Evidence LAST PUSH

Question 1

Rule 403 Considerations

Answer 1

(a) danger of unfair prejudice
(b) confusion on the issues
(c) misleading the jury
(d) undue delay
(e) waste of time
(f) needless presentation of cumulative evidence

Question 2

Prior False Claims or Same Bodily Injury

Answer 2

such evidence may be admissible if it tends to show something other than carelessness:
(1) evidence that a plaintiff has made previous similar false claims is usually relevant to prove that the present claim is likely to be false
(2) evidence of prior accidents may be admissible where the cause of the plaintiff’s damages is at issue

Question 3

Similar Accidents or Injuries Caused by Same Event or Condition

Answer 3

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) the condition was the cause of the present injury
(3) the defendant had notice of the condition

Question 4

Liability Insurance May be Admissible To:

Answer 4

(a) prove ownership or control (if disputed)
(b) impeach a witness or
(c) as part of an admission of liability

Question 5

Subsequent Remedial Measures May be Admissible To:

Answer 5

(a) prove ownership or control (if disputed)
(b) to rebut a claim that a precaution was not feasible
(c) to prove that the opposing party has destroyed evidence

Question 6

Character Evidence - Prosecution’s Options

Answer 6

(a) prosecution can cross examine the defendant’s character witness by asking: (i) have you heard/did you know questions about specific actions of defendant
(b) prosecution can call its own character witness to provide reputation or opinion testimony about the defendant’s bad character

Question 7

Character Directly At Issue

Answer 7

(a) defamation cases where truth is a defense
(b) negligent hiring or entrustment cases
(c) child custody cases

Question 8

Authentication of Telephone Conversations

Answer 8

(1) they recognized the other party’s voice
(2) the speaker had knowledge of certain facts that only a particular person would have
(3) they called a particular persons number and a voice answered as that person or that person’s residence or
(4) they called a business and talked with the person answering the phone about matters relevant to the business

Question 9

When Best Evidence Rule Applies

Answer 9

(1) where the writing is legally operative or dispositive OR
(2) where the knowledge of a witness concerning a face results from having read it in the writing

Question 10

Competency of Witness

Answer 10

(a) there must be sufficient evidence to support a finding that the witness has personal knowledge of the matter about which they are testifying
(b) witness must give an oath or affirmation to testify trurthfully

Question 11

Jurors May Testify About

Answer 11

(1) any extraneous prejudicial information was improperly brought to the jury’s attention
(2) any outside influence was improperly brought to bear on any juror
(3) whether there is a mistake on the verdict forum
(4) any juror made a clear statement that they relied on racial stereotypes or animus to convict a criminal defendant

Question 12

Leading Questions May be Permitted

Answer 12

(a) to elicit preliminary or introductory manner
(b) when the witness needs help responding because of loss of memory, immaturity, or physical or mental weakness
(c) when the witness is hostile, an adverse party, or a witness affiliated with an adverse party

Question 13

Adverse Party’s Options if Refreshed Recollection

Answer 13

whenever a witness has used a writing to refresh their recollection while on the stand, an adverse party is entitled to:
(1) have the writing produced at trial
(2) cross-examine the witness about the writing
(3) introduce portions of the writing relating to the witnesses testimony into evidence

Question 14

Foundation to Read Record into Evidence

Answer 14

(a) witness has insufficient recollection to testify fully and accurately
(b) witness had personal knowledge of the facts in the record when it was made
(c) record was made by the witness or under the direction, or adopted by
(d) the record was made when the matter was fresh in the witntesses mind
(e) record accurately reflects the witnesses knowledge

Question 15

Opinion Testimony of Lay Witness Admissible When

Answer 15

(a) rationally based on the witnesses perception
(b) helpful to a clear understanding of the witness’s testimony or helpful to the determination of fact at issue
(c) not based on scientific, technical, or other specialized knowledge

Question 16

Admissibility of Expert Testimony

Answer 16

(1) the subject matter must be one where scientific, technical, or other specialized knowledge would assist the trier of fact
(2) the opinion must be based on sufficient facts or data
(3) the opinion must be the product of reliable principles and methods
(4) the expert must have reliably applied the principles methods to the facts of the case

Question 17

Proper Factual Basis for Expert Opinion

Answer 17

(A) facts based on the experts personal observation
(B) facts made known to the expert at trial
(C) facts known personally but supplied to the expert outside the courtroom and of a type reasonably relied upon by other experts in the field

Question 18

Daubert Factors

Answer 18

(T) testing of principle or methodology
(R) rate of error
(A) acceptance by experts in the same discipline
(P) peer review and publication

Question 19

Judge Must Not Exclude Witnesses:

Answer 19

(1) a party or a designated officer or employee of a party
(2) a person whose presence is essential to the presentation of a partys claim or defense
(3) a person statutorily authorized to be present

Question 20

Impeachment - Prior Inconsistent Statement

Answer 20

a party may show, by cross-examination or extrinsic evidence, that witness has, on another occasion, made statements inconsistent with their present testimony

Question 21

Impeachment - Prior Inconsistent Statement - Foundation for Extrinsic Evidence

Answer 21

(1) the witness is given an opportunity to explain or deny the statement and
(2) the adverse party is given an opportunity to examine the witness about the statement

Question 22

Impeachment - Prior Inconsistent Statement - Foundation NOT REQUIRED

Answer 22

if the prior inconsistent statement is an opposing party statement or where justice so requires

Question 23

Impeachment - Bias or Interest

Answer 23

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

Question 24

Impeachment - Sensory Deficiencies

Answer 24

by cross or extrinsic evidence, that their faculties of perception and recollection were so impaired as to make it doubtful that they could have perceived those facts

Question 25

Impeachment - Contradictory Facts

Answer 25

extrinsic evidence can be used unless the contradictory fact is collateral

Question 26

Impeachment - Reputation or Evidence of Untruthfulness

Answer 26

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

Question 27

Impeachment - Conviction of Crime

Answer 27

(a) crime involving an act of dishonesty or false statement
(b) felony that doesn’t involve dishonesty

Question 28

Impeachment - Conviction of Crime - Effect of Pardon

Answer 28

conviction was subject to pardon or equivalent procedure, and either:
(1) the pardon was based on rehabilitation and the witness has not been convicted of a subsequent felony or
(2) the pardon was based on innocence

Question 29

Impeachment - Bad Acts Involving Untruthfulness

Answer 29

a witness may be interrogated upon cross examination with respect to an act of misconduct if the act is probative of truthfulness (No extrinsic evidence!)

Question 30

Common Non-Hearsay Non-Truth Purposes

Answer 30

(a) verbal acts or legally operative facts
(b) statements offered to show their effect on the listener
(c) statements offered as circumstantial evidence of declarant’s state of mind

Question 31

Hearsay Exclusions

Answer 31

(i) prior statements of testifying witnesses
(ii) statements attributable to opposing party

Question 32

Hearsay Exclusion - Prior Statements of Testifying Witness

Answer 32

subject to cross examination, not hearsay if:
(a) prior statement is one of identification of a person as someone the witness perceived earlier
(b) prior statement is inconsistent with the declarant’s in court testimony and was given under oath at a prior proceeding or
(c) the prior statement is consistent and offered to (i) rebut a charge witness is lying or exaggerating or (ii) offered to rehabilitate a witness whose credibility has been impeached on some other ground

Question 33

Hearsay Exclusion - Statements by or Attributable to Opposing Party

Answer 33

statement need not have been against the declarants interest when made and may even be in the form of an opinion

Question 34

Hearsay Exclusion - Statements by or Attributable to Opposing Party - Silence

Answer 34

if a party remains silent in the face of an accusatory statement, their silence may be considered an implied acquiescence to the truth of the statement if:
(1) the party heard and understood the statement
(2) party was physically present and mentally capable of denying the statement
(3) a reasonable person would have denied the accusation

Question 35

Hearsay Exclusion - Statements by or Attributable to Opposing Party - Agents

Answer 35

a statement by an agent or employee is admissible against the principal if:
(1) concerned any matter within the scope of the agreement or employment
(2) was made during the existence of the agency or employment relationship

Question 36

Hearsay Exclusion - Statements by or Attributable to Opposing Party - Co Conspirator

Answer 36

statements of one co conpsirator, made to a third party in furtherance of a conspiracy to commit a crime or civil wrong at a time when the declarant was participating in the conspiracy

Question 37

Hearsay Exceptions - Grounds for Unavailability

Answer 37

(1) are unable to testify due to death or physical or mental state
(2) are exempt from testifying due to privilege
(3) refuse to testify concerning the statement despite a court order
(4) testify that they do not remember the subject matter
(5) are absent

Question 38

Hearsay Exceptions - Former Testimony (Unavailable)

Answer 38

(i) given under oath at a trial, hearing, or deposition, in the same case or in a different case
(ii) the party against whom the testimony is now being offered had an opportunity to and similar motive to develop the declarants testimony at the prior proceeding

Question 39

Hearsay Exceptions - Statements Against Interest (Unavailable)

Answer 39

it was against that person’s pecuniary, proprietary, or penal interest when much such that a reasonable person in the declarant’s position would have made it only if they believed it to be true

Question 40

Hearsay Exceptions - Dying Declaration (Unavailable)

Answer 40

homicide prosecution or any civil case

(1) declarant believed their death was imminent
(2) statement concerned the cause or circumstances of what the declarant believed to be their impending death

Question 41

Hearsay Exceptions - Personal or Family History (Unavailable)

Answer 41

concerning births, marriages, divorces, relationships, etc are admissible provided that:
(1) declarant is a member of the family in question or immediately associated with it
(2) statements are based on the delarant’s personal knowledge of the facts

Question 42

Hearsay Exceptions - Procuring Unavailability

Answer 42

offered against a party who has engaged or acquiesced in wrongdoing that intentionally procured the unavailability

Question 43

Hearsay Exception - Excited Utterance (availability immaterial)

Answer 43

relates to a startling event, made while under the stress of the excitement of the event

Question 44

Hearsay Exception - Present Sense Impression (availability immaterial)

Answer 44

statement that describes or explains an event or condition and is made while or immediately after the declarant perceives the event

Question 45

Hearsay Exception - Present State of Mind (availability immaterial)

Answer 45

declarant’s then existing state of mind or their emotional, sensory, or physical condition

Question 46

Hearsay Exception - Statements for the Purposes of Medical Diagnosis or Treatment (availability immaterial)

Answer 46

describes a persons medical history, past or present symptoms or their inception or general cause is admissible if made for medical diagnosis

Question 47

Hearsay Exceptions - Records of Regularly Conducted Business (availability immaterial)

Answer 47

made as a memorandum of any act, event, condition, opinion, or diagnosis, is admissible in evidence as proof of that occurrence if:

(a) made in the regular course of business
(b) regularly keeps such record
(c) near time of the event
(d) personal knowledge

Question 48

Hearsay Exceptions - Official Record and Other Official Writings (availability immaterial)

Answer 48

(a) records setting forth the activities of the office or agency
(b) recordings of matters observed pursuant to a duty imposed by law - but not including police observations in criminal cases
(c) in civil actions and criminal cases - records of factual findings resulting from an investigation authorized by law

Question 49

Hearsay Exceptions - Recorded Recollection (availability immaterial)

Answer 49

a party may introduce a memo or record that the witness made or adopted at or near the time of the event

Question 50

Hearsay Exceptions - Learned Treatises (availability immaterial)

Answer 50

(1) treatise is established as reliable authority and (2) excerpt is relied upon by an excerpt during direct examination or brought to an experts on cross

Question 51

Hearsay Exceptions - Remainers (availability immaterial)

Answer 51

(a) acient documents
(b) documents affecting property interest
(c) reputation
(d) family records
(e) market reports

Question 52

Catch All Hearsay Exception

Answer 52

(a) sufficient guarantees of trustworthiness
(b) strictly necessary
(c) reasonable notice including substance and name of declarant

Question 53

Hearsay Against Confrontation Clause

Answer 53

(a) offered against a the accused in a criminal case
(b) declarant is unavailable
(c) testimonial
(d) accussed had no opportunity to cross examine

Question 54

Federal Court Common Law Privileges

Answer 54

(i) attorney client privilege
(ii) spousal immunity
(iii) marital communications
(iv) psychotherapist privilege
(v) governmental privileges

Question 55

Waiver of a Privilege

Answer 55

(a) failure to claim it
(b) voluntary disclosure by the holder
(c) contractual provision waiving

Question 56

When jury MUST be Excused

Answer 56

(1) the hearing involves the admissibility of a confession
(2) the defendant in a criminal case is testifying and requests they be excused
(3) justice so requires