Evidence

Question 1

When can a witness may be asked about specific instances of conduct?

Answer 1

Only in character for truthfulness testimonials.

Only in cross-examination if it is probative of the:

i) truthfulness or untruthfulness of
(ii) the witness or
(iii) another witness about whose character the witness being cross-examined has testified.

Question 2

When can evidence of a witness’ juvenile adjudication be introduced?

Answer 2

A criminal defendant may impeach a witness by:

1) introducing evidence of a witness’s juvenile adjudication to show motive to lie or bias, or
2) impeach a witness’s character for truthfulness with the witness’s juvenile adjudication when an adult’s conviction for the offense would be admissible to attack the adult’s credibility, and
* admitting the evidence is necessary to fairly determine guilt or innocence.

Question 3

Can I present evidence that contradicts a fully integrated contract, if this evidence refers to a conduct subsequent to the execution of the contract?

Answer 3

<p>Yes. The parol evidence rule operates to exclude evidence that, if introduced, would change the terms of a written agreement. However, only evidence of prior or contemporaneous negotiations is subject to the parol evidence rule; evidence of negotiations conducted after the execution of the written contract is not prohibited by the parol evidence rule and may be offered to prove subsequent modifications. Because the buyer sent the email after the contract was executed, it would not be prohibited by the parol evidence rule.</p>

Question 4

Is an out-of-court prior identification statement admissible if the witness is now unavailable?

Answer 4

<p>No.Under Rule 801(d)(1)(C), a previous out-of-court identification of a person after perceiving that person is admissible as substantive evidence, but only if the witness testifies at the present trial or hearing and is subject to cross-examination concerning the identification. Here, since the witness died before the trial, her previous out-of-court identification of the defendant is inadmissible.</p>

Question 5

How does a judge decide preliminary questions regarding the competence of evidence?

Answer 5

Trial judge generally decides preliminary questions regarding the competency of evidence, including the admissibility of evidence, whether privilege exists, and whether a person is qualified to be a witness.

Hearings on preliminary matters must be conducted outside the presence of the jury when the hearing involves the admissibility of confessions, when a defendant in a criminal case is a witness and so requests, or when justice requires it.

(Standard of review: abuse of discretion)

Question 6

When deciding preliminary questions regarding the competence of evidence should a judge consider privileged evidence (use it to assess the evidence)?

Answer 6

<p>No, a judge is bound by the Federal Rules in deciding these questions, except with respect to privileges. This means privileged evidence must not be factored in when assessing the evidence competence.</p>

Question 7

Can the Court (judge) consider otherwise inadmissible evidence when deciding on the competency of evidence?

Answer 7

<p>Yes, a judge may consider everything (e.g.: hearsay or affidavits) except privileged evidence.</p>

Question 8

Does a judge must to give a party an opportunity to be heard before taking judicial notice?

Answer 8

<p>No, when a party makes a timely request, a judge must give the party an opportunity to be heard on the propriety of taking judicial notice and the nature of the fact to be noticed. However, a judge is not required to provide this opportunity before taking judicial notice of an adjudicative fact.</p>

Question 9

Does a rebuttable presumption shift the burden of production or persuasion?

Answer 9

<p>A rebuttable presumption shifts the burden of production, but not the burden of persuasion, to the opposing party. A rebuttable presumption may be overcome by evidence to the contrary. If no contrary evidence is introduced, the judge must instruct the jury to accept the presumption. If contrary evidence is introduced, as is the case here, then the presumption no longer has a preclusive effect.</p>

Question 10

What does mean “the truth of the matter asserted”?

Answer 10

It means the truth of the content of the information provided.

Not necessarily the claim being disputed at court.
E.g.: “woman doesn’t belong in the field” does not prove that “coach acted in a discriminatory way”, and therefore is not hearsay.

Question 11

Will verbal acts or conducts, or legally operative facts be considered hearsay?

Answer 11

They will usually not, except if used for the truth of the matter asserted. Examples: someone mentions that a contract was made, or that someone said that showing a conduct “I am really strong”. These will be operative facts and thus not hearsay.

Question 12

How would personal knowledge trumps the best evidence rule?

Answer 12

<p>A witness with personal knowledge does not need to produce a document if she knows the same information from personal knowledge.</p>

Question 13

Who has the burden of proof regarding the admissibility of a conviction that is less than 10 years old for a felony crime not involving fraud or dishonesty?

Answer 13

The defendant has the burden of proof.

For a witness other than a criminal defendant, the court may exclude such evidence when the party objecting to the impeachment shows that the probative value is substantially outweighed by the prejudicial effect (i.e., the Rule 403 standard).

Question 14

Can a memory refresher item ever be introduced into evidence?

Answer 14

<p>Yes, when the item used to refresh a witness’s recollection is a writing, the adverse party is entitled to have the document produced, to inspect the document, to cross-examine the witness about it, and to introduce any relevant portion into evidence.</p>

Question 15

What is the minimum required for the authentication of a photograph or a recording?

Answer 15

<p>"testimony of a witness with personal knowledge that the object accurately depicts what its proponent claims it does". Sufficient evidence to support a finding that the thing is what its proponent claims it is (photographs, diagrams, maps, movies).</p>

Question 16

Why do x-ray, EEGs, and other technical items require an increased level of authentication?

Answer 16

Because X-ray images, electrocardiograms, and similar items are physical representations of things that cannot otherwise be seen (i.e., the inner workings and functionality of a human body).

As such, unlike other reproductions, they cannot simply be authenticated by the testimony of a witness claiming that they are accurate reproductions of the facts.

Question 17

How can a lay witness testify as to whether a document is in a person’s handwriting?

Answer 17

<p>A lay witness with personal knowledge of the claimed author’s handwriting may testify as to whether the document is in that person’s handwriting. However, the lay witness must not have become familiar with the handwriting for the purposes of the current litigation.</p>

Question 18

Is real physical evidence subject to the best evidence rule?

Answer 18

No.

Question 19

Can a defendant waive his rights to the plea negotiation exclusion rule?

Answer 19

<p>Yes,although statements made by a defendant during plea negotiations are generally inadmissible pursuant to Federal Rule 410, the protection afforded by this rule may be waived by the defendant if the defendant knowingly and voluntarily, and in the presence of counsel, waives this exclusion.</p>

Question 20

Can a settlement agreement be introduced with the purpose of establishing the validity of a claim or the amount of damages?

Answer 20

<p>No,evidence of a settlement offer, including evidence of the acceptance of such an offer, is not admissible for the purpose of establishing the validity of a claim or the amount of damages.</p>

<p>When there are more than two parties, a settlement agreement entered into by a party with an adverse party cannot be used by a remaining adverse party to prove or disprove the amount of an unsettled claim.</p>

Question 21

Would a D’s statement not to worry since he has insurance be admissible?

Answer 21

No, evidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully. Here, the defendant told the plaintiff not to worry because he had car insurance. Accordingly, the plaintiff is not permitted to admit this statement to prove that the defendant acted negligently. Because there is no other reason for admitting this statement, it is inadmissible under a public policy exclusion.

Question 22

Can sexual past misconduct character evidence be admissible despite not related to the specific case in a civil lawsuit?

Answer 22

Yes, evidence concerning past sexual assault or child molestation by a defendant in a case in which the claim for relief is based on the defendant’s sexual misconduct is admissible.

Any evidence of past sexual assault or child molestation by a defendant may be admitted, regardless of whether the specific circumstances of the sexual assault or molestation are similar or entirely different.

Question 23

Are character traits (e.g.: careless) admissible in civil cases?

Answer 23

No.

In a civil case, evidence of a person’s character (or character trait) generally is inadmissible to prove that the person acted in accordance with that character (or character trait) on a particular occasion.

Although the fact that the defendant is careless may be probative in that it has a tendency to make it more probable that the defendant was negligent in the matter at hand, character evidence is inadmissible to prove that a person acted in accordance with that character on a particular occasion.

Question 24

In civil cases, how is judicial notice informed to the jury?

Answer 24

“conclusively established”

The federal rules require:

1) the judge to instruct the jury that
2) the judicially noticed fact has been conclusively established
3) when the criteria for judicially noticed facts are met.

Question 25

What are the requirements for a judicial noticed fact?

Answer 25

Under FRE 201(b)(2), a judicially noticed fact must be one not subject to reasonable dispute in that it is either:

(1) generally known within the territorial jurisdiction of the trial court or
(2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.

Question 26

Can a party be asked about specific acts in any cross-examination?

Answer 26

Only when deposing about the truthfulness or untruthfulness character of another witness.

Question 27

How can X-Rays and other technical data be authenticated?

Answer 27

a) it must be shown that an accurate process was used
b) that the machine used was working properly,
c) the operator of the machine was qualified to operate it.

The chain of custody must also be established.

Question 28

What is the advantage of getting a definitive ruling on the admissibility of evidence?

Answer 28

Once the court makes a definitive ruling on the admissibility of evidence, a party need not renew an objection to the admission of the evidence, even if the ruling was made before the trial began.

Question 29

When a party requests the court to take judicial notice and provides the necessary information, is the court required to do so?

Answer 29

Yes.
Under FRE 201:
1) the court must take judicial notice
2) of an adjudicative fact 
3) if a party so requests and 
4) provides the court with the necessary information to do so.

Question 30

Are criminal defendants required to provide prosecution of notice of an evidence to be introduced?

Answer 30

No.
When a criminal defendant requests, the prosecution must provide reasonable notice of the general nature of such evidence that the prosecution intends to offer at trial. The defense is not required to give the prosecution the same notice.

Question 31

When can good character be proved by specific instances of conduct outside of the scope of character impeachment of witnesses taking the stand?

Answer 31

When character is an essential element of the charge or defense (?)

Question 32

Before an expert witness may testify, which are the determinations to be made by the court about the subject matter of the witness’s testimony?

Answer 32

(i) is scientific, technical, or otherwise specialized knowledge, which focuses on the reliability of the testimony; and
(ii) will help the trier of fact understand the evidence or determine a fact in issue, which focuses on the relevance of the testimony.

Question 33

When is the proponent of a self-authenticating document required to give an adverse party advance notice?

Answer 33

Generally, the proponent of a self-authenticating document is not required to give an adverse party advance notice of the intent to introduce the document.

The proponent of a business record must, however, give an adverse party reasonable written notice prior to the trial or hearing of the intent to offer the record and must make the record available for inspection so that the party has a fair opportunity to challenge it.

Question 34

To have an item authenticated, does the proponent need to produce sufficient evidence to satisfy a preponderance of the evidence test?

Answer 34

No, “only sufficient evidence to support a finding”.

To authenticate an item, the proponent must only produce sufficient evidence to support a finding that the thing is what its proponent claims it is, which is a lesser standard than a preponderance of the evidence.

Question 35

Can a person invoke the privilege of self-incrimination after taking the stand?

Answer 35

Yes.

Question 36

Does the privilege of self-incrimination applies to only criminal cases?

Answer 36

No.

The privilege against self-incrimination applies in civil cases as well as criminal cases.

Question 37

What are the requirements of an adoptive admission?

Answer 37

Silence in response to a statement is considered an adoptive admission if:

(i) the party was present and heard and understood the statement,
(ii) the party had the ability, and opportunity to deny the statement, and
(iii) a reasonable person similarly situated would have denied the statement.

Question 38

When is a statement against interest admissible?

Answer 38

A statement against interest is ONLY admissible IF the declarant is unavailable.

Question 39

When will an exception to hearsay apply to statement by a co-conspirator?

Answer 39

Only during the conspiracy and in FURTHERANCE of the conspiracy.

Question 40

When are the RARE instances when physician-patient privilege applies in federal cases?

Answer 40

1) privilege only applies to communications made for the purpose of obtaining medical treatment
2) physician-patient privilege does not apply in federal court unless a state law applies

Question 41

Can a grand jury testimony by a now unavailable witness admissible in a trial?

Answer 41

No.

Grand jury testimony is a classic testimonial statement barred by the confrontation clause.

Question 42

How is the 10-year old conviction rule changes how the court must assess if the evidence is admissible or not?

Answer 42

<10y
The conviction is admissible only if its probative value outweighs the prejudicial effect to the defendant.

> 10y
The conviction is admissible only if its probative value substantially outweighs its prejudicial effect.

Question 43

How does operate the authentication by reply letter doctrine?

Answer 43

“response to a communication / unlikely wrote by another”

A document may be authenticated by evidence that it was written in response to a communication, so long as it is unlikely, based on the contents, that it was written by someone other than the recipient of the first communication.

Question 44

What difference does it make if a witness is on the stand or not when evidence of a prior of inconsistent statement by such witness is introduced?

Answer 44

Unavailable -> impeachment

Available -> impeachment & substantive evidence.

Question 45

Do defendants have a right to a hearing to determine the admissibility of confession admissions?

Answer 45

Yes, both if requested by D or sua ponte.

The trial judge generally decides preliminary questions regarding the competency of evidence, including the admissibility of evidence, whether a privilege exists, and whether a person is qualified to be a witness.
Hearings on preliminary matters must be conducted outside the presence of the jury when the hearing involves the admissibility of confessions, when a defendant in a criminal case is a witness and so requests, or when justice requires it.

Question 46

Is a testimony given in a deposition by a witness now unavailable admissible at trial?

Answer 46

Yes, if the party against whom the testimony is being offered had an opportunity and similar motive to develop the testimony.

Testimony that was given by an unavailable declarant at a lawful deposition is not excluded as hearsay in a civil case if the party against whom the testimony is being offered had an opportunity and similar motive to develop the testimony when it was given. Here, the nurse is unavailable to testify as a result of her death and her initial testimony was made at a lawful deposition.

Question 47

How can an extrinsic evidence be presented in an impeachment context?

Answer 47

Impeachment with a prior inconsistent statement may occur by cross-examination or by use of extrinsic evidence, such as the testimony of another witness or documentary evidence.

It cannot be used to show that an impeached witness was lying.

Question 48

Can a statement connected to an offer to settle be admitted in a federal case?

Answer 48

No, compromise offers made by any party, as well as any conduct or statements made during compromise negotiations, are generally not admissible to prove or disprove the validity or amount of a disputed claim.

Question 49

When can misdeanor convictions be used to impeach witnesses?

Answer 49

Any witness may be impeached with evidence that he has been convicted of any crime—felony or misdemeanor—involving dishonesty or false statement, regardless of the punishment imposed or the prejudicial effect of the evidence, provided that no more than 10 years have lapsed since the later of the date of conviction or the release from confinement.

Question 50

Can an opposing party’s statement be admissible despite being an opinion regarding the ultimate issue in the case?

Answer 50

Yes, an opposing party’s statement in the form of an opinion may be admitted even if the statement is about a matter that normally would be beyond the scope of lay witness opinion testimony, such as an opinion regarding the ultimate issue in the case

Question 51

Is evidence of juvenile adjudication ever admissible in civil cases?

Answer 51

No. Evidence of juvenile adjudications is not admissible in civil cases.

The court may occasionally permit evidence of a juvenile adjudication of a witness other than the accused under certain circumstances, but only in a criminal trial. Because the witness was a juvenile when she was convicted and because she is a witness in a civil trial, the conviction is not admissible.

Question 52

In which cases will a pardon bar a party from impeach a convicted witness?

Answer 52

When the pardon was due to the witness’ innocence or the witness has not had a new felony conviction after.

Question 53

Is there a requirement to be met before a court accepts an agent’s declaration as evidence in a contract’s dispute case?

Answer 53

admissible, upon or subject to introduction of evidence sufficient to support a finding by the jury that Joan had actual or apparent authority to act for Donna.

The evidence required prior to introduction of Joan’s statement would be evidence sufficient to support a finding by the jury that Joan had actual or apparent authority to act for Donna (i.e. that Joan was Donna’s agent).

Question 54

Are offers to pay for medical expenses admissible?

Answer 54

An offer to pay medical expenses is inadmissible to prove liability for injuries in question but related statements are still admissible.

Question 55

Can an expert express an opinion concerning Defendant’s mental state that is an element of the crime charged?

Answer 55

No. Under the FRE, in a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. Those elements are for the trier of fact alone.

As such, the expert’s testimony is inadmissible because it expresses an opinion concerning Defendant’s mental state at the time of the killing.

Question 56

Would a best evidence rule apply to recognition of voice?

Answer 56

Not necessarily.

“an opinion identifying a person’s voice…based on hearing the voice at any time under circumstances that connect it with the alleged speaker” satisfies the authentication requirement.