Evidence: All other

Question 1

Preliminary questions of admissibility

Answer 1

The trial judge generally decides preliminary questions regarding the competency of evidence, including

(1) the admissibility of evidence,
(2) whether a witness is qualified, and
(3) whether privilege exists.

Question 2

Preliminary questions of admissibility: admissible evidence

Answer 2

Judge is not bound by FRE except privilege— the judge cannot consider the privileged evidence.

Question 3

Preliminary questions of admissibility: burden of proof for persuasion.

Answer 3

The party offering the evidence has burden of persuasion by a preponderance of the evidence.

Question 4

Rebuttable presumption

Answer 4

shifts the burden of production, but not the burden of persuasion, to the opposing party.

Question 5

“bursting bubble”

Answer 5

in a civil case, a presumption “bursts” if sufficient contrary evidence is introduced.

If NO contrary evidence is introduced, the judge must instruct the jury to accept the presumption.
If contrary evidence introduced, judge may still instruct jury that it may draw inference.

© other rules/diveristy

Question 6

Choice of law: rules of evidentiary presumptions in diversity cases

Answer 6

Diversity: In a federal diversity action, the federal court generally applies the FRE

© When state substantive law is determinative of the existence of claim or defense. If so, state law governs the effect of a presumption related to the claim or defense.

Question 7

To preserve issue for appeal—if evidence was erroneously admitted:

Answer 7

Must give timely objection/motion to strike on record and state the specific ground,

© substance was apparent from context.

Question 8

To preserve issue for appeal—if evidence was erroneously excluded:

Answer 8

must make an offer of proof (explain on record why relevant and should be admitted)

© substance was apparent from context.

Question 9

Plain error rule:

Answer 9

A plain error that affects a substantial right is grounds for reversal, even if no objection or offer of proof was made

Question 10

Rule of completeness

Answer 10

If a party introduces part of a written statement, opponent may introduce other portions of that statement that’s necessary to put that admitted portion into perspective.

These may be introduced even if they might otherwise be inadmissible.

Question 11

Curative admission

Answer 11

When a court erroneously admits evidence, the court may permit the introduction of additional inadmissible evidence to rebut the previously admitted evidence

Question 12

Judicial notice: discretionary or mandatory

Answer 12

Court may take judicial notice when facts are not subject to reasonable dispute.

The court MUST take judicial notice of an adjudicative fact if a party so requests and provides the court with the necessary information to do so.

Question 13

Judicial notice: facts are not subject to reasonable dispute if

Answer 13

Facts are not subject to reasonable dispute when it

(1) generally known within the court’s jurisdiction or
(2) it can be accurately and readily determined from sources whose accuracy cannot be reasonably be questioned.

Question 14

Judicial notice: effect in civil and criminal case

Answer 14

Civil case: jury must accept fact as proven;

Criminal: court will instruct jury may (but need not) accept that fact.

Question 15

Leading questions

Answer 15

questions that suggest answer within the question

Question 16

Leading questions on direct examinations

Answer 16

Not permitted on direct examinations, except:

(1) to elicit preliminary background info not in dispute;
(2) witness has trouble communicating due to age, infirmity; or
(3) hostile witness or adverse party

Question 17

Improper questions

Answer 17

compound questions,
questions that assume facts that are not in evidence,
argumentative questions,
repetitve questions,
questions calling for a conclusion that witness is not qualified to make.

Compound question: “Even though it was raining heavily, you didn’t have your headlights on at the time of the accident, correct?”

Question 18

Cross examination scope

Answer 18

limited to the subject of direct examination, unless court permits broader inquiry.

Question 19

Exclusion of witnesses

Answer 19

Upon party request or court ruling, a witness must be excluded to prevent them from hearing other witness’s testimony unless

(1) parties
(2) ESSENTIAL – those essential to the presentation of the case; or
(3) STATUTE – presence is permitted by statute (e.g. crime victims)

“Parties” include an officer or employee of a party who is not a natural person. e.g. police officer in charge of investigating a criminal case.

Question 20

Authentication: tangible evidence

Answer 20

All tangible evidence must be authenticated

Question 21

Authentication: burden of proof

Answer 21

Proponent must produce sufficient (not preponderance) evidence supporting a finding that the thing is what the party claims it is.

Question 22

Authentication: self-authenticating documents

Answer 22

Self-authenticating documents do not require extrinsic evidence of authenticity to be admitted.

(e.g. Public documents with government seal, certified copies of public records, notarized documents, newspapers, trade inscriptions, certified business records.)

Question 23

Authentication: self-authenticating documents–notice requirement

Answer 23

Not required to give advance notice of the intent to introduce self-authenticating document.

© certified business records: must give reasonable advance written notice to offer the record and make available for inspection

Question 24

Authentication of physical objects: 3 methods

Answer 24

3 ways to authenticate physical objects:

(1) testimony of personal knowledge,
(2) testimony of distinctive features (jury or expert can compare)
(3) chain of custody.

Question 25

Authentication of X-rays ∑4

Answer 25

authentication of X-rays and other evidence whose accuracy depends on unseen processes):

Proponent must establish

(a) Custody- chain of custody
(b) Qualified- operator was qualified to operate the machine
(c) Proper- machine is working properly;
(d) Process- accurate process was used; and

Question 26

Authentication of photograph

Answer 26

Authentication of photograph/diagram/map/movie:

witness with personal knowledge. no need to call creator.

Question 27

Authentication of documents

Answer 27

(1) stipulation,
(2) eyewitness testimony,
(3) handwriting verification

Question 28

Authentication of ancient documents

Answer 28

© ancient document is presumed authentic if

(a) AGE - doc is 20+ years old;
(b) APPEARANCE - unsuspicious in its appearance and
(c) LOCATION - found in a place natural for such document

Question 29

Authentication of public record

Answer 29

authenticate by evidence that the

(1) document was recorded/filed in a public office or
(2) document is from the office where items of that kind are kept.

Question 30

Reply letter doctrine

Answer 30

A document may be authenticated by evidence that it was written in response to a communication, so long as it is unlikely, based on the contents, that it was written by someone other than the recipient of the first communication.

Question 31

Authentication of handwriting

Answer 31

2 ways:

(1) Expert witness or jury can compare; or
(2) Testimony from lay witness with personal knowledge.

© Lay witness must not have become familiar with the handwriting for the purposes of current litigation

Question 32

Authentication of oral statements

Answer 32

(1) Voice identification by anyone who heard the voice AT ANY TIME (including one made familiar solely for the purpose of litigation); or
(2) If telephone: caller called the speaker’s number; caller recognized speaker’s voice; speaker knew specific facts

Question 33

Best evidence rule

Answer 33

Best evidence rule requires that the original document or a reliable duplicate be produced if a document’s contents are at issue.

© Best evidence rule does not apply if the content of the writing deals with a collateral issue.

Question 34

Best evidence rule: Contents are at issue when

Answer 34

(1) document is used as proof of happening of an event (e.g., such as a photograph of bank robbery)
(2) document has actual legal effect (K or will); or
(3) witness is testifying based on stuff only learned from the document (e.g., xray)

Question 35

Best evidence rule: original is not required, and other evidence of the contents of a writing is admissible if

Answer 35

(1) LOST – All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith;
(2) JUDICIAL – no original can be obtained by any available judicial process or procedure;
(3) OTHER PARTY – the original is in the possession of a party opponent had the original, had notice it would be used at trial, and failed to produce it; or
(4) COLLATERAL – the writing/recording/photo is not closely related to a controlling issue (e.g., content of the writing deals with a collateral issue)

Question 36

Best evidence rule: duplicates

Answer 36

Duplicates act as original unless

(1) genuine question as to the original’s authenticity or
(2) circumstances make it unfair (only part of the original is duplicated).

© N/A for handwritten copies, unless original/dup is unavailable.

Question 37

Best evidence rule: summaries

Answer 37

Summaries are fine but originals/duplicates must be made available for inspection/copying.

Question 38

Best evidence rule: public records

Answer 38

No need for original if

(1) certified copy of the original OR
(2) a noncertified copy plus testimony of a person who compared the copy with the original .

© Mere sworn testimony on the contents is insufficient.

Question 39

Best evidence rule: admission by opposing party

Answer 39

No need for original if proponent can prove the contents of a writing, recording, or photograph by the testimony, deposition, or written statement of the party against whom the evidence is offered

Question 40

Best evidence rule: who decides whether an asserted original is the original?

Answer 40

jury.

jury determines whether:

i) An asserted original (writing, recording, or photograph) ever existed;
ii) Another evidence is the original; or
iii) Other evidence of content correctly reflects the content.

Question 41

Best evidence rule: who decides whether original is required?

Answer 41

judge

Question 42

Relevance of evidence rule generally

Answer 42

Evidence must be relevant to be admissible. All relevant evidence is admissible unless excluded by rules.

Question 43

Evidence is relevant if

Answer 43

if ∑2:

(a) it has any tendency to make a fact more or less probable (i.e. probative), and
(b) the fact is of consequence in determining the action (i.e. material).

Question 44

Rule 403

Answer 44

Court can exclude relevant evidence if certain risks substantially outweigh its probative value. R403.

(1) unfair prejudice;
(2) undue delay/wasting time;
(3) confusion of the issues/misleading jury;
(4) needlessly cumulative

Question 45

Rule 403 factors

Answer 45

(1) unfair prejudice;
(2) undue delay/wasting time;
(3) confusion of the issues/misleading jury;
(4) needlessly cumulative

Question 46

Conditional relevance

Answer 46

If relevance depends on a disputed fact, court will admit on the condition that the jury will decide on that preliminary fact later.

Question 47

Privilege: choice of law governing evidentiary privilege

Answer 47

FRE: no rule. Use federal common law

Diversity JX: State privilege law

Question 48

Privilege: waiver

Answer 48

is waived when

(1) UNTIMELY - failure to timely assert
(2) CARELESS - careless disclosure by lawyer ©
(3) voluntary disclosure
(4) express waiver (e.g. contract)

Question 49

ACP

Answer 49

protects a confidential communication made for the purposes of securing legal advice.

Question 50

ACP: confidential element

Answer 50

Communication is not confidential if it is made in the presence of unnecessary third parties

Client must have made reasonable effort to make it confidential.

Question 51

ACP: corporate client

Answer 51

Includes communication by EE about matters within scope of employment for the purposes of seeking legal advice

Question 52

ACP: substance of communication

Answer 52

ACP does not protect: Underlying facts, preexisting documents

Question 53

ACP: inadvertent disclosure

rule
exception

Answer 53

Waiver if attorney failed to promptly take reasonable steps to rectify the error.

© When state law is more protective of the privilege than the federal rule, applicable state law governs and the disclosure is not treated as a waiver in a subsequent federal proceeding

Question 54

ACP: exceptions

Answer 54

(1) Crime Fraud - Communication for legal advice with what client knows or should know is a crime or fraud;
(2) Dispute between lawyer-client

Question 55

Physician-patient privilege

Answer 55

applies to statement made by patient to a doctor for the purposes of obtaining medical advice/treatment

Question 56

Physician-patient privilege: exceptions

Answer 56

(1) illegal purpose
(2) doctor-patient dispute
(3) waiver

Question 57

Psychotherapist-patient privilege

Answer 57

applies to communication made between patient-psych for the purpose of or in the course of diagnosis or treatment.

N/A for stuff told a nurse who was not treating him as a psychiatrist, psychologist, or licensed social worker. N/A for statements not made in the course of diagnosis or treatment.

Question 58

Psychotherapist-patient privilege: exceptions

Answer 58

(1) result of court ordered exam
(2) the case is a commitment proceeding against patient or
(3) patient’s mental condition is at issue.

e.g. If P claims D caused P emotional distress, D can compel P to produce psych session notes.

Question 59

Recognition of physician- and psychotherapist- privileges in courts

Answer 59

Physician-patient: Not recognized in federal courts, but states might

Psychotherapist-patient: Recognized in federal courts and most states

Question 60

Privilege against self-incrimination: scope

Answer 60

applies to current statements, not prior statements.

not physical

Question 61

Privilege against self-incrimination: exception

Answer 61

There is no privilege against self-incrimination when there is if no risk of criminal trouble (e.g. state offers immunity).

Gov can compel witness to testify by granting immunity. Witness is not entitled to blanket immunity; only use immunity.

Question 62

Privilege against self-incrimination: corporation

Answer 62

The privilege belongs only to human beings. A corporation or other organization is not able to assert the privilege

Question 63

Confidential marital communication privilege

Answer 63

Both spouses can assert the privilege and prevent other from testifying about communication made between spouses during marriage in reliance on the sanctity of marriage

Privilege continues even after marriage ended.

Question 64

Spousal immunity

Answer 64

A witness-spouse can assert the privilege and has a right to refuse to testify in a criminal case against the defendant spouse when there is a valid marriage in existence. Must be married.

Question 65

Spousal privileges: exceptions

Answer 65

(1) Spouse v. spouse

(2) Spouse charged with a crime against another

Question 66

Subsequent remedial measures

Answer 66

Evidence of subsequent remedial measures taken by D after P’s injury are not admissible to prove negligence, culpable conduct, 3 types of product defect.

does not apply to third party remedial measures

Question 67

Subsequent remedial measures: exceptions

Answer 67

Subsequent remedial measures are admissible for

(1) impeachment,
(2) to prove ownership/control of the cause of the harm,
(3) feasibility of precautionary measures

©©feasibility of precautionary measures: P may not introduce such evidence unless the feasibility of such measures is disputed.

Question 68

Settlement offers/negotiations

Answer 68

Compromise offers and statements/conduct made during negotiations are not admissible to prove/disprove

(1) the validity of a disputed claim or
(2) the amount of damages. or
(3) cannot be used as a prior inconsistent statement to impeach

e.g. offers in response to anticipated lawsuits. NOT offers in response to mere inquiry or when no pending dispute

Question 69

Settlement offers/negotiations: exceptions

and exception to exception

Answer 69

admissible to show

(1) witness bias or prejudice, or
(2) to negate a contention of undue delay

© can’t use as prior inconsistent statement to impeach

Question 70

Offers to pay medical expense

Answer 70

Offers to pay medical expenses are not admissible to prove liability for injury

Question 71

Offers to pay medical expense: exception

Answer 71

© Statements/conduct accompanying the offer may be admissible

Question 72

Liability insurance

Answer 72

Evidence of liability insurance is not admissible to prove negligence or wrongdoing (i.e. as substantive evidence).

Question 73

Liability insurance: exceptions

Answer 73

© Admissible to show

(1) witness bias or prejudice,
(2) ownership

Question 74

Plea negotiations

Answer 74

Statements made in the course of plea discussions with the prosecution that do not result in a plea of guilty are not admissible in any civil or criminal proceeding against D who was a participant in the plea discussions.

This does not apply to statements made to police; only to statements made to the prosecutor.

Question 75

Plea negotiations: exceptions

Answer 75

Waived if defendant knowingly and voluntarily, and in the presence of counsel

Exclusion applies when the D’s statement is being used for impeachment as well as substantive purposes.

Question 76

Rape-shield law

Answer 76

Generally, V’s (a) past sexual conduct is not admissible in (b) civil or criminal cases involving sexual misconduct.

Exceptions:
© Criminal: admissible to show
(1) D was/was not the source of incriminating evidence OR
(2) to show that V consented.
© Civil: admissible only if probative value substantially outweighs the risk of prejudice (reverse 403)

Question 77

Rape-shield law: exceptions for criminal cases

Answer 77

© Criminal: admissible to show

(1) D was/was not the source of incriminating evidence OR
(2) to show that V consented

Question 78

Rape-shield law: exception for civil cases

Answer 78

© Civil: admissible only if probative value substantially outweighs the risk of prejudice (reverse 403)