Evidence

Question 1

Under the recorded recollection exception to hearsay, what must the offering party first do to use the recorded recollection?

Answer 1

Foundation has to be laid that the writing in use is an accurate depiction, etc. etc. Furthermore, the recorded recollection may be READ out loud but not admitted into evidence unless offered by an adverse party.

Question 2

For a statement to be admissible as a statement by a co-conspirator, what else has to happen?

Answer 2

It has to be a statement in furtherance of the conspiracy AND the conspiracy can not have already been completed when the statement was made (sort of the same thing)

Question 3

A witness’s statement gets in at trial through someone else who overheard that witness - via an exception to the hearsay rule. Can the credibility of that witness (who is, again, not present) be impeached?

Answer 3

Yes. FRE 806 provides that when a hearsay statement has been admitted in evidence, “the credibility of the declarant may be attacked . . . by any evidence which would be admissible for these purposes if declarant had testified as a witness.” Thus, the offered testimony would be admissible to impeach the bystander.

Question 4

What sort of fact would it appropriate for judicial notice to be taken?

Answer 4

The fact is generally known (e.g. the sun sets in the west), or it is capable of accurate and ready determination (e.g. consult a calendar, July 20th was a Sunday).

Question 5

When is judicial notice mandatory upon request by a party?

Answer 5

The fact that something is the law (federal or state), indisputable facts/scientific propensities.

Question 6

When is judicial notice discretionary by the court?

Answer 6

Note - parties can always request judicial notice. The court has discretion whether or not to grant judicial notice regarding municipal ordinances, foreign laws, matters of local geography.

Question 7

How does judicial notice operate in civil and criminal cases differently?

Answer 7

If judicial notice is taken, in a civil case that fact is established… in a criminal case, prosecution’s burden with regard to that fact/element is satisfied (but D can rebut)

Question 8

What is a burden of production?

Answer 8

The burden of production requires that a party (usually the plaintiff/prosecution unless it’s an affirmative defense) produce some evidence that X exists. If the burden of production is not satisfied, the court will decide as a matter of law that it did not happen.

Question 9

How does a presumption affect a party’s burden of proof/production?

Answer 9

A presumption satisfies the benefitting party’s burden of production (e.g. violation of this statute creates a rebuttable presumption of negligence… it is as if the football goes into the other party’s end zone). The opposing party can then rebut the presumption by producing evidence to contradict. A presumption does NOT shift the burden of persuasion!

Question 10

What is a collateral matter?

Answer 10

A collateral matter is unconnected to the issue or matter in dispute (basically irrelevant) - e.g. witness testifies that saw a suspect carrying a certain brand of beer can and cross-examines that it was actually a different brand.

Question 11

In a civil proceeding, when could evidence of character traits be admissible?

Answer 11

Where character is actually at issue (e.g. a libel/slander case - RARE), or where being used for something other than to prove negligence/liable - for impeachment of a witness in particular.

Question 12

In a criminal case, when could evidence of character traits be admissible?

Answer 12

General rule: not admissible to prove action in conformity therewith. UNLESS
(404(a)(1) Defendant offers relevant character evidence (opens the door) of self or victim
Offered by prosecution ONLY IF D opens the door or victim’s peacefulness in self-defense case
OR if it is a sexual assault case/child molestation case (then prior acts/character of the defendant get in)

Question 13

When is evidence of prior act (including criminal convictions) admissible?

Answer 13

NOT to show that they are a “type” or to show conformity therewith - slight exception for sexual assault cases.
Admissible (in civil or criminal cases) to show: motive, M.O., opportunity, intent, preparation, plan, lack of mistake, identity, or if the underlying criminal conviction is an element of new crime e.g. felon in possession)

Question 14

How are the rules regarding character evidence of the victim different in a rape/sexual assault case?

Answer 14

A victim’s prior sexual acts or character (as a hussy) is generally not admissible - even where pertinent, D cannot “open the door.” (Rape shield laws)

UNLESS the evidence is offered by D to prove that (1) someone else is the source of the semen, injury, (2) to prove that D and victim had past consensual sexual relationship, (3) catch-all where necessary to “protect constitutional rights” of D

Question 15

When can a victim’s sexual behavior/reputation admissible in a civil case?

Answer 15

Pretty much only if the victim places his/her character in issue!

Question 16

How are the rules regarding character evidence/prior acts of the defendant different in rape/sexual assault case?

Answer 16

In cases involving sexual assault or child molestation, prior acts/character evidence of the accused is admissible w/15 days prior notice.

Question 17

What is a “habit” and is habit evidence admissible?

Answer 17

A habit is regular automatic behavior, a semi-automatic response. This is admissible to show conformity (unlike character/prior acts). Routine practices of an organization are also considered habits.

Question 18

When can a subsequent remedial measure be admitted?

Answer 18

Typically, subsequent remedial measures are inadmissible and cannot be admitted to show liability or negligence. They CAN be used to prove disputed ownership, prove the feasibility of precautionary measures, or to impeach.

Question 19

What is the scope of the rule barring admission of offers of compromise?

Answer 19

The entire statement in an offer to compromise is inadmissible - in other words, where someone says “I’m sorry, it’s my fault. Please let me pay you $50,000 to settle this” is not severable… you can’t get the first part in. Note that offers of settlement/compromise include criminal plea negotiations.

Question 20

What is the scope of the rule barring admission of offers to pay for medical expenses?

Answer 20

The offer itself (“let me pay for your medical bills”) is inadmissible but other statements made in the exchange (“I’m so sorry I was negligence, let me pay for your medical bills”)… the negligence part can come in w/o violating FRE 409.

Question 21

Do the federal rules of evidence recognize a doctor-patient testimonial privilege?

Answer 21

Nope!

Question 22

When would an attorney-client testimonial privilege apply?

Answer 22

The A-C relationship has to exist, has to have been regarding a statement intended to be confidential. There also cannot be an exception that applies such as fraud/crime, or an attorney-client dispute.

Question 23

When would an attorney-client testimonial privilege be waived?

Answer 23

The client seeks the attorney’s help in furtherance of fraud or a crime, or there is a dispute between the attorney-client later on, or the communication was not made in confidence.

Question 24

What are the two kinds of spousal privileges?

Answer 24

(1) Confidential marital communications & (2) the Adverse Spousal Testimonial privilege

Question 25

How does the confidential marital communications privilege operate?

Answer 25

Confidential communications - available in both civil & criminal cases, applies to confidential communications during a marriage. Either spouse can prevent the testimony (the non-testifying spouse holds the privilege, too). Exceptions if one is accused of committing a crime against the other or statement was to aid in planning/commission of a crime. Survives death/divorce but only protects communications made during marriage.

Question 26

How does the spousal testimonial privilege work?

Answer 26

One spouse cannot be forced to testify against his/her spouse (so long as they are still married) about anything. The testifying spouse holds the privilege. Covers everything but ex-spouses do not hold this privilege for each other.

Question 27

Can the religious beliefs of a witness be used to impeach/enhance that witness’s credibility?

Answer 27

No way. But for other purposes like to prove affiliation with a particular group.

Question 28

When can a criminal conviction of a testifying witness be used against her?

Answer 28

A crime involving dishonesty (less than 10 years old), a felony (less than 10 years old) time measured either by release date or conviction, varies. may be used to impeach.

Other crimes are not okay to attack credibility. *note that rules are different/harder if it’s the defendant

Question 29

What’s the scale of easiest to hardest way to get prior crimes in to impeach witnesses (including defendants)?

Answer 29

1. Easiest: crime of dishonesty, not 10+ years old – all come in
2. 1+ year (felonies) offered against non-D (easy), 403-balancing
3. 1+ year (felonies) offered against D (medium) – if prob. value > prejudice
4. 10+ years old (prob value substantially > prejudicial) (hardest)
5. Punishable by 1 year or less/not a crime of dishonesty (NONE come in)

Question 30

Can extrinsic evidence be used to impeach a witness?

Answer 30

Yes, so long as it is not on an entirely “collateral matter” or to prove a prior instance of conduct. Extrinsic evidence to show bias, a witness’s mental/sensory capacities, is okay. Extrinsic evidence to show character for truth or prior acts are not usually acceptable although in some jurisdictions an authenticated document is not extrinsic evidence

Question 31

How can a prior inconsistent statement of a witness be used to impeach them?

Answer 31

If given to the police or in a preliminary proceeding, it can be used to impeach… Extrinsic evidence may be used if there is a chance for opposing counsel to review and witness is given an opportunity to explain/deny the statement.

Question 32

When and how can a writing be used to refresh memory?

Answer 32

The writing must be available for opposing counsel to examine before being used, and a witness may not read from the document itself, but use it to testify orally in order to refresh the witness’s memory. The writing need not be introduced into evidence.

Question 33

What are the two categories of statutory non-hearsay?

Answer 33

Statements (including adoptive/authorized/or coconspirator) of a party opponent (801(d)(2) and prior statements (that were subject to cross-exam) by a witness (801(d)(1))

Question 34

Under what exception/category as it relates to hearsay does a prior identification fall?

Answer 34

A prior ID (e.g. at a lineup or after a crime) is statutory non-hearsay under FRE 801(d)(1)

Question 35

What are the key hearsay exceptions regardless of declarant’s availability?

Answer 35

Present sense impression; Excited utterance; Then-existing physical, mental or emotional condition; statements made for medical treatment; recorded recollection; records of a regularly conducted activity

Question 36

How may something qualify for the recorded recollection exception to hearsay?

Answer 36

Witness has insufficient recollection in the moment to testify fully, and a record of some kind was made while the matter was still fresh in the witness's memory, can be offered IF: 
Pertinent
Insufficient present recollection
Fresh when adopted
Accurate

*note that this may not be admitted as an exhibit unless offered by adverse party

Question 37

How may something qualify for the record of a regularly-conducted activity hearsay exception?

Answer 37

The record is regularly kept in the “ordinary course of business,” made ‘near in time’ to the activity/condition/event, someone with personal knowledge testifies, and it is reliable.

Question 38

How may a declarant be deemed “unavailable” and therefore trigger the possibility of different hearsay exceptions?

Answer 38

Death/infirmity, asserts a testimonial privilege, absent from the hearing and unable to produce by reasonable means, lack of memory

Question 39

What are the hearsay exceptions for an unavailable declarant?

Answer 39

Former testimony (where subject to cross-exam); statements against interest; dying declarations related to cause of death; statement of persona/family history

Question 40

What are some other second-tier hearsay exceptions, regardless of declarant availability?

Answer 40

Public records, absence of entry in record of regularly-conducted activity, marriage certificates, ancient documents, learned treatise (can be read but not entered into evidence for examination by jury)

Question 41

What kinds of documents are self-authenticating?

Answer 41

Sealed public documents, unsealed public documents, (w/testimony by public officer w/knowledge), certified copies of public records, newspapers/periodicals, acts of congress, notarized documents, commercial paper, official publications by a public authority

Question 42

When does the best evidence rule apply?

Answer 42

When a party seeks to prove the contents of a writing, recording, or photograph. Then the “original” must be produced unless an exception exists.

Question 43

What is an “original” for purposes of the best evidence rule?

Answer 43

Any print from the same negative (photographs), any print out from the same computer data, plus - obviously - the original.

Question 44

What is a “duplicate” for purposes of the best evidence rule?

Answer 44

A counterpart produced by the same impression as original, essentially through a method/technique that accurately reproduces the original (e.g. a photocopy)

Question 45

When can a duplicate be admitted rather than the original under the best evidence rule?

Answer 45

A duplicate is admissible to the same extent as an original UNLESS there is a genuine question as to the authenticity of the original or it would be unfair to admit a duplicate

Question 46

How do the FREs handle the admissibility of a summary of voluminous writings?

Answer 46

The accuracy of the summary must be testify to by the preparer - who testifies that it accurately reflects the details of the underlying documents. The originals (or, duplicates) must be available for examination by other parties and sometimes the court/jury.

Question 47

What is the scope of the hearsay exception for statements made for the purpose of medical diagnosis?

Answer 47

For a statement to be admissible (exception to hearsay), it has to pertain to the actual seeking of medical treatment or a diagnosis - statements outside that scope that are accusatory/deal with fault… will not qualify.

Question 48

What is a statement made for the purpose of medical diagnosis? And then what is an offer to pay for medical treatment?

Answer 48

A statement made for medical diagnosis is an exception to the rule barring hearsay. A statement offering to pay medical expenses is its own rule and is excluded not for hearsay reasons but because the law tries to encourage people to make such offers.

Question 49

What must be the case for an offer of compromise to be barred by FRE 408?

Answer 49

The offer of compromise must stem from a “disputed claim.” Where the declarant doesn’t deny liability, etc. then there is no disputed claim!

Question 50

By what standard must the offeror of a witness’s testimony establish that the witness has firsthand knowledge (comporting with FRE 602)?

Answer 50

Simply that a reasonable juror could find that the witness is speaking on the basis of firsthand knowledge - much easier than preponderance of the evidence - this is a pretty low threshold.

Question 51

How will a court instruct a jury after taking judicial notice of a fact?

Answer 51

In a civil case, the court must instruct the jury to accept the noticed fact as conclusive. In a criminal case, the court must instruct the jury that it may or may not accept the noticed fact as conclusive.

Question 52

Who holds the right to confront witnesses against them?

Answer 52

Only a criminal defendant! Prosecutors don’t have this right.

Question 53

When impeaching a witness based on his/her character for truthfulness, may extrinsic evidence be used?

Answer 53

Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’s character for truthfulness . . . may not be proved by extrinsic evidence.” FED. R. EVID. 608(b).

Question 54

What are the two approaches to determining what IS extrinsic evidence and not allowed to be used to impeach a witness?

Answer 54

Rule 608(b) does not define “extrinsic evidence,” and there is disagreement among federal courts and evidence scholars about the term’s meaning. With respect to documents, one approach holds that a document is extrinsic evidence in all circumstances. The other, more lenient approach holds that a document is not extrinsic evidence if the witness being impeached can provide the foundation for admission of the document.