Evidence General Import

Question 1

Evidence Approach 3 steps

Answer 1

1. Determine type of case - civil or criminal?
2. Situate the proceeding - direct, cross, or re-direct?
3. Determine about purpose for which the evidence is being offered - Prove something substantive, discredit a witness, prove propensity (Character Evidence)?

Question 2

Initial relevance question

Answer 2

Does it tend to make the existence of any fact of consequence to the determination of the action (materiality) more or less probable than it would be without the evidence (probativeness)

Question 3

Grounds for excluding under 403

Answer 3

Unfair prejudice, cumulative evidence, waste of time, misleading juries (confusion of issues).

Question 4

“Of Consequence”

Answer 4

For evidence to be relevant, it must be offered to prove a fact of consequence in the case.

Question 5

Normal 403 balancing

Answer 5

PV is substantially outweighed by unfair prejudice (PV is substantially outweighed by ugly phoenix) (PVsoUP). AKA the danger of unfair prejudice substantially outweighs the probative value.

Question 6

Policy based relevance exclusions

Answer 6

Liability insurance;
subsequent remedial measures;
settlement offers and accompanying admissions;
offers to pay medical expenses;
withdrawn guilty pleases and accompanying statements

Question 7

Liability insurance

Answer 7

a. Inadmissible to prove—negligence, ability to pay, or other wrongful action
b. Admissible to prove—ownership or control, impeachment, or as part of an admission of liability.

Question 8

Liability insurance is admissible to prove (3 WAYS:

Answer 8

• To prove ownership or control, if disputed;
• To impeach a witness (usually to show their bias); or
• As part of an admission of liability, where the reference to insurance coverage cannot be severed without lessening its probative value as an admission of liability (for example, “Don’t worry, my insurance will pay it off”)

Question 9

Subsequent remedial measures

Inadmissible to prove (3)

admissible to prove (3)

Answer 9

a. Inadmissible to prove—negligence, culpable conduct, or defect in a product or its design, or a need for a warning or instruction.
b. Admissible to prove—ownership or control, feasibility of the repair (to rebut a claim that precautions were impossible), or destruction of evidence.

Question 10

SUBSEQUENT REMEDIAL MEASURES NOT admissable to prove

Answer 10

Evidence of repairs or other precautionary measures made following an injury is not admissible to prove negligence, culpable conduct, a defect in a product or its design, or a need for a warning or instruc- tion.

Question 11

SUBSEQUENT REMEDIAL MEASURES ARE admissable to prove (3)

Answer 11

To prove ownership or control, if disputed;
To rebut a claim that a precaution was not feasible; or
To prove that the opposing party has destroyed evidence

Question 12

CIVIL SETTLEMENTS, Settlement offers, and accompanying admissions of fact.

Inadmissible to prove: (2)

Exceptions (2)?

Answer 12

a. Inadmissible to prove or disprove validity or amount of disputed claim, or to impeach by prior inconsistent statement or contradiction. Conduct or state- ments made in the course of negotiating a compromise—including direct admissions of liability—are also inadmissible for these purposes.
b. Exception—preexisting information not protected
ALSO, Evidence of settlement is admissible to impeach a witness on the ground of bias.
c. Exception 2 - Civil Dispute with Government Authority: conduct or statements made during compromise negotiations regarding a civil dispute with a govern- mental regulatory, investigative, or enforcement authority are not excluded when offered in a criminal case.

Question 13

The public policy exclusion for settlements and negotiations only kicks in if…

Answer 13

there was a claim or some indication that a party was going to make a claim (although the party need not have actually filed suit). Furthermore, the claim must have been in dispute as to either (1) liability or (2) amount.. DISPUTED CLAIM REQUIRED.

Question 14

PLEA DISCUSSIONS

Answer 14

These are generally inadmissible in any criminal or civil case against the defendant who made the plea or participated in the discussions:
• Offers to plead guilty;
• Withdrawn guilty pleas;
• Actual pleas of nolo contendere (“no contest”); or
• Statements of fact made during any of the above plea discussions

Question 15

Is an actual guilty plea (not withdrawn) admissible?

Answer 15

An actual guilty plea (not withdrawn) is generally admissible in related litigation as a statement of an opposing party (see the Hearsay module).

Question 16

Payments or offers to pay medical expenses

Answer 16

a. Inadmissible to prove liability/culpable conduct. E that a party has paid or offered to pay an injured person’s medical, hospital, or similar expenses is inadmissible to prove liability for the injury.
b. But note: Accompanying statements of fact are admissible (unlike rule for settlement negotiations).
BUT: look for offer to pay medical expenses that is also an offer to settle (rule for settlement negotiations applies; meaning, any accompanying statements or conduct would be excluded along with the offer.

Question 17

Statement made in connection with offer to pay medical expenses

Answer 17

ADMISSABLE

Question 18

Statement made in connection with offer to settle

Answer 18

INADMISSABLE.

Question 19

403 balancing - Judge has broad discretion to exclude relevant evidence if its probative value is substantially outweighed by

Answer 19

a. Unfair prejudice
b. Confusion of issues
c. Misleading the jury
d. Undue consumption of time/undue delay
e. Needless presentation of cumulative (repetitive) evidence

Question 20

403 balancing

Answer 20

discretion to exclude it if its probative value is substantially outweighed …

Question 21

SIMILAR OCCURRENCES

Answer 21

Some situations allow prior similar occurrences to be admitted:
Similar Accidents or Injuries Caused by Same Condition

Question 22

Similar Accidents or Injuries Caused by Same Condition

Answer 22

Evidence of prior accidents or injuries caused by the same event or condition and occurring under substantially similar circumstances is admissible to prove: (1) the existence of a dangerous condition, (2) that the dangerous condition was the cause of the present injury, and (3) that the defendant had notice of the dangerous condition (if the other accident occurred before the plaintiff’s accident).

Question 23

Plaintiff’s Prior Accidents or Claims

Answer 23

Evidence of a plaintiff’s prior accidents or claims is usually inadmis- sible; all it demonstrates is that the plaintiff is litigious or accident-prone.
a. Exceptions for Pre-Existing Condition or Prior False Claims: However, such evidence might be admissible in certain circumstances:
• Evidence of prior accidents may be admissible where the cause of the plaintiff’s damages is at issue. If the plaintiff previously injured the same part of their body, the evidence may be admitted to show that the plaintiff’s condition is attributable (in whole or in part) to the prior injury rather than the current accident.
• Evidence that a plaintiff has made previous similar false claims is usually relevant to prove that the present claim is likely to be false.

Question 24

Previous Similar Acts to Prove Intent

Answer 24

Similar conduct previously committed by a party may be admissible to prove the party’s present motive or intent in the current case.

Question 25

Rebutting Claim of Impossibility

Answer 25

Evidence of similar occurrences may be admitted to rebut a claim of impossibility.

Question 26

Comparable Sales to Establish Value

Answer 26

The value of property may be at issue in certain cases, such as in a condemnation action, or to prove the amount of damages where property has been harmed or destroyed. In this situation, evidence of the sale price of similar property is admissible if it was in the same area and sold at around the same time.

Question 27

Habit Evidence

Answer 27

Evidence of a person’s habit is relevant and admissible as circumstantial evidence that the person acted in accordance with the habit on the occasion at issue in the case. Habit describes a person’s regular response to a specific set of circumstances (meaning, there must be specific and repeated conduct). The evidence objectively describes the conduct without suggesting anything about the person’s morality.

Question 28

Routine Practice Evidence

Answer 28

Habit evidence involves people, but there is a counterpart rule for organizations. The routine practice of an organization is relevant and admissible as circumstantial evidence that the organization acted in accordance with their routine practice on the occasion at issue in the case.

Question 29

Industrial Custom Evidence

Answer 29

Evidence as to how others in the same trade or industry have acted in the recent past is admissible as evidence of the appropriate standard of care (to show how the party in the current case should have acted). However, industry custom isn’t conclusive on this point; for example, an entire industry may be acting negligently.

Question 30

Character evidence

Answer 30

Character evidence refers to a person’s general propensity or disposition (such as for honesty, fairness, peacefulness, violence)

Question 31

Character evidence in CIVIL CASES

Answer 31

GENERALLY NOT ADMISSIBLE: In civil cases, character evidence is generally inadmissible to prove conduct in conformity; meaning, it cannot be offered to prove how a person probably acted during the events of the current case. But Admissible When Character Directly in Issue.
Limited exception to this rule that allows evidence of the defendant’s prior similar acts in civil and criminal sexual assault and child molestation cases.

Question 32

DEFENDANT’S CHARACTER IN CRIMINAL CASE

Answer 32

As a general rule, the prosecution cannot initiate evidence of the defendant’s bad character to show conduct in conformity. BUT, D is permitted to “open the door” and introduce evidence of their own good character to show their innocence.
D may offer evidence of their own good character to prove their conduct in the case. The evidence must concern a pertinent trait, and such evidence must be in the form of reputation and/or opinion testimony. Evidence of specific acts of good conduct by the defendant is not admissible to prove character for purposes of showing conduct in the case

Question 33

defendant taking the stand and testifying.

Answer 33

a defendant does not open the door to character evidence merely by taking the stand and testify- ing. Taking the stand places the defendant’s credibility
(as opposed to character) in issue; meaning, the prosecution is limited to offering impeachment evidence rather than substantive character evidence.

Question 34

How Prosecution Rebuts Defendant’s Character Evidence

Answer 34

Prosecution may rebut it by either or both of the following methods:
a. Offering Evidence of Defendant’s Bad Character: The prosecution can call its own character witnesses to provide reputation or opinion testimony about the defendant’s bad character for the trait in question.
b. Cross-Examining Defendant’s Character Witnesses: The prosecution can cross-examine the defendant’s character witnesses regarding the basis for their testimony by asking “Have you heard?” or “Did you know?” questions about specific acts of the D that show the defendant’s bad character for the trait in question. This questioning is admissible only to impeach the witness by showing their lack of knowledge. It is not admissible to prove the defendant’s character.

Question 35

Prosecution Rebuts Defendant’s Character Evidence - Extrinsic Evidence

Answer 35

When the prosecutor rebuts by this method (Cross-Examining Defendant’s Character Witnesses), they are limited to questioning the defendant’s character witness on cross-examination; they cannot introduce any extrinsic evidence of the misconduct.

Question 36

What misconduct may be inquired about while cross-examining a defendant’s character witness?

Answer 36

Any misconduct, including prior arrests, may be inquired about while cross-examining a defendant’s character witness. Be careful to distinguish asking a character
witness whether they are aware of the defendant’s prior arrests, which is proper, and impeaching a witness with the witness’s own arrests, which is improper.

Question 37

Character evidence - when are specific acts permitted?

Answer 37

usually not permitted, unless character is directly at issue in the case (rare); in sexual assault or child molestation cases; or when the act is independently relevant (i.e., relevant to an issue other than defendant’s character)—“MIMIC”. Prior acts or crimes may be admissible for other purposes (e.g., to show motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident).

Question 38

Essential element

Answer 38

When proof of a person’s character, as a matter of substantive law, is an essential element of a claim or defense.
• Defamation cases where truth is a defense (plaintiff’s character is at issue);
• Negligent hiring or entrustment cases (hired/entrusted person’s character is at issue); and
• Child custody cases (parents’ character is at issue)

Question 39

In order for a defendant’s prior misconduct to be admissible for some relevant non-character purpose (motive, intent, etc.), there must be:

Answer 39

sufficient evidence to support a jury finding that the defendant committed the prior act.

Question 40

prior misconduct evidence is inadmissible if…

Answer 40

the danger of unfair prejudice substantially outweighs the probative value.

Question 41

Character evidence of the D - criminal cases

Answer 41

Defendant may introduce evidence of his own good character to show innocence.
Prosecution may introduce defendant’s bad character:
a) As rebuttal when defendant “opens the door”
b) Specific acts that are independently relevant (“MIMIC”)
c) Specific similar acts by defendant in sexual assault or child molestation case (admissible for any relevant purpose, including propensity)

Question 42

Character evidence of the V - criminal cases

Answer 42

a) Defendant may introduce if relevant to his innocence (generally in self- defense cases). Reputation and/or opinion evidence of a bad character trait of the alleged crime victim when it is relevant to show the defendant’s innocence.
b) Prosecution may rebut with (i) defendant’s bad character for same trait or (ii) victim’s good character for same trait.

Evidence of a victim’s character might also be offered for a non-propensity purpose—to prove the defendant’s state of mind at the time of the altercation.

Question 43

Character evidence of the V - criminal cases - Prosecution Rebuttal

Answer 43

Prosecution Rebuttal: Once the defendant has introduced evidence of a victim’s bad character for a pertinent trait (usually violence), the prosecution may rebut with reputation or opinion evidence of:
• The victim’s good character for the same trait, or
• The defendant’s bad character for the same trait

Question 44

When Prosecution Can Initiate - VICTIM’S CHARACTER IN CRIMINAL CASE

Answer 44

Rebutting Self-Defense Claim in Homicide Case: prosecution to offer evidence of a victim’s good character for peacefulness. In a homicide case in which the defendant pleads self-defense, evidence of any kind (not just character evidence) that the victim was the first aggressor (for example, eyewitness testimony that the victim struck first) opens the door to evidence that the victim had a good character for peacefulness.
The prosecution can introduce this evidence regardless of whether the defendant has introduced character evidence of the victim’s generally violent propensity.

Question 45

Character evidence - CIVIL cases

Answer 45

Civil cases—character evidence generally not admitted
Exceptions—when character is directly in issue (e.g., defamation, negligent hiring); similar specific acts in a sexual assault or child molestation case; or specific acts that are independently relevant (“MIMIC”).

Question 46

What type of Character evidence is allowed in CIVIL cases when it is allowed?

Answer 46

Where character evidence is allowed in a civil case (i.e., when character is directly at issue), under the Federal Rules, any of the types of character evidence (reputation, opinion, or specific acts) may be used.

Question 47

Rape Victim’s Past Behavior - CRIMINAL cases

Answer 47

Rape Victim’s Past Behavior Generally Inadmissible: In any civil or criminal proceeding involving alleged sexual miscon- duct, evidence offered to prove the sexual behavior or sexual dispo- sition of the victim is generally inadmissible.

Exceptions in Criminal Cases: In a criminal case involving alleged sexual misconduct, specific instances of a victim’s sexual behavior are admissible to prove that someone other than the defendant is the source of semen, injury, or other physical evidence. Also, specific instances of sexual behavior between the victim and the defendant are admissible by the prose- cution for any reason and by the defense to prove consent.

Question 48

Rape Victim’s Past Behavior - CIVIL cases

Answer 48

Rape Victim’s Past Behavior Generally Inadmissible: In any civil or criminal proceeding involving alleged sexual miscon- duct, evidence offered to prove the sexual behavior or sexual dispo- sition of the victim is generally inadmissible.
Exceptions in Civil Cases: In a civil case involving alleged sexual misconduct, evidence of the alleged victim’s sexual behavior is admissible if it is not excluded by any other rule and its probative value substantially outweighs the danger of harm to the victim and of unfair prejudice to any party (notice that this is not the same balancing test as in Rule 403 and favors excluding the evidence). Evidence of an alleged victim’s reputation is admissible only if it has been placed in controversy by the victim.

Question 49

MISCONDUCT FOR NON-CHARACTER PURPOSE

Answer 49

Admissible If Independently Relevant: Evidence of a person’s other crimes, wrongs, or acts is admissible if relevant to some issue other than their character or propensity to commit the crime charged (or the alleged act in civil cases).
Non-character purposes for offering the evidence may include motive, intent (to show guilty knowledge or lack of good faith), absence of mistake or accident, identity (for example, “signature” crimes/modus operandi), or common plan or scheme (usually, committing one crime to prepare for another).

Question 50

MIMIC

Answer 50

Motive, intent, mistake (absence of), identity, common scheme or plan. These are the most common non-propensity purposes for offering evidence of a defendant’s other crimes or misconduct. Civil and criminal. BUT, remember that this E can be admitted as long as it is relevant to any purpose other than the defendant’s general character or propensity to commit the charged crime.

Must be E sufficient to support a jury finding that the defendant committed the other misconduct (meaning, a reasonable juror could come to this conclusion)

Question 51

MIMIC Evidence

Answer 51

MIMIC evidence is admissible only if the defendant is actually contesting the non-character issue (for example, identity or intent). Also remember that if a MIMIC category is satisfied, the prosecution may use the evidence of misconduct as part of its case-in-chief. In other words, because MIMIC evidence is being offered for a non-propensity purpose, it is admissible even if the defendant does not “open the door” to character evidence.

Question 52

DEFENDANT’S SIMILAR MISCONDUCT IN SEX-CRIME CASES

Answer 52

Evidence of a defendant’s other acts of sexual assault or child molestation is admissible in a criminal or civil case where the defendant is accused of committing an act of sexual assault or child molestation.
Such evidence is relevant for any purpose, including the defendant’s propensity to commit sex crimes.

Question 53

Habit vs Character evidence

Answer 53

Habit evidence concerns a person’s regular response to a specific set of circumstances. Habit evidence is admissable bc its not CE. Character evidence describes one’s disposition with respect to general traits.

Question 54

Real evidence

Answer 54

Object is presented directly to the trier of fact for inspection. Allows the trier of fact to reach conclusions based upon its own perceptions rather than relying upon those of witnesses

Question 55

Types of Real Evidence

Answer 55

Direct, circumstantial, original, Prepared

Question 56

Direct

Answer 56

a. Offered to prove the facts about the object as an end in itself
b. Example—evidence of a permanent injury can be shown by the injury itself

Question 57

Circumstantial

Answer 57

a. Facts about the object are proved as a basis for an inference that other facts are true
b. Example—in a paternity case, the child can be shown to the jury to demonstrate the child is the same race as the alleged father

Question 58

Original: Has some connection with the transaction that is in question at the trial

Answer 58

Has some connection with the transaction that is in question at the trial

Question 59

Prepared

Answer 59

“demonstrative” evidence; Examples—sketches, models, jury view of scene

Question 60

Real evidence must be…

Answer 60

Authenticated.
Recognition testimony by witness—if item has recognizable features
Chain of custody—if evidence is a type likely to be confused or if it can be easily tampered with.

Question 61

Chain of custody

Answer 61

Applies if evidence is a type likely to be confused or if it can be easily tampered with.
Proponent must show that the object has been held in a substantially unbroken chain of possession. Need not negate all possibilities of substitution or tampering, but must show adherence to some system of identification and custody

Question 62

DOCUMENTARY EVIDENCE

Answer 62

Authenticated and best evidence rule.

Question 63

Authentication for writings

Answer 63

Writings must be authenticated by proof showing they are what the proponent claims they are (unless self-authenticating such as newspapers, commercial paper, etc.)
Standard for authentication—proof sufficient to support a jury finding of genuineness

Question 64

Best Evidence Rule (“Original Document Rule”)

Answer 64

In proving the terms of a writing (including a recording, photograph, or X-ray), where the terms are material, the original writing must be produced. Secondary E is allowed only if the original is unavailable for some reason other than the serious misconduct of the proponent

Question 65

Best Evidence Rule (“Original Document Rule”) applies when (two):

Answer 65

a. When the writing is a legally operative or dispositive instrument (e.g., contract, deed, will, divorce decree).
b. When the witness’s knowledge of a fact comes from having read it in the document - If the fact exists independently of a writing, the best evidence rule does not apply

Question 66

Requirements for W competency

Answer 66

1. Personal knowledge of the subject matter
2. Sworn oath or affirmation that witness will testify truthfully
3. All witnesses presumed competent under the Federal Rules until the contrary is demonstrated (no age requirement)
   If W requires an interpreter, the interpreter must be qualified and take an oath to make a true translation.

Question 67

Personal knowledge

Answer 67

The question is, does the fact testified to match the fact that was perceived by the witness? If not, personal knowledge is the proper objection.

Question 68

Insanity

Answer 68

An insane person may testify, provided they understand the obliga- tion to speak truthfully and have the capacity to testify accurately.

Question 69

Jurors testifying

Answer 69

Inquiry into Verdict or Indictment
During an inquiry into the validity of a verdict or indictment, a juror is generally prohibited from testifying about what occurred during deliberations or about anything that may have affected a juror’s vote, and the court may not receive evidence of a juror’s statement on such matters. BUT, A juror may testify as to:
Whether any extraneous prejudicial information was improp- erly brought to the jury’s attention;
Whether any outside influence was improperly brought to bear on any juror;
Whether there is a mistake on the verdict form; or
Whether any juror made a clear statement that they relied on racial stereotypes or animus to convict a criminal defendant. Ct must find that racial animus was a significant motivating factor in the juror’s vote to convict.

Question 70

Dead man act

Answer 70

Not recognized by Federal Rules; statutes vary by state
CIVIL CASE Only. May bar an interested person from testifying in a civil case as to a communica- tion with a deceased, if such testimony is offered against the representative of the deceased (e.g., executor). an interested person (or their prede- cessor in interest) is incompetent to testify to a personal transac- tion or communication with a deceased, when such testimony is offered against the representative or successors in interest of the deceased. A person is “interested” if they stand to gain or lose by the judgment, or if the judgment may be used for or against them in a subsequent action. Has exceptions.

Question 71

Leading Questions

Answer 71

Leading questions (questions that suggest the desired answer) are generally allowed only on cross-examination and are not permitted on direct examination.
Allowed on DIRECT when:
• To elicit preliminary or introductory matter;
• When the witness needs help responding because of loss of memory, immaturity, or physical or mental weakness; or
• When the witness is hostile, an adverse party, or a witness affiliated with an adverse party.

Question 72

Scope of Cross-Examination

Answer 72

A party has a right to cross-examine any opposing witness, but the scope of cross-examination is frequently a matter of judicial discretion. Cross-examination is generally limited to:
• The scope of direct examination, including all reasonable infer- ences that may be drawn from it, and
• Matters that test the credibility of the witness (the permitted methods of impeachment are covered in the Credibility and Im- peachment module)

Question 73

Improper Questions and Answers

Answer 73

Questions that are misleading (cannot be answered without making an unintended admission), compound (requiring a single answer to more than one question), argumentative, conclusionary, cumulative, unduly harassing or embarrassing, call for a narrative answer or speculation, or assume facts not in evidence are improper and are not permitted. Answers that lack foundation (the witness has insuffi- cient personal knowledge) and answers that are nonresponsive (do not answer the specific question asked) may be stricken.

Question 74

Refreshing Recollection—Present Recollection Revived

Answer 74

A witness may use any writing or object for the purpose of refreshing their present recollection. They usually may not read from the writing while testifying because the writing is not authenticated and not in evidence (and thus, there is no hearsay concern).

Question 75

Refreshing Recollection - Safeguards Against Abuse

Answer 75

Adverse Party’s Options: Whenever a witness has used a writing to refresh their memory while on the stand, an adverse party is entitled to:
• Have the writing produced at trial;
• Cross-examine the witness about the writing; and
• Introduce portions of the writing relating to the witness’s testimo- ny into evidence

If the witness refreshed their memory before taking the stand, an adverse party is entitled to the above options only if the court decides that justice requires it.

Question 76

Failure to Produce or Deliver Writing

Answer 76

In a criminal case, if the prosecution fails to produce or deliver a writing as ordered, the judge must strike the witness’s testi- mony—and, if justice requires, declare a mistrial.
When the defense fails to comply, or in a civil case, the judge has more discretion and can issue “any appropriate order.”

Question 77

Recorded Recollection

Answer 77

Only a record that meets several foundational requirements (e.g., timely made by witness; witness cannot remember the events after reading the record) may be used.
The record itself is read into evidence (but is not received as an exhibit unless offered by an adverse party).
This is hearsay, but it falls within a specific exception to the hearsay rule.

Question 78

Recorded Recollection FOUNDATION

Answer 78

The foundation must include proof that:
• The witness has insufficient recollection to testify fully and ac- curately (that is, showing the document to the witness fails to jog their memory);
• The witness had personal knowledge of the facts in the record when the record was made;
• The record was made by the witness or under their direction, or it was adopted by the witness (adoption means that another person made the record and the witness said or did something to indicate that they agreed with the record’s contents);
• The record was made or adopted when the matter was fresh in the witness’s mind; and
• The record accurately reflects the witness’s knowledge. In other words, even though the witness cannot currently remember the facts, this requirement is satisfied where the witness vouches for the accuracy of the record at the time that it was made or adopted

Question 79

Recorded Recolelction offered into evidence?

Answer 79

Although the record may be read into evidence and heard by the jury, it cannot be admitted into evidence as an exhibit unless offered by an adverse party.

Question 80

Opinion Testimony by Lay Witnesses. (Lay Opinion Testimony)

Answer 80

Requirements—rationally based on the witness’s perception, helpful to the jury, and Not based on scientific, technical, or other specialized knowledge.

Question 81

Opinion Testimony by Lay Witnesses (Requirements?)

Answer 81

a. Requirements: Opinions by lay (nonexpert) witnesses are generally inadmissible. However, there are many cases where no better evidence can be obtained. Opinion testimony by a lay witness is admissible when it is:
• Rationally based on the witness’s perception;
• Helpful to a clear understanding of the witness’s testimony or helpful to the determination of a fact in issue; and
• Not based on scientific, technical, or other specialized knowledge

Question 82

Opinion Testimony by Lay Witnesses EXAMPLES

Answer 82

a. General appearance or condition of a person
b. State of emotion
c. Speed of moving object
d. Intoxication
e. Sanity
f. Voice or handwriting identification
g. Value of Own Services
h. Rational or Irrational Nature of Another’s Conduct

Question 83

Admissable lay opinion examples:

Answer 83

General appearance of a person, emotions, sense recognition like Speed of an automobile, handwriting, valuation of property, rational nature of another persons conduct, whrether someone was intoxicated.

Question 84

Situations Where Opinions of Lay Witnesses Are Not Admissible

Answer 84

A lay witness cannot give an opinion as to whether they (or someone else) acted as an agent or whether a contract was made, as these are legal conclusions that require specialized knowledge.

Question 85

Expert Witness Testimony Requirements (basic)

Answer 85

Expert is qualified, expert is reasonably certain, helpful, based on sufficient facts or data, based on reliable principles and methods, reliably applied.

Question 86

Opinion Testimony by Expert Witnesses: Requirements for Admissibility

Answer 86

Expert testimony admissible: (1) the witness must be qualified as an expert; (2) the witness must be at least reasonably certain about their opinion; (3) the subject matter must be one where scientific, technical, or other specialized knowledge would be helpful to the jury; (4) the opinion must be based on sufficient facts or data; (5) the opinion must be the product of reliable principles and methods; and (6) the expert must have reliably applied the principles and methods to the facts of the case.

Question 87

Expert Opinion Testimony

Answer 87

1. Is the subject matter one where expert testimony would assist the trier of fact (relevant and reliable)? Court acts as gatekeeper to determine reliability (Daubert test)
2. Is the expert qualified on the subject?
3. Does the expert possess reasonable probability regarding her opinion?
4. Is the opinion supported by a proper factual basis (personal observation, facts made known to her at trial, or facts supplied outside courtroom and of a type reasonably relied upon by experts in field)?

Question 88

Qualification as Expert

Answer 88

The witness must be qualified as an expert. This requirement is satisfied if they possess special knowledge, skill, experience, training, or education.

Question 89

Reasonable Probability

Answer 89

The expert must have a reasonable level of certainty in the correctness of the opinion. A mere guess or speculation is not sufficient.

Question 90

Proper Factual Basis

Answer 90

The expert’s opinion must be supported by a proper factual basis. The opinion can be based on any of the following 3 possible sources of information:
• Facts based on the expert’s own personal observation (for example, the expert personally examined the injured plaintiff).
• Facts made known to the expert at trial (for example, the expert reviews testimony from the trial, or counsel relates the facts to the expert on direct examination in the form of a hypothetical question).
• Facts not known personally but supplied to the expert outside the courtroom and of a type reasonably relied upon by other experts in the particular field. Such facts need not be admissible as evidence.
But if the facts would be inadmissible, the proponent of the expert testimony must not disclose the facts to the jury unless the court determines that their probative value in helping the jury evaluate the expert’s opinion substantially outweighs their prejudicial effect.

Question 91

Expert Testimony: Main Daubert Factors

Answer 91

Testing, peer review and publication, error rate, standards controlling operation, general acceptance by other experts in field.

Reliability—Judge as Gatekeeper: Federal courts determine the reliability of all expert testimony (scientific or otherwise) and have discretion to consider a wide variety of factors. The traditional Daubert factors for reliability of scientific testimony include: (1) whether the expert’s theory or methodology has been tested; (2) whether it has been subject to peer review and publication; (3) its known or poten- tial error rate; (4) the existence and maintenance of standards controlling its operation; and (5) whether it is generally accepted in the relevant field.

Question 92

Expert testimony - proper factual basis

Answer 92

(personal observation, facts made known to her at trial, or facts supplied outside courtroom and of a type reasonably relied upon by experts in field)

Question 93

Learned treatises - When admissable as substantive evidence

Answer 93

Established as reliable authoprity, used in context of expert testimony (Called to experts attention on cross or relied upon on direct), excerpt read into evidence (not received as exhibit)

Question 94

Use of Learned Treatises During Examination

Answer 94

A relevant excerpt from a treatise, periodical, or pamphlet may be used during expert testimony. Under the Federal Rules, these “learned treatises” can be used not only to impeach experts, but also as substantive evidence (that is, to prove that what the treatise says is true) under the “learned treatise” exception to the hearsay rule, subject to the following limitations:
• The treatise must be established as reliable authority by: (1) the testimony of the expert on the stand, (2) the testimony of another expert, or (3) judicial notice;
• The excerpt must be used in the context of expert testimony (meaning, it is called to the attention of an expert witness on cross-examination, or relied upon by an expert witness during direct examination); and
• The excerpt is read into evidence but cannot be received as an exhibit

Question 95

Hypo: Prosecution’s toilet expert testifies that it’s impossible for a toilet to explode accidentally. On cross-examination, defense reads from page 747 of volume 6 of Professor Plunge’s seminal work, On The Toilet, which states “Toilets have been known to explode accidentally in seismically active areas.” Admissible?

Answer 95

Yes. meets reqs of learned treatise exception.

Question 96

Expert opinion on ultimate issues

Answer 96

Permitted except for testimony concerning D’s mental state in criminal case. In a criminal case in which the defendant’s mental state constitutes an element of the crime or defense, an expert may not state an opinion as to whether the accused did or did not have the mental state in issue.

Question 97

EXCLUSION AND SEQUESTRATION OF WITNESSES

Answer 97

Upon a party’s request, the trial judge must order witnesses excluded from the courtroom.
The judge may also do this on their own motion. The judge, however, must not exclude: (1) a party or a designated officer or employee of a party, (2) a person whose presence is essential to the presentation of a party’s claim or defense, or (3) a person statutorily authorized to be present.

Question 98

bolstering witness’s testimony

Answer 98

bolstering witness’s testimony is generally prohibited until credibility is attacked.

Question 99

Exceptions to Rule Against Bolstering

Answer 99

In certain cases, a party may offer evidence that the witness made a timely complaint (in a sexual assault case, for example) or a prior state- ment of identification (usually, identifying the defendant as the perpe- trator of the charged crime) even if this tends to bolster their in-court testimony. The prior identification may also serve as substantive evidence that the identification was correct.

Question 100

WITNESSES CALLED OR EXAMINED BY THE COURT

Answer 100

The court may examine a party’s witness or call its own witness. Each party is entitled to cross-examine a witness called by the court. A party may object to the court’s examining or calling a witness either at that time or at the next available opportunity when the jury is not present.

Question 101

Two ways of impeaching

Answer 101

Cross-examination and extrinsic evidence

Question 102

Common methods of impeachment

Answer 102

1. Prior inconsistent statement
2. Bias
3. Prior conviction of crime
4. Prior bad acts
5. Opinion or reputation evidence of untruthfulness (poor reputation for truthfulness)
6. Sensory deficiencies
7. Contradictory facts

Question 103

Impeachment methods

Answer 103

• Impeachment methods 1-4 (prior inconsistent statements; bias; sensory deficiencies; contradiction) involve impeaching a witness with facts that are specific to the current case; and
• Impeachment methods 5-7 (opinion or reputation evidence of untruthfulness; prior convictions; bad acts) involve impeaching a witness with their general bad character for truthfulness

Question 104

• Impeachment methods 1-4 - involve impeaching a witness with facts that are specific to the current case;

Answer 104

(prior inconsistent statements; bias; sensory deficiencies; contradiction)

Question 105

• Impeachment methods 5-7 - impeaching a witness with their general bad character for truthfulness

Answer 105

(opinion or reputation evidence of untruthfulness; prior convictions; bad acts)

Question 106

• Impeachment methods

Answer 106

1. prior inconsistent statements;
2. bias;
3. sensory deficiencies;
4. contradiction;
5. opinion or reputation evidence of untruthfulness;
6. prior convictions;
7. bad acts involving untruthfulness

Question 107

Impeachment by Prior conviction of crime

Answer 107

a. Any crime (misdemeanor or felony) involving dishonesty or false statement - Admission automatically, judge has no discretion to exclude. Look for DUF - deceit, untruthfulness, falsification.
b. Any other felony (1 year prison)
c. Limitation on remoteness (10 year)
A witness may be impeached by cross-examining her about specific criminal or immoral acts, but extrinsic evidence is not permitted.

Question 108

What crimes (misdemeanor or felony) involve dishonesty or false statement?

Answer 108

Any crime (misdemeanor or felony) involving dishonesty or false statement.
Look for DUF - deceit, untruthfulness, falsification. Active element of DUF, not just theft or robbery or burglarly.
Result- Admission automatically (if less than 10 years old) judge has no discretion to exclude.

Question 109

Is perjury a crime of dishonesty?

Answer 109

Yes!

Question 110

Impeachment by Prior Inconsistent Statements

Answer 110

may show, by cross-examination or extrinsic evidence, that the witness has, on another occasion, made statements inconsistent with their present testimony. (to use as actual evidnece, must meet hearsay exclusion by having prior inconsistent statement made under oath).
May be done on examination of a W or with extrinsic evidnece.
Must be relevant and foundation required for extrinsic evidence. To prove the statement by extrinsic evidence, a proper foundation must be laid and the statement must be relevant to some issue in the case.

Question 111

Requirements to prove a prior inconsistent statement by extrinsic evidence

Answer 111

To prove a prior inconsistent statement by extrinsic evidence, certain requirements must first be met. It is not enough that the prior inconsistent statement cast doubt on the witness’s credibility. Instead, the statement must be relevant to the case; i.e., it cannot be a collateral matter.

Question 112

Extrinsic evidence of a prior inconsistent statement

Answer 112

Extrinsic evidence of a prior inconsistent statement may not be used to impeach a witness upon a collateral matter.

Question 113

When is a prior inconsistent statement Admissible as Substantive Evidence?

Answer 113

Usually, prior inconsistent statements are hearsay, admissible only for impeachment purposes. BUT If, a testifying witness’s prior inconsistent statement was made under oath at a prior proceeding, it is admissible nonhearsay and may be admitted as substantive evidence of the facts stated.

Question 114

prior inconsistent statement - Foundation for Extrinsic Evidence

Answer 114

Must not be collateral
At some point in case, must: Give W opportunity to explain or denty, give adverse party opportunity to examine witness.
Extrinsic evidence can be introduced to prove a prior inconsistent statement only if its content is not collateral (meaning, it is probative of some fact of consequence in the case or says something about the witness’s credibility beyond just showing the witness made an inconsistent statement) and, at some point:
• The witness is given an opportunity to explain or deny the statement (opportunity to explain or deny can be given before or after introduction of the extrinsic evidence); and
• The adverse party is given an opportunity to examine the witness about the statement

Question 115

prior inconsistent statement - Exceptions to Foundation Requirement

Answer 115

Does not apply where PIS is an opposing party’s statement. An inconcsitent statement by a hearsay declarant can be used to impeach the hearsay declarant despite lack of foundation. Where justice so requires.
The foundation requirement above (giving the witness an oppor- tunity to explain or deny; allowing the adverse party to examine them) does not apply in the following circumstances:
- The foundation requirement does not apply if the prior incon- sistent statement is an opposing party’s statement (see the Hearsay module).
- An inconsistent statement by a hearsay declarant can be used to impeach the hearsay declarant despite the lack of a foundation.
- The court may dispense with the foundation requirement where justice requires (for example, when the witness has left the stand and is unavailable when their inconsistent statement is discovered).

Question 116

Impeachment by Bias or Interest

Answer 116

Evidence that a witness is biased or has an interest in the outcome of a case tends to show that the witness has a motive to lie.
A witness is a friend, relative, or employee of a party; an expert witness is being paid by a party; a witness has a grudge against a party, etc.
Extrinsic Evidence: The majority rule is that before a witness can be impeached by extrinsic evidence of bias or interest, they must first be asked about the facts that show bias or interest on cross-examination. Note that the court has discre- tion to permit extrinsic evidence even if the witness admits the bias.

Question 117

Impeachment by Sensory Deficiencies

Answer 117

witness may be impeached by showing, either on cross-exam- ination or by extrinsic evidence, that their faculties of perception and recollection were so impaired as to make it doubtful that they could have perceived those facts. A witness may also be impeached by showing that they had no knowledge of the facts to which they testified.
Admisaable on examination of W or by extrinsic evidence. No foundation requirement.

Question 118

collateral matter

Answer 118

it has no significant relevance to the case or to the witness’s credibility;

Question 119

Impeachment by Contradictory Facts

Answer 119

Impeach- ment by contradiction is a recognized method of impeachment. The cross-examiner, while questioning the witness, can try to make the witness admit that they lied or were mistaken about some fact they testified to during direct examination.
If the witness admits the mistake or lie, they have been impeached by contradiction. However, if the witness sticks to their story, the issue becomes whether extrinsic evidence may be used to prove the contradictory fact. The answer is yes, extrinsic evidence is permitted unless the contradic- tory fact is collateral (meaning, it has no significant relevance to the case or to the witness’s credibility;

Question 120

Impeachment by Opinion or Reputation Evidence of Untruthfulness

Answer 120

A witness can be impeached with reputation or opinion evidence of their own bad character for truthfulness, to suggest that they were not telling the truth while on the stand. This is accomplished by calling a character witness to testify about the target witness’s bad reputation or the character witness’s low opinion of the target witness.

Question 121

Impeachment by Conviction of Crime

Answer 121

A witness may be impeached by proof of a conviction (an arrest or indictment is not sufficient) for certain crimes. A pending review or appeal does not affect the use of a conviction for impeachment.
- Any Crime Involving Dishonesty or False Statement: Any crime, felony, or misdemeanor requiring an act of dishonesty of false stmt. Ct has NO DISCRETION to bar impeachment. narrowly includes only crimes in the nature of “crimen falsi” (for example, perjury, false statement, criminal fraud, embezzlement, false pretense). Look for a crime that involves some “uttering of false words.”
- Felony Not Involving Dishonesty or False Statement. Ct HAS DISCRETION to exclude. Balancing test depends on whether the W is the defendant in a criminal case, or someone else:
– If the W being impeached is a criminal defendant, Ct will exclude the conviction if the prosecution has not shown that its probative value outweighs its prejudicial effect. (This is a more difficult balancing test than for other witnesses.)
– In the case of all other Ws, the court will exclude the conviction if it determines that its probative value is substantially outweighed by its prejudicial effect. This is the standard Rule 403 balancing test, which favors admitting the evidence.

Question 122

Impeachment by Conviction of Crime - - Any Crime Involving Dishonesty or False Statement

Answer 122

• Any Crime Involving Dishonesty or False Statement: Any crime, felony, or misdemeanor requiring an act of dishonesty of false stmt. Ct has NO DISCRETION to bar impeachment. narrowly includes only crimes in the nature of “crimen falsi” (for example, perjury, false statement, criminal fraud, embezzlement, false pretense). Look for a crime that involves some “uttering of false words.”

Question 123

Impeachment by Conviction of Crime - - Felony Not Involving Dishonesty or False Statement

Answer 123

• Felony Not Involving Dishonesty or False Statement. Ct HAS DISCRETION to exclude. Balancing test depends on whether the W is the defendant in a criminal case, or someone else:
  – If the W being impeached is a criminal defendant, Ct will exclude the conviction if the prosecution has not shown that its probative value outweighs its prejudicial effect. (This is a more difficult balancing test than for other witnesses.)
  – In the case of all other Ws, the court will exclude the conviction if it determines that its probative value is substantially outweighed by its prejudicial effect. This is the standard Rule 403 balancing test, which favors admitting the evidence.

Question 124

Impeachment by Conviction of Crime: Remote Convictions

Answer 124

Remote Convictions Generally Not Admissible: Generally, if more than 10 years have elapsed since the date of conviction or the date of release from confinement (whichever is later), the conviction is inadmissible.
Court May Admit in Extraordinary Circumstances: The court may admit an older conviction if: (1) its probative value substantially outweighs its prejudicial effect (a reverse-Rule 403 balancing test that strongly favors exclusion); and (2) the proponent gives the adverse party reasonable written notice of their intent to use it.

Question 125

Impeachment by Conviction of Crime: How can they be proved?

Answer 125

If its admissable, it may be proved either through the testimony of the witness being impeached or by extrinsic evidence. No founda- tion is necessary.

Question 126

if a party introduces evidence of their own prior conviction (to take out the sting of being impeached on cross-examination), they cannot…

Answer 126

if a party introduces evidence of their own prior conviction (to take out the sting of being impeached on cross-examination), they cannot later claim on appeal that the convic- tion was erroneously admitted.

Question 127

Impeachment by Conviction of Crime: Effect of Pardon

Answer 127

A conviction cannot be used to impeach a witness if the conviction was subject to a pardon or equivalent procedure, and either:
• The pardon was based on rehabilitation, and the witness has not been convicted of a subsequent felony; or
• The pardon was based on innocence (irrespective of any subse- quent convictions)

Question 128

Impeachment by Conviction of Crime: Juvenile Convictions

Answer 128

Juvenile offenses are generally not admissible for impeachment purposes. However, in a criminal case, the judge has the discretion to admit evidence of a juvenile offense committed by a witness other than the accused if the E would be admissible to attack the credibility of an adult and if the evidence is necessary to a determina- tion of the accused’s guilt or innocence.

Question 129

Impeachment by Conviction of Crime: Constitutionally Defective Conviction

Answer 129

Constitutionally Defective Conviction Cannot Be Used. A conviction obtained in violation of the defendant’s constitutional rights is invalid for all purposes, including impeachment.

Question 130

Impeachment by Prior Bad Acts

Answer 130

Must be bad acts Involving Untruthfulness - Must be probative of truthfulness (i.e., an act of deceit). Interrogation permitted, Cross-examination only, extrinsic evidence prohibited (a witness may be interrogated upon cross-examination). With respect to an act of misconduct if the act is probative of truthfulness (that is, an act of deceit or lying).

The cross-examiner must have a good-faith basis to believe the witness committed the misconduct. Discretion of court.

Additionally, the cross-examiner cannot refer to any consequences the witness may have suffered as a result of their bad act. (permissible to ask a witness whether they
embezzled money from their employer. It is not permissible to ask them whether they were arrested for embezzlement.)

Question 131

Cross X of Prior bad acts during impeachment

Answer 131

Extrinsic evidence of “bad acts” is not permitted, even where the witness denies committing the act on cross-examination. If the witness denies the act, the cross-examiner, acting in good faith, may generally continue the cross-examination after a denial in the hope that the witness will change his answer.

Question 132

The Federal Rules of Evidence permit a party to cross-examine a witness regarding the witness’s prior act of misconduct only where the act ____

Answer 132

is probative of truthfulness (i.e., is an act of deceit or lying)

Question 133

Impeachment by Bias

Answer 133

A witness can be impeached, either on cross-examination or by extrinsic evidence, with evidence that suggests a bias on the part of the witness, because it tends to show that the witness has a motive to lie. Evidence that the witness disliked the party he is testifying against would qualify as evidence of bias. if the prior bad act also helps establish bias, the courts have held that extrinsic evidence also will be admissible.

Question 134

IMPEACHMENT ON COLLATERAL MATTER

Answer 134

Where a witness makes a statement not directly relevant to the issue in the case, the rule against impeachment on a collateral matter prohibits a party from proving the statement untrue either by extrinsic evidence or by a prior inconsistent statement.

Question 135

IMPEACHMENT OF HEARSAY DECLARANT

Answer 135

The credibility of a hearsay declarant may be attacked (and if attacked, may be supported) by evidence that would be admissible if the declarant had testified as a witness. The hearsay declarant can be impeached by any of the impeachment methods.
BUT, the difference is that the hearsay declarant need not be given the opportunity to explain or deny a prior inconsistent statement.
Also, the party against whom the out-of-court statement was offered may call the hearsay declarant as a witness and cross-examine them about the statement.

Question 136

a “hearsay declarant” means… (2)

Answer 136

a person whose out-of-court statement has been admitted into evidence: (1) under an exception to the hearsay rule, or (2) as a vicarious statement of an opposing party

Question 137

Rehabiliation

Answer 137

Rehabilitation must meet the attack.
1. Explnation on redirect:The witness on redirect may explain or clarify facts brought out on cross-examination.
2. Good character for truthfulness (rep or opinion testimony) - other witnesses may be called to give reputation or opinion testimony about the impeached witness’s good character for truthfulness.
The character witness cannot testify about specific acts of truthful conduct by the impeached witness; only reputation and opinion are allowed.
3. Prior Consistent Statement: Next

Question 138

Rehabiliation by Prior Consistent Statement:

Answer 138

3. Prior Consistent Statement: 2 situations in which a party can rehabilitate a witness by introducing the witness’s prior consistent statement.
   • First, if the testimony of W has been attacked by an express or implied charge that the witness is lying or exaggerating because of some motive, a previous consistent statement made by the witness before the onset of the alleged motive is admissible to rebut this evidence.
   • Second, if the witness’s testimony is impeached on some different ground (other than a general attack on the witness’s character for truthfulness), such as an inconsistency or a charge of faulty memory, counsel may introduce a prior consistent statement made by the witness if, under the circumstances, it has a tendency to rehabilitate the witness’s credibility.
   A prior consistent statement that is admissible to rehabilitate a witness’s credibility also is admissible as substantive evidence of the truth of its contents

Question 139

BURDENS OF PROOF

Answer 139

The burden of proof encompasses (1) the burden of producing or going forward with the evidence and (2) the burden of persuasion.

Question 140

Burden of Production

Answer 140

The party who has the burden of pleading usually has the burden of producing or going forward with evidence sufficient to make out a prima facie case (that is, create a fact question of the issue for the trier of fact).
Once the party has satisfied the burden of production, it is incum- bent upon the other side to come forward with evidence to rebut the accepted evidence.

Question 141

Burden of Persuasion (Proof)

Answer 141

After the parties have sustained their burden of production of evidence, the question is whether the party with the burden of persuasion has satisfied it.

Question 142

The burden of persuasion for civil cases

Answer 142

The burden of persuasion for civil cases is usually by a preponderance of the evidence (more probably true than not true), although some civil cases (such as fraud or an oral contract to make a will) require proof of clear and convincing evidence (high probability).

Question 143

The burden of persuasion for criminal cases

Answer 143

The burden of persuasion for criminal cases is beyond a reasonable doubt.

Question 144

Judicial Notice

Answer 144

A court can take judicial notice of facts when they’re
1. capable of accruate and ready determination, or
2. facts that are common knowledge within the jurisdiction of the courts.

Question 145

PRELIMINARY QUESTIONS (judge vs jury)

Answer 145

Applies When the existence of some preliminary or foundational fact is an essential condition of admissibility.

Question 146

Preliminary Facts Decided by Jury

Answer 146

Preliminary Facts Decided by Jury: The jury decides certain preliminary facts relating to whether evidence is relevant at all.
Some preliminary facts to be decided by the jury include whether evidence is authentic, whether a person was acting as a party’s agent in a breach of contract case, and whether a witness has personal knowledge of the facts of their testimony.

Question 147

Preliminary Facts Decided by Jury, BUT Screened by Judge

Answer 147

Screened by Judge: Before such a question is brought before the jury, the judge must determine that there is sufficient proof to support a jury finding that the preliminary fact exists.

Question 148

Preliminary Facts Decided by Judge

Answer 148

Preliminary Facts Decided by Judge: Facts affecting the competency of the evidence (meaning, whether it is admissible under the rules of evidence) must be determined by the trial judge.
• Is a witness mentally competent to testify?
• Does a privilege exist?
• Does the evidence meet the requirements of a hearsay excep- tion?

Question 149

Judge May Consider All Non-Privileged Evidence

Answer 149

The Federal Rules permit the trial judge to consider any non-priv- ileged relevant evidence when making a preliminary fact determi- nation, even if such evidence would not be admissible at trial. In other words, the judge is not bound by the rules of evidence, except privilege.

Question 150

Presence of Jury during the preliminary fact determination

Answer 150

Whether the jury should be excused during the preliminary fact determination is generally within the discretion of the trial judge.
However, the jury MUST be excused if: (1) the hearing involves the admissibility of a confession; (2) the defendant in a criminal case is testifying at the hearing and requests that the jury be excused; or (3) justice so requires.

Question 151

The jury MUST be excused if…

Answer 151

However, the jury MUST be excused if: (1) the hearing involves the admissibility of a confession; (2) the defendant in a criminal case is testifying at the hearing and requests that the jury be excused; or (3) justice so requires.

Question 152

Does Testimony by Accused Waive Privilege Against Self-Incrimination?

Answer 152

No. Testimony by Accused Does Not Waive Privilege Against Self-Incrimination. An accused may testify on any preliminary matter (for example, circumstances surrounding an allegedly illegal search) without subjecting themselves to testifying at trial generally. Furthermore, testifying about the preliminary matter does not subject the accused to cross-examination about other issues in the case.

Question 153

JUDICIAL NOTICE

Answer 153

Judicial notice is the recognition of a fact as true without formal presentation of evidence.

Question 154

Facts Appropriate for Judicial Notice

Answer 154

A court may take judicial notice of any fact that is “not subject to reasonable dispute” because:
• The fact is generally known within the trial court’s jurisdiction (not just judge’s personal knowledge), or
• The fact can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned

Question 155

Courts often take judicial notice of…

Answer 155

the reliability of well-established scientific tests and principles (such as radar speed tests, ballistics tests, and paternity blood tests) as a type of “generally known” fact.

Question 156

The court will admit test results (such as radar speed tests, ballistics tests, and paternity blood tests) into evidence upon a showing that…

Answer 156

The court will admit these test results into evidence upon a showing that the test was properly conducted.

Question 157

When can judicial notice be taken?

Answer 157

Can be taken at any state of a pleading.
Required on Party’s Request: Judicial notice can be taken at any stage of the proceedings (and can even be taken for the first time on appeal).
If a court does not take judicial notice of a fact on its own accord, a party must formally request that notice be taken and provide the court with the neces- sary information. If the party does this, the court is required to take judicial notice of the fact.

Question 158

When is the court required to take judicial notice of the fact?

Answer 158

If a court does not take judicial notice of a fact on its own accord, a party must formally request that notice be taken and provide the court with the neces- sary information. If the party does this, the court is required to take judicial notice of the fact.

Question 159

Judicial notice conclusive?

Answer 159

Conclusive in civil case, but not in criminal case. in a civil case, the court must instruct the jury to accept the judicially noticed fact as conclusive. In a criminal case, the jury is instructed that it may, but is not required to, accept the judicially noticed fact as conclusive.

Question 160

A judicially noticed fact is conclusive in…

Answer 160

A judicially noticed fact is conclusive in a civil case but not in a criminal case.

Question 161

If a judge takes judicial notice of a fact in a criminal case….

Answer 161

The prosecutor’s burden of producing evidence on this point is satisfied. Not bindign or conclusive on the jury.

Question 162

“Adjudicative” and “Legislative” Facts

Answer 162

Federal Rules, and thus their requirements, govern only judicial notice of “adjudicative” facts (meaning, those that relate to the particular case).
“Legislative” facts (those relating to legal reasoning and lawmaking), such as the rationale behind the spousal privilege, need not be generally known nor capable of indisputable verification to be judicially noticed.

Question 163

Judicial Notice of Law—Mandatory or Permissive

Answer 163

Courts must take judicial notice of federal and state law and the official regulations of the forum state and the federal government.
Courts may take judicial notice of municipal ordinances and private acts or resolutions of Congress or of the local state legislature. Laws of foreign countries may also be judicially noticed.

Question 164

PRESUMPTIONS

Answer 164

A presumption is a rule that requires that a particular inference be drawn from proven facts. It is a form of substitute proof, because proof of the presumed fact is rendered unnecessary once evidence has been introduced of the basic fact that gives rise to the presumption.

Question 165

Common rebuttable Presumptions

Answer 165

a. Mail Delivery: A letter, properly addressed, stamped, and mailed, is presumed to have been delivered.
b. Death from 7-Year Absence: If a person is inexplicably absent for a continuous period of 7 years and they have not been heard from, they are presumed dead.
c. Against Suicide: When cause of death is in dispute, there is a presumption in civil cases that it was not suicide.
d. Legitimacy: Every person is presumed to be legitimate (meaning, born to legally married parents).
e. Sanity: Every person is presumed sane in civil and criminal cases until the contrary is shown.
f. Ownership of Car—Agent Driver: Proof of ownership of a motor vehicle creates the presumption that the owner was the driver or that the driver was the owner’s agent.
g. Chastity: Every person is presumed chaste and virtuous.
h. Regularity: It is presumed that persons acting in an official office are properly performing their duties.
i. Continuance: Proof of the existence of a person or condition at a given time raises a presumption that it continued for as long as it is usual with things of that nature.
j. Solvency: A person is presumed solvent, and every debt is presumed collectible.
k. Bailee’s Negligence: Proof of delivery of goods in good condition to a bailee and failure of the bailee to return the goods in the same condition create the presumption that the bailee was negligent.
l. Marriage: Upon proof of a marriage ceremony, a marriage is presumed valid.

Question 166

a. Mail Delivery:

Answer 166

A letter, properly addressed, stamped, and mailed, is presumed to have been delivered.

Question 167

b. Death from 7-Year Absence:

Answer 167

If a person is inexplicably absent for a continuous period of 7 years and they have not been heard from, they are presumed dead.

Question 168

c. Against Suicide:

Answer 168

When cause of death is in dispute, there is a presumption in civil cases that it was not suicide.

Question 169

d. Legitimacy:
e. Sanity:
f. Ownership of Car—Agent Driver:
g. Chastity:
h. Regularity:
i. Continuance:
j. Solvency:
k. Bailee’s Negligence:
l. Marriage:

Answer 169

d. Legitimacy: Every person is presumed to be legitimate (meaning, born to legally married parents).
e. Sanity: Every person is presumed sane in civil and criminal cases until the contrary is shown.
f. Ownership of Car—Agent Driver: Proof of ownership of a motor vehicle creates the presumption that the owner was the driver or that the driver was the owner’s agent.
g. Chastity: Every person is presumed chaste and virtuous.
h. Regularity: It is presumed that persons acting in an official office are properly performing their duties.
i. Continuance: Proof of the existence of a person or condition at a given time raises a presumption that it continued for as long as it is usual with things of that nature.
j. Solvency: A person is presumed solvent, and every debt is presumed collectible.
k. Bailee’s Negligence: Proof of delivery of goods in good condition to a bailee and failure of the bailee to return the goods in the same condition create the presumption that the bailee was negligent.
l. Marriage: Upon proof of a marriage ceremony, a marriage is presumed valid.

Question 170

Effect of Presumption

Answer 170

Shifts Burden of Production: Until rebutted, a presumption operates to shift the burden of production to the party against whom the presumption operates.

Question 171

Rebutting Presumptions in Civil Cases

Answer 171

A presumption is overcome or destroyed when the adversary produces some evidence contradicting the presumed fact. Once sufficient contrary evidence is admitted, the presumption is of no force or effect.

Question 172

Presumptions in Criminal Cases

Answer 172

No Mandatory Presumptions in Criminal Cases: The judge cannot instruct the jury that it must find a presumed fact against the accused; the judge must instruct them that they may regard the basic facts as sufficient evidence of the presumed fact.

Question 173

True Presumptions vs Permissible Inferences and Substantive Law

Answer 173

True presumptions are the rebuttable type.

Permissible Inferences: A permissible inference may allow the party to meet their burden of production (establish a prima facie case), but does not shift the burden to the adversary.

Conclusive Presumptions: Because it cannot be rebutted, a conclusive presumption (for example, that a child under age 7 cannot commit a crime) is really a rule of substantive law.

Question 174

Examples of Permissible inferences

Answer 174

Examples include the inference of negli- gence arising from res ipsa loquitur, the inference that destroyed evidence was unfavorable to the spoliator, the presumption of innocence in a criminal case, and the inference of undue influence when a will’s drafter is also the principal beneficiary.

Question 175

Conflicting Presumptions

Answer 175

When 2 or more conflicting presumptions arise, the judge should apply the presumption founded on the weightier considerations of policy and logic.

Question 176

Choice of Law Regarding Presumptions in Civil Actions

Answer 176

Under the Federal Rules, state law governs the effect of a presump- tion concerning a fact that is an element of a claim or defense to which, under the Erie doctrine, the rule of decision is supplied by state law.

Question 177

RULE OF COMPLETENESS

Answer 177

Where part or all of a writing or recorded statement is introduced into evidence, the adverse party may require the proponent of the evidence to introduce any other part, or any related writing or recorded statement—that ought in fairness to be considered at the same time. (statement was cut off in an unfair way -> so admit the whole statement)

Question 178

Rule 403 balancing test)

Answer 178

the court may exclude the evidence entirely if it determines that, even with a limiting instruction, the probative value of the evidence with respect to its legitimate purpose would be substantially outweighed by danger of unfair prejudice with respect to its incompetent purpose.

Question 179

Preserving Claim of Error for Appeal

Answer 179

A party may claim error in the court’s ruling if it affects a substantial right of the party.

Question 180

Preserving Claim of Error for Appeal: If the court admitted evidence

Answer 180

If the court admitted evidence, the party opposing its admission needs to make a timely objection or move to strike the evidence.

Question 181

Preserving Claim of Error for Appeal: If the court excluded evidence.

Answer 181

If the court excluded evidence, the proponent of the evidence needs to inform the court of the evidence’s substance by a timely offer of proof, (show what the E woulda been) unless its substance was apparent from the context.

Question 182

Offers of Proof

Answer 182

An offer of proof may be made, disclosing the nature, purpose, and admissibility of rejected evidence, to persuade the trial court to hear the evidence and to preserve the evidence for review on appeal. It may be made by witness testimony, a lawyer’s description of what the evidence would have been, or tangible evidence marked and offered. The court can require the offer of proof to be made in question-and- answer form (meaning, the lawyer conducts their examination of the witness so that the judge hears exactly what the witness would have said in front of the jury).

Question 183

preserve the claim of error for appeal: Renewal?

Answer 183

Once the court rules definitively on the record (either before or at trial), the party doesn’t have to renew its objection or offer of proof to preserve the claim of error for appeal.

Question 184

Taking Notice of Plain Error

Answer 184

The court may take notice of a plain error affecting a substantial right of a party, even if the claim of error wasn’t properly preserved.

Question 185

Timing of Objections

Answer 185

Objections at trial should be made after the question, but before the answer, if the question calls for inadmissible information. Otherwise, a motion to strike must be made as soon as an answer emerges as inadmissible.

Question 186

Objections at a deposition

Answer 186

At a deposition, objections to the form of a question, or to a testimonial privilege, should be made when the question is asked or it may be waived. Objections based on the substance of a question or answer may be postponed until the deposition is offered in evidence.

Question 187

“Opening the Door”

Answer 187

A party who introduces evidence on a particular subject thereby asserts its relevance and cannot complain if their adversary offers evidence on the same subject.

Question 188

Motion to Strike—Unresponsive Answers

Answer 188

If an answer is unresponsive but otherwise admissible, only examining counsel can move to strike the answer; opposing counsel cannot.

Question 189

“Exceptions”

Answer 189

It is not necessary for a party to “except” from a trial ruling in order to preserve the issue for appeal.