Evidence

Question 1

Completeness rule

Answer 1

For partial introduction of evidence, adverse party may compel introduction of omitted portion to help explain admitted evidence

Question 2

Limited admissibility

Answer 2

Evidence may be admissible for one purpose and not for another; court must restrict evidence to its proper scope

Question 3

Judicial notice

Answer 3

Adjudicative facts (typically decided by jury) – subject to judicial notice if fact is not subject to reasonable dispute because

• Generally known within the community, or
• Can be accurately and readily determined from reliable sources

Conclusive in civil cases but not necessarily in criminal ones

Question 4

Leading questions

Answer 4

Suggest answer within question

• Direct – not permitted unless hostile witness, needed to develop witness’s testimony, or witness struggles with communication
• Cross – no restrictions on using leading questions

Question 5

Improper questions

Answer 5

• Compound – requires answers to multiple questions
• Assumes facts not in evidence
• Argumentative – intended to provoke rather than elicit factual response
• Calls for conclusion/opinion
• Repetitive
• Lack of foundation

Question 6

Exclusion of witnesses

Answer 6

Party’s request or court’s initiative – court must exclude witnesses from the courtroom so that they do not hear the testimony of other witnesses, unless authorized by statute

Question 7

Burden of proof

Answer 7

Production – legally sufficient evidence for each element of claim such that reasonable trier of fact could infer alleged fact has been proven
- Rebuttable – shifts burden to opposing party

Persuasion

• Civil – preponderance of evidence
• Criminal – beyond reasonable doubt

Question 8

Relevance

Answer 8

Generally, all relevant evidence is admissible unless excluded by rule, law, or constitutional provision
- Relevant = probative (make fact more or less probable) + material (fact is of consequence in determining action)

IL DIS: broadened to caselaw

Question 9

Rule 403

Answer 9

If probative value is substantially outweighed by danger of unfair prejudice, then evidence is not excluded

Question 10

Curative admission of irrelevant evidence

Answer 10

Admitted when necessary to rebut previously admitted inadmissible evidence to remove unfair prejudice

Question 11

Character evidence – civil cases

Answer 11

• Inadmissible to prove person acted in accordance with character on particular occasion
• Admissible when character is essential element of claim/defense (e.g., defamation, negligent hiring, child custody)

Question 12

Character evidence – criminal cases/D’s character

Answer 12

By prosecution – not permitted to introduce evidence of D’s bad character to prove D has propensity to commit crimes so likely to have committed crime in question

By defense – permitted to introduce evidence of good character as being inconsistent with crime charged if pertinent
- Must be in form of reputation/opinion testimony

Once defendant “opens the door” (with evidence of either his good character of victim’s bad character), prosecution can attack D’s character

Question 13

Character evidence – criminal cases/victim’s character

Answer 13

By defense – D may introduce reputation/opinion evidence when relevant to defense asserted

IL DIS: D arguing self-defense in homicide/battery case may prove victim’s violent character with specific instances but there must be conflicting evidence as to whether victim was aggressor

By prosecution – can offer rebuttal evidence of victim’s good character when D has introduced evidence of victim’s bad character

Question 14

Methods of proving character

Answer 14

When admissible, may be proven by testimony about person’s reputation or witness opinion

Question 15

MIMIC evidence

Answer 15

Evidence of specific acts may be introduced for any other purpose except to prove D committed the charged crime because D had propensity to commit crimes (i.e., for some non-propensity purpose) (e.g., motive, intent, absence of mistake, identity, or common plan)

Question 16

Specific acts as character evidence

Answer 16

Civil – when character evidence is essential element, can be proven by specific acts or opinion/reputation testimony

Criminal – when character evidence is essential element, D may offer specific acts inconsistent with element

Cross-examination – witness can be asked about specific acts committed by person witness is testifying about

Question 17

Habit evidence

Answer 17

A particular person’s routine reaction to specific set of circumstances
- Admissible to prove acted in accordance with habit on particular occasion

Question 18

Witnesses

Answer 18

• Non-experts must have personal knowledge of matter in order to testify
• Child – can testify if able to differentiate truth from falsehood

BOLSTERING: a party cannot bolster a witness’s statement by providing consistent testimony from the same witness on direct-examination unless that witness’s credibility has been impeached

Question 19

Dead Man’s statutes

Answer 19

Protect decedent’s estate from parties with financial interest in estate; predecessors in interest or those directly affected financially may be disqualified

NOT applicable in criminal cases

Question 20

Impeachment

Answer 20

Challenge to witness’s testimony can be based on character for untruthfulness, bias, ability to perceive/testify accurately, contradictory prior statement, or another witness
- FRE forbids the use of extrinsic evidence to impeach a witness

Question 21

Witness’s character for truthfulness

Answer 21

Evidence of truthful character only admissible after witness’s truthful character directly attacked

Specific instances only OK on cross-examination if probative of another witness about whose character the witness has testified
- BUT, when witness denies specific act, extrinsic evidence not admissible to attack his character for truthfulness (except for criminal convictions)

Question 22

Criminal conviction

Answer 22

Crimes involving dishonesty/false statement can be used to impeach any witness for any conviction

Conviction NOT involving dishonesty/false statement – admissible to impeach witness only if crime is punishable by death or imprisonment > 1 year

• If witness is criminal D, admissible if probative value outweighs prejudicial effect (stricter standard)
• Other witnesses – generally admissible

Conviction > 10 years ago – admissible if probative value substantially outweighs prejudicial effect
IL DIS: no convictions more than 10 years old may be admitted

Conviction not admissible if subject to a pardon, annulment, or other action

Juvenile adjudication not admissible to impeach D; may impeach other witnesses if adult conviction would be admissible

Question 23

Prior inconsistent statements

Answer 23

Can be used to impeach if inconsistent with material part of witness’s testimony

Extrinsic evidence only admissible if witness has chance to explain/deny and opposing party can examine

Question 24

Bias or interest

Answer 24

Can be used to impeach witness because relevant to credibility

Question 25

Sensory competence

Answer 25

Can be impeached for deficiency in capacities to perceive, recall, or relate information

Question 26

Impeachment of hearsay declarant

Answer 26

Credibility of declarant can be attacked by any evidence admissible as if declarant had testified as witness

Question 27

Rehabilitation of a witness

Answer 27

• Explain/clarify on redirect examination

- Offer prior consistent statement to rebut express/implied charge that witness lied due to improper motive/influence

Question 28

Present recollection refreshed

Answer 28

Witness may examine any item to refresh witness’s present recollection; testimony must be based on refreshed recollection, not item

Question 29

Qualified expert

Answer 29

• Qualified as expert by knowledge, skill, experience, training, or education
• Testimony based on sufficient facts/data
• Testimony product of reliable principles and methods
• Witness applied principles/methods reliably to facts of case, and
• Reasonable degree of certainty

Expert may state an opinion on ultimate issue as long as not about whether D had requisite mental state

Question 30

Authentication

Answer 30

All tangible evidence must be authenticated with sufficient evidence to support finding that the thing is what its proponent claims it is

Question 31

Best evidence rule

Answer 31

Original must be produced to prove contents of writing when contents are at issue or witness is relying on contents when testifying
- Duplicate reliable unless genuine question as to authenticity of original

Question 32

Spousal privilege

Answer 32

Spousal immunity – married person cannot be compelled to testify against spouse in any criminal proceeding regardless of who D is
- Applies to testimony about events before/during; expires upon divorce
IL DIS: does not recognize spousal immunity

Confidential communications – communication during marriage is privileged when made in reliance on sanctity of marriage
- Begins with marriage and continues indefinitely

Question 33

Attorney-client privilege

Answer 33

Confidential communication between client and attorney (or their agents) for the purpose of seeking legal advice of representation
- Pre-existing documents handed over to an attorney are not covered under the attorney-client privilege

Exceptions

• Crime/fraud
• Dispute between client and attorney or former co-clients

Work product – not communication but protected unless substantial need + inability to obtain by other means without due hardship
IL DIS: work-product doctrine only protects opinion work product, defined as matters that disclose an attorney’s theories, mental impressions, or litigation plans

Question 34

Physician-patient privilege

Answer 34

Statement privileged so long as made for purpose of obtaining medical treatment

Exceptions

• Patient’s physical condition at issue
• Statement is part of crime
• Dispute between patient and physician
• FQ case

Question 35

Subsequent remedial measures

Answer 35

Not admissible to prove negligence, culpable conduct, defective product/design, or need for warning/instruction

Admissible for other purposes such as impeachment or ownership/control

Question 36

Compromise offers and negotiations

Answer 36

Inadmissible by either party to prove/disprove validity or amount of disputed claim or for impeachment

Admissible to prove bias or prejudice

Question 37

Evidence of payment, offers, or promise to pay medical expenses

Answer 37

Not admissible to prove L for injury, but statements that accompany payment, offer, or promise to pay are admissible

Question 38

Plea negotiation

Answer 38

Withdrawn guilty pleas, pleas of no contest, and statements made while negotiating plea bargain or during plea proceeding are inadmissible

Question 39

Liability insurance

Answer 39

Inadmissible to prove whether person acted negligently or wrongfully

Admissible to prove agency, ownership/control, or witness’s bias/prejudice

Question 40

Hearsay

Answer 40

Out-of-court statement offered to prove the truth of the matter asserted

Question 41

Hearsay exclusion – prior statements

Answer 41

Declarant must testify at present trial to be admissible

1. Prior inconsistent statement – made at prior proceeding to both impeach declarant’s credibility and as substantive evidence
   IL DIS: only applies in criminal cases
2. Prior consistent statements – admissible to rebut express/implied charge that declarant fabricated or acted with improper motive but must have been made before witness had reason to fabricate
   IL DIS: does not allow as non-hearsay
3. Prior statement of ID – after perceiving that person; even if witness has no memory of ID

Question 42

Hearsay exclusions – opposing party’s statement

Answer 42

Made by party to current litigation; admissible without personal knowledge and can be in form of an opinion; need not have been against the party’s interest at the time that it was made

• Personal admission
• Adoptive admission
• Vicarious statements

Question 43

Hearsay exclusions – co-conspirator admissions

Answer 43

Statements made by co-conspirator are admissible against that party opponent for truth of matter asserted; must show that

• Conspiracy existed;
• Declarant was member of conspiracy;
• Party opponent was member of conspiracy;
• Statement was made during course of conspiracy; and
• Statement itself was meant to promote or further ends or goals of conspiracy

Question 44

Hearsay exceptions – declarant unavailable

Answer 44

1. Former testimony – if opposing part had opportunity and similar motive to develop testimony
2. Dying declaration – declarant believes death is imminent and statement pertains to cause/circumstances
   - Only in homicide prosecutions and civil cases
   - Need not die
   IL DIS: only applies in homicide prosecutions
3. Statement against interest – against declarant’s proprietary/pecuniary interest at time made and reasonable person would not have made statement unless it was true
4. Statement of personal/family history – birth, adoption, marriage, divorce, or other similar fact
5. Statement against party that caused declarant’s unavailability

Question 45

Hearsay exceptions –declarant’s availability as witness is immaterial

Answer 45

1. Present sense impression – made while/immediately after declarant perceived event
   IL DIS: no present sense impression
2. Excited utterance – while under stress/excitement that startling event caused
3. Statement of mental, emotional, or physical condition – statement of then-existing SOM (present intent, motive, plan)
4. Statement made for medical diagnosis/treatment – describing medical history or symptoms if made for purpose of diagnosis or treatment
5. Recorded recollection – witness once knew; made when matter was fresh; accurately reflects knowledge; and witness states that cannot recall even after consulting record
6. Business records – record must b kept in course of regularly conducted business activity; making of record was regular practice; and record was made at or near time by someone with knowledge
7. Public records – statement of public office/agency
   - BUT, not police in criminal cases
8. Learned treatises – must be reliable; not admissible

Question 46

Residual exception

Answer 46

Catch-all exception for statement that is not otherwise covered by FRE
IL DIS: does not have this exception