Evidence

Question 1

Relevance

Answer 1

All relevant evidence is admissible unless excluded by a specific rule.

Relevant = makes fact in issue more likely than it would be without evidence.

Need both:

1) material (related to some issue in the case); and
2) probative (tendency to prove or disprove

Question 2

Rule 403 - Exclusion of Relevant Evidnece

Answer 2

Even if evidence is relevant, court has discretion to exclude IF:

Risk substantially outweigh probative value.

Risks = confusion, unfair prejudice, misleading jury, waste of time.

Rule is in favor of admissibility.

Question 3

Best evidence (original doc) rule

Answer 3

Orig doc (or dup) be produced in order to prove the contents of a:
Writing
Recording
Photograph

Included: Electronic docs, x-rays and videos

Not included: Real physical evidence (e.g., 3D model)

Question 4

Prior Inconsistent Statement

Answer 4

• Can be done with any type of statement

* Can be proved by EXTRINSIC evidence, but only if witness is given opportunity to explain/deny evidence

Question 5

Plea negotiations inadmissible - waivable?

Answer 5

Yes, can be waived by ∆

Question 6

Prior Inconsistent Testimony - substantive, impeachment, or either?

Answer 6

Either - if testimony under oath, considered nonhearsay

Question 7

Item used to refresh witness recollection - what can adverse party do?

Answer 7

Adverse party can:

• Have doc produced
• Can inspect doc
• Can cross-examine witness about it
• Can introduce any relevant portion into evidence (usually only for purpose of impeaching credibility)

Question 8

Prelim questions regarding competency of evidence (e.g., does it qualify as dying declaration) - who decides, with/without jury, what evidence to access?

Answer 8

Judge decides

Outside of jury if confession, ∆ requests, or justice requires

Any evidence except privileged evidence

Question 9

Rebuttable presumption - shifts burden of persuasion and/or production?

Answer 9

Production. Contrary evidence introduced overcomes –> up to jury now.

If no contrary evidence, judge instructs jury to accept presumption.

Question 10

Recent felony of ∆ (w/in 10 years) - civil vs. crim

Answer 10

Civil - Rule 403 (allow unless risk of prejudice substantially outweighs probative)

Crim - Reverse 403 (do not allow unless probative value outweighs prejudicial effect)

Question 11

How to authenticate tangible evidence

Answer 11

Sufficient evidence to support a finding that the thing is what its proponent claims it is

Photo - may be authenticated by witness with personal knowledge that object accurately depicts what proponent claims it to be

Question 12

Statement by co-conspirator - when allowed

Answer 12

Only if made “during and in furtherance” of the conspiracy

Question 13

X-ray, electrocadiogram authentication?

representations of things that cannot otherwise be seen

Answer 13

Need more - accurate process, machine worked properly, qualified operator, chain of custody

Question 14

Prior Testimony - Not hearsay always, sometimes, never?

Answer 14

Not hearsay if opposing party had 1) opportunity and 2) similar motive to develop testimony by direct, redirect, or cross-ex.

Must be same party or predecessor in interest

Question 15

Judicial notice - when allowed, who can request

Answer 15

Can do it any time during proceeding, upon request or by own initiative

Question 16

Settlement offer - admissible?

Answer 16

No, not admissible for validity of claim OR for amount of damages

Question 17

Business records

Answer 17

Any record or writing of an act made in the course of regularly conducted business activity

Admissible if record made:

1) At or near the time of the event it records
2) By a person with knowledge of the event and under a duty to report it;
3) As part of the regular practice of the business to make that kind of record

Question 18

Statement Made for Purpose of Medical Diagnosis or Treatment

Answer 18

Describe a declarant’s medical history or past or present symptoms, or even the cause of an injury, if pertinent to treatment or diagnosis

Question 19

Out of court statement of a party to the action - hearsay?

Answer 19

No - nonhearsay

Question 20

Civil or crim judgment - hearsay

Answer 20

Crim - No (with restrictions)

Civil - Yes

Question 21

Evidence re: victim’s sexual conduct or predisposition in civil - admissible?

Answer 21

Generally not in a civil proceeding involving alleged sexual misconduct, such as a sexual harassment action.

Such evidence may be admitted, however, when the court determines at an in camera hearing that the probative value of the evidence substantially outweighs the danger of harm to the victim and unfair pre`judice to any party

Question 22

Curative admission

Answer 22

When a court erroneously admits evidence, the court may permit the introduction of additional inadmissible evidence to rebut the previously admitted evidence. Admitted at the court’s discretion when necessary to remove unfair prejudice.

Question 23

MIMIC

Answer 23

Motive/Opportunity
Intent
Mistake (lack of)
Identity 
Common Plan

Question 24

Vicarious Admission test

Answer 24

(i) made by an agent or employee of the company during the course of the employment relationship and (ii) it concerns a matter within the scope of the employment.

Question 25

Statement in treatise, periodical, or pamphlet - hearsay?

Answer 25

Not excluded as hearsay if:
(i) an expert witness relied on the statement during direct examination or it was called to the expert’s attention on cross-examination; and (ii) the publication is established as a reliable authority by admission or testimony of the expert witness, by another expert’s testimony, or by judicial notice.

If admitted, the statement is read into evidence, but the publication itself may not be received as an exhibit.

Question 26

Testimony to say nothing on public records search - OK?

Answer 26

Testimony that a diligent search failed to disclose a public record or statement may be admitted to prove that the record or statement does not exist, or that a matter did not occur or exist, if a public office regularly kept a record of statements for a matter of that kind.

In a criminal case, a prosecutor must provide the defense with written notice of the intent to offer such evidence at least 14 days before trial, and the defendant has seven days from receipt of notice to object in writing.

Question 27

Summary of voluminous writing

Answer 27

Statement OK when a person is seeking to admit the contents of those documents.

Question 28

Federal inadvertent waiver rule (Rule 502)

Answer 28

Allows opposing party to use either:

attorney work-product protection OR
communications covered by the attorney-client privilege.