Evidence

Question 1

when is “specific acts” character evidence permitted in a party’s case-in-chief?

[character evidence]

Answer 1

1. when character is directly at issue in the case
2. in sexual assault or child molestation cases
3. when the act is independently relevant (MIMICO)

Question 2

MIMICO

[character evidence]

Answer 2

1. M - Motive
2. I - Intent
3. M - Mistake (absence of)
4. I - Identity
5. C - Common plan or scheme
6. O - Opportunity

Question 3

in a criminal case, when may the prosecution introduce evidence of the defendant’s bad character?

[character evidence]

Answer 3

1. as rebuttal when the D “opens the door”
2. specific acts that are independently relevant (MIMICO)
3. specific acts by D in sexual assault or child molestation case (admissible for any relevant purpose, including propensity)

Question 4

when may evidence of the character of the victim be presented?

[character evidence]

Answer 4

1. D may introduce if relevant to his innocence (generally in self-defense cases)
2. prosecution may rebut with (i) D’s bad character for same trait or (ii) victim’s good character for same trait

Question 5

flowchart for character evidence in a civil case

[character evidence]

Answer 5

1. is character directly at issue - if no, character evidence is NEVER ALLOWED; if yes:
2. all three types of character evidence are permitted: opinion, reputation, and specific acts

Question 6

flowchart for character evidence in sexual assault/child molestation cases

[character evidence]

Answer 6

1. D’s sexual assault of others - regardless of conviction - is admissible to prove guilt (civ & crim)
2. victim’s character - opinion and reputation evidence ONLY - offered to show that evidence originates from someone other than the accused; specific instances of sex acts between victim and accused were consensual

Question 7

crim cases: when can the prosecution use character evidence in its case-in-chief?

[character evidence]

Answer 7

General rule: never to show propensity; however, it can be used to show MIMICO - motive, intent, mistake (absence of), identity, common scheme or plan, opportunity

Question 8

flowchart for analyzing D’s use of character evidence in a non-homicide crim case

[character evidence]

Answer 8

1. who is it about - D or victim;
2. IF D - only use relevant traits to charge; only opinion/reputation; opens the door for prosecution to use character evidence w/r/t D
3. IF VIC - only relevant traits of vic; opens door for prosecution to use character evidence of vic

Question 9

flowchart for analyzing D’s use of character evidence in a homicide crim case

[character evidence]

Answer 9

1. must use relevant traits of vic as first aggressor

2. prosecution can now use character evidence showing the vic was peaceful AND that the D was aggressive

Question 10

2 rules for logical relevancy

[types of admissible evidence]

Answer 10

1. all irrelevant evidence is inadmissible
2. all relevant evidence is admissible, absent an “exclusionary rule”

NOTE: relevancy rules are construed liberally in favor of admitting evidence

Question 11

definition of relevant evidence

[types of admissible evidence]

Answer 11

relevant evidence is evidence that has ANY tendancy to prove OR disprove a material fact

Question 12

2 components of relevant evidence

[types of admissible evidence]

Answer 12

1. probative value

2. material fact

Question 13

probative value definition

[types of admissible evidence]

Answer 13

EXAMPLES:
1. in an auto negligence case, does evidence that the D was drunk at the time of the accident tend to prove he was negligent? YES
2. in an auto negligence case, does evidence that the D was drunk three months before the accident tend to prove he was negligent? NO

Question 14

material fact definition

[types of admissible evidence]

Answer 14

EXAMPLES:
1. is evidence that D was speeding in a negligence case material? YES
2. is evidence of consent in a statutory rape case material? NO
3. is evidence of voluntary intoxication in an arson trial material? NO

Question 15

probative value balancing test

[types of admissible evidence]

Answer 15

certain evidence, despite being logically relevant, is inadmissible if its probative value is SUBSTANTIALLY OUTWEIGHED by

1. unfair prejudice
2. time concerns or
3. the potential that it might confuse the jury (but NOT unfair surprise)
   - –
   (a) this is a fact-sensitive determination made by the JUDGE
   (b) evidence is “unfairly prejudicial” if it invites the jury to make a decision on an IMPROPER ground

Question 16

examples in which a person’s character is an element of a claim or defense

[types of admissible evidence]

Answer 16

1. the entrustee’s negligence in a negligent entrustment case (but not the entrustor’s negligence)
2. the employee’s character in a negligent hiring/retention/supervision case (but not the employer’s negligence)
3. the plaintiff’s character in a defamation case to prove the truth OR to minimize damages
4. the accused’s character in a criminal case where the accused raises entrapment as a defense
5. a parent’s character in a child custody case

Question 17

rule for use of the accused’s character in crim case

[types of admissible evidence]

Answer 17

1. relevant traits of the accused (peacefulness in a murder case, honesty in a perjury or larceny case) are admissible to prove the accused is innocent
2. opinion and reputation evidence ONLY

Question 18

prosecution’s rebuttal of D’s use of character evidence

[types of admissible evidence]

Answer 18

1. prosecutor may inquire about relevant SPECIFIC ACTS of accused (including arrests) on cross-examination to discredit witness’s testimony; BUT, prosecution must have good faith basis to ask question and no extrinsic evidence is allowed
2. on rebuttal, prosecutor may introduce bad OPINION AND REPUTATION evidence of accused via new witnesses

Question 19

rule for D’s use of victim’s character in crim case

[types of admissible evidence]

Answer 19

1. relevant traits of the victim (i.e., violence in a murder, battery, or assault case where the accused claims self-defense) are admissible to prove that D is innocent
2. opinion and reputation evidence ONLY

Question 20

procedures for prosecution’s use of character evidence in case-in-chief (not to prove conformity)

[types of admissible evidence]

Answer 20

if prosecution is using evidence for a MIMICO purpose,

1. on request of D, the prosecution must give reasonable and detailed notice of her plans to use such evidence
2. such specific bad act evidence is not admissible if the risk of unfair prejudice substantially outweighs its probative value

Question 21

examples of prosecution using character evidence for MIMICO purposes/not to show conformity

[types of admissible evidence]

Answer 21

1. evidence that D stole the getaway car the day before the bank robbery to show general scheme
2. evidence that D was arrested for a DUI in Chicago on July 1 to prove that he had the opportunity to commit murder in Chicago on July 1
3. evidence that D was having an adulterous affair to prove motive for killing wife
4. evidence that D stabbed A five years ago to prove that D’s recent shooting of A was not accidental

Question 22

admissibility of evidence of repair

[types of admissible evidence]

Answer 22

HOWEVER, such evidence is admissible for other purposes, including:
1. to prove ownership or control of property (if disputed)
2. to prove that a safer product was feasible (if controverted)
3. to prove spoliation
4. evidence of subsequent repairs is also admissible if it was performed by someone other than the D

Question 23

admissibility of similar happenings evidence

[types of admissible evidence]

Answer 23

by contrast, evidence of prior accidents or claims (if substantially similar to P’s accident or claim) is generally admissible against the D to prove:
1. the D had notice of an unsafe or illegal condition, event, or product
2. the condition, event, or product was unsafe or illegal
3. a safer design was feasible (if controverted by D)
4. causation in a complex case (ex: food poisoning)
—
evidence of an absence of prior accidents (to prove the D’s property or product was safe) is rarely admissible

Question 24

admissibility of settlements & offers to compromise in civil cases

[types of admissible evidence]

Answer 24

for this rule to apply, there must be a DISPUTE as to fault or the amount of the claim at the time of the offer
—
such evidence is admissible for other purposes, such as to prove bias or to negate a contention of undue delay by an insurer, HOWEVER - such evidence is NOT admissible for impeachment

Question 25

admissibility of no contest pleas and withdrawn guilty pleas

[types of admissible evidence]

Answer 25

unwithdrawn guilty pleas are admissible (subject to the hearsay and impeachment rules)
—
such evidence is admissible for other purposes, such as to prove bias or to negate a contention of undue delay by an insurer, HOWEVER - such evidence is NOT admissible for impeachment

Question 26

admissibility of offers to pay medical expenses

[types of admissible evidence]

Answer 26

evidence of offers to pay another’s medical expenses or the actual payment thereof (but NOT statements of fault made in connection therewith) is inadmissible

Question 27

admissibility of liability insurance

[types of admissible evidence]

Answer 27

evidence that a person has or does not have liability insurance is inadmissible to prove fault or ability to pay a judgment BUT is admissible to prove ownership or bias of a witness or motive

Question 28

use of victim’s character in a sexual assault case

[types of admissible evidence]

Answer 28

specific instances of such character are admissible to prove that the origin of semen, pregnancy, or physical injuries is someone other than the D; specific instances of sex between the D and the victim are also admissible to prove consent; both of these exceptions require pretrial notice before they can be used

Question 29

rule for attorney-client privilege

[types of admissible evidence]

Answer 29

confidential communications between an attorney (and her representatives, such as paralegals, clerks, investigators, consulting experts, etc.) and a client (and his representatives, such as interpreters, parents of small children, etc.) for the purpose of seeking legal advice is protected from disclosure during discovery and at trial

Question 30

attorney-client privilege and third parties present

[types of admissible evidence]

Answer 30

the privilege does not apply if non-essential third parties (e.g., bystanders, friends, witnesses, testifying experts) are involved in or otherwise overhear the communications

an eavesdropper will not destroy the privilege if the attorney and client took reasonable steps to preserve confidentiality

Question 31

attorney-client privilege and corporations

[types of admissible evidence]

Answer 31

as a general rule, the privilege applies to the communications by corporate employees (regardless of their position) when the communications concern matters within the scope of the employee’s corporate duties and the employee is aware that the information is being furnished to enable the attorney to provide legal advice to the corporation

Question 32

attorney-client privilege and disclosure to others

[types of admissible evidence]

Answer 32

an inadvertent disclosure does not constitute a waiver if the disclosing party (a) had taken reasonable steps to prevent the disclosure and (b) after discovering the disclosure, took reasonable steps to rectify the error

Question 33

attorney-client privilege and preexisting facts and documents

[types of admissible evidence]

Answer 33

if a client brings documents from her business to the lawyer’s office to obtain legal advice about them, the discussion between the lawyer and client about the documents are privileged, but the documents themselves are not; moreover, if a client discusses the facts of a legal matter with her lawyer, the discussion about the facts is privileged, but the facts themselves are not

Question 34

the length of time the attorney-client privilege covers

[types of admissible evidence]

Answer 34

the privilege survives the client and the representation

Question 35

exceptions to the attorney client privilege

[types of admissible evidence]

Answer 35

1. the client sought the communication to commit an ongoing or future crime or fraud (regardless of the lawyer’s knowledge)
2. communications with joint clients (but such communications are still privileged to outsiders)
3. suits between the attorney and client, and suits, disciplinary actions, or crimes arising out of the representation
4. the communications were with a now-deceased client about the disposal of the client’s estate
5. the client has placed the communication in issue (ex: using the defense of advice of counsel)

Question 36

attorney-client privilege and information incident to the representation

[types of admissible evidence]

Answer 36

the privilege does NOT cover information “incident to the representation,” such as:

1. the fact that an attorney-client relationship exists
2. the client’s fee arrangement
3. the amount paid to the lawyer by the client
4. the client’s identity (except in rare cases)

Question 37

attorney-client privilege and lawyer observations

[types of admissible evidence]

Answer 37

the privilege does not protect observations made by the lawyer if those same observations could have been made by third parties (ex: lawyer notices scratch marks on client’s face)

Question 38

psychotherapist-patient privilege rule

[types of admissible evidence]

Answer 38

the patient is the holder of the privilege and may waive it voluntarily or accidentally

Question 39

exceptions to the psychotherapist-patient privilege

[types of admissible evidence]

Answer 39

1. the patient places her mental condition in issue (e.g., suit for IIED)
2. court-ordered exams
3. ## civil commitment hearingsin many states, if a patient makes specific threats regarding an identifiable third party, the psychotherapist must notify the third party of the threats; failure to do so will result in civil liability

Question 40

clergy-communicant privilege rule

[types of admissible evidence]

Answer 40

a person may refuse to disclose, and prevent others from disclosing, communication to a member of the clergy for purposes of spiritual advice

the privilege applies to the clergy of any religion, and prevents disclosure during discovery and at trial

Question 41

two spousal privileges

[types of admissible evidence]

Answer 41

1. spousal immunity

2. confidential marital communications privilege

Question 42

spousal immunity rule

[types of admissible evidence]

Answer 42

1. the privilege protects CONFIDENTIAL COMMUNICATIONS (i.e., not overheard by anyone else) between spouses made DURING A VALID MARRIAGE
2. it does not apply to OBSERVATIONS made by spouses during the marriage
3. applies to both civil and criminal trials and belongs to both spouses (i.e., either spouse may prevent disclosure)
4. if it applies, it continues after the marriage ends by divorce or the death of a spouse
5. the privilege does not apply to crimes committed against the witness-spouse or children in their custody
6. it does not apply where the spouses are accused of jointly committing a crime
7. waived if either spouse discloses a significant part of the confidential communication to a 3p

Question 43

physician-patient privilege

[types of admissible evidence]

Answer 43

1. STATE LAW ONLY
2. confidential communications between a patient and a physician for purposes of treatment is protected from disclosure
3. the patient is the holder of the privilege and may waive it voluntarily or accidentally
   - –
   exceptions:
4. patient places medical condition in issue (e.g., sues for personal injuries)
5. no privilege for communications between a patient and the patient’s testifying expert
6. no privilege for communications between a patient and a FRCP 35 examiner

Question 44

hearsay definition

[types of admissible evidence: hearsay]

Answer 44

1. an OUT OF THIS COURT (i.e., all statements except those made by witnesses during the current trial while testifying before the trier of fact)
2. STATEMENT (i.e., oral, written, or non-verbal conduct intended as an assertion)
3. made by a HUMAN declarant (not animals or machines)
4. offered for the TRUTH OF THE MATTER ASSERTED

Question 45

when something is offered for the truth of the matter asserted

[types of admissible evidence: hearsay]

Answer 45

a statement is “offered for the truth of the matter asserted” when it is offered to prove its contents (ex: P offers X’s statement that “D’s light was red” to prove that D ran a red light)

Question 46

2 categories of statements that are not offered for the truth of the matter asserted

[types of admissible evidence: hearsay]

Answer 46

1. verbal acts (i.e., legally operative facts)

2. notice to or effect on listener

Question 47

verbal acts (i.e., legally operative facts)

[types of admissible evidence: hearsay]

Answer 47

contracts, offers, acceptances, statements of gift, deeds, warranties, wills, trusts, defamation, solicitation, conspiracy, fraud, bribery, waiver, permission, and other statements (oral or written) that have independent legal significance

Question 48

notice to or effect on the listener

[types of admissible evidence: hearsay]

Answer 48

statements that put someone on notice (e.g., five minutes before P fell, I told D that the floor was wet) or that show the effect on the listener (e.g., the day before D killed V, I told D that V was “gunning for him” is admissible to prove that D thought he was acting in self-defense)

Question 49

2 rules for admissibility of hearsay

[types of admissible evidence: hearsay]

Answer 49

1. if a statement fits within the definition of hearsay, it is inadmissible UNLESS the proponent proves it either (i) qualifies as definitional non-hearsay OR (ii) qualifies for one of the many hearsay exceptions - IN EITHER CASE, IT IS ADMISSIBLE AS SUBSTANTIVE EVIDENCE
2. if a statement is hearsay and does not qualify as definitional non-hearsay or for a hearsay exception, it may NOT be admitted as substantive evidence BUT it may be used for NON-SUBSTANTIVE PURPOSES, such as impeaching a witness or as the basis for an expert’s opinion

Question 50

admissibility of prior inconsistent statements

[types of admissible evidence: hearsay]

Answer 50

prior inconsistent statements made at trials, hearings (including grand juries), and depositions under oath are admissible when made by a witness who is in court testifying

Question 51

definition of and admissibility of prior consistent statements

[types of admissible evidence: hearsay]

Answer 51

prior consistent statements to refute a charge of recent fabrication (the prior statement must predate the event–e.g., a bribe–alleged to have caused the fabrication) OR to rehabilitate the credibility of the witness when attacked on other NON-CHARACTER grounds, such as faulty memory or inconsistency (but not criminal convictions, prior acts of untruthfulness, or reputation or opinion testimony regarding the witness’s untruthfulness) is admissible when made by a witness who is in court testifying

Question 52

definition of and admissibility of prior visual identifications

[types of admissible evidence: hearsay]

Answer 52

prior visual identifications (e.g., lineups, showups, mug shots, preparing or identifying composite sketches) of persons (these statements may be offered by the person making the ID or anyone who witnessed it) are admissible when made by a witness who is in court testifying

Question 53

definition of and admissibility of statements made by a party opponent

[types of admissible evidence: hearsay]

Answer 53

statements (including opinions and conclusions) made by a party that are offered AGAINST that party are admissible, including:

1. statements made by a party’s authorized spokesperson
2. statements made by a party’s agent or employee if that statement concerns a matter within the scope of the person’s agency or employment and is made during the course thereof
3. statements that a party hears and either expressly adopts or remains silent (silent adoption constitutes an admission ONLY if an ordinary person would naturally refute or deny the statement which, because of Miranda, never occurs in response to statements made by police during custodial interrogation)
4. statements of co-conspirators made IN FURTHERANCE OF (i.e., advances the conspiracy’s objectives) and DURING THE COURSE OF the conspiracy

Question 54

definition of and admissibility of present sense impression

[types of admissible evidence: hearsay]

Answer 54

a statement describing or explaining an event or condition made while the declarant is perceiving it or immediately thereafter is admissible regardless of the availability of the declarant

Question 55

definition of and admissibility of excited utterances

[types of admissible evidence: hearsay]

Answer 55

a statement made while the declarant is under the stress of a startling event that relates to the event (e.g., “Oh my God! Bill’s car just ran over that child.”) is admissible regardless of the availability of the declarant

this rule has a longer time period than present sense impression, but it is probably limited to minutes in most cases

Question 56

definition of and admissibility of state of mind or emotion

[types of admissible evidence: hearsay]

Answer 56

a statement made by the declarant’s THEN-EXISTING state of mind (such as motive, intent, or plan) or emotion, sensation, or mental feeling but NOT. statement of memory or belief about past actions or events, unless it relates to the validity or terms of the declarants will, is admissible regardless of the availability of the declarant

Question 57

admissibility of physical condition

[types of admissible evidence: hearsay]

Answer 57

a statement of the declarant’s THEN-EXISTING bodily condition, pain, or symtpoms (“My back hurts now”) regardless of the purpose for which such statement is made, is admissible regardless of the availability of the declarant

Question 58

admissibility of medical history or symptoms

[types of admissible evidence: hearsay]

Answer 58

to be admissible, the statement must be relevant to diagnosis or treatment (“I was hit by a car” is relevant to diagnosis and treatment, but “the car ran a red light” or “the car was driven by Mike Jones” is not)

Question 59

x

Answer 59

x