Evidence

Question 1

When can an evidentiary ruling be reversed even if the opposing party didn’t object?

Answer 1

Plain error - an error that effects the substantial right of the party. (effecting the verdict)

Question 2

Conditional relevance rule

Answer 2

whether there is enough evidence to determine if the necessary fact existed.

Question 3

When should a limiting instruction be given by the judge?

Answer 3

Evidence admissible for one party/purpose but inadmissible for another party or purpose.

Question 4

Rule of completeness

Answer 4

When a party introduces part of a writing/recording, the adverse party may introduce any other part of the writing for context/fairness.

Question 5

When is the rule of completeness not applicable?

Answer 5

When it includes inadmissible evidence such as hearsay.

Question 6

What are three preliminary questions?

Answer 6

CAP
Competency
Admissibility
Privilege

Question 7

What is the effect of judicial notice on the jury?

Answer 7

Civil - must accept as fact

Criminal jury - MAY accept it

Question 8

Who has the burden of production

Answer 8

Civil - plaint.

Crim - prosecution

Question 9

When is preponderance of the evidence used in criminal trials?

Answer 9

Motion to surpress

Validity of confession

Question 10

What is the burden to prove insanity?

Answer 10

Clear and convincing evidenc

Question 11

When can the court exclude relevant evidence?

Answer 11

When the probative value is substantially outweighed by:

1) prejudice
2) confussion of the issue
3) misleading the jury
4) delay/cumulative

Question 12

what are the there forms of character evidence

Answer 12

Reputation
Opinion
Specific Acts

Question 13

What types of civil cases

Answer 13

Defamation
Child Custody
Negligent entrustment
Negligent hiring

Question 14

When the def. puts on character evidence what can the prosecution do?

Answer 14

Cross- specific acts

direct - reputation and opinion

Question 15

How does the court treat habit evidence?

Answer 15

It is admissible substantively: both opinon and specific acts

Question 16

How are SUBSEQUENT remedial measurers treated?

Answer 16

Inadmissible to prove:
Negligence, culpable conduct, failure to ward

Admissible: ownership/control, impeach, feasibility

Question 17

Admissibility of offers/settlements negotiations?

Answer 17

Inadmissible: validity/amount, liability, impeachment

Admissible:
bias/prejudice, undue delay

note: need a dispute

Question 18

Admissibility of medical bills/expenses?

Answer 18

Inadmissible but admissions are admissible.

note: don’t need a dispute

Question 19

Admissibility of Plea negotiations

Answer 19

Inadmissible: any statement made to PROSECUTORS during plea negotiations

note: doesn’t apply to police

Question 20

Do plea negotiation protections apply to admissions to police officers?

Answer 20

No - only prosecutors

Question 21

Admissibility of Liability Insurance

Answer 21

Inadmissible: to prove negligence or fault

Admissible: ownership/control, bias/prejudice

Question 22

Rape shield rule

Answer 22

In any civil or criminal proceeding involving alleged sexual misconduct, evidence offered to show:
The victim’s sexual behavior, predisposition, or sexual history is excluded

Question 23

Exception to the rape-shield rule

Answer 23

• to negate source of semen (past acts with other men)

- consent (past acts with THIS defendant)

Question 24

What is required to bring in exceptions to rape shield?

Answer 24

1) notice;
2) the evidence is reviewed in camera by the judge; and
3) the evidence alleges sexual misconduct.

Question 25

In a criminal/civil case in which the defendant is accused of child molestation or sexual assault (FRE 413, 414), specific acts by the defendant are?

Answer 25

Admissible (including to prove propensity)

Question 26

Attorney client privilege

Answer 26

1) confidential 2) communication (not observations by atty) 3) seeking legal advice

Question 27

How do federal courts treat patient/doctor relationships?

Answer 27

There is no doctor-patient privilege in federal court (there is psychiatric/patient privilege)

Question 28

What is the major exception to marital privilege?

Answer 28

joint participation in a crime

Question 29

When does spousal immunity apply?

Answer 29

Only in criminal cases during and before marriage (divorce destroys) by the party spouse

Question 30

What are the different types of immunity?

Answer 30

Transactional - broad, cannot be prosecuted for the underlying offense Use - statements by witness may not be used against him but prosecutors can prosecute with independent evidence

Question 31

When does the 5th amendment apply?

Answer 31

only to testimonial evidence (on the stand) doesn't apply to physical or demonstrative evidence

Question 32

Who may impeach a witness?

Answer 32

Any party

Question 33

How do you impeach a witness using character of untruthfulness?

Answer 33

reputation and opinion evidence that they are not truthful.

Question 34

Explain impeachment process for witnesses?

Answer 34

Direct - reputation and opinion about untruthfulness Cross - specific acts about untruthfulness Bolster - Reputation and opinion only if attacked

Question 35

A lay witness may testify if they have what type of knowledge?

Answer 35

personal knowledge?

Question 36

Who may impeach a witness?

Answer 36

Any party

Question 37

Admission by conduct (hearsay exemption)

Answer 37

A reasonable person would have denied statement

Question 38

Adoptive admission (hearsay admission

Answer 38

Evidence sufficient to show party heard and understood the statement and adopted it as her own (example - friend has drugs)

Question 39

When are employee statements admissible as exempt hearsay?

Answer 39

1) made during scope of employment; | 2) in a matter related to scope of THEIR employment

Question 40

Co-conspirator statements as exempt hearsay?

Answer 40

1) existence of conspiracy 2) member of conspiracy 3) made in furtherance of conspiracy 4) made during the existence of conspiracy

Question 41

Prior statements

Answer 41

3 types: 1) prior ID 2) prior consistent 3) prior inconsistent 2 requirements: a) testify at trial; and b) available and subject to cross

Question 42

Present sense impression exception

Answer 42

Declarant must make during or immediately after event. Verbal or in writing

Question 43

Excited utterance

Answer 43

statements made during the stress or excitement of an event

Question 44

State of mind/then existing mental, physical condition.

Answer 44

Must be present. be aware of past tense

Question 45

Recorded recollection

Answer 45

1) witness once had knowledge 2) now has insufficient recollection 3) made when fresh 4) statement reflects knowledge (authentication)

Question 46

Business records

Answer 46

1) made in regular course of business 2) foundation witness is familiar with record keeping process 3) trustworthiness (determined by judge) examples - sales receipts hospital records, payroll

Question 47

Absence of entry into a business record

Answer 47

1) witness familiar w/ records; 2) diligently searched; 3) found no record of event

Question 48

What are the unavailability hearsay scenarios (when is the declarant unavailable)

Answer 48

PRISM ``` Privilege Refusal Incapacitated Subpoena Memory ```

Question 49

Former testimony

Answer 49

Admissible 1) if made under oath; 2) same or related proceeding or deposition. 3) opportunity to cross about same subject matter Note- doesn't have to be same cause of action

Question 50

Statements made under impending death (Dying declaration)

Answer 50

1) must be made under imminent death 2) needs to be a homicide case (ok in civil) 3) DON'T actually have to die

Question 51

Statements made against interest

Answer 51

1) non party | 2) against pecuniary, penal, or proprietary interest at time it was made.

Question 52

What's the difference between non-testimonial and testimonial statements?

Answer 52

Testimonial statements are made to further an investigation/build a case while non-testimonial statements are made to aide police during an ongoing emergency.

Question 53

What is the foundation for demonstrative evidence.

Answer 53

- Must assist the trier of fact; and - Fairly and accurate represent - witness must be substantially familiar w/ items shown

Question 54

What kind of documents are self authenticating?

Answer 54

CONTAC 1) certified documents 2) Official publication by a PUBLIC auth. 3) Newspapers/periodicals 4) Trade inscriptions 5) Acknowledged documents (notarized) 6) Commercial paper