Evidence

Question 1

Intro paragraph for evidence:

Answer 1

Generally, evidence is relevant if it has any tendency to make a material fact more or less probable than would be the case without the evidence. All relevant evidence is admissible unless (1) some specific exclusionary rule is applicable, or (2) the court makes a discretionary determination that the probative value of the evidence is substantially outweighed by other pragmatic considerations (e.g. unfair prejudice, misleading jury, undue delay).

Question 2

Generally, plaintiff’s accident history is ______ because

Answer 2

inadmissible; shows nothing more than that the plaintiff is accident-prone. Being accident prone is merely character evidence.

Question 3

Generally, other accidents involving defendant are inadmissible because they suggest nothing more than a general character for carelessness. There is an exception if

Answer 3

other accidents involving same instrumentality or condition may be admitted for three potential purposes if accident occured under substantially similar circumstances:

1. existence of dangerous condition
2. causation of this accident
3. prior notice to D about dangerous condition

Question 4

Habit of a person or routine of business organization is admissible to show

Answer 4

circumstantial evidence of how person or business acted on occasion at issue in litigation.

Question 5

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

Answer 5

1. frequency of conduct

2. particularity

Question 6

In the event of a disputed civil claim, evidence of settlement is inadmissible to prove fault, as are

Answer 6

offers to settle or statements of fact made during settlement discussions

Question 7

Generally, settlement evidence is inadmissible to prove fault, except

Answer 7

1. settlement evidence admissible for purpose of impeaching a witness for bias
2. statements of fact made during settlement discussion in civil litigation with gov regulatory agency admissible during later criminal case

Question 8

Exclusionary rule for settlement evidence only applies if

Answer 8

there is a claim that is disputed at time of settlement discussion either as to validity of claim or amount of damages

Question 9

Evidence that a party has paid or offred to pay hospital or medical expenses is inadmissible, but other statements made in connection with the offer

Answer 9

are admissible*

*even admissions, just statement regarding payment itself is excluded

Question 10

Character evidence intro paragraph

Answer 10

Character evidence refers to a person’s general propensity of disposition. Character evidence is generally inadmissible unless

1. person’s character essential element of case (rare in civil cases and NEVER in criminal)
2. used as circumstantial evidence of the person’s conduct on a particular occasion
3. witness’s bad character for truthfulness to impeach credibility

Question 11

Character evidence in CRIMINAL case intro rule statement:

Answer 11

Generally, evidence of the defendant’s character to prove defendant’s conduct on a particular occasion is inadmissible during the prosecution’s case-in-chief. However, D, during defense, may introduce evidence of a relevant character trait to prove his conduct, which opens the door to rebuttal by the prosecution.

Question 12

A criminal defendant in a self-defense case may introduce evidence of victim’s violent character as

Answer 12

circumstantial evidence that the victim was the first aggresor

Question 13

Defendant’s other crimes for non-character purposes rule statement

Answer 13

As a rule, other crimes or specific bad acts of defendant are not admissible during the prosecution’s case in chief if the only purpose is to suggest that because of D’s bad character he is more likely to have committed the crime currently charged. However, D’s other crimes may be admissible to show something specific about the crime charged. The most common non-character purposes are MIMIC (motive, intent, mistake/lack thereof, identity, common scheme)

Question 14

General rule on admitting writings

Answer 14

If the relevance of a writing depends on its source or authorship, a showing must be made that the writing is authentic (i.e. that it is what it purpose to be). Unless both parties stipulate that the writing is authentic, a foundation must be laid for the document to be admissible.

Question 15

To authenticate a writing, if the issue is whether X is the author of the document, the three methods of authentication are

Answer 15

1. witness’s personal knowledge
2. handwriting comparison
3. circumstantial evidence

Question 16

If parties don’t stipulate to the authenticity of a writing and it’s disputed, the document is admissible if a court determines that

Answer 16

there is sufficient evidence for a reasonable juror to conclude that the document is genuine. This is called conditional relevancy. The judge herself doesn’t have to be persuaded; just some evidence is needed.

Question 17

Best Evidence Rule intro paragraph

Answer 17

A part who seeks to prove the contents of a writing must either produce the original writing or provide an excuse for not having it. If the court finds the excuse is acceptable, the part may then use secondary evidence such as oral testimony or a copy. The Best Evidence Rule applies when a party is seeking to prove the contents of a writing. It typically arises when the writing is a legally operative document (e.g. mortgage, deed, contract) or when the witness is testifying to facts she learned solely from reading about them in the writing. The BER does not apply if the witness has an independent knowledge of the facts in the writing.

Question 18

In order to be allowed to testify, a witness must possess both

Answer 18

personal knowledge (testifying to something she saw with her own eyes or heard with her own ears), and must take an oath or affirmation that demonstrates her willingness to tell the truth

Question 19

FRE does not have Dead Man’s Rule. Some states have a Dead Man’s Act. If the question specifically asks you about it, say that the act provides that

Answer 19

In a civil action, an interested witness is incompetent to testify against the estate of a decedent, concerning a transaction or communication b/w interested party and decedent.

Question 20

Prior identification by a trial witness is not barred by the hearsay rule. It is labeled as “exclusion” and can come in as substantive evidence as long as

Answer 20

witness who made prior identification must testify at trial and must be subject to current cross examination

Question 21

Privileges can depend on the court and SMJ. Intro para

Answer 21

1. In a fedQ case in fed court, privileges governed by CL as fed courts interpret them in light of reason and experience.
2. In diversity case, apply privilege law of state in which court sits

Question 22

Hearsay general rule statement

Answer 22

Hearsay is an our of court statement by a person offered to prove the truth of the matter asserted. Hearsay is inadmissible unless an exclusion or exception applies.

Question 23

Confrontation Clause rule statement

Answer 23

The Sixth Amendment’s right of confrontation requires that the criminal defendant be confronted with the witnesses against him. Confrontation is an opportunity for cross examination by the defendant. In the context of hearsay, the prosecution may not use a hearsay statement against the criminal defendant (even if it falls within a hearsay exception, except dying declaration) if:

1. the statement is testimonial
2. the declarant is unavailable, AND
3. defendant has had no opportunity for cross X

Question 24

Testimonial statements rule statemen

Answer 24

The meaning of “testimonial” statements is still being developed, but the following applications have been established:

• grandy jury testimony is testimonial
• statements in response to police interrogation

Question 25

Statements in response to police interrogation are testimonial if….not testimonial if…

Answer 25

Testimonial if primary purpose of questioning is to establish or prove past events potentially relevant to a later criminal prosecution. Not testimonial if primary purpose of questioning is to enable police assistance to meet an ongoing emergency.

Question 26

Inconsistent statement rule statement

Answer 26

For the purposes of impeaching credibility of a witness, party may show that witness, on another occasion, made statements that are inconsistent with some material part of her present testimony. An inconsistent statement may be proved be either examination of the witness or by extrinsic evidence. To prove a prior inconsistent statement by extrinsic evidence, witness must be given opportunity at some point to explain or deny allegedly inconsistent statement, and statement must be relevant to some issue in the case.