Evidence

Question 1

Character Evidence in a Civil Case

Answer 1

Character evidence is admissible if character is directly at issue in the case.

Question 2

Exclusion of Relevant Evidence under FRE 403

Answer 2

Misleads the jury;
Cumulative evidence;
Evidence that causes unnecessary delay;
Confusion of the issues;
Unfair prejudice.

Question 3

Admissibility of Prior Convictions

Answer 3

A felony conviction is admissible to impeach any witness unless the risk of prejudice substantially outweighs the probative value.

Question 4

Confidential Marital Communications v. Spousal Immunity

Answer 4

Under the confidential marital communications privilege, a communication made between spouses while they were married is privileged if the communication was made in reliance on the sanctity of marriage. The privilege is held by both spouses and applies in both civil and criminal cases.

Under the majority view, either spouse may assert the privilege and refuse to testify about the communication or prevent the other spouse from testifying. The time for asserting this privilege extends beyond the termination of the marriage.

In a criminal case, the witness-spouse holds the spousal immunity privilege and may choose to testify, but cannot be compelled to do so. However, a spouse is prohibited from testifying as to confidential marital communications, even in this case.

Question 5

Rebuttable Presumption

Answer 5

A presumption is a conclusion that the trier of fact is required to draw upon a party’s proof of an underlying fact or set of facts (i.e., basic facts). A rebuttable presumption shifts the burden of production, but not the burden of persuasion, to the opposing party. However, a rebuttable presumption may be overcome by evidence to the contrary. If no contrary evidence is introduced, the judge must instruct the jury to accept the presumption. If contrary evidence is introduced, then the presumption no longer has a preclusive effect. At that point, the jury may, but is not required to, draw the conclusion from the basic facts. Thus, the jury may determine the weight and credibility of all of the evidence.

Question 6

Best Evidence Rule

Answer 6

The best evidence rule applies only when the contents of the document are at issue or a witness is relying on the contents of the document when testifying.

The contents of a document are at issue when the document is used as proof of the happening of an event, the document has a legal effect, or the witness is testifying based on facts learned from the writing as opposed to based on personal knowledge.

Question 7

Relevance

Answer 7

All evidence must be relevant to be admissible. Evidence is relevant if it has any tendency to make a material fact more or less probable than it would be without the evidence.

Question 8

Expert Witness Qualification

Answer 8

Before an expert witness may testify, the court must first determine that the subject matter of the witness’s testimony is reliable and relevant and thereafter must determine whether the expert is qualified. With regard to the particular procedure or technique used by the expert, the court determines whether it has reached a scientific stage of verifiable certainty, based upon evidence, expert testimony, treatises, or the rationale of cases in other jurisdictions.