Evidence

Question 1

Lay Opinion Testimony

Answer 1

Witness must have personal knowledge (competent). Note: infancy, religious beliefs, incompetency, not grounds to DQ W
Admissible:
(1) rationally based on the perception of the witness;
(2) helpful to understand testimony or determine a fact in issue; and
(3) not based on scientific, specialized, or technical knowledge.

Question 2

Felony Conviction

Answer 2

Hearsay, but exception.

Felony must be a crime punishable by death or imprisonment in excess of 1 year.

Question 3

Impeachment Methods

• *In IL must show affirmative damage to attack credibility of own witness
• *In IL no limitation for conviction outside 10 years;
• *In IL no impeachment by specific acts of misconduct

Answer 3

(1) PIS (subs. if given under oath) Extrinsic allowed (IL only limited to criminal case if in writing, signed by W or recorded)
(2) Showing of bias, interest or motive - EE allowed after foundation
(3) Prior Conviction - Crimes involving dishonesty or Felony if not more than 10 years - EE allowed (conviction cert)
(4) Specific Acts of Deceit on Cross - good faith - must be probative of truth NO EE [NOT ALLOWED IN IL]
(5) Bad Rep/Opinion for truth or veracity

Question 4

Best Evidence Rule (Original Document Rule)

Answer 4

(1) Produce original or (2) Account for absence
Applies to: (1) legally operative documents; and (2) Witness’s knowledge comes from a documents
DOES NOT APPLY: (1) Facts Ind. of Writing or (2) Collateral documents)

Question 5

Habit Evidence

Answer 5

Admissible to prove that on a particular occasion person acted in accordance with the habit (Specificity and recurrence)
can be business routine or trade custom

Question 6

Policy Based Relevance (2)

Answer 6

(1) Liability Insurance - not adm to show negligent; only to show ownership/impeachment for bias
(2) Subsequent remedial measures - not admissible except for ownership or feasibility of precautionary measures if disputed

Question 7

Settlements

Answer 7

Not admissible to prove fault, liability or amount of damage - Admissions of fact in course of compromise not adm
Covers actual compromises, offers to compromise, offers to plead guilty, withdrawn guilty plea or please of nolo contendere
*Offers to pay medical expenses is not admissible but admission of fact is admissible

Question 8

Character Evidence (reputation, opinion, specific acts)
**In IL no inquiry into specific instances of conduct on cross of character witness

Answer 8

Civil - not admissible unless character at issue (all forms allowed)
Criminal - (1) P can’t intro evidence of bad character if to show conformity with character (prior crimes/prior bad acts); (2) D allowed to present good character traits (reputation or opinion ONLY, not specific acts); (3) D good character - then P allowed to introduce bad character (reputation or opinion, not specific acts); (4) specific acts may be allowed for MIMIC (motive, identity, absence of mistake, intent, common scheme [can still keep out if too prejudicial]); (5) If D testifies, automatically puts character of truthfulness at issue

Question 9

Writings

Answer 9

Foundation showing the writing is what it purports to be in the form of admission, testimony, handwriting proof (not in anticipation for litigation), circumstantial (ancient document or solicited reply)
Finding of genuineness

Question 10

Self-Authenticating Documents

Answer 10

(1) Certified Copies of Public or Business Records
(2) Official Publications
(3) Newspapers
(4) trade labels
Authenticate photos by anyone familiar w/ the scene

Question 11

Dead Man Act (not federal rule)

Answer 11

Interest survivor cannot testify for his interest against decedent about communications with decedent in civil case

Question 12

Use of Writings in Testimony

Answer 12

(1) Refresh Recollection - memory fails, ANYTHING can be used to jog memory (bowl of pasta, box, etc)
(2) Recorded Recollection - W had PK at one time, timely made, reliable, necessary b/c unable to remember (admitted by reading into evidence) [IL allows it to be received into evidence]

Question 13

Expert Opinion

Answer 13

(1) Subject matter appropriate for expert testimony
(2) Qualified as an expert
(3) Expert possess reasonable certantiy regarding opinion
(4) Opinion supported by factual basis
**None of the stuff relied on has to be in evidence
In IL - Frye Test - admissible if shown general acceptance; also, opinion must be supported by proper factual basis (excludes evidence if probative value is substantially outweighed by danger of unfair prejudice)

Question 14

Learned Treatise [No HS exception in IL

Answer 14

Established as authoritative IF: (1) relied on by opposing expert (2) admission on cross (3) call own expert to state reliability (4) judicial notice
Admitted by being read to the jury, text itself not received

Question 15

Privileges

Answer 15

(1) A-C - comm b/t A and C made during professional legal consultation (survives death) except for crime, at issue, dispute b/t AC and joint client
(2) Phys-Psych (NOT patient-doctor)

Question 16

Spousal Privileges

Answer 16

(1) Spousal Immunity - Crim only - must be married at time of trial; held by W spouse [NOT RECOGNIZED IN IL]
(2) Confidential Marital Communications - Crim or civil - must be married at time of confidential info - both hold the privilege
Also note clergy-penitent privilege and statutory reporter’s privilege (IL)

Question 17

Non-Hearsay

Answer 17

(1) Verbal acts or legally operative facts (contract, bribery, misrep)
(2) Effect on listener
(3) State of mind
(4) PIS - given under oath [applies only to crim in IL and must have been written/signed, acknowledged under oath
(5) PCS - rebut charge of recent fabrication or improper influence or motive [in IL only for corrobative value]
(6) Prior statement of ID made by a witness [in IL only crim]
(7) ADMISSION OF A PARTY - note also vicarious admission if party’s agent acting in scope of employment

Question 18

Hearsay Exceptions for Unavailable Declarant (FSD)

Answer 18

(1) Former testimony - testimony given in earlier proceeding and opportunity for cross (NOT GJ test)
(2) Statement against interest - against pecuniary, proprietary or penal interest at time statement was made (must be supported by corroborating circumstances in crim case)
(3) Dying Declaration - Homicide or civil case [only homicide in IL]- statement while believing that death imminent, about the cause or circumstances of death (NEED NOT DIE)

Question 19

Hearsay Exceptions - Spontaneous Statements

Answer 19

(1) Present state of mind in issue
(2) statement of existing intent to prove intended act
(3) Excited Utterance - startling event, made under stress of excitement, concerns facts of startling event
(4) Present Sense Impression (not in IL) - describing or explaining event or condition while perceiving it or immediately thereafter
(5) Declaration of present or past physical condition - made for medical diagnosis or treatment (IL can’t allow only for purposes of treatment)
(6) Public Records - HS exception only if prior conviction is punishable of prison more than a year (felonies, not misdemeanors)

Question 20

Business Records

Answer 20

Records regularly conducted activity made at or near time information transmitted if kept in regular course of business
NOTE - police reports containing witness statement cannot admit witness statement [IL excludes police reports
**In IL - medical records, hospital and medical business records not business records exception

Question 21

6th Amendment Right of Confrontation

Answer 21

Even if HS exception, not admitted if:

(1) Against accused in criminal case
(2) Unavailable declarant (N/A if defendant made declarant unavailable)
(3) Testimonial (otherwise this doesn’t apply) (investigation = non-testimonial; interrogation = testimonial) Also includes testimony, forensic lab reports revealign drugs, fingerprints, DNA
(4) No opportunity to cross testimonial