Evidence in general

Question 1

Intrinsic evidence vs. extrinsic evidence.

Answer 1

Intrinsic evidence= Questioning from the mouth of the witness on the stand.

All other impeachment (i.e., writing, certified copy of a conviction, calling in another witness to the stand) = extrinsic evidence.

Question 2

Proponent/Opponant

Answer 2

Proponent: The person sponsoring the evidence.

Opponent: The person challenging the evidence.

Question 3

Approach to Evidence questions

Answer 3

1. Spot the issue: Character, Hearsay, Impeachment
2. Purpose of the evidence: Truth, Impeachment
3. Relevance; Authenticity; Competence
4. Admission/Exclusions/Exceptions (Hearsay; Confrontation Clause, 403)

Question 4

Three main substantive areas

Answer 4

1. Character: FRE 404, 405
2. Impeachment: FRE 608, 609
3. Hearsay: FRE 801, 807

Question 5

FRE basics

Answer 5

adopted in 1975; relatively liberal presumption of admissibility. Concept: The judge determines the admissibility of the evidence and the jury assigns the weight that the evidence should be given.

Question 6

3. The Federal Rules govern:

Answer 6

all civil and criminal trials and proceedings in federal courts, including admiralty and bankruptcy (but not military)

Question 7

FRE do not apply (7 cases)

Answer 7

Head and tail of case:

a. preliminary questions of fact regarding admissibility;
b. grand jury proceedings;
c. preliminary hearings;
d. sentencing and probation hearings;
e. obtaining a warrant;
f. bail proceedings; and
g. summary contempt.

Question 8

Rulings on Evidence (Rule 103)

Answer 8

Rule 103 sets forth the requirements for an appellate court to reverse a trial court’s decision. Where a ruling admits evidence, a timely and specific objection must be made to preserve the issue for appeal. A general objection will not suffice. A ruling to exclude evidence requires proof, unless apparent from context.

Question 9

Motions in Limine

Answer 9

pretrial rulings on admissibility (e.g., prosecution asks the court to allow it to use a prior felony conviction to impeach defendant)

Question 10

Harmless error

Answer 10

An error is harmless if

the jury would have reached the same verdict even if the error did not occur; no substantial rights were affected

Question 11

Plain error rule

Answer 11

The only time a reversal will result from the admission of evidence despite an objection not being raised is when plain error is found.
Plain error is an error that affects a substantial right of a party; a serious mistake that affects the verdict; i.e., prejudicial, reversible error.

Question 12

EXAMPLE: The prosecutor makes improper comments regarding the defendant’s failure to testify.
EXAMPLE: A jury instruction given by the trial court that fails to include an element of the crime.

Answer 12

Plain error rule would apply, even if no objection were made. Grounds for a mistrial or reversal on appeal.

Question 13

Preliminary Questions (FRE)
Standard for admissibility?

Answer 13

Rule 104(a)
Preliminary questions are things like: CAP
a. Competency: witness qualifications: lay, expert, children
b. Admissibility: whether a hearsay exception applies (Dying declaration)
c. Privilege: whether a privilege exists.
A judge makes these determinations outside the presence of jury.
Standard:
preponderance of the evidence

Question 14

Conditional Relevancy (FRE)

Answer 14

Rule 104(b)
Where the admissibility of one item of evidence is:
conditioned upon the relevancy of another item of evidence.
Judge must determine whether there is enough evidence to find that the necessary fact existed; will sometimes admit it, “subject to linkage”, or “subject to connection.” Meaning, at some later time if the judge does not find sufficient connection, the evidence is not relevant and therefore inadmissible.

Question 15

EXAMPLE: There is a motor vehicle accident. Two cars collide in an intersection. A tire rim is found in a field 400 feet away. There is an expert who is prepared to testify that for that rim to be thrown 400 feet from the point of impact, the defendant’s car had to be going 40 mph.

Answer 15

Conditional Relevance, FRE 104(b): The evidence is relevant only if the tire rim came from one of the cars in the accident. The judge would make the threshold determination of whether the rim came from one of the cars in the accident.

Question 16

Limited Admissibility (FRE)

Answer 16

Rule 105:
If evidence is admitted as to one party or for one purpose but inadmissible as to another party or for another purpose, the court shall: restrict the evidence to its proper scope and instruct the jury accordingly. A limiting instruction is required, and the accused can testify on a preliminary matter without waiving his Fifth Amd right against self incrimination.

Question 17

EXAMPLE: If a defendant is being impeached with his former convictions, we allow the jury to decide whether it believes the defendant. The prior convictions are admissible to challenge the defendant’s credibility, but …

Answer 17

they are not admissible as substantive evidence of the defendant’s guilt. The jury is not allowed to use those prior convictions to determine the defendant’s criminal disposition.

Question 18

Rule of Completeness

Answer 18

Remainder of Related Writings or Recorded Statements Rule (106) provides that where a party introduces part of a writing or recording (but generally not a statement), the adverse party may immediately introduce any other writing or part of the writing, which, in fairness, ought to be considered in conjunction with it, in order to avoid misleading the jury and prevent statements from being taken out of context

Question 19

Rule 801(d)(1)(C) prior identification

Answer 19

Rule 801(d)(1)(C) classifies prior identification of a person made after perceiving that person as nonhearsay. A witness may testify that she earlier identified a criminal defendant, but the declarant MUST testify at trial AND be subject to cross-examination.

Question 20

past recollection recorded: Fed. R. Evid. 803(5)

Answer 20

refers to a writing of which a witness once had knowledge, but at the time of testifying has insufficient recollection. The witness must testify:

(1) that the writing was made or adopted by her shortly after the event and at a time when the event was fresh in her memory; and
(2) that the writing accurately reflects knowledge that she possessed when the memory was fresh.

Question 21

Verbal Acts

Answer 21

Statements that contain operative facts that have a legal significance independent of the truth of the words contained in the statement. The purpose for offering such statements into evidence is to prove that they were made, not to prove that they are true. Because such statements are offered for a purpose other than proving the truth of the matter asserted in the statement, they are not hearsay.
Some examples: words of offer and acceptance in the formation of a contract, words indicating the intent to make a gift, or words offered to prove slander or libel in a defamation action.

Question 22

determining sufficient Habit evidence

Answer 22

key words denoting habit are “always,” “invariably,” “customarily” and “habitually.”
Conversely, if a person “generally” behaves or “often” acts in a particular situation, that is not sufficient to constitute habit.

Question 23

evidence of the witness’s previous conviction of a crime

Answer 23

Under FRE 609, any witness may be impeached with evidence of the witness’s previous conviction of a crime involving dishonesty, regardless of whether the crime is a misdemeanor or a felony. Crimes involving dishonesty include perjury, fraud, or embezzlement.

Question 24

Dying Declaration, requirements (4)

Answer 24

The “dying declaration” hearsay exception requires:

(1) the statement must concern the cause or circumstances of death;
(2) the declarant must be unavailable (not nec dead);
(3) the declarant must have believed that death was imminent; and,
(4) the case must be a homicide or any civil action.

Question 25

Confrontation Clause

Answer 25

Confrontation Clause applies in a criminal case to statements that are testimonial in nature where the declarant is unavailable and the accused did not have any prior opportunity to cross-examine the declarant.
Statements made to police to explain what is happening in order get assistance for an ongoing emergency are not testimonial, but statements made to police telling what had happened, where the primary purpose of interrogation is to establish or prove past events potentially relevant to later criminal prosecution, are testimonial in nature .
Exception: not violated when the defendant is responsible for the witness’s unavailability.

Question 26

under the Best Evidence Rule, when is secondary evidence admissible?

Answer 26

Under FRE 1004, applies only when contents are at issue, secondary evidence of the contents of a writing is admissible only if the originals are shown to be lost or destroyed, “unless the proponent lost or destroyed them in bad faith.”
Other evidence is fine if the party has personal knowledge of whatever they’re trying to prove.

Question 27

FRE 804 hearsay exceptions requiring unavailability of declarant (4)

Answer 27

F.S.D.S.

1) Former testimony
2) Statements against interest
3) Dying declaration
4) Statements of pedigree

Question 28

Statement against interest, FRE 804(b)(3)

Answer 28

hearsay exception for a statement that:
(1) a reasonable person in the declarant’s position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant’s proprietary or pecuniary interest or had so great a tendency to invalidate the declarant’s claim against someone else or to expose the declarant to civil or criminal liability; and (2) is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability.

Question 29

opposing party’s statement, FRE 801(d)(2)

Answer 29

A statement is not hearsay when the statement is offered against an opposing party, and the statement was made by the party in an individual or representative capacity (i.e. agent in scope authorized to make statement; conspirator in furtherance of conspiracy), or was one that the party manifested that it adopted or believed to be true.

Question 30

types of statements offered for a purpose other than their truth and thus classified as nonhearsay (3)

Answer 30

(1) verbal acts (e.g. contract);
(2) utterances and writings offered to show the effect on hearer or reader (e.g. warnings); and
(3) statements disclosing the declarant’s state of mind

Question 31

Public Records exception, FRE 803(8)

Answer 31

a hearsay exception for records of public office or agencies, setting forth:
(1) the activities of the office; or
(2) a matter observed pursuant to duty imposed by law as to which there is a duty to report.
This is equivalent to the business records exception of Rule 803(6).
The foundational elements of the public record (or business record) exception may be established by the custodian of the records or any “qualified witness”

Question 32

“non-occurrence” rules

Answer 32

FRE 803(7) provides that evidence that a matter is not included in business records under 803(6) is admissible to prove the non-occurrence or nonexistence of the matter (unless the source of information or other circumstances indicate lack of trustworthiness). Rule 803(10) provides a similar “non-occurrence” rule for public records.

Question 33

Hearsay approach (4 steps)

Answer 33

1) Isolate the statement
2) Determine declarant
3) Purpose for which evidence is being offered (for its truth=hearsay)
4) Hearsay exceptions

Question 34

Nonhearsay (2) and hearsay (3) mindset testimony

Answer 34

Nonhearsay: used to show knowledge/belief of declarant or listener (effect of statement, not its truth)
Hearsay: contemporaneous state of mind or physical condition of declarant to show intent/plan/motive, offered for its truth (re that physical or mental state)

Question 35

FRE 803(4) statement made for purposes of medical diagnosis or treatment

Answer 35

hearsay exception, must describe “medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.”

Question 36

business records exception, FRE 803(6).

Answer 36

must be:

1) report/record concerning act or event
2) made at or near the time
3) by a person with knowledge
4) kept in the regular course of business

Question 37

If a declarant makes a statement when he thinks he’s dying, but then is available, or want to admit it in a nonhomicide criminal case

Answer 37

admissible hearsay exception as an excited utterance under FRE 803(2), and NOT a dying declaration.

Question 38

Davis test (confrontation clause)

Answer 38

Where the primary purpose of a 911 call is to obtain police assistance to meet an on-going emergency, such statements are not testimonial and do not implicate the Confrontation Clause. However, statements are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.

Question 39

Authentication

Answer 39

Authentication of real evidence under F.R.E. 901(a) requires “evidence sufficient to support a finding that the matter in question is what its proponent claims” (e.g. personal knowledge).

Question 40

exceptions to the marital communications privilege

Answer 40

(1) suits between the spouses (including divorce and child custody disputes)
(2) suits where one spouse is charged with a crime or tort against the other or the children in the household;
(3) where the spouses jointly participate in criminal acts-(joint participant exception).

Question 41

Frye standard

Answer 41

“general acceptance” standard; admissibility of scientific expert testimony was based on whether it had “gained general acceptance in the particular field in which it belongs.” This test was rejected by SCOTUS in Daubert

Question 42

Daubert

Answer 42

held the task of “gatekeeping” scientific expert testimony (i.e., whether that testimony is from scientific knowledge) rests on the trial judge. Applicable appellate standard for admitting or excluding scientific expert testimony is an “abuse of discretion standard.”

Question 43

Relevancy of character evidence (whose?)

Answer 43

Any witness may be questioned during cross-examination about acts of misconduct when they relate to the witness’s credibility. Credibility is in issue for all witnesses, and so impeachment on the grounds of their ability to perceive or recall is always acceptable. Similarly, bias and tendency toward truth-telling are always relevant as to the credibility of a witness who takes the stand to testify.
The defendant’s “character” is never generally in issue. A specific character trait may be in issue and would be offered to show that it is likely that the defendant acted in conformity with his or her character trait.

Question 44

Rule 403 balancing test:

If the probative value of the evidence is substantially outweighed by: (5)

Answer 44

(1) the danger of unfair prejudice;
(2) confusion of the issues;
(3) misleading the jury;
(4) undue delay;
(5) waste of time; or
(6) needless presentation of cumulative evidence

Question 45

Collateral-Matter Rule

Answer 45

A collateral matter is evidence solely affecting the credibility of a witness. While questioned about
it, the party cross-examining is bound by the witness’s answer to
matters solely affecting credibility

Question 46

Admitting evidence about prior committed felonies:

Answer 46

(a) If used to impeach a witness other than D: subject to Rule 403 balancing test
(b) If used to impeach D: admitted if prosecution
shows the probative value outweighs prejudicial effect.
Other rules: exception for Crimes involving dishonesty or false statement, and 10 year rule

Question 47

Proper scope of non-expert opinion includes (VEMPSS):

Answer 47

V: Value of one’s own land
E: Emotional state of other
M: Measurements
P: Physical states (i.e., intoxicated, tall/short; fat/skinny; healthy/sick; happy/sad)
S: Sensoy descriptions 
S: Sanity of a testator

Question 48

Assessment of Expert testimony (TAPES)

Answer 48

Daubert factors:
T: has the theory been Tested? how extensively?
A: general Acceptance in the relevant community
P: Peer review of the scientific theory
E: degree or rate of Error
S: Standards

Question 49

Prior statements (3)

Answer 49

Admissible hearsay exceptions, each requires declarant to testify and be subject to cross:

1) prior inconsistent statement: must be sworn
2) prior consistent statement: to rehabilitate
3) prior statement of identification

Question 50

Events triggering unavilability (PRISM)

Answer 50

P: Privilege: asserting a privilege
R: Refusal: refusing to testify despite a court order
I: Incapability: incapacity due to death or then-existing physical or mental illness
S: Subpoena: absence of a witness despite a good-faith attempt to procure witness’s attendance
M: Memory: witnesss testifies as to a lack of memory

Question 51

Self Authenticating evidence (CONTAC)

Answer 51

C: Certified documents
O: Official publications
N: Newspapers and periodicals
T: Trade inscriptions
A: Acknowledged documents
C: Commercial paper

Question 52

When the original need not be admitted (LOCS)

Answer 52

other evidence of the document is admissible if LOCS applies:
i) Lost (all the originals have been lost or destroyed, unless the proponent did in
bad faith)
ii) Opponent (refuses to deliver possession of the original)
iii) Collateral (doc not closely related to a controlling issue)
iv) Subpoena (original cannot be obtained by any judicial procedure)

Question 53

When are leading questions are ok? (5)

Answer 53

Appropriate:
• On cross examination
• Hostile or adverse witnesses
• Questioning children
• Refreshing a witness
• Preliminary background matters

Question 54

When is character at issue in a civil case? (4)

Answer 54

• Defamation- plaintiff
• Child Custody- parents
• Negligent Entrustment- entrustee
• Negligent Hiring- employee
In such cases, all three forms can come in (ROSA). Door is already open

Question 55

impeachment of a witness

Answer 55

witness’ character is at issue, but just Rep and Opinion (not Spec Acts) are permitted