Evidence (MBE/MEE)

Question 1

Preliminary Questions of Admissibility

Answer 1

• Courts apply preponderance of evidence standard to decide preliminary questions of admissibiltiy (e.g., whether witness is qualified to testify, privilege exists, etc.)
• However, when relevance of evidence is conditioned upon existence of preliminary fact, court need only find there is sufficient evidence to support (not necessarily establish) existence of preliminary fact (e.g., whether agent had actual or apparent authority)

Question 2

Hearsay

Answer 2

• Out-of-court statement offered to prove the truth of the matter asserted
• Not hearsay if offered to prove something other than truth of matter asserted (legally operative facts, effect on listener, state of mind, identification, impeachment and rehabilitation)

Question 3

Double Hearsay

Answer 3

Hearsay within hearsay may be admissible if each part of combined statement conforms to hearsay exception

Question 4

Non-Hearsay: Types

Answer 4

• Declarant Witness’ Prior Statements: (i) Prior Inconsistent Statements, (ii) Prior Consistent statements, (iii) Prior Statement of Identification
• Opposing Party’s Statement

Question 5

Prior Statements: Declarant Availability

Answer 5

• Declarant must testify at present trial to be admissible
• Cannot apply if witness is dead or otherwise unavailable to testify

Question 6

Non-Hearsay: Prior Inconsistent Statements

Answer 6

• Requirements: (1) Witness is cross-examinable; (2) Testimony was made under oath by witness at a trial, hearing or deposition; (3) must be offered to demonstrate witness’ prior statements are inconsistent with current testimony
• Admissibility: Impeachment of declarant’s credibility and as substantive evidence

Question 7

Non-Hearsay: Prior Consistent Statements

Answer 7

• Requirements: (1) Witness is cross-examinable; (2) Testimony is consistent with his previous testimony, (3) Must be offered to rebut a charge of recent fabrication or improper motive/influence, or to rehabilitate the witness if attacked on some other grounds
• Statement must be made before declarant had reason to fabricate
• Admissibility: Rehabilitation and also as substantive evidence
• Note: No oath requirement

Question 8

Non-Hearsay: Prior Statement of Identification

Answer 8

• Requirements: Declarant witness must (1) be subject to cross examination, (2) previously have observed D (ex. sketches, IDing during a lineup, etc.) , and (3) be testifying in court.
• Admissibility: Admissible as substantive evidence

Note: Technically, testimony doesn’t have to be by declarant. Instead, police officer could testify, so long as declarant is available at trial and could be called for cross-examination.

Question 9

Opposing Party’s Statement

Answer 9

Statement is offered against an opposing party present at trial and:
(a) Individual Admission: Made by party in individual/representative capacity;
(b) Adoptive Admission: Party manifested that it adopted/believed it to be true (e.g., documents that party incorporates as an answer to an interrogatory) ;
(c) Authorized Statement: Made by person whom party authorized to make statement on subject;
(d) Vicarious Statement: Made by party’s agent/employee on matter within scope of relationship; and
(e) Conspirator Statement: Made by party’s co-conspirator during and in furtherance of conspiracy (must be some independent evidence to support finding of conspiracy aside from statement)

Admissibility: Admissible as substantive evidence

Question 10

Opposing Party’s Statement: Silence as an Admission

Answer 10

Silence in response to a statement is considered an adoptive admission if:
* Person understood statement,
* Person had ability opportunity/ability to deny statement, and
* Reasonable person would have denied statement.

Question 11

Declarant Unavailable as Witness

Answer 11

• Unavailable means dead, absent beyond subpoena power, lacks memory, refuses to testify, is exempted from testifying based on privilege.
• Does not apply when party wrongfully renders declarant unavailable for the purpose of preventing testimony

Note: Being a hostile witness does not mean you are unavailable

Question 12

Hearsay Exceptions: Declarant Unavailable as Witness

Answer 12

If a declarant has been shown to be unavailable, the following hearsay exceptions are available:
* Former Testimony
* Dying Declaration
* Statement Against Interest
* Statement of Personal/Family History
* Statement Against Party That Caused Declarant’s Unavailability

Question 13

Hearsay Exception: Former Testimony

Answer 13

• Requirements: (1) Declarant is unavailable, (2) testimony was given under oath as witness at trial, hearing, or deposition, and (3) is now offered against a party who already had an opportunity and similar motive to develop testimony (i.e. a prior chance to cross)
• Admissibility: Admissible as substantive evidence

Question 14

Hearsay Exception: Dying Declaration

Answer 14

Admissible as substantive evidence in a homicide prosecution or civil case if:
* (1) Declarant is unavailable;
* (2) Declarant believed her death was imminent (need not actually die); and
* (3) Declarant made statement about cause or circumstance of impending death.

Question 15

Hearsay Exception: Statement Against Interest

Answer 15

Admissible as substantive evidence if:
* (1) Declarant is unavailable;
* (2) Statement is against declarant’s pecuniary, proprietary, civil or penal interest at time made; and
* (3) Reasonable person would not have made statement unless it was true

Note: If statement would subject a declarant to criminal liability, statement must be supported by corroborating circumstances clearly indicating the trustworthiness of the statement.

Question 16

Hearsay Exception: Statement of Personal/Family History

Answer 16

Admissible as substantive evidence if:
* (1) Declarant is unavailable; and
* (2) Statement concerns the unavailable declarant’s own birth, adoption, marriage, familial relationship, etc.

Question 17

Hearsay Exception: Statement Against Party That Caused Declarant’s Unavailability

Answer 17

Admissible as substantive evidence if:
* (1) Declarant is unavailable; and
* (2) Party engaged in wrongdoing for purpose of making declarant unavailable to testify, rending declarant unavailable

Note: Party cannot claim declarant is unavailable and door is open to use anything declarant said against party.

Question 18

Hearsay Exceptions: Declarant’s Availability Immaterial

Answer 18

Whether or not a declarant is available as a witness, the following hearsay exceptions are available:
* Present Sense Impression
* Excited Utterance
* Present State of Mind
* Statement Made for Medical Diagnosis/Treatment
* Recorded Recollection
* Business Records
* Public Records
* Learned Treatises
* Judgment of Previous Conviction

Question 19

Hearsay Exceptions: Present Sense Impression

Answer 19

A statement that describes or explains an event or condition, made while or immediately after the declarant perceives the event or condition.

Question 20

Hearsay Exceptions: Excited Utterance

Answer 20

A statement relating to a startling event or condition, made while declarant was under the stress of excitement that it caused.

Question 21

Hearsay Exceptions: Present State of Mind

Answer 21

• Statement of declarant’s then-existing state of mind (present intent, motive, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health)
• A statement of intent can be used to prove action in comformity with that intent.

Question 22

Hearsay Exceptions: Statement for Medical Diagnosis/Treatment

Answer 22

A statement that:
* (A) is made for medical diagnosis or treatment; and
* (B) describes medical history, past or present symptoms or sensations, their inception, or their general cause; and
* (C) is not one of fault.

Note: Need not necessarily be made by patient nor be made to physicians

Question 23

Hearsay Exceptions: Recorded Recollection

Answer 23

When a witness has inadequate memory to testify about a matter for which a record exists, the witness may read the record to the jury if the record:
* (A) is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately;
* (B) was made or adopted by the witness when the matter was fresh in the witness’s memory; and
* (C) accurately reflects the witness’s knowledge.

Note: If admitted, record may be read into evidence but may be received as an exhibit only if offered by an adverse party.

Note: Witness doesn’t actually have to write the record. Ex. Witness could read a license plate to another person who writes it down.

Question 24

Hearsay Exceptions: Business Records

Answer 24

Record must be:
* Kept in course of regularly conducted business activity,
* Making of record was regular practice, and
* Record was made at or near the time by someone with knowledge and a duty to report it

Note: While medical records are often admitted under the business records exception, records prepared in anticipation of litigation are not.

Note: Business record need not actually relate to the exact occurrence at issue; can be admissible as relevant evidence of company’s routine practice

Question 25

Hearsay Exceptions: Public Records

Answer 25

Three categories of statements which may be admissible if set forth in a public record:
* Statement of public office/agency that sets out activities of office,
* Observation of person under duty to report (but not police in a criminal case), or
* Factual findings of a legal investigation: Also includes opinoins, evaluations, and conclusions contained in investitgative report that are based on these factual findings

Question 26

Public Records Hearsay Exception: Police Reports

Answer 26

• Police reports are admissible public records in civil cases and against the government in criminal cases
• Not admissible as public records when used against criminal defendant

Question 27

Hearsay Exceptions: Learned Treatises

Answer 27

May be used to impeach expert witnesses and as substantive evidence, but only as substantive evidence if:
* (i) publication is established as a reliable authority by a party’s expert or judicial notice and
* (ii) statements are called to attention of, or relied on, by an expert witness during examination.

Question 28

Hearsay Exceptions: Judgment of Previous Conviction

Answer 28

Admissible if:
* Final judgment was entered after trial or guilty plea,
* Conviction was for a felony (i.e., crime punishable by death or imprisonment for over one year), and
* Evidence is being offered to prove any fact essential to sustain judgment

Note: No corrolary hearsay exception for judgments of acquittal

Question 29

Hearsay Exceptions: Residual Exception

Answer 29

Catchall exception for statement not otherwise covered by the FRE; statement must be:
* (i) Supported by sufficient guarantees of trustworthiness, and
* (ii) More probative than any other evidence that the proponent can obtain through reasonable efforts

Question 30

Sixth Amendment: Confrontation Clause

Answer 30

• Confontation Clause provides that testimonial statements are inadmissible when a declarant is unavailable and a criminal D had no prior opportunity to cross-examine.
• Right to confront typically means face-to-face confrontation, but can be denied if important public interest at stake or if D forfeits by disruptive behavior
• Court can also exclude D from courtroom to protect minor witness from trauma but court must make individualized findings based on evidence

Question 31

Confrontation Clause: Forfeiture by Misconduct

Answer 31

If D acted with a specific intent to keep declarant from testifying and rendered the decalarant unavailable to testify, D has forfeited right to confrontation and statement is admissible against him

Question 32

Confrontation Clause: Testimonial Statements

Answer 32

• Testimonial Statements: Statements made with the primary purpose of ascertaining past criminal conduct (objective analysis)
• Emergency Exception: Statements are nontestimonial when made for primary purpose of getting police assistance to get help/meet an ongoing emergency.

Question 33

Fourteenth Amendment: Due Process Clause

Answer 33

May prevent application of hearsay rule when rule unduly restricts D’s ability to mount defense

Question 34

Privileges: Confidential Communications

Answer 34

A confidential communication is necessary for a privilege to apply.

If overheard, privilege is destroyed unless:
* (i) No knowledge of 3P’s presence, or
* (ii) 3P is necessary to assist in communication

Privilege is waived if privilege holder:
* (i) fails to timely assert it,
* (ii) voluntarily discloses communication,
* (iii) contractually waives it in advance

Question 35

Spousal Testimonial Privilege

Answer 35

• Married spouse cannot be compelled to testify against spouse in any criminal proceeding, regardless of who D is
• Majority view: Witness-spouse holds privilege
• Scope: Testimony about events before/during marriage
• Expiration: Expires upon divorce or annulment
• Exception: One spouse is charged with a crime against the other spouse or the children of the spouse

Note: This is a federal common law privilege. It would only maybe not apply in a diversity case depending on state law.

Question 36

Spousal Marital Communication Privilege

Answer 36

• Spousal communications during marriage are privileged
• Majority view: Both spouses hold privilege in civil and criminal cases; either spouse may assert or prevent other spouse from testifying
• Scope: Any communication between spouses
• Expiration: Begins with marriage and continues indefinitely

Note: This is a federal common law privilege.

Question 37

Attorney-Client Privilege

Answer 37

• Confidential communication between client (who holds privilege) and attorney for the purpose of obtaining or providing legal advice or representation (attorney doesn’t need to give advice or agree to representation)
• Expiration: Privilege exists until waived by client; can survive termination of A-C relationship and client’s death

Question 38

Attorney-Client Privilege: Corporate Clients

Answer 38

Some courts have held the A-C privilege only applies to “control group” of corporation (e.g., CEO, BOD).

Federal courts extend the privilege to communications by a non-control-group employee:
* (i) about matters within employee’s corporate duties
* (ii) made for purpose of securing legal advice for corporation client

Question 39

Attorney-Client Privilege: Exceptions

Answer 39

• Made to enable/aid commission of what client knew or should have known was crime/fraud
• Relevant to dispute between attorney and client or former client
• Relevant to dispute between parties who claim through the same deceased client
• Between former co-clients who are now adverse to each other (i.e. party seeks cross-claim against other party seeking indemnity for damages assessed against it)

Question 40

Attorney-Client Privilege: Work-Product Doctrine

Answer 40

Documents prepared or compiled in anticipation of litigation protected unless party seeking disclosure:
* (i) demonstrates substantial need, and
* (ii) cannot obtain the information by any other means without undue hardship

Question 41

Inadvertent Disclosure

Answer 41

Applies to communications covered by A-C privilege and information provided under work-product doctrine. Disclosure of inadvertant communications or information does not waive A-C privilege or work-product privilege if:
* Disclsoure was made in a federal proceeding or to a federal agency;
* Disclosure was inadvertent;
* Privilege holder took reasonable steps to prevent disclosure; and
* Privilege holder promptly took reasonable steps to rectify the error

Question 42

Physician-Patient Privilege

Answer 42

Statement by a patient to a doctor privileged so long as made for purpose of obtaining medical treatment. Does not exist if:
* Patient’s physical condition is at issue;
* Statement is part of crime
* Dispute exists between physician and patient
* Patient contractually waives privilege; or
* Federal question case (not recognized by federal courts)

Question 43

Psychotherapist-Patient Privilege

Answer 43

Applies to confidential communications between a patient and a psychiatrist, psychologist, or licensed social worker for purpose of treatment. Privilege does not exist if:
* Patient’s mental condition is at issue;
* Statement was result of state ordered exam; or
* Case is commitment proceeding against patient

Question 44

Privilege against Self-Incrimination

Answer 44

Fifth Amendment protection allows witness to refuse to give testimony that may tend to incriminate him. Privilege does not apply to:
* Non-current statements,
* Physical characteristics or mannerisms, or
* Corporations and other organizations

Question 45

Miscellaneous Privileges

Answer 45

• Clergy-Penitent
• Accountant-Client
• Professional Journalist: No federal privilege regarding source
• Government Privilege: Government privileged against disclosing informant’s identity in a criminal case and communication of official information by or to public officials

Question 46

Categorical Exclusions: Subsequent Remedial Measures

Answer 46

When measures are taken by D that would have made an earlier injury or harm less likely to occur, evidence of subsequent remedial measures is:

Not admissible to prove:
* Negligence;
* Culpable conduct;
* Defective product/design; or
* Need for a warning or instruction.

Admissable to prove:
* Impeachment
* Ownership/control
* Feasibility of precautionary measures

Question 47

Categorial Exclusions: Compromise Offers and Negotiations

Answer 47

Evidence of compromise or statement/conduct during compromise discussions is:

Not admissible to:
* Prove or disprove the validity or amount of a disputed claim, or t
* Impeach any prior inconsistent statement or contradiction.

Admissible to prove:
* Witness bias or prejudice of witness,
* Negate claim of undue delay, or
* Prove obstruction of criminal investigation/prosecution

Note: Stricter than other rules because not allowed for impeachment by prior inconsistent statement or contradiction

Question 48

Categorical Exclusions: Payment, Offers, Promise to Pay Medical Expenses

Answer 48

• Not admissible to: Prove liability for the injury
• Admissible: Statements that accompany the payment, offer, or promise to pay

Question 49

Categorical Exclusions: Plea Negotiation and Deals

Answer 49

Generally inadmissible, except it can be admitted in:
* (1) In a proceeding where another statement made during same plea/discussion has been introduced if, in fairness, statements ought to be considered together; or
* (2) In a criminal proceeding for perjury or false statement if D made statement under oath, on record, with counsel present.

Note: D may waive this privilege if waiver is made knowingly and voluntarily

Question 50

Categorical Exclusion: Liability Insurance

Answer 50

• Not admissible to: Prove whether person acted negligently or wrongfully
• Admissible to: Prove agency, motive, ownership/control, or witness’s bias/prejudice

Question 51

Challenge to Evidence Ruling: Objection

Answer 51

• Object if evidence is admitted
• To preserve a claim of error, must timely object or move to strike (at first opportunity), and state the specific ground for the objection or motion to strike.

Note: Once court makes a definitive ruling on admissibility of evidence, party need not renew objection to admission of evidence, even if ruling was made before trial began

Question 52

Challenge to Evidence Ruling: Offer of Proof

Answer 52

If evidence is excluded

Question 53

Challenge to Evidence Ruling: Plain Error

Answer 53

• An error that is obvious to a reviewing court
• Grounds for reversal, even without a challenge, if it affects a substantial right

Note: If objection to jury instruction is made after court instructs jury, court can consider objection only if instruction constituted plain error.

Question 54

Challenge to Evidence Ruling: Completeness Rule

Answer 54

If a party introduces part of a written statement, an adverse party may compel introduction of an omitted portion that are necessary to put the admitted portion into perspective.

Question 55

Judicial Notice

Answer 55

Judicial notice is the court’s acceptance of a fact as true without requiring formal proof. Adjudicative facts (facts of the case typically decided by the jury) are subject to judicial notice if the fact is not subject to reasonable dispute because:
* Generally known within the community, or
* Can be accurately and readily determined from reliable sources

Note: Court must (i.e., non-discretionarily) take judicial notice if requested by party and court supplied with necessary information

Question 56

Judicial Notice: Instructing the Jury

Answer 56

• Civil Case: Jury must be instructed to accept noticed fact as conclusive
• Criminal Case: Jury must be instructed it may or may not accept any judicially noticed fact as conclusive

Question 57

Leading Questions: Direct vs. Cross-Examination

Answer 57

• Direct: Only allowed if (i) a hostile witness, (ii) needed to develop witness’s testimony (e.g., to establish a preliminary matter that is not in dispute), or (iii) witness struggles with communication
• Cross-examination: Generally, no restrictions, but there may be if cross-examination is in form only, rather than fact, such as when party is cross-examiend by his own lawyer after having been called as witness by opposing party

Question 58

Form of questions: Improper Questions

Answer 58

• Compound: Requires answers to multiple questions
• Assumes facts not in evidence: Assumes as true certain facts that haven’t been established yet
• Argumentative: Intended to present an argument, rather than elicit a factual response
• Calls for conclusion/opinion: Requires witness to draw conclusion or state opinion he is not qualified to make
• Repetitive: Already asked and answered
• Lack of foundation: Failure to estabish necessary predicate, such as authentication of tangible evidence

Question 59

Exclusion of Witnesses

Answer 59

Court must exclude witnesses from courtroom so they do not hear other witness’ testimony, except for:
* Natural person parties to the case,
* Individuals designated as a representative of non-natural person parties,
* Persons essential to a party’s presentation of the case, and
* Persons whose presence is permitted by statute

Question 60

Presumptions

Answer 60

• Conclusion that trier of fact is required to draw upon party’s proof of underlying set of facts
• Presumptions are not prohibited in criminal cases, but a presumption cannot serve to shift the burden of proof of an element of the crime to the defendant

Question 61

Presumptions: Destruction of Evidence

Answer 61

Generally raises a rebuttable presumption that the evidence was unfavorable to the destroying party if the other party establishes:
* (i) Destruction was intentional,
* (ii) Evidence is relevant, and
* (iii) Alleged victim acted with due diligence as to the destroyed evidence

Question 62

Relevance: General Rule

Answer 62

Generally, all relevant evidence is admissible unless it falls under an exception. Evidence is relevant if it (i) has a tendency to make a fact more or less probable than it would be without the evidence (i.e., probative) and (ii) the evidence is of consequence in determining the action (i.e., material).

Note: Evidence a person intended to flee is relevant.

Question 63

Exclusion of Relevant Evidence

Answer 63

Relevant evidence can be excluded if the probative value is substantially outweighed by th danger of unfair prejudice
* Unfair Prejudice: Confusing issues, misleading jury, undue delay, wasting time, needless presentation of cumulative evidence (not unfair surprise)

Question 64

Relevance Dependent on Existence of Fact

Answer 64

• Proof must be sufficient to support a finding that the fact does exist by a preponderance of the evidence
• May be admitted on condition that proof is later introduced

Question 65

Character Evidence: General Rule

Answer 65

Evidence about a person’s character to prove that a person acted in accordance with that character on a particular occassion is generally inadmissible.

Question 66

Routine Practice of Organization

Answer 66

The routine practice of an organization (ex. hospital) is admissible into evidence to prove that on a particular occasion the organization acted in accordance with that practice.
* Any witness familiar with organization can testify regarding existence of routine practice

Question 67

Character Evidence: Civil Cases

Answer 67

• Inadmissible: To prove a person acted in accordance with that character on a particular occasion
• Admissible: When character is an element of a claim or defense (e.g., defmation, negligent hiring or negligent entrustment, child custody)

Question 68

Character Evidence: D’s Character in Criminal Cases

Answer 68

By prosecution: Not permitted to introduce evidence of D’s bad character to prove D has propensity to commit crimes and so is likely to have committed crime in question

By defense: D permitted to introduce evidence of good character as being inconsistent with type of crime charged in the form of reputation/opinion testimony (must be pertinent to crime charged)
* Once D offers evidence of his good character, D has “opened the door” to P being able to rebut D’s claims by attacking D’s character, but is limited to the same type of evidence that the D offers

Question 69

Character Evidence: Victim’s Character in Criminal Cases

Answer 69

• By defense: D may introduce reputation/opinion evidence of victim’s character when relevant to defense asserted
• By prosecution: P can offer rebuttal evidence of victim’s good character when D opens the door

Question 70

Character Evidence: Impeachment

Answer 70

Character evidence of witness’s untruthfullness is admissible/relevant to impeach a witness

Question 71

Character Evidence: Specific Acts

Answer 71

Not admissible to show D’s criminal propensity to prove he committed the crime in question

Question 72

Character Evidence: Exception to Specific Acts Prohibition

Answer 72

Can introduce evidence of a specific act, crime, or wrong to show:
* Motive,
* Opportunity,
* Intent,
* Preparation,
* Plan,
* Knowledge,
* Identity, or
* Absence of mistake

Question 73

Character Evidence: Specific Acts and Cross-Examination

Answer 73

A character witness can be asked about relevant specific acts committed by the person about whom the witness is testifying

• Note: Questions must be asked by P in good faith, not based on a hunch, even if accurate

Question 74

Habit Evidence

Answer 74

Evidence of a person’s habit (i.e., behavior that is involuntary, uncontrollable, a reflex, semiautomatic) admissible to prove the person acted in accordance with the habit on a particular occasion

Question 75

Witness: Competence

Answer 75

A person with personal knowledge who gives an oath/affirmation to testify is competent
* Witness’s mental abilities affect credibility, not competence
* No minimum age for competency

Question 76

Witnesses: Judges

Answer 76

Cannot testify as a witness over the trial the judge is sitting

Question 77

Witnesses During Trial: Jurors

Answer 77

Juror may not testify as a witness at in a trial in front of the jury in which they are sitting

Question 78

Witnesses After Trial: Jurors

Answer 78

• May Not Testify: (i) statements made during deliberations, (ii) incident that occured during deliberations, or (iii) effect of anything on juror’s mind
• May Testify: (i) extraneous prejudicial information brought to jury’s attention, (ii) improper outside influence, or (iii) mistakes on verdict form

Question 79

Dead Man’s Statutes

Answer 79

• Limits the ability of witnesses to testify about transactions with people who are deceased
• Not applicable in criminal cases

Question 80

Impeachment: Types

Answer 80

1. Character for untruthfulness,
2. Bias,
3. Sensory or mental capacity,
4. Prior Inconsistent Statement, or
5. Contradiction

Question 81

Impeachment: Bias

Answer 81

• Impeachment to show bias/motivation is always relevant because it goes towards credibility
• Extrinsic Evidence: Permitted

Question 82

Impeachment: Sensory or Mental Capacity

Answer 82

• Can be impeached for deficiency in capacities to perceive, recall, or relate information
• Extrinsic Evidence: Permitted

Question 83

Impeachment: Prior Inconsistent Statements

Answer 83

• Can be used to impeach if inconsistent with witness’s testimony
• Extrinsic Evidence: Only permitted if (i) witness has chance to explain/deny statement and (ii) opposing party can examine witness about it (not required for hearsay declarants or opposing party statements)

Question 84

Impeachment: Character for Truthfulness

Answer 84

• Character
• Specific instances
• Prior convictions

Question 85

Character for Truthfulness: Evidence of Character

Answer 85

Opinion/reputation testimony is admissible to attack witness’s character for truthfulness

Question 86

Character for Truthfulness: Specific Acts

Answer 86

• Can ask about specific acts on cross-examination if (i) probative of witness’s truthfulness or (ii) truthfulness of another witness
• If witness denies specific acts, extrinsic evidence not admissible to prove specific act

Question 87

Character for Truthfulness: Misdemeanor Criminal Conviction

Answer 87

• Crimes involving dishonesty/false statement can be used to impeach any witness
• Must be a conviction for an offense like “perjury, subordination of perjury, false statement, criminal fraud, embezzlement, or false pretense”

Question 88

Character for Truthfulness: Felony Criminal Conviction

Answer 88

• If witness is criminal D: Must be admitted if probative value of evidence outweighs prejudicial effect to that D (“reverse 403”)
• Other witnesses: Must be admitted if probative value is substantially outweighed by prejudicial effect

Question 89

Character for Truthfulness: Conviction/Release 10+ Years Ago

Answer 89

Admissible if:
* Probative value substantially outweighs prejudicial effect and
* Reasonable written notice of intent to use evidence

Note: When calculating age of a conviction, relevant inquiry is whether more than 10 years have passed since witness’s conviction or release from confinement—whichever is later.

Question 90

Character for Truthfulness: Juvenile Adjudication

Answer 90

• If witness is D: Not admissible
• If other witness: Admissible if an adult conviction for that offense would be admissible and admitting it is necessary to determine guilt or innocence

Question 91

Impeachment of Hearsay Declarant

Answer 91

Credibility of declarant can be attacked by any evidence admissible if declarant had testified as witness

Question 92

Rehabilitation of witness

Answer 92

• Explain/clarify on redirect
• Offer opinion/reputation evidence of witness’s character for truthfulness (if character was attacked)
• Offer prior consistent statement to rebut express/implied charge that witness lied due to improper motive/influence

Question 93

Impeachment: Collateral Issues

Answer 93

Generally, cannot impeach credibility of witness by introducing extrinsic evidence of collateral matters

Question 94

Present Recollection Refreshed

Answer 94

• Witness may examine item to refresh witness’s present recollection
• Testimony must be based on refreshed recollection, not item
• Adverse party may inspect item and enter relevant portions as evidence

Question 95

Lay Witness Opinion Testimony

Answer 95

Admissible if:
* (i) Rationally based on witness’s perception,
* (ii) Helpful to clear understanding of witness’s testimony or determination of fact in issue; and
* (iii) Not based on scientific, technical, or specialized knowledge

Question 96

Expert Witness Opinion Testimony

Answer 96

Testimony must be both reliable and relevant:
* Reliable: Subject matter must be scientific, technical, or some other specialized knowledge
* Relevant: Testimony helps trier of fact understand evidence or determine a fact at issue

Note: Expert may not state an opinion about whether criminal D had the requisite mental state

Question 97

Qualified Expert: Requirements

Answer 97

• Qualified as an expert by knowledge, skill, experience, training, or education;
• Testimony based on sufficient facts/data
• Testimony product of reliable principles and methods
• Testimony reflects reliable application of principel/methods to facts of case, and
• Reasonable degree of certainty

Note: Even when a witness has been qualified as an expert, this does not preclude opposing party from inquiring into matters that might affect weight given to testimony (e.g., failing relevant classes in graduate school)

Question 98

Qualified Expert: Opinion Based on Inadmissible Facts

Answer 98

• Opinion based on inadmissible facts admissible if experts in the particular field would reasonably rely on those kinds of facts/data in forming an opinion on the subject
• Underlying facts may be disclosed to jury if probative value substantially outweighs prejudicial effect

Question 99

Authentication: General Rule

Answer 99

All tangible evidence must be authenticated with sufficient evidence to support a finding that the thing is what its proponent claims it is

Question 100

Authentication: Physical Objects

Answer 100

Generally authenticated throguh:
* Personal knowledge,
* Distinctive characteristics, or
* Chain of custody

Note: X-rays and EKGs require testimony that process used was accurate, machine works, and operator qualified.

Question 101

Authentication: Documentary Evidence

Answer 101

Usually authenticated by:
* Stipulation,
* Eyewitness testimony, or
* Handwriting verification: Comparison or nonexpert with personal knowledge

Question 102

Self-Authenticating Documents

Answer 102

• Public documents bearing government seal,
• Certified copy of public record,
• Official publications issued by public authority,
• Trade inscriptions,
• Notarized documents, and
• Commercial paper

Question 103

Authentication: Ancient Documents

Answer 103

Must show that document:
* (i) is in a condition that creates no suspicion about its authenticity;
* (ii) was in a place where, if authentic, it would likely be; and
* (iii) is at least 20 years old when offered.

Question 104

Authentication: Telephone Oral Statements

Answer 104

Party to telephone conversation may authenticate statements made during that conversation if:
* (i) caller recognized speaker’s voice;
* (ii) speaker knew facts that only a particular person would know;
* (iii) caller dialed number believed to be speaker’s, and speaker identified himself upon answering;
* (iv) or caller dialed a business and spoke about business regularly conducted over the phone

Note: Voice can be identified by any person who has heard the voice at any time, even at trial.

Question 105

Best Evidence Rule: General Rule

Answer 105

An original document or reliable duplicate must be produced to prove contents of a writing when the contents are at issue or a witness is relying on the contents when testifying.

Note: Best Evidence Rule does not apply when witness is testifying as to his/her personal knowledge.

Question 106

Best Evidence Rule: Duplicates

Answer 106

Duplicate reliable unless:
* there is a genuine question as to the authenticity of the original,
* or the circumstances make it unfair to admit the duplicate

Question 107

Best Evidence Rule: Unavailability

Answer 107

May introduce other evidence of contents if:
* Originals are lost or destroyed in good faith,
* Party against whom original would be offered failed to produce it, or
* Document not closely related to controlling issue

Note: Best Evidence Rule applies here, these are just exceptions.

Question 108

Best Evidence Rule: Contents of Public Record

Answer 108

Generally proved by a certified copy

Note: This includes proof of a judgment

Question 109

Best Evidence Rule: Jury’s Role when Secondary Evidence is Admitted

Answer 109

Judge: Determines whether a party has fulfilled the factual conditions for admitting secondary evidence

Jury: Determines any issue about whether:
* an asserted document ever existed
* another document produced at a hearing or trial is the original or
* other evidence of content accurately reflects the content.

Question 110

Parol Evidence Rule

Answer 110

• Prevents introduction of prior extrinsic evidence that contradicts terms of written K
• Applies when a writing is integrated: parties intended writing to be their final agreement
• Intent of the parties: Determines if there is total, partial, or no integration

Question 111

Parol Evidence Rule: Total vs. Partial Integration

Answer 111

Total Integration: Complete expression of all terms of parties’ agreement
* Parties cannot introduce extrinsic evidence of prior/contemporaneous understandings or negotiations

Partial Integration: If writing sets forth only some terms
* Parties permitted to introduce supplementary extrinsic evidence of other terms that are consistent with writing (not contradictory)

Question 112

Parol Evidence Rule: Exceptions

Answer 112

• Raising a defense to formation or enforcement
• Providing condition precedent to existence of K
• Interpreting/clarifying ambiguity in K
• Subsequent agreement
• Collateral deal
• UCC: Supplementing even apparently unambiguous terms by evidence of trade usage or course of dealing (priority, highest to lowest: express terms, course of performance, course of dealing, trade usage)

Question 113

Character Evidence: Victim’s Sexual Conduct

Answer 113

• Rape shield: evidence of sexual behavior/predisposition generally not admissible in any proceeding involving sexual misconduct
• Specific acts: Admissible to prove D not source of physical evidence in criminal case
• Sexual behavior/predisposition of victim: Admissible in civil case if probative value substantially outweighs unfair prejudice
• Reputation: Admissible only if placed in controversy by victim

Question 114

Character Evidence: Defendant’s Sexual Conduct

Answer 114

Evidence of sexual assault in criminal/civil case admissible to
prove any relevant matter (not limited to convictions)

Question 115

Curative Admission

Answer 115

• When inadmissible evidence (e.g., nonrelevant evidence) is improperly admitted against a party, court may permit that party to introduce additional inadmissible evidence (e.g., hearsay) for rebuttal
• Meant to remedy prejudicial effect caused by previously admitted evidence.

Question 116

Hearsay Exception: Absence of Public Records

Answer 116

Admissible under hearsay exception if:
* Introduced through testimony or self-authenticating evidence, and
* In criminal cases, P gives written notice of intent to offer certification 14 days before trial and D does not object in writing within 7 days of receiving notice

Question 117

Notice in a Criminal Trial

Answer 117

• Prosecution must provide reasonable notice of general nature of evidence that prosecution intends to offer at trial
• Defense is NOT required to give the prosecution the same notice.