Evidence

Question 1

What do the Federal Rules of Evidence (FRE) apply to?

Answer 1

Civil, criminal, district court, appeals, bankruptcy, etc.

DOES NOT APPLY TO: Grand jury proceedings, criminal procedures re search warrants, preliminary examinations, rendition, extradition, bail, sentencing, or probation

Question 2

What are the roles of the judge and the jury?

Answer 2

The JURY is the TRIER OF FACT.

The JUDGE is the TRIER OF LAW (and the trier of fact in a bench trial).

Question 3

Who determines the weight and accredability assigned to pieces of evidence?

Answer 3

The jury.

Question 4

T/F - The judge determines what evidence the jury can weigh and evaluate.

Answer 4

True

Question 5

T/F - The jury determines if a witness is qualified and if any privileges apply.

Answer 5

False. That’s the judge.

Question 6

T/F - The jury determines the competency of a witness and of evidence.

Answer 6

False. That’s the judge.

Example: Judge may determine an eye witness was not competent because the witness says he wasn’t wearing his glasses at the time.

Question 7

When can a party challenge an evidentiary ruling?

Answer 7

IF:

1) The error affects a substantial right of a party, AND
2) The parties notifies the judge of the error.

Question 8

What are the two ways to call the court’s attention to an error?

Answer 8

1) Objection or Motion to Strike - Used as a preventative measure if evidence is being admitted. Counsel MUST PROVIDE THE SPECIFIC GROUND FOR THE OBJECTION.
2) Offer of Proof - If evidence is excluded, counsel must preserve the potential evidence for the appellate court. Counsel must explain the RELEVANCE and the ADMISSIBILITY of the testimony.

Question 9

What are the consequences of a definitive ruling on an objection or offer of proof?

Answer 9

Once a judge has made a definitive ruling, there is no need to renew the objection.

Question 10

What happens if there is a challenge and no party objects?

Answer 10

1) An attorney need not make an objection and may still appeal IF THE PLAIN ERROR RULE APPLIES. This is when the error is SO OBVIOUS that an objection is NOT NECESSARY.

This is usually the case when a substantial right is affected.

Question 11

T/F - Evidence may be let in for limited admissibility.

Answer 11

True.

Example - to impeach a witness.

Question 12

What is the Rule of Completeness?

Answer 12

Applies when a party introduces a writing or recorded statement in part. An ADVERSE PARTY MAY COMPEL the introduction of an OMITTED PORTION of the writing or statement (usually based on fairness). They may wait until cross-examination to do so.

Question 13

What is Judicial Notice?

Answer 13

This is the court’s acceptance of a FACT AS TRUE WITHOUT REQUIRING FORMAL PROOF.

ONLY APPLIES TO ADJUDICATIVE FACTS (NOT LEGISLATIVE FACTS).

Adjudicative fact - The date of the cause of action was a specific day of the week (Friday).

Legislative fact - Whether a privilege applies or not (this must be proved).

Question 14

What makes an adjudicative fact?

Answer 14

Multiple witness testimony is NOT enough. These are facts that CANNOT be subject to reasonable dispute. They must be GENERALLY KNOWN, although not by everyone. The fact must be accurately and readily determinable. Further, it must come from a source that cannot be reasonably questioned (a calendar).

Question 15

T/F - A judge can make judicial notice based solely on his or her own personal knowledge.

Answer 15

False.

Question 16

T/F - A party can ask a court to judicially notice a fact at anytime during the trial OR on appeal.

Answer 16

True

Question 17

How does one go about getting judicial notice?

Answer 17

Usually upon motion by a party, BUT a court can take judicial notice on its own initiative.

The Court may take judicial notice if:

1) It is requested; and
2) Necessary information is given to the court.

EXCEPTION: Court may NOT TAKE JUDICIAL NOTICE AGAINST A CRIMINAL DEFENDANT FOR THE FIRST TIME ON APPEAL.

Question 18

T/F - An opposing party has a right to object to judicial notice.

Answer 18

True. The opposing party has the right to object to judicial notice AND BE HEARD.

Question 19

What is the effect of judicial notice in criminal and civil cases?

Answer 19

CIVIL JURIES MUST accept that fact as true.

CRIMINAL JURIES MAY OR MAY NOT accept that fact as true.

Question 20

Explain the trial process.

Answer 20

1) Prosecution or plaintiff goes first and presents its case-in-chief.
2) Defendant then presents his case-in-chief.
3) After the defense rests, the prosecution or plaintiff gets to present rebuttal witnesses.
4) Judicial Control - A judge may question, OR EVEN CALL, a witness.

Question 21

What is the scope of examining a witness?

Answer 21

Two things:

1) The scope of direct; AND
2) Credibility of the witness - This is ALWAYS at issue.

Question 22

T/F - By answering preliminary questions, a defendant waives his 5th Amendment privilege.

Answer 22

False.

Question 23

What is a leading question? Is it allowed?

Answer 23

This is a question that suggests the answer in the question. The GENERAL RULE is that there can be NO LEADING QUESTIONS ON DIRECT (ex: “the color of the sky is blue, right? OR “is the color of the sky blue?” / must not imply the answer (ex: “what was the color of the sky that day?”)). To avoid leading, always use “who, what, when, where, and why.”

EXCEPTIONS to the general rule:

1) Foundational Questions (the name, birthday, occupation, spouse’s name, place, time, etc.).
2) A witness has trouble communicating (i.e., a child)
3) A witness is adverse or hostile on direct

GENERAL RULE #2 - There are NO RESTRICTIONS on the use of leading questions ON CROSS-EXAMINATION.

Question 24

What are improper questions?

Answer 24

1) Compound questions - questions that require multiple answers;
2) Questions that assume facts that are not in evidence (must lay the foundation first);
3) Argumentative questions - intended to provoke an argument;
4) Questions that call for a conclusion or opinion that the witness is not qualified to give; and
5) Repetitive questions - those that have been asked AND answered (NOTE: if opposing counsel asks a series of questions on direct, one is still able to explore that on cross).

Question 25

What does the rule on Exclusion of Witnesses say? Are there any exceptions?

Answer 25

Witnesses shall be excluded or sequestered:

1) Upon the motion of a party; OR
2) Upon the court’s own motion.

This PREVENTS CONTAMINATION.

EXCEPTIONS to who MAY NOT be excluded:

1) A party (remember that there is only one party in a criminal case (the defendant));
2) An officer or employee who is the designated representative of a corporation;
3) An advisory or expert witness; AND
4) Victims

Question 26

What are the two parts of the Burden of Proof? Explain each.

Answer 26

1) Burden of Production - The party with this burden must present enough evidence that the trier of fact COULD INFER that each alleged fact had been proved. This burden CAN BE SHIFTED.
2) Burden of Persuasion - Degree to which legally sufficient evidence must be presented. This burden CANNOT BE SHIFTED.

Question 27

The Burden of Production in a criminal case can be met by proving what?

Answer 27

Acronym: LOVID

1) Location;
2) Offense;
3) Venue;
4) Identification; and
5) Date of the alleged crime.

Question 28

What is the burden of persuasion in a civil case? In a criminal case?

Answer 28

Civil Cases - By a PREPONDERANCE OF THE EVIDENCE. More likely than not that a fact which the plaintiff is presenting is true.

EXCEPTION - In a FRAUD claim, you need CLEAR AND CONVINCING evidence.

Criminal Cases - BEYOND A REASONABLE DOUBT. PROSECUTION MUST PROVE EVERY ELEMENT OF EVERY COUNT BEYOND A REASONABLE DOUBT.

Question 29

What is a presumption? What are the two types of presumptions?

Answer 29

These are conclusions that the tier MUST DRAW regarding an underlying fact.

1) Rebuttable Presumptions - May be overcome if CONTRARY EVIDENCE is presented. If there is no contrary evidence, the judge MUST instruct the jury to accept the presumption. This SHIFTS THE BURDEN OF PRODUCTION to the other side, BUT NOT THE BURDEN OF PERSUASION.
2) Conclusive (irrebuttable) Presumptions - MAY NOT BE CHALLENGED - treated like a rule of substantive law.

Question 30

T/F - Federal courts generally apply federal rules of evidence. But, in diversity cases, state law governs the effect of presumptions under the Erie Doctrine.

Answer 30

True

Question 31

What does relevance mean with regard to evidence?

Answer 31

ALL relevant evidence is admissible, UNLESS it is excluded by:

1) Rule;
2) Law; OR
3) Constitutional Provision.

Question 32

What makes evidence “relevant?”

Answer 32

It must be BOTH PROBATIVE AND MATERIAL.

1) Probative - Evidence that has any TENDANCY to make a fact MORE OR LESS PROBABLE THAN it would be WITHOUT that evidence.
2) Material - The evidence is a fact of CONSEQUENCE in determining the action.

Question 33

How sufficient must evidence be?

Answer 33

Evidence need not prove by itself an element. A single piece of evidence must be INDIVIDUALLY RELEVANT, but does not need to be individually sufficient to prove the element.

“A brick is not a wall.” You can need to be a brick to get in.

Question 34

Compare direct v.s. circumstantial evidence.

Answer 34

Direct - Evidence that is identical to the factual proposition it is offered to prove (ex: an eye witness account).

Circumstantial - Evidence that INDIRECTLY proves a factual proposition through INFERENCE.

Question 35

T/F - A defendant can be convicted SOLELY upon circumstantial evidence.

Answer 35

True.

Question 36

Can circumstantial evidence be more probative than direct evidence?

Answer 36

Yes.

Question 37

What does rule 403 say about relevant evidence?

Answer 37

Relevant Evidence MAY BE EXCLUDED IF ITS PROBATIVE VALUE IS SUBSTANTIALLY OUTWEIGHT BY THE DANGER OF:

1) Unfair Prejudice;
2) Confusing the issues;
3) Misleading the jury;
4) Undue delay / waste of time; OR
5) Needless presentation of cumulative evidence.

If any of these substantially outweigh any relevant evidence’s probative value, the evidence MAY OR MAY NOT be coming in.

Question 38

What if the relevance of evidence depends on the existence of another fact?

Answer 38

It is ADMISSIBLE IF sufficient proof of the other fact is introduced. Standard is by a PREPONDERANCE OF THE EVIDENCE.

Question 39

What if irrelevant evidence is admitted?

Answer 39

CURATIVE ADMISSION - THE COURT MAY ALLOW ADDITIONAL IRRELEVANT EVIDENCE IN TO REBUT THE IRRELEVANT EVIDENCE.

One factor in determining whether the court will allow a cure is whether an objection was TIMELY made.

Question 40

What must always be done for relevant evidence?

Answer 40

FOUNDATION for relevant evidence must ALWAYS be laid out.

The failure of the proponent of the evidence to establish that foundation MAY BE CHALLENGED by an objection for LACK OF PROPER FOUNDATION.

Question 41

What is the difference between FRE 404-406 character evidence and 607-609 character evidence?

Answer 41

404-406 = Defendants and victims.

607-609 = Witnesses

Question 42

What is character evidence? Is it allowed?

Answer 42

Character evidence is general information about a person’s behavior.

General Rule - NOT ADMISSIBLE TO PROVE CONDUCT WAS IN CONFORMITY WITH THE DEFENDANT/VICTIM’S CHARACTER. In other words, it CANNOT BE USED FOR PROPENSITY PURPOSES.

Question 43

Explain the treatment of character evidence about a defendant in a civil v.s. criminal case.

Answer 43

1) CIVIL CASES - INADMISSIBLE TO PROVE CONFORMING CONDUCT (that the defendant acted in accordance with the alleged character trait)

EXCEPTION - ADMISSIBLE IN A CIVIL CASE IF CHARACTER IS “AT ISSUE” IN THE CASE - most common in defamation cases (element of the crime), negligent hiring, negligent entrustment, child custody, etc.

2) CRIMINAL CASES - The prosecution CANNOT introduce evidence of a defendant’s BAD CHARACTER to prove that the defendant has a PROPENSITY to have committed the crime in question.

EXCEPTION - The DEFENDANT may present GOOD / POSITIVE CHARACTER evidence that is INCONSISTENT with the TYPE OF CRIME that is being charged. MUST BE PERTINENT TO THE CRIME CHARGED.

However, this OPENS THE DOOR for the prosecution to now introduce NEGATIVE character evidence to REBUT THE DEFENDANT’S EVIDENCE of good character. MUST RELATE TO THE SAME CHARACTER TRAIT the the defendant put on good character evidence to prove.

Question 44

T/F - The defendant in a criminal case does not “open the door” to the prosecution’s attack simply by taking the stand or testifying.

Answer 44

True.

Question 45

Can evidence of a victim’s character be admitted?

Answer 45

A CRIMINAL DEFENDANT MAY introduce evidence of the VICTIM’S CHARACTER that is RELEVANT to one of the DEFENSES ASSERTED.

Example: John Wilkes Booth claims Abe attacked him. This gives defense counsel the opportunity to present evidence claiming that Abe was violent.

IN A CRIMINAL SEXUAL MISCONDUCT CASE - the introduction of character evidence of an alleged victim can be admitted subject to SIGNIFICANT LIMITATIONS.

The PROSECUTION can only enter GOOD CHARACTER evidence AFTER the DEFENDANT has ATTACKED THE VICTIM’S CHARACTER.

Question 46

What form must character evidence be admitted in to be admissible?

Answer 46

Defendant’s Character - MUST be through REPUTATION in the community or OPINION testimony.

Victim’s Character - Defendant can use OPINION or REPUTATION evidence.

Question 47

Can character evidence of the victim be entered in a homicide case (victim is dead)?

Answer 47

Yes, the prosecution may offer evidence of the victim’s peacefulness TO REBUT that the victim was the FIRST AGGRESSOR.

Question 48

Can evidence of prior crimes or prior bad acts of the defendant be admitted into evidence?

Answer 48

Prior Bad Acts - NOT ADMISSIBLE TO PROVE PROPENSITY (conforming conduct). A prior bad act refers to a SPECIFIC INSTANCE of conduct as opposed to a general character trait.

EXCEPTIONS: Prior acts are not admissible to show propensity, but ARE ADMISSIBLE TO SHOW:

1) Motive;
2) Opportunity;
3) Identity;
4) Intent;
5) Lack of Accident;
6) Preparation;
7) Common Plan;
8) Knowledge; OR
9) Absence of Mistake

REMEMBER MIMIC - Motive, Intent, Absence of Mistake, Identity, and Common Plan.

Question 49

What must the prosecution do first before entering in prior act evidence?

Answer 49

MUST give the defense REASONABLE NOTICE of its intent to use a prior act at trial.

Question 50

How are Prior Bad Acts introduced into evidence?

Answer 50

CIVIL CASES:

1) Reputation;
2) Opinion; OR
3) Specific instances of conduct.

CRIMINAL CASES:

1) Reputation;
2) Opinion; BUT NOT
3) Specific instances

EXCEPTION: Specific instances of prior bad acts are NOT ADMISSIBLE in a criminal case UNLESS it is being used as character evidence to prove something other than propensity (MIMIC). Also, specific instances MAY BE USED TO CROSS-EXAMINE A CHARACTER WITNESS (ex: wife about her husband being a peaceful man).

Question 51

T/F - Evidence of prior bad acts is especially vulnerable to the Rule 403 challenge (Exclusionary Rule): when the probative value is substantially outweighed by unfair prejudice.

Answer 51

True.

Question 52

What are “habit” and “routine practice” evidence? Are they admissible?

Answer 52

Habit refers to the act of a person. Routine practice refers to the acts of an organization.

Evedance of a person’s habit or the routine practice of an organization IS ADMISSIBLE TO PROVE PROPENSITY (conduct in conformity on a particular occasion.

MAY BE ADMITTED WITHOUT CORROBORATION OR AN EYEWITNESS.

Question 53

How is habit evidence different than character evidence?

Answer 53

Habit is more specific than character evidence.

Exam Tip: On the MBE, words like “always” or “every time” generally refer to HABIT evidence, where as words like “often” or “frequently” are more likely to imply CHARACTER evidence.

Question 54

T/F - 404(a) prohibits bad character evidence traits being used for propensity purposes.

Answer 54

True

Question 55

T/F - 404(b) generally prohibits a specific prior act unless it is for MIMIC.

Answer 55

True

Question 56

T/F - Specific instances of prior conduct are not allowed in civil cases.

Answer 56

False. Allowed IF character is an element of the crime OR a defense.

Question 57

T/F - Specific instances of prior conduct are allowed in the cross examination of any witness.

Answer 57

False. ONLY CHARACTER WITNESSES.

Question 58

How is the competence of a witness handled?

Answer 58

Every witness is PRESUMED competent UNLESS PROVEN OTHERWISE.

Questions about a witness’s mental competence goes to the WEIGHT, NOT ADMISSIBILITY of a witness’s testimony.

NOTE: In diversity cases, a witness’s competency is determined by STATE law.

Question 59

What must non-expert witnesses have to testify?

Answer 59

PERSONAL KNOWLEDGE.

A non-expert witness CANNOT SPECULATE or hypothesize.

Question 60

T/F - Expert witnesses can speculate and hypothesize.

Answer 60

True.

Question 61

T/F - Witnesses must take an oath or affirmation, and interpreters must also take an oath.

Answer 61

True. This is to impose a duty of conscience on the witness.

Question 62

Can judges be witnesses?

Answer 62

Judges MAY NOT testify in a trial over which they preside. There is NO OBJECTION REQUIRED (PLAIN ERROR RULE).

Question 63

Can jurors be witnesses?

Answer 63

AT TRIAL - a juror may NOT testify as a witness IN FRONT of their co-jurors. Opposing counsel must be given the opportunity to object outside the presence of the jury.

AFTER TRIAL - a juror MAY NOT testify about:

1) Statements made DURING DELIBERATION;
2) Effect of anything on a particular juror’s vote; AND
3) ANY juror’s mental processes.

AFTER TRIAL - a juror MAY testify about:

1) EXTRANEOUS prejudicial information that was brought in (e.g., newspapers);
2) Outside IMPROPER influences (e.g., threats); AND
3) MISTAKE in entering the verdict on the form (does not extend to consequences mistakes about the consequences of the verdict: “I didn’t know he would get the death penalty!”)

Question 64

Can a child be a witness?

Answer 64

Court decides the competency of a child (no bright line rule). FACTORS include:

1) Intelligence;
2) Ability to distinguish between truth and falsehood; and
3) Understanding importance of telling the truth.

Question 65

Explain Dead Man Statutes.

Answer 65

DOES NOT APPLY IN A CRIMINAL CASE.

FEDERAL LAW HAS NO DEAD MAN’S STATUTE RESTRICTION.

CAN STILL APPLY IF STATE LAW APPLIES

Common Law: A party that has a financial interest in a CIVIL CASE is prohibited from testifying about a COMMUNICATION OR TRANSACTION WITH A DEAD PERSON whose estate is a party to that suit, and the alleged communication is ADVERSE to the estate.

Exam tip: MBE question will only test this if the question says “state law applies” and “the state has a dead man statute.”

Question 66

How and by whom can a witness be impeached?

Answer 66

By calling the witness’s credibility into question. Bases for challenging credibility include:

1) Bias
2) Character for untruthfulness
3) Inability to perceive what they are testifying about
4) Prior inconsistent statements
5) Another contradictory witness or evidence

ANY PARTY CAN IMPEACH A WITNESS, EVEN THE PARTY CALLING THE WITNESS.

Question 67

How can you attack a witness’s character for untruthfulness?

Answer 67

1) Reputation;
2) Opinion; OR
3) Specific instances of conduct.

Question 68

Can truthful character be used to bolster a witness’s truthfulness?

Answer 68

Yes, BUT NOT UNTIL IT HAS FIRST BEEN ATTACKED.

Question 69

T/F - Attacking a witness’s bias is attacking his truthfulness.

Answer 69

False. They are different.

Question 70

What specific instances of conduct can be used to attack a witness’s character or truthfulness?

Answer 70

EXTRINSIC EVIDENCE IS NOT GENERALLY ADMISSIBLE to attack a witness’s truthfulness. However, ON CROSS-EXAMINATION, specific instances can be asked about IF it’s regarding truthfulness of:

1) the witness; OR
2) another witness about whose character the witness being cross-examined has testified.

Question 71

What are the limits on cross-examination regarding specific instances of conduct? Can extrinsic evidence be used?

Answer 71

1) Must have a good-faith belief in prior misconduct; AND
2) May NOT cross-examine a witness about an ARREST. However, you MAY cross-examine about the underlying conduct that led to the arrest.

Further, extrinsic evidence generally cannot be used to prove that specific instance of untruthfulness. Discussion of consequences is ALSO PROHIBITED.

However, EXTRINSIC EVIDENCE CAN BE USE TO IMPEACH ON OTHER GROUNDS, such as BIAS.

When the foundation of extrinsic evidence is established through the witness being impeached, it is possible that the extrinsic evidence might be admissible to impeach the witness’s character for truthfulness.

Question 72

T/F - By testifying on another matter, a witness DOES NOT waive the privilege against self-incrimination for testimony relating only to the witness’s character.

Answer 72

True

Question 73

Can prior criminal convictions be used to impeach a witness? Are there limitations for the different types of convictions?

Answer 73

General Rule: Conviction of a prior crime is a POSSIBLE BASIS for impeaching a witness’s character for truthfulness. The rule is subject to limitations.

1) CRIMES INVOLVING DISHONESTY OR FALSE STATEMENTS - admissible, subject to a 10-YEAR RESTRICTION, whether it is a misdemeanor or a felony and regardless of the punishment. This crimes include fraud, perjury, embezzlement, and false pretenses (NOT murder, rape, and assault).
2) CRIMES THAT DO NOT INVOLVE DISHONESTY - Subject to a 10-YEAR RESTRICTION. ADMISSIBLE ONLY IF the crime is PUNISHABLE BY DEATH OR IMPRISONMENT FOR MORE THAN 1 YEAR (a felony).

If the witness is a CRIMINAL DEFENDANT and the crime is not a crime of dishonesty - ADMISSIBLE IF its probative value outweighs the potential prejudicial effect to that defendant.

If the witness is not a criminal defendant, the evidence MUST BE ADMITTED. The burden is on the opposing counsel to exclude the evidence.

3) CONVICTIONS MORE THAN 10 YEARS OLD - If more than 10 YEARS since CONVICTION OR RELEASE (whichever is LATER), it is ONLY ADMISSIBLE IF the party offering the evidence shows that the PROBATIVE VALUE of the conviction SUBSTANTIALLY OUTWEIGHS the risk of unfair prejudice; AND the proponent gives REASONABLE WRITTEN NOTICE of the intent to use the evidence to opposing counsel.
4) JUVENILE CONVICTIONS - NOT ADMISSIBLE TO IMPEACH A DEFENDANT.

ADMISSIBLE IF offered to impeach truthfulness AND if: (a) offered in a criminal case; (b) would be admissible if an adult conviction would be admissible; AND (c) admitting evidence is necessary for fair determination of guilt or innocence.

NOTE: A criminal defendant can use a witness’s juvenile conviction to impeach by showing BIAS.

Question 74

Conviction evidence is NOT ADMISSIBLE IF __________.

Answer 74

1) Pardoned,
2) Annulled,
3) Later found innocent, OR
4) Rehabilitated

Question 75

What is the manner in which a prior conviction can be proved?

Answer 75

1) Witness’s admission on cross or direct, OR

2) Extrinsic evidence (the record of the conviction).

Question 76

T/F - Pendency of an appeal has no affect on impeachment.

Answer 76

True.

Question 77

Is evidence of a prior criminal conviction pending appeal admissible?

Answer 77

Yes

Question 78

How does one go about impeaching a witness based on prior inconsistent statements?

Answer 78

The prior inconsistent statement DOES NOT HAVE TO BE A SWORN STATEMENT. Attorney must show it to opposing counsel if requested (not the witness though).

Extrinsic evidence may ONLY be introduced IF the witness is given the OPPORTUNITY TO EXPLAIN OR DENY the prior inconsistent statement. The opportunity does NOT need to take place before the statement is admitted.

EXCEPTION: NO OPPORTUNITY TO EXPLAIN NEED BE GIVEN IF:

1) Impeaching a hearsay declarant; OR
2) Admission of a party opponent.

COLLATERAL MATTERS - Extrinsic evidence of a prior inconsistent statement CANNOT BE USED to impeach a witness regarding a collateral (irrelevant) matter.

Question 79

Explain how to impeach by bias.

Answer 79

Bias evidence is ALWAYS relevant. Bases include:

1) Witness has a relationship to the party or victim;
2) Witness has an interest in the outcome of the case;
3) Witness has an interest in testifying (cut a deal).

FOUNDATION must be laid out BEFORE EXTRINSIC EVIDENCE may be introduced.

Exam Tip: MBE questions normally test bias in the context of a witness who is employed by a party or a witness who has cut a deal with the prosecution.

Question 80

Explain impeachment by sensory competence.

Answer 80

A witness may be impeached by showing the witness has a deficiency in ability to perceive, recall, or relate information.

Question 81

Explain impeaching a hearsay declarant (FRE 806).

Answer 81

May be impeached by any evidence that would have been admissible had the declarant testified.

Similar impeachment treatment is given to a non-hearsay statement by a co-conspirator, agent, or authorized spokesperson.

Question 82

Can a witness who has been impeached be rehabilitate? If so, how?

Answer 82

Yes. In the following ways:

1) Explanation on redirect;
2) By REPUTATION or OPINION evidence with regard to character for truthfulness (IF the witness’s character has been attacked);
3) By a prior CONSISTENT statement offered t rebut a charge that the witness lied.

Question 83

Are religious opinions or beliefs admissible?

Answer 83

Generally, NOT to attack or support a witness’s credibility.

EXCEPTION: MAY BE USED TO SHOW BIAS OR INTEREST.

Question 84

Can a witness be impeached by contradictory or collateral evidence?

Answer 84

A witness MAY be impeached by evidence that is contradictory to the witness’s testimony.

Generally, a witness MAY NOT be impeached on the basis of credibility by the introduction of extrinsic evidence on a collateral matter (irrelevant matter).

Question 85

Explain Present Recollection Refreshed.

Answer 85

A witness may examine ANY item (document, photo, apple) to refresh the witness’s present recollection.

The witness MAY NOT USE THE ITEM WHILE TESTIFYING (read from document).

THE ITEM IS NOT INTRODUCED INTO EVIDENCE BY EXAMINING COUNSEL.

OPPOSING COUNSEL’S OPTIONS:

1) Right to SEE AND INSPECT the refreshing item;
2) INTRODUCE THE ITEM INTO EVIDENCE (usually for impeachment purposes); OR
3) IN A CRIMINAL CASE ONLY, if the prosecution does not produce the evidence, the court may STRIKE that testimony and declare a MISTRIAL.

Question 86

Explain Past Recollection Recorded.

Answer 86

A memorandum or record regarding a matter about which a witness ONCE HAD KNOWLEDGE, but now has insufficient recollection upon which to testify.

The document MAY BE ADMITTED INTO EVIDENCE. Whereas, a present recollection refreshed is usually not.

Question 87

Can lay witnesses give Opinion Testimony?

Answer 87

GENERALLY MAY NOT testify about an opinion. ONLY ALLOWED if it is a COMMON SENSE IMPRESSION. If made, the opinion must be: (a) based on perception AND (b) must be helpful to clear the understanding of a fact at issue. Lay witness opinion testimony CANNOT BE SCIENTIFIC, TECHNICAL, or SPECIALIZED in nature (otherwise they would be an expert).

Question 88

Who classifies as an expert witness? When is their testimony admissible?

Answer 88

Before an expert witness can testify, the court must find that subject matter of the testimony is:

1) Reliable: Scientific, technical, or specialized, AND
2) Relevant: Will help the trier of fact understand evidence or a fact.

To QUALIFY as an expert, the witness must show:

1) They are qualified by possessing knowledge, skill, experience, training, or education;
2) The testimony is based on sufficient facts or data;
3) Testimony is the product of RELIABLE PRINCIPLES AND METHODS (reasonably relied upon by experts in the field, although the underlying data need not be admissible); AND
4) The witness APPLIED those principles and methods to the facts of the case.

Experts must also possess a REASONABLE DEGREE OF CERTAINTY in their opinion.

Question 89

Can an expert give an opinion on the ultimate issue in a case?

Answer 89

An expert MAY give an opinion on an ultimate issue (including the defendant’s state of mind).

EXCEPTION: Experts CANNOT give give an opinion on whether a CRIMINAL defendant had the REQUISITE MENTAL STATE for the crime charged.

Question 90

What can be the basis of an expert’s opinion testimony?

Answer 90

1) Personal Observations;
2) Data Provided - Pictures, reports, or other analysis. If the underlying facts are inadmissible, an expert’s opinion may still be admissible if EXPERTS IN THE FIELD would rely on that data. The expert need not disclose the underlying data before giving an opinion. On CROSS EXAMINATION, the expert may be required to disclose those facts. The proponents of the expert may also have the facts disclosed as long as their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect.
3) Can use hypotheticals, but that is not required.

Question 91

Can the court appoint experts?

Answer 91

Yes the court may appoint an expert. The court must inform the expert of his duties. The expert must advise BOTH parties of findings. Each party may DEPOSE a court-appointed expert.

Question 92

What standards are interpreters held to?

Answer 92

The same rules as expert witnesses.

Question 93

What is tangible evidence?

Answer 93

Tangible evidence is any evidence NOT presented as oral or verbal testimony.

Question 94

T/F - All tangible evidence must be authenticated.

Answer 94

True.

Question 95

How is tangible physical evidence authenticated?

Answer 95

Authentication is showing that an object IS WHAT IT IS CLAIMED TO BE. Can be done so in the following ways:

1) Personal knowledge of the witness who has familiarity with the object;
2) Using distinctive characteristics;
3) By Chain of Custody;
4) Reproductions - a witness who has personable knowledge must testify that it accurately depicts what it is claimed to represent;
5) X-rays or Electrocardiograms (PMOC) - (a) Accurate process, (b) Machine was working properly, (c) Qualified Operator of the machine, and (d) Accompanied by a show of the chain of custody.

Question 96

How is tangible documentary evidence authenticated? What are the different types of tangible documentary evidence?

Answer 96

Common methods of authentication:

1) By stipulation (parties agree);
2) Testimony of an eye-witness; OR
3) Hand-writing verification.

Types of Documentary Evidence and how authenticated:

1) Ancient Documents - MORE THAN 20 YEARS OLD, in a CONDITION that is unlikely to create suspicion about its authenticity, AND FOUND IN A PLACE it would likely be found.
2) Public Records - Recorded or filed in a public office as authorized by law OR from the office where items of that kind are kept.
3) Reply Letter Doctrine - Written in response to an original communication AND unlikely it was forged by someone else.
4) Hand-writing verification - By Comparison (expert witness or the trier of fact compares the writing in question to another that has been proven genuine. A non-expert witness with personal knowledge of the handwriting who recognizes the writing. NOTE: A NON-EXPERT WITNESS CANNOT HAVE BECOME FAMILIAR WITH THE HANDWRITING IN PREPARATION FOR LITIGATION.
5) Self-Authenticating Documents - DO NOT REQUIRE EXTRINSIC PROOF OF AUTHENTICITY. These are: public documents bearing a seal; certified copies of public records; official publications issued by a public authority; newspapers or periodicals; trade inscriptions (a label); notarized or acknowledged documents; commercial paper; documents declared by federal statute to be authentic; and records of REGULARLY CONDUCTED BUSINESS ACTIVITY.

Question 97

T/F - An attesting witness is usually required to authenticate a document.

Answer 97

False. They are generally not required.

Question 98

How are oral statements authenticated?

Answer 98

1) Voice Identification - Any person who has heard the voice at ANY time before can do this, EVEN if made for the purpose of litigation. Makes no difference whether the voice is mechanical, electronic, or live.
2) A party to a TELEPHONE CONVERSATION may authenticate statements made during that conversation by testifying that:
(a) he recognized the speaker’s voice,
(b) the speaker on the other end KNEW FACTS that only a particular person would have known,
(c) the caller dialed the number that was believed to be the speaker’s and the speaker identifies himself upon answering, OR
(d) the caller dialed a business number and spoke to the person about regular business.

Question 99

Explain the Best Evidence Rule.

Answer 99

ONLY APPLIES WHEN THE MATERIAL TERMS OF A WRITING ARE AT ISSUE OR IF A WITNESS IS RELYING ON THE WRITING WHILE TESTIFYING (beware of a fact pattern where the witness is not relying on the writing OR is relying on it but for an IMMATERIAL matter).

NOTE: The Best Evidence Rule does NOT require a party to present the MOST PERSUASIVE evidence; NOR does it require that the document be presented if the witness can testify without it.

In General - this applies to writings, recordings, photographs, electronic documents, X-rays, and videos.

Contents “at issue” - a document that is being used as PROOF of an event; that has legal effect (contract); OR a witness is testifying based on the facts learned in the writing.

Original - an original of a writing or recording includes any counterpart intended to have the same effect as the original.

Exam Tip: This is frequently the wrong answer on the Bar Exam.

Question 100

What are the exceptions to the Best Evidence Rule?

Answer 100

EXCEPTIONS - A DUPLICATED IS ADMISSIBLE IF PRODUCED ACCURATELY . . . UNLESS . . . (a) a genuine question of authenticity of the original arises OR it would be unfair to admit the duplicate (e.g., partial copy). A DUPLICATE WILL ALSO SUFFICE IF:

1) ALL ORIGINALS ARE LOST OR DESTROYED;
2) The original could not be obtained through any judicial process;
3) Party against who it is being offered is in control of it and fails to produce it when they had NOTICE the writing was needed at trial; OR
4) It is a collateral matter.

Copies of Public Records - Must be CERTIFIED OR must be testimony by someone who saw the original. If no copies are available, court may allow other means to prove the issue.

Summaries or a chart of an original - Allowed if proponent makes originals or duplicates available for cop and examination. Can be allowed by court order.

Admission by a Party - Can be a SUBSTITUTE if the contents of a writing, recording, or photograph are proven by TESTIMONY of the party against who it is being offered.

Question 101

What is the role of the court when the Best Evidence Rule is applied?

Answer 101

Generally, to determine whether the rule has been satisfied.

Question 102

Explain the Parol Evidence Rule.

Answer 102

Applies to written contracts. Assumes that a written contract represents the COMPLETE AGREEMENT. If there is complete integration, PER applies and NO extrinsic evidence is allowed at trial. If only partial integration (meaning the document contains some BUT NOT ALL of the terms) extrinsic evidence is allowed at trial and PER would not apply.

Question 103

What is a privilege, generally?

Answer 103

Right to hold evidence secret and cannot be forced to provide the information.

THE FRE CONTAINS NO SPECIFIC PRIVILEGE PROVISIONS. State law applies.

Exam Tip: IF AN MBE QUESTION DOES NOT INDICATE THAT STATE LAW APPLIES, PRIVILEGE IS LIKELY NOT THE ANSWER.

Question 104

When does a privilege apply?

Answer 104

To all stages of the case.

Question 105

What makes communication privileged?

Answer 105

For a communication to be privileged, it MUST BE CONFIDENTIAL. This means the communication is not overheard by an unwanted third party. If that happens, privilege is destroyed.

EXCEPTIONS:

1) The third party’s presence is an unknown eavesdropper, OR
2) If the party’s presence is NECESSARY (translator).

Question 106

Can a privilege of communication be waived?

Answer 106

Yes IF:

1) The holder fails to timely assert it;
2) Voluntarily discloses the information; OR
3) Contractually waives it.

NOTE: Wrongful disclosure without consent is NOT a waiver.

Question 107

Explain Spousal Privilege.

Answer 107

Two privileges here:

1) Spousal Immunity - Generally, prosecution CANNOT call a criminal defendant’s spouse to testify against the defendant. A married person may not be compelled to testify against her spouse in ANY criminal proceeding whether he is a defendant or not (includes grand jury).
2) Confidential Marital Communication - Prevents a spouse from being able to testify about something that was said DURING the marriage.

Question 108

Who can claim Spousal immunity, what period of time does it apply to, and when should it be asserted?

Answer 108

Holder - Federal court and a MAJORITY of the states so the WITNESS SPOUSE holds the privilege and MAY CHOOSE TO TESTIFY. A MINORITY of states say it is the party spouse who holds the privilege and may prevent the spouse from testifying.

Period of Time - Applies to testimony about events occurring BEFORE and DURING the marriage.

Time to Assert - ONLY DURING A VALID MARRIAGE. Expires on divorce or annulment (does not include death).

Question 109

Who holds the Confidential Marital Communication privilege, what is its scope, and when should it be asserted?

Answer 109

Holder - MAJORITY of states say that BOTH SPOUSES hold the privilege.

Scope - Only applies to communications made DURING the marriage, and APPLIES TO BOTH CIVIL AND CRIMINAL CASES.

Time to Assert - ANYTIME because it EXTENDS BEYOND MARRIAGE.

Question 110

What are the elements of the Attorney-Client Privilege? Is any specific communication not privileged?

Answer 110

1) Confidential - Communication must be INTENDED to be confidential. A third party present generally destroys the privilege (exception: client representatives do not destroy the privilege).
2) Communication - MUST BE FOR LEGAL ADVICE OR REPRESENTATION. Even if no legal advice is given or no representation occurs, statements made by a POTENTIAL CLIENT can be privileged.
3) Holder - The CLIENT holds the privilege; only the client can WAIVE the privilege. The attorney MUST ASSERT the privilege on the client’s behalf. The privilege EXISTS UNTIL IT IS WAIVED AND SURVIVES THE CLIENT’S DEATH.

NOT PROTECTED:

1) Fee arrangement;
2) Identity of client;
3) Underlying facts of employment; and
4) Statement made to an attorney who is acting in ANOTHER CAPACITY (tax prep).

Question 111

Do corporate clients hold the attorney client privilege?

Answer 111

Some states limit the privilege ONLY TO THE CONTROL GROUP MEMBERS of the corporation (directors and officers).

Federal Law - Non-control group communications CAN BE privileged if they are communicating within their EMPLOYMENT DUTIES and for the purpose of seeking legal advice for the corporation.

Question 112

Does the Attorney-Client Privilege ever not apply?

Answer 112

Yes:

1) Communications made to enable or aid commission of what the client KNEW or SHOULD HAVE KNOWN was a CRIME OR FRAUD.
2) Communication regarding disputes between attorney and client (malpractice suits).
3) Communication between two parties who claim the same deceased client.
4) Communications between co-clients of the same attorney who are now adverse.

Question 113

T/F - Attorney documents fall under the attorney-client privilege.

Answer 113

False. This would fall under the work-product doctrine.

Question 114

What is the effect of disclosure in a federal or state proceeding on the Attorney-Client Privilege?

Answer 114

FRE do not generally address common law privileges. BUT FRE 502 addresses litigation related disclosures of protected information.

1) Inadvertent Disclosures - No waiver of privilege in a federal proceeding if the holder took reasonable steps to PREVENT and to RECTIFY the disclosure.
2) Intentional Disclosures - There is a limitation on the scope of the waiver in a federal proceeding. Acts as a waiver of the privilege and it extends to undisclosed information IF: (a) both sets of information concern the same subject, AND (b) fairness requires disclosure of both.
3) Disclosure in a STATE PROCEEDING - Does NOT act as a waiver in a LATER FEDERAL PROCEEDING IF: (a) would not have been a waiver in federal court; OR (b) was not a disclosure under state law.

Federal Court MUST APPLY THE MOST PROTECTIVE LAW. A federal court MAY ORDER that disclosure of a privileged communication is NOT A WAIVER for LATER PROCEEDINGS.

Parties’ Agreements - The parties’ agreement regarding disclosure ONLY BINDS THE PARTIES, UNLESS IT IS INCORPORATED INTO A COURT ORDER.

Question 115

How does the Physician-Patient Privilege work?

Answer 115

Not privileged under Common Law.

Most states protect by statute, so long as the communication is for MEDICAL TREATMENT. The PATIENT HOLDS THE PRIVILEGE. Only the patient can waive.

Situations where the privilege does NOT exist:

1) Information was acquired for reasons other than treatment.
2) Patient’s physical condition is an ISSUE in the case.
3) Communication was made as part of the commission of a CRIME OR TORT.
4) A dispute exists between the physician and the patient.
5) The patient contractually agreed to waive the privilege.
6) A case is brought IN FEDERAL COURT and state law does not apply.

Question: What if the attorney sends the client to the physician?

Answer: Communication is not privileged UNLESS the treatment is being contemplated.

Question 116

Explain the Psychotherapist-Patient Privilege.

Answer 116

Federal courts AND most state courts recognize this privilege. It is made between a psychiatrist, psychologist, or licensed social worker and a patient.

The PATIENT holds the privilege, but the PSYCHOTHERAPIST MUST ASSERT in the patient’s ABSENCE.

The privilege DOES NOT EXIST IF:

1) The patient’s mental condition is at issue.
2) Communication was part of a court-ordered exam.
3) Case is a commitment proceeding against the patient.

This is more widely recognized than the doctor-patient privilege.

Question 117

How does the 5th Amendment work?

Answer 117

Allows a witness to refuse to give testimony that may tend to incriminate him.

ONLY covers current testimony, NOT PRIOR STATEMENTS. Does NOT apply to physical characteristics or mennerisms. The holder must be a NATURAL PERSON (no corporations).

CRIMINAL CASES - A prosecutor CANNOT comment on a defendant’s FAILURE to take the stand or suggest that the jury should draw a negative inference therefrom.

CIVIL CASES - Opposing counsel CAN ask the jury to draw negative inferences from a witness’s claim of privilege.

IMMUNITY - A witness may be compelled to provide incriminating testimony IF the government grants him IMMUNITY FROM PROSECUTION. There are two types of immunity here:

1) Transactional Immunity - Protection regards the entire transaction.
2) Use Immunity - Protection only covers the compelled statements. NOTE: The government is constitutionally required to offer Use Immunity.

EXCEPTIONS TO IMMUNITY:

1) If the government does prosecute the witness, government has the burden to show in a later proceeding that compelled testimony did NOT provide an investigative lead to the prosecution.
2) No privilege IF witness’s danger of incrimination has been removed (i.e., acquittal or conviction).

Question 118

Explain the Clergy-Penitent Privilege.

Answer 118

A confidential communication made by a penitent to a member of the clergy is PRIVILEGED. The penitent holds the privilege, and the clergy member asserts it.

Question 119

Explain the Accountant-Client Privilege.

Answer 119

Not available at common law. Many jurisdictions recognize this privilege by statute. Operates similarly to the attorney-client privilege.

Question 120

Explain the Professional Journalist Privilege.

Answer 120

NO FEDERAL PRIVILEGE PROTECTING THE JOURNALIST’S SOURCE OF INFORMATION. Some states have enacted statutes extending protection to journalists.

Question 121

Are there any governmental privileges?

Answer 121

The government, at ALL LEVELS, is privileged against disclosing the identity of an INFORMANT IN A CRIMINAL CASE and the communication of official information by or to public officials.

Question 122

What are Subsequent Remedial Measures?

Answer 122

FRE 407 PROHIBITS admission of measures taken after injury or harm that make future injury less likely. INADMISSIBLE TO PROVE NEGLIGENCE, DEFECTIVE PRODUCT OR DESIGN, OR CULPABLE CONDUCT.

ADMISSIBLE TO SHOW OWNERSHIP OR CONTROL OF PROPERTY FOR IMPEACHMENT PURPOSES.

Question 123

Are Compromise Offers or Negotiations admissible?

Answer 123

NEGOTIATIONS: Offers, conduct, or statements made during negotiations are NOT admissible to prove a disputed claim, an amount, or for impeachment.

EXCEPTIONS:

1) Negotiations with governmental agencies (IRS) are admissible in a later criminal case.
2) Admissible to prove BIAS, prejudice of a witness, obstruction, or to negate a claim of delay.

EVIDENCE DISCUSSED IN A NEGOTIATION IS NOT PROTECTED FROM ADMISSION.

COMPROMISES: NOT ADMISSIBLE on behalf of any party (who participated in the compromise negotiations). If there are multiple parties and one settles, the agreement is NOT ADMISSIBLE.

Question 124

Are offers to pay medical expenses admissible?

Answer 124

NOT ADMISSIBLE to prove liability for the plaintiff’s injuries.

Any conduct or statements that accompany the payment or the offer to pay WOULD BE ADMISSIBLE.

Question 125

Are plea negotiations admissible?

Answer 125

THIS APPLIES IN CIVIL AND CRIMINAL CASES

THE FOLLOWING ARE NOT ADMISSIBLE:

1) Withdrawn guilty pleas
2) Please of nolo contendere (no contest
3) Statements made while negotiating with the D.A.
4) Statments made during plea proceedings.

EXCEPTIONS:

1) Pleas or negotiation statements are admissible if fairness dictates.
2) Perjury hearings.

CAN BE WAIVED IF DEFENDANT DOES SO KNOWINGLY AND VOLUNTARILY.

Question 126

Is acquiring liability insurance admissible?

Answer 126

Evidence of insurance or lack of insurance is NOT ADMISSIBLE to prove negligence or wrongful conduct.

ADMISSIBLE IF it goes to agency, ownership, control, or witness bias and prejudice.

Question 127

Can evidence of sexual conduct be admitted?

Answer 127

VICTIM’S CONDUCT - “Rape Shield Law” - Victim’s sexual behavior or predisposition is NOT ADMISSIBLE IN ANY CIVIL OR CRIMINAL PROCEEDING INVOLVING SEXUAL MISCONDUCT. CANNOT be used for impeachment or for substantive purposes.

“Sexual Behavior” - intercourse, diseases, use of contraception, etc.

“Predisposition” - The way a person dresses, speech, lifestyle, etc.

EXCEPTIONS FOR CRIMINAL CASES:

1) In a criminal case, sexual behavior of the victim CAN be used to prove source of semen or source of injury;
2) Used to prove victim’s CONSENT; OR
3) If offered by the prosecution;

OPINION OR REPUTATION TESTIMONY IS NOT ADMISSIBLE (NEED SPECIFIC ACTS)

EXCEPTIONS FOR CIVIL CASES:

1) Victim’s reputation is only admissible if the victim places it in controversey; OR
2) Admissible if the victim’s sexual behavior if the probative value of it substantially outweighs any unfair prejudice. Probative value must be proven by the defendant.

RESTRICTION ONLY APPLIES IF THE PARTY IS A VICTIM OF A SEXUAL MISCONDUCT. Example: no restriction in a defamation case.

Question 128

What procedural requirements exist to put a victim’s sexual conduct into evidence?

Answer 128

NOTICE of intent to use the evidence must be given AT LEAST 14 DAYS BEFORE TRIAL.

Question 129

Can evidence of a defendant’s sexual conduct be entered into evidence.

Answer 129

CRIMINAL CASE - evidence of sexual assault is ADMISSIBLE when accused of committing sexual assault, rape, or child molestation. This evidence CAN BE USED FOR PROPENSITY. Court has discretion under 403 to exclude.

Not limited to convictions - CAN INCLUDE PRIOR ARRESTS AND UNREPORTED INCIDENTS.

NO TIME RESTRICTION.

NOTICE - Must be made at least 15 DAYS before trial.

Question 130

What is hearsay?

Answer 130

An out-of-court statement by a declarant that is offered at trial to prove the truth of the matter asserted (that which the statement asserts).

Question 131

What is the general rule with regard to hearsay?

Answer 131

It is generally NOT admissible UNLESS it is authorized by federal statute, rule of evidence, or the Supreme Court.

Question 132

T/F - A declarant must be a person.

Answer 132

True

Things that are not hearsay:

1) Dog bark;
2) Automatically generated time stamp on a fax;
3) Printout of electronic telephonic tracing equipment;
4) Raw data from a forensic lab machine

Question 133

T/F - A witness’s statement quoting himself outside of court while in court can be hearsay.

Answer 133

True

Question 134

What classifies a hearsay statement to be an “assertion?”

Answer 134

It can be any of the following:

1) Oral,
2) Written,
3) Non-verbal conduct, if intended as an assertion (nodding, pointing, etc.)

Question 135

Statements that are not offered to prove the truth of the matter asserted are _____________.

Answer 135

NOT HEARSAY.

Question 136

T/F - Questions are not hearsay.

Answer 136

True. There is no matter being asserted in a question.

Question 137

T/F - Any statement that isn’t hearsay is admissible and will come in.

Answer 137

False. Could call under a privilege, improper character evidence, or fails the 403 test.

Question 138

What are some ways that statements can be offered in a way that isn’t trying to prove the truth of the matter asserted.

Answer 138

1) Legally operative fact - that the statement itself was made, regardless of its truth.
2) To show the effect on the listener.
3) To show the declarant’s mental state or state of mind.
4) To impeach.

Question 139

What is multiple hearsay? What is the rule?

Answer 139

This is hearsay within hearsay. It may be admissible if BOTH LEVELS OF HEARSAY fall within an exception.

Question 140

Explain how hearsay is affected by prior statements.

Answer 140

The declarant MUST BE TESTIFYING at trial, and the declarant MUST BE SUBJECT TO CROSS-EXAMINATION.

1) Prior Inconsistent Statements - Admissible as substantive evidence IF: (a) previously made under penalty of perjury, AND (b) is inconsistent with the present testimony being given at trial.
2) Prior Consistent Statements - ONLY admissible to REBUT a charge or claim that the declarant is fabricating or has a recent motive to fabricate the statement in court. ADMISSIBLE REGARDLESS IF UNDER OATH. MUST HAVE BEEN MADE BEFORE DECLARANT HAD REASON TO FABRICATE.
3) Prior Statements of Identification - A previous out-of-court identification of a person after seeing them (lineup) is ADMISSIBLE as substantive evidence.

Exam Tip - Remember that the declarant must be subject to cross examination. Look out for a declarant who are dead or otherwise unavailable for trial.

Question 141

Are party admissions hearsay?

Answer 141

Question is “who is the declarant?” here.

A prior out-of-court statement made by a party (or representative) to the current litigation that is offered by the opposing party against that party is NOT HEARSAY.

NOTE: In criminal prosecutions, the defendant is the only “party,” so out-of-court statements of a government representative (police detective) cannot be overcome by saying they are an admission of a party opponent.

An opposing party’s statement need not have been against the party’s interest at the time that it was made.

The statement may be admitted EVEN IF it is not based on personal knowledge or within the party’s normal scope of knowledge (opinion).

Question 142

What about judicial admissions? Are they admissible?

Answer 142

ADMISSIBLE IF MADE:

1) During discovery process;
2) By stipulation;
3) During a proceeding; or
4) UNLESS they are amended

Question 143

Is a withdrawn guilty plea admissible?

Answer 143

NOT ADMISSIBLE IN SUBSEQUENT PROCEEDING AS A STATEMENT BY A PARTY OPPONENT.

Question 144

What are adoptive admissions? Are they admissible?

Answer 144

These are statements made by another person (NOT the party) that a party expressly or impliedly ADOPTS as his own CAN BE USED IN COURT.

SILENCE IS AN ADOPTIVE ADMISSION IF:

1) The party was present and heard and understood the statement;
2) The party had the ability and opportunity to deny it; AND
3) A reasonable person who is similarly situated woulld have denied the statement.

Question 145

What are vicarious admissions? Are these admissible?

Answer 145

This is an out-of-court statement made by one person that may be imputed to an opposing party based upon certain relationships between the parties.

1) A statement made by an employee or agent qualifies as an opposing party’s statement if: (a) made within the scope of employment, AND (b) during the course of the relationship.
2) A statement made by an authorized speaker.
3) Co-conspirator Admissions are statements made by a co-conspirator and is ADMISSIBLE IF it is made DURING AND IN FURTHERANCE OF THE CONSPIRACY. A statement made AFTER arrest would NOT be made in FURTHERANCE of the conspiracy, so NOT ADMISSIBLE of a co-conspirator.

Question 146

What are the hearsay exceptions that apply ONLY to unavailable declarants?

Answer 146

Unavailable means:

1) Exempt on grounds of privilege (immunity);
2) Refuses to testify, despite court order;
3) Lacks memory of the subject matter of the statement;
4) Unable to testify due to death, infirmity, or physical or mental disability; OR
5) Absent and cannot be subpoenaed or otherwise made to appear.

THE FIVE UNAVAILABLE DECLARANT EXCEPTIONS ARE:

1) Former Testimony - Testimony will be admissible if: (a) the declarant is unavailable; (b) statement was prior testimony given at a trial, hearing, or deposition; AND (c) the opposing party had an opportunity and similar motive to develop the testimony through cross or direct examination. REMEMBER opposing counsel is not present at a grand jury hearing (so that doesn’t count).
2) Dying Declarations - Statement will be admissible if: (a) declarant is unavailable AND believed her death was IMMINENT when she made the statement AND the statement PERTAINS TO THE CAUSE OR CIRCUMSTANCES OF HER DEATH. The declarant need not actually die. ONLY AVAILABLE IN HOMICIDE AND CIVIL CASES (SO NO NON-HOMICIDE CRIMINAL CASES SUCH AS ATTEMPTED MURDER).
3) Statements Against Interest - Statement is admissible if: (a) the declarant is unavailable; (b) the statement is against the declarant’s self-interest; AND (c) a reasonable person would not have made the statement UNLESS he believed it was true. “Against self-interest” means pecuniary or proprietary interest OR exposes declarant to civil or criminal liability. Criminal liability means that it must have corroborating evidence that clearly indicates the trustworthiness of the out-of-court statement.
4) Statement of Personal or Family History - A statement concerning the unavailable declarant’s own birth, adoption, marriage, divorce, etc. IS NOT EXCLUDED.
5) Declarant Unavailable Due to Wrongdoing (Forfeiture Against Wrongdoing Exception) - A statement that is offered against a party who is wrongfully responsible for the declarant’s unavailability is ADMISSIBLE. The act to make the witness unavailable need not be criminal. It must simply be DELIBERATE with the INTENT TO PREVENT THE WITNESS FROM TESTIFYING.

Question 147

What are the exceptions to hearsay where the declarant’s availability is immaterial?

Answer 147

1) Present sense impression - A statement describing or explaining an event or condition that is made while or immediately after the declarant perceived the event.
2) Excited Utterance - A statement made about a STARTLING event or condition WHILE the declarant is UNDER THE STRESS OF EXCITEMENT (panting, etc.) caused by the event. The statement MUST RELATE TO THE EVENT, but the declarant need not be a participant in the event (CAN BE A BYSTANDER).
3) Statements of Mental, Emotional, or Physical Condition - A statement of a declarant’s THEN EXISTING state of mind, emotional, sensory, or physical condition used to show the declarant acted in conformity therewith. “State of mind” means present intent, motive, and plan. “Physical Condition” means: (a) used to prove that the condition existed BUT (b) cannot be used to prove the cause of the condition.
4) Statements Made for Purposes of Medical Diagnosis or Treatment - An out-of-court statement is ADMISSIBLE if it is made for medical diagnosis or treatment. Can include statements of PAST OR PRESENT SYMPTOMS. Also ADMISSIBLE if it goes to the CAUSE of the injury.

THIS EXCEPTION MAY BE KEPT OUT BECAUSE OF DOCTOR-PATIENT PRIVILEGE STILL.

Statements are also admissible under this exception if:

1) Made to a physician or other medical personnel or even to a family member, AS LONG AS it is made for the PURPOSE OF TREATMENT or diagnosis;
2) Made to a physician consulted only for the purpose of enabling the physician to testify at trial;
3) The statement need not necessarily be made by the patient, SO LONG AS it is made for the purpose of medical diagnosis or treatment.

Admissibility depends on the relationship between the declarant and the patient - the closer the relationship the more the statement is trusted. The court assesses the probative value of the statement.

Question 148

More hearsay exceptions where the declarant’s availability is immaterial.

Answer 148

1) Recorded Recollection - The record is read into evidence because the witness cannot recall the event or information. Witness: knew or once knew / made record fresh in mind / record is accurate / witness cannot recall enough to testify. MAY be read into evidence. Proponent cannot enter as an exhibit. ONLY the opposing counsel can do that.
2) Business Records - A record is not hearsay if: (a) kept in the course of regularly conducted business; (b) the record making was a regular practice of the activity; AND (c) the record was made at or near the time by someone with knowledge. Authenticated by the custodian of the records, a qualified witness, or self-authenticated. A lack of trustworthiness can keep it out. AN ABSENCE OF RECORD CAN BE ADMITTED IF IT WAS NOT KEPT, AND IT USUALLY IS FOR THE MATTER AT ISSUE.
3) Public Records - Applies to a record or a statement of a public office or agency that sets out the activities of the office or agency; OR an observation of a person who has a duty to report that observation (except for observations of a law enforcement officer in a criminal case); OR factual findings of a legal investigation in a CIVIL case, or in a criminal case if it is against the government. May exclude for LACK of trustworthiness. ABSENCE OF RECORD IS ADMISSIBLE IF USUALLY KEPT AND NO RECORD EXISTS AND THAT THE EVIDENCE SHOWS THE EVENT DID NOT OCCUR. Records of vital statistics are not excluded if event is reported to a legal office in accordance with a legal duty.
4) Learned Treatise - Statement in a treatise, periodical, pamphlet, etc. NOT EXCLUDED IF: (a) an expert rellied on statement during direct or expert was cross-examined on it; AND (b) if publication is established as a reliable authority by exper, another expert, or judicial notice. If admitted, the statement is READ INTO EVIDENCE; the publication is NOT admitted as on exhibit.
5) Judgment of a Previous Conviction - Not excluded if: (a) judgment was entered after trial or a guilty plea (does not include nolo contendere); (b) punishable by death or imprisonment greater than one year; AND (c) the evidence is offered to prove any fact essential to sustain judgment.
6) Other Exceptions Enumerated under FRE 803 - Other: (a) records of religious organizations regarding personal or family history; (b) marriage and baptismal certificates; (c) family records; (d) records of documents affecting an interest in property; (e) ancient documents (20 years old); (f) market reports; (g) reptuation concerning personal or family history, boundaries, general history, or character; and (h) judgments regarding proof of matters of personal, family, or general history if the matter was essential to the judgment and could be proved by evidence of reputation.

Question 149

What is the residual exception in 807?

Answer 149

Residual Exception/Catch-All Exception (FRE 807) - ADMISSIBLE IF:

1) Equivalent circumstantial guarantees of trust;
2) It is offered as evidence of a material fact;
3) It is more probative than any other evidence on the point; AND
4) Admitting the hearsay statement will best serve the purpose of the FRE and the interest of justice.

REASONABLE NOTICE MUST BE GIVEN TO THE OTHER SIDE TO USE THIS.

Question 150

What are the Constitutional limits to hearsay admissions?

Answer 150

6TH AMENDMENT - CONFRONTATION CLAUSE

A TESTIMONIAL STATEMENT is admissible against a CRIMINAL defendant ONLY IF:

1) A declarant is UNAVAILABLE; AND
2) Defendant had an opportunity to CROSS examine the declarant prior to trial.

“Testimonial statement”:

1) A statement made to police during the course of questioning with the primary purpose of enabling police to provide assistance to someone is NOT TESTIMONIAL and would probably be ADMISSIBLE.
2) If made during the course of questioning with the primary purpose of using the statement in a criminal prosecution, it is TESTIMONIAL.

“Unavailable” - To use a testimonial statement and overcome the hearsay, the prosecution must show the defendant CAUSED the declarant’s unavailability and the defendant did it with the INTENT TO MAKE THE DECLARANT UNAVAILABLE.

14TH AMENDMENT DUE PROCESS CLAUSE

May prevent appliication of a hearsay rule when the rule would restrict the defendant’s ability to mount a defense.

Question 151

Constitutional limitations - “Face-to-Face Confrontation”

Answer 151

The Confrontation Clause generally requires a face-to-face confrontation between the defendant and a witness in court.

EXCEPTION: When there is an important public interest, such as protecting a child when the child witness is a victim of the defendant’s sex crime.