Evidence

Question 1

When do the FRE apply?

Answer 1

The FRE governs all civil and criminal trials and proceedings in federal courts, including bankruptcy and admiralty cases and proceedings.

Question 2

When does the FRE not appl?y

Answer 2

Grand jury proceedings,
Preliminary hearings,
Applying for and obtaining a warrant,
Bail proceedings,
Preliminary questions of fact regarding admissibility,
Sentencing,
Probation violation hearings,
Forfeiture proceedings, and
Summary contempt.

Question 3

How to properly object

Answer 3

(1) Timely objects or moves to strike (try and object before the answer); and
(2) states the specific ground, unless it was apparent from the context. (no general objections)

Question 4

Proffer/Offer of Proof

Answer 4

If the ruling excludes evidence a party informs the court of the substance of the evidence by an offer of proof, unless substance was apparent from the context.
-the party may state what the excluded evidence would be orally or in writing; may be in question and answer form outside the presence of the jury

Question 5

Waiver of Objection

Answer 5

If no objection is made even to objectionable evidence, the objection generally, is waived, and the evidence will be admitted.

On appeal, absent plain error, the court will not consider the issue

Question 6

Harmless Error Doctrine

Answer 6

An error is harmless if no substantial rights were affected OR even if substantial rights were affected by the error, if the court finds that it is likely that the error did not impact the verdict/judgment. If the appellate court finds error, but that it was harmless, no relief will be granted.

Question 7

Plain Error Doctrine

Answer 7

Plain error is defined as a highly prejudicial error affecting “substantial rights.” The only time a reversal will result from the admission of evidence despite an objection not being raised is when plain error is found.

Question 8

What is a preliminary question?

Answer 8

Sometimes the admissibility of an item of evidence is dependent on a “preliminary question”-the determination by the court of the satisfaction of another law or rule of evidence, or on the existence of another fact.

Question 9

The “Relevant, but..” Rule (104(a))

Answer 9

Evidence that clearly is relevant may not be admissible if, for example, it is hearsay, is privileged, or involves a constitutional violation. This rule holds that before admitting any even relevant evidence, the court must decide any “preliminary question” about whether:
-a witness is qualified,
-a privilege exists, or
-evidence is admissible

Question 10

“Conditional Admissibility” or “The NOT Relevant unless.” rule

Answer 10

When the relevance of evidence depends on whether another fact-the preliminary fact-exists, proof must be introduced that the preliminary fact exists.

Standard: The judge must find that there is “sufficient evidence to support a finding” that the preliminary fact does exist to find the item relevant.
The court may admit the proposed item of evidence on the condition that the proof of the preliminary fact be introduced later.

Question 11

Limited Admissibility

Answer 11

The court may admit evidence against a party or for a specific purpose–but not against another party or for another purpose.
Limiting Jury Instruction: The court, on timely request, must restrict the evidence to its proper scope and instruct the jury accordingly.

Question 12

Rule of Completeness

Answer 12

If a party introduces all or part of a statement made, an adverse party may require the introduction, at that time, of another party-or any other statement-that in fairness ought to be considered at the same time. The adverse party may do so over a hearsay objection.
Applies to oral, written, and recorded statements.
Renders the related statement admissible even if otherwise inadmissible hearsay.

Question 13

Judicial Notice

Answer 13

It is a substitute for proof where the court accepts certain “adjudicative” facts as true without requiring formal presentation of evidence. Once a fact is judicially noticed, no contradictory evidence is permitted on that issue.

Mandatory if requested by a party and if the necessary information is supplied.

Question 14

Two Kinds of Judicial Notice

Answer 14

(1) Facts Commonly Known in the Territory: Facts commonly known within the territory of the court. (Think everyone knows this!)
(2) Easily Verifiable Facts: Facts which are capable of accurate and ready determination by resorting to sources which are not subject to reasonable dispute. (E.g. sunrise and sunset times)

Question 15

When must a jury accept judicial notice

Answer 15

A civil jury must accept a judicially noticed fact as conclusive.
A criminal jury may, but is not required to, accept a judicially noticed fact as conclusive.

Question 16

“Bursting Bubble” Theory on Presumptions

Answer 16

Under this theory, once the opponent presents sufficient evidence that the presumed fact is not true, the presumption disappears and the trier of fact cannot find the existence of the presumed fact, absent other direct proof.

FRE does NOT follow the bursting bubble theory.

Question 17

Relevancey

Answer 17

Relevant evidence is evidence tending to make the existence of any fact of consequence to the action more ore less probable than it would be without the evidence.

Relevance is a very low bar for the proponent of the evidence to clear. Therefore, an answer that excludes evidences purely on relevance grounds typically is wrong.

Question 18

Balancing Test-relevancey

Answer 18

Although relevant, evidence may be excluded if any of the six considerations exists. This is often called “practical relevance.” If the probative value is SUBSTANTIALLY outweighed by:
-the danger of unfair prejudice (meaning the evidence invites the jury to make a decision on an improper ground),
-confusion of the issues,
-misleading the jury,
-considerations of undue delay,
-waste of time, or
-needless presentation of cumulative evidence (think photographs)

The test favors admission rather than exclusion, therefore most 403 objections are overruled.

Question 19

What are the three forms of character evidence?

Answer 19

Reputation-witness testifies to another’s reputation as to character (reputation evidence is hearsay but a hearsay exception applies)

Opinion-Witness testifies to their opinion of another’s character

Specific Acts-Witness testifies to specific acts (specific instances of conduct) of another that reflect the other’s character (they involve different people, places, times, or events than that which is subject of the trial.

Question 20

When may character evidence be admitted?

Answer 20

Mnemonic: ICE

Impeachment Character Evidence: CE offered to impeach (or rehabilitate) a witness with evidence of their character for truthfulness. General Rule: Admissible

Conformity Character Evidence: CE offered as circumstantial evidence to show conforming conduct; referred to by some as “defensive” use of CE. General Rule: Not admissible.

Element Character Evidence: Offered because it’s relevant to an essential element of the claim or cause of action. General Rule: Admissible, but rare in civil cases; even more rare in criminal cases.

Question 21

When may Element character evidence be available?

Answer 21

Darn NICE
1. Defamation-damage to reputation is an element of the tort
2. Negligent entrustment, hiring, supervision-d’s entrustment, hiring, or supervision of an employee/entrustee who caused injury was negligent considering their reputation.
3. Immigration-person’s character is relevant to being permitted entry to the country.
4. Child custody-both parents’ fitness to raise children is in issue
5. Entrapment-a defense in a criminal case that d was introduced by the government to commit the crime and is not the type of person who would have committed the crime absent that inducement.

Question 22

MIMIC+ Rule

Answer 22

Character evidence may be admissible when offered for a purpose other than to show conduct in conformity with one’s character, often called “special relevance.” Evidence of other crimes, wrongs, or acts may be admissible when offered to prove:
M: Motive
I: Intent
M: Absence of Mistake
I: Identity (sometimes called modus operandi, handiwork or signature)
C: Common scheme or plan
+: Knowledge, opportunity, preparation, lack of accident

Question 23

Habit and Routine Practice

Answer 23

Evidence of the habit of a person or routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove conduct in conformity with the habit or routine practice.
Admissible as opinion or specific acts

Tip: Sufficient triggers-always, automatically, regularly, instinctively, without fail, invariably, habitually.
Insufficient triggers: usually, often, frequently

Question 24

Subsequent Remedial Measures

Answer 24

Evidence of SRM is inadmissible to prove negligence, culpable conduct, design defect, or the need for a warning.

May be used:
-to show ownership or control if denied
-to show feasibility of precautionary measures if denied
-the need for a warning if denied
-to impeach

Question 24

Statements Made in Connection with Offers to Settle (Compromise Rule)

Answer 24

Evidence of an offer to settle a civil claim, which is disputed either as to validity or amount, and statements made in connection therewith are inadmissible to prove liability or amount.

Either or both may be admissible if offered to prove something other than claim validity or amount.
There must be a dispute as to the amount of the damage or fault (liability).

Question 25

Exceptions to Statements Made in Connection with Offers to Settle

Answer 25

-Admissible to show bias or prejudice
-To negate a contention of undue delay (laches)

May NOT be used to impeach

Question 26

Offer to Pay and Payment of Medical and Similar Expenses

Answer 26

Evidence of offering to pay medical (hospital or similar) bills and paying them are inadmissible to prove liability for an injury, BUT any admissions of fact made in connection with this offer are admissible

Only precludes the offer itself, anything else is admissible.

Question 27

Inadmissibility of Pleas, Plea Discussions, and Related Statements

Answer 27

A plea and any statements made during plea negotiations by a defendant to a prosecutor in a criminal proceeding will be inadmissible against the defendant in a later proceeding if the plea is:
-not accepted by the court;
-later withdrawn by the defendant;
-the defendant pleads nolo contendere (no contest)

Question 28

Liability Insurance

Answer 28

Evidence that a person was or was not insured is inadmissible to prove negligence or fault.
May be admitted for another purpose, such as:
-proof of agency;
-ownership or control; or
-bias or prejudice of a witness

Question 29

The Four Privileges Recognized in Fed Courts and in all 50 States

Answer 29

1) Attorney-client;
2) Psychotherapist-patient (mental health);
3) Clergy-penitent (religious); and
4) Spousal Testimony and spousal communication (marital)

Question 30

Attorney-Client Privilege

Answer 30

Only one in the FRE.
Client is the holder of the privilege and may refuse to disclose (and prevent other persons from disclosing) (1) confidential communications made; (2) for the purpose of seeking professional legal advice or services.
Survives death

Question 31

Attorney-Client Privilege-Confidential Communications

Answer 31

Only communications are protected. Includes oral and written statements and conduct intended to be communicative.

Observations and tangible things, generally, not protected. Pre-existing documents are NOT privileged even if given to the attorney.
Client’s identity, fee arrangements, and billing records are not privileged.

Question 32

Total Waiver of Attorney-Client Privilege

Answer 32

Only if:
-the waiver was intentional; and
-both the disclosed and undisclosed information concerns the same subject matter

Question 33

Inadvertent Waiver of Attorney-Client Privilege

Answer 33

The court will find it was NOT a waiver if:
-the client did NOT intend to waive the privilege
-the client took reasonable steps to protect the information; and
-the client took timely steps to remedy the disclosure

Question 34

Situations where there is no attorney-client privilege

Answer 34

-Future crime or fraud
-Suits between attorney and client
-Joint client exception