Evidence

Question 1

Impeachment with evidence of prior convictions

Answer 1

whether convictions should be admitted to impeach generally depends on the nature of the crime, the amount of time that has passed, and (only in criminal cases) whether the “witness” is the defendant.

Evidence of prior convictions may be admitted for the purpose of attacking a witnesses character for truthfulness. There are two basic types of convictions that can be admitted for the purpose of impeachment:

1. convictions for crimes “punishable by death or by imprisonment for more than one year”; and
2. convictions “for any crimes regardless of the punishment if the court can readily determine that establishing the elesmts of the crime required proving–or the witness’s admitting–a dishonest act or false statement”

Question 2

Prior convictions in civil cases

Answer 2

in civil cases, the admission of evidence of a felony conviction is subject to Rule 403. However, Rule 403 does not protect the witness against admission of prior convictions involving dishonesty–which MUST be admitted by the court.

Question 3

Prior convictions that are more than 10 years old

Answer 3

RULE 609 b contains the presumption that a conviction that is more than 10 years old, or where more than 10 years has passed since the witnesses release from confinement (whichever is later), should not be admitted unless its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect and the proponent has provided the adverse party with reasonable written notice.

Question 4

Cross examination about prior acts of dishonesty

Answer 4

Rule608b allows witnesses to be cross examined about specific instances of prior no-conviction misconduct probative of untruthfulness in order to attack the witness’s character for truthfulness.

Question 5

Extrinsic evidence during cross examination about prior acts of dishonesty

Answer 5

although rule 608b allows cross examination about specific instances of prior misconduct of untruthfulness, “extrinsic evidence” offered to prove such misconduct is not admissible.

when these acts are relevant only to the witnesses truthfulness and not to the main issue in the case, would create too great a risk confusing the jury and unduly delaying the trial. The court does not have discretion to admit this extrinsic evidence.

Question 6

Present sense impression

Answer 6

Rule 803(1) permits the use of a hearsay statement describing or explaining an even or condition made while the declarant was perceiving the even tor condition or immediately thereafter.

Witness can be either available or unavailable

Question 7

Excited utterance

Answer 7

the witnesses description is a statement “relating to a startling event or condition made while the declarant was under the stress of excitement that it caused.”

Witness can be either available or unavailable

Question 8

Unavailable declarant affecting the Six Amendment of the Constitution the right to confront witnesses against them

Answer 8

the use of an out of court statement by the prosecutor violates a defendants Sixth Amendment rights, even if the statement falls within a hearsay exception, if (1) the statement was “testimonial,” (2) the witness who made the statement is unavailable to testify at trial, and (3) the defendant has not had an opportunity to cross-examine the witness before trial

Question 9

Davis . Washington

Statements made to police are testimonial/non-testimonial

Michigan v. Bryant
“primary purpose of the interrogation standard”

Then, in Ohio v. Clark, ‘primary purpose’

Answer 9

the Court drew a distinction between (1) statements made to the police to assist in the investigation and prosecution, which should be considered testimonial; and (2) statements made to the police to enable them to meet an ongoing emergency, which should be considered non testimonial.

Then Michigan v Bryant elaborated on “the primary purpose of the interrogation standard”, and set forth a range of factors that might be used to determine the existence of an ongoing emergency:

1. the nature of the dispute,
2. the scope of the potential harm to the victim,
3. the threat to additional identifiable victims,
4. the existence of a more generalized threat to the public,
5. the suspects choice of weapon, and
6. whether the suspect remained “at large” or had been located (but not yet apprehended) by the police and/or any other “first responders.”

Finally in Ohio v Clark, the Court reiterated that “the question is whether, in light of all the circumstances, viewed objectively, the ‘primary purpose’ of the conversation was to create an out of court substitute for trial testimony.

Question 10

Statements of identification

Answer 10

not hearsay when the declarant testifies and is subject to cross examination about a prior statement and the statement identifies a person as someone the declarant perceived earlier.

Most courts have found that statements identifying a person after hearing the persons voice qualify as statements of identification under Rule 801

Question 11

Evidence of a person’s character is

Answer 11

evidence of a persons character or character trait is inadmissible to prove that on a particular occasion the person acted in accordance with the character or trait.

Evidence of crimes, wrongs, or other acts “may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.”

Question 12

Expert testimony 5 requirements:

Answer 12

in order to be admissible:

1. it must be the case that scientific, technical, or other specialized knowledge will help the trier of fact to understand the eividence or to determine a fact in issue;
2. the witness must be qualified as na expert by knowledge, skill, experience, training, or education;
3. the testimony must be based upon sufficient facts or data;
4. the testimony must be the product of reliable principles and methods; and
5. the witness must have reliably applied these principles and methods to the facts of the case.

Question 13

Competency

Answer 13

The FRE states that every person is competent to be a witness except as otherwise provided. The only two limitations given require that

1. the w have personal knowledge of the matter about which he is to testify, and
2. the witness indicates his willingness by oath or affirmation to testify truthfully

Question 14

A Felony conviction is

Answer 14

admissible to prove “any fact essential to the judgment.” Convictions must be for a crime punishable by death or imprisonment excess of one year.

Question 15

Subsequent remedial measures

Answer 15

are not admissible to show negligence or culpable conduct.

However, such evidence is admissible for other purposes, e.g., to show ownership or control, or to prove the opponent destroyed evidence.

Question 16

Past recorded recollection 4 elements

Answer 16

1. the memorandum must relate to something of which the witness once had first hand knowledge;
2. the record must have been made by, or adopted by, the witness when the matter was fresh in the witnesses memory;
3. there must currently be some impairment of the witnesses memory of the events; and
4. the record must correctly reflect the witnesses original knowledge.

Question 17

Intrinsic impeachment 5 general types

Answer 17

there are five general types of questions that may be use to elicit intrinsic impeachment from a witness. They are question seeking to show

1. bias or interest,
2. prior inconsistent statements,
3. certain prior convictions,
4. bad character for honesty (including unconvicted bad acts),
5. sensory deficiencies (eyesight, memory, mental disability)

Question 18

The methods of extrinsic impeachment incldue

Answer 18

bias, contradicting facts, inconsistent statements (require foundation), sensory deficiencies, certain convictions, and bad character for truthfulness.

Only reputation or opinion testimony may be used.

Question 19

Learned treatise hearsay exception

Answer 19

a statemtin in a learned treatise can be read into evidence (but cannot be admitted as an exhibit) if:

1. an expert witness relies on it on direct examination or its called to his attention on cross-examination, and
2. the publication is established as reliable authority by the present witnesses testimony or admission by another expert’s testimony or by judicial notice.

Question 20

Criminal defendant testifying on his own behalf

Answer 20

a witness can be impeached (intrinsically or extrinsically) with conviction of any felony, regardless of whether it involved dishonest or false statement (a crime false.) However, when the witness is a criminal defendant, and the felony did not involve a crimen falsi, the witness gets a slight protection from impeachment that’s not present where the conviction is for a crime false: impeachment is allowed only if the court determines that the probative value of the evidence outweighs its prejudicial effect on the defendant (in which case the court not only may but must admit it)

Question 21

Extrinsic evidence

Answer 21

Except for a criminal conviction, extrinsic evidence is not admissible to prove specific instances of a witnesses conduct in order to attack or support the witnesses character for truthfulness.

Question 22

Spousal privilege

Answer 22

in federal courts, in criminal cases, the witness-spouse hold the privilege exclusively, and can choose to testify if he or she wants, without the consent of the accused-spouse, except as to confidential communications.

Question 23

Statements made for medical diagnosis or treatment.

There is a hearsay exception for a statement that:
A,B,C,D,E

Answer 23

A. is made for and is reasonably pertinent to medical diagnosis or treatment; and
B. The record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whther or not for profit;
C. Making the record was a regular practice of that activity;
D all these conditions are show by the testimony of the custodian or another qualified witness, or by a certificiotn … and
E. the opponent does not show that the source of information the method or circumstances of preparation indicated a lack of trustworthiness.

Question 24

Circumstantial evidence

Answer 24

is evidence that, even if is is believed, does not resolve the matter at issue unless additional reasoning is used to reach the proposition to which the evidence is directed.

Circumstantial evidence will be admitted only if it has probative value, that is, only if it affects the probability of the existence of a fact consequential to the action.

Question 25

Attacking and supporting the declarants credibility

Answer 25

when a hearsay statement has been admitted in evidence, the declarants credibility may be attacked by any evidence that would be admissible for those purposes if the declarant had testified as a witnesss

Question 26

Rule 409, statements made offering to pay medical expenses

Answer 26

promising to pay or offering to pay medical, hospital, or similar expenses resulting form an injury is not admissible to prove liability for the injury

Rule 409 does not extend to exclude surrounding statement of fact or circusntace

Question 27

Recorded recollection

A, B, C

Answer 27

A. is on a matter the witness once knew but now cannot recall well enough to testify fully and accurately,
B. was made or adopted by the witness when the matter was fresh in the witnesses memory, and
C. accurately reflects the witnesses’s knowledge

if admitted, the record may be read into evidence but may be received as an exhibit only by an adverse party.

Question 28

Speakers then-existing state of mid

Answer 28

(such as motive, intent, or plan) or emotional, sensory, or physical condition. But not including a statement of memory or belief to prove the fact remembered or believed

Question 29

a declarants prior statement is admissible to

Answer 29

1. to rebut an express or implied charge that the declarant recently fabricated or acted from a recent improper influence or motive in so testifying, or
2. to rehabilitate the declarants credibility as a witness when attacked on another ground

Question 30

character evidence

Answer 30

evidence of a persons character, offered to prove conduct in conformity with that character is generally inadmissible

Criminal Defendants: a criminal defendant may offer evidence of the Ds pertinent trait , when allowable, must be done by reputation or opinion evidence not by evidence of specific instances of conduct

On cross-examination of the character witness, the court may allow an inquiry into relevant specific instances of the persons conduct

Question 31

Subsequent remedial measures

Answer 31

…“but the court may admit this evidence for another purpose, such as impeachment or if disputed proving ownership, control, or the feasibility of precautionary measures

Question 32

Testimony by expert witness

A,b,c,d

Answer 32

a witness who is qualified as an expert by knowledge, skill, experience, training, or education, may testify in the form of an opinion or otherwise if: (a) the experts schientitif, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods, and (d) the expert has reliably applied the principles and methods to the facts of the case

Question 33

Under Federal common law, a witness spouse

Answer 33

in a criminal case if the witness and the criminal defendant are married at the time of trial, the witness cannot be placed in contempt for refusing to testify against the D
(to preserve marital harmony)

Question 34

Under FRE 608(b), a witness can be impeached with prior bad acts that bear on

Answer 34

truthfulness. As a general rule, a witness also can be impeached with evidence that contradicts a part of his testimony that bear on an important issue in dispute.

Question 35

Statement of an opposing party

Answer 35

It is not hearsay. Statements made by one party offered by the opposing party are exulted from the hearsay rule (non hearsay)

Question 36

Statements made by an employee or agent

I, ii, iii, iv

Answer 36

are admissible if:

i. they are made by the agent/employee
ii. they are offered against the principal/employer
iii. they are made during the existence of the agency/employment relationship, and
iv. the statement concern a matter within the scope of the agency or employment.

Question 37

A declarants state of mind of doing something in the future

Answer 37

A declarant’s statement regarding his intent to do something in the future is encompassed within the then-existing state of mind exception.

Whenever you see a declarant’s statement regarding his intent to do something in the future, you should analyze whether this exception is applicable.

Question 38

Is attorney client privilege applicable between to clients who consult the Atty together?

Answer 38

when two clients consult their attorney, those communications are privileged as to third parties. But, if those two clients subsequently have a dispute with each other regarding the case, the joint client rule dictates that the privilege is inapplicable.

Question 39

Impeachment for prior inconsistency

Answer 39

A party may impeach a witness with a prior inconsistent statement when that statement is inconsistent with the witness’s trial testimony.

Question 40

Expert witness testimony

Answer 40

One who has been qualified as an expert based on his experience, knowledge, skill, training, or education can provide opinion or other testimony, as long as
it is based on adequate facts or data and is helpful to the trier of fact. The testimony needs to be based on established principles and methods which the expert has reliably applied to the
facts of the case.

Question 41

An expert’s opinion may be based on one of the following:

I, ii, iii

Answer 41

i. personal knowledge of the facts or data,
ii. facts that are in the record and made known to the expert by a hypothetical question or testimony trial, or
iii. facts that are not in the record if they are the kind of facts other experts would reasonably rely on.

Question 42

confidential communications between spouses

Answer 42

Any confidential communication between spouses during a marriage
will be inadmissible in a criminal or civil trial if one spouse objects, pursuant to the confidential communications privilege.

This privilege is founded in a principle of public policy to encourage married spouses to communicate with each other

Question 43

Prior bad acts may be admitted for other purposes,

MIMIC

Answer 43

to prove:

motive, intent, lack of mistake or accident, identity, or common scheme/plan.

Question 44

Pursuant to the former testimony exception

Answer 44

the testimony of an unavailable declarant who testified in a previous proceeding or deposition, is admissible against a party (or someone in privity) who had previously had the opportunity and motive to cross-examine the witness. There must be identity of issues in both cases.

Question 45

excerpts used by experts

Answer 45

The excerpt may be used both for substantive
evidence and to impeach the expert (if the excerpt is used in the cross-examination of the
expert)

Question 46

Statement against penal interest

i, ii, iii, iv

Answer 46

is admissible if:

i. the declarant is unavailable,
ii. the statement is against the declarants pecuniary, proprietary or penal interest,
iii. it was against the declarants interest when made, and
iv. the declarant knew it was against his interest when the statement was made (look at the context)

Question 47

Evidence is relevant if it has

Answer 47

“any tendency to make a fact more probable or less probable than it would be without the evidence.”

Question 48

Under FRE 701, lay opinion testimony is admissible if it is:

a, b, c

Answer 48

(a) rationally based on the witness’s perception; (b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

Courts typically hold that witnesses with “firsthand knowledge” may “offer lay opinion testimony where they have a reasonable basis-grounded either in experience or specialized knowledge- for arriving at the opinion expressed.”

Question 49

Under FRE 702, expert opinion can be admitted if

a,b,c,d

Answer 49

(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based upon sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.”

Question 50

Hearsay is

Answer 50

(a) a statement (or an assertion), (b) made out of court, (3) offered in evidence to prove the truth of the matter asserted in the statement.

Question 51

Rule 803(6), A business record may be:

Answer 51

“a record of an act, event [or condition]” made by someone with knowledge, if kept in the course of a regularly conducted activity of a business, and if making the record was a regular practice of that activity.

Question 52

The physician-patient privilege was

Answer 52

not recognized at common law, has been adopted by statute in most jurisdictions.

In determining whether to honor the assertion of a privilege, “courts must balance the public interest in nondisclosure against the need of the particular litigant for access to the privileged information, keeping in mind that the burden of persuasion rests on the party seeking to prevent disclosure.

In most jurisdictions, patient communications or disclosures made for the purposes of medical diagnosis or treatment are privileged. However, most jx currently recognize a range of exceptions, intended to prevent the privilege from being used as a shield for fraud.

Thus, in many States the patient waives the physician-patient privilege by placing her medical condition”in issue” in a personal injury lawsuit.

Question 53

Hearsay exception for statements made for medical diagnosis or treatment

Answer 53

a statement describing “medical history” which provides information about “past or present symptoms or sensations; their inception; or their general cause.”

Question 54

Statement admissible if made by an opposing party

Answer 54

An out of court statement, is admissible for the truth of the matter asserted and it is not hearsay, when offered by the defendant against the declarant opposing party.

Question 55

Under FRE 406 “evidence of a person’s habit…

Answer 55

may be admitted to prove that on a particular occasion the person . . . acted in accordance with the habit.” Typically, under Rule 406, a persons “habit” is defined as his or her consistent response to a specific situation. The court may admit habit evidence “regardless of whether it is corroborated or whether there was an eyewitness.” Testimony involving habit evidence may be given by the person with the habit or by another person, but the person testifying must have personal knowledge.

Question 56

The Federal Rules of Evidence generally prohibit the use of a person’s character to

Answer 56

prove that on a particular occasion the person acted in accordance with the character or trait.

Question 57

According to the advisory committee notes to Rule 406, a habit is:

Answer 57

“the person’s regular practice of meeting a particular kind of situation with a specific type of conduct.”

Question 58

For Miranda purposes, custody is established if

Answer 58

a reasonable person under similar circumstances would believe she was not free to leave.

Question 59

For Miranda purposes, interrogation is established by

Answer 59

either express questioning or its functional equivalent by the police

Question 60

If Miranda has been violated

Answer 60

a court should bar the prosecution from introducing the defendant’s statement during its case-in-cheif.

Question 61

Miranda public safety exception

Answer 61

limited interrogation without Miranda warnings, when intended to protect public safety fits the Miranda public safety exception.

Question 62

out-of-court statements by a party are not hearsay if

Answer 62

offered by a party and made against the opposing party in an individual capacity.

Question 63

In order to be testimonial, an accused’s communication must itself, explicitly or implicitly,

Answer 63

relate a factual assertion or disclose information.

Miranda has consistently been interpreted to protect only testimonial/communicative evidence.

Crying is not a type of compelled communication or testimony protected by the privilege against self-incrimination.

Question 64

Miranda protections apply only

Answer 64

when a suspect is both in custody and under interrogation.

Question 65

If a custodial suspect initiates post-invocation communication with the police

Answer 65

the suspect’s subsequent statements may be admissible. Statements from the suspect that clearly indicate a willingness to speak to the police about matters relating to the investigation will be treated as initiation of communication.

Question 66

When a suspect has been released from interrogative custody, the police obligation to honor an invocation of the Miranda right to counsel

Answer 66

terminates after 14 days

Maryland v. Shatzer

Question 67

Hearsay is defined under Rule 801(a) as:

Answer 67

“an oral assertion, written assertion, or nonverbal conduct.”

Although “assertion” is not further defined, a favorite definition of writers in the evidence field for at least a century and a half is that the word simply means to say that something is so, e.g., that an event happened or a condition existed.

Question 68

Hearsay is defined under Rule 801 (c) as a statement that is:

Answer 68

a person’s oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.

Question 69

Statements made for medical diagnosis or treatment fit the exception to hearsay if

Answer 69

statements have been made for and reasonably pertinent to medical diagnosis or treatment; and describe medical history, past or present symptoms or sensations; their inception; or their general cause.

Question 70

Even when an out-of-court statement falls within a hearsay exception, the Confrontation Clause of the Sixth Amendment will sometimes preclude the admission of the statement at trial. The Confrontation clause gives:

Answer 70

a defendant in a criminal case the right to be confronted by the witnesses against him.

Question 71

Dying declarations

Answer 71

While the defendant does not have to die for a statement to be admissible as a dying declaration under FRE, the declarant has to be unavailable, and a dying declaration is only admissible in homicide prosecutions and civil cases.

Question 72

FRE 803(1) hearsay exception for a certification

Answer 72

offered to prove the absence of a public record.

To be admissible to certification must be prepared by a public official and must on its face indicate that a diligent search of the records was conducted.

Question 73

Relevance

Answer 73

evidence is relevant if it has any tendency to amend a fact more or less probable than it would be without the evidence and the fact is of consequence in determining the action

Question 74

In slander cases character evidence is admissible

Answer 74

where the defendant makes a statement that the plaintiff has an unsavory character, the plaintiff’s character is considered “in issue”.

First, the plaintiff’s actual character will determine whether the defendant was incorrect in his assessment, and thus liable for slander, because truth is a defense.

Second, the plaintiff will allege that he has been damages by the statement, which is another way of sating that his true character has been besmirched; ut if the plaintiff actually has abad reputation anyway, then damages are limited.

Question 75

A confession made by a person under arrest and subject to interrogation

Answer 75

can be admitted into evidence at trial only if Miranda warnings were properly given beforehand