Evidence

Question 1

Logical Relevance

Answer 1

Evidence is relevant if it tends to make the existence of any
fact of consequence more or less probable than it would be
without the evidence

Question 2

Legal Relevance

Answer 2

A court may exclude logically relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, undue delay, or waste of time
• Often arises with evidence that is:
» Emotionally disturbing
» Repetitive or confusing
» Admissible for one purpose but inadmissible for another (court excludes to avoid risk of jury using evidence for the improper purpose)

Question 3

Liability Insurance

Answer 3

Evidence of liability insurance is not admissible to prove fault or a party’s ability to pay damages
• Evidence of insurance is admissible to prove anything else (e.g., ownership, control, etc.)

Question 4

Subsequent Remedial Measures

Answer 4

Evidence of repairs or other
remedial measures taken after an injury is inadmissible to prove fault, defect, or inadequate warning
• Remedial measures evidence is admissible to rebut a defense that there was no feasible precaution

Question 5

Offers to Settle or Plea Bargains

Answer 5

Civil cases — compromises, offers to settle, or related
statements are inadmissible to prove liability or fault
» Does not include statements made before the claim or
threat of litigation was asserted
• Criminal cases — pleas, offers to plea, and related statements are inadmissible to prove guilt

Question 6

Offers to Pay Medical Expenses

Answer 6

Inadmissible when offered to prove liability for injuries
• Related statements are admissible (distinguish this from
settlement offers)
• An offer to pay medical expenses in exchange for releasing liability is inadmissible — it is considered a settlement offer, not an offer to pay medical expenses

Question 7

Similar Occurrences

Answer 7

Evidence of similar occurrences (i.e., similar events occurring
outside the present litigation) is usually inadmissible, but can be
relevant if the similar occurrences are used for non-propensity purposes

Question 8

Similar Occurrences Admissible If:

Answer 8

1) Causation
2) Prior accidents demonstrating:
a) A pattern of fraudulent claims
b) Pre-existing conditions
3) Intent or absence of mistake
4) To rebut a defense of impossibility
5) Value (similar transactions can establish value, if disputed)
6) Industry custom (to prove standard of care)

Question 9

Habit

Answer 9

Habit of a person to act in a certain way is relevant and
admissible to show that the person acted in conformity with
that habit on the occasion in question
• Conduct must be highly specific and frequently repeated
(i.e., a person’s regular response to a specific set of circumstances)
• Look for regular, instinctive, habitual conduct

Question 10

Character Evidence

Answer 10

Evidence of a person’s character is generally inadmissible to prove they acted in conformity with that character on a given
occasion

Question 11

Character At Issue

Answer 11

Character evidence is admissible if character is an issue in the case
» E.g., defamation, child custody disputes
» Character can be proved through opinion, reputation,
or specific instances of conduct

Question 12

Prior Acts of Sexual Assault or Child Molestation Cases

Answer 12

In cases arising from sexual assault or child molestation, D’s prior acts of sexual assault or molestation are admissible to prove D’s conduct in the present case

Question 13

D’s Entrance of Character Evidence in Crim

Answer 13

In criminal cases, D may introduce evidence of pertinent
character, which the prosecution (P) may rebut; with limited exceptions, P may not first introduce evidence of D’s character

Question 14

Response to D Opening Door

Answer 14

P’s rebuttal — once D “opens the door,” P may rebut by:
» Cross-ex of D’s character W — including knowledge of specific instances of D’s misconduct or prior arrests
» Calling other Ws to testify to D’s bad character — limited to D’s character for the trait in question

Question 15

Prosecution of Character Evidence

Answer 15

May not initiate introduction of character evidence about D (i.e., can’t “open the door”), except:
1) Sexual assault/child molestation — P can offer evidence of D’s other acts of sexual assault or child molestation
2) If D first offers evidence of victim’s character — P can
offer evidence that D has the same character trait
• Direct — reputation and opinion evidence is admissible;
evidence of specific instances is inadmissible
• Cross — reputation, opinion, and specific instances are
admissible

Question 16

Evidence of Victim Trait

Answer 16

Only D can “open the door” by introducing evidence of victim’s
character to prove conduct
• Once D offers evidence of victim’s character, prosecution
may then rebut
• Homicide cases — D can offer evidence of the victim’s
character for violence to show that the victim attacked first
» Prosecution may then rebut by offering evidence of victim’s character for peacefulness

Question 17

Rape Shield Civil

Answer 17

Reputation, opinion, and specific instances of victim’s character are admissible if:
» Probative value substantially outweighs unfair prejudice, and
» In the case of reputation evidence, P puts her
reputation at issue in some way

Question 18

Rape Shield Criminal

Answer 18

Reputation and opinion evidence of victim is never admissible
• Specific instances of victim’s conduct are only admissible to
show:
a) A third party is the source of injury or DNA evidence, or
b) Prior acts of consensual intercourse between D and the
alleged victim

Question 19

Prior Bad Acts

Answer 19

In civil and criminal cases, specific instances of D’s bad conduct is inadmissible to prove character (i.e., action in conformity therewith), but admissible to prove anything else
• Exception — in sexual assault or molestation cases, evidence of D’s prior acts of sexual assault or molestation is admissible

Question 20

Exceptions to Prior Bad Acts

Answer 20

Prior acts evidence is admissible to prove:

1) Motive
2) Intent
3) Mistake (i.e., absence of mistake, knowledge)
4) Identity (extremely similar or unique prior act)
5) Common plan or scheme

Question 21

Methods of Impeachment

Answer 21

1) Contradiction
2) Prior inconsistent statement (PIS)
3) Bias or interest
4) Sensory deficiencies
» E.g., W’s senses were incapable of producing the
perceptions testified to
5) Reputation and/or opinion for untruthfulness
» Admissible to impeach W’s veracity by use of extrinsic evidence
6) Prior acts of misconduct
» Extrinsic evidence is prohibited
7) Prior criminal conviction

Question 22

Extrinsic Evidence

Answer 22

Any evidence other than W’s testimony at the current proceeding
• Includes evidence of prior inconsistent statements made out of court

Question 23

Collateral Matter

Answer 23

A fact not material to issues in the case
• Says nothing about W’s credibility; only used to contradict W
• To determine if evidence is collateral, ask: would it be
material to the given issue if not for W’s contrary assertion?
» If not, it is likely collateral

Question 24

Impeachment by Prior Contradiction

Answer 24

Any evidence may be used to show a W has made contradictory statements on material issues

Question 25

Impeachment by Prior Inconsistent Statement

Answer 25

W’s prior inconsistent statements may be used to impeach W’s present testimony • Establishing PIS — may be established through cross-exam or extrinsic evidence » Extrinsic evidence is inadmissible if the PIS relates to a collateral matter • Foundation requirement — W must have an opportunity to explain or deny the statement

Question 26

Impeachment by Bias

Answer 26

Evidence of W’s bias or interest in the outcome of a suit may be used to impeach W (because it tends to show motive to lie)

Question 27

Impeachment by Untruthfulness

Answer 27

Impeachment by prior instances of misconduct • W may be questioned on cross-exam about any prior misconduct probative of truthfulness (i.e., lying or deceit) • Arrests ≠ misconduct — must be an act of lying • No extrinsic evidence permitted — W may only be asked about prior misconduct; the questioning attorney must accept W’s answer • See card 15 — Impeachment by Prior Convictions Opinion or reputation for untruthfulness • W may be impeached by testimony describing her reputation for untruthfulness in the community

Question 28

Impeachment by Prior Conviction

Answer 28

Felonies — admissible if: 1) Punishable by death or more than 1-year imprisonment, and 2) Survives 403 balancing Misdemeanors — inadmissible unless it involves dishonesty

Question 29

Impeachment by Prior Conviction involving Dishonesty

Answer 29

Always admissible — 403 balancing inapplicable (note — this is a rare exception to 403) • Includes felonies and misdemeanors Acts of dishonesty — must be a crime requiring deceit as an element (e.g., perjury, fraud)

Question 30

Convictions over 10 years old

Answer 30

Not admissible, unless: • Probative value substantially outweighs unfair prejudice (note — this is inverse of 403 balancing)

Question 31

Witness Competency

Answer 31

1) Personal knowledge — W’s testimony must be based on her own perceptions (e.g., what W saw or heard) 2) Present recollection — W must testify from present memory, not from a record of matters the W once knew but has since forgotten 3) Communication — W must be able to relay her perceptions, either directly or through an interpreter 4) Sincerity — W must take an oath or affirm to tell the truth

Question 32

Recollection Refreshed

Answer 32

Use of documents to refresh W’s memory during testimony • Anything can be used to refresh W’s memory » W cannot read aloud from a document, but can look at it briefly, then continue testimony unassisted • Opponent may inspect and offer into evidence anything used to refresh W’s memory

Question 33

Recorded Recollection HS

Answer 33

1) W once had personal knowledge of facts comprising the recorded recollection 2) Document was written or adopted by W 3) W wrote or adopted the document when its contents were fresh in W’s memory 4) W’s memory is insufficient to testify at trial as to the document’s contents » I.e., present recollection refreshed was ineffective 5) The document was accurate at the time it was made

Question 34

Types of Question Objections

Answer 34

``` Calls for Narrative Leading Assumes Facts Not in Evidence Argumentative Compound Beyond Scope of Direct Non-responsive ```

Question 35

Leading Questions

Answer 35

Question itself suggests the answer; improper on direct unless W is hostile or an adverse party; leading questions are acceptable on cross-exam

Question 36

Lay Opinion Testimony

Answer 36

1) Opinion is rationally based on W’s perception 2) Opinion is helpful to the trier of fact » Helpful = gives the jury more information regarding W’s perception than the perception alone • Legal conclusions are not helpful and thus inadmissible 3) Not based on scientific, technical, or other specialized knowledge (i.e., not in the realm of expert opinion)

Question 37

Expert Opinion Testimony

Answer 37

1) Helpful — expert opinion must be helpful to the trier of fact » I.e., expert uses specialized knowledge to reach conclusions an average juror would not reach alone 2) Qualified — expert must possess special knowledge, skill, experience, training, or education 3) Reasonable certainty — expert must believe in her opinion to a reasonable degree of certainty 4) Proper factual basis — opinion must be based on facts » Expert may base opinion on admitted evidence, personal knowledge, or inadmissible evidence properly relied upon (e.g., data, other testimony, experience) 5) Reliable principals reasonably relied upon

Question 38

Scope of Expert Opinion

Answer 38

Experts may render an opinion on any ultimate legal issues • Exception — experts cannot give opinion on D’s mental state in a criminal trial if it is an element of a crime or defense

Question 39

Expert Opinion Based on Scientific Evidence

Answer 39

Under the Daubert/Kumho standard, expert opinion must be based on scientific evidence that is: 1) Peer tested and capable of retesting 2) Published 3) Has a low error rate 4) Reasonably accepted in the field of study

Question 40

Types of Privilege

Answer 40

1) Attorney-client 2) Doctor-patient 3) Psychotherapist/social worker-patient 4) Spousal 5) Marital communications

Question 41

Attorney-Client Privilege

Answer 41

Communications between an attorney and client or client’s representatives are privileged in all proceedings unless waived • Organizational clients — privilege applies to any employee authorized to speak to the attorney To be protected, a communication must be: 1) Intended to be confidential, and 2) Made to facilitate legal services

Question 42

Exceptions to Attorney-Client Privilege

Answer 42

1) Crimes of fraud — privilege does not apply if a client seeks legal services to further a fraud or similar crime 2) Attorney defending a malpractice claim — privilege does not apply if the communication relates to an alleged breach of the attorney’s duty 3) Matters of common interest — privilege does not apply in suits between two parties represented by the same attorney, or where two or more parties consult the same attorney on a matter of common interest (e.g., divorce)

Question 43

Psychotherapist-Patient Privilege

Answer 43

Communication between a psychotherapist or social worker and her client is privileged in all civil or criminal cases if: 1) Client intends the communication to be confidential, and 2) The communication is made to facilitate therapy or social work • A patient/client may waive the privilege

Question 44

Doctor-Patient Privilege

Answer 44

There is no doctor-patient privilege under the federal rules, but it exists in almost all states • To be protected, the communication must be: 1) Made for purposes of obtaining diagnosis or treatment 2) Pertinent to a diagnosis or treatment 3) Intended by the patient to be confidential

Question 45

Exceptions to Doctor-Patient Privilege

Answer 45

1) Patient’s condition is a legal issue (e.g., personal injury) 2) Physician’s services were sought to aid in a crime, fraud, or to escape capture 3) Cases involving a breach of duty arising out of the doctor-patient privilege (e.g., malpractice)

Question 46

Spousal Testimonial Privilege

Answer 46

Criminal cases only • W may refuse to testify against a spouse during marriage • Only W may invoke the privilege (i.e., D cannot prevent a willing spouse from testifying against him)

Question 47

Marital Communications Privilege

Answer 47

Civil and criminal • Confidential communications made during a marriage are privileged in any later proceeding » Applies even if spouses divorce after the confidential communication was made • Either spouse may invoke the privilege

Question 48

Exceptions to Marital Comm Privilege

Answer 48

1) Suits between spouses 2) Suits in which one spouse is charged with a crime or tort against children 3) Suits in which spouses are co-defendants

Question 49

Authentication

Answer 49

Every item of physical evidence must be authenticated, i.e., the proponent must show that the evidence is what he claims it is

Question 50

Proving Authentication

Answer 50

May be proved by any means | » Low burden — authentication must only be sufficient to sustain the finding

Question 51

Self Authentication

Answer 51

Writings that contain identifying information do not need separate authentication

Question 52

Ancient Documents

Answer 52

Automatically authenticated if: 1) 20 or more years old 2) Does not present any irregularities on its face 3) Found in a place of natural custody

Question 53

Photos Authentication

Answer 53

Must have personal knowledge to authenticate

Question 54

Non-unique Items

Answer 54

Item facially indistinguishable from others of its kind (e.g., bag of white powder, generic syringe) » Proponent must establish “chain of custody,” i.e., that the proffered evidence is the same item it is claimed to be (will be admissible absent large breaks in chain)

Question 55

Best Evidence Rule

Answer 55

If evidence is offered to prove the contents of a writing, an original document must be used unless it is unavailable • “Writing” = any tangible collection of data (e.g., videos, documents, photos, books, computer drives, x-rays) • Applicability — rule only applies if evidence is offered to prove its contents (e.g., W’s knowledge is obtained from a writing, case turns on contents of a legal instrument, etc.)

Question 56

BER Sufficient Writings

Answer 56

1) Originals 2) Duplicates — must be a machine or carbon copy » Admissible unless there is a genuine question as to the authenticity of the original itself 3) Testimony regarding contents » Admissible if the original is lost or destroyed, unless done so in bad faith by the proponent of testimony

Question 57

Completeness Doctrine

Answer 57

If part of a writing or recorded statement is introduced into evidence, an adverse party may compel introduction of other evidence that should be fairly considered with it at that time • Most often applies to omitted parts of the introduced writing or recording • Otherwise inadmissible evidence can be admitted under the completeness doctrine if necessary to avoid confusion or an incorrect impression created by the original evidence

Question 58

Judicial Notice

Answer 58

A court may recognize a fact as true without formal presentation of evidence, either on its own or upon formal request of a party

Question 59

Judicially Noticeable Facts

Answer 59

Facts that are: 1) Capable of verification by a source with unquestionable accuracy (e.g., calendar, almanac) 2) Generally known within the jurisdiction

Question 60

Effect of Judicially Noticed Facts

Answer 60

Civil — jury must take judicially noticed facts as conclusive • Criminal — jury may take judicially noticed facts as conclusive, but is not required to

Question 61

Hearsay

Answer 61

An out-of-court statement offered to prove the truth of the matter asserted • Generally inadmissible, subject to exceptions and exemptions • Statement — an oral or written assertion, or nonverbal conduct intended as an assertion » Non-human assertions are not statements (e.g., test results, radar gun reading, dog barking)

Question 62

Non-Hearsay

Answer 62

Out-of-court statements are not hearsay if offered to prove | anything other than the truth of the matter they assert

Question 63

Common Non-Hearsay

Answer 63

Statements of independent legal significance Statements offered to show their effect on the listener Statements offered to show speaker’s knowledge Statements offered to show state of mind

Question 64

Independent Legal Significance

Answer 64

» Statements containing legally operative words, such that the statement itself is a legal factor in the case » Common with defamation, contract, adverse possession cases » E.g., in a contract dispute, A testifies that B told him it was a “done deal”

Question 65

Effect on Listener

Answer 65

E.g., comparative negligence claim — statement by third party warning P of the injury-causing condition

Question 66

Show Knowledge Hearsay

Answer 66

E.g., D charged with conspiracy, claims he did not know about the crime; an out-of-court statement indicating D had been told about specifics of the crime will be admissible, indicating he knew it was being planned

Question 67

State of Mind Non-Hearsay

Answer 67

» E.g., statement by D before committing a crime indicating he might have been insane

Question 68

4 Hearsay Exemptions

Answer 68

Party Admission Prior Inconsistent Statement under Oath Prior Consistent Statement Prior Identification

Question 69

Party Admissions

Answer 69

Out-of-court statements by a party are admissible if offered against that party

Question 70

Adoptive Admissions

Answer 70

Acquiescence in another’s statement • Silence can be an admission if both: 1) Party heard, understood, and was capable of responding to a statement, and 2) A reasonable person in the party’s position would have responded

Question 71

Vicarious Admissions

Answer 71

Made by an agent or employee

Question 72

Co-Conspirator Admissions

Answer 72

Co-conspirator’s statements are admissible against D if made in furtherance of the conspiracy

Question 73

Prior Consistent Statement

Answer 73

If offered to rebut a charge of | fabrication, improper bias, or improper motive

Question 74

Unavailable Exceptions HS

Answer 74

1) Former testimony exception* 2) Statements against interest* 3) Dying declarations* 4) Statements of personal or family history 5) Statements offered against party procuring declarant’s unavailability

Question 75

Availability Immaterial Exceptions HS

Answer 75

1) Present state of mind* 2) Excited utterances* 3) Present sense impressions* 4) Physical condition (for medical diagnosis or treatment)* 5) Past recollection recorded* 6) Business records* 7) Public records or reports* 8) Judgments and prior convictions* 9) Ancient documents 10) Documents affecting property interests 11) Learned treatises 12) Family records 13) Market reports

Question 76

HS Unavailability

Answer 76

A declarant is unavailable if: a) Privilege — exempt from testifying due to a privilege b) Death or physical/mental sickness c) Refusal to testify despite a court order d) Lack of memory e) Absent — beyond reach of court’s subpoena power

Question 77

Former Testimony

Answer 77

1) Declarant is currently unavailable 2) Declarant’s prior testimony was given under oath 3) Party against whom testimony is now offered was either: a) A party in the previous action and had an opportunity to cross-examine declarant b) A predecessor in interest of a party in the previous action, in which there was an opportunity to cross-examine declarant and a similar motive for doing so

Question 78

Statement Against Interest

Answer 78

1) Declarant is currently unavailable 2) Statement was contrary to declarant’s pecuniary, proprietary, or penal interest when made 3) A reasonable person would not have made the statement unless he believed it to be true

Question 79

Dying Declaration

Answer 79

1) Declarant is currently unavailable 2) The out-of-court statement was made under the belief of impending death 3) The statement was made regarding the cause or circumstances surrounding the belief of impending death • Death of declarant is not required

Question 80

Present Sense Impression

Answer 80

A hearsay statement is admissible if it: 1) Describes or explains an event or condition, and 2) Is made contemporaneously with the event or immediately thereafter

Question 81

Excited Utterance

Answer 81

A hearsay statement is admissible if it: 1) Relates to a startling or exciting event or condition, and 2) Was made while the declarant was under the stress or excitement of the event

Question 82

Then-Existing State of Mind

Answer 82

Hearsay statements are admissible if they concern a declarant’s state of mind, emotion, sensation, or physical condition existing at the time the statement was made

Question 83

Statement for Diagnosis or Treatment

Answer 83

1) Statement must be made to medical personnel » Medical personnel: anyone involved in treatment or diagnosis; not necessarily a doctor 2) Statement must be pertinent to assisting in the diagnosis or treatment of a condition » Related statements about an injury-causing event are usually inadmissible

Question 84

Business Records

Answer 84

1) A record or transaction made or recorded by a business » E.g., transactions, reports, patient records 2) Made in the regular course of business 3) Made at or near the time of the matters described 4) Made by any employee with personal knowledge of the facts recorded 5) Authenticated or certified in writing

Question 85

Public Records

Answer 85

1) Describes the activities of a public office or agency 2) Describes either: a) Matters observed pursuant to a duty imposed by law, or b) Factual findings resulting from an investigation made pursuant to authority granted by law 3) Made within the scope of duty of the public employee-author and made at or near the time of the event

Question 86

Learned Treaties

Answer 86

Learned treatises are accepted authority in a given field » Established as reliable and accepted authority by testimony, admission, or judicial notice

Question 87

Family Records

Answer 87

Statements of fact found in family keepsakes, e.g., jewelry engravings, genealogies

Question 88

Confrontation Clause

Answer 88

1) The declarant is currently unavailable 2) D had no prior opportunity to cross-examine the declarant about the statement at the time it was made 3) The statement is testimonial

Question 89

Testimonial Statement

Answer 89

Prior statements made during court proceedings | • Statements made in furtherance of a police investigation

Question 90

Co-Defendant Statements

Answer 90

The Confrontation Clause bars admission of an out-of-court statement by a non-testifying co-D if the statement expressly implicates another D

Question 91

Exceptions to Co-Defendant Statements

Answer 91

a) Declarant co-D testifies — Confrontation Clause does not bar an out-of-court statement if the declarant co-D testifies and is subject to cross-exam b) Redaction — portions of the co-D’s testimony referring to the non-declarant D are redacted » Redaction is not effective unless it clearly makes the non-declarant co-D’s identity anonymous c) Coerced confession — the statement is used to rebut a charge of a coerced confession