Evidence

Question 1

When can you use specific incidents of conduct as character evidence? (excluding prior convictions)

Answer 1

(1) In criminal cases: MIMIC (Motive, Intent, absence of Mistake, Identity, Common plan) (π must give advance notice)
(2) in civil cases, when an element of a claim or defense
(3) to x-exam a character witness (not admissible)

Question 2

children as witnesses

Answer 2

court decided competency weighing:

(a) Intelligence
(b) Ability to distinguish between truth and falsehood. (c) Understanding importance of telling the truth

Question 3

dead man statutes

Answer 3

A party that has a financial interest in a civil case is
prohibited from testifying about a communication or transaction with a dead person whose estate is a party to that suit, and the alleged communication is adverse to the estate. Not federal law.

Question 4

When can you use prior convictions?

Answer 4

(i) crimes involving dishonesty –> automatically admissible (subject to 10 year limit)

(ii) other crimes
- -> ONLY if punishable by >1 year (subject to 10 year limit)
- ->if crim ∆, if prob val. outweighs prej.

Question 5

Juvenile Convictions

Answer 5

Juvenile Convictions not admissible against crim ∆, otherwise only if (a) offered in crim case, (b) Would be admissible if an adult conviction would be admissible; and
(c) Admitting evidence is necessary for fair determination of guilt or innocence

Question 6

convictions older than 10 years

Answer 6

If more than 10 years has elapsed since conviction or release (whichever is later), conviction is admissible ONLY if

(1) the party offering the evidence shows that probative value of the conviction SUBSTANTIALLY OUTWEIGHS the risk of unfair prejudice; AND
(2) Proponent gives reasonable notice of the intent to use the evidence to opposing counsel

Question 7

Qualification of Experts

Answer 7

1) Witness is qualified by possessing knowledge, skill, experience, training, or education
2) Testimony is based on sufficient facts or data
3) Testimony is the product of reliable principles and methods (reasonably relied upon by experts in the field, although underlying data need not be admissible);
4) Witness applied those principles and methods to the facts of the case

Question 8

Experts & Ultimate Issues

Answer 8

CAN give an opinion on an ultimate issue

CANNOT give an opinion on whether a criminal defendant had the requisite mental state for the crime charged

Question 9

Authenticating Evidence

Answer 9

(a) personal knowledge
(b) distinctive characteristics
(c) chain of custody
(d) Reproductions: testimony of witness w/ personal knowledge of original
(e) x-rays & electrocardiograms:
- accurate process
- machine was working properly
- qualified operator AND
- chain of custody

Question 10

Ancient Documents

Answer 10

(1) >20 years old
(2) In a condition that is unlikely to create suspicion about its authenticity; AND
(3) Found in a place it would likely be found.

Question 11

Public Records

Answer 11

Recorded or filed in a public office as authorized by law; OR The document is from the office where items of that kind are kept.

Question 12

Reply Letter Doctrine

Answer 12

Written response to an original communication; AND

Unlikely it was forged by someone else

Question 13

Authenticating statements in phone conversation

Answer 13

i. He recognized the speaker’s voice;
ii. The speaker knew facts that only a particular person would have known;
iii. The caller dialed the number that was believed to be the speaker’s and the speaker identified himself upon answering; or
iv. The caller dialed a business and spoke to the person about regular business.

Question 14

When does the Best Evidence rule apply?

Answer 14

The contents of a writing are at issue; OR A witness is relying on the document when testifying.

Question 15

Best Evidence Rule exceptions

Answer 15

(1) A duplicate is admissible if produced accurately UNLESS (i) A genuine question of authenticity of the original arises; or (ii) unfair to admit the duplicate (e.g., a partial copy)
(2) Original Unavailable - Original Not Required and Duplicate Will Suffice
(i) All originals lost or destroyed
(ii) Original could not be obtained through any judicial process
(iii) Party against whom it is being offered is in control of it and fails to produce it when they
had notice the writing was needed at trial; OR
(iv) collateral matter
(3) Copies of Public Records: Must be certified OR If non-certified, there must be testimony by someone who saw the original
(4) Summaries or a Chart of an Original: Allowed if proponent makes originals or duplicates available for copy and examination OR By court order
(5) Admission by a Party Opponent

Question 16

Inadmissible criminal pleas

Answer 16

The following are inadmissible against the defendant:
-Withdrawn guilty pleas
-Pleas of nolo contendere (no contest)
-Statements made while negotiating with the D.A.
-Statements made during plea bargaining proceedings
BUT admissible at perjury hearings

Question 17

Not Hearsay

Answer 17

• legally operative fact
• effect on the listener
• show declarant’s state of mind
• impeachment
• prior inconsistent statements (or consistent if used to rebut)
• opposing party statement

Question 18

Adoptive Admission (party opponent)

Answer 18

• The party was present and heard and understood the statement;
• The party had the ability and opportunity to
deny it; and
• A reasonable person who is similarly situated would
have denied the statement.

Question 19

Hearsay Exceptions: Only if Declarant Unavailable

Answer 19

(1) Former Testimony
(2) Dying Declarations
(3) Statement against Interest (if criminal, need corroboration)
(4) Statement of Personal or Family History
(5) Forfeiture against wrongdoing

Question 20

Declarant Unavailable if…

Answer 20

(1) Exempt on the grounds of immunity (e.g., spousal immunity)
(2) Refuses to testify, despite a court order
(3) Lacks memory of the subject matter of the statement
(4) Unable to testify due to death, infirmity, or physical or mental incapacity
(5) Absent and cannot be subpoenaed or otherwise made to appear

Question 21

Hearsay Exceptions: Unavailability Irrelevant

Answer 21

(1) present sense impression
(2) excited utterance
(3) statements of present mental, emotional, or physical condition
(4) statements made for diagnosis or treatment
(5) recorded recollection
(6) business records
(7) public records
(8) learned treatise
(9) prior conviction

Question 22

residual hearsay exception

Answer 22

1) Equivalent circumstantial guarantees of trustworthiness
2) It is offered as evidence of a material fact
3) It is more probative on the point than any other evidence on the point and
4) Admitting the hearsay statement will best serve the purpose of the FRE and the interests of justice.

Question 23

When is a subsequent remedial measure admissible?

Answer 23

(1) impeachment (only to superlatives or if says hasn’t been changed since accident)
(2) to prove ownership, control, or feasibility of precautionary measures (if disputed)
(3) to defeat claim of Contrutory Negligence/Comparative Negagence

Question 24

recorded recollection exception reqs

Answer 24

1. The record is about a matter the witness once knew about
2. The record was made or adopted by the witness when the matter was fresh in his mind;
3. The record accurately reflects the witness’s knowledge; AND
4. The witness now cannot recall the events well enough to testify, even after consulting the writing while on the stand.

(proponent may only read into evidence; opponent can admit)

Question 25

business records exception reqs

Answer 25

1. Record is kept in the course of regularly conducted business activity
2. The making of the record was a regular practice of the activity and
3. The record was made at or near the time that someone by someone with knowledge.

Question 26

Former Testimony exception reqs.

Answer 26

1. The declarant is unavailable;
2. The statement was prior testimony given at a trial,
   hearing or deposition; AND
3. The opposing party had an opportunity and similar motive to develop the testimony through cross- or direct examination.

Question 27

Dying Declarations exception reqs

Answer 27

1. The declarant is unavailable and
2. The declarant believed her death was imminent when she made the statement and
3. The statement pertains to the cause or the circumstances of her death.

Question 28

Offer of Proof

Answer 28

If evidence is excluded, counsel must preserve the potential evidence for the appellate court. Counsel must explain the relevance and the admissibility of the testimony.

Question 29

When is evidence admissible?

Answer 29

probative (tendency to make a fact more or less probable)

material (fact is of consequence in determining an action)