Evidence

Question 1

What is the relevance standard?

Answer 1

Evidence that has any tendency to make a fact more or less probable than it would without it. Admissible unless pursuant to another rule

Question 2

When can a court exclude unfairly prejudicial evidence?

Answer 2

If evidence’s probative value is substantially outweighed by the danger of

• unfair prejudice
• confusing the issues
• misleading the jury
• undue delay
• wasting time, OR
• being needlessly cumulative

Question 3

Subsequent remedial measures, admissible?

Answer 3

Not admissible to show liability or negligence OR in a strict liability case

Question 4

Offers to settle or compromise, admissible?

Answer 4

Not admissible to prove culpability, if made AFTER a claim is filed or threatened

Question 5

Offers to pay medical expenses, admissible?

Answer 5

Not admissible to prove negligence, BUT any related statements or factual admissions are admissible

Question 6

Evidence of liability insurance, admissible?

Answer 6

Not admissible to prove culpability, BUT is admissible to show ownership and control

Question 7

How is evidence authenticated?

Answer 7

All evidence needs to be authenticated before being admitted.

Physical evidence - through a witness testimony OR by evidence that shows it has been held in a substantially unbroken chain of custody

Voice recordings - by anyone who has heard the person speak (first hand or electronically) AND have identified the recorded person as the speaker

Question 8

When can character evidence be offered?

Answer 8

Can ALWAYS be offered to prove character when character is the ultimate issue in the case (ie. defamation action)

It MAY be offered as circumstantial evidence of a person’s conduct on the occasion in question, but in specific circumstances.

Question 9

Character evidence in criminal cases

Answer 9

Defendant can always introduce evidence of his own character.
Prosecution not allowed to present evidence of the defendant’s character UNLESS the defendant presents evidence of his own character first.

Question 10

Can defendant offer evidence of the VICTIMS’s character?

Answer 10

Yes, through reputation and opinion evidence.

If defendant does this, prosecution can provide evidence that shows

• the defendant possses the same character trait (even out), OR
• the victim has a relevant good character trait (combat)

Question 11

Character evidence in rape cases

Answer 11

Not admissible to prove a VICTIM’S sexual behavior or sexual predisposition

Question 12

How is character evidence established?

Answer 12

Can be proven

• on direct examination by opinion or reputation, OR
• on cross examination by opinion, reputation, or specific acts

Question 13

Specific bad acts, admissible?

Answer 13

Generally, not admissible to show a propensity to commit the act or crime at issue. Acts include prior convictions, wrongs or prior bad acts)

Question 14

When CAN specific bad acts be admissible?

Answer 14

To prove (MIMIC)

• Motive
• Identity
• Mistake (absence of)
• Intent
• Common Plan

Question 15

Habit or routine practice, admissible?

Answer 15

May be admitted to prove that on a particular occasion they acted in accordance with their habit or routine practice

Question 16

On what grounds can a witness be impeached?

Answer 16

• Prior convictions (dealing with honesty)
• Specific instances of conduc
• Prior inconsistent statements
• Character for truthfulness
• sensory deficiencies
• bias

Question 17

Impeachment: Prior Convictions

Answer 17

Felony or misdemeanor conviction involving dishonesty is ALWAYS admissible to impeach a witness UNLESS conviction was expunged

Felonies that do not involve honesty are admissible as long as its probative value is not substantially outweighed by its unfair prejudice. Felonies over 10 yrs old is inadmissible unless its probative value outweighs its unfair prejudice

Question 18

Impeachment: Specific bad acts

Answer 18

Witness’ credibility may be attacked on cross-examination with specific instances of conduct ONLY IF the conduct is probative of the witness’s character for truthfulness

Question 19

Impeachment: Prior Inconsistent statements

Answer 19

Admissible on cross examination and extrinsic evidence may be used IF it is relevant to a material issue at trial and the witness has an opportunity to explain or deny the statement

Question 20

Impeachment: Character for truthfulness

Answer 20

W credibility may be attacked or supported by testimony about reputation or opinion on character for truthfulness. Only admissible AFTER the witness’s character for truthfulness has been attacked

Question 21

Witness competency

Answer 21

Witness must have

• personal knowledge
• present recollection
• ability to communicate
• sincerity (to tell the truth)

Question 22

Refreshing a witness’s recollection

Answer 22

Anything can be used to refresh a witness’s recollection when the witness once had personal knowledge of the matter, but is unable to recall it.

Only the opposing party is allowed to offer into evidence the item used to refresh the recollection

Question 23

Expert witness testimony, admissible?

Answer 23

Remember “Hot Quiznos For Cold Penguins”

Admissible when

• Helpful to jury
• Qualified as an expert
• Factual basis
• Certainty: to a reasonable degree
• Principles: based on reliable principles that were applied

Question 24

What is judicial notice?

Answer 24

Indisputable facts that are generally known in the community OR readily capable of verification by sources whose accuracy cannot reasonably be questioned

Question 25

Effect of judicial notice on criminal cases

Answer 25

Relieves prosecution of its burden of proving the fact, but the jury can still consider it inconclusive

Question 26

Effect of judicial notice on civil cases

Answer 26

Judicial notice is conclusive

Question 27

Best Evidence Rule

Answer 27

Party must provide the original document (or reliable duplicate) when a witness:

• testifies to the contents of its writing OR
• testifies to knowledge gained solely from the writing

Question 28

Hearsay: general rule

Answer 28

An out of court statement that is offered to prove the truth of the matter asserted. ONLY admissible if it falls under an exception.

Question 29

Non hearsay: general rule

Answer 29

An out of court statement offered to prove something OTHER THAN THE TRUTH of the statement. ALWAYS admissible

Question 30

Admission by party opponent

Answer 30

Non hearsay. Any statement offered against a party which is made by that party

Question 31

Prior statement of identification

Answer 31

Non hearsay. Identification of person after perceiving him. Must be open to cross examination

Question 32

Adoptive admission

Answer 32

Non hearsay. Person’s silence may constitute admission if he heard the statement and a reasonable person would have denied the statement

Question 33

Vicarious admission

Answer 33

Non hearsay. Statements made by an agent in scope of their employment/relationship with principal.

Question 34

Prior Consistent Statement under oath

Answer 34

Non hearsay. Admissible only if

• statements offered against party who was present in previous trial
• same issues are involved, AND
• opposing party had the same motive and opportunity to cross examine the witness in previous trial

Question 35

Hearsay exception: Declarant Unavailable Requirement

Answer 35

Declarant deemed unavailable as a witness if:

• is exempted from testifying due to privilege
• refuses to testify despite court order
• testifies that he does not remember the subject matter
• cannot be present because of death or illness, OR
• is beyond reach of a court’s subpoena

Question 36

Hearsay exception: Present Sense Impression

Answer 36

Statement describing an event made by declarant while observing the event or immediately thereafter

Question 37

Hearsay exception: Excited Utterance

Answer 37

Statement concerning an exciting/startling event made while the declarant is still under the stress of the event. There can be a slight delay between the event and statement

Question 38

Hearsay exception: Business Records

Answer 38

Admissible if it is:

• a record of events, conditions, opinions or diagnoses
• kept in the regular course of business
• made at or near the time of the matter described

Question 39

Hearsay exception: Statements During Medical Treatement/Diagnosis

Answer 39

Statements made concerning a present or past physical state or a person are admissible ONLY IF they were made for medical diagnosis or treatment

Question 40

Hearsay exception: State of Mind

Answer 40

Statement of declarant’s then-existing state of mind or emotional or physical condition is admissible to prove the declarant’s state of mind or conduct

Question 41

Hearsay exception: Dying Declaration

Answer 41

Can ONLY be used in a civil case or criminal homicide case.
Declarant does not need to actually die, but statement made by one believing he is about to die and is describing cause or circumstance leading to injury

Question 42

Hearsay exception: Statement Against Interest

Answer 42

Statement made against one’s own penal or pecuniary interest. Only if declarant is unavailable

Question 43

Hearsay exception: Public records

Answer 43

Records describing:

• activity of office
• observations made by someone pursuant to his duties by law
• factual findings made during an investigation pursuant to authority granted by law

Question 44

Hearsay exception: Past recollection recorded

Answer 44

Admissible if

• witness had personal knowledge of events at one time
• witness wrote the writing, ordered it to be written or adopted it
• made while events were still fresh in the mind of witness
• writing is accurate, AND
• witness can no longer remember

Question 45

What is the confrontation clause?

Answer 45

Sixth amendment right for criminal defendants to confront witnesses against him (even if it falls within hearsay exception.

Violation of right when:

• the statement is “testimonial”
• declarant is unavailable to be cross examined
• defendant did not have an opportunity to cross examine declarant before trial

Question 46

What statements are “testimonial” in nature

Answer 46

1. Statements made to grand juries (and in other similar situations)
2. Statements made to police whose primary purpose s to collect testimony to be used at a later trial
   * Note: Statements made to police where primary purpose of questioning was to assist police in an ongoing emergency are NOT testimonial

Question 47

Effect of Spousal Privilege

Answer 47

Witness in a valid marriage at time of trial may refuse to testify against his or her spouse ONLY in a criminal case.

Witness-spouse alone holds the privilege and privilege ends after divorce

Question 48

Marital communications, confidential?

Answer 48

They are privileged and confidential if:

• made during the course of a valid marriage, AND
• were intended to be confidential

Privilege held by both spouses and applies even after divorce.