Evidence

Question 1

When is evidence relevant?

Answer 1

If it has any tendency to make a material fact more or less probable than it would be without the evidence

Question 2

What is the general rule regarding relevant evidence?

What is the exception?

Answer 2

All relevant evidence is admissible, unless the court makes a discretionary determination that the probative value of the evidence is substantially outweighed by some countervailing pragrmatic ground for exclusion

Three basic types of pragmatic considerations:

1. Unfair prejudice
2. Confusion of the jury
3. Waste of time

Exam Tip: if an answer choice on the MBE is one of these pragmatic considerations, it is likely wrong

Question 3

What is the evidentiary rule regarding liability insurance?

Answer 3

Evidence that a person has (or does not have) liability insurance is inadmissible for the purpose of proving:

• That person’s fault or absence of fault

Exception:

• Such evidence may be admissible for some other purpose, such as:
  
  • Proof of ownership or control if disputed, or
  • Impeachment of a witness on the grounds of bias

Question 4

What is the rule regarding dual purpose evidence (i.e., evidence is admissible for one purpose but inadmissible for another purpose)

Answer 4

The judge should give the jury a limiting instruction (i.e., limited admissibility)

Question 5

What is impeachment?

Answer 5

The process of trying to show that a witness should not be believed

Question 6

What does bias mean?

Is evidence of bias admissible?

Answer 6

Bias means there is some relationship between the witness and a party that could cause the witness to lie

Evidence of bias is almost always admissible

Question 7

What is the evidentiary rule regarding subsequent remedial measures?

Answer 7

Remedial measures are inadmissible for the purpose of proving:

• The defendant’s fault
  
  • ​E.g., negligence, culpable conduct, defect in product design, or the need for a warning or instruction

Exception:

• Such evidence may be admissible for some other purpose, such as proof of the following, if disputed:
  
  • Ownership
  • Control
  • Feasibility of remedial measures

Question 8

Is evidence of subsequent remedial measures admissible in a strict liability case?

Answer 8

Not to prove a defect. It is irrelevant whether the case is negligence or strict liability

Question 9

What is the evidentiary rule regarding settlements and attempted settlements of civil cases?

Answer 9

If there is a disputed civil claim, then evidence of:

• Settlement (i.e., successful)
• Offer of settlement (i.e., unsuccessful)
• Statement of fact made during negotiations

Is inadmissible for the purpose of proving:

• Liability
• The amount of the claim

Unless:

1. The civil claim is brought by the government and:
   
   • Statements of fact by the defendant during settlement negotiations
   • Are introduced at a later criminal trial
2. _​_Introduced for some other purpose, such as:
   
   • To impeach on the ground of bias
3. Virginia distinction
   
   • _​_An express admission of liability (or some independent fact) is admissible even if it takes place during settlement negotiations
     
     • But not:
       
       • Plaintiff’s financial demand during negotiations, or
       • Defendant’s offer during negotiations

Question 10

What are the Virginia distinctions?

Answer 10

1. ​An express admission of liability (or some independent fact) is admissible even if it takes place during settlement negotiations
   
   • But not:
     
     • Plaintiff’s financial demand during negotiations
     • Defendant’s offer during negotiations
2. Nolo contendere pleas in criminal proceedings can be used as an admission against a party in civil litigation
3. When character evidence is admissible to prove propensity in a criminal case, it may only be admitted in the form of reputation, and not opinion or specific acts
4. In Virginia, there is no rule allowing the defendant to introduce evidence of an alleged victim’s violent character to prove that the she was the first aggressor
5. In Virginia, there is no rule allowing the plaintiff or prosecution to introduce evidence of prior acts of sexual assault or child molestation to prove a propensity to committ those acts
6. Virginia law, unlike Federal law, recognizes a physician-patient privilege, but only in civil trials

Question 11

Immediately after a car accident, one driver runs up to the other and offers to settle for $100,000 if they don’t sue. is this admissible?

Answer 11

Yes. In this case no claim had been asserted much less filed at the time of the offer, so the evidentiary ban does not apply.

The evidentiary ban only applys to offers or negotiations after a claim was filed.

Question 12

What is the evidentiary rule regarding offers to pay hospital or medical expenses?

Answer 12

Evidence that a party has paid or offered to pay an accident victim’s medical expenses is inadmissible for purposes of proving:

• Liability

Exception:

• Any other statements aside from the payment or offer to pay are admissible
  
  • E.g., “I’m sorry,” or “I ran the red light”

Question 13

Why are the following examples usually not hearsay:

• Settlements and attempted settlements
  
  • Payments or offers to pay medical expenses

Answer 13

They are almost always being offered against the opposing party

Question 14

What is the evidentiary rule regarding pleas and plea discussions in criminal cases?

Answer 14

The following statements by the defendant or defense counsel in a criminal prosecution are inadmissible for any purpose against that defendant, either in the criminal case or in a subsequent civil case:

1. Unsuccessful offers to plead guilty
2. Withdrawn guilty pleas
3. No contest (nolo contendere) pleas
4. Statements of fact that lead to any of the above

Virginia distinction

• Nolo contendere pleas in criminal proceedings can be used as an admission against a party in civil litigation

Question 15

Is a plea of guilty that is not withdrawn admissible against that defendant in litigation based on the same facts?

Answer 15

Yes. It is not hearsay because it is a party admission.

But if it is offered against someone else at a later trial, such as an alleged conspirator, it is usually inadmissible hearsay

Question 16

What is character evidence?

Answer 16

It relates to a person’s general propensity or disposition

• E.g., character traits of honesty, peacefulness, carefulness, etc.

Question 17

What are the four possible purposes for introducing character evidence?

Which are admissible?

Answer 17

1. Conforming conduct
   
   • Usually inadmissible
   • E.g., the person has a particular character trait and acted in conformity with that trait
2. Impeachment
   
   • Usually admissible
   • E.g., evidence of person’s character for untruthfulness (or truthfulness) is offered to impeach (or rehabilitate)
3. Other purpose
   
   • Usually admissible
   • E.g., evidence of a person’s character is used for some purpose other than proving propensity
4. Essential element
   
   • Usually admissible
   • E.g., evidence of a person’s character trait is offered because the trait itself is an essential element of a claim or defense - e.g., defamation, negligent entrustment

Question 18

What is the general rule regarding evidence of the defendant’s character in a criminal trial?

Answer 18

Evidence of the defendant’s character is generally not admissible to prove propensity (i.e., conduct in conformity)

Exceptions:

• D opens the door
  
  • D may introduce evidence of his own pertinent trait of good character
• P rebuts
  
  • If D does so, the prosecution may rebut with evidence of D’s bad character

Question 19

When character evidence is admissible to prove propensity, in what form may it be admitted?

Answer 19

Only:

• Opinion
• Reputation

Not:

• Specific acts

Virginia distinction:

• Only:
  
  • Reputation
• Not:
  
  • Opinion
  • Specific acts

Question 20

Can a defendant in a murder trial call a character witness to talk about the defendant’s reputation for bravery and honesty?

Answer 20

Only if someone had testified about his lack of these character traits.

This is not pertinent to a murder charge.

Question 21

If the defendant opens the door for the prosecution by calling character witnesses, how can the prosecution rebut this?

Answer 21

1. Calling its own witnesses
   
   • But only:
     
     • Reputation
     • Opinion (but not in Virginia)
2. Cross-examining the defendant’s character witnesses
   
   • By questioning their knowledge of specific acts that are relevant to the character trait at issue
   • Good faith requirement
     
     • Prosecution must have a good faith belief (i.e., some solid, but not necessarily admissible, ground) that the specific act took place

Question 22

If the prosecution rebuts a character witness by questioning him based on specific acts, and the witness doesn’t know what he’s talking about, what happens?

Answer 22

The prosecution has to move on.

These bad acts cannot be proven by extrinsic evidence

Question 23

In a murder trial, if the only testimony is from the defendant who denies guilt, can the prosecution rebut with any character evidence?

Answer 23

Only reputation or opinion (if not in Virginia) evidence of the defendant’s dishonesty

All other character traits were not at issue

Question 24

What is the federal rule regarding a victim’s character in a criminal self-defense case?

What about the Virginia rule?

Answer 24

Federal rule for criminal or civil cases

• Defendant offers
  
  • A criminal defendant may offer evidence of the victim’s violent character to prove that the victim was the first aggressor
• Prosecution rebuts
  
  • Two options:
    
    • Evidence of the victim’s peaceful character
    • Evidence of the defendant’s violent character

Required form:

• Opinion
• Reputation

Virginia rule

• There is no such rule

Question 25

What is the special rule regarding a defendant’s knowledge of the victim’s character for violence?

Answer 25

The defendant may offer evidence of his own knowledge of the victim’s bad character for violence at the time of the alleged offense, but only for purposes of showing:

• That he reasonably feared he was in danger

Note 1: This also would not be hearsay because it is not offered for the truth of the matter asserted

Note 2: Because this is not propensity evidence, any form is admissible

Question 26

What is the rape shield rule?

Answer 26

In a criminal or civil case involving alleged sexual misconduct (e.g., any sexual conduct, not just rape), the defendant ordinarily may not introduce evidence of:

• The victim’s sexual history
• The victim’s sexual predisposition

Unless:

• Same guy
  
  • _​_Evidence of the victim’s sexual activity with the defendant,
  • But only if the defense is consent
• Same evening
  
  • _​_Evidence of the victim’s sexual activity with others,
  • But only to prove that someone other than the defendant was the source of physical evidence
• _​_Required by Confrontation Clause
  
  • _​_Evidence typically to prove that the alleged victim had some motive to lie about her accusations
    
    • E.g., Olden case - alleged victim cried that she had just been raped not because she had been raped becuase she wanted to cover herself up in front of her lover

Question 27

What is the general rule regarding evidence of the someone’s character in a civil trial?

Answer 27

Character evidence is generally inadmissible to prove conforming conduct in civil cases

Exceptions:

• The character trait is an essential element of a claim or defense
  
  • E.g., negligent entrustment, defamation

Question 28

What is the general rule regarding habit evidence?

Answer 28

Propensity evidence is generally inadmissible for purpose of proving conduct on a particular occasion

Exception for habit:

• Habit of a person (or routine practice of a business) is admissible to infer how the person (or business) acted on the occasion at issue in the litigation

Question 29

What is habit?

What words will likely suggest habit?

Answer 29

Habit is a repetitive response to a particular set of circumstances and has two distinguishing characteristics:

• Frequency of the conduct
• Regularity of the response

Look for the following words:

• Always
• Invariably
• Automatically
• Instinctively

But no the word “often” because it does not suggest habit

Question 30

What is the general rule regarding evidence of a defendant’s other crimes for non-character purpose?

Answer 30

A defendant’s other crimes or specific bad acts are inadmissible during the prosecution’s case-in-chief if the only purpose is to prove propensity (i.e., because of defendant’s bad character he is more likely to have committed the crime currently charged)

Exception:

• Defendant’s other crimes or specific bad acts are admissible if offered to show:
  
  • Something specific about the crime and how he committed it, such as:
    
    • Motive
    • Intent
    • Mistake or accident, absence thereof
    • Identity
    • Common scheme or plan

(“MIMIC”)

Question 31

What methods can be used to prove MIMIC-purpose crimes?

Answer 31

• Proof of conviction, or
• Any other admissible evidence

Question 32

What is the burden of proof with regard to MIMIC-purpose evidence (i.e., the burden just to get the evidence admitted)?

Answer 32

The prosecution must produce sufficient evidence for a reasonable jury to conclude that D committed the prior act by a preponderance of the evidence

Question 33

What are the requirements for evidence of MIMIC-purpose crimes?

Answer 33

• Burden of proof
  
  • The prosecution must produce sufficient evidence for a reasonable jury to conclude that D committed the prior act by a preponderance of the evidence
• FRE 403 balancing
  
  • _​_The court must weigh the evidence’s probative value against the risk of unfair prejudice
• Limiting instruction
  
  • _​_The court must instruct the jury about the limited purpose of the evidence
• Pre-trial notice
  
  • _​_Upon the defendant’s request, the prosecution must give the defendant pre-trial notice of their intent to introduce evidence of MIMIC-purpose crimes

Question 34

Can evidence of MIMIC-purpose crimes be used in civil cases?

Answer 34

Yes, although it most often comes up in criminal cases

Question 35

What is the federal rule regarding evidence of other sexual conduct to show a propensity for sexual assaults?

What is the Virginia rule?

Answer 35

Federal rule (i.e., once a rapist, always a rapist)

• In any case (civil or criminal) involving:
  
  • Sexual assault, or
  • Child molestation,
• The plaintiff or prosecution can introduce evidence of similar acts for the purpose of proving the defendant’s propensity to commit those acts

Virginia rule

• There is no such Virginia rule

Question 36

Can evidence of a plaintiff’s history of accidents or lawsuits be introduced?

Answer 36

Such evidence is inadmissible to prove that the plaintiff is:

• Accident-prone
• Litigious

Such evidence is admissible to prove:

• MIMIC-purpose
• Another explanation for the plaintiff’s injuries

Question 37

Can evidence of similar acts caused by the same event or condition be introduced?

Answer 37

Only if:

• The similar acts were:
  
  • Caused by the same instrumentality or condition
  • Under substantially similar circumstances
• And introduced for purposes of proving:
  
  1. A dangerous condition
  2. Causation
  3. Prior notice to the defendant

Question 38

Is evidence of comparable sales admissible?

Answer 38

Yes, if it is evidence of:

• The value of similar real property
• Introduced for purposes of proving the value of the property at issue

Question 39

Is evidence of industrial custom admissible?

Answer 39

Yes. This is introduced to show that others did X, so D should have done X.

It is not a violation of FRE 404 because it does not show that D did X, so he had a propensity to do X again.

Question 40

In what forms is evidence usually admitted?

Answer 40

1. Testimony by witnesses
2. Exhibits (real and illustrative evidence)
3. Judicial notice

Question 41

What is judicial notice?

When may a court take judicial notice?

Answer 41

The recognition of a fact as true without formal presentation of evidence

A court may take judicial notice of:

• Indisputable facts, which come in two forms:
  
  1. Matters of common knowledge within the court’s territorial jurisdiction
     
     • E.g., a court in NY can take judicial notice that Times Square is at the intersection of 7th Ave. and Broadway
  2. Matters of ready determination by resort to reliable sources
     
     • E.g., any court can resort to a calendar and take judicial notice that November 22, 1964 was a Sunday

Question 42

When can judicial notice be taken?

What is the effect of judicial notice?

Answer 42

Timing

• Judicial notice may be taken at any time including on appeal

Effect

• Civil cases
  
  • Judicially noticed facts are conclusive
    
    • _​_The jury must consider the fact as if proved
• Criminal cases
  
  • Judicially noticed facts are permissive
    
    • The jury may consider the fact as if proved

Question 43

Whenever a writing appears on the exam, what issues should you look for?

Answer 43

1. Authentication
2. Best evidence
3. Hearsay

Question 44

What is the general rule regarding authentication?

Answer 44

The party seeking to introduce an exhibit must:

• Introduce sufficient evidence
• For a reasonable juror to conclude
• That the item is what the party claims it to be

Question 45

What is the process of authentication called?

Answer 45

Laying the foundation for the admission of evidence

Question 46

What is the authentication rule for writings?

Answer 46

If the relevance of the writing depends upon its source or authorship, the party offering the document must prove the source or authorship to authenticate the writing

Question 47

What are the methods for authenticating writings?

Answer 47

1. Testimony by a witness with knowledge
2. Proof of the author’s handwriting by:
   
   • Lay opinion - i.e., the witness must have familiarity with the handwriting other than from preparing for the litigation
   • Expert witness - i.e., the expert must be qualified and must compare the document to a genuine sample or exemplar of the handwriting
   • Comparions by jury - i.e., the jury compares the document to a geunine sample or exemplar of the handwriting
3. Ancient document rule
   
   • Authenticity must be inferred if the document is:
     
     1. At least 20 years old
     2. Facially free of suspicion
     3. Found in its natural location
4. Solicited reply doctrine
   
   • A document can be authenticated by evidence that it was received in response to a prior communication to the alleged author

Question 48

What documents are self-authenticating?

Answer 48

1. Official publications
   
   • E.g., government regulations
2. Certified copies of public or private documents on file in a public office
   
   • E.g., deeds
3. Newspapers or periodicals
   
   • E.g., WSJ
4. Trade inscriptions and labels
   
   • E.g., Nike logo
5. Acknowledged documents
   
   • E.g., notarized documents
6. Commercial paper
   
   • E.g., promissory note
7. Certified business records offered into evidence under the business records hearsay exception
   
   • Must be certified:
     
     • By the custodian
     • Who knows how it was prepared
     • And that these documents were made in the regular course of business
     • At or about the time of the events described therein

Question 49

How can photographs and recordings be authenticated?

Answer 49

Demonstrative evidence

• If the purpose of the photo or recording is to illustrate a witness’s testimony, it can be authenticated by the witness testyfing, based on personal knowledge, that the it is an accurate depiction of the people or objects portrayed
• Note: this witness does not have to be the one who took the photo

Photo as a “silent witness”

• A party offering a photograph as substantive evidence must show:
  
  • The camera was working
  • The film was properly loaded and removed
  • The film had not been altered
    
    • E.g., by establishing a chain of custody

Question 50

What is the best evidence rule?

Answer 50

It is better understood as the “original writings and recordings” rule

If a party seeks to prove the contents of a writing, the party must either:

• Produce the writing, or
• Provide an excuse for its absence

If the court finds the excuse to be acceptable, the party may use secondary evidence to prove the contents, such as:

• Oral testimony
• Copies

Question 51

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

Answer 51

• Documents
• Recordings
• Films
• X-rays

Question 52

When does the best evidence rule apply?

Answer 52

Only when the party seeks to prove the contents of a writing, which arises in two situations:

1. The writing is a legally operative document (i.e., the writing creates legal rights and obligations)
   
   • E.g., deeds, mortgages, divorce decrees, written contracts, documents through which a crime was committed
2. The witness testifies to facts learned solely from reading about them in writing
   
   • This gives rise to hearsay issues too

Question 53

What qualifies as the “original writing” for purposes of the best evidence rule?

Answer 53

An original includes:

• The writing itself
• Any counterpart intended to have the same effect
  
  • E.g., including a duplicate unless:
    
    • There is a genuine question about the authenticity of the original, or
    • It would be unfair to admit the duplicate
• Any negative of film
• Any print from the negative of film

An original does not include secondary methods of proving the contents of the original, such as:

• Handmade copies
• Testimony
  *

Question 54

When will production of the original be excused for purposes of the best evidence rule?

Answer 54

If the court is persuaded by a preponderance of the evidence that the original:

• Is lost or cannot be found with due diligence
• Has been destroyed without bad faith
• Cannot be obtained with legal process

Or if the following exceptions apply:

• Voluminous records can presented through a summary chart, provided that:
  
  • The originals would be admissible, and
  • The originals are available for inspection
• Certified copies of public records
• Collateral documents, provided that:
  
  • The court determines the document is unimportant to the issues in the case

Question 55

What should you remember about the best evidence rule for purposes of the bar exam?

Answer 55

• It is almost never violated (and also in real life)
• It is almost never the right answer choice on MBE

Question 56

What is real evidence?

Answer 56

Actual physical evidence that is displayed to the trier of fact

• E.g., drugs and guns in a criminal case, the offending product in a products liability case

Question 57

What is the authentication rule for real evidence?

Answer 57

The party seeking to introduce evidence must introduce sufficient evidence that the item is whatever they claim it to be

Question 58

What are the methods for authenticating real evidence?

Answer 58

• Eyewitness testimony - e.g., witness testifies “I recognize this gun as the one I found at the crime scene”
• Chain of custody - e.g., witness testifies “This drug sample has been in my possession ever since it was seized from the defendant”

Question 59

What is the requirement for chain of custody?

Answer 59

It must be reasonably reliable.

It need not be perfect, but it must be based on reliable procedures for identification and custody

Question 60

What are the authentication requirements regarding the condition of real evidence?

Answer 60

If the condition is relevant, it must be shown at trial to be in substantially the same condition

Question 61

What is the general rule regarding the competency of witnesses?

Answer 61

In order to testify, witnesses must:

1. Have personal knowledge (e.g., generally no hearsay)
2. Take an oath or affirmation, which simply means:
   
   • Demonstrate an understanding of the obligation to tell the truth, and
   • Swear to tell the truth

Question 62

What is the Dead Man’s Statute?

Answer 62

• In a civil action
• An interested party
• May not testify
• Against the estate of a deceased party
• About communications or transactions with the dead party

Question 63

What jurisdictions have a Dead Man’s Statute?

Answer 63

Under the Federal Rules, there is not a Dead Man’s Statute

However, some states have one and federal courts will follow state law on this topic in a diversity case

Virginia distinction:

• Virginia law is a compromise
  
  • _​_An interested witness may testify against a decedent’s estate but only if the testimony is corroborated

Question 64

When is a party “interested” for purposes of a Dead Man’s Statute?

Answer 64

A party is interested when:

• The outcome of the case will have a legally binding effect on the person’s rights or obligations

Question 65

In a state that has a Dead Man’s Statute, can an interested party testify that the dead defendant staggered as she approached the witness?

Answer 65

Yes, this is not about a communication or transaction with the dead person

Question 66

When is a question leading?

What is the rule regarding leading questions?

Answer 66

When the form of the question suggests the answer

• E.g., “isn’t it a fact that …”

The rule:

• Leading questions are generally not allowed on direct
• Leading questions are generally allowed on cross

Exceptions:

1. Undisputed preliminary matters (i.e., as between P & D)
2. When necessary (e.g., witness is young, scared, etc.)
3. Hostile witnesses as determined by the judge (e.g., uncooperative in any way)
4. Adverse parties (i.e., presumed to be hostile)

Question 67

What is the basic rule for present recollection refreshed?

Answer 67

A witness may not read from a prepared memorandum; rather, they must testify on the basis of their current recollection

Exception:

• If a witness forgets something he once knew, he may be shown a writing (or anything else) to jog his memory

Question 68

If a party’s recollection is refreshed, can he then read the refreshing document into evidence?

Answer 68

Not unless it can be authenticated and fit into a hearsay exception

Question 69

If an item is used to refresh recollection, what can the opposing party do?

Answer 69

The opposing party has a right to:

1. Inspect the document
2. Use it on cross
3. Introduce it into evidence
   
   • Not hearsay because not being offered for its truth

Question 70

What is the basic rule for past recollection recorded?

Answer 70

A writing may be read to the jury as a “past recollection recorded,” despite the ban on hearsay, if:

1. The witness once had personal knowledge
2. The witness now cannot recall the matter and showing the writing to the witness fails to jog their memory
3. The writing was either made or adopted by the witness
4. The writing was made when the event was fresh in his memory (but not too fresh because then it’d be present sense impression)
5. The witness can attest that, the writing was accurate

Question 71

What is the method for using past recollection recorded?

Answer 71

1. Make sure that the foundation for a recorded recollection is satisfied
2. The witness may read the document to the jury
3. The witness may not show the document to the jury
4. The opposing party may show the document to the jury (but introducing it as an exhibit)

Question 72

When is lay opinion testimony admissible?

Answer 72

If it is:

• Rationally based on the witness’s personal knowledge, and
• Helpful to the jury

Examples

• Sobriety (or drunkenness)
• Emotions - e.g., happy, angry, etc.
• Speed - e.g., fast, slow, 100 mph
• Handwriting
• Smells, tastes, sounds

Question 73

When may a witness testify to an opinion as an expert?

Answer 73

Only if:

1. The witness is qualified (by education and/or experience)
2. The testimony is about a subject matter where scientific, technical, or specialized knowledge will help the jury
3. The opinion has a proper basis
4. The opinion is reasonably reliable

Question 74

How do you determine whether an expert opinion has a proper basis?

Answer 74

• The opinion must be based on a reasonable degree of probability or reasonable certainty, and
• The opinion must be based on one of the following:
  
  • The expert’s personal knowledge
  • Evidence that is admitted or revealed during trial
  • Facts outside the record, but only if:
    
    • They are the type reasonably relied upon by experts in the particular field

Question 75

If an expert relied on facts outside the record, what can the expert do with those facts?

What about the opponent?

Answer 75

Expert

• The expert may generally discuss the basis for his opinion, but he may not disclose the i_nadmissible facts_

Opponent

• The opponent may disclose the underlying facts on cross

Question 76

What does it mean for expert opinion to be sufficiently reliable?

Answer 76

That means the expert:

• Has used reliable methods and
• Has reliably applied those methods to the particular facts of the case

The court examines reliability by asking (Daubert):

• T: has the methodology been tested?
• R: are there known rates of error?
• A: Has the methodology been accepted?
• P: Has the methodology been subjected to peer review?

Note: not one question is decisive; this is a flexible balancing test

Question 77

Can opinion testimony (lay or expert) address the ultimate issues in the case (e.g., was X drunk)?

Answer 77

Yes, It is generally permissible even if it addresses ultimate issues.

This used to not be the case.

However:

• The opinion must be sufficiently specific in order to help the jury
• In a criminal case, an expert witness may not testify as to whether the defendant had the required mental state.
  
  • The expert can only testify in general terms as to the defendant’s mental condition without linking it to the particular case
    
    • E.g., D has schizophrenia and a person with such disease cannot distinguish fact from fantasy

Question 78

Can a party use a treatise in aid of expert testimony?

Answer 78

Yes, if the party establishes that the treatise is authoritative:

• The treatise may be used on direct or cross of an expert,
• And the treatise may be read to the jury as substantive evidence despite the hearsay ban
• But the treatise may not itself be introduced as an exhibit (i.e., be shown to the jury)

The authoritativeness of a treatise can be established by:

1. The expert testifies that it is authoritative
2. The opponent’s expert testifies that it is authoritative
3. The judge takes judicial notice that it is authoritative

Question 79

What happens if a witness cannot be cross-examined?

Answer 79

The witness’s direct testimony will be stricken from the record.

Cross-examination is a right.

Question 80

What is the proper scope of cross-examination?

Answer 80

• Matters within the scope of direct
• Matters that affect the witness’s credibility

Question 81

What is credibility?

Answer 81

Whether a witness is believable

Question 82

What is impeachment?

Answer 82

The process of trying to demonstrate that a witness is unreliable in any way

Question 83

What is rehabilitation?

Answer 83

The process of trying to support a witness’s credibility after the witness has been impeached

Question 84

What is intrinsic impeachment?

Answer 84

Impeaching a witness by asking the witness to admit some facts on cross-examination

This is always admissible

Question 85

What is extrinsic impeachment?

Answer 85

Impeaching a witness by introducing any evidence other than his admissions on cross-examination

E.g., using documentary evidence or calling other witnesses

Question 86

What are the impeachment methods?

Answer 86

1. Prior inconsistent statements
2. Bias, interest, or motive to misrepresent
3. Sensory deficiencies
4. Reputation or opinion
5. Criminal convictions
6. Bad acts (without conviction)
7. Contradiction

Question 87

What is a prior inconsistent statement?

Answer 87

A statement (oral or in writing) that is materially inconsistent with the witness’s trial testimony

E.g., any form of proof that the witness “changed his story”

Question 88

When can a prior inconsistent statement be used?

Answer 88

Rule

• Only to impeach a witness (i.e., not as substatntive evidence that the prior statement is true)

Rationale

• A witness who says one thing on one occasion and another thing on another occasion may not be credible

Exception

• The prior inconsistent statement may be used both to impeach and as substantive evidence (e.g., arguing in closing that it was true) if it was made:
  
  • Under oath, and
  • At a trial, hearing or deposition

Question 89

What are the procedural requirements for impeachment with a prior inconsistent statement?

Answer 89

• Witness must be given opportunity to explain or deny the statement
  
  • Timing does not have to be while witness is on the stand (e.g., inconsistency may be proven by extrinsic evidence)
  • But witness must have chance to return to the stand and explain or deny the statement

Exception:

• If witness is the opposing party, there is no need to give them the opportunity to explain or deny the statement
  
  • And the inconcistent statement may be introduced as substantive evidence because it falls within the hearsay exception for party opponents

Question 90

What does it mean to impeach a witness because of bias, interest, or motive to misrepresent?

What are some examples?

Answer 90

There is some relationship between the witness and a party or some other interest in the litigation that could cause the witness to lie

Examples

• Witness is:
  
  • A party
  • A friend, relative, or employee of a party
  • Someone paid by a party
  • Someone with a grudge against a party
  • Anyone who has something to gain or lose by the case coming out a certain way

Question 91

How can a witness’s bias, interest, or motive to misrepresent be proven?

What are the procedural considerations?

Answer 91

Bias, interest, or motive to misrepresent are so important that they can be proven by both intrinsic and extrinsic evidence

But the witness should generally be confronted with the alleged bias before it is proven by extrinsic evidence

Question 92

What does it mean to impeach a witness because of sensory deficiencies?

What are examples?

Answer 92

There is something that could affect the witness’s perception or memory

Examples:

• Bad eyesight
• Bad hearing
• Cognitive limitations
• Forgetfulness
• Intoxication at relevant time
• Intoxication while on witness stand

Question 93

How can a witness’s sensory deficiencies be proven?

Answer 93

Through both intrinsic and extrinsic evidence

Question 94

What does it mean to impeach a witness because of his reputation for or an opinion about his bad character for truthfulness?

Answer 94

The witness is not credible because he does not have a good character for veracity

Question 95

How can a party impeach a witness because of their bad character for truthfulness?

Answer 95

By calling another witness (the character witness) to testify about the target witness’s bad character for truthfulness in the form of:

• Opinion, or
• Reputation

But not:

• Specific acts

Question 96

What does it mean to impeach a witness based on criminal convictions?

Answer 96

The witness is more likely to lie under oath because he has been convicted of a crime

Question 97

What are the requirements/limitations for impeaching a witness based on criminal convictions?

Answer 97

1. Time limit
   
   • _​​_The later of the witness’s:
     
     • Conviction
     • Release from prison
   • Must be within 10 years of the trial
2. Crimes of dishonesty or false statement
   
   • ​​These are crimes that involve a lie or breach of trust
     
     • _​_E.g., perjury, fraud, embezzlement
   • They must be admitted if within the time period
3. Other crimes
   
   • Misdemeanors - not admissible
   • Felonies - admissible if:
     
     • Their probative value (on the issue of veracity)
     • Outweighs their risk of unfair prejudice

Question 98

When balancing probative value and unfair prejudice, what factors should a judge consider?

Answer 98

Factors that make a conviction probative:

• Seriousness
  
  • E.g., murder > possession of marijuana
• Relation to trust and deception
  
  • E.g., theft > reckless driving

Factors that make a conviction unfairly prejudicial:

• Inflammatory nature
  
  • E.g., child molestation > DWI
• Similarity to current charged offense
  
  • E.g., identical > somewhat similar

Question 99

What are the procedural considerations when impeaching a witness based on criminal convictions (i.e., proof and timing)?

Answer 99

Proof

• Both intrinsic and extrinsic evidnece are acceptable

Timing

• No need to give the witness an opportunity to explain

Question 100

When can a witness be impeached based on his prior bad acts (i.e., without conviction)?

Answer 100

A witness may be asked about prior bad acts if those acts relate to his veracity

Question 101

What are the procedural requirements for impeaching a witness based on prior bad acts (without conviction)?

Answer 101

Proof

• Only intrinsic evidence is allowed
• Once a witness gives an answer, the cross-examiner is stuck with it unless:
  
  • Extrinsic evidence can be introduced for some other reason (e.g., bias)

Basis

• Cross-examiner must have a good faith basis to believe that the bad act occurred

Question 102

Can a witness be impeached by asking them whether they were arrested for a crime involving dishonesty?

Answer 102

No. This is extrinsic evidence.

It is not a conviction.

It is not asking the witness whether they did it.

Question 103

Can a witness for the prosecution be impeached by asking whether they were arrested for a crime a month ago and are awaiting trial on those charges?

Answer 103

Yes, if it is a criminal trial because it shows bias and a motive to lie.

The witness may have a reason to help the prosecution and avoid charges.

Question 104

When can a witness’s arrests be used for impeachment?

Answer 104

Impeachment based on the target witness’s veracity

• No.
  
  • An arrest is not a conviction
  • An arrest is not a prior bad act

Impeachment based on a character witness’s knowledge

• Yes.
  
  • Arrests affect the character witness’s opinions and reputation

Impeachment based on the target witness’s bias

• Yes.
  
  • Arrests may make a witness biased against law enforcement
  • Arrests may make a witness biased in favor of law enforcement

Question 105

What does it mean to impeach a witness based on contradiction?

Answer 105

A witness may be impeached by showing that the witness made a mistake or lied about a fact that he testified to during direct examination

Question 106

How can you impeach a witness based on contradiction?

Answer 106

If the contradiction goes to an issue significant to the case:

• It may be proven by extrinsic evidence

If the contradiction goes to an issue collateral to the case:

• It may be proven by intrinsic evidence
  
  • And the cross-examiner is stuck with the response

Question 107

Can a party impeach his own witness?

Answer 107

Yes.

Any party may impeach any witness.

E.g., victims of domestic abuse often have a change of heart and choose not to testify against their boyfriend

Question 108

If a witness testifies that she can’t remember something, can the witness be impeached with a prior inconsistent statement?

Answer 108

No. This is not an inconsistent statement.

The source of the prior inconsistent statement can be used to refresh the witness’s recollection though

Question 109

What is the general rule regarding rehabilitation of a witness?

Answer 109

A witness generally can only be rehabilitated after his credibility is attacked

Introducing evidence of a witness’s credibility before it is attacked is called bolstering, which is generally impermissible

Exception:

• A testifying witness can be rehabilitiated
• Even before his credibility is attacked
• If done using a prior statement of identification

Note: the statement of identification must have been made by a testifying witness who is now subject to cross-examination

Question 110

What are the methods of rehabilitation?

In what form can the evidence be used?

Answer 110

1. Good character for truthfulness
   
   • When a witness’s character for truthfulness has been attacked, the opposing party may introduce corresponding evidence of the witness’s good character for truthfulness
   • But only in the form of:
     
     • Reputation
     • Opinion (if not in Virginia)
   • And not in the form of:
     
     • Specific acts
2. Prior consistent statement
   
   • _​​_May be used if:
     
     • Consistent with the witness’s testimony, and
     • The opposing party suggested that some recent event gave the witness a motive to lie
     • The prior statement was made before that event
   • Admissible as:
     
     • Rehabilitiation evidence
     • Substantive evidence (i.e., hearsay exception)

Question 111

In diversity cases, when do federal courts apply state evidence rules?

Answer 111

Federal courts apply state evidence rules with respect to:

• Burdens of proof and presumptions
• Competency of witnesses (including Dead Man’s statute)
• Privileges

Question 112

What privileges do federal courts recognize?

Answer 112

• Attorney-client
• Clergy
• Spousal (communication and testimonial)
• Psychotherapist-patient

Question 113

What privilege does a majority of the states, including Virginia, recognize that Federal law does not recognize?

Answer 113

Physician-patient

But only in civil trials

Question 114

Why is hearsay not usually an issue when evidence is objected on the basis of privilege?

Answer 114

The evidence is almost always offered against the party who made the statement, so it is admissible under the party opponent hearsay exception.

Question 115

What are the elements of the attorney-client privilege?

Answer 115

The attorney-client privilege protects:

• Any communication,
• Between lawyer and client (or their represenatives)
• That is confidential and
• For the purpose of providing legal services

Unless:

• The privilege is waived by the client
• An exception applies

Question 116

What are not deemed communications for purposes of the attorney-client privilege?

Answer 116

• Underlying information
• Pre-existing documents from before the attorney-client relationship began
• Physical evidence

Question 117

Who is an attorney for purposes of the attorney-client privilege?

Answer 117

• Member of the bar
• Someone the client reasonably believes is a member of the bar
• The lawyer’s representatives
  
  • E.g., secretaries, paralegals, translators, investigators, accounts
  • But only if helping the attorney provide legal services

Question 118

Who is a client for purposes of the attorney-client privilege?

Answer 118

• A person seeking to become a client
• A representative of the client
  
  • E.g., corporate employee

Question 119

What does confidential mean for purposes of the attorney-client privilege?

What is the joint client rule?

Answer 119

There is no privilege if:

• The client knows that a third-party is listening
• The client asks his attorney to disclose the information to a third party

Joint client rule

• Two clients with a common interest who have the same attorney can speak freely in front of eachother without waiving the privilege
• If the joint clients have a dispute with eachother later on, the privilege does not apply between them (i.e., whatever they said between one another can be disclosed by one another)

Question 120

How can the attorney-client privilege be waived?

Answer 120

• Voluntary waiver
  
  • Only the client can waive the privilege
  • When the client dies, the client’s estate can waive it
• Subject matter waiver
  
  • Voluntary waiver of the privilege as to some communications also waives the privilege as to other communications if:
    
    • Partial disclosure is intentional, and
    • Disclosed and undisclosed communications concern the same subject matter, and
    • Fairness requires that the disclosed and undisclosed communications be considered together
• Inadvertent waiver
  
  • Inadvertent disclosures do not waive the privilege if the client:
    
    • Took reasonable steps to prevent the disclosure, and
    • Took reasonable steps to correct the mistake

Question 121

What are the exceptions to the attorney-client privilege?

Answer 121

• Future crime or fraud
  
  • _​_E.g., client tells attorney about a future crime or fraud he will commit - attorney can disclose
• Advice in issue
  
  • _​_E.g., client defends based on the advice his attorney gave him - client must disclose
• Attorney-client dispute
  
  • _​_E.g., client sues attorney for malpractice

Question 122

What are the elements of the doctor-patient privilege?

Answer 122

The doctor-patient privilege protects:

• Any communication or information
• Acquired by a doctor from a patient
• That is confidential, and
• For the purposes of diagnosis or treatment

Question 123

What is the difference between Federal law and Virginia law with respec to the doctor-patient privilege?

Answer 123

Federal law

• Recognizes only a psychotherapist-patient privilege (i.e., professional certified to diagnose mental or emotional illnesses)

Virginia law

• Recognizes a broader physician-patient privilege
• But only in civil trials
  
  • All doctor-patient privileges are limited to _​_this

Question 124

Is the blood alcohol content report taken of a defendant protected by the doctor-patient privilege?

Answer 124

No. It is not a communication and it is not confidential.

Question 125

What are the elements of the spousal communications privilege?

Answer 125

Communications between spouses are protected if:

• The couple was married
• At the time of the communication, and
• The communication was confidential

Question 126

Who can waive the spousal communication privilege?

Answer 126

It must be waived by both spouses

Question 127

What are the elements of the spousal testimonial privilege?

Answer 127

A person cannot be compelled to testify against his spouse in:

• A criminal trial
• When the spouses are still married

Question 128

Who can waive the spousal testimonial privilege?

Answer 128

Only the witness spouse

Question 129

What are the exceptions to (both of) the spoual privileges?

Answer 129

• Joint participants in a crime or fraud
  
  • The otherwise privileged communications are i_n furtherance_ of a crime or fraud that both spouses are involved in
• Spousal or child abuse
  
  • One spouse is accused of crime or tort against:
    
    • The other spouse, or
    • A minor child residing in their household

Question 130

What should you do anytime a question seems to involve hearsay?

Answer 130

Consider both:

• Hearsay
• Confrontation clause
  
  • Only applicable if criminal case

Question 131

What is the definition of hearsay?

Answer 131

• An assertion (oral or written)
• By a person (i.e., declarant), not an animal or machine
• Offered to prove the truth of the matter asserted

Question 132

What are the principal categories of non-hearsay purposes?

Answer 132

1. Impeachment
   
   • E.g., prior inconsistent statement offered to prove that the witness is inconsistent
2. Verbal acts
   
   • E.g., one person made an offer and one accepted
3. To show the effect on a person (usually the defendant) who heard or read the statement
   
   • 4. Circumstantial evidence of the declarant’s state of mind

Question 133

When are verbal acts not hearsay?

Answer 133

When the out of court statements had independent legal significance (i.e., the law attached rights and obligations to the words simply because they were said)

• Examples
  
  • Words of offer, repudiation, or cancellation of a contract
  • Words that have the effect of making a gift or bribe
  • Words that are themselves an act of perjury, criminal misrepresentation, or defamation

Question 134

When will an out of court statement not be hearsay because it shows the effect on the person who heard or read it?

Answer 134

If the statement:

• Is offered to show that someone heard or read it
• So the jury knows how it affected their state of mind
• And the person’s state of mind is relevant

Examples:

• Hearing/reading something can:
  
  • Put someone on notice
  • Give them a motive
  • Make their beliefs and actions reasonable

Question 135

When will an out of court statement not be hearsay because it serves as circumstantial evidence of the speaker’s state of mind?

Answer 135

When the statement unintentially reveals something relevant about the speaker’s state of mind

Examples

• Statements demonstrating insanity
• Lies that demonstrate a consciousness of guilt
• Questions that demonstrate a lack of knowledge

Question 136

When is a prior statement of a testifying witness excluded from the definition of hearsay?

Answer 136

If the prior statement is:

1. A statement of identification
2. A prior inconsistent statement that was:
   
   • Made under oath
   • During a hearing or deposition
3. A prior consistent statement that was:
   
   • Used to rehabilitate a witness who was impeached with evidence of motive
   • And made before the recent event suggesting motive

Question 137

What are the top ten hearsay exceptions?

Answer 137

1. Statement by an opposing party
2. Former testimony
3. Forfeiture by wrongdoing
4. Statement against interest
5. Dying declaration
6. Excited utterance
7. Present sense impression
8. Statement of then-existing mental, emotional, or physical condition
9. Statement for purpose of medical treatment or diagnosis
10. Business and public records

Also remember:

• Past recollection recorded
• Learned treatises

Question 138

What is the rule for the hearsay exception for statements by an opposing party?

Answer 138

Any statement made by a party is admissible if it is offered by his opponent

Notes:

• These used to, and may still be, referred to as admissions rather than statements
• Think of Miranda rights - anything you say can and will be used against you in a court of law

Question 139

When can the statement of an agent or employee of a party be used against the party under the hearsay exception for statements of opposing parties?

Answer 139

If the statement:

• Concerns a matter within the scope of the agency or employment, and
• Was made during the agency or employment

Question 140

When can the statement of a defendant’s co-conspirators be used against the defendant under the hearsay exception for statements of opposing parties?

Answer 140

If the statement was made during and in furtherance of the conspiracy

Question 141

What hearsay exceptions require that the declarant be “unavailable”?

Answer 141

1. Former testimony
2. Forfeiture by wrongdoing
3. Dying declaration
4. Statement against interest

Question 142

When is a declarant unavailable?

Answer 142

• Privilege
• Refusal to testify
• Lack of memory
• Illness or death
• Absent from jurisdiction

Question 143

What are the elements of the hearsay exception for former testimony?

Answer 143

• The declarant is unavailable
• The prior statement was made in a trial or deposition
• The prior statement is offered against a party who, on the prior occasion, had:
  
  • An opportunity, and
  • A similar motive (relevance of testimony in prior trial must be substantially similar to its relevance now)
  • To cross-examine or develop the testimony

Question 144

What are the elements of the hearsay exception for forfeiture by wrongdoing?

What is the burden of proof regarding wrongdoing?

Answer 144

A declarant’s out of court statement may be offered against any party who:

• Knew the declarant would be testifying, and
• Wrongfully caused the declarant to be unavailable
• For the specific purpose of preventing the witness from testifying

Burden of proof:

• Preponderance of the evidence

Question 145

What are the elemtns of the hearsay exception for statements against interest?

Answer 145

• Declarant is unavailable
• Statement is against defendant’s proprietary, pecuniary, or penal interest

Criminal cases:

• Defendant’s penal interest must be corroborated

Question 146

What is the difference between:

• Statement against interest
• Statement of party opponent

Answer 146

Unlike a statement of a party opponent, a statement against interest:

• Must have been against interest when it was made
• Any person (not merely a party) can make a statement against interest
• Personal knowledge is not required
• The declarant must be unavailable

Question 147

What should I know about the statement against interest exception for the bar exam?

Answer 147

It is often not the correct answer on the exam because there are so many details required for it to be the right one:

• Declarant must be unavailable
• Statement must be against interest
• It must not be offered against a party who said it

Question 148

What are the elements of the hearsay exception for dying declarations?

In what type of case will it arise?

Answer 148

• Declarant is unavailable
• Statement was made under a belief of impending and certain death
• Statement concerns circumstances of impending death

Type of case:

• Homicide prosecution
• Any civil trial

Question 149

What are the elements of the hearsay exception for excited utterances?

Answer 149

• Statement concerns a startling event, and
• Was made while the declarant was still under the stress of the excitement caused by the event

Note: unavailability is NOT required

Question 150

What are the factors that make make a statement “excited”?

Answer 150

• Nature of the event - e.g., murder
• Time that has passed
• Visual clues - e.g., exclamation point!

Question 151

What are the elements of the hearsay exception for present sense impression?

Answer 151

• Statement described an event, and
• Was made either:
  
  • While the event took place,
  • Immediately thereafter

Question 152

What are the elements of the hearsay exception for statements of then-existing mental, emotional, or physical condition?

Answer 152

• Statement concerns the declarant’s then-existing:
  
  • Physical condition
  • Mental or emotional condition
• Which include:
  
  • Future intent
• But not:
  
  • Memory, or
  • Belief about a past condition

Question 153

What are the elements of the hearsay exception for statements made for purpose of medical diagnosis or treatment?

Answer 153

Statement must be made:

• For the purpose of:
  
  • Diagnosis
  • Treatment
• Concerning:
  
  • Present symptoms
  • Past symptoms
  • Cause of the patient’s condition
• But only if:
  
  • Reasonably pertinent to the diagnosis or treatment

Question 154

What are the elements of the hearsay exception for business and public records?

Is anything additional for public records?

What about criminal trials?

Answer 154

Records must:

• Be of a business (any type, including public agencies)
• Be made in the regular course of business (relates to business)
• Be r__egularly required by the business
• Have been made contemporaneously with the event recorded
• Consist of:
  
  • Information observed by an employee of the business
  • A statement within some other hearsay exception

Public records

• May also include records by public employees after an accident
  
  • E.g., police officer’s conclusion about fault in an accident report

Criminal trials:

• A police report cannot be offered against a criminal defendant

Question 155

How do you lay the foundation for (i.e., authenticate) business records?

Answer 155

1. Call a witness
   
   • Call a knowledgeable witness who can testify to the elements for the hearsay exception
2. Self-authenticate
   
   • Submit a written certification under oath testifying to the elements of the hearsay exception

Question 156

What is the confrontation clause?

Answer 156

Under the 6th amendment, criminal defendants have a right to be confronted by the witnesses against them

So, prosecution cannot offer testimonial hearsay in violation of the defendant’s right to cross-examine the declarant

Question 157

For purposes of the confrontation clause, when is the defendant’s right to cross-examine witnesses against him satisfied?

Answer 157

1. If the defendant had a chance to cross-examine the witness when:
   
   • The statement was made
   • Evidence was offered at trial
2. If the defendant’s misconduct waived his right to confront

Question 158

For purposes of the confrontation clause, what is testimonial?

Answer 158

• Grand jury testimony, by definition
• Statements in response to a police interrogation:
  
  • If:
    
    • The questions are to establish past facts potentially relevant to a criminal prosecution
  • But not if:
    
    • The questions are to assist the police in an ongoing emergency
• _​_Police reports
  
  • But not business records

Question 159

If hearsay testimony is admitted, can the other party do anythign?

Answer 159

Yes. Use any impeachment methods to attack the declarant’s credibility that would have been available had they actually testified

Question 160

Who decides questions of credibility?

What forms does this come in?

Answer 160

The jury

Credibility comes in three forms:

1. Whether a witness has personal knowledge
2. Whether an exhibit is authentic
3. Whether the defendant is in fact the person who committed a bad act offered as MIMIC evidence

Question 161

What is the judge’s role with regard to questions of credibility?

Answer 161

To ensure that there if sufficient evidence for a reasonable juror to conclude that the conditional fact is true

Question 162

Who decides questions of admissibility?

What are examples?

Answer 162

The judge

Examples:

• Whether testimony is admissible
• Whether a communication is privileged
• Whether an expert is qualified

Question 163

What is the burden of proof for questions of admissibility?

What can the judge consider in making this determination?

Answer 163

Always preponderance of the evidence, and the judge can consider inadmissible evidence