Evidence Flashcards
1
Q
A witness may have their memory refreshed BUT they can NOT…..
A
CANNOT read from it while testifying and the adverse party may inspect the document used to refresh the witness‚memory, cross-examine the witness about it, and introduce parts of it into evidence(e.g. if a testifying witness cannot recall an event about which the witness is being questioned, the examining attorney may present a police report to the witness to refresh the witness’s recollection).[2019]
2
Q
If the witness can’t remember something, what can the attorney do?
A
Rule 929: Under the FRE, if a testifying witness cannot clearly remember something, the examining attorney may present any type of item (e.g. documents, tangible objects, sounds/smells) to the witness to refresh the witness’s recollection [2019]
3
Q
Rule 930: In a criminal case, judges are liberal in permitting the admission of circumstantial evidence to prove guilt, so long as……
A
1) the evidence points logically to the defendant’s guilt
and
2) excludes to a moral certainty, every other reasonable hypothesis it is not necessary for each piece of circumstantial evidence to point to no other hypothesis but guilt, but the totality must ‘(e.g. circumstantial evidence such as a defendant’s use of an alias/nickname is allowed if backed up with other testimony and evidence). [2019]
4
Q
Cross Exam should be limited to what?
A
Rule 931: Cross-examination should be limited to
(1) the subject matter of the direct examination and
(2) matters affecting the credibility of the witness.
Thus, questions that address the witness’s credibility (e.g. bias, interest, capacity, etc.) may be asked on cross-examination even if they were never mentioned on direct.[2019]
5
Q
When can a lay witness identify drugs in court?
A
Lay witness can speak from experience and observation if the lay witness can demonstrate a knowledge of the narcotic, he is competent to testify, BUT the weight to be given to the testimony is for the jury to determine
(e.g. although a drug user may not qualify as an expert, he or she may still be competent, based on past experience and personal knowledge and observation, to express an opinion as a lay witness that a particular substance perceived was cocaine).[2019]
6
Q
When can a court take judicial notice?
A
Rule 933: A court must take judicial notice of a fact when
(1) it has been requested by a party and
(2) the requirements of judicial notice have been fulfilled (i.e., the fact is one that is not subject to reasonable dispute, and is generally known in the jurisdiction of the trial court, or it is capable of accurate determination through reliable sources),
7
Q
What is the effect of Judicial Notice in Civil AND Criminal Cases?
A
Rule 933: the effect of judicial notice of adjudicative facts is different in a civil and a criminal case
Civil Case: The judicially noticed fact is conclusive and the jury must take it as such
Criminal Case: Jury is allowed to, but is not required to take the judicially noticed fact as conclusive
—Rule 939: In a criminal case, a judge can instruct the jury that it may, but is not required to, accept as conclusive any facts judicially noticed by the court because the facts are not subject to reasonable dispute (i.e. the court can instruct on a permissible inference, but it is not binding on the jury). [2006]
(e.g. if a defendant sets fire to trees in a national park and is charged with the malicious destruction of federal property, if a prosecutor asks the judge to take judicial notice of the fact that the trees are owned by the federal government, the court must take notice of the fact since it can be accurately and readily determined from sources whose accuracy cannot be questioned, BUT the court must also instruct the jury that it may, but is not required to do so, accept the noticed facts as conclusive since this is a criminal case where the defendant has a right to a jury trial). [2013]
8
Q
What can be used to jog a witness’s memory?
A
Rule 934: Anything can be used to jog a witness memory because at times witnesses forget (you can also jog a witness memory by using a writing, but the witness cannot read directly from it) [2011]
9
Q
When refreshing a witness’s memory, the opposing party has the right to do what?
A
Rule 934: the opposing party has an automatic right to inspect the writing if it was used while the witness was on the stand, BUT if the witness used a writing to refresh her memory before testifying, the court has the discretion to allow the opposing party to examine the writing.[2011]
10
Q
May a judge presiding be a witness?
A
Rule 935: A judge presiding at a trial may not testify as a witness in that trial (e.g. a judge who hears D‚spontaneous admission during a recess cannot be called to testify against D). [2008]
11
Q
What persumption can be made to evidence intentionally destroyed?
A
Rule 936: In cases where evidence has been intentionally destroyed, it may be presumed that the evidence was relevant, and it is proper for a jury to draw an inference that the evidence was adverse to that party(e.g. D cannot preclude P from asking D whether D destroyed an accident report relevant to P‚claim, and if D asserts the privilege against self-incrimination when asked, the jury is permitted to draw inferences that the evidence and assertion of the privilege were adverse to D). [2008]
12
Q
Who can testify towards the familiarity of a signature?
A
Rule 937: A person who is familiar with a signature may testify as to the validity of that signature(e.g. in a trial for attempting to cash a forged check, testimony from the bank teller that she recognized the signature as a forgery b/c she was familiar with the customer‚signature is admissible because it is rationally based on the bank teller‚perception and it is helpful to the jury).[2008]
13
Q
A copy of a transcript of testimony can be used to do what? What can it not be used to do?
A
Rule 938: Under the FRE, a copy of a transcript of testimony can be used to refresh a witness’ memory but it cannot be admitted to prove the contents of the transcript. [2006]
14
Q
In an embezzlement action, testimony of a large deposit into a bank account is admissable as ______?
A
Rule 940: In an embezzlement action, a witness‚testimony of a large deposit into the defendant‚bank account is admissible as circumstantial evidence of the defendant guilt [1998]
15
Q
In deciding preliminary questions concerning the admissibility of evidence, what rules are the court bound by?
A
Rule 941: In deciding preliminary questions concerning the admissibility of evidence, a court is not bound by the rules of evidence, except those with respect to privileges, and a court can properly consider affidavits even though they are hearsay.[1998]
16
Q
In order for a court to take judicialnoticeof a conviction, it cannot be based on
A
Rule 942: In order for a court to take judicial notice of a conviction, it cannot be based on the judge‚personal knowledge of the conviction. unless it occurred in the judge‚own court,[1998]
17
Q
When can a child testify as a witness?
A
Rule 943: A child can testify as a witness if
(1) the child has personal knowledge of the matter and
(2) the child understands what it means to tell the truth and declares that he will testify truthfully.[1998]
18
Q
What is the doctrine of present recollection refreshed?
A
Rule 944: Under the doctrine of present recollection refreshed, if a witness memory on a subject is hazy, any item may be shown to the witness to refresh his recollection. [1992]
19
Q
An ordinary(non-expert) witness must limit his testimony to facts of which he has
A
Rule 945:
(1) first-hand knowledge and
(2) a party seeking to offer such evidence must lay a foundation to show that the witness was in a position to have first-hand knowledge.[1992]
20
Q
Is showing notes the witness made permissable to refresh recollection?
A
Rule 946: Showing a witness prior notes that the witness made is a permissible method of refreshing the witness’s recollection. [1992]
21
Q
What is required to be competent to testify?
A
Rule 947: To be competent, a witness must have
(1) Personal knowledge of the matter and
(2) The capacity to perceive, remember and relate the facts of the matter. [1991]
22
Q
what is the common knowledge rule?
A
Rule 948: Under the Common Knowledge Rule, where the matter is within the common knowledge of a layman, such as where a surgeon saws off the wrong leg, then the jury may infer negligence without the aid of experts. [1991]
23
Q
What is the Dead Man’s Statute?
A
Rule 949: Under the Dead Man’s Statute, in a civil action, an interested party may not testify against a dead party or his representative about communications or transactions with the dead party. [1991]
24
Q
What type of information can be accepted as judicial notice?
A
Rule 953: Judicial notice can be taken of a fact that is common knowledge in the community. [1991]
25
Can a newspaper be taken as judicial notice?
Rule 955: Courts can take judicial notice of the existence of a newspaper, but not of the contents in the newspaper. [1991]
26
What requirments must an interpreter meet?
Rule 956: An interpreter must meet the qualifications of an expert witness and must take an oath to make a true translation. [1991]
27
What persumption is made of properly addressed/stamped mailed letters?
Rule 957: Receipt by the addressee is presumed (this presumption is founded on the belief that officers of the government will competently perform their duties),and once proof of mailing is established, the presumption can be rebutted by proof to the contrary, such as evidence that the regular office procedure was not followed or was carelessly executed by the sender, or that the recipient has an office procedure for receiving, opening and indexing mail or conducted a systematic and thorough search for the mail(e.g. if a plaintiff, in a jury trial, sues an insurance company when it refuses to cover her heart attack, claiming that the insurance policy lapsed when no premium was paid before her illness, the plaintiff testifies that she placed in a mailbox a properly stamped and addressed envelope containing payment, and the defendant‚witness (a payment processor) testifies that he did not receive the payment, the court must reject both the plaintiff‚and the defendant‚motions for a directed verdict, because, under these circumstances the jury is responsible for determining whether the payment was received since a presumption that is successfully rebutted no longer binds the jury). [2013]
28
When does a judge in a criminal trial violate due process? (persumptions)
Rule 958: if he allows the prosecution to use a mandatory presumption to shift the burden of proof on an essential element of a crime(e.g. if D is on trial for murder because his wife has been missing for 7 years, a judge cannot instruct the jury that ‚A person missing for more than 5 years must be presumed dead‚ because a jury instruction using the phrase ‚must could be interpreted by the jury as shifting the burden of proof to the defendant, which is unconstitutional).[2011]
29
When can the presumption of a stamped and mailed letter be rebutted?
Rule 959: A letter properly addressed, stamped, and mailed is presumed to have been delivered.This presumption is rebuttable by sufficient evidence contradicting the presumed fact, however there is no burden shift to the defendant the judge would then instruct the jury that there is no presumption of receipt. [1991]
30
A party may move the court to EXCLUDE a witness from the courtroom, UNLESS that party is.....
Rule 960:
(1) a party who is a natural person
(2) an officer or employee of a party that is not a natural person, after being designated as the party‚representative by its attorney
(3) a person whose presence a party shows to be essential to presenting the party‚claim or defense (e.g. an agent who handled the transaction being litigated, an expert who advises counsel in the management of the litigation, or a guardian)
or
(4) a person authorized by statute to be present (e.g. a statute may permit the victim to be present at trial).(e.g. an agent who handled the transaction being litigated, an expert who advises counsel in the management of the litigation, or a guardian)[2017]
31
Hearings on the admissibility of evidence must be done when?
Rule 963: Hearings on the admissibility of evidence must be done outside the presence of a jury (e.g. if a defendant seeks to throw out his confession on the ground that no Miranda warnings were given, the defendant is entitled to a hearing outside the presence of the jury to hear evidence on that issue).[2008]
32
Allowing a witness to remain in the courtroom after testifying, when the witness is expected to be recalled for further cross-examination is what?
Rule 964: Allowing a witness to remain in the courtroom after testifying, when the witness is expected to be recalled for further cross- examination, is reversible error if opposing counsel properly objects at trial. [1998]
33
What is the purpose of redirect?
Rule 967: Redirect is permitted to reply to any significant new matter raised in cross-examination.
34
After a witness's character for truthfulness has been attacked, the opposing party may do what?
Rule 969: After a witness‚character for truthfulness has been attacked,the opposing party may then rehabilitate the witness by regarding the witness‚good character for truthfulness through reputation or opinion testimony. The testimony must be reputation/opinion testimony only (specific instances are not allowed), and only regarding the witness's character for veracity (can't be about character generally), and such testimony about the witness‚good character for truthfulness is not admissible until the witness‚character has been attacked.[2019]
35
When are prior statements of identification admissable?
Rule 970: Prior statements of identification (e.g. prior out-of-court identifications based on lineups, mug book photo arrays, sketches, photographs, etc.)are admissible for substantive purposes if the declarant is
(1) Testifying at trial and
(2) is subject to cross-examination
(e.g. if a police officer testifies that on a prior occasion W was given a photo array and said, That's the man who robbed me., while pointing to the defendant's photograph, the testimony, even though it is hearsay, would be admissible as a prior identification if W is present in court and available for cross-examination, even if W no longer agrees with the identification).[2019]
36
When is evidence of a prior conviction NOT admissible?
Rule 971: Evidence of a prior conviction (involving dishonesty or a felony) is generally not admissible for purposes of impeachment of a witnessIf a period of more than 10 years has elapsed since the date of the conviction or the release of the witness from confinement, whichever is the later date
(e.g. if a witness was convicted of robbery in 2009 and was confined for two years for the offense, the prior conviction is admissible until 2021 unless the probative value is substantially outweighed by a Rule 403 danger, BUT after 2021, the more exclusionary balancing test of Rule 609 applies and evidence of the conviction is admissible only if its probative value substantially outweighs its prejudicial effect). [2019]
37
When is character evidence admissable?
Rule 972: Evidence that is relevant to some issue or issues at trial other than the defendant‚character is admissible if the evidence probative value is not substantially outweighed by the risk of unfair prejudice (e.g. evidence which completes the story of a crime or helps establish D‚motive is admissible). It is also permissible to impeach a witness for bias by showing any fact that would give the witness a reason to testify favorably or negatively about a party's case. A successful showing of bias on the part of a witness would have a tendency to make the facts to which he testified less probable in the eyes of the jury because it suggests the testimony is false, slanted, or mistaken in one party's favor.
38
What is prior inconsistent statement?
Rule 973: The most common method of impeachment is the use of prior inconsistent statement, action, or omission to show that the witness has made contradictory statements. Any witness testimony may be impeached as long as the witness is given a chance to explain or deny it
(e.g. if W testifies that P was going 55 mph, D can call a witness to testify that W told her friend that P was going 75 mph this statement is admissible to impeach as a prior inconsistent statement). Typically, a prior inconsistent statement is not admissible as substantive evidence because it is hearsay.[2019]
39
When does the FRE bar evidence of religious beliefs?
Rule 974: The FRE bars evidence of religious beliefs (or lacks thereof) only when offered to attack or buttress a witness's credibility (i.e. it cannot be used to impeach or rehabilitate a witness),BUT the FRE does not preclude evidence of religious beliefs when they are relevant to other matters, such as bias, damages, or motive (e.g. if D threatens the president, and D's religious beliefs establish motive, the evidence is admissible).[2019]
40
When is evidence of religious beliefs (or lack thereof) NOT barred?
Rule 974:FREdoes not preclude evidence of religious beliefs when they are relevant to other matters, such as bias, damages, or motive
(e.g. if D threatens the president, and D's religious beliefs establish motive, the evidence is admissible).[2019]
41
When can a prior inconsistent statement be used as substantive evidence?
Rule 975:
(1) if the prior inconsistent statement was given under oath, AND
(2) as part of a formal trial, hearing, proceeding, deposition
(e.g. if a witness makes a statement in a grand jury proceeding, but denies that statement at trial, the prior inconsistent statement of the witness is admissible against the witness for impeachment purposes and as substantive evidence). [2017]
42
When a character witness is cross-examined, the court may allow a party to inquire into ________?
Rule 976: When a character witness is cross- examined, the court may allow a party to inquire into specific acts committed by the person about whom the witness is testifying
(e.g. if a defendant in a criminal trial for embezzlement calls a witness who testifies to the defendant‚reputation for honesty, if the prosecution asks the witness on cross-examination, Did you hear that three years ago he was arrested for forgery?‚ this question is a permissible impeachment of the witness‚credibility since the prosecution is allowed to bring up a relevant bad act such as a conviction or arrest to test the witness‚knowledge of the defendant‚reputation or the nature of his community as to what it regards as being honest).[2013]
43
When a witness is unavailable, prior inconsistent statements are not admissible as substantive evidence of its truthUNLESS
Rule 978: If a witness is unavailable, a prior inconsistent statement is not admissible as substantive evidence of its truth UNLESS the statement was made under oath at a prior hearing, trial or deposition, BUT it is always admissible for impeachment purposes
(e.g. at defendant‚trial for robbery, if a police officer testifies that a woman came up to him and exclaimed: ‚The defendant is robbing a gas station! Stop him, this statement is admissible under the excited utterance hearsay exception even though the woman is unavailable to testify, and if the woman made a statement to her sister a day later stating: ‚I wanted to punish the defendant for cheating on you, but I made a mistake, this statement is also admissible as a prior inconsistent statement to impeach her credibility, even though the woman is unavailable to testify b/c a hearsay declarant may be impeached with a prior inconsistent statement without being given a fair opportunity to explain or deny the prior inconsistent statement).[2013]
44
Evidence that directly contradicts the previous witness on an noncollateral matter demonstrating that some particular part of what a witness has testified is false, is admissible as an ____?
Rule 979: Evidence that directly contradicts the previous witness on a noncollateral matter, demonstrating that some particular part of what a witness has testified is false, is admissible as an impeachment by contradiction
(e.g. In a trial for battery on his wife, the defendant‚in-court testimony that he was in a loving relationship and would never hurt his wife can be impeached by a neighbor‚testimony that he saw the defendant choke his wife 4 years ago because it is a proper contradiction). [2011]
45
A prior inconsistent statement is admissible only to impeach unless WHAT ?
Rule 980: A prior inconsistent statement is admissible only to impeach unless the statement meets the conditions of another hearsay exception
(e.g. in a negligence suit against an amusement park, the park owner‚offer in evidence of a bystander‚statement to another bystander shortly before the accident that a crazy boy is standing up in the roller coaster‚ is admissible to prove substantively the plaintiff‚contributory negligence because it falls under the hearsay exceptions of present sense impression and excited utterance, BUT the same bystander‚statement to her friend a day after the accident that ‚the coaster suddenly stopped and threw the guy out of his seat‚ is admissible only to impeach the bystander‚credibility as a prior inconsistent statement since it contradicts his earlier statement, but it cannot be used substantively because it does not fall into any hearsay exceptions). [2011]
46
The credibility of the hearsay declarant may be attacked by what?
Rule 981: Under the FRE, the credibility of the hearsay declarant may be attacked by any evidence that would be admissible if the declarant had testified as a witness, such as evidence of bias or poor perception. [2006]
47
In a civil trial, a witness can be cross- examined regarding specific instances of conduct to attack the witness's __________?
Rule 982: In a civil trial, a witness can be cross- examined regarding specific instances of conduct to attack the witness's character for truthfulness attacking the witness's character for other traits, such as carelessness, is not admissible. [2006]
48
When you call a second witness to impeach, what is admissible?
Rule 983: A party can call W2 to impeach their own W1, but statements from W1 to W2 are admissible only to impeach W1 and not for the truth of the matter. [2006]
Rule 992: Even if the testimony is of no consequence to the lawsuit, a witness‚testimony may be impeached at the judge‚discretion by presenting a second witness who contradicts the first witness, whether or not there was an objection to the first witness‚testimony. [1992]
49
When can specific instances of conduct be inquired into on cross?
Rule 984: Specific instances of the conduct of a witness can be inquired into on cross-examination at the discretion of the trial court if it is probative of the truthfulness or untruthfulness of the witness, although such specific instances cannot be proven by extrinsic evidence. [1998]
50
If a hearsay statement is admitted into evidence, the credibility of the declarant is subject
Rule 985: If a hearsay statement is admitted into evidence, the credibility of the declarant is subject to impeachment in the same manner as if the declarant was an actual witness. [1998]
51
What is one way a plantiff can impeach his own witness' testimony?
Rule 986: A plaintiff can impeach his own witness testimony with a tape recording of the witness where the witness was recorded making statements contrary to the witness‚statements made at trial. [1998]
52
Specific instances of the conduct of a witness cannot be proven by ____?
Rule 987: Except for conviction of a crime, specific instances of the conduct of a witness, for the purpose of attacking the witness' credibility, cannot be proven by extrinsic evidence. [1998]
53
How can you impeach a dying declaration?
Rule 988: Impeachment of a dying declaration by showing a prior inconsistent statement by the declarant is admissible to impeach the dead declarant. [1992]
54
When is impeachment on a collateral issue with extrinsic evidence admissable?
Rule 989: Impeachment on a collateral issue (i.e. an issue which has no bearing on the case) with extrinsic evidence such as the testimony of another witness is inadmissible. [1992]aka-never.
55
When are judgments of felony convictions admissible?
Rule 990: Judgments of felony convictions (i.e. crimes punishable by death or imprisonment for more than one year) are admissible in both criminal and civil actions to prove any fact essential to the judgment, whether the judgment arose after trial or upon a plea of guilty. [1992]
56
Specific instances of misconduct by a witness, for the purpose of attacking the witness's credibility, may not be proved by ______?
Rule 991: Specific instances of misconduct by a witness, for the purpose of attacking the witness credibility, may not be proved by extrinsic evidence. [1992]
57
A witness prior inconsistent statements made in a deposition are admissible as wha tunder the hearsay exception?What type of evidence can it be used as?
Rule 994: A witness prior inconsistent statements made in a deposition are admissible as former testimony under the hearsay exception and can be used for impeachment of the witness and as substantive evidence. [1992]
58
Evidence that the defendant's primary witness is a partner of the defendant is admissible as _____?
Rule 995: Extrinsic evidence that the defendant's primary witness is a partner of the defendant is admissible as evidence of possible bias. [1992]
59
A prior inconsistent statement is admissible for ______and as ______evidence.
Rule 996: A prior inconsistent statement is admissible for impeachment and as substantive evidence. [1992]
60
A cross-examiner is permitted to bring out the fact that the witness has committed prior bad acts, but only prior bad acts that are what?
Rule 997: A cross-examiner is permitted to bring out the fact that the witness has committed prior bad acts, but only prior bad acts that are probative of truthfulness may be asked about. [1992]
61
A judgment against another plaintiff to prove an issue is what?
Rule 998: A judgment against another plaintiff to prove an issue is generally not admissible. [1991]
62
Can you impair credibility on matters of religion?
Rule 999: Evidence of beliefs or opinions of witnesses on matters of religion are NOT admissible to impair credibility. [1991]
63
When must a court use federal common law rules for privilege?
Rule 1001: If a case will use federal substantive law, the court must use federal common law rules for privilege. [1991]
64
What is the primary function of a grand jury?
Rule 1002: The primary function of a grand jury is to determine probable cause, not guilt, and they may consider hearsay evidence and other evidence that would be otherwise inadmissible at trial. [1991]
65
What is the Settlement Privilege?
Rule 1003: The Settlement Privilege prohibits the use of settlement offers or statements made in furtherance of negotiating settlements to prove liability.
Under this privilege, statements made by a defendant to the prosecutor during plea negotiations in criminal cases are generally inadmissible,BUT admissions made during police questioning are usually admissible and regarded as a straightforward admission by a party opponent.[2019]
66
Admissions by parties are treated as ___________?
Rule 1004: Admissions by parties are treated as nonhearsay and the admission of an employee may be admissible as a vicarious admission of the party in certain instances
(e.g. a statement made by an employee concerning a matter within the scope of agency/employment is admissible against the employer if made during the agency/employment relationship)
.However, if an out of court statement quotes another out of court statement, each statement must be analyzed independently, and the statement is admissible only if both hearsay statements fall within exceptions to the hearsay rule. [2019]
67
Settlement discussions or offers of compromise are NOT admissible as any kind of indication of fault,liability,or damage (IF) these two requirements are met.
Rule 1005:
(1) there must be a claim
AND
(2) there must be a dispute as to liability or the amount/share of liability
(e.g. if a child suffers from a goat bite at a defendant‚petting zoo and the defendant does not dispute his liability and instead says, i'd like to give you this check for $200 because I don't feel good about it his statement is admissible in a personal injury trial against him as the statement of a party- opponent since it is relevant to his liability and was not made in the course of settlement of a disputed claim). [2013]
68
Hearsay included within hearsay is not excluded under the hearsay rule if _______
Rule 1006: Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined out-of-court statements conforms with an exception to the hearsay rule
(e.g. if P and D get into a car accident and a police officer prepares a police report after interviewing an eyewitness two days after the accident, the hearsay police report is admissible under a business or public record exception to the hearsay rule, but the eyewitness statements contained in the report are inadmissible because they do not qualify under the business record exception since the witness did not have a business or public duty to report the information accurately, and there is no other applicable hearsay exception such as Present Sense Impression or Excited Utterance).[2013]
69
An out-of-court statement is admissible as non-hearsay if the statement was
Rule 1007:Not intended to demonstrate the truth of the matter asserted, but rather, intended to demonstrate the effect upon the listener
(e.g. if a defendant is charged with the knowing possession of stolen property after receiving a stolen car from a friend, the defendant‚testimony about the friend‚out-of- court statement where the friend tells a neighbor that the car was a gift from his mother is admissible as nonhearsay since the defendant‚state of mind is relevant to the crime charged and the statement is being offered to show the reason for the defendant‚belief that the car in question was not stolen). [2013]
70
Under the doctrine of limited admissibility, a statement that is inadmissible hearsay to prove the truth of the statement may nevertheless be admitted to show __________?
Rule 1008: effect on the hearer or reader
in a negligence case where knowledge of a danger is the issue, a third person‚statement of warning is admissible for the limited purpose of showing knowledge or notice on the part of a listener
(e.g. in an action for negligent failure to warn, if a plaintiff introduces letters from previous users to the manufacturer about serious burns they sustained when using the microwave oven with stainless containers, the judge will exclude the letters as hearsay if they are offered to prove the matter asserted (that other customers were injured or that the oven was dangerous), but the judge will admit the letters if offered for the limited purpose of showing notice to the manufacturer of a possible defect). [2011]
71
Requirements for Party Admission?
Rule 1009: A statement is not hearsay if it is
(1) Offered against a party and
(2) is a statement by the party‚agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship(e.g. if a truck driver tells a hospitalized plaintiff, Sorry that I ran you over his statement is admissible against the driver‚employer as a statement by a party- opponent since the driver is an employee of the defendant, the communicated matter was within the scope of his employment, and it was uttered during the existence of the employment relationship).[2011]
72
At trial, if a D denies making an admission, a witness can testify as to D‚prior admission, and the witness‚testimony is admissible to ____ AND ____
Rule 1010: At trial, if a D denies making an admission, a witness can testify as to D‚prior admission, and the witness‚testimony is admissible both to impeach the defendant‚testimony as a prior inconsistent statement and as substantive evidence (because it is an admission of a party- opponent). [2008]
73
Statements that constitute legally operative words are not hearsay because
Rule 1011: because they are not offered for the truth.(e.g. in an action to determine rights under a will, a witness testimony that the decedent said ‚"i'm dying" is admissible b/c it is relevant on the issue of whether the wife survived the husband it is not hearsay because it is not being offered to prove the truth of the matter asserted it is being offered to prove the woman was alive at the time she made the statement). [2008]
74
A statement by a party that implies fault or an admission of negligence is admissible under the _______________?
Rule 1012: A statement by a party that implies fault or an admission of negligence is admissible under the party admission exception to the hearsay rule, although statements specific to settlement negotiations or offers to pay medical expenses are not admissible. [2006]
75
Out of court statements are admissible if the statements are _____?
Rule 1014: Out of court statements are admissible if the statements are offered to show the effect of the statements on the defendant rather than for the truth of the matter asserted (this is not hearsay). [1998]
76
An admission by an employee of a party-opponent is inadmissible hearsay if the admission was
Rule 1015: An admission by an employee of a party-opponent is inadmissible hearsay if the admission was made after the declarant stopped working for the party-opponent(i.e. the employee‚statement must be made when the employee was still working for the employer). [1998]
77
Testimony CANNOT be offered concerning a witness's prior identification of the defendant if the
Rule 1016: Testimony CANNOT be offered concerning a witness's prior identification of the defendant if the witness refuses to testify at trial it is hearsay not within any exception. [1998]
78
What is an adoptive admission?
Rule 1017: A witness's testimony that the defendant silently acknowledged a statement is admissible as an adoption of the statement and may be offered into evidence as an admission of a party-opponent and will not constitute hearsay. --1998
79
When a party uses information supplied from an outside source, this evidence may be admissible as an __________
Rule 1018: When a party uses information supplied from an outside source, this evidence may be admissible as an adoptive admission. [1992]
80
An incriminating statement made by a defendant to police is admissible if it was
Rule 1019: An incriminating statement made by a defendant to police is admissible if it was volunteered and was not a product of a custodial interrogation. [1992]
81
A defendant silence when a cohort confesses is inadmissible as evidence if
Rule 1020: A defendant‚silence when a cohort confesses is inadmissible as evidence if the defendant had no reason to respond to the statement. [1992]
82
A person's silence is inadmissible as evidence if the person had
Rule 1024: A person's silence is inadmissible as evidence if the person had no reason to respond to the statement. Silence is treated as a statement, and thus possibly hearsay, only if it is intended by the person as an assertion. [1992]
83
A sketch of the perpetrator by a witness is inadmissible as hearsay and not within any exception if the
Rule 1025: A sketch of the perpetrator by a witness is inadmissible as hearsay and not within any exception if the witness is not available to testify to authenticate it. [1992]
84
A statement after an accident that this may be my fault is admissible as an ______________?
Rule 1026: A statement after an accident that this may be my fault is admissible as an admission of a party. [1992]
85
When can a statement made by the party's agent or servant be admitted as vicarious admission?
Rule 1028: A statement made by the party‚agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship can be offered against the party as a vicarious admission. [1992]
86
When is a statement made to a medical professional admissable?
Rule 1030:
(1) Statements made for purposes of medical diagnosis or treatment (i.e. describing medical history, or past or present symptoms, pain, or sensations, or the cause or external source of the injury) or
(2) Statements made to a qualified expert for the purposes of medical diagnosis or treatment are admissible(e.g. if a husband who saw his wife get hit by a car tells the emergency room doctor, Two hours ago, I saw the defendant‚car speeding past red light and running over my wife, the doctor‚testimony about the husband‚statement would be inadmissible hearsay not within any exception, since it is not a statement made for purposes of diagnosis or treatment, nor is it an excited utterance b/c the passage of two hours since the startling event makes the declarant unlikely to be in a continuous state of excitement). [2013]
87
When is a statement a present sense impression?
Rule 1031:
(1) describes or explains an event, and
(2) was made while the declarant observed the event or immediately thereafter(e.g. if a witness makes an audio recording on his iPhone of a license plate number immediately after a hit-and- run accident occurs, this audio recording is a valid PSI, but if the statement is made 5 minutes after the event, this is too late).[2008]
88
What are the requirements for past-recollection recorded?
A recorded out-of-court statement is admissible as a past recollection recorded if
(1) concerns a matter the witness once knew about
(2) as to which the witness now cannot recall well enough to testify fully and accurately
(3) which was made when the matter was fresh in the witness's memory, and
(4) which accurately reflects the witness's knowledge2008
89
What type of statements fall under excited utterance exception to hearsay?
Rule 1032: Spontaneous statements by accident and crime victims describing what has happened to them (such as identifying the perpetrator) are admissible under the excited utterance exception to the hearsay rule. [2006]
90
What is a present sense impression?
Rule 1033: A statement describing or explaining an event or condition made while the declarant perceived the event or condition, or immediately thereafter is admissible as a statement of present sense impression. [1992]
Rule 1034: A statement that someone was drunk the night of a car accident is admissible as a statement regarding a condition that person observed,made while the person was observing it. [1992]
91
Can a voice recording be played for the jury?
Rule 1035: A present sense voice recording of a witness can be played for the jury under the present sense impression hearsay exception. [1991]
92
Statements of a declarant's then-existing state of mind are admissible to prove what?
Rule 1036: prove past, present and future conduct of the declarant.Thus, a declarant‚statements about then-existing intentions to do something in the future falls under state-of-mind exemption, and are not hearsay(e.g. at D's trial for larceny, to negate the intent required for the crime, a witness can testify that D told the witness I'm going to return this purse after he picked it up). The self-serving nature of such statements does not affect their admissibility (the jury will decide the weight to give). [2019]
93
A declaration of present mental state is admissible because ?
Rule 1038: A declaration of present mental state is admissible because that mental state is circumstantial evidence that the subsequent event actually took place. [1992]
94
The present bodily condition hearsay exception must be a spontaneous remark about
Rule 1039: The present bodily condition hearsay exception must be a spontaneous remark about a present condition (e.g. ‚My back has really hurt more this week‚is not admissible). [1991]
95
The state of mind hearsay excepiton requires what type of statement?
FORWARD looking statements.When the state of mind of the declarant is at issue, statements indicating intent and offered for the forward-looking purpose of showing conduct in conformity with that intent are admissible (e.g. hearsay that ‚I love him and would never hurt him‚ falls under the existing state of mind hearsay exception). [1991]
96
Why are medical diagnosis statements not hearsay?
Rule 1044: A statement by a declarant that is reasonably pertinent to medical diagnosis or treatment is admissible, as most people are careful and accurate when describing conditions to medical personnel. [1992]
97
What is the requirements for past-recorded recollection?
Rule 1045: If a witness cannot completely remember something, the witness can read statements from his diary to the jury under the past recorded recollection exception to the hearsay rule. To be allowed to read the diary into evidence, the witness must show:(1) that he wrote it(2) at a time when he had a clear memory(3) he had personal knowledge of the matter and(4) he wrote the material in a reliable way.in addition, the diary must also be authenticated which requires the witness to testify it is his diary. [2019]
98
A tape recording of a witness comments used in preparing a written report is admissible under __________ if the witness ______?
Rule 1046: A tape recording of a witness comments used in preparing a written report is admissible under the past recollection recorded exception to the hearsay rule if the witness appears at trial but cannot remember the details on the stand and testifies that the tape recording was accurate when made. [2008]
99
A witness recorded recollection may be read into evidence if ?
Rule 1047: A witness‚recorded recollection may be read into evidence if
(1) the witness once had knowledge but now has insufficient recollection to testify fully and accurately, and
(2) the recollection is shown to have been made or adopted by the witness when the matter was fresh in the witness' memory and reflects that knowledge correctly.1998
100
When can a voice recording of a witness be played for the jury?
Rule 1048: A voice recording of witness can be played for the jury under the recorded recollection exception if the witness cannot remember the contents of the recording. [1991]
101
What can business record be admitted to show?
Rule 1049: All courts allow evidence of the routine practices of an organization, to show that the practices were followed on a particular occasion. Thus, business policies, rules, or regulations may be admitted as habit of the business if it can be shown that they consistently adhered to those practices(e.g. a business may prove that a particular letter was mailed by showing that it was the organization‚routine practice to mail all letters placed in any worker‚outgoing mailbox, and that the letter in question was placed in such a box). [2019]
102
What are the requirements for the business records exception?
Rule 1050: Under the business records exception to the hearsay rule, the business record must be
(1) maintained as a regular practice of a business (not the regular practice of an individual employee) and
(2) must be kept in the course of regularly conducted business activity
(e.g. if a corporate executive kept notes of a business meeting to aid his memory of the meeting, these notes do not qualify as business records because they were prepared on the executive‚own initiative to help him remember what had happened at the meeting). [2011]
103
An absence of an entry in business records is admissible if?
Rule 1051:An absence of an entry in business records is admissible as an exception to the hearsay rule if the judge finds that it was the regular course of that business to contemporaneously make such records and preserve them, but it was not done in this instance
(e.g. a hospital patient can offer into evidence a medical chart to show that a nurse failed to administer a scheduled medication since such an activity is normally recorded in the chart if it occurred). [2011]
104
if a medical expert testifies that his opinion was based on information in a letter from the plaintiff's physician, what will result from the letter?
Rule 1052: At a trial, if a medical expert testifies that his opinion was based on information in a letter from the plaintiff's physician, the letter is inadmissible hearsay if the letter was not made pursuant to any systematic routine office procedure. [2006]
105
Is a hospital record admissable?
Rule 1053: An entry on a hospital record reporting a doctor's diagnosis is admissible as a record of regularly conducted business activity.
106
When will business records be inadmissable?
Rule 1054: Although business records are generally admissible as hearsay exceptions, if the surrounding circumstances make the record seem untrustworthy, such as when the facts indicate the business that made the record had a strong motive to create a self-serving record, the court has discretion to exclude it. [1992]
107
Under the business record exception,the source must be what?
Rule 1055: Under the business record exception, the source must be trustworthy if the source or custodian is not trustworthy, the record is inadmissible hearsay. [1991]
108
A notation made by a medical resident on a chart at the direction of an unknown physician falls within what?
Rule 1056: A notation made by a medical resident on a chart at the direction of an unknown physician falls within the business record exception. [1991]
109
A report prepared by a firemarshal of a fire inspection is admissible as?
Rule 1058: In a civil litigation, a report prepared by a fire marshal of a fire inspection is admissible as a public record under Rule 803(8) of the FRE. [2008]
110
Public records used to prove evidence of absence of an entry from a public record are considered what?
Rule 1059: Public records such as jail records that are used to prove evidence of absence of an entry from a public record are an exception to the hearsay rule and therefore admissible. [1998]
111
A medical opinion of a test is admissible, provided that ?
Rule 1060: A medical opinion of a test is admissible, provided that
(1) accepted medical practices were followed in arriving at the opinion and
(2) any test is scientifically valid or scientifically reliable. [1992]
112
What does the witness have to provide to have testimony that refers to a collateral document such as a newspaper
Rule 1061: NOTHING.A witness‚testimony that refers to a collateral document such as a newspaper is admissible without the witness having to provide the document itself. [1992]
113
What foundation is required for a learned treatise?
Rule 1062: the foundation for a learned treatise normally consists of testimony by a qualified expert that the item is recognized in the relevant discipline as authority[2019]
114
How must a learned treatise be introduced?
Rule 1062: The FRE requires that a learned treatise be introduced through an expert witness [2019]
115
Once a qualified expert authenticates the authority of a treatise on an expert subject what can be done?
Rule 1062:Excerpts from the learned treatise may be read into evidence, but are not themselves admitted as exhibits.At the time the treatise is read into evidence, the expert must be on the stand to interpret it before the lay jury relies on it. [2019]
116
Can a learned treatise be admitted as an exhibit?
No. Rule 1063: If a court finds a publication to be a reliable authority, statements germane to the case can be read into evidence, but the publication itself cannot be entered into evidence as an exhibit. [2006]
117
Requirements for the former testimony exception?
Rule 1064: Under the FRE, the former testimony exception to the hearsay rule allows former testimony of a witness in one proceeding to be admissible in a second proceeding, provided that:
(1) the prior testimony/statement was given in a proceeding or deposition under oath
(2) it is being offered against a party who, on the prior occasion, had an opportunity and a similar motive to cross-examine or to otherwise develop the testimony and
(3) the declarant is unavailable to testify in the second proceeding (e.g. the witness cannot be found or is beyond where the court can subpoena the witness, such as in another country).2019
118
What results if declarant is unavialble for trial or refuses to testify, but has testifed before?
Rule 1065: If the witness is unavailable for trial or refuses to testify, there is a hearsay exception for former testimony that is, testimony given by that person in an earlier proceeding. [1992]
119
Can an affidavit from a person who has subsequently died be admitted?
Rule 1066: An affidavit from a person who has subsequently died is inadmissible in court, because it is hearsay, not within any exception. [1992]
120
Testimony from a police officer that a witness told him he saw the defendant drinking before the accident is what?
Rule 1067: Testimony from a police officer that a witness told him he saw the defendant drinking before the accident is inadmissible hearsay, not within any exception. [1992]
121
Testimony from a police officer that a witness told him he saw the defendant drive recklessly before the accident is what?
Rule 1068: Testimony from a police officer that a witness told him he saw the defendant drive recklessly before the accident is inadmissible hearsay, not within any exception. [1992]
122
Will a written affidavit or recording made under oath be admissable?
Rule 1069: NO. A written affidavit or recording, although made under oath, is still inadmissible hearsay, that is not within any exception. [1992]
123
When is former testimony from a prior trial inadmissable?
Rule 1071/1070: Former testimony from a prior trial is NOT admissible if
(1) there is the same Plaintiff but a different Defendant because the Defendant did not have a prior chance to interrogate the witness at the first trial. [1991]
(2) there is a different Plaintiff but the same Defendant because the Defendant had a prior chance to interrogate the witness. [1991]
124
A declaration against interest is not excluded by the hearsay rule if the declarant is what?
Rule 1072: declarant is unavailable as a witness
(e.g. a decedent‚statement to his wife that he purposely set fire to his friend vehicle to split the insurance proceeds is admissible against the defendant because the hearsay declarant is unavailable and is a statement against interest). [2011]
125
An out-of-court certification from a public official attesting to the absence of a public record is what?
Rule 1073: An out-of-court certification from a public official attesting to the absence of a public record (such as a license) after a diligent search of the records of a public office or agency is admissible as an exception to the hearsay rule. [2006]
126
What type of statement will NOT qualify under dying declaration?
Rule 1074: A statement uttered prior to death will not qualify as a dying declaration exception to the hearsay rule if the statement does not pertain to the cause or circumstance of what the declarant believed to be his impending death. [1998]
127
What type of records would be a family recrod?
Rule 1075: A list of family births, marriages, and deaths in a Bible is admissible as a family record.1992
128
Dying declaration testimony by a witness must be based on what?
Rule 1076: Dying declaration testimony by a witness must be based on first-hand knowledge (i.e. competency) to be admissible. [1991]
129
What hearsay exception REQUIRES unavailability?
Rule 1079: The declarant must be unavailable to admit hearsay regarding former testimony,
(1) dying declarations,
(2) statements against interest, or
(3) statements of pedigree (concerning birth, marriage, divorce, or ancestry). [1991]
130
A dying declaration is limited to what type of statements?
Rule 1080: A dying declaration is limited to statements regarding the causes and circumstances of what the declarant believed to be his impending death (e.g. stating, I‚m dying, and Bill owes me $10,000, is not a dying declaration). [1991]
131
If the declarant is unavailable and he has made a material out-of-court statement against his penal interest
Rule 1082: The statement may be admitted if it is NOT testimonial under the confrontation clause. [2019]
132
When is a statement against penal interest testimonal?
if it was made to the police,but if the statement was made in general conversation (to a cellmate or family member),then the statement is not testimonial and can be admitted without any further analysis. [2019]
133
An out-of-court statement identifying a person is admissible as non-hearsay under FRE 801(d) and does not violate the confrontation clause of the 6th amendment so long AS WHAT?
Rule 1083: The declarant is subject to cross- examination at trial, even if that declarant suffers from memory loss
(e.g. if a victim, who suffered bruises to his arm while trying to defend against a knife-wielding perpetrator, wishes to testify in court and says "Although I currently do not remember the perpetrator‚identity, I do remember revealing his identity to an unknown rescuer before I passed out" his testimony is admissible b/c his inability to recall does not violate the defendant‚6th Amendment right to confront his accuser and since his defensive wounds serve as a sufficient basis for his personal knowledge, this hearsay statement comes under the exception for prior identifications).[2013]
134
Testimonial hearsay that might otherwise be admissible as an exception to the hearsay rule may not be used at trial if what?
Rule 1084: Testimonial hearsay that might otherwise be admissible as an exception to the hearsay rule may not be used at trial if the hearsay declarant is unavailable and has not previously been subject to cross-examination - the use of such hearsay without the opportunity for meaningful cross examination violates the confrontation clause of the 6th Amendment, BUT business records are admissible because they are not testimonial by nature (e.g. if an eyewitness to a bank robbery dies in an unrelated accident before the trial, the witness's statements (e.g. his videotaped testimony, transcript of his grand jury testimony, and an officer's testimony that the eyewitness has identified the defendant in a lineup)) are not admissible against the defendant since these statements are testimonial, the witness is unavailable, and the defendant lacked a prior chance to cross-examine the witness on the testimonial statements, BUT any evidence of a non- testimonial nature (e.g. a business-record in the form of a transaction record from a bank) is admissible without violating the defendant's confrontation right under the Constitution). [2011]
135
When does a statement of one co-defendeant incriminating a second co-defendant violates the Confrontation Clause?
Rule 1085: An extrajudicial statement of one co- defendant incriminating a second co-defendant violates the Confrontation Clause and is deemed to be inadmissible hearsay this rule only applies when the confessing defendant refuses to take the stand if he does take the stand, there is no 6th Amendment issue. [1991]
136
What are the requirements to admit evidence as habit evidence?
Rule 1086: In order to be admissible as evidence of habit (i.e. evidence of a routine practice), the proffered testimony must generally meet the three elements of
(1) regularity,
(2) specificity, and
(3) an involuntary or semiautomatic response
(e.g. evidence that a railroad had a habit of blowing a warning whistle at a particular crossing is admissible in a grade-crossing collision case). [2017]
137
When are gory pictures admissable?
Rule 1087: if the photos offer some evidence of the victim's identity or establish relevant details about the accident
(e.g. if plaintiff‚car suddenly accelerates and fails to brake before hitting a tree, killing the plaintiff‚daughter, and the plaintiff alleges a design defect in a product liability action against the car manufacturer, but the time of the daughter‚death is disputed, the court may admit the photographs taken at the crash site and at the daughter‚autopsy so that they may be used by the medical expert to explain to the jury his basis in concluding that the daughter did not die immediately after the crash, because the court can instruct the jury to limit the use of evidence to illustrate the expert‚testimony, and the probative value of this evidence is not substantially outweighed by its prejudicial effect and risk of jury confusion)
NOTE: In contrast, a video depicting the same car being driven by a professional driver on a test track without any trees or obstacles is NOT admissible because the conditions depicted are not substantially the same as on the date of the accident in addition, a video of a TV news program about certain cars that suddenly accelerate and crash is NOT admissible if it is only about cars in general, and not the make and model in question, since this would confuse the jury
and lastly, in a product liability action regarding a suddenly accelerating car, evidence that the plaintiff had three speeding tickets in the past two years is NOT admissible because it is prohibited character evidence. [2013]
138
In order to testify, a witness must have what?
Rule 1088: A witness must have personal knowledge of a matter in order to testify about that matter
(e.g. if P is injured in a car accident and sues the driver claiming a neck injury, P‚testimony that she never had any problem with her neck prior to the accident is admissible because it is based on her personal knowledge and it is relevant, being probative on the issue of whether the accident was the cause of her injury). [2011]
139
Potentially gruesome photographs may be admitted into evidence when the photographs are what?
Rule 1089: are not so gruesome that their prejudicial potential absolutely requires their exclusion
(e.g. in wrongful death actions, relevant post-death pictures of a decedent showing extensive injuries may properly be admitted as evidence of decedent's physical pain and suffering before death),[2011]
140
When are Gruesome photographs NOT admissible?
Rule 1089 such photographs are not admissible in evidence where they can be of no help to the jury in determining the issues submitted, but will only serve to prejudice the jury in favor of the plaintiff
(e.g. if a defendant in a personal injury trial denies negligence and the severity of a plaintiff‚injury, the plaintiff can offer in evidence a photograph extracted from a TV news footage that graphically depicts plaintiff‚gruesome injuries since the evidence relates directly to a disputed fact of the extent of plaintiff‚injury and the appropriate amount of damages).2011
141
testimony that the weapon in the defendant‚possession was consistent with the victim wound is admissible even if _____ and WHY would it be admissible?
Rule 1090: In a criminal prosecution, testimony that the weapon in the defendant possession was consistent with the victim‚wound is admissible even if a number of other weapons could have caused the wound, because the probative value of this evidence is for the jury to assess. [2008]
142
What type of evidence can be admitted?
Rule 1091: Evidence need only have any tendency to make the existence of a fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence, meaning evidence that has only the slightest probative value can be admitted
(e.g. if a D is charged with the arson of his home, although not conclusive, evidence that the D fully insured his house is admissible to prove motive).2008
143
When is evidence admissable as relevant?
Rule 1092: Under the FRE, evidence is admissible as relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence..
144
Testimony of a driver's intoxication is admissible to provide what?
Rule 1093: Testimony of a driver's intoxication is admissible to provide an alternate explanation of the accident's cause and it is not substantially more prejudicial than probative. [1998]
145
When may relevant evidence be excluded?
Rule 1095: Relevant evidence may be excluded if its probative value is substantially outweighed by the dangers of unfair prejudice, confusion of the issues, or misleading the jury. [1992]
146
A defendant is allowed to show due care or the absence of a defect by showing
Rule 1096: A defendant is allowed to show due care or the absence of a defect by showing
(1) that there have not been similar accidents in the past, so long as the conditions were the same in the past as when the accident occurred and
(2) if there were any injuries in the past, they would have been reported to the defendant. [1992]
147
When is evidence legally relevant?
Rule 1097: Evidence is legally relevant if its probative value is not substantially outweighed by the possibility of unfair prejudice because the evidence is inflammatory or misleading. [1992]
148
Extrinsic evidence of a collateral matter is inadmissible because?
Rule 1099: Extrinsic evidence of a collateral matter is inadmissible since it does not relate to a material issue in the case. [1992]
149
Polygraph evidence is inadmissible because it is considered
Rule 1101: Polygraph evidence is inadmissible because it is considered unreliable and potentially confusing to jurors. [1991]
150
If the offered evidence lacks unique characteristics (e.g. a bag of drugs), then chain of custody must be established from
Rule 1102: the time it was seized until the time of trial and sufficiently identified that it remains in an unaltered condition
(i.e. every person who handled or possessed the object since it was first recognized as being relevant must explain what he did with it).
No chain of custody is required when the item is readily or uniquely identifiable (e.g. a pearl handled gun with specific engraved initials).
The chain of custody requirement is not absolute it merely must be sufficiently complete to render it reasonably probable that the offered item is the original item at issue. [2019]
151
How do you authenticate a voice?
Rule 1104: To authenticate a voice, the proponent of the evidence is merely required to introduce enough evidence for a reasonable juror to find that the item is what it purports to be, and it is up to the jury to determine how much weight to give the evidence. [1998]
152
An incoming telephone call in which the caller identifies himself is insufficient to authenticate that the person was the caller there must be what?
Rule 1105: An incoming telephone call in which the caller identifies himself is insufficient to authenticate that the person was the caller there must be additional evidence that the caller is who he said he was, such as recognition of the voice. 1992
153
How can a witness authenticate an outgoing telephone call?
Rule 1106: A witness can authenticate an outgoing telephone call by
(1) showing that the witness made a call to the number assigned by the phone company to a particular person and
(2) the circumstances show that the person who talked on the other end was in fact the person the caller was trying to reach. [1992]
154
A laypersons identification of handwriting is admissible if
Rule 1107: A layperson‚identification of handwriting is admissible if
(1) the layperson had seen the person‚handwriting at some time before the litigation began, and
(2) that he recognizes the signature or handwriting in question to be that of the person. [1992]
155
A photograph is admissible if a witness testifies that it _____?
Rule 1109: A photograph is admissible if a witness testifies that it fairly and accurately represents what it is claimed to represent. [1992]
156
vehicle registration is admissible without authentication or certification to prove
Rule 1110: A vehicle registration is admissible without authentication or certification to prove the connection between the defendant and ownership of the car. [1991]
157
When is a statement of prior identification admissable?
Rule 1108: A statement of prior identification of a person made after perceiving him is substantively admissible, if the declarant testifies at the trial and is available for cross-examination. [1992]
158
When is a photograph admissible?
Rule 1109: A photograph is admissible if a witness testifies that it fairly and accurately represents what it is claimed to represent. [1992]
159
When is a vehicle registration admissible?
Rule 1110: A vehicle registration is admissible without authentication or certification to prove the connection between the defendant and ownership of the car. [1991]
160
When is a prior identification admissible?
Rule 1111: A prior identification is only admissible if the declarant testifies and is subject to cross-examination. [1991]
161
When is character evidence inadmissable?
Rule 1112: Under FRE 404, evidence of the character of a party (who was not also a witness) in a civil case that is offered for the circumstantial purpose of establishing that the individual acted consistently with that character trait is inadmissible, regardless of whether it is offered in the form of opinion, reputation, or specific prior acts. [2019]
162
What is an exception to allow inadmissable character evidence to be admissable?
Rule 1113: Generally, character evidence is inadmissible in civil and criminal actions. One exception to this rule is that specific instances of prior bad conduct may be admitted to prove motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.
Thus, specific instances of prior conduct can be introduced to show that something was not an accident or mistake (e.g. if a young man marries a wealthy older woman who drowns in the bathtub and it is discovered that this has happened with three different women, the prosecution may introduce the prior deaths to prove absence of mistake). [2019]
163
What type of character evidence can a defendant introduce?
Rule 1114: A defendant may introduce evidence of his good character as inconsistent with the type of crime charged, BUT proof of good character offered by the defendant must be in the form of reputation testimony or opinion testimony
(e.g. if D is charged with theft, a witness can testify that D has a reputation for being honest). However, specific instances of the defendant's good conduct are not admissible (e.g. D's character witness cannot testify that he is aware D turned down prior opportunities to steal). [2019]
164
When may character evidence be admissible?
Rule 1115: Generally, character evidence may not be offered to prove that a person acted in conformity with their character on a particular occasion,BUT character evidence may be admissible when:
(1) character is an essential element of the crime
(2) it is offered to show motive, intent, identity, lack of absence/mistake, knowledge, plan or preparation (MIMIC) OR
(3) under the Mercy Rule where a defendant can offer good character (pertinent character traits) about himself and testimony about the victim's character.
165
How can character evidence be introduced if admissable?
When character evidence is admissible, it may be offered through reputation and opinion testimony on defense and through specific instances on cross (unless character is an essential element of the crime/defense whereby specific instances of good conduct are admissible on defense). [2011]
166
What type of character evidence may a defendant introduce?
A defendant is permitted to introduce evidence of pertinent character traits relevant to the case, meaning if D is charged with theft, fraud or some other offense involving dishonesty, D is permitted to introduce evidence of his honest character, or if D is charged with a violent crime, D can introduce evidence of his peaceful character(e.g. if D is accused of a violent crime such as assault or battery, D can call a witness to testify that D is of good reputation for peacefulness, but the witness cannot testify to D‚character for truthfulness b/c D‚character for truthfulness is not pertinent unless the D‚truthfulness was attacked while he was testifying). [2008]
167
When can a witness be cross-examined about knowledge of past conduct by another witness?
Rule 1117: If W2 supports the credibility of W1, W2 can be cross-examined about knowledge of past conduct by W1 if there is good faith basis for believing that the past conduct did occur and if the past conduct would contradict or change W2's description of W1's reputation for honesty. [2006]
168
In a criminal fraud case, prior convictions for fraud will be admissable to ________?
Rule 1118: In a criminal fraud case, prior convictions for fraud are admissible to both impeach the defendant and to prove that the defendant committed the crime. [2006]
169
In defamation cases, where the plaintiff's character or reputation is considered an issue, character evidence regarding the plaintiff's reputation in the community is _____ to determine ______?
Rule 1119: In defamation cases, where the plaintiff's character or reputation is considered in issue, character evidence regarding the plaintiff's reputation in the community is admissible to determine injury to reputation. [2006]
170
In an attempted murder trial, evidence that the defendant once threatened another person with a weapon is _________?
Rule 1120: In an attempted murder trial, evidence that the defendant once threatened another person with a weapon is improper character evidence and therefore inadmissible unless it is instead used to prove motive, opportunity, intent, preparation,plan, knowledge, identity, or absence ofmistake. [1998]
171
At a murder trial, the defense can call witness to testify regarding character for reputation but can NOT bring witness to testify regarding the defendant being ______?
Rule 1121: At a murder trial, a defendant can call witnesses to testify that the defendant has a reputation in their community as a peaceable man, but witnesses cannot testify that the defendant is a truthful person since it is not pertinent to whether the defendant committed the murder. [1998]
172
Evidence of other crimes,wrongs, or acts is not admissible to prove _________ but it is admissible for ___________?
Rule 1122: Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person to show propensity, although it is admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. [1998]
173
Habit evidence is admissible to prove what?
Rule 1123: Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not, is admissible to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice. [1998]
174
Corroborating testimony regarding a unique weapon used in multiple crimes is admissible to establsh _____?
Rule 1124: Corroborating testimony regarding a unique weapon used in multiple crimes is admissible to establish an identifying circumstance. [1992]
175
On a cross-examination in a contract cause of action, is it poper to ask about the witness‚reputation as the neighborhood alcoholic?
Rule 1125: On a cross-examination in a contract cause of action, it is NOT proper to ask about the witness‚reputation as the neighborhood alcoholic. [1992]
176
When may the prosecution introduce evidence of the defendants poor character?
Rule 1126: If a defendant introduces evidence of good general character, the prosecution may rebut by reputation or opinion evidence of the defendant‚poor character and may use specific acts evidence during its cross of the defendant‚good-character witnesses. [1992]
177
If a defendant introduces evidence of good general character, the prosecution may rebut by using what type of evidence?
Rule 1126: the prosecution may rebut by reputation or opinion evidence of the defendant‚poor character and may use specific acts evidence during its cross of the defendant‚good-character witnesses. [1992]
178
On the cross-examination of a defendant, asking about a prior conviction for tax fraud is ______ to show that the defendant is ___________?
Rule 1127: On the cross-examination of a defendant, asking about a prior conviction for tax fraud is proper to show that the defendant is inclined to lie. [1992]
179
A defendant can show the character of the victim to show what?
Rule 1128: A defendant can show the character of the victim by use of reputation or opinion evidence to show the victim was the aggressor and support the defendant‚theory of self-defense.[1992]
180
What type of character evidence is a defendant charged with murder allowed to show?
Rule 1129: A defendant charged with murder is allowed to show that he has the general character of being law-abiding. He is also permitted to show the narrower trait of being peaceable. [1992]
181
When is the defendant's opinion evidence of his good character for truth and veracity inadmissible?
Rule 1130: A defendant's opinion evidence of his good character for truth and veracity is inadmissible if the trait is not pertinent to the case.[1992]
182
Evidence by a criminal defendant that he has a good general character is admissible to show what?
Rule 1131: Evidence by a criminal defendant that he has a good general character is admissible to show the improbability of the defendant eaking the law. [1992]
183
In a negligence action, testimony that the defendant had a reputation in the community of being reckless is _____ admissible to show negligence?
Rule 1132: In a negligence action, testimony that the defendant had a reputation in the community of being reckless is NOT admissible to show negligence. [1992]
184
When will a court allow a prior conviction to be admissible?
Rule 1133: The cross-examination of a defendant regarding a prior conviction is proper if the court finds that the probative value for impeachment outweighs the prejudice to the defendant. [1992]
185
If you're being sued for slander because you called someone a thief, evidence that the person has stolen in the past is ______ because ______?
Rule 1134: If you're being sued for slander because you called someone a thief, evidence that the person has stolen in the past is admissible because specific instances of conduct may be proved when character is directly in issue. [1992
186
If character is called into question, only evidence about _______is allowed
Rule 1135: If character is called into question, only evidence about that particular character trait is allowed (e.g. if charity is the issue in a defamation case, testimony from a witness about the plaintiff's honesty is inadmissible as non-probative) [1991]
187
Character evidenceis admissible in criminal trials if offered by the defendant to show what?
Rule 1136: Character evidence is admissible in criminal trials if offered by the defendant to show character not in keeping with the offense charged evidence is admitted by calling another witness whose testimony is limited to opinion or reputation. [1991]
188
When is character evidence generally inadmissible?
Rule 1137: Character evidence is generally inadmissible to prove propensity in criminal or civil cases. [1991]
189
How can a prosecutor rebut against evidence introduced by the defendant of the victim's violent character?
Rule 1138: the prosecution may rebut in two different ways: by evidence of the victim‚good character for that trait or the defendant‚bad character for that trait. [1991]
190
Evidence of the routine practice of an organization is relevant to prove what?
: Evidence of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the organization on a particular occasion was in conformity with the routine practice. [1991]
191
What are the three requirements to permit thetestimony of an expert witness?
Rule 1140: Three basic criteria are required to permit the testimony of an expert witness:
(1) the expert is qualified to give an opinion on the subject matter
(2) the state of the art or scientific knowledge permits a reasonable opinion to be given by the expert and
(3) the subject matter goes beyond the understanding of the average layman.
Generally, an expert may give an opinion or inference that embraces an ultimate issue, BUT an expert witness may not express a legal conclusion directly related to the ultimate issue of the case (e.g. an expert may not give a legal conclusion on whether the plaintiff was contributorily negligent) or whether a legal standard has been met (e.g. that a defendant met the requirements of a law) [2019]
192
Before a expert can testify regarding causation, a judge must make sure the expert testimony is _____ and ______ before the expert may testify?
Rule 1141: A plaintiff often needs experts to prove causation, and the trial judge is responsible for making sure the expert testimony is
relevant and grounded in scientific research before an otherwise qualified expert may testify as to causation, the proponent of the evidence must usually establish not only that the evidence is relevant and helpful to the jury, but also that the methodology employed by the expert is reliable. [2019]
193
An expert may testify as to the way drug dealers operate and to the meaning of code words that dealers use, as long as what?
Rule 1142: An expert may testify as to the way drug dealers operate and to the meaning of code words that dealers use, as long as the testimony is based on their expert opinion and not on the defendant‚specific mental processes (e.g. if a defendant used coded references to drugs and drug trafficking, such as using the term laptop for cocaine, a police officer experienced in narcotics investigations can provide an expert opinion based on that experience as to what the code words mean). [2019]
194
An expert's opinion on an ultimate issue of the case is admissible, but in a criminal case, an expert may not ________ ?
Rule 1143: An expert's opinion on an ultimate issue of the case is admissible, but in a criminal case, an expert may not give an opinion as to whether a criminal defendant did or did not possess the mental state or condition that constitutes an element (or defense) of the crime charged
(the expert can only diagnose a mental condition and explain what it is)
whereas in a civil case, the expert can testify to a person's mental state or condition
(e.g. if a homeowner sues his insurance company when it refuses to cover the damage on the basis that he intentionally set fire to his home, the homeowner, after claiming negligence, may call his treating psychiatrist to testify that, "in my opinion, the homeowner was mentally unstable, but he has an intense fear of fire or getting burned" because it is an opinion by a qualified expert that is helpful to the jury in helping it understanding a mental state that is relevant to an important issue in a civil action such as whether a party‚action is negligent or intentional). [2013]
195
An expert's testimony that expresses an opinion concerning the defendant's mental state or condition at the time of the crime is _____ because _____ ?
Rule 1144: An expert's testimony that expresses an opinion concerning the defendant's mental state or condition at the time of the crime is inadmissible since only the jury may address that ultimate issue. [1998]
196
What can you cross-examine an expert wtiness on?
Rule 1146: You can cross examine an expert witness with specific acts that bear on his capacity as an expert. [1992]
197
What is an unacceptable method of authenticating a person's signature on a document?
Rule 1147: A non-expert's analysis of a signature is not an accepted method of authenticating a person's signature on a document. [1992]
198
Asking an expert witness if he failed tests related to his field is admissible because _____?
Rule 1148: Asking an expert witness if he failed tests related to his field is admissible because it is relevant to the weight to be given to the expert's testimony. [1992]
199
Can an expert listen to the evidence and then testify in court?
Rule 1149: An expert can listen to the evidence in court and then testify, basing his opinion on the facts made known to him at the trial. [1992]
200
May a cocaine addict be an expert?
Rule 1150: A cocaine addict can be regarded as an expert in ascertaining whether a drug is cocaine. [1991]
201
What needs to be established for a treatise to be used on direct or cross-exam?
Rule 1151: If a party can establish that a treatise is reliable authority, then the treatise may be used on direct or cross-examination of an expert, and the treatise may be read to the jury as substantive evidence. [1991
202
A letter attesting to an expert's qualifications may be considered by whom?
A letter attesting to an expert‚qualifications may be considered by the judge only, without regard to the hearsay rule. [1991]
203
What is the confidential marital communication privilege
Rule 1153: Under the confidential marital communication privilege, in criminal/ civil cases, one spouse may not (even if he/ she wants to) testify to any confidential communication between the couple made during a valid marriage
(even if the marriage is later terminated) unless the other spouse waives the privilege
(e.g. if D is being prosecuted for murder, if D's ex-wife wants to testify that D told her during the marriage that he killed the victim, D's ex-wife cannot testify under the confidential marital communication privilege). [2019]
204
Can a criminal defendant stop his spouse from voluntarily giving testimony?
NO. A spouse can refuse to testify against her criminal defendant spouse under the spousal privilege, but the criminal defendant cannot stop his spouse from voluntarily giving testimony. [2006]
205
In a criminal case in federal court, a spouse can choose to testify against the other spouse about conversations that happened before marriage BECAUSE ?
In a criminal case in federal court, a spouse can choose to testify against the other spouse about conversations that happened before marriage since they are not confidential marital communications. [1992]
206
May a witness testify againt the defendant if the testimony was aquired as a result of the defendants grand jury testimony which was granted immunity?
W1 cannot testify against D1 if W1‚testimony was acquired as a result of D1‚grand jury testimony if D1 is granted immunity for the grand jury testimony. [1992
207
What is the spousal immunity privilege and what does it cover?
Under the Spousal Immunity Privilege, the prosecution cannot compel the defendant‚spouse to testify against the defendant in a criminal case.This privilege covers testimony against a spouse, so long as the witness and the defendant are currently married, although the privilege may be waived by the witness spouse. [1991]
208
When are marrital communications not privileged?
Marital communications are not privileged if they are made to enable, aid or commit a crime or fraud. [1991]
209
What happens to the spousal privilage when the spouse dies or divorces?
The marital communications privilege survives divorce and death. [1991
210
Jointly represented clients may assert the attorney client privilege with respect to their communications with a lawyer, on a matter of common interest to the co-clients BUT THEY MAY NOT ASSERT THE PRIVILAGE WITH RESPECT TO
Rule 1160: Two or more jointly represented clients may assert the attorney client privilege with respect to their communications with a lawyer, on a matter of common interest to the co-clients, but they may not assert the privilege with respect to these communications in any subsequent litigation between the former co-clients (e.g. if an attorney is consulted and retained by two clients to establish a business, the privilege cannot be invoked for communications made to the attorney retained in common due to a subsequent litigation between the clients). [2019]
211
When is the attorney-client privilege waived?
Rule 1161: If a defendant voluntarily and selectively discloses privileged information to a prosecutor without taking steps to protect the privileged nature of such information, the attorney-client privilege has been waived as to the disclosed information and all information on the same subject
(e.g. if a defendant and codefendant are tried jointly for murder, and the codefendant and his attorney offer to reveal the murder weapon‚location for leniency, but the victim‚ father kills the codefendant, the prosecution cannot compel the codefendant‚ attorney to disclose what the codefendant revealed to him because the communications comes under the attorney-client privilege, which was not waived by the codefendant because he never disclosed the confidential communications to the prosecution) [2013]
212
What type of information does the attorney client prvilege apply to?
The attorney-client privilege applies only to confidential communications made for the purpose of facilitating legal representation of the client, and fee arrangements/ payments are generally outside the scope of protection of the attorney-client privileges
(e.g. in a trial for tax evasion, the amount D paid in legal fees to his attorney is admissible as relevant info, b/c such records of fee arrangements & payments are not protected by the attorney client privilege)/u. [2008]
213
statements that were in furtherance of a crime or fraud is ____ protected by the attorney-client privilege?
Rule 1163: A defendant‚letter to his attorney that contains statements that were in furtherance of a crime or fraud is NOT protected by the attorney-client privilege. [1998]
214
Is an accident report prepared for an attorney privileged?
An accident report prepared for an attorney is a privileged communication from client to attorney and its production cannot be demanded. [1992]
215
In a lawsuit against an attorney for double-billing, the attorney-client privilege does not protect information regarding hours billed by the attorney to __________?
In a lawsuit against an attorney for double-billing, the attorney-client privilege does not protect information regarding hours billed by the attorney to other clients. [1992]
216
Is the employees of the attorney subject to the attorney-client privilage?
Rule 1168: If an attorney hires someone, statements made to that person by the defendant are privileged. [1991]
217
When is there no attorney-client privilage?
There is no privilege if a client tells his attorney of a future crime or fraud, even if the attorney didn't know that the client was telling him about a future crime or fraud. [1991]
218
When an attorney acts for joint clients can privilage be invoked in a suit between the two parties?
Rule 1170: When an attorney acts for joint clients, no privilege can be invoked in a suit between the two parties. [1991
219
Who is the holder of the doctor-patient privilege?Does the doctor have any duty under this privilege?
Rule 1172: The holder of the doctor-patient privilege is the patient, but the doctor is under a duty to assert the privilege on behalf of the patient if the patient or his duly authorized representative is not present to assert it
(e.g. if the patient's attorney is sitting in court, the assertion of the doctor-patient privilege by the patient‚attorney is the best way to exclude a privileged statement made by the patient). [1992
220
Under what circumstance will the physician-patient privilage not apply?
Rule 1173: The physician-patient privilege does not apply to non-medical matters. [1991]
221
Is a mental patient telling his nurse that he is going to kill someone privileged?
Rule 1174: A mental patient telling his nurse that he is going to kill someone is not privileged. [1991
222
When may a person invoke the privilege against self-incrimination? The privilege is available only where the consequence of the incriminating statement is ________?
Rule 1175: A person may invoke the privilege against self-incrimination in any civil or criminal proceeding, whether formal or informal
(e.g. grand jury proceedings, trials, administrative hearings) the privilege is available only where the possible consequence of the incriminating statement is criminal prosecution it may not be invoked to shield against personal disgrace, loss of employment, or civil confinement (e.g. under cross examination in a civil action for negligence, a witness may properly refuse to answer a question about his personal use of drugs if doing so could subject the witness to criminal liability). [2011]
223
evidence of liability insurance cannot be used substantively to prove ______ but it can be used to prove _____ ?
Rule 1182: Under the FRE, evidence of liability insurance cannot be used substantively to prove negligence or other wrongful conduct, BUT where the evidence of liability insurance is offered for some other purpose, such as impeachment for bias as a relevant, non-negligence purpose, it is admissible (e.g. if an insurance investigator testifies in an automobile accident case on behalf of the defendant, the plaintiff may cross examine and impeach the investigator by showing that he is unemployed by the defendant-driver's insurer and is thus biased though the bias is established by evidence of liability insurance, the evidence is admissible for the impeachment purpose) [2011]
224
subsequent remedial measuresis not admissible to prove _______ BUT it may be admited to show __________
Rule 1184: When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence fault, the existence of a defect in a product or its design, or a need for a warning or instruction,BUT the court may admit this evidence for another purpose, such as impeachment or if disputed proving ownership, control, or the feasibility of precautionary measures (e.g. if D offers evidence that it would be impossible or unreasonably expensive to make a particular change that would prevent similar accidents, proof of subsequent remedial measures is admissible if it tends to refute the testimony, BUT if D only says that the conditions were reasonably safe at the time of the accident, and does not claim they could not have been made safer, then feasibility is not being contested and the door is not opened for P to prove that remedial measures were later implemented). This feasibility exception is rarely applied because it is foolhardy for a defendant to argue that a suggested change was prohibitively expensive or beyond the state of the art when the change was in fact made after the accident. [2019]
225
An offer to pay medical expenses is inadmissible for proving culpable conduct, BUT this protection only applies to _____ and does NOT apply to _____?
An offer to pay medical expenses is inadmissible for proving culpable conduct, BUT this protection only applies to the actual offer or payment of medical expenses and does NOT apply to admissions made by a party in the course of the offer (e.g. if D says to P I'm sorry my dog bit you, please allow me to pay for your hospital bills only D's offer to pay the hospital bill is protected). [2019]
226
If a claim is disputed as to validity or amount, statements or admissions made in compromise negotiations are inadmissible to prove ____ but can be used to show ______
Rule 1190: If a claim is disputed as to validity or amount, statements or admissions made in compromise negotiations are inadmissible to prove liability (but can be used to show bias, prejudice, negative undue delay or obstruction) in order to encourage settlements (which are less likely to occur if the parties are guarded in their negotiations). [2006]
227
When does the best evidence rule apply?
Rule 1198: A witness may testify about things about which he or she has personal knowledge, and if the fact to be proved has an existence independent of any writing/ recording, there is no need to produce the original writing/ recording or account for its absence
the best evidence rule applies only if the testimony is derived from the writing itself, not from personal knowledge (e.g. if a government agent overhears a conversation between a defendant and his conspirators about a planned robbery, the agent‚in-court testimony relating the conversation is admissible under the hearsay exception of admissions of a co- conspirator, BUT the availability of an audiotape of the conversation does not trigger the best evidence rule to bar the agent‚testimony since he did not depend on the audiotape for his knowledge). [2011]
228
Under theBest Evidence Rule, audio recordings of a party are admissible only where
Under the Best Evidence Rule, audio recordings of a party are admissible only where there is a need to prove the content of the recording, so if a witness has independent knowledge (e.g. he was present while making the recording and heard the party‚statements), the audio recordings are NOT admissible, but the witness‚testimony of the party‚statements are still admissible as admissions of a party-opponent. [2008]
229
When can a summary of voluminous writings/recordings or photos be admitted into evidence? (3 req)
Rule 1209: If writings, recordings, or photographs to be admitted into evidence are so voluminous they cant be conveniently examined in court, summaries are admissible in the form of charts, summaries, or calculations, provided
(1) both the original and summary are separately authenticated
(2) giving notice to the parties and
(3) making the originals or duplicates available for examination or copying (or both) by other parties at a reasonable time and place
(e.g. a graph based on 10 years of daily weather data qualifies as a proper voluminous records summary because it is a summary of all the data which is sufficiently numerous as to make comprehension difficult and inconvenient). [2019]
230
What is the best evidence rule?
The Best Evidence Rule requires a party seeking to prove the contents of a writing, recording, or photograph to produce the original (or a duplicate) or account for its non production (e.g. a clay model does not fall under the Best Evidence Rule). [1991]
231
May a witness refer to documents without providing the documents?
Rule 1208: A witness may refer to collateral documents without providing the documents themselves. [1991]
232
What should the court do if we have an original document and a copy that is different?
: If there is an original document and a copy that is different, the court should admit both documents and let the jury decide which one is authentic. [1991]
233
What should the court do if there is a question about the authenticity of an original document and only a COPY of the document is offered for admission,
: If there is a question about the authenticity of an original document and only a copy is offered for admission, the copy is NOT admissible. [1991]
234
in proving the terms of a writing, where the terms are material, the original must be produced unless what?
Rule 1204: Under the Best Evidence Rule, in proving the terms of a writing, where the terms are material, the original must be produced unless it is unavailable for some other reason than fault of the proponent. [1991
235
A witness testimony about writing a letter is admissible without production of the letter or the showing of its unavailability BECAUSE?
Rule 1202: A witness‚testimony about writing a letter is admissible without production of the letter or the showing of its unavailability (the letter is not the best evidence because the testimony is not about the contents of the letter). [1992]
236
Testimony about the contents of a letter should be admitted in evidence only if?
Rule 1201: Testimony about the contents of a letter should be admitted in evidence only if the judge finds that the original letter is unavailable. [1992]
237
If an item is lost and therefore cannot be introduced into evidence, the plaintiff can still testify as to the condition of the item if what?
Rule 1200: If an item is lost and therefore cannot be introduced into evidence, the plaintiff can still testify as to the condition of the item if the plaintiff has personal knowledge of it. [1998
238
when are offers to compromise inadmissible?
Rule 1197: Offers to compromise are only inadmissible if the claim is in dispute. [1991]
239
An offer to pay medical expenses made IMMEDIATELY after an accident is _______?
Rule 1196: An offer to pay medical expenses made IMMEDIATELY after an accident is inadmissible as an offer to pay medical expenses. [1991]
240
What portion of the defendants statement is inadmissible in an offer of compromise?What portion of the defendants statement is inadmissible in an offer to pay medical expenses?
Rule 1195:
If a defendant makes an offer of compromise, all of the defendant's statements are inadmissible and excluded
but if a defendant offers to pay medical expenses, only the statement about medical expenses is excluded. [1991]
241
What is the policy reason for offers to compromise being inadmissible?
Rule 1192: Offers of compromise are inadmissible, because the policy of the law is to encourage settlement negotiations. [1992]
242
Any evidence of furnishing, or offering or promising to pay medical, hospital, or similar expenses occasioned by an injury is _______?
Rule 1191: Any evidence of furnishing, or offering or promising to pay medical, hospital, or similar expenses occasioned by an injury is not admissible. [1998
243
Subsequent remedial measures are admissible to rebut a defendant‚ claim that he did not _______?
Rule 1188: Subsequent remedial measures are admissible to rebut a defendant‚claim that he did not own or control property involved in an accident where he subsequently repaired the property. [1992]
244
Subsequent remedial measuresare admissible to establish that a defendant ____________
Rule 1187: Subsequent remedial measures are admissible to establish that a defendant owned or controlled a property involved in an accident. [1992]
245
Evidence of remedial measures is inadmissible to establish D's negligence or a product defectiveness, because
Rule 1186: Evidence of remedial measures is inadmissible to establish D's negligence or a product defectiveness, because its admission would discourage the taking of such remedial measures. [1992]
246
What is evidence of an insurance policy admissible to prove?
Rule 1183: Evidence of an insurance policy is admissible to prove the defendant owned or had responsibility for the insured property. [1998]
247
Will a statement made to a priest at a social event be privileged?
Rule 1181: A statement made to a priest at a social event is not privileged because the statement is not within the scope of the privilege. [1991]
248
When can a witness invoke the 5th amendment ?
Rule 1180: A witness can invoke the 5th Amendment and remain silent if the judge believes there is some reasonable possibility that the witness will incriminate herself. [1991]
249
Is a grand jury hearing privileged?
Rule 1179: In a Grand Jury Hearing, privileged information cannot be disclosed absent a waiver of the privilege. [1991]
250
May a dead person invoke a privilege?
Rule 1178: A dead person cannot invoke a privilege. [1991]
251
If a witness refuses to answer at cross examination on the ground of self- incrimination, the judge may ______ ?
Rule 1177: If a witness refuses to answer at cross examination on the ground of self- incrimination, the judge may order the witness to testify or have the direct testimony stricken because the invocation of the privilege prevents adequate cross examination. [1992]
252
Rule 1034: A statement that someone was drunk the night of a car accident is admissible as
a statement regarding a condition that person observed, made while the person was observing it. [1992]
