Evidence Mini Review

Question 1

prior bad acts

Answer 1

no extrinsic evidence
impeachment only
no arrests

Question 2

when is extrinsic evidence of a prior inconsistent statement allowed?

Answer 2

Extrinsic evidence of a prior inconsistent statement is only admissible when:

The witness is afforded an opportunity to explain or deny the statement
Opposing counsel is afforded an opportunity to examine the witness about it (FRE 613)

Question 3

when is extrinsic evidence generally allowed

Answer 3

Only if:

Evidence is on a non-collateral matter, and
Witness is given a chance to explain the inconsistency (FRE 613(b)) and it is in line with Rule 403 balancing; or

Extrinsic evidence is for a criminal conviction and admissible under FRE 609; or

Evidence of a witness’s prior inconsistent statement, bias, or mental capacity (at the judge’s discretion - must be follow Rule 403 balancing)

Question 4

all balancing tests used for crim convictions

Answer 4

crimen falsi - auto admits unless over 10 yrs
D not witness - 403
D witness - only if prob outweighs prej
over 10 yrs - one;y if prob SUBSTANTIALLY outweighs prep

Question 5

Juvie convictions

Answer 5

-basically no if witness is D
-can use for bias

Question 6

is impeachment a collateral matter

Answer 6

yes

Question 7

Can extrinsic evidence be used to cross-examine a witness about a collateral matter?

Answer 7

Generally, no unless it is:

Evidence of a criminal conviction that complies with the FRE 609 standards
Evidence of a witness’s prior inconsistent statement, bias, or mental capacity (at the judge’s discretion - must be follow Rule 403 balancing)

Question 8

religious beliefs for impeachment

Answer 8

no but for bias

Question 9

403

Answer 9

can exclude if probative is substantially outweighed by danger of:
confusion, waste of time, unfair prej, misleading

Question 10

who can offer testimony to a witness’s reputation

Answer 10

Anyone who is aware of the witness’s reputation in the relevant community

for opinion - need firsthand knowledge

Question 11

When can evidence of V’s character be admitted in crim cases

Answer 11

By the defendant:

Reputation or opinion evidence on V’s trait if pertinent to a defense asserted (e.g. showing V was violent to support first-aggressor claim)
By the prosecution:

To directly rebut D’s claim of V’s bad character
Homicide cases: can rebut claim D’s claim that V was the first aggressor by showing V had character for peacefulness (D is not required to “open the door”)
Reputation, opinion, and specific acts allowed on cross

Question 12

are prior bad sex acts by D admissible in crim and civil

Answer 12

yes

Question 13

when is SRM evidence admissible

Answer 13

ownership
control
feasibility of precautionary measures

only if disputed

Question 14

when is evidence of prior settlement admissible

Answer 14

-bias or prejudice of witness
-negating contention of undue delay
-proving effort to obstruct crim investigation

Question 15

when is evidence of offer to settle barred

Answer 15

-demonstrate validity or amount of a DISPUTED CLAIM
-impeachment by prior inconsistent statement or contradiction

Question 16

in civil case, when is evidence of V’s sex behavior admissible?

Answer 16

In a civil case, the court may admit evidence offered to prove V’s sexual behavior or sexual predisposition if its probative value substantially outweighs the danger of harm to any V and of unfair prejudice to any party. The court may admit evidence of V’s reputation only if V has placed it in controversy.

Question 17

how can a physical object be authenticated

Answer 17

-personal knowledge
-distinctive char
-chain of custody

Question 18

How are reproductions (e.g. diagrams) authenticated?

Answer 18

testimony of a witness w personal knowledge (need not be creator)

Question 19

ancient docs authentication

Answer 19

-20+ years old
-unsuspicious
-found in normal place for such doc

Question 20

when does best evidence apply

Answer 20

-terms of writing being proven (contents of will or photo)
-witness relies on contents of original during testimony

Question 21

reqs for expert testimony

Answer 21

-witness is qualified to be expert
-science, tech, or other knowledge helpful to trier of fact to understand evidence or determine fact in issue
-testimony based on sufficient facts or data
-based on reliable principles and methods

Question 22

An expert’s opinion can be based on what type of information?

Answer 22

Facts or data that expert has been made aware of or personally observed;
Facts that were presented to the expert at trial (e.g. hypothetical question); or
Facts that experts in the field would rely on to form an opinion;

Question 23

Daubert factors

Answer 23

Used to determine whether the expert’s methods are scientifically valid. The court weighs:

Whether the method has been tested;
If the method has been subject to peer review and publication;
The error rate of the technique;
The existence of standards controlling the technique’s application; and
General acceptance in the relevant scientific community

Question 24

can an expert give legal conclusion

Answer 24

no but can give opinion on ultimate issue in case except for requisite mental state

Question 25

marital comms privilege

Answer 25

-either can invoke
-both crim and civ
-made during marriage, survives marriage

when no apply
-one spouse destroys confidentiality by telling 3d party
-proceeding btw 2 spouses
-spouse charged w crime against child
-if used to facilitate crime

Question 26

If there has been an inadvertent disclosure of privileged information, what steps must be taken to ensure the privilege is not waived?

Answer 26

Holder of the privilege must:

Have taken reasonable steps to prevent disclosure; and
Promptly took reasonable steps to rectify the error

Question 27

spousal testimony privilege

Answer 27

Protects a witness-spouse from having to testify against a defendant-spouse in a criminal trial only. Applies to events before and during the marriage.

terminates upon divorce or annulment

Question 28

things not offered for truth of matter asserted

Answer 28

-words w legal sig (tortious words, kx words)
-statements to prove state of mind
-effect on listener
-impeachment

Question 29

types of opposing party statements that are nonhearsay

Answer 29

-judicial admissions
-personal admissions
-adoptive admissions
-representative/vicarious admissions (agents, authorized speaker, coconspirator)

Question 30

Name the 3 types of prior statements that are considered nonhearsay. What is required to admit them?

Answer 30

Prior sworn inconsistent statements;
Prior consistent statements; and
Prior statements of identification
In order to be admissible, the declarant must:

Testify at the present trial; and
Be subject to cross-examination

Question 31

when does dying declaration apply

Answer 31

-HOMICIDE OR CIVIL ONLY
-unavail
-death imminent
-statement re cir of death

Question 32

statement against interest reqs

Answer 32

Declarant is unavailable;
Statement is against the declarant’s proprietary or pecuniary interest or would expose the declarant to civil or criminal liability; and
A reasonable person in the declarant’s position would not have made the statement unless she believed it to be true
And, if it is a criminal case or the statement exposes declarant to criminal liability:
Statement must be supported by corroborating circumstances that clearly indicate its trustworthiness

Question 33

testimonial evidence

Answer 33

Prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and
Police interrogations (unless during an emergency)

Question 34

similar occurrences evidence

Answer 34

-P’s accident history (ok for prior false claims or same bodily injury)
-similar accidents or injuries (if substantially similar conditions, OK for 1. existence of condition 2. causation 3. d had notice 4. intent)
-sales of similar prop or real prop around same time (to prove value; but not mere offers)
-habit (particular circumstances frequently)
-industry custom (rebuttable/inconclusive)

Question 35

additional requirements for intro of evidence for non-propensity purposes (MIMIC)

Answer 35

-prior notice good time before trial
-say why using

Question 36

general bar for authentication

Answer 36

sufficient to support a jury finding of its genuineness

Question 37

summaries for voluminous records

Answer 37

When it would be inconvenient to examine a voluminous collection of records in court, the proponent may present their contents in the form of a chart or summary. However, the proponent must make the originals or duplicates available for inspection or copying, and the court may order the proponent to produce the records in court.

Question 38

requirement for condition of object chain of custody

Answer 38

substantially the same condition