Evidence

Question 1

P falls in small store.employee fills report after manager tells employee to fill report in case she tries to sue… can this be admitted under the business record exception?

Answer 1

No, bc records prepared in anticipation of litigation do NOT qualify as repts made in regular course of business does not appear as regular practice ihere)

Question 2

When a party requests, when must the court excuse the witness so they don’t hear the testimony of the other W?

Answer 2

At party’s request, cxt must order the exclusion of a W from courtroom so that party cannot hear the testimony of the other W’s unless an exception applies.

*exception - person whose presence is essential to the presentation of a party’s case, ie INVESTIGATING police officer

(not desk officer or whatever)

Question 3

Rule of Completeness

Answer 3

if party introduces a WRITTEN record, opposing party may introduce other portions of the statement if fairness requires (fairness as unit) - doesn’t matter if otherwise inadmissible (admitted writing or recorded statement)

** applies even if separate related writing or statement

• if fairness doesn’t require, D must wait

Question 4

Do digital photographs need to be authenticated?

Answer 4

Yes - authenticated by testimony of W w/ PK that object accurately depicts what proponent claims it does.
(does not have to be the person that took the photo - just PK ie she was there at the accident)

photographs, diagrams, maps, movies
*not self-authenticating

Question 5

Witness Credibility

Answer 5

Jury

Question 6

Judicial Notice

Answer 6

civil - must

criminal - may

Question 7

BE rule applies to

Answer 7

applies to terms of a writing (photograph, recording, X-ray)

does NOT apply to real physical evidence
(3d models, architects 3d model, robot)

Question 8

X-ray or electrocardiograms and BE rule -

Answer 8

X ray or electrocardiograms - must be shown that the accurate process was used, machine was working properly, and operator was qualified to use it (also chain of custody)

higher authentication standard

*dr CANNOT just authenticate by saying I took the pic

Question 9

W’s friend was told by D, that there was a recoding in which D said “x”

Answer 9

BE rule applies - need recording - applies bc issue is about statement about contents in the recording

Question 10

Handwriting

Answer 10

lay witness can testify as to handwriting if had PK, unless became familiar w the handwriting for purposes of the current litigation

Question 11

Collateral Matter

Answer 11

debating over a date but D already admitted taking the merchandise on the date (issue is not closely related or controlling)

Collateral Matter → D called police offer as W, sought to introduce evidence to impeach W on a cm bc whether the w or the d fired gun first, although relevant if d had been charged w/ assault, is NOT relevant to the crime which he was charged – illegal possession of a firearm -

consequently cxt can refuse to admit extrinsic evidence that was only offered to impeach the original w

Question 12

Police Officer Report. What exceptions apply, if hearsay.

Answer 12

Police officer report
→ if statement of W, have to find exception (business rec does not apply to W statement inside report itself)

→ opposing party admission written in police report can qualify if offered by opp party (unless barred by public police- like insurance)

Question 13

Expert Witness

Answer 13

can rely on surgeon statements for conclusion, if others in field woud do so!

Expert hired to to prove the handwritten codicil is not authentic → expert or trierofafct may compare the writing w another writing that has been proven to be genuine in order to determined authenticity of the writing in q (look for the exact matching words in the q)

TREATISE → when an expert relies on a treatise during direct or is established as reliable authority (by the testomny of another expert), its not excluded as hearsay if brought into epxerts attention on cross,
**ONLY PARTICULAR STATEMENT can be admitted, but NOT the entire treatise itself!

Can use facts from trial, no pk needed (even if just sits at some random trial- opinion ok)

Question 14

P sues for injuries arising from a car accident, claiming a back injury. At trial, she wishes to testify that before the accident she had never had problems with her back.

Testimony admissible?

Answer 14

Yes, bc it is probative of P’s injury

the fact that the back problems arose after the accident is probative on the issue of whether the accident was the cause of the injury - therefore relevant, and should be allowed

jury may consider and weigh factors (So even if there are other factors that may have contributed after - doesn’t matter)

Question 15

Hearsay exceptions that can only be used when declarant is unavailable

Answer 15

i. Former testimony (ie under oath)
ii. Dying Testimony (homicide or crim case)
iii. Statements Against (declarant’s) Interest

Question 16

BOP in civil case? criminal?

Answer 16

civil case - preponderance of the evidence

criminal - beyond a reasonable doubt

burden of proof has 2 parts - burden of production - must produce enough evidence to get it to jury
burden of persuasion – sways the jury

Question 17

destruction of evidence presumption

Answer 17

if party destroys evidence, there is a presumption that t it would have been adverse to that party

Question 18

D’s house was destroyed by fire and she was charged with arson. *To prove that D had a MOTIVE to burn down her house, the gov offered evidence that D had fully insured the house and its contents.

Should the court admit this evidence?

Answer 18

Yes, because evidence of insurance on the house has a tendency to show that D had a MOTIVE to burn down the house.

(Although insurance is generally not admiss to prove that person acted negligently or wrongfully, may be admitted for other purposes, such as proof of motive)