Evidence

Question 1

Impeachment methods - Criminal conviction distinctions

Answer 1

criminal convictions

• D must have be adjudicated guilty
• No time limit on felonies related to dishonesty
• no extra protection for Ds on non-dishonesty crimes
• old convictions - no 10 year limit; instead, so remote that it has no beraing on present character
• doesn’t matter if eventually pardoned
• no juvie
• can’t specifically name crime when asking, and if W says no, can’t press it

Question 2

Impeachment methods

Answer 2

1. W’s character for truthfulness
   
   1. can only be attacked thru reputation ev (not opinion)
   2. cannot use specific instances, even on cross
2. Crim convictions
3. prior inconsistent statements - admissible only if W has chance to deny-explain
4. bias/interest (includes religious beliefs)
5. sensory competence
6. rehab of witness
7. impeached W may call rehab Ws to testify re: truthfulness (no opinions)
8. When W examined re: written statements, must be shown writing
9. contradictory evidence f
10. collateral issues - genreally not allowed
11. Recollection refreshed (present and past recorded)

Question 3

Best Evidence Rule

Answer 3

Duplicate is inadmissible if:

• Negotiable instrument, security or other writing re: right to payment
• not itself a security agreement/lease
• usually goes with endorsement/assignment (stock certs?)
  *

Question 4

Privileges (9)

Answer 4

1. jouranlist
2. fiduciary L/C
3. psychoterapist/patient
4. sex assault counsel/V
5. domestic violence advocate/V
6. hsuband/wife
7. clerky-related
8. accoutant/client
9. trade secrets

Question 5

Judge/ preliminary questions of comp of evidence

Answer 5

cannot summarize evidence/common to jury on:

• weight of evidence
• W credibility
• guilt of accused

can’t consider hearsay re: conspiracy

Question 6

Challenges to evidence ruling - Harmless error rule

Answer 6

Fl uses to determine if improperly admitted in crim cases.

Verdict reversed unless state proves BRD that no reasonable possiblity error affect verdict in order to vaoid new

Question 7

Judicial notice - Rules for court

Answer 7

court must take JD of:

• decisional, constitutional, public state law, and resolution of FL leg and Congress
• FL court rules applied statewide, its won rules, SCOTUS rules

may take notice of:

• another jx’s decisions, laws, rules, records, generally known or determined facts

not required to care about earlier court’s take on a particular matter

Question 8

Judicial notice - Rules for jury

Answer 8

Permits court to instruct jury re: judicially noticed matter - civ and crim

Must instruct jury re: judicially noticed fact that’s element of a crime

Question 9

Burdens of evidence

Answer 9

Production - produce legally sufficient evidence for each element of claim (RP standard)

Persusasion - civil: POE (sometimes C&C), crim: BRD

Question 10

Presumptions

Answer 10

Presumption rebuttable unless conclusive under law from whic hit arises

civil cases - every rebuttable presumption either:

• Bursting bubble - requires tried o fact to assume its existence unless contrarycredible evidence introduced OR
• burden of proof on party opearting agianst to show nonexteience of presumption

Destruction of evidence - if destroyed by party it goes against, presumpio that 1) was unfavorable, 2) was intentional, 3) was relevant

Question 11

Character evidence - V’s character

Answer 11

• Reputation evidence only
• State can’t rebut with D’s character trait when D offers V’s character trait
• State can offer rebuttal evidence of V’s good character if D did bad character

Question 12

Specific acts

Answer 12

Civil - allowed when essnetial element of claim/defense

crim - inadmissiable to show D’s criminal propensity, prior specific acts can be used when character essential element of crime - D can offer prior acts inconsistent with crime

Question 13

Specific acts - MIMic

Answer 13

similar fact evidence admissible under Willimas when relevant to prove MIMIC

must have identifiable poitns of similarty estabslihing “sufficiently unique pattern of crim activity”

State must give 10 days notice to D if using above

Reverse Williams rule (was a different guy) - allowed with same similarity standard, no prior notice

Question 14

Witnesses

Answer 14

judge - can’t testify

juror - limited circumstances

child - no age req, can he/she tell difference between truth and lie and understand need to tell truth? BUT
court can set conditions for under 18 re: child abuse neglgect, sex abuse V, W to sex offense against anohter minor. Then need advocate to rep in court

Question 15

Impeachment - W’s character for truthfulness

Answer 15

can’t bolster (beforehand)

reputation evidence only, no specific acts (not even on cross)

past convictions

• can’t ask W about specific crime, just whether he’s been convicted of impeachable offense
• must have been adjuciated guilty
• no time limit - look at remoteness (so long ago it has no bearing)
• don’t exclude pardons
• do exclude juvenile convictions

Question 16

Ways to impeach

Answer 16

1. Truthfulness
2. criminal convictions
3. prior inconsistent statements
4. bias/interest
5. sensory competence
6. impeaching hearsay declarant
7. rehab of W
8. religious belief/opinion
9. contradictory evidence

Question 17

Rehab of W

Answer 17

• explain/clairfy/redirect
• offer reputation evidence re: truthful (if applicable)
• prior consistent statement (look out for hearsay)
• call rehab W to testify to truthfulness - they can be cross examined about specific acts by W
• if examining certain written statemetns, must be shown to W so he can explain/deny

Question 18

Qualified experts

Answer 18

• knoweldge, skill, training, expertise
• sufficient facts/data
• reliable principles/methods (which W applied)
• reasonable certainty

can state opinion about whether D had req mental state of any element of crime/defense

cannot state opinion re: crimnal capacity/whether mental state with legal definition exists

Question 19

Qualified experts - cross examining

Answer 19

Opposing party can examine W about underlying fcats/data for opinon - will be inadmissible if establsihes lack of sufficient basis

can use formal writing on subject to corss examine if iether W or court recgonizes it as authorizataive, but can’t bolster

Question 20

Authentication

Answer 20

• physical objects - personal knoweldge, disttinctive charactetrs, chain of custody
• photographs - nwritten description, name of owner, location where stolen, name of investigating cop, date of phoot, name of photographer. All under oath
• documetnary evidence (ancient docs, public records, reply letter)
• self authenticating - business record ok if w/ affidavit by custodian and no hearsay
• certified transcript by court reporter is PF evidence of correct testimony

Question 21

Best evidence rule

Answer 21

duplicate inadmissible if doc is

• negotiable instrument, security or writing re: right to payment of $
• is not a security agreement or lease
• is typically transferred in course of business w/ endorsement/assignment

Question 22

privileges - general exception

Answer 22

All privileges except A/C and clergy can be overcome if related to abuse of children, disabled, elderly

Question 23

Hearsay

Answer 23

offered to prove truth of matter asserted

Declarant must be person

statement can be oral, written, assertive nonverbal

Question 24

Non-hearsay - Prior statements

Answer 24

prior statements - D must be present at trial

• PIS made under penalty of perjury admissible to impeach and substantively
• PCS admissible to rebut charge that D recently fabrciated statement/acted w/ impropert motive
• Prior ID of a person by D ok even if D doesn’t remember it

Question 25

Opposing party statement

Answer 25

• Made by party to current lit
• admissible without personal knoweldge
• can be an opinion
• doesn’t need to have been against party’s interest when made
• can’t use withdrawn guilty pleas
• can use adoptive admission
• vicarious statments - gov agent’s statement can be offered agianst gov
• conspriracy must be established by other evidence before admissible

Question 26

Hearsay exceptions - Availability immaterial

Answer 26

1. spontaneous statements, with trustworthiness exception
2. excited utterance
3. statement of mental, emotional, physical condition (state of mind) - trustworthiness caveat
4. statemetn made for med treatment
5. recorded recollection
6. business records
7. public records
8. judgment of previous conviction
9. other - OOC statement by certain child Vs or by elderly about abuse, neglect, exploitation, violent act - okay if on camera and D actually testifies

Former testimony:

• not hearsay if adverse party had opportnity and smiliar motive to develop testimony AND
• can also be used in subsequent civil proceeding if was offered any proceeding against anothe party with similiar interest

Question 27

Exceptions to hearsay - Uavailable declarant

Answer 27

1. Former testimony
2. statement agianst interest
3. statement of personal/family history
4. statement by decease/ill declarant similar to one previously admitted - see outline
5. opposing party statement - party to current lit, admissible without personal knwoeldge, need not have been against party’s interest at time made
6. D unavailable due to other party making him unavailable

Question 28

Former testimony

Answer 28

Can be offered against party

• in any proceeding if they had opporutnity and smiilar motive to develope tsetimony
• subsequent civil proceeding if it was offered in a proceeding against naother party with similar interest

Question 29

Recroded recollection

Answer 29

Must be made by D, not adopted

if can’t remember making record, must tesitfy that 1) had habit of recording this way, OR 2) believes statement correct b/c W would have been truthiful in providing statement

Question 30

Judge cannot:

Answer 30

summarize evidence or comment on:

• weight of evdience
• crediblity of Ws
• guilt of accuse

Question 32

Dying declaration

Answer 32

• D must reasonably believe death is imminent
• statement must relate to cause/circumstances
• NOT required to be V in case being prosectued (blind woman robbed)