Evidence

Question 1

Relevance

Answer 1

(1) Any tendency to make a fact of consequences to the determination of the action more probable or less probable than it would be without the evidence
(2) All evidence must meet this minimum standard to be admissible

Question 2

Rule 403 Test

Answer 2

The court has discretion to exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following:

1. Unfair prejudice
2. Confusion of the issue
3. Misleading the jury
4. Undue delay
5. Waste of time
6. Needless presentation of cumulative evidence

Question 3

Subsequent Remedial Measures

Answer 3

A precautionary measure put into place after an injury. This evidence is inadmissible to prove the following (but may be admitted for other purposes):

1. Negligence or culpable conduct
2. Defect in a product or design
3. Need for a warning or instruction

Question 4

Offers of Compromise

Answer 4

If a claim is disputed as to validity or amount, these statements – and any other statements or conduct in the negotiations – are inadmissible for the following purposes:

1. Proving or disproving the validity or amount of the claim
2. Impeaching a witness with a prior inconsistent statement or contradiction

Question 5

Offers to Pay Medical Expenses

Answer 5

These statements – often made for humanitarian motives – are inadmissible, but accompanying statements (including admission of fault) will not be excluded.

Question 6

Evidence of Liability Insurance

Answer 6

Inadmissible to prove fault or ability to pay a judgment, but admissible for other purposes (e.g., to prove ownership or control).

Question 7

Character Evidence to Show Conformity

Answer 7

(1) Evidence of a person’s character trait, offered to prove that she acted the same way during the events of the current case
(2) Civil cases – not admissible

(3) Criminal cases –
1. Defendant may initiate if trait is relevant to defendant’s innocence (reputation or opinion only)
2. Prosecution may rebut by
a. Calling its own character witnesses (reputation or opinion)
b. Cross-examining defendant’s character witness about defendant’s bad acts

Question 8

Character Evidence to Prove Direct Issue

Answer 8

(1) Rarely, a person’s character trait is an essential element of a charge, claim, or defense, such as:
1. Negligent entrustment/hiring
2. Defamation
3. Child custody
(2) All types of character evidence (reputation, opinion, specific acts) are admissible in this situation

Question 9

Character Evidence Used to Impeach

Answer 9

Evidence that a witness has a bad character for truthfulness, offered to show that the witness’s testimony is not credible

  1. Reputation or opinion evidence of untruthfulness
 2. Prior convictions
 3. Prior acts of misconduct involving untruthfulness

Question 10

Habit Evidence

Answer 10

(1) Evidence of a person’s regular response to a specific set of circumstances
(2) Admissible to prove that the person acted the same way during the events at issue in the case

Question 11

Defendant’s Specific Acts of Misconduct – Permissible Purposes for Offering

Answer 11

1. Motive
2. Intent
3. Absence of mistake or accident
4. Identity/modus operandi
5. Common plan or scheme
6. Any other relevant purpose except general criminal disposition

Question 12

Impeachment with Prior Inconsistent Statement – Foundation for Extrinsic Evidence

Answer 12

(1) At some point during the proceeding, before or after extrinsic evidence of the statement is introduced:
1. Witness must be given an opportunity to explain or deny
2. Adverse party must be given an opportunity to examine the witness
(2) These requirements do not apply to opposing party’s statements or when impeaching a hearsay declarant

Question 13

Impeachment with Evidence of Bias or Interest

Answer 13

(1) Witness may be impeached with evidence that she has some motive to lie
(2) Extrinsic evidence permitted if proper foundation is laid (asking the witness about the impeaching fact)

Question 14

Impeachment with Prior Criminal Conviction

Answer 14

(1) Types of crimes:
1. Crime involving dishonesty or false statement (felony or misdemeanor) – court has no discretion to exclude
2. Any other felony – court has discretion to exclude

(2) General time limit – more than 10 years since the date of release or confinement, whichever is the later date
(3) Conviction may be proven on cross-examination or through extrinsic evidence (record of conviction)

Question 15

Impeachment with Prior Bad Acts Involving Untruthfulness

Answer 15

A witness may be impeached by this method on cross-examination only; extrinsic evidence of the impeaching facts is never permitted.

Question 16

Impeachment by Contradiction

Answer 16

(1) A witness may be impeached with facts that show he was lying or mistaken in part of his testimony
(2) Extrinsic evidence not allowed if witness’s testimony concerned a collateral matter

Question 17

Hearsay Definition – Truth of the Matter Asserted

Answer 17

To be hearsay, the out-of-court statement must be offered for the truth of its contents

  1. Common nonhearsay purposes (statements not offered for their truth):
         a. To prove the statement’s effect on the reader/listener (e.g., notice of dangerous condition)
         b. To prove a legally operative fact (e.g., words of defamation)
         c. Circumstantial evidence of declarant’s state of mind (e.g., to prove insanity) d. Impeachment

Question 18

Prior Inconsistent Statement – Hearsay Exclusion

Answer 18

Not hearsay when:

  1. Made under penalty of perjury (under oath) at a trial, hearing, proceeding, or deposition
 2. Declarant is now testifying and subject to cross-examination

Question 19

Opposing Party’s Statement (Admission by a Party-Opponent) – Hearsay Exclusion

Answer 19

A statement by or attributable to a party, offered against that party, is not hearsay

  1. Special types:
         a. By Silence–failing to respond to an accusation that a reasonable person would have denied.
         b. Vicarious–statements by someone else, but attributable to the party because of the relationship between them (including a statement by the party’s employee concerning a matter in the scope of employment).

Question 20

Dying Declaration

Answer 20

(1) Declarant unavailable (but need not be dead)
(2) Declarant believed death was imminent
(3) Statement concerns the cause or circumstances of the apparently impending death

(4) Offered in a criminal homicide case or in any civil case
a) Does not apply in nonhomicide criminal cases

Question 21

Former Testimony

Answer 21

(1) Made during a trial, hearing, or deposition
(2) Declarant is now unavailable
(3) The party against whom the statement is now offered (or in civil cases, the party’s predecessor in interest) had an opportunity and similar motive to develop the statement on cross-or direct examination.

Question 22

Present State of Mind or Physical Condition

Answer 22

Concerns the declarant’s current emotion, feeling, sensation, or physical condition

  1. Statements of intent may be offered to prove that the intent was probably carried out
 2. No backwards-looking statements of memory or belief
         a. Exception for statements remembered or believed concerning the validity/terms of declarant’s will

Question 23

Excited Utterance

Answer 23

(1) Concerns a startling event

(2) Made while under the stress of excitement caused by the event

Question 24

Present Sense Impression

Answer 24

(1) Describes or explains an event or condition

(2) Was made while perceiving the event or condition or immediately thereafter

Question 25

Statement for Medical Diagnosis or Treatment

Answer 25

(1) Statements of physical condition (past or present) made for the purpose of obtaining medical diagnosis or treatment
(2) Includes statements about the cause of the condition, but only if reasonably pertinent to diagnosis or treatment

Question 26

Records of a Regularly Conducted Activity (Business Records)

Answer 26

A record of an act, event, condition, opinion, or diagnosis, if:

1. Made at or near the time it occurred
2. Entrant had knowledge of the matters recorded, or obtained the information from someone who had knowledge and a business duty to report
   a. Statements by outsiders need an independent hearsay exception
3. Made in the course of a regularly conducted activity of a business or other organization
4. Making the record was a regular practice of that activity
5. Authenticated by testimony or written certification by records custodian or other qualified persons

Question 27

Recorded Recollection

Answer 27

(1) Witness once had personal knowledge of the facts recited in the writing
(2) Witness now has insufficient recollection to testify fully and accurately
(3) Writing was made or adopted by witness
(4) Writing was accurate when made
(5) If admissible, may be read into evidence, but may not be received by the jury as an exhibit unless offered by an adverse party

Question 28

When Hearsay Statements Will Be Excluded under the Confrontation Clause

Answer 28

1. Statement is offered against a criminal accused
2. Declarant is unavailable
3. Statement is testimonial in nature
   a. Actual testimony
   b. Statements to law enforcement to aid in prosecution (but not to assist in an outgoing emergency)
   c. Forensic analysis reports accursing targeted person of criminal conduct
4. Accused had no opportunity to cross-examine the declarant about the statement prior to trial

Question 29

Authentication of Evidence – General Standard

Answer 29

Proof sufficient to support a jury finding that the item of evidence is what the proponent claims it is.

Question 30

Best Evidence Rule

Answer 30

1. To prove the content of a writing, the original writing (includes a photocopy) generally must be produced
   a. Secondary evidence is permitted if a satisfactory explanation is given
2. Generally applies in two situations only:
   a. Writing is a legally operative or dispositive instrument (e.g., contract, will, divorce decree)
   b. Witness’s knowledge of a fact results from having read it in the document

Question 31

Judicial Notice of Facts

Answer 31

1. A court’s recognition of a fact as true without formal presentation of evidence
2. Applies to:
   a. Facts of common knowledge in the jurisdiction
   b. Facts that can be determined from easily accessible sources that are known to be accurate
3. The jury must accept the fact as conclusive in a civil case, but not in a criminal case.