Evidence Assessment 1

Question 1

Mode and Order of Examining Witnesses and Presenting Evidence

1. Why?
2. How for Witnesses?
3. How for Trial?

Answer 1

Rule 611 - Control by the Court (DISCRETION)

1. To be Effective, to Avoid Wasting Time, Protect Witnesses from harassment
2. Direct = No Leading
   Cross or Hostile = Leading (ONLY on topics asked on Direct)
3. Control or limit the time for trial + limit amount of evidence

Question 2

Rulings on Evidence

(a) Preserving a Claim of Error.

Answer 2

Rule 103. - if the error affects a substantial right
-And -
If ADMITS Evidence = Objection MUST be Timely + Specific
-or-
If EXCLUDES Evidence = a party informs the court of evidence substance by an offer of proof,

Question 3

Competency to Testify in General

Answer 3

601:
1) EVERYONE is competent
2) Competent is NOT Credible - credibility is for jury to decide
3) Civil cases - sometimes Age is a factor and state law decides (Most have gotten rid of it)

Question 4

Juror Competency to Testify

Answer 4

606;

1. At the Trial. A juror may not testify as a witness before the other jurors at the trial.
2. Validity of Verdict: a juror may not testify about any statement made or incident that occurred during deliberations;
3. Exceptions. A juror may testify about Outside Influence - extraneous prejudicial info brought in

Question 5

Judge Competency to Testify

Answer 5

605:

- presiding judge may not testify as a witness at the trial. - No Objection Needed to preserve error

Question 6

Oath to Testify

Answer 6

603:

NO Magic Language - can be ANYTHING to impress upon them the seriousness

Question 7

Personal Knowledge to Testify

Answer 7

602:

• may testify to a matter only if the witness has personal knowledge of the matter.
• Not necessary for expert

Question 8

Writing Used to Refresh a Witness

Answer 8

612:
1) Can be ANYTHING - statement or object
2) Used for “Present Memory Refreshed”
[Had knowledge But forgot ]
3) an ADVERSE Party is entitled to have the writing produced at the hearing,
- inspect it,
- cross-examine the witness about it,
- introduce in evidence any portion that relates to the witness’s testimony.

Question 9

Relevance Analysis

Answer 9

401 –> 402 –> ANYTHING ELSE –>403

Question 10

Test for Relevant Evidence

(EXAM) (ALWAYS IN EVERY CASE!

Answer 10

401: [ It is Either Relevant or it is not]
a) it has any tendency to make a fact more or less probable than it would be without the evidence;
~and~
(b) the fact is of consequence in determining the action.

Question 11

All Relevant Evidence is Admissible

Answer 11

402
- Relevant evidence is admissible unless
[Exceptions] Unconstitutional ..etc

Question 12

Excluding Relevant Evidence for

Undue Prejudice,
Confusion, Waste of Time, etc

Answer 12

403 - BALANCING TEST (EXAM) (ALWAYS IN EVERY CASE!)
– Whether or not the Probative Value is Substantially outweighed by Unfair Prejudice
EX: Remote in Time = is it too far removed from the issue?

Question 13

Subsequent Remedial Measures

Answer 13

407:
 measures are taken that would have made an EARLIER injury or harm less likely to occur, evidence of the subsequent measures is NOT Admissible
But 
May be ADMISSIBLE - to prove:
another purpose, such as

• impeachment or
• (if disputed) … ownership, control, or the feasibility of precautionary measures.
• Firing a Bad Employee counts as a Remedial measure

***Exception: Actions by 3rd Parties = Allowed in **

Question 14

Compromise Offers and Negotiations

Answer 14

408:
Not Allowed in for either party to prove or disprove the validity or amount of a DISPUTED claim (of validity or amount)

BUT / Exceptions.

• may admit this evidence for another purpose, such as proving a witness’s bias or prejudice
• settled and one of the parties backs out, the evidence is allowed

Question 15

Offers to Pay Medical and Similar Expenses

Answer 15

409:

Not Allowed to prove liability for the injury.

Question 16

Pleas, Plea Discussions, and Related Statements

Answer 16

410:
NOT Allowed any statement made during plea discussions
if the discussions did not result in a guilty plea or they resulted in a later-withdrawn guilty plea.
Exception = Perjury

Question 17

Liability Insurance

Answer 17

411:
NOT admissible to prove whether the person acted negligently or otherwise wrongfully
BUT may be for
proving a witness’s bias or prejudice or proving agency, ownership, or control

Question 18

Methods of Proving Character

Answer 18

405:
Direct - Reputation or Opinion - When evidence of a person’s character or character trait is admissible
Cross - Acts Testimony allowed on Cross
- (Specific ACTS). When character trait is an essential element of crime charged

Question 19

“Substantive” vs, “Impeachment “

Answer 19

1) “Substantive” = evidence being entered by either party that is for a particular purpose (To prove a disputed issue) that is NOT PROPENSITY evidence (both sides)
Vs
2) “Impeachment “ = attempt to discredit a witness

Question 20

Character Evidence; Crimes or Other Acts

Answer 20

404:
1) Not allowed as Propensity Evidence

2) Is Allowed if
- Defendant puts it in Issue / the prosecutor may offer evidence to rebut it
- Defendant offered it to put Victim on Trial ~ can use evidence for Def about same trait
- May be used for other purposes
- Civil Trial for Defamation

Question 21

Answering machine recording -

Answer 21

Best Evidence Rule

- can’t testify to contents unless original destroyed / lost