Evidence

Question 1

What makes evidence relevant?

Answer 1

Makes any pertinent fact more or less probable.

Question 2

Habit distinguished from character

Answer 2

Habit describes a regular response

Character describes disposition

Question 3

FRE 406

Answer 3

habit admissible to prove someone acted in accordance with habit on a particular occasion

Question 4

“Jeff is a carless driver.”

habit or character?

Answer 4

character

Question 5

“Jeff never slows down for the yield sign at the end of the street.”

habit or character?

Answer 5

habit

Question 6

Liability insurance permissible?

Answer 6

Not for negligence or ability to pay (public policy)

Yes for ownership/control, impeachment, liability admission

Question 7

Settlement offers permissible?

Answer 7

Not to prove/disprove validity/amount of disputed claim, or to impeach a witness by prior inconsistent statement/contradiction.

Question 8

Subsequent remedial measures permissible?

Answer 8

Not for negligence, design defect, need for warning (public policy)

Yes for ownership/control, rebutting a claim that precaution wasn’t feasible, opposing party destroyed evidence

Question 9

When are settlement offers permissible?

Answer 9

In a criminal case, when addressing statements made during compromise negotiations regarding a civil dispute with a government authority.

(D admissions during civil settlement with SEC are admissible in his criminal trial)

Question 10

Are offers to pay medical expenses admissible?

Answer 10

No, but accompanying statements of fact are.

Question 11

Does taking the stand put a D’s character at issue?

Answer 11

No, but it puts his credibility at issue.

Question 12

When is evidence of prior acts of misconduct admissible?

Answer 12

MIMIC:
motive
intent
mistake (absence of)
identify 
common plan/scheme

Question 13

ancient document provision

Answer 13

document may be authenticated by evidence that it is:

at least 20 years old
condition doesn’t leave authenticity suspect
found in a place where such a writing would be kept

Question 14

x-ray authentication

Answer 14

accurate process
machine was in working order
qualified operator

Question 15

who may identify a voice?

Answer 15

anyone who has heard the voice at any time

Question 16

best evidence rule

Answer 16

To prove the terms of a writing, if the terms are material, must produce the original writing. Secondary evidence (oral testimony, etc.) admissible only if the original writing is unavailable.

Question 17

handwritten copies–what type of evidence and when admissible?

Answer 17

secondary evidence

admissible only when originals unavailable

Question 18

when are leading questions permitted?

Answer 18

on cross

to intro new material

when witness needs aid b/c of memory loss, immaturity, physical/mental weakness

hostile witness

Question 19

when a past recorded recollection is read into evidence and heard by the jury, is it admitted into evidence as an exhibit?

Answer 19

only when offered by an adverse party

Question 20

present recollection refreshed and past recollection recorded–hearsay?

Answer 20

present recollection refreshed: not HS b/c not offend into evidence

past recollection recorded: HS, but falls w/in an exception

Question 21

when is lay witness opinion testimony admissible?

Answer 21

rationally based on witness perception

helpful to a clear understanding of testimony or determination of a fact at issue

not based on scientific, technical, or other specialized knowledge

Question 22

May lay witnesses testify whether one acted as an agent?

Answer 22

No

Question 23

May lay witnesses testify whether an agreement was made?

Answer 23

No

Question 24

When may an expert not give an opinion on the ultimate issue?

Answer 24

When the defendant’s mental state is an element of a crime or defense, an expert may not state an opinion whether the accused had that mental state.

Question 25

Per federal rules, what are the limits on impeachment?

Answer 25

Anybody may impeach anybody.

Question 26

Per FRE, does an opportunity to explain or deny need to precede the introduction of a prior inconsistent statement?

Answer 26

No

Question 27

What discretion does a court have to bar impeachment by evidence of past crimes concerning dishonesty?

Answer 27

None

Question 28

What convictions are inadmissible?

Answer 28

Those for which conviction or release from jail (whichever later) is more than ten years passed

Question 29

Does FRE permit an impeaching witness to speak to the character for truthfulness of another witness?

Answer 29

Yes

Question 30

Is a privilege waived when someone wrongfully discloses privileged information without the privilege holder's consent?

Answer 30

No

Question 31

Does a waiver of a joint privilege holder impact the right of the other privilege holder to assert?

Answer 31

No

Question 32

Does physician-patient privilege apply to an exam made at an attorney's request?

Answer 32

No, because no treatment is contemplated.

Question 33

Exceptions to attorney-client privilege

Answer 33

attorney's services were sought to aid in planning/commission of something the client should have known was crime or fraud regarding communication relevant to an issue between parties claiming through the same deceased client communication relevant to an issue of breach of duty in a dispute between attorney and client

Question 34

Qualifications for physician-patient privilege

Answer 34

professional relationship exists info acquired in course of treatment info necessary for treatment

Question 35

Physician-patient privilege in personal injury suit?

Answer 35

No: the patient put his physical condition at issue

Question 36

Ho long does spousal immunity last?

Answer 36

Length of the marriage (refusing to testify against spouse)

Question 37

How long does privilege for confidential marital communication last?

Answer 37

Always (can't divulge things said within marriage)

Question 38

When no spousal privilege or immunity applies

Answer 38

Legal action between spouses, cases involving crimes against the testifying spouse or either spouse's children

Question 39

past recollection recorded doctrine

Answer 39

A party seeks to read into evidence the contents of a writing that was made or adopted by the witness. Requires foundation be laid.

Question 40

Is a business record prepared in anticipation of litigation admissible under the business records HS exception?

Answer 40

No; must be prepared in the regular course of business.

Question 41

What type of HS is an admission by a party opponent?

Answer 41

Non-HS.

Question 42

If a party fails to respond to accusatory statements when a reasonable person would have spoken up, is that silence admissible?

Answer 42

Yes, as an admission, therefore non-HS.

Question 43

When may the statement-against-interest HS exception be applied?

Answer 43

Declarant unavailable

Question 44

Are plea bargains admissible?

Answer 44

Yes, as non-HS admissions if followed-through; withdrawn plea bargains, no los, etc. are not admissible.

Question 45

What type of HS is an admission by a party opponent?

Answer 45

Non-HS

Question 46

Is testimony regarding a defendant's attempt to bribe a witness admissible?

Answer 46

Yes, as a non-HS admission.

Question 47

What are the hearsay exemptions?

Answer 47

admissions by party opponents prior statements: - inconsistent (if under oath at prior proceeding) - consistent (if rebutting charge of lying, and made before motive to exaggerate) - prior id: if testifying and subject to cross

Question 48

HS exceptions | declarant availability irrelevant

Answer 48

``` present sense impression excited utterance then-existing emotional, physical, mental state medical diagnosis/treatment past recollection recorded business record public record ```

Question 49

May police reports be admitted as public records in criminal cases?

Answer 49

No

Question 50

When may a past recollection recorded be introduced, and on what terms?

Answer 50

attempt to refresh failed witness wrote when event was fresh witness may read it into evidence only an opponent may admit the document into evidence

Question 51

"I have a headache." "I had a headache." Which qualifies for HS exception?

Answer 51

"I have a headache" Then-existing mental/emotional/physical state

Question 52

Why are excited utterances permissible HS exceptions?

Answer 52

Excitement precludes propensity to lie

Question 53

HS exceptions | declarant unavailable

Answer 53

``` PRISM Privilege (assertion) Refusal (to testify) Incapacity Subpoena (failure to comply) Memory (lack thereof) ```

Question 54

Qualifications for dying declaration

Answer 54

``` HS exception declarant unavailable must concern cause of death made when death believed imminent only civil + criminal homicide ```

Question 55

In what types of matters are dying declarations admitted?

Answer 55

civil + criminal homicide

Question 56

Is character evidence admissible in civil cases?

Answer 56

Only when directly at issue, i.e. defamation.

Question 57

When and on what terms is a criminal defendant permitted to introduce evidence of good character?

Answer 57

At any time, when concerning a character trait pertinent to the charge (to support probability of innocence).

Question 58

When and how may courts permit evidence of a bad character trait of a victim?

Answer 58

Reputation and opinion evidence -- NOT specific acts -- may be offered when relevant to a charge or defense.

Question 59

When are other crimes admissible as identity evidence?

Answer 59

When they show a very unique style amounting to a signature. Using a specific pearl knife is a signature; throwing a brick through a window is not.

Question 60

When does the Confrontation Clause block HS testimony?

Answer 60

offered against the accused declarant unavailable statement was testimonial accused has no opportunity to cross the statement

Question 61

When is a statement non testimonial?

Answer 61

When the primary purpose of interrogation is to enable the police to help in an ongoing emergency. Think 911 call

Question 62

When is a statement testimonial?

Answer 62

Primary purpose is to establish or prove past events potentially relevant to a later criminal prosecution.

Question 63

If a girl is attacked by her boyfriend, the police come and put him in the back of a car, then question her, are the girl's statements testimonial?

Answer 63

Yes: the emergency is resolved because the boyfriend is locked up, and she is describing past events.

Question 64

If a girl is attacked by her boyfriend, the police come and put him in the back of a car, then question her, and the police want to testify as to her statements when she is unavailable at the boyfriend's trial, may they so testify?

Answer 64

While the girl's statements are not barred by hearsay, the statements violate the Confrontation Clause because they are testimonial.

Question 65

May a treatise be used as substantive or impeachment evidence?

Answer 65

Both

Question 66

May an expert be cross-examined with a treatise?

Answer 66

Yes

Question 67

Is a grand jury statement admissible in a subsequent court proceeding as substantive or impeachment evidence?

Answer 67

Both

Question 68

Does prior grand jury testimony qualify under a HS exception?

Answer 68

No; it's admissible non-HS

Question 69

May a witness be asked about a guilty plea she accepted?

Answer 69

Yes; she's not the defendant and she accepted. The rule only applies to offers and withdrawn pleas.

Question 70

When may specific acts of misconduct be offered to attack a witness' character for truthfulness?

Answer 70

Only on cross

Question 71

While cross examining D for assault and battery, prosecution asks whether he was convicted of fraud within the past year. Permissible?

Answer 71

Yes: D took the stand, so his credibility and penchant for truthfulness are relevant. Fraud is a crime of dishonesty.

Question 72

Does a prior identifying statement constitute hearsay?

Answer 72

Not if the witness testifies and is subject to cross.

Question 73

Foundational requirement for inconsistent statements during impeachment

Answer 73

Witness must be given opportunity to explain or deny

Question 74

HS qualification for prior inconsistent statements

Answer 74

made under oath: permissible non-HS not made under oath: HS