EVIDENCE

Question 2

EVIDENCE

Answer 2

an assertion of fact, opinion, belief, or knowledge whether material or not and whether admissible or not.

Question 3

Evidence rules

Answer 3

principles developed and refined over hundreds of years, that are designed to ensure that only relevant and probative evidence is admitted in court proceedings, and that irrelevant, unreliable and prejudicial evidence is excluded, so that cases can be fairly and expeditiously decided

Question 4

Testimony

Answer 4

refers to the oral statements made by witnesses under oath

Question 5

A lay (or fact) witness

Answer 5

a non-expert witness who must testify from personal knowledge about a matter at issue (testimony)

Question 6

Expert witness

Answer 6

a person who, by reason of education, training, skill, or experience, is qualified to render an opinion or otherwise testify in areas relevant to resolution of a legal dispute (testimony)

Question 7

Real evidence

Answer 7

describes physical objects that played a part in the issues being litigated.

Question 8

Demonstrative evidence

Answer 8

a tangible item that illustrates some material proposition (e.g., a map, a chart, a summary). It differs from real evidence in that demonstrative evidence was not part of the underlying event; it was created specifically for the trial.

Question 9

Direct evidence

Answer 9

includes testimony that tends to prove or disprove a fact in issue directly, such as eyewitness testimony or a confession

Question 10

Circumstantial evidence

Answer 10

evidence that tends to prove or disprove facts in issue indirectly, by inference.

Question 11

Relevant evidence

Answer 11

evidence that tends to prove or disprove a fact in issue

Question 12

Character evidence (propensity evidence)

Answer 12

testimony or exhibits that purport to establish a “trait of character” or propensity to behave in a particular way, such as carefulness, honesty, violence, or cowardice

Question 13

Exhibits

Answer 13

tangible objects presented as evidence

Question 14

The “Best Evidence” Rule

Answer 14

This prohibits a party from testifying about the contents of a document without producing the document itself.

Question 15

Chain of Custody

Answer 15

refers to (1) who has had possession of an object, and (2) what they have done with it.

Question 16

Hearsay

Answer 16

“a statement, other than one made … at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”

Question 17

In criminal cases, there are some instances where character evidence is relevant to the charge at hand

Answer 17

Character evidence may be admitted in criminal trials if
• character is an element of proving the act.
• The accused may offer evidence of his or her good character, in which case the prosecution may introduce evidence of the accused’s bad character
• Character evidence may be admissible to reflect on the credibility of a witness
• To show the accused’s knowledge, intent, or motive for the crime
• To prove the existence of a larger plan of which the charged crime is a part
• To show the accused’s preparation to commit the charged crime
• To show the accused’s ability and means of committing the crime (possession of a
weapon, tool, or skill used in the commission of the act)
• To show that the accused’s opportunity to commit the crime
• Threats or expressions of ill will by the accused
• Physical evidence at the scene linked to the accused
• The suspect’s conduct and comments during arrest
• Attempts to conceal identity
• Attempts to destroy evidence
• Valid confessions

Question 18

Opinion Testimony

Answer 18

Generally, lay (i.e., non-expert) witnesses are only allowed to testify about what they have
actually experienced firsthand, and their factual observations. Witnesses provide a report on
what they know, and keep their opinions and conclusions to themselves.

Question 19

Exceptions to the Opinion Rule NON-EXPERT WITNESSES Opinions are admissible if they pass a three-part test:

Answer 19

• Does the witness have direct personal knowledge of the facts to which the opinion pertains?
• Is the opinion of the common, everyday sort, i.e., does not involve specialized knowledge or tests?
• Is the opinion NOT part of a legal judgment, reserved for the jury or judge to decide?

Question 20

Exceptions to the Opinion Rule EXPERT WITNESSES

Answer 20

Expert witnesses are allowed to give opinion testimony because they possess education,
training, skill, or experience in drawing conclusions from certain types of data or information
that lay witnesses do not possess. However, expert testimony may be excluded if it embraces
a legal conclusion. Therefore, expert opinions addressing guilt or innocence will likely be
excluded in criminal cases.

Question 21

Demonstrative Exhibits

Answer 21

An exhibit used for purely “illustrative purposes” Such evidence is admissible if the court decides that it presents a fair and balanced summary or picture of the evidence and is not unduly
prejudicial.

Question 22

A diagram (on paper or some other tangible display) can be admitted as evidence with

Answer 22

no more foundation than the assent of a witness: “Is this a fair representation of the suite where
you work?”

Question 23

Letters and faxes require a foundation to establish authorship. Depending on the document
and situation, the foundation is laid in one of several ways:

Answer 23

1) the author is present and claims authorship;
(2) a witness testifies to seeing the author write the document;
(3) with handwritten letters, a witness verifies the author’s penmanship;
(4) with typed or machine-written documents, the witness verifies the author’s signature;
(5) a witness testifies that the contents of the document point decisively to the author.

Question 24

To overcome a hearsay objection with regard to business records, you must show the
following:

Answer 24

• The document was prepared as a usual part of doing business (i.e., it was not prepared
specifically for litigation).
• The document was prepared reasonably near the time of the event it describes.
• The organisation’s way of keeping records is demonstrably reliable.

Question 25

Photographs can be tricky: they need foundation to establish their fidelity to the object they
claim to represent.

Answer 25

Generally it is enough to have a witness familiar with the object or space in a photo to corroborate, “Yes, that’s the hallway running between our two buildings.” The matter gets more complicated when a photo is controversial. This can require technical
specifications for proper foundation.

Question 26

In deciding on the admissibility of exhibits, judges can decide to

Answer 26

admit the material just as it is, admit it with alterations (such as expurgating parts of a text or obscuring certain images), or deny the admission altogether.

Question 27

A statement.

Answer 27

This includes anything intended to be an assertion; statements can be oral, written, or nonverbal conduct, such as nodding a head.

Question 28

That is made outside the court’s supervision.

Answer 28

This includes statements made at trial or during deposition are not hearsay because they are made during court proceedings, but a statement made at work or at a crime scene is outside the court’s supervision and could be hearsay if the other elements are also present.

Question 29

That is offered to prove the truth of the matter asserted

Answer 29

A party offers a statement to prove the truth of the matter asserted if the party is trying to prove that the assertion made by the declarant (the person that made the out of court statement) is true.

Question 30

The Truth of the Statement Is Not at Issue

Answer 30

Any out-of-court statement can be admitted if it (1) is relevant to some aspect of the proceedings, and (2) is not offered for the truth of its contents.

Question 31

Admissions

Answer 31

Anything spoken or written by a party to a lawsuit can be entered into the record, provided the statement can be corroborated and is relevant. Each side can use its adversary’s out-of- court statements as evidence.

Question 32

Statement Against Interest

Answer 32

A statement against interest is a special form of admission in which a prior statement is at odds with the declarant’s current claim.

Question 33

Business and Government Records

Answer 33

The admissibility of records rests on two criteria: whether they were prepared during regularly conducted business activity and whether they are verifiably trustworthy.

Question 34

Absence of an Entry in Business Records

Answer 34

Evidence that a matter is not included in the memoranda or reports kept in the regular course of business may be admissible to prove that a certain event did not occur, if the matter was one about which a memorandum or report regularly was made and preserved, unless the source of information or the circumstances indicate a lack of trustworthiness.

Question 35

Recorded Recollections

Answer 35

A memorandum or record about a matter concerning which the witness once had knowledge but now has forgotten, and that was made or adopted by the witness when the matter was fresh in memory, and is shown to be accurate, may be admissible. Such memoranda or records also may be shown to a witness who has temporarily forgotten the events in order to refresh the witness’ recollection and allow the testimony to be more complete or accurate.

Question 36

Former Testimony

Answer 36

Testimony given by the declarant at another hearing is admissible if the party against whom the testimony is now offered then had an opportunity and similar motive to examine the witness as in the present trial.

Question 37

Present Sense Impressions

Answer 37

Courts assume that statements made during or immediately after significant events or condition and that describe or explain the event or condition are reliable, so present sense impressions are admissible.

Question 38

Excited Utterances

Answer 38

There is also an exception for statements relating to a startling event or condition made while the declarant was under the stress of its excitement. Unlike statements of present sense impressions, excited utterances require an occurrence that is startling enough to produce excitement.

Question 39

hen Existing Mental, Emotional, or Physical Condition

Answer 39

Statements of the declarant’s then existing state of mind, emotion, or physical condition are also admissible as exceptions to the hearsay rule. Generally, evidence rules list state of mind, emotion, sensation, or physical condition, pain, and bodily health as acceptable subject matter, along with extremely personalized thought processes such as intent, plan, motive, design, mental feeling.

Question 40

Statements for Purposes of Medical Diagnosis or Treatment

Answer 40

Anything first communicated during a medical examination is admissible as a hearsay exception. This includes medical history, symptoms, pain, and the general character of the medical condition. These statements do not even have to have been made by the patient. They can involve someone (parent or spouse) accompanying the patient.

Question 41

Printed Matter

Answer 41

Printed materials that support technical or professional assertions, such as commodity market reports, stock market quotes, mortality tables, cost of living indexes, etc., are admissible if they are “generally used and relied upon by the public or by persons in particular occupations.” The Federal Rules of Evidence specifically mentions market reports and commercial publications.

Question 42

learned treatises

Answer 42

The Federal Rules of Evidence also create a hearsay exception for learned treatises, providing that an authoritative work is admissible to either support or attack the opinion of an expert witness and the works are established as reliable authority. However, some courts limit the rule. In these jurisdictions, specialized “treatises, periodicals, or pamphlets” can be referenced only during cross-examination.

Question 43

Refresher Writings

Answer 43

Writing used to refresh a witness’s memory is admissible under special circumstances. Basically, courts may permit testifying witnesses to refresh or revive their memory by referring to a writing or anything else if the witnesses will thereafter be able to testify without depending on the terms of the writing.

Question 44

Other Exceptions

Answer 44

Miscellaneous exceptions to the hearsay rule include things like dying declarations and ancient documents. For those instances not specified in any rule, there remains the judge’s discretion: anything the judge deems trustworthy for the purposes of its presentation is admissible. This is the cornerstone of the rule. Hearsay is excluded in the first place because it supposedly lacks trustworthiness; however, other kinds of hearsay that do not fall within any specific hearsay exceptions may be admissible if they meet the same standards of trustworthiness as required for the listed exceptions.

Question 45

Impeachment usually is attempted by trying to show that the witness:

Answer 45

* Is influenced by bias or self-interest * Has an impaired ability to observe * Made prior inconsistent statements * Has been convicted of a felony * Has a reputation for untruthfulness

Question 46

Generally, the following conditions must be met before the communication will be considered privileged:

Answer 46

* The client retained the attorney * To provide legal advice * And thereafter communicated with the attorney on a confidential basis * Has not waived the privilege

Question 47

In the context of an investigation of a company, communications generally will be protected under the attorney-client privilege if the following elements are present:

Answer 47

• The communications were made by corporate employees to counsel • The communications were made at the direction of corporate superiors in order for the company to obtain legal advice from counsel • The employees were aware that the communications were being made in order for the company to obtain legal advice • The information needed was not available from upper management • The communications concerned matters within the scope of the employees’ corporate duties • The communications were confidential when made and were kept confidential by the company

Question 48

Attorney Work Product

Answer 48

Documents and tangible things, which are prepared in anticipation of litigation

Question 49

Self Evaluation Privilege

Answer 49

It applies if an organisation can demonstrate that it is attempting to police itself in an area of public interest, and that disclosure of the work product would prejudice such efforts.

Question 50

Marital Privilege

Answer 50

There are two forms of the marital or spousal privilege: (1) the confidential communications privilege, enabling either spouse to prevent the other from testifying regarding a communication during marriage between the two that was intended to be in confidence; and (2) the adversary testimony privilege, protecting spouses from being compelled to testify against each other while they are married.

Question 51

Law Enforcement Privilege to Withhold the Identity of an Informant

Answer 51

In some jurisdictions, law enforcement agencies may legitimately withhold the identity of an informant unless disclosure is necessary to ensure that the defendant receives a fair trial.