Evidence

Question 1

To make a prior identification of a person after perceiving him admissible, it requires what?

Answer 1

1) The declarant must also be testifying as a witness;
2) The declarant must be subject to cross examination.

Question 2

If the declarant is not CURRENTLY testifying then what three answers are automatically wrong?

Answer 2

1) Prior Identification;
2) Prior Inconsistent Statement; and
3) Prior Consistent Statement

Question 3

REMEMBER: even if a prior inconsistent statement doesn’t meet all the requirements for admissibility, it will always be available as what?

Answer 3

As NON-HEARSAY, to IMPEACH OR REHABILITATE a witness (801(c)).

Question 4

What’s needed to authenticate a photograph?

Answer 4

A person who saw the scene in question and can testify that the photograph fairly and accureatly represents or illustrates what it’s susposed to depict.

** NO EXPERT IS NEEDED **

Question 5

What is the Best Evidence Rule?

Answer 5

Where the material terms of a writing are at issue, the “original writing” itse’f must be produced.

Copies and oral testimony concerning the writing’s contents ARE permissible only on a showing that the original is UNAVAILABLE and that its lack of availability is NOT the result of the proponents serious miscounduct.

Question 6

WATCH OUT FOR: situations where the witness is testifying to a collateral matter, but relying on the writing.

Answer 6

The best evidence rule doesn’t apply.

Question 7

What is the rule for admissions in conjunction with offers to settle?

Answer 7

ONLY admission in conjunction with medical bills are admissible.

Question 8

What is relevant evidence?

Answer 8

Evidence having any tendncy to make the existence of any fact that is of condequence to the determination of the acount more or less probably than it would be without the evidence.

Question 9

What is an Admission?

Answer 9

1) Statement of a party (oral or written assertion/conduct)
2) Used against themy by their oppoent
3) Can be anything (words, letters, documents).

Question 10

What are preliminary questions of admissibility?

Answer 10

Questions concerning qualification of a person to be a witness, existence of a privilege, or admissibility of evidence shal be determined by the court.

Question 11

What is Judicial Notice?

Answer 11

The effect of taking jdicial notice in a civil suit is that the judicially noticed fact is conclusively proven and must be accepted by the jury.

Question 12

What is habit evidence?

Answer 12

Evidence of the habit of a person, or the routine practice of an organization is admissible to prove conduct.

**Cooroboration is not required **

Question 13

Evidence of subsequent remedial measures are inadmissible to prove negligence, except:

Answer 13

Ownership and Control

Question 14

Settlement Offers are?

Answer 14

Offers to settle claims in dispute and are indamissible.

Question 15

Offers to pay medical expenses are?

Answer 15

offers to pay medical expenses of another are INADMISSIBLE

Question 16

Character Evidence in Criminal Cases - Character of Defendant

Answer 16

Defendant may open the door with REPUTATION or OPINION evidence (not specific acts) of his good character to prove his innocence and the prosecution may so rebut.

Question 17

Character evidence in Criminal Cases - Character of Victim

Answer 17

Where evidence of a pertinent trait of character of the alleged victim is offered by the accused, the prosecution may rebut the same way.

Question 18

Character Approach in a Criminal Case?

Answer 18

Door Opened?

Trait?

Reputation/Opinion

Question 19

Character Approach in a Civil Case

Answer 19

Character in Issue?

Big 4?

R, O, SA

Question 20

What are the 4 ways to impeach?

Answer 20

1) Bian/Prejudice
2) Sensory Defects
3) Prior Inconsistent Statements
4) Character to Impeach

Question 21

Prior Inconsistent Statements are admissible substantively in 3 cases…

Answer 21

1) If “sworn” under FRE 801(d)(1).
2) As an admission under FRE 801(d)(2).
3) If a hearsay exception applies.

Question 22

What convictions can be used to impeach under 609?

Answer 22

1) Felony convictions
2) Convictions involving dishonesty or false statements.

Question 22

What is the “mimic rule?”

FRE 404(b)

Answer 22

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.

It may, however, be admissible for other purposes:

Motive

Intent

Mistake/Knowledge (absence of)

Identity

Common Plan or Scheme

(MIMIC)

Question 23

How should you approach hearsay?

Answer 23

1) Isolate the statement;
2) Determine who is the declarant;
3) Purpose for which the evidence is being offered?

* for its truth = hearsay

* not for its truth = not hearsay

4) Apply the hearsay exception

Question 24

What is a business record?

Answer 24

* Report or record concerning act or event

* Made at or near the time

* By a person with knowledge

* Kept in the regular course of business

Question 25

What is a dying declaration?

Answer 25

1) Statement must concern cause or circumstances of death;
2) Unavaialbe decarant;
3) Criminal homicie or any civil case; and
4) Declarant’s belief of immient death.

Question 26

What is an excited utterance?

Answer 26

A statement relating to a startling event made while declrarnt was under the stress of excitement cause by the event.

*such a short time, the devil couldn’t interfere*

Question 27

What is the Confrontation Clause?

Answer 27

The confrontation clause requires that :

1) In criminal cases
2) Where the declarant is unavaialble

“Testimonial” evidence is inadmissible unless defendant is gien a prior opprotunity to cross-examine the declarant.

Question 28

What is a declaration against interest?

Answer 28

Statement of an:

1) unavailable
2) Non-party (generally)
3) against interst when made (penal, pecuniary or proprietary).

Question 29

When can former testimony be used?

Answer 29

* Testimony from the same or different proceeding, or in a deposition.

* Unavailable declarant

* Opprotunity and similar motive to develop the testimony on direst, cross or redirect.

Question 30

What is the Spousal Privilege?

Answer 30

Protects communications before AND during marriage (impressions/observations). The privilege is lost at divorce.

Applies in CRIMINAL cases only.

HOLDER: common law, party spouse/federal courts, witness spouse

Question 31

What is the Marital Privilege?

Answer 31

Protections communications only DURING marriage.

Privilege survives divorce

Applies in BOTH civil and criminal.

Holder: BOTH SPOUSES

Question 32

When character or traid of character of a person is an essential element of a charge, what evidence may be used?

Answer 32

Specific instances of that person’s conduct.

Question 33

When the defense of TRUTH is asserted, does specific instances of conduct go to impeachment or substantive?

Answer 33

Substantive.

Question 34

Under 701, opinions of lay witnesses are generally admissible in what 4 instances?

Answer 34

1) the general appearance or condition of a person;
2) the state of emotion of a person;
3) matters involving sense recognition; and
4) identifying the likeness or identity of handwritting.

(ACES this HAND)

Question 35

Under 611(b), cross examination should be limited to what?

Answer 35

Subject matter of the direct examination and matters affecting the credibility of the witnesses.

(The court may, in its discretion, permit inquiry into additional matters as if on direct examination).

Question 36

Generally speaking, a declaration of a physical condition is what?

Answer 36

Admissible as an exception tot he hearsay rule under FRE 803(3).

Question 37

What is a vicarious admission?

Answer 37

Under 801(d)(2)(D), a statement offered against a party by his agent or servant concerning a metter within the scope of his agency or employment, made during the ecistence of the relationship.

Question 39

Former Testimony : Same defendant and different plaintiff?

Answer 39

Former testimony of witness at first trial is admissible because defendanthd opportunity to interrogate witness.

Question 40

Former testimony offered at subsequent trial: same plaintiff and different defendant.

Answer 40

Former testimony of witness at first trial NOT ADMISSIBLE because new defendant at second trial most likely did not have the opprotunity to interrogate witness at the first trial.

Question 41

There three odd-ball things are admissible as non-hearsay verbal acts?

Answer 41

1) defamation;
2) slander; and
3) deceit.

Question 42

What is the pedigree exception to the hearsay rule?

Answer 42

reputation among members of his family by blood, adoption, or marriage, or among his associates or in the community, concerning a person’s birth, adoption, marriage, divorce, death, legitimacy, relationshipy by blood, adoption, etc…