Evidence Essay Rule Statements

Question 1

What evidence is admissible and what makes evidence relevant?

Answer 1

All relevant evidence is admissible unless it is excluded by a specific rule, law, or constitutional provision. Evidence is relevant if it has a tendency to make a fact more or less probable (probative) and the fact is of consequence in determining the action (material).

Make sure to say that evidence has to be relevant when analyzing if it is admissible and explain why it is helpful for determining the outcome of the dispute

Question 2

Legal Relevance 403

Answer 2

Relevant evidence may be excluded if the probative value is substantially outweighed by the danger of unfair prejudice, confusing the issue, misleading the jury, undue delay, or needlessly presenting cumulative evidence.

Question 3

Character evidence in civil cases

Answer 3

In a civil case, character evidence is not admissible to prove that a person acted in accordance with that character or trait on a particular occasion.

But character evidence is admissible when character is an essential element of a claim or defense, such as: defamation, negligent hiring or entrustment, and child custody.

Question 4

Character evidence in criminal cases

Answer 4

The prosecution is not allowed to introduce bad character evidence to prove a propensity to commit crimes.

A defendant may introduce evidence of his pertinent good character through reputation or opinion to show it is inconsistent with the charged crime

If a defendant “opens the door” the prosecution may then call a witness to rebut D’s character and use reputation or opinion OR cross-examine the D’s character witness an ask about reputation/opinion or specific acts. (The prosecution can ask about specific acts but can’t introduce extrinsic evidence)

Question 5

Example of opinion and reputation evidence when witness says his friends just met the defendant.

Answer 5

Generally, character evidence is inadmissible. However, in a criminal case, the defendant is permitted to introduce evidence of his good character as being inconsistent with the type of crime charged, as long as the evidence is in the form of the defendant’s reputation in a community or opinion testimony by another witness. The “community” includes people the defendant engages with on a regular basis.

Here, Defense Counsel called Buddy to testify that he had heard from some of his friends that Defendant is an honest and gentle person who would never hurt anyone. Because Buddy is not testifying to his own opinion of Defendant, it is not opinion testimony. This testimony also does not qualify as reputation evidence, because Buddy’s friends have only met Defendant recently and engaged with him a few times. Therefore, as Buddy’s testimony is neither opinion nor reputation testimony, it is improper character evidence, and the judge should not have admitted it to prove Defendant’s character for honesty and gentleness.

Question 6

Use of victim’s character in criminal trials

Answer 6

A defendant may introduce reputation/opinion evidence of the victim’s character if it is relevant to the defense asserted. If D opens the door then the prosecution may:

1) introduce rebuttal evidence of the victim character’s trait OR
2) introduce evidence of the defendant’s bad character regarding the same trait

In a homicide case, the prosecution may also offer evidence of the alleged victim’s trait for peacefulness to rebut evidence that the alleged victim was the first aggressor. Fed. R. Evid. 404(a)(2)(C).

Question 7

Method of proving character evidence

Answer 7

405

(a) By Reputation or Opinion. When evidence of a person’s character or character trait is admissible, it may be proved by testimony about the person’s reputation or by testimony in the form of an opinion. On cross-examination of the character witness, the court may allow an inquiry into relevant specific instances of the person’s conduct.

(b) By Specific Instances of Conduct. When a person’s character or character trait is an essential element of a charge, claim, or defense, the character or trait may also be proved by relevant specific instances of the person’s conduct

Question 8

Specific Bad Acts 404(b)

Answer 8

Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.

But, evidence of prior bad acts may be admissible to show a non-propensity purpose such as OKMIMIC

Opportunity, Knowledge, Motive, Intent
absence of Mistake, Identity, Common plan or scheme.

(3) Notice in a Criminal Case.

In a criminal case, the prosecutor must:

(A) provide reasonable notice of any such evidence that the prosecutor intends to offer at trial, so that the defendant has a fair opportunity to meet it;

(B) articulate in the notice the permitted purpose for which the prosecutor intends to offer the evidence and the reasoning that supports the purpose; and

(C) do so in writing before trial — or in any form during trial if the court, for good cause, excuses lack of pretrial notice.

Question 9

Habit Evidence

Answer 9

Evidence of a person’s habit or an organization’s routine practice may be admitted to prove that on a particular occasion the person or org acted in accordance with the habit/routine practice. May be admitted regardless of whether its corroborated or whether there was an eyewitness.

Question 10

Sex offense cases using Victim’s character, FRE 412

Answer 10

In a civil or criminal case involving alleged sexual misconduct, evidence of the victim’s sexual conduct/predisposition is generally barred.

Civil case exception: can be used in a civil case if the probative value substantially outweighs danger to the victim or unfair prejudice to any party

Criminal case exception:

(A) evidence of specific instances of a victim’s sexual behavior, if offered to prove that someone other than the defendant was the source of semen, injury, or other physical evidence;

(B) evidence of specific instances of a victim’s sexual behavior with respect to the person accused of the sexual misconduct, if offered by the defendant to prove consent or if offered by the prosecutor; and

(C) evidence whose exclusion would violate the defendant’s constitutional rights.

Question 11

Witness Competence & Lay opinion

Answer 11

A non-expert witness must have personal knowledge of a matter in order to testify about it.

Lay opinion is admissible if it is rationally based on the witness’s perception, helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and not based on scientific, technical, or other specialized knowledge.

Past exam: A lay witness could give testimony about the speed of a vehicle

Question 12

Expert Testimony

Answer 12

Before an expert witness may testify, the proponent must demonstrate to the court that it is more likely than not that the subject matter of the witness’s testimony:

i) Is scientific, technical, or other specialized knowledge, which focuses on the reliability of the testimony; and

ii) Will help the trier of fact understand the evidence or determine a fact in issue, which focuses on the relevance of the testimony.

A witness must be qualified as an expert through knowledge, skill, training, experience, or education.

The testimony must be based on sufficient facts or data and the product of reliable principles and methods.

Question 13

Present recollection refreshed 612

Past Recollection recorded 803

Answer 13

A witness may examine any item to refresh his past recollection, and his testiomny must be based on his refreshed recollection (can’t read directly from the document). The item is not introduced into evidence unless the adverse party chooses to introduce it and then it can be read into evidence.

A memorandum or record about a matter the witness once had knowledge of but can not testify on because they now have an insufficient recollectionvand that was made or adopted by the witness when it was fresh in their mind and is accurate may be read into evidence. Not admitted as an exhibit unless the adverse party admits it.

Question 14

Impeachment by character of untruthfullness

Answer 14

(a) Reputation or Opinion Evidence. A witness’s credibility may be attacked or supported by testimony about the witness’s reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character. But evidence of truthful character is admissible only after the witness’s character for truthfulness has been attacked.

(b) Specific Instances of Conduct. Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness. But the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of:

(1) the witness; or

(2) another witness whose character the witness being cross-examined has testified about.

By testifying on another matter, a witness does not waive any privilege against self-incrimination for testimony that relates only to the witness’s character for truthfulness.

Evidence of truthful character is only admissible after truthfulness has been attacked

Question 15

Exception to specific instances of conduct to show truthfulness: Criminal convictions

Answer 15

Extrinsic evidence allowed for:

1) Any felony (penalty greater than 1 year) subject to 403 except when it is used against a criminal defendant and in that case is subject to reverse 403 (light)

2) Any misdemeanor involving dishonesty or false statements must be admitted. Most jurisdictions don’t consider burglary, larceny, theft, dishonest crimes because they don’t require proving an element of dishonesty

If the conviction is over ten years old it can only be admitted if its probative value substantially outweighs prejudice and notice is given by the proponent.

Question 16

Use of past juvenile convictions

Answer 16

Evidence of a juvenile adjudication is not admissible to impeach a defendant. When the witness is not the defendant, evidence of a juvenile adjudication can be used to impeach the witness’s character for truthfulness only if:

i) It is offered in a criminal case;

ii) An adult’s conviction for that offense would be admissible to attack the adult’s credibility; and

iii) Admitting the evidence is necessary to fairly determine guilt or innocence.

Question 17

Prior inconsistent statements/bias/sensory competence

Answer 17

Prior inconsistent statement can be used to impeach a witness and can be shown with extrinsic evidence if the witness is given a chance to explain it.

Extrinsic evidence can also be used to show bias or sensory competence.

Question 18

Rehabilitation of a witness

Answer 18

If a witness is impeached, the witness may be rehabilitated by the introduction of rebuttal evidence, including:

1) explanation or clarification during redirect examination
2) Reputation or opinion evidence about the witness’s character for truthfulness; or
3) a prior consistent statement

Question 19

Authentication

Answer 19

All tangible evidence must be authenticated To do so, the proponent must produce sufficient evidence to support a finding that the thing is what the proponent claims it to be.

Question 20

Best Evidence Rule

Answer 20

The best evidence rule requires that the original document or a reliable duplicate be produced in order to prove the contents of a writing, recording, photo, x-ray, or video. Applies when the contents of the document is at issue or a witness is relying on the contents when testifying.

Question 21

Define Hearsay

Answer 21

Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. Hearsay may be an oral or written assertation or nonverbal conduct intended as an assertion. Hearsay evidence is generally inadmissible unless it falls under an exception.

A hearsay declarant can be impeached as if they were a testifying witness when their statements are admissible

Hearsay can be admitted for other purposes besides proving truth of the matter asserted such as to show effect on a listener or provide context of the declarant’s state of mind.

Hearsay within hearsay requires exceptions for each point of hearsay

Question 22

Non hearsay exceptions

Answer 22

When there is a testifying witness subject to cross examination:
1) Prior inconsistent statements given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition;

2) Consistent statements to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying;

3) Prior statements of id if witness is cross-examinable

EX:
part of Witness’s prior written statement included an identification of Defendant as the person Witness saw on May 5. Witness testified at trial and was subject to cross-examination concerning the identification. Therefore, this part of Witness’s prior written statement should have been admitted as a non-hearsay prior identification.

However, the remaining portion of Witness’s prior inconsistent statement, “I saw Defendant attack Victim and then run away with Victim’s bag,” is not non-hearsay, because only prior inconsistent statements made under oath at a trial, hearing, or deposition qualify as non-hearsay and can be admitted as substantive evidence therefor. This part is not admissible.

Also not hearsay

An Opposing Party’s Statement. The statement is offered against an opposing party and:

(A) was made by the party in an individual or representative capacity;

(B) is one the party manifested that it adopted or believed to be true;

(C) was made by a person whom the party authorized to make a statement on the subject;

(D) was made by the party’s agent or employee on a matter within the scope of that relationship and while it existed; or

(E) was made by the party’s coconspirator during and in furtherance of the conspiracy.

Question 23

Hearsay exceptions when declarant is unavailable

Answer 23

Prior Testimony when it is offered against someone who had opportunity/motive to develop it

Dying declaration

Statement against interest (A statement offered in a criminal case that would subject the declarant to criminal liability is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.)

Statement of personal or family history

Statement against party that caused declarant’s unavailability

Question 24

Hearsay exception where declarant’s availability is immaterial

Answer 24

1) Present sense impression
2) Excited utterance
3) Statement of mental, emotional, or physical condition
4) Statement made for medical diagnosis/treatment
5) Recorded recollection (witness no longer able to testify)
6) Business records
7) Public records
8) Learned treatises
9) Judgment of previous conviction (this has to be a felony)

Question 25

Present sense impression exception

Answer 25

Under the present sense impression exception, a statement describing or explaining an event or condition that is made while perceiving the event or immediately after the declarant perceived it is not excluded as hearsay.

Question 26

Business records

Answer 26

A record of an event or condition is not excluded as hearsay if: (i) the record was kept in the course of regularly conducted business, (ii) the making of the record was a regular practice of that activity, and (iii) the record was was made at or near the time by someone with knowledge.

Question 27

Excited Utterance

Answer 27

A statement about a startling event that is made while the declarant is under the stress of excitement it caused is excepted from hearsay.

Question 28

Confrontation Clause & Hearsay

Answer 28

A criminal defendant has the right to confront any witness against him.

Out of court testimonial statements are inadmissible unless the witness is unavailable and the defendant had an opportunity to cross-examine them.

To determine if the statement is testimonial courts look to the primary purpose of the statement. If the statement would cause an objective witness to reasonably conclude that the statement would be used at a later trial to ascertain criminal conduct then it is testimonial.

Emergency doctrine exception
A statement made to police with the primary purpose of enabling police to help meet an ongoing emergency is not testimonial.

Question 29

Medical treatment exception

Answer 29

A statement about a past or present symptoms made while seeking medical treatment is not hearsay.

doesn’t have to be made to a doctor and can be made while seeking treatment for someone else

Question 30

Statement of a party opponent

Answer 30

A statement made by a party to the current litigation is not hearsay if it is offered by an opposing party.

Question 31

Statement of a then-existing condition (present state of mind)

Answer 31

A statement of present intent, motive, or plan can be admissible as a hearsay exception to prove conduct in conformity with that state of mind.

(3) Then-Existing Mental, Emotional, or Physical Condition. A statement of the declarant’s then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant’s will.

Question 32

Statement to provide context

Answer 32

A statement used merely to provide context or effect on the listener is not hearsay because it is not used to show the truth of the matter asserted.

Question 33

When can prior convictions be used for impeachment.

Is robbery or shoplifting a crime of dishonesty?

Answer 33

Any witness can be impeached by evidence that they have been convicted of a crime that involved dishonesty or false statement, regardless of the punishment imposed or the prejudicial effect of the evidence. However, conviction for a crime not involving fraud or dishonesty is admissible to impeach only if the crime is punishable by death or imprisonment for more than one year. A crime involves dishonesty or false statement if establishing the elements of the crime requires proof or admission of an act of dishonesty or false statement.

In most jurisdictions, shoplifting is not a crime of dishonesty because it does not require proof of an act of dishonesty or false statement.

Question 34

Public Policy Exclusions

Answer 34

Subsequent remedial measures can’t be used to show negligence but can be used to show control or for impeachment.

Settlement offers and statements made during negotiations. There must be a disputed claim for this to apply. Can be introduced in a subsequent criminal trial when negotiating with a governmental agency in their regulatory/investigative/enforcement capacity.

Offer to pay medical expenses are inadmissible to prove liability. Unlike a compromise negotiation, any conduct or statement that accompanies the payment, offer to pay, or promise to pay medical expenses is admissible.

Evidence of liability insurance is not admissible to show liability but can be used to show bias, control, agency, or ownership if it is at issue.

Question 35

Spousal Testimonial Privilege

Answer 35

The general rule is that the spouse of a criminal defendant may not be called as a witness by the prosecution. Nor may a married person be compelled to testify against his spouse in any criminal proceeding, including a grand jury proceeding, regardless of who is the defendant.

The spousal immunity privilege applies to testimony about events that occurred before and during the marriage. There must be a valid marriage for this to apply.

Question 36

Confidential Marital Communications

Answer 36

Either spouse can assert this privilege and prevent the other from testifying. Applies only to communications made during marriage but survives the marriage. Applies on civil and criminal cases.

Question 37

Exception to spousal privileges

Answer 37

Spousal privileges are subject to limitations in cases in which one spouse is suing the other, or when one spouse is charged with a crime against the other spouse or the children of either. For example, a defendant-spouse accused of battery of a witness-spouse would not be able to prevent the witness-spouse from testifying as to confidential marital communications.

**The confidential communications privilege may not be used if a spouse discloses information to a third party and thus breaks confidentiality*

Question 38

Impeachment by Prior inconsistent statement and admissibility of extrinsic evidence.

Answer 38

a litigant is generally allowed to impeach a witness’s credibility by introducing a prior inconsistent statement, as long as the inconsistency involves an issue relevant to the facts of the case. A witness’s testimony as to lack of memory can be considered an inconsistency for which a prior inconsistent statement may be introduced.

Extrinsic evidence of the prior inconsistent statement used to impeach a witness’s credibility may be admitted only if the witness is given an opportunity to explain or deny the statement and the opposing party is given the opportunity to examine the witness about it. However, this opportunity is not mandated if justice so requires (e.g., if the statement is discovered after a witness becomes unavailable).