & Trial Juries)

Answer 30

During trial: juror may not testify, unless outside the presence of the jurors on matters such as

• bribery
• failure to follow court’s instructions (e.g. discussing case with family)

During inquiry into validity of verdict: juror may not testify, except on:

• extraneous prejudicial information brought to jury’s attention
  
  • ​not on mental processes, physical defects, or statements
• improper outside influence bearing on juror (threat)
• actual mistake made entering verdict on verdict form

Question 32

Original Documents Rule

Answer 32

If content of a document is at issue or a witness is relying on it, original must be introduced or unavailability be satisfactorily explained.

• applies to recordings, writings, and photographs
• duplicates admissable unless authenticity is in question
• does not require the production where its contents are established by a party admission at a deposition,
• does not apply where the document is an inculpatory statement
  
  • does apply if document only references statement
• does apply to photographic identification if photographer doesn’t have independent knowledge of identity of subject

Question 32

Leading Questions

Answer 32

Questions that suggest the answer are not permissable on direct, except:

• foundational or basic info
• witness has trouble communicating (children)
• adverse or hostile witness (as permission to treat as such)

Generally permitted on cross-examination

Question 34

Plain Error

Answer 34

An attorney may appeal even without having made an objection where

• the error is so obvious that an objection is not necessary
• a substantial right is affected and the grounds are reversible

Question 35

Plea Agreement/Settlement Protection

Answer 35

Statements made by a defendant during plea negotiations (even if unsuccessful or withdrawn) are generally inadmissible

• may be waived by the defendant.

Question 36

Prejudice

Answer 36

Relevant evidence may be excluded if its probative value is **substantially **outweighed by danger of unfair prejudice

Question 37

Prior Consistent Statements

Answer 37

Prior consistent statements are admissable to rebut a claim (or inferred claim) that the witness is lying, so long as the statements were made before the declarant had reason to fabricate the truth.

Question 38

Rebuttable Presumption

Answer 38

Shifts burden of production to the other side; if no contrary evidence is presented, judge instructs jury to accept presumption.

• destruction of evidence: intentionally destroyed relevant evidence, if victim acted in due diligence to recover/prevent, raises presumption that the evidence was unfavorable to destroyer.

Question 39

Relevance

Answer 39

1. Probative: tendency to make fact more or less probably 2. Material: of consequence in determining an action Relevant evidence may be excluded if 1. Probative value is substantially outweighed by danger of unfair prejudice 2. Delay 3. Cumulative

Question 40

Relevance

Answer 40

Must lay a foundation. For evidence to be relevant, it must be both

• probative: any tendancy to make a fact more or less probable
• material: a fact of consequence

May be excluded if probative value is substantially outweighed by:

• risk of unfair prejudice
• confusion
• misleading the jury
• undue delay or waste
• needlessly cumulative evidence

Question 41

Rule of Completeness

Answer 41

If a party introduces a statement, the other party may require the introduction of another statement that in fairness ought to be considered at the same time.

• applies to writing or recorded statements, not conversations
• if fairness requires, may be admitted at that time; otherwise must wait until cross-examination or defendant’s turn
• may be another part of the same statement or a related statement

Question 42

Self Authentication, Business Records

Answer 42

The court will consider a number of items of evidence to be self-authenticating, meaning that they do not require extrinsic evidence of authenticity in order to be admitted. These include certified copies of public records, trade inscriptions (e.g., labels affixed in the course of business that indicate ownership), and business records. Generally, the proponent of a self-authenticating document is not required to give an adverse party advance notice of the intent to introduce the document. The proponent of a business record must, however, give an adverse party reasonable written notice prior to the trial or hearing of the intent to offer the record and must make the record available for inspection so that the party has a fair opportunity to challenge it.

Question 43

Self-Authenticating Documents

Answer 43

• public documents with government seal or signature + authentication
• certified copes of public records
• official publications from public authority
• newspapers & periodicals
• trande inscriptions (labels)
• notarized documents
• commercial paper
• any item declared authentic by federal statute
• regularly kept business records certified by custodian

Question 44

Spousal Privilege - Confidential Marital Communications

Answer 44

Confidential communications that occurred between spouses **during **a marriage in reliance on the sanctity of marriage are privileged in both civil and criminal cases.

• majority: both/either spouse can invoke the privilege
• minority: only the communicating spouse can invoke

Question 45

Spousal Privilege - Spousal Immunity

Answer 45

A **validly married **spouse may not be compelled to testify against defendant in any criminal proceeding about events occurring before and during the marriage.

• federal court: witness spouse holds the privilege
• state (majority): witness spouse holds the privilege
• state (minority): party spouse holds the privilege

Question 46

Standard of Proof - Civil Cases

Answer 46

Most civil cases: preponderance of the evidence (more likely than not)

Fraud cases: clear and convincing evidence

Question 48

Standard of Proof - Criminal Cases

Answer 48

State must prove case beyond a reasonable doubt in order to overcome presumption of innocence

Question 49

Witness Competence

Answer 49

Every person is presumed to be competent; incompetence goes to the weight, not admissibility, of testimony.

• non-expert witnesses must have personal knowledge
• witnesses must give oath or affirmation
• children may be competent, but must be old enough to understand requirement to be truthful
  
  • ​court determination

Question 50

Witness Exclusion

(Criminal Trial)

Answer 50

In order to prevent contamination, witnesses may be excluded on the motion of a party or the court’s own motion.

Exceptions:

• parties
  
  • officer or employee who is designated representative of a corporation
• expert witnesses
• victims

Question 51

Learned Treatises

Answer 51

if the court finds a publication to be a reliable authority, then statements may be read into evidence or called to the attention of an expert witness,

• the publication may not be received as an exhibit.

Question 52

Hearsay Exceptions - Felony Conviction

Answer 52

Evidence of a felony conviction is admissible in a subsequent trial against the person convicted in order to prove any fact essential to sustain the judgment.

• convictions resulting from both jury trial and pleas are admissable

Question 53

When may character evidence be used?

Answer 53

Evidence of a person’s specific acts, opinion testimony, or reputation evidence may be used to prove character when it is a central issue in the case. When character evidence is being used as propensity evidence, it is generally not admissible.

Question 54

When is character evidence inadmissible?

Answer 54

Character evidence is generally not admissible in civil cases unless character is directly at issue. Only the accused in a criminal case can initiate the introduction of character evidence; otherwise, such evidence is inadmissible.

Question 55

Discuss how character evidence in a criminal case is introduced and rebutted:

Answer 55

A defendant can introduce evidence of his own good character by introducing reputation or opinion testimony. The prosecution can rebut the defendant’s character evidence by:

• Asking the witness, on cross, about specific acts that attack the credibility of witness’ testimony
• Introducing its own reputation or opinion testimony regarding the defendant’s bad character

A defendant may also introduce reputation or opinion testimony about the victim’s bad character (not in rape cases). The prosecution can rebut the defendant’s character evidence by:

• Introducing evidence of the victim’s good character
• Introducing evidence involving the same bad character trait of the defendant

Question 56

When is evidence of specific acts admissible?

Answer 56

Evidence of specific acts are admissible if they are relevant to some issue other than propensity. Evidence relating to the following issues are admissible:

• Motive
• Intent
• Absence of Mistake
• Identity
• Knowledge
• Opportunity
• Preparation
• Plan
• Scheme

Question 57

What does it mean to say that evidence is “not offered for the truth of the matter asserted?”

Answer 57

Out of court statements may be offered for reasons other than the truth of the statement, such as to impeach a witness’ credibility. If a statement is not offered into evidence for its truth, it is not hearsay.

Question 58

List the various types of conduct and statements that can constitute non-hearsay:

Answer 58

• Nonassertive conduct
• Statements not offered for the truth of the matter asserted
• Prior inconsistent statements made under oath
• Prior consistent statements offered to rehabilitate impeached witnesses
• Prior statement of identification
• Admission of party opponents
• Verbal acts
• Statements offered to show the effect on the listener
• Circumstantial evidence of the declarant’s state of mind

Question 59

Is circumstantial evidence of a declarant’s state of mind hearsay? What is it used for?

Answer 59

Circumstantial evidence of a declarant’s state of mind is non-hearsay. Such evidence is used to establish competency, insanity, or knowledge, but not to prove the truth of the matter asserted. For example, if a defendant said, “An alien entered my body and forced me to do it,” such a statement would be brought in not to show that an alien had actually entered the defendant’s body, but rather to show that the declarant is not sane.

Question 60

Are prior statements by a witness considered hearsay?

Answer 60

Prior statements by a witness are not considered hearsay in the following situations:

• When consistent prior statements are used to rebut an accusation of improper motive or bias
• When inconsistent prior statements are introduced to attack the witness’ credibility
• Prior statements of identification

Question 61

What are the hearsay exceptions for unavailable declarants?

Answer 61

If the declarant of a statement is unavailable, certain hearsay exceptions may be made:

• Former testimony
• Statements against interest
• Dying declarations
• Statements of personal or family history

Question 62

List some of the various hearsay exceptions when present:

Answer 62

Regardless of whether the declarant is available to testify, exceptions to the hearsay rule include:

• Statements concerning the declarant’s present state of mind
• Excited utterances
• Present sense impressions
• Declarations of physical conditions
• Business records
• Past recollections recorded
• Official records
• Public records
• Ancient documents
• Learned treatises
• Reputation
• Family records
• Market reports

Question 63

A witness is deemed “unavailable” when:

Answer 63

• The witness’ testimony is privileged
• The witness declines to testify
• The witness does not remember the subject matter of the statement in question
• The witness is dead or missing
• The witness suffers from a mental illness

Question 64

What is the former testimony hearsay exception?

Answer 64

Former testimony is admissible if:

1. The party against whom the statement was introduced was a party to the original action or was in privity with such a party
2. The subject matter of the previous action was substantially the same as the cause of action in the present case
3. The testimony was offered after the witness took an oath to be truthful
4. There was an opportunity to cross-examine the declarant

Note: Grand jury testimony does not qualify as a hearsay exception. In addition, the declarant must be unavailable.

Question 65

What is the hearsay exception for a recorded recollection?

Answer 65

The hearsay exception for recorded recollections allows a witness to read a document into evidence, even if the document contains hearsay statements, provided that the witness’ memory is exhausted and the writing was made by the witness while the facts were fresh in her mind.

Question 66

What is the hearsay exception for business records?

Answer 66

The hearsay exception for business records applies to records made in the regular course of business, made by a person who has personal knowledge of the subject matter of the records as well as a duty to keep such records. If no record exists, it is permissible to infer that the event never occurred (because if it had, a record would have been created).

Question 67

What is the hearsay exception for a prior judgment?

Answer 67

The hearsay exception for a prior judgment allows a copy of a judgment to be introduced in order to prove any fact that was essential to that judgment.

Question 68

What is the “catchall” hearsay exception?

Answer 68

The catchall exception to the hearsay rule renders hearsay statements that do not otherwise fit into an exception admissible, provided that:

1. The statement can be established as trustworthy
2. The statement is necessary
3. Notice is given to the adversary regarding its introduction into evidence

Question 69

When can a party introduce evidence of similar injuries or accidents caused by the same condition/event?

Answer 69

That type of evidence is admissible to prove:

1. That a dangerous condition or defect existed
2. That the defendant knew of the condition or defect
3. That the condition or defect is what caused the present injury

Question 70

How does a statement of memory or belief differ from a statement of the present state of mind?

Answer 70

A statement of a memory or belief is not admissible to establish the truth of the matter remembered or believed, as those are not present facts at the time of the statement. For example, if a witness states that he thinks he left his coat at home, such a statement would not be admissible to prove that he left his coat at home.

Question 71

What are the requirements for admissibility of a public record under the hearsay exception for public records?

Answer 71

1. The writing must have been made by a public employee within the scope of her duty
2. The record must have been made near the time of the event prompting recordation
3. Sources of information and surrounding circumstances must indicate the trustworthiness of the writing

Question 72

When are prior criminal conviction judgments admissible?

Answer 72

Prior criminal conviction judgments may be admissible for impeachment when appropriate. Under the Federal Rules, felony convictions are admissible in civil and criminal actions to prove facts essential to the judgment.

Question 73

What is the hearsay exception for reputation?

Answer 73

Reputation testimony is admissible hearsay when it relates to:

• A person’s character
• Someone’s personal or family history
• Land boundaries
• The community’s history

Question 74

List the types of relevant evidence that will be excluded despite their relevance:

Answer 74

• Liability insurance
• Subsequent remedial measures
• Settlement offers
• Withdrawn guilty pleas
• Offers to pay medical expenses