Evidence (FRE)

Question 1

Relevant evidence

Answer 1

1) submitted to prove matter of consequence; 2) has to make fact of consequence more or less probable; irrelevant evidence excluded, relevant evidence might be admissible

Question 2

Relevance v. probative value

Answer 2

Relevancy is a yes or no question. Probative value is a matter of degree

Question 3

Judicial discretion to exclude relevant evidence

Answer 3

Judge may exclude relevant evidence if probative value is substantially outweighed by: 1) unfair prejudice; 2) confusion; or 3) waste of time (look for emotionally disturbing evidence or evidence admissible for one purpose but not another)

Question 4

Evidence excluded for policy reasons

Answer 4

1) liability insurance; 2) subsequent remedial measures/repairs; 3) settlements, offers to settle, and pleas; 4) payment or offers to pay medical expenses

Question 5

When is evidence about liability insurance excluded?

Answer 5

used to prove culpable conduct (e.g., negligence) or defendant’s ability to pay judgment; admissible for anything else

Question 6

When is evidence of subs. remedial measures/repairs excluded?

Answer 6

when used to prove culpable conduct and in product liability action, to prove defective product design; admissible for anything else (including rebutting defense of no feasible precaution)

Question 7

When is evidence of settlements, offers to settle and pleas excluded?

Answer 7

when used to prove liability or fault. In criminal cases pleas later withdrawn, offers to plea and related statements are inadmissible to prove guilt (including nolo pleas). Exceptions: 1) when no claim filed or threatened; or 2) no dispute as to liability or damages

Question 8

Relevance v. probative value

Answer 8

Relevancy is a yes or no question. Probative value is a matter of degree

Question 9

Judicial discretion to exclude relevant evidence

Answer 9

Judge may exclude relevant evidence if probative value is substantially outweighed by: 1) unfair prejudice; 2) confusion; or 3) waste of time (look for emotionally disturbing evidence or evidence admissible for one purpose but not another)

Question 10

Evidence excluded for policy reasons

Answer 10

1) liability insurance; 2) subsequent remedial measures/repairs; 3) settlements, offers to settle, and pleas; 4) payment or offers to pay medical expenses

Question 11

When is evidence about liability insurance excluded?

Answer 11

used to prove culpable conduct (e.g., negligence) or defendant’s ability to pay judgment; admissible for anything else

Question 12

When is evidence of subs. remedial measures/repairs excluded?

Answer 12

when used to prove culpable conduct and in product liability action, to prove defective product design; admissible for anything else (including rebutting defense of no feasible precaution)

Question 13

When is evidence of settlements, offers to settle and pleas excluded?

Answer 13

when used to prove liability or fault. In criminal cases pleas later withdrawn, offers to plea and related statements are inadmissible to prove guilt (including nolo pleas)

Question 14

Relevance v. probative value

Answer 14

Relevancy is a yes or no question. Probative value is a matter of degree

Question 15

Judicial discretion to exclude relevant evidence

Answer 15

Judge may exclude relevant evidence if probative value is substantially outweighed by: 1) unfair prejudice; 2) confusion; or 3) waste of time (look for emotionally disturbing evidence or evidence admissible for one purpose but not another)

Question 16

Evidence excluded for policy reasons

Answer 16

1) liability insurance; 2) subsequent remedial measures/repairs; 3) settlements, offers to settle, and pleas; 4) payment or offers to pay medical expenses

Question 17

When is evidence about liability insurance excluded?

Answer 17

used to prove culpable conduct (e.g., negligence) or defendant’s ability to pay judgment; admissible for anything else

Question 18

When is evidence of subs. remedial measures/repairs excluded?

Answer 18

when used to prove culpable conduct and in product liability action, to prove defective product design; admissible for anything else (including rebutting defense of no feasible precaution)

Question 19

When is evidence of settlements, offers to settle and pleas excluded?

Answer 19

when used to prove liability or fault. In criminal cases pleas later withdrawn, offers to plea and related statements are inadmissible to prove guilt (including nolo pleas)

Question 20

Relevance v. probative value

Answer 20

Relevancy is a yes or no question. Probative value is a matter of degree

Question 21

Judicial discretion to exclude relevant evidence

Answer 21

Judge may exclude relevant evidence if probative value is substantially outweighed by: 1) unfair prejudice; 2) confusion; or 3) waste of time (look for emotionally disturbing evidence or evidence admissible for one purpose but not another)

Question 22

Evidence excluded for policy reasons

Answer 22

1) liability insurance; 2) subsequent remedial measures/repairs; 3) settlements, offers to settle, and pleas; 4) payment or offers to pay medical expenses

Question 23

When is evidence about liability insurance excluded?

Answer 23

used to prove culpable conduct (e.g., negligence) or defendant’s ability to pay judgment; admissible for anything else

Question 24

When is evidence of subs. remedial measures/repairs excluded?

Answer 24

when used to prove culpable conduct and in product liability action, to prove defective product design; admissible for anything else (including rebutting defense of no feasible precaution)

Question 25

When is evidence of settlements, offers to settle and pleas excluded?

Answer 25

when used to prove liability or fault. In criminal cases pleas later withdrawn, offers to plea and related statements are inadmissible to prove guilt (including nolo pleas)

Question 26

When is evidence of payment or offers to pay medical expenses excluded?

Answer 26

when offered to prove liability for injuries in question; related statements still admissible.

Question 27

Admissibility of evidence about similar occurrences

Answer 27

usually irrelevant if not about specific people/events at issue except when certain similarities between that evidence and the people/events at issue. Specific examples to follow

Question 28

Specific instances of bad conduct used to prove anything other than character

Answer 28

may be admitted in cases of MIMIC (motive, intent, mistake or absence of mistake), identity (must be unique), common plan or scheme

Question 29

Admissibility of previous similar actions relevant to prove intent

Answer 29

admissible

Question 30

Evidence of prior similar occurrences to rebut a defense of impossibility

Answer 30

relevant

Question 31

Comparable sales

Answer 31

relevant to establish value

Question 32

Habit evidence

Answer 32

admissible to show person acted in accordance with habit on occasion in question

Question 33

Habit evidence v. character evidence

Answer 33

Character evidence says something general about a person and conveys moral judgment; often inadmissible. Habit evidence describes specific conduct and makes no moral judgment (=frequently repeated conduct)

Question 34

Evidence of routine business practice

Answer 34

relevant to show conduct of entity was in conformity with that practice on the occasion in question

Question 35

Industrial custom evidence

Answer 35

relevant to prove standard of care in negligence case

Question 36

Admissibility of character evidence in civil cases

Answer 36

Inadmissible to prove conduct except where civil claim based on sexual assault or child molestation. In those cases, defendant’s prior acts of sexual assault or child molestation are admissible to prove conduct in this case

Question 37

Character evidence in cases where character at issue

Answer 37

admissible; includes suits for defamation; negligent entrustment; child custody disputes; and loss of consortium. Can use all methods (specific instances of conduct, opinion, and reputation)

Question 38

Admissibility of evidence of criminal defendant’s character to prove conduct first introduced by prosecution

Answer 38

Prosecution cannot be first to offer such evidence. Exceptions: 1) in cases of sexual assault/child molestation, prosecution can be first to offer evidence that defendant committed other acts of sexual assault or child molestation; 2) where court has admitted evidence of victim’s character offered by defendant, prosecution can be first to offer evidence that defendant has same character trait

Question 39

Admissibility of criminal defendant’s character to prove conduct first introduced by defendant

Answer 39

Defendant can open door. Effect: prosecution can then offer pertinent character evidence to rebut because defendant opened door (but it always must concern a pertinent character trait)

Question 40

If door is open, what type of character evidence is admissible?

Answer 40

Reputation and opinion evidence admissible on direct but not specific instances of conduct. On cross, reputation, opinion and specific instances are all admissible

Question 41

Admissibility of victim’s character in criminal trial

Answer 41

Prosecution cannot be first to offer character evidence to prove conduct; Two ways defendant can open door: 1) defendant offers evidence of victim’s character, then prosecution may rebut; and 2) in a homicide case, if defendant offers evidence victim attacked first, prosecution may offer evidence of victim’s character for peacefulness

Question 42

Types of character evidence admissible to prove victim’s conduct

Answer 42

Direct: reputation and opinion, no specific instances; cross: everything ok

Question 43

Character evidence rules applicability

Answer 43

Only apply when offered to prove character, don’t apply for anything else

Question 44

Rape shield statute: Criminal

Answer 44

Reputation and opinion evidence inadmissible. Specific instances of victim’s conduct admissible only to prove 1) third party is source of semen or injury; or 2) prior acts of consensual intercourse between the defendant and victim

Question 45

Rape shield: civil

Answer 45

Reputation, opinion, and specific instances of victim’s conduct admissible if probative value substantially outweighs unfair prejudice AND in case of reputation evidence, plaintiff put her reputation at issue

Question 46

Specific instances of bad conduct used to prove anything other than character

Answer 46

may be admitted in cases of MIMIC (motive, intent, mistake or absence of mistake), identity (must be unique), common plan or scheme

Question 47

Discretion to exclude MIMIC for unfair prejudice

Answer 47

judge has it

Question 48

Competency to testify

Answer 48

1) personal knowledge (test: fact testified to = fact perceived? If not, PK is objection); 2) present recollection (not from some record regarding matters witness once knew but now has forgotten); 3) communication (must be able to relate perception either directly or through interpreter); 4) sincerity (must take oath or affirmation to tell truth)

Question 49

Objections to form of testimony and questions

Answer 49

1) Calls for a narrative; 2) unresponsive; 3) usually no leading on direct (ok on cross, if witness hostile/adverse/needing help); 4) Cross must stay within scope of direct; 5) assumes facts not in evidence; 6) argumentative; 7) compound

Question 50

Recorded recollection exceptions to hearsay rule

Answer 50

1) witness once had personal recollection of the facts; 2) document made by witness or was adopted by witness; 3) document was written or adopted at a time when the facts were fresh in the witness’ memory; 4) document was accurate when made; 5) witness now has insufficient recollection to testify as to the matters contained in the document

Question 51

Lay opinion admissibility

Answer 51

normally not; exception: if rationally based on witness’ perceptions and helpful to trier of fact (i.e., gives jury more info than would testimony describing witness’ perceptions…legal conclusions not helpful)

Question 52

Expert opinion admissibility

Answer 52

admissible if: 1) helpful to jury; 2) expert is qualified; 3) expert believes in opinion to a reasonable degree of certainty; 4) opinion must be supported by a proper factual basis; 5) opinion must be based on reliable principles reliably applied

Question 53

Facts opinion must be based on (expert)

Answer 53

1) admitted evidence; 2) personal knowledge; 3) inadmissible evidence reasonably relied upon

Question 54

Reliable principles reliably applied (Daubert/Kumho)

Answer 54

Doesn’t have to be generally accepted; but based on whether: 1) peer reviewed and published; 2) tested and subject to retesting; 3) has low error rate; 4) reasonable level of acceptance

Question 55

Learned treatise hearsay exception

Answer 55

LT admissible to prove anything stated therein if it’s an accepted authority in the field

Question 56

Witness bolstering

Answer 56

evidence to support witness credibility inadmissible unless credibility attacked first

Question 57

Prior consistent statement

Answer 57

not hearsay and admissible for all purposes if made before bribe or inconsistent statement

Question 58

Impeachment approach

Answer 58

1) is source of impeachment extrinsic evidence or testimony at this proceeding? 2) if extrinsic, is it admissible given impeachment technique, 3) any other foundation requirements?

Question 59

Impeachment by prior inconsistent statement

Answer 59

admissible only for impeachment if not given under oath at trial or deposition; admissible for impeachment AND truth if given under oath at trial or deposition; foundation requirement = extrinsic evidence of PIS admissible only if witness given opportunity to explain or deny

Question 60

Impeachment with evidence of bias, interest or motive

Answer 60

admissible; foundation requirement = extrinsic evidence admissible if witness given opportunity to explain or deny

Question 61

Impeachment with conviction for crime involving false statement

Answer 61

All convictions (felony or misdemeanor) for crimes of false statement admissible and NO judicial balancing

Question 62

Impeachment with conviction for crime NOT involving false statement

Answer 62

Felonies = admissible but subject to balancing; misdemeanors = NEVER admissible

Question 63

Nuances of admissible conviction impeachment

Answer 63

May be proven with extrinsic evidence; if conviction otherwise admissible, but >10 years since date of conviction or release from prison (whichever later), it is inadmissible unless probative value outweighs unfair prejudice (reverse 403 balancing)

Question 64

Impeachment with non-conviction misconduct evidence bearing on truthfulness

Answer 64

Acts of conduct not resulting in a conviction admissible to impeach in both civil and criminal cases if acts involved lying. Extrinsic evidence of this inadmissible (may only cross-examine witness about misconduct)

Question 65

Impeachment with reputation and opinion regarding truthfulness

Answer 65

extrinsic evidence admissible

Question 66

Hearsay

Answer 66

out of court statement offered to prove the truth of the matter asserted

Question 67

Statement

Answer 67

verbal or written expression of a person or conduct by a person intended to communicate (assertive conduct)

Question 68

Non-hearsay because not offered to prove truth

Answer 68

1) Statements with independent legal significance; 2) offered to show effect on listener; 3) offered to show speaker’s knowledge of facts stated; 4) offered to show circumstantial evidence of speaker’s state of mind

Question 69

Opposing party statement

Answer 69

hearsay exemption if: statement by a party or by someone whose statement is attributable to a party, offered by a party opponent. Not subject to personal knowledge or opinion rule; vicarious party admissions also covered under this rule

Question 70

Vicarious party admission

Answer 70

under opposing party statement exemption; statement by: 1) authorized spokesperson of party or 2) employee of party concerning matter within scope of employment and made during the employment relationship; Also includes adoptive admission (non-party makes statement and party indicates belief in its truth), and co-conspirator statements (made during course and in furtherance of conspiracy)

Question 71

Prior inconsistent statement of witness/party

Answer 71

Admissible under hearsay exemption if given under oath at trial or deposition

Question 72

Prior consistent statement

Answer 72

falls under hearsay exemption if offered to rebut charge of recent fabrication or improper influence or motive

Question 73

Statement of identification of person made after perceiving person

Answer 73

admissible under hearsay exemption

Question 74

Hearsay exceptions

Answer 74

1) former testimony; 2) declaration against interest; 3) dying declaration; 4) excited utterance; 5) present sense impression; then existing physical or mental condition; 6) statement of past or present medical/physical condition made for medical diagnosis or treatment; 7) business record; 8) public records; 9) judgment of previous conviction

Question 75

Former testimony exception

Answer 75

testimony given by person in earlier proceeding or deposition admissible if 1) party against whom testimony is now offered had an opportunity, in earlier proceeding, to examine the person and motive was similar; OR 2) in a civil case, party against whom the testimony is now offered was not present in earlier proceeding but has close privity-type relationship with someone who was a party to that earlier proceeding and who had opportunity/similar motive to examine at earlier proceeding. DECLARANT MUST BE UNAVAILABLE

Question 76

Declaration against interest

Answer 76

admissible if at time statement made, it was against the financial interest of declarant or would have exposed declarant to criminal liability. If statement offered to show someone else confessed to crime, there must be corroborating evidence. DECLARANT MUST BE UNAVAILABLE

Question 77

Dying declaration

Answer 77

statement by one believing he is about to die and describing cause or circumstances leading to impending death admissible in civil action and homicide prosecution. Declarant need not die but MUST BE UNAVAILABLE

Question 78

Excited utterance

Answer 78

statement relating to startling event or condition admissible when made while declarant still under stress of excitement cause by event or condition (no need to show declarant unavailable)

Question 79

Present sense impression

Answer 79

statement made describing or explaining an event or condition made while declarant was perceiving the event or condition or immediately thereafter (no need to show declarant unavailable)

Question 80

Then existing mental/physical condition

Answer 80

admissible to show condition or state of mind, but statement describing memory or belief NOT admissible to prove fact remembered or believed (no need to show unavailable). If statement admissible to show speaker’s intention then jury can also infer that speaker acted in accordance to that intention

Question 81

Past or present mental/physical condition made for medical diagnosis/treatment

Answer 81

Statement by one person concerning past or present mental/physical condition or its cause admissible if made for and pertinent to medical diagnosis or treatment. Such statements often admissible under then existing mental/physical condition exception as well. No need to show unavailable. Statements about fault not admissible.

Question 82

Business records

Answer 82

admissible if 1) record of events, conditions, opinions, or diagnoses; 2) kept in course of regularly conducted business activity; 3) made at or near time of matters described; 4) by person with knowledge of the facts in that record; 5) it was regular practice of business to make such record. May exclude if untrustworthy. Records made in anticipation of litigation not covered under this exception. No need to show declarant unavailable

Question 83

Public records

Answer 83

admissible if within ONE of the following categories: 1) record describes activities and policies of office; 2) record describes matters observed pursuant to duty imposed by law (but NOT police reports in criminal cases); OR 3) record contains factual findings resulting from investigation made pursuant to authority granted by law, unless untrustworthy and prosecution cannot use in criminal case. No need to show declarant unavailable

Question 84

Judgment of previous criminal conviction

Answer 84

statement describing felony conviction (e.g., copy of judgment of conviction) is admissible in both civil and criminal cases to prove any fact essential to judgment BUT when offered by prosecution for purposes other than impeachment, judgments against persons other than the accused inadmissible. No need to show declarant unavailable

Question 85

Confrontation Clause

Answer 85

may make otherwise admissible hearsay inadmissible if out of court statement offered by prosecution against defendant in a criminal case and if: 1) declarant does not testify at trial; 2) declarant now unavailable; 3) statement is testimonial; 3) and defendant had no chance to cross-examine the declarant about the statement when it was made

Question 86

Testimonial statements

Answer 86

Applies to statements made in court and statements made to further police investigation aimed at producing evidence for a prosecution. Statement made to police to deal with ongoing emergency are non-testimonial

Question 87

Authentication

Answer 87

every item of non-testimonial evidence (e.g., writings, photos, guns) must be authenticated; bop is sufficient to sustain a finding that the evidence is what the proponent claims it is

Question 88

Ways to authenticate

Answer 88

A lot. Include: admission, eyewitness testimony, expert opinion, lay opinion, circumstantial evidence (e.g., ancient doc rule - authenticity established if doc is 20+ years old, does not on its face present any irregularities, and was found in a place of natural custody); genuine exemplar; self authenticating writings (e.g., certified copies of public docs like deeds and wills, acknowledged documents, i.e., ones with a notary signature attached, and official publications/newpapers/periodicals/business records/trade inscriptions

Question 89

Authentication of photos

Answer 89

Usually personal knowledge problem (fact testified to = fact perceived?)

Question 90

Authentication of non-unique items

Answer 90

Proponent must lay chain of custody demonstrating that this is the specific item proponent claims it to be (if chain broken, little break is fine; big break is not fine)

Question 91

Best evidence rule

Answer 91

applies only where evidence offered to prove contents of a writing (i.e., not only documents but videos, photos, x-rays, audio recordings, or any other tangible collection of data). Where rule applies, evidence admissible to prove contents of writing include: original, duplicates (copy of original produced by same impression that produced original…only not allowed when genuine question of authenticity of original), testimony regarding contents of writing may be admissible where original lost/destroyed unless bad faith by proponent of testimony. Also: voluminous document exception: contents of writings can be summarized if originals available for inspection

Question 92

When is evidence being offered to prove contents of a writing?

Answer 92

1) case turns on contents of legal instrument; 2) knowledge of witness obtained from writing

Question 93

Attorney-client privilege

Answer 93

communication b/w atty-client or their representatives intended by client to be confidential (objective standard of intent) and made to facilitate legal services is privileged in ALL civil and criminal proceedings unless waived by client

Question 94

Corporate atty-client privilege

Answer 94

Applies to communications from a corp employee/agents if corp authorized the employee/agent to communicate to lawyer on behalf of the corporation

Question 95

Exceptions to atty-client privilege

Answer 95

1) professional services sought to further what client knew or should have known to be a crime or fraud, or 2) communication relates to alleged breach of duty between lawyer and client, or 3) two or more parties consult an atty on matter of common interest and communication offered by one of these parties against another

Question 96

Psychotherapist/social worker - client privilege

Answer 96

communication b/w psychotherapist or social worker and client intended by client/patient to be confidential and made to facilitate rendition of profession psych services is privilege in all civil and criminal proceedings unless waived by the patient/client

Question 97

Doctor-patient privilege

Answer 97

None under FRE but most states adopted it and fed court case arising under diversity jx applies state privilege law. Where applies: patient has privilege to prevent disclosure of info confidentially conveyed to physician where patient conveyed info for purpose of obtaining diagnosis or treatment and info was pertinent to diagnosis or treatment

Question 98

When doctor-patient communication not confidential

Answer 98

1) where patient puts physical condition at issue; 2) where physician’s services sought in aid to crime or fraud or to escape capture after a crime or tort; 3) in a case alleging breach of duty arising out of doc-patient relationship, as in malpractice action. Some states, like CA, don’t recognize doc-patient privilege in criminal cases

Question 99

Spousal testimonial privilege

Answer 99

applies to matters before/during marriage; witness owns privilege; dies at divorce; applies only in criminal communications

Question 100

Spousal confidential communication privilege

Answer 100

applies if COMMUNICATION made during marriage; both spouses own privilege; survives divorce

Question 101

Judicial notice

Answer 101

process of establishing facts without presenting evidence

Question 102

Facts appropriate for judicial notice

Answer 102

facts not subject to reasonable dispute because: 1) generally known within jx OR; 2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned

Question 103

Procedure of judicial notice

Answer 103

Party must request judicial notice to compel judicial notice, and if not requested, court has discretion to take judicial notice. May occur at any time, even on appeal

Question 104

Effect of judicial notice

Answer 104

Civil: court instructs jury it must accept fact as conclusive. Criminal: court instructs jury it may, but is not required to accept judicially noticed fact.