Evidence

Question 1

What is relevance?

Answer 1

Evidence is relevant if it tends to make a material fact more or less probable than it would without the evidence.

Question 2

General rule of evidence and exception to that rule:

Answer 2

Evidence must relate to the time, event, or person involved in the present litigation; otherwise, it is not relevant.

EXCEPTION: Previous similar occurrences may be relevant if they are probative of a material issue and that probativeness outweighs the risk of confusion or unfair prejudice.

Question 3

How to approach relevance questions:

Answer 3

Step 1: Determine if the evidence is relevant
Step 2: if relevant, determine whether the evidence should nonetheless be excluded based on: 1. Judicial discretion or 2. Public Policy.

Question 4

A judge may exclude relevant evidence if:

Answer 4

Its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, undue delay, or waste of time.

Unfair surprise is not a valid ground upon which to exclude relevant evidence.

Question 5

What are some reasons for evidence excluded for public policy reasons?

Answer 5

1. Liability Insurance- not admissible to show negligence or ability to pay. HOWEVER, may be admissible to: 1. Prove ownership or control, 2. To impeach, or 3. As part of an admission of liability.
2. Subsequent remedial measures: evidence of repairs or other precautionary measures made following an injury is not admissible to probe negligence, culpable conduct, a defect in a product or its design, or need for warning or instruction. HOWEVER, it may be admissible to: 1. Prove ownership or control, 2. Rebut a claim that the precaution was not feasible, or 3. Prove that the opposing party has destroyed evidence.
3. Settlement Offers and Withdrawn Guilty Pleas:
   Not admissible to prove or disprove the validity or amount of a disputed claim. (Evidence of compromises or offers to compromise, withdrawn guilty pleas, pleas of nolo contendere, and offers to plead guilty are inadmissible.)
4. Offers to Pay Medical Expenses:
   Payment of or offers to pay the injured party’s medical expenses are inadmissible.

Admissions of fact accompanying offers to pay medical expenses are admissible.

Question 6

All relevant evidence is admissible UNLESS

Answer 6

an exclusionary rule applies or judicial discretion (probative value is substantially outweighed by pragmatic considerations) or public policy:

Question 7

What are the exceptions to the similar occurrence rule in determining relevance?

Answer 7

1. Accident or Injury history
2. Similar Accidents caused by the same instrumentality or condition
3. Previous Acts Admissible to Prove Intent
4. Sales of Similar Property
5. Habit
6. Industrial custom as a standard of care

Question 8

Accident or Injury history

Answer 8

GR: inadmissible because it shows nothing more than the plaintiff is accident prone (character/propensity evidence)- not allowed in civil case however:
 Are admissible if the event that caused the P’s injuries is in issue.

Question 9

Similar Accidents caused by the same instrumentality or condition

Answer 9

 GR: Other accidents involving the defendant are inadmissible because it shows the propensity or character. However:
• Evidence of prior accidents or injuries caused by the same event or condition is admissible to prove:
o The existence of a dangerous condition
o The defendant had knowledge of the dangerous condition, and
o That the dangerous condition was the cause of the present injury.

Question 10

Previous Acts Admissible to Prove Intent

Answer 10

 Similar conduct previously committed by a party may be introduced to prove the party’s present motive or intent when such elements are relevant.

Question 11

Sales of Similar Property

Answer 11

 Selling price of other similar properties

Question 12

Habit

Answer 12

 The habit or routine of a person or business is admissible as circumstantial evidence as to how the person or business acted on the particular time in question. “instinctively, automatic, always, never”
 Repetitive response to a particular set of circumstances
• Distinguish from character evidence- general disposition or propensity:
o Carlos is a careless driver

Question 13

Industrial custom as a standard of care

Answer 13

 Evidence of how others in the same trade or business have acted in the past may be admitted as some evidence as to how the defendant should have acted in the instant case.

Question 14

GR: for Character Evidence:

Answer 14

Character evidence may be offered as substantive, rather than impeachment, evidence to:
o Prove character wen it was the ultimate issue in the case, or
o Serve as circumstantial evidence of how a person probably acted

Question 15

Character Evidence in Civil Cases:

Answer 15

Generally NOT ADMISSIBLE
o Unless character is directly in issue (defamation), evidence of character offered by either party to prove the conduct of a person in the litigated event is generally NOT ADMISSIBLE in a civil case.

Question 16

Character Evidence in Criminal Cases:

Answer 16

Generally only Accused can Initiate
o Prosecution may not initiate evidence of bad character of the defendant merely to show that she is more likely to have committed the crime.
• Prosecution may introduce evidence of prior misconduct for reasons other than propensity to commit the crime.
o The accused may introduce evidence of her good character to show her innocence of the alleged crime.

Question 17

o How does Defendant introduce evidence of good character

Answer 17

• Witness for the defendant may testify as to the defendant’s GOOD REPUTATION for the trait in question AND
• May give his personal opinion concerning that trait of the defendant

Question 18

How does the Prosecution Rebut Defendant’s Character Evidence?

Answer 18

• Once the Defendant open the door by introducing character evidence, the prosecution may rebut it by:
 (1) Cross-examining the character witness regarding the basis of his testimony, including whether he knows or has heard of specific instances of the defendant’s misconduct.
 (2) Calling qualified witnesses to testify to the defendant’s bad reputation or give their opinions of the defendant’s character.

Question 19

Inquiring about past Offenses: Character Witness

Answer 19

Any misconduct, including prior arrests, may be inquired about while cross-examining the witness.
o Prosecutor is limited to inquiry of the witness; she may not introduce any extrinsic evidence of the misconduct.

Question 20

Inquiring about past Offenses: Victim in Criminal Case

Answer 20

o The defendant MAY introduce reputation or opinion evidence of a bad character trait of the alleged crime victim when it is relevant to show the defendant’s innocence.
• Once defendant has done this → Prosecution may counter with reputation or opinion of:
 (1) the victim’s good character for the same trait, or
 (2) the defendant’s bad character for the same trait.

Question 21

In any CIVIL OR CRIMINAL proceeding involving alleged sexual misconduct, evidence offered to prove the sexual behavior or sexual disposition of the victim is generally _____

Answer 21

Inadmissible!

 EXCEPTION:
• Criminal Case: specific instances of a victim’s sexual behavior are admissible to prove that someone other than the defendant is the source of the semen, injury, or other physical evidence.
o Specific instances of sexual behavior between the victim and the accused are admissible by the prosecution for any reason and by the defense to prove the consent.
• Civil Cases:
o Evidence of the alleged victim’s sexual behavior is admissible if it is not excluded by any other rule and its probative value substantially outweighs the danger of harm to the victim and of unfair prejudice to any party.
• Evidence of an alleged victim’s reputation is admissible only if it has been placed in controversy by the victim.

Question 22

victim’s character for peacefulness to rebut Self-defense claim: (Homicide Case)

Answer 22

 In a homicide case where the defendant pleads self-defense, evidence of any kind that the victim was the first aggressor opens the door to evidence that the victim had good character for peacefulness.
 Defendant says victim was first aggressor→prosecution may rebut it by saying victim character for peacefulness.

Question 23

Specific Acts of Misconduct

Answer 23

Evidence of a person’s other crimes or misconduct is inadmissible if offered solely to establish a criminal disposition.

Question 24

When are specific acts of misconduct admissible?

Answer 24

•	Admissible if relevant to some issue other than the defendant’s character or disposition
	MIMIC
•	Motive 
•	Intent 
•	Absent Mistake 
•	Identity 
•	Common Plan or scheme

Question 25

What are the requirements for admissibility for specific instances of misconduct?

Answer 25

 (1) There must be sufficient evidence to support a jury finding that the defendant committed the prior act, and
 (2) its probative value must not be substantially outweighed by the danger of unfair prejudice.

Question 26

Prior Acts of Sexual Assault or child molestation

Answer 26

o Evidence of a defendant’s prior acts of sexual assault or child molestation is ADMISSIBLE in a case where the defendant is accused of committing an act of sexual assault or child molestation.
• Party offering must disclose to the defendant 15 days before trial.

Question 27

Competency Limitations for Witnesses

Answer 27

o The witness must have personal knowledge of the matter about which he is to testify and
o The witness must declare that he will testify truthfully
• Translator: must be qualified and take an oath to make a true translation.

Question 28

What is the general rule when a witness cannot remember her testimony on the stand?

Answer 28

GR: A witness cannot read her testimony from a prepared memorandum

Question 29

What are the exceptions to the GR for the use of memoranda of a witness on the stand?

Answer 29

1. Present Recollection Refreshed and

2. Past Recollection Recorded

Question 30

What is Present Recollection Refreshed?

Answer 30

When a witness cannot recall information from her testimony, if there is a memorandum that the witness has prepared she may review it and then give her testimony. Witness may NOT read it into the record!

Question 31

What is Past Recollection Recorded?

Answer 31

 Witness states that she has insufficient recollection of an event to enable her to testify fully and accurately, even after she has consulted a writing given to her on the stand. The writing may be read into evidence if proper foundation is laid:

Question 32

What is the proper foundation that must be laid for a writing to be read into evidence?

Answer 32

• The witness at one time had personal knowledge of the facts in the writing;
• The writing was made by the witness or under her direction, or it was adopted by the witness;
• The writing was timely made when the matter was fresh in the witness’s mind;
• The writing is accurate; and
• The witness has insufficient recollection to testify fully and accurately.

Question 33

Lay Witness Opinion Testimony GR:

Answer 33

Opinions by lay witnesses are generally inadmissible

Question 34

opinion testimony by a lay witness is admissible when it is:

Answer 34

o Rationally based on the witness’s perception
o Helpful to clear understanding of his testimony or helpful to the determination of a fact in issue, and
o Not based on scientific, technical, or other specialized knowledge.

Question 35

An expert may state an opinion or conclusion, provided:

Answer 35

 (1) The subject matter is one where scientific, technical =, or other specialized knowledge would assist the trier of fact;
 (2) The witness is qualified as an expert;
 (3) The expert possesses reasonable probability regarding his opinion; and
 (4) The opinion is supported by a proper factual basis. Expert opinion may be based on one or more of three possible sources of information:
• personal observation
• facts made known to the expert at trial or
• facts not known personally but supplied to him outside the courtroom and of a type reasonably relied upon by experts in the particular field.

Question 36

GR for impeachment

Answer 36

Party may not bolster or accredit witness testimony UNLESS it has been attacked through impeachment.

Question 37

Prior Inconsistent Statements

Answer 37

Party may show, by cross examination or extrinsic evidence, that the witness has on another occasion, made statements inconsistent with his present testimony.

Question 38

What is the foundation that must be laid for extrinsic evidence to be provided in impeachment circumstances?

Answer 38

Can be introduced to prove a prior inconsistent statement only if the witness is, at some point, given an opportunity to explain or deny the statement.

Question 39

Impeachment for Bias or Interest

Answer 39

Before a witness can be impeached by extrinsic evidence of bias or interest, he must first be asked about the facts that show bias or interest on cross examination.

Question 40

Conviction of Crime Impeachment

Answer 40

• Witness may be impeached by proof of a conviction for certain crimes. Pending review or appeal doesn’t matter.

Question 41

Types of crimes that may be used for impeachment

Answer 41

1. Any crime involving dishonesty or false statement

2. Felony NOT involving dishonesty or false statement

Question 42

What types of crimes may not be used for impeachment purposes?

Answer 42

• Remote, Juvenile, and constitutionally defective convictions.
• Pardon

Question 43

Specific Instances of Misconduct- Bad Acts

Answer 43

• Upon DISCRETION OF TRIAL JUDGE, witness may be interrogated upon cross-examination with respect to an act of misconduct only if the act is probative of truthfulness (an act of deceit or lying).
• Extrinsic Evidence of bad acts to prove misconduct is NOT permitted

Question 44

Opinion or Reputation Evidence for Truthfulness

Answer 44

A witness may be impeached by showing that he has a poor reputation for truthfulness.

Question 45

Sensory Deficiencies and impeachment

Answer 45

Witness may be impeached by showing, either on cross examination or by extrinsic evidence, that his faculties of perception and recollection were so impaired as to make it doubtful that he could have perceived those facts.

Question 46

When is extrinsic evidence permitted in the face of Contradictory Facts?

Answer 46

 (1) The witness’s testimony on a particular fact is a material issue in the case;
 (2) the testimony on a particular fact is significant on the issue of credibility, or
 (3) the witness volunteers testimony about a subject as to which the opposing party would otherwise be precluded from offering evidence

Question 47

What is hearsay?

Answer 47

• A statement, other than the one made by the declarant while testifying at the current trial or hearing, offered to prove the truth of the matter asserted.

Question 48

Exceptions to hearsay (where declarant must be unavailable)

Answer 48

o Former Testimony: Not grand juries
o Statement Against Interest
o Dying Declaration
o Statement of Personal or Family History
o Statement Offered Against Party Procuring Declarant’s Unavailability

Question 49

Hearsay Exceptions: Where Availability is Immaterial

Answer 49

o	(1) State of Mind: 
o	(2) Excited Utterance 
o	(3) Present Sense Impression
o	(4) Present Bodily Condition 
o	(5) Past Bodily Condition 
o	(6) Recorded Recollection 
o	(7) Business Records or the Absence Thereof 
o	(8) Public Records and Reports or Absence Thereof; Records of Vital Statistics 
o	(9) Judgments 
o	(10) Ancient Documents and Documents Affecting Property Interests 
o	(11) Learned Treatises 
o	(12) Reputation 
o	(13) Family Records 
o	(14) Market Reports

Question 50

Hearsay Catch-All Exception

Answer 50

o For a hearsay statement that is not covered by a specific exception to be admitted, it must:
• Possess circumstantial guarantees of trustworthiness
• Be strictly necessary; and
• Notice be given to the adversary as to the nature of the statement

Question 51

Under the confrontation clause, a hearsay statement will not be admitted (even if it falls within a hearsay exception) when:

Answer 51

• (1) The statement is offered against the accused in a criminal case;
• (2) The declarant is unavailable
• (3) The statement was testimonial in nature and
 Testimonial: primary purpose of the interrogation is to establish or prove past events potentially relevant to a later criminal investigation.
• (4) the accused had no opportunity to cross examine the declarant’s testimonial statement prior to trial.

Question 52

Authentication GR:

Answer 52

GR: a writing or any secondary evidence of its content will NOT be admitted unless the writing is authenticated by proof that shows that the writing is what the proponent claims it is. Proof must be sufficient to support a jury finding of genuineness.

Question 53

Best evidence Rule (BER)

Answer 53

• To prove the terms of a writing the original writing must be produced if the terms of the writing are material. Secondary evidence of the writing is admissible only if the original is unavailable.

Question 54

BER applies in what two situations?

Answer 54

• (1) where there is a legally operative of dispositive instrument; or
• (2) the knowledge of a witness concerning a fact results from having read it in the document.

Question 55

BER does not apply where:

Answer 55

• The fact to be proved has an existence independent of any writing.
• The writing is of minor importance (collateral) to the matter in controversy.
• There is a summary of a voluminous record
• Copies of public records that are certified as correct or testified to as correct.

Question 56

Admissibility of Secondary Evidence

Answer 56

o If the proponent cannot produce the original writing in court, he may offer secondary evidence of its contents if a satisfactory explanation is given for the nonproduction of the original.

Question 57

Valid excuses justifying the admissibility of secondary evidence include:

Answer 57

 Loss or destruction of the original
 The original is in possession of a third party outside the jurisdiction and is unobtainable.
 The original is in the possession of an adversary who, after due notice, fails to produce the original.

Question 58

PRIVELEGES: Federal Rules

Answer 58

o Attorney-client privilege, spousal immunity, the privilege for confidential marital communications, psychotherapist/social worker-client privilege, and the clergy-penitent privilege.
o In diversity case, state law privilege applies

Question 59

Attorney-Client Privilege

Answer 59

o	Communications between an attorney and client, made during professional consultation, are privileged from disclosure. Elements of this privilege are: 
•	Attorney-client relationship
•	Confidential Communication
•	Client holds the privilege 
•	Applies even after death

Question 60

When does the Attorney-Client Privilege NOT apply?

Answer 60

• (1) If the attorney’s services were sought to aid in the planning or commission of something the client should have known was a crime or fraud.
• (2) Regarding a communication relevant to an issue between parties claiming through the same deceased client; and
• (3) For a communication relevant to an issue of breach of duty in a dispute between the attorney and client.

Question 61

Physician-Patient Privilege

Answer 61

o Privilege belongs to the patient and he may decide to claim or waive it. Confidential communications between patient and physician are privileged provided that:
• A professional relationship exists
• The information is acquired while attending the patient in the course of treatment; and
• The information is necessary for treatment. (Non-medical information is NOT privileged)

Question 62

When does the Physician- Patient Privilege NOT Apply?

Answer 62

• The patient puts his physical condition at issue (personal injury suit)
• The physician’s assistance was sought to aid wrongdoing (commission of crime or tort)
• The communication is relevant to an issue of breach of duty in a dispute between the physician and patient;
• The patient agreed by contract to waive the privilege; or
• It is a federal case applying the federal law of privilege.

Question 63

Psychotherapist/Social Worker-Client Privilege

Answer 63

Communications between a psychotherapist or social worker and his client

Question 64

Privileges related to Marriage

Answer 64

Spousal Immunity and Confidential Marital communications

Question 65

Spousal Immunity

Answer 65

1. One spouse cannot be compelled to testify against the other spouse in ANY criminal proceeding.
2. Only the witness-spouse may invoke spousal immunity (party spouse may not prevent the witness spouse from testifying.)
3. The privilege can be claimed only during the marriage but covers information learned before and during the marriage.

Question 66

Confidential Marital Communication

Answer 66

1. Communications made in reliance upon the intimacy of the marital relationship are privileged. The privilege applies in both CIVIL and CRIMINAL proceedings.
2. Both spouses have the privilege not to disclose, and to prevent the other from disclosing a confidential marital communication.
3. The privilege survives the marriage, but covers only statements made during the marriage.

Question 67

Privilege Against Self-Incrimination

Answer 67

Under the 5th Amendment of the Constitution, a witness cannot be compelled to testify against himself.

Question 68

Clergy or Accountant Privilege

Answer 68

Elements similar to attorney-client privilege

Question 69

Professional Journalist Privilege

Answer 69

o There is NO constitutional right for a professional journalist to protect his source of information.

Question 70

Government Privilege

Answer 70

o Official information not otherwise open to the public or the identity of an informer may be protected by a privilege for the government.

Question 71

Reproductions and Explanatory Real Evidence in MD:

Answer 71

Where a party intends to use computer generated evidence at trial, the party generally must file a written notice within the time provided in the scheduling order or, where there is no scheduling order, no later than 90 days before trial.

Notice is not required to use computer generated evidence prepared by, or on behalf of, a party-opponent for impeachment purposes or as a statement of a party-opponent.

Question 72

Self-Authenticating Documents: MD (report prepared by chemist or other analyst who tested whether a substance is a controlled dangerous substance)

Answer 72

report prepared by chemist or other analyst who tested whether a substance is a controlled dangerous substance or whether a person’s blood contained a frug or controlled substance may qualify as self-authenticating.

However, pursuant to the confrontation clause, a criminal defendant has a right to demand the presence of the chemist who generated the report. If the D provides notice of such demand at least 5 days before trial, the chemist must be produced otherwise the report will NOT be admitted.

Question 73

Dead Man Act in MD:

Answer 73

MD has a dead man act. The exclusion of witnesses is narrowly construed and evidence admitted in “close” cases.

Question 74

Who do “protected parties” in the dead man act include in MD?

Answer 74

an incompetent person as well as the personal representative, heir, devisee, distributed, or legatee of a deceased person.

Question 75

Exceptions and Waivers to the Dead man act:

Answer 75

A protected party may waive the Act’s protection by: 1) calling the interested party to testify, or 2) introducing statements of the deceased or incompetent person.

Question 76

In MD, testimony as to the cause of a medical condition of a particular person is reserved for who?

Answer 76

Physicians

Question 77

In MD are remote convictions admissible?

Answer 77

No, they are not admissible if a period of 15 years has elapsed since the date of conviction.

Question 78

Does MD recognize the physician patient privilege?

Answer 78

No, MD does not

Question 79

Does MD recognize the psychotherapist/social worker- client privilege?

Answer 79

Yes, a patient has the privilege to refuse to disclose, and prevent a witness from disclosing communications made to a psychiatrist, psychologist, certified or licensed professional counselor, or psychiatric-mental health nursing specialist relating to treatment or diagnosis of the patient as well as any information that by its nature would show the existence of a medical record of the treatment or diagnosis.

Question 80

MD exceptions to the Psychotherapist/social worker client privilege:

Answer 80

There is not privilege where:
1. The patient has put the patient’s mental condition in issue; 2. the patient makes a malpractice claim against the care provider; 3. disclosure is necessary to place the patient in a facility for mental illness; or 5. the patient expressly waives the privilege.

Question 81

MD spousal immunity

Answer 81

The witness spouse holds the privilege not to testify at the criminal trial of the party spouse.

Question 82

Mediation Privilege (MD)

Answer 82

All persons present during a mediation are generally prohibited from disclosing communications made as part of the mediation in any judicial, administrative, or other proceeding.

However, a written mediation agreement is not subject to the privilege.

Privilege does not apply with regard to disclosures relating to allegations of misconduct or negligence.