Evidence Miscellaneous

Question 1

When the FRE do not apply:

Answer 1

• To the Supreme Court.
• Only the privilege rules apply to grand jury proceedings

Question 2

Objections

(in general)

Answer 2

• Failure to object constitutes a form of waiver to the error
• Usually must state a ground for the objection unless the objection is apparent from its context
• If something is said that shouldn’t have been said…. Lawyer makes a motion to strike
• Must be timely and specific

Question 3

FRE 401. Only relevant information is admissible.

Evidence is relevant if:

Answer 3

• It has any tendency to make a fact more or less probable than it would be without the evidence AND the fact is of consequence in determining the action

Question 4

Who decides relevance?

Answer 4

The judge, based on a case-by-case examination of both the facts and the law

Question 5

FRE 403:

The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following:

Answer 5

• unfair prejudice,
• confusing the issues,
• misleading the jury,
• undue delay,
• wasting time, or
• needlessly presenting cumulative evidence.

Question 6

403 Balancing test

Answer 6

• To exclude the evidence, the court must be convinced that even though there is probative value, there is so much danger (of unfair prejudice, etc) that it must be excluded.
• The rule recognizes a firm tilt towards admissibility

Question 7

Relevance

Prop 8 and CEC 352 (403)

CALIFORNIA

Answer 7

Prop 8 admits many things in criminal cases in CA.

However, rule CEC 352 is preserved, and judges can exclude evidence if its probative value is substantially outweighed by its dangers.

Question 8

Rule 407. Subsequent Remedial Measures

When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove:

Answer 8

• Negligence;
  
  • (tort)
• culpable conduct;
  
  • Wide net. Includes breach of contract.
• a defect in a product or its design; or
  
  • Refers to products liability
  • BUT in CALIFORNIA, this is admissible. Products liability is strict liability in CA.
• a need for a warning or instruction.

Question 9

What is a remedial measure?

Answer 9

• Broad category
  
  • Examples: Firing an employee, recalling a product, changing a policy
• A “subsequent remedial measure” only counts as remedial after the injury occurs. It is inadmissible. Anything that happens BEFORE the injury is admissible.
• An investigative report is not a remedial measure

Question 10

When is evidence of a subsequent remedial measure ADMISSIBLE?

Answer 10

• Impeachment
  
  • In all cases
• If DISPUTED
  
  • Proving ownership
  • Proving control
  • Proving feasibility

Question 11

Rule 408. Compromise Offers and Negotiations

Answer 11

• Must be a claim, dispute, and settlement negotiation
• Conceals the fact of the settlement, not just the terms
• Protects conduct and statements (but not documents and evidence that pre-existed the settlement negotiations)
• Policy: encourage settlement. Encourage candor.
• To exclude the evidence as part of a settlement discussion: must be formal discussion, like with lawyers present. Especially not pre-lawsuit
• Impeachment is not an exception
• If the evidence existed before settlement discussions, it is not excluded by 408. It is admissible.

Question 12

Rule 408

Settlement Negotiations

Exceptions

Answer 12

Exceptions

The court may admit this evidence for another purpose, such as

• proving a witness’s bias or prejudice,
• negating a contention of undue delay, or
• proving an effort to obstruct a criminal investigation or prosecution.

Question 13

408

Settlement Negotiations

Criminal cases

Answer 13

• The prosecutor cannot introduce evidence that came out during a settlement proceeding
  
  • Unless it was with a public office exercising regulatory, investigative, or enforcement authority
  • Admissible in any subsequent criminal trial

Question 14

FRE 409

Offer to pay medical expenses

Answer 14

Evidence of furnishing, promising to pay, or offering to pay medical, hospital, or similar expenses resulting from an injury is not admissible to prove liability for the injury.

• Furnishing, promising, offering
  
  • Does NOT exclude any statements made in addition to “furnishing, promising, offering to pay medical bills”
• Medical, hospital, or similar expenses
  
  • Does not encompass lost wages, repair to automobile, or compensation to an injured party for other types of economic or property damage
• To prove liability
  
  • If some other purpose can be established for the evidence other than to prove liability, 409 does not bar admission
• CALIFORNIA 1152
  
  • Does excludes statements in the course of offering to pay medical payments, unlike 409

Question 15

CALIFORNIA 1160

Expressions of Sympathy

Answer 15

Sympathetic statements are inadmissible as evidence. However, a statement of fault is not inadmissible

Question 16

FRE 410

Plea Bargaining

When does plea bargaining occur?

Answer 16

• NOT when you are being arrested
• Defendant must have an actual subjective expectation of negotiating a plea; AND
• The expectation was reasonable given the totality of the objective circumstances
• Factors suggesting plea negotiation
  
  • Involvement of a prosecutor
  • Involvement of defense attorney
  • Charges already filed
  • Specific terms discussed
  • Govt expressed interest in defendant’s offer
  • Absence of caveat statements

Question 17

FRE 410

Plea bargaining

Prohibited Uses

Answer 17

In a civil or criminal case, evidence of the following is not admissible against the defendant who made the plea or participated in the plea discussions:

• (1) a guilty plea that was later withdrawn;
• (2) a nolo contendere plea;
• (3) a statement made during a proceeding on either of those pleas; or
• (4) a statement made during plea discussions with an attorney for the prosecuting authority if the discussions did not result in a guilty plea or they resulted in a later-withdrawn guilty plea.
• (b) Exceptions. The court may admit a statement:
  
  • (1) in any proceeding in which another statement made during the same plea or plea discussions has been introduced, if in fairness the statements ought to be considered together; or
  • (2) in a criminal proceeding for perjury or false statement, if the defendant made the statement under oath, on the record, and with counsel present.
  • YOU CANNOT impeach with statements made during plea bargaining

Question 18

410

Plea Bargaining

further notes

Answer 18

• civil and criminal
• 410 does not exclude evidence of a final guilty plea, which is a matter of public record
• 410 only excludes evidence introduced against a criminal defendant who participates in the plea bargaining process.
  
  • However, the D can introduce evidence from that process about others.

Question 19

CEC 1153 plea bargaining evidence

CALIFORNIA

Answer 19

CALIFORNIA

You CAN impeach with statements made during plea bargaining (not the same as the federal rules)

Question 20

FRE 411: liability insurance

Answer 20

• Evidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully, or their ability to pay a substantial judgment.
  
  • But the court may admit this evidence for another purpose, such as proving a witness’s bias or prejudice or proving agency, ownership, or control.

Question 21

What qualifies a witness to testify?

Answer 21

To testify in court, a witness must

• 1. be competent
• 2. have personal knowledge
• 3. take an oath or affirmation

Question 22

FRE 602 Personal Knowledge

Witness must have personal knowledge

Answer 22

• Their knowledge does not have to be direct. It can be circumstantial.
• Info should be based on seeing, hearing, or otherwise sensing
• The bar is very low
• Only expert witnesses do not need to have personal knowledge

Question 23

Examining witnesses

Direct examination

Answer 23

• Introduces the witness to the jurors
• Lays the foundation for the witness’s testimony.
• Establishes personal knowledge
• Allows the witness to tell her story

Question 24

Rule 615: Exclude witnesses (from hearing testimony)

Answer 24

Except

• Parties
• A representative of a corporate or organizational party
• Witnesses essential for preparation (expert witnesses)

Question 25

601 Competency

Answer 25

• Almost all witnesses are competent to testify, regardless of their youth or mental impairment.
  
  • The rules assume that opposing counsel will highlight a witness’s shortcomings and that the jury will assess the witness’s credibility.
• Barred completely: judges and jurors

Question 26

601

4 limits on competency

Answer 26

• A witness may only testify about matters within her personal knowledge
• A witness must make an oath or affirmation to testify truthfully
• When state law supplies the rule of decision, as in a civil diversity case, state law also determines competence
• Interpreters must be qualified and must make an oath or affirmation to render a true translation

Question 27

612: Refreshing recollection

Answer 27

• An attorney may refresh recollection whenever the judge grants permission
• Anything (writing, photos, etc) may be used to refresh recollection
• Only an adverse party can introduce a document to the jury, and only to assess credibility.
• When refreshment occurs before testifying, the adverse party may examine the materials… when justice requires. (when the judge feels it’s important to make it available)
• Can refresh with info that is not admissible.

Question 28

Refreshing recollection

Steps

Answer 28

• 1. Witness says she can’t recall
• 2. Identify “memory jogger” and ask witness if that might refresh
• 3. Show memory jogger to opposing counsel
• 4. Show memory jogger to witness
• 5. Take memory jogger away
• 6. Ask witness: “Did that refresh your memory?”
• 7. Ask witness to testify from memory

Question 29

Refreshing recollection

Rule 612 trumps other rules….

Answer 29

….when an adverse party invokes it; the rule gives the adverse party the right to introduce the writing for the limited purpose of assessing the witness’s credibility (even if the writing would not otherwise be admissible)

Question 30

Preliminary Questions of Admissibility

Miscellaneous

Answer 30

• The judge decides preliminary questions
• The rules of evidence do not apply when judge is deciding whether evidence shall be admitted
  
  • However, the rules of Privilege still apply
• The judge decides issues of law
• All preliminary factual issues are decided by the preponderance standard (is it more likely than not?)
• 403 considerations
  
  • Weakly supported facts offer more potential for unfair prejudice

Question 31

104:

Procedures for Deciding the Admissibility of Evidence

Answer 31

• Disputed issues are called “Preliminary questions”
• The judge resolves all LEGAL preliminary questions affecting admissibility
• Preliminary FACTUAL controversies
  
  • Jury: Factual issues affecting relevance. Proferred evidence is relevant only if the disputed fact is true
    
    • 104(b) asks whether there is enough evidence so a jury COULD resolve the factual dispute in a way that makes the evidence relevant
  • Judge: Factual disagreements as to whether a rule will apply

Question 32

104: Procedures for Deciding the Admissibility of Evidence

Rules

Answer 32

• 104(a) JUDGE
  
  • Default rule is that the judge decides preliminary questions related to admissibility
  • Rules of evidence do not apply to the info a judge can hear when making a preliminary determination
  • Rules of privilege DO apply to prelim determinations
  • Judge resolves the factual issue on her own, applying preponderance standard
• 104(b) JURY
  
  • If the evidence survives the threshold scrutiny, the jury will resolve the factual dispute
    
    • 104(b) asks whether there is enough evidence so a jury COULD resolve the factual dispute in a way that makes the evidence relevant
• 104(c)
  
  • Fairness sometimes requires holding a hearing outside of the jury’s hearing (because of prejudice)
• 104(d)
  
  • By testifying on a preliminary question, the D does not waive the privilege against self-incrimination and cannot be cross examined on the issues
• 104(e)
  
  • Even if the judge admits evidence, the parties may dispute the evidence’s weight at trial

Question 33

Definition of Relevance

Answer 33

• Evidence is relevant if it has any tendency to make a fact of consequence more or less probable than would be the case without the evidence
  
  • 2 components
    
    • Materiality
      
      • The proposition the evidence tends to prove is of consequence to the case
    • Probativeness
      
      • The evidence has some tendency to make that proposition more or less likely

Question 34

Relevance Principles

Answer 34

• 2. All irrelevant evidence is inadmissible
     * No exceptions
• 3. All relevant evidence is admissible
     * Unless
     
     • Some specific exclusionary rule is applicable; or
     • 403
       
       • The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following:
         
         • unfair prejudice,
         • confusing the issues,
         • misleading the jury,
         • undue delay,
         • wasting time, or
         • needlessly presenting cumulative evidence.

Question 35

701: Lay Opinions

Answer 35

• Examples
  
  • “The day was sunny”
  • “The box was heavy”
  • “Her speech was slurred”
• 1. Lay opinion must be based on personal observation
     * Must have directly perceived
     * Must lay a foundation before the testimony
• 2. Must be helpful to jury
• 3. May not rest on scientific, technical, or specialized knowledge
     * However may draw upon unusual life experiences
     
     • (such as a drug dealer testifying as to the quality of cocaine)
       * Experts may testify as lay witnesses, but it may not be based on professional expertise

Question 36

Authentication

in general

Answer 36

• Standard: “Evidence sufficient to support a finding… that the item is what the proponent claims it is”
  
  • Threshold for establishing authenticity is very low
• Serves 3 important functions
  
  • Necessary to establish relevance
  • Assure that a piece of evidence is genuine
  • Places the evidence in proper context
• What it DOES NOT do
  
  • Does not guarantee the identity or genuineness of the evidence
    
    • Can still be disputed
  • Does not establish compliance with other evidentiary rules
    
    • For example, to submit a document, in addition to authentication it must still satisfy the hearsay rules

Question 37

Authentication

2 categories

Answer 37

• 1. Evidence that requires EXTRINSIC info
     * Most common is testimony from a witness
• 2. Evidence that is SELF-AUTHENTICATING
     * Documents that display their identity in an obvious and trustworthy manner
     * Comprehensive list

Question 38

Authentication

Ways to establish

Answer 38

• Distinctive features
• Chain of custody
• Handwriting
• Voice identification
• Photos and videos
• Emails, texts, and social media
• Public records
• Newspapers and periodicals
• Business records
• Electronically generated records
• Websites

Question 39

Judicial Notice

Answer 39

• Something so obvious that it doesn’t have to be proved
• Establishes a fact for purpose of a case, relieving the party from proving it
• Jury instructions
  
  • Civil- the noticed fact is conclusive
  • Criminal- may or may not accept the noticed fact as conclusive
  • CALIFORNIA- civil & criminal- the noticed fact is conclusive
• Judicial notice on appeal
  
  • Court may take judicial notice on appeal
  • But not of a fact necessary to support a criminal conviction

Question 40

Best Evidence Rule

in general

Answer 40

• If a party wants to prove the content of a document, then the party should produce the document itself
  
  • Writings, recordings, photographs
    
    • Includes artistic drawings
• 2 categories
  
  • The w/r/p has independent legal significance
    
    • The content of the document itself controls some facet of the litigation
    • In this category, the document MUST be introduced
  • The w/r/p is a convenient option for proving some fact

Question 41

Best Evidence Rule

“original” requirement

Answer 41

• Default principle requires the original w/r/p
• For electronically stored info
  
  • includes “any printout- or other output readable by sight- if it accurately reflects the information
  • Text messages: they count as writings
• For photographs
  
  • Includes prints or negatives
  • Includes motion pictures, dvd’s
• For documents in triplicate
  
  • All copies are originals
• Duplicates
  
  • Must be made by mechanical, photographic, chemical, or electronic means
  • Does *not* include handwritten copies
• Alterations
  
  • May enhance w/r/p by enlarging them
  • or using electronic means to eliminate background noise
  • Or by adjusting brightness/contrast

Question 42

Best evidence rule

“original” requirement EXCEPTIONS

Answer 42

• Originals were lost or destroyed
  
  • Must produce evidence as to why it’s lost
  • Does not apply to bad faith
• Cannot obtain the original through judicial process
  
  • Usually arises when a 3rd party possesses the original and refuses to produce it
• If the w/r/p is not closely related to a controlling issue, original is not required
• If the opponent has admitted the contents by testimony, deposition, or in writing

Question 43

Best Evidence Rule

in general 2

Answer 43

• Proof by admission (by an opponent)
  
  • If an opponent admits the contents of a w/r/p, then the party does not have to produce the original document or account for its absence
• Public records
  
  • 3 avenues for proving the content of a public record
    
    • 1. Certified copy
    • 2. Testimony by a witness who has compared a copy with the original
    • 3. Other evidence, when the first two are not obtainable by reasonable diligence
• Summaries
  
  • May introduce summaries of w/r/p that cannot be conveniently examined in court
• Who determines what evidence comes in?
  
  • Usually the judge
• In the courtroom
  
  • Sometimes a party attempts to prove a fact w/out reference to a w/r/p and the opponent claims that they should have used a w/r/p to prove the fact
    
    • If a party is trying to prove the contents of a w/r/p, the best evidence rule applies
    • If it is collateral, they may use other evidence
• Compliance with the Best Evidence rule does not guarantee admissibility under other rules
  
  • Watch for hearsay issues

Question 44

Written Confessions

Answer 44

Admissible as a party-opponent admission.

Question 45

Under the Federal Rules, the dying declaration exception to the hearsay rule applies only in __________ and __________.

Answer 45

Civil actions; homicide prosecutions

Question 47

Public records exception

are prior acquittals admissible?

Answer 47

Prior acquittals are not admissible under the public records exception

Question 48

Catchall hearsay exception

Answer 48

• The catch-all hearsay exception has no requirement that the statement must be corroborated by other evidence.
• Rather, the statement must have “circumstantial guarantees of trustworthiness.”
• The statement must be more probative as to a material fact than any other evidence which the proponent can reasonably produce so that the “interests of justice” will be served by its admission.
• Finally, the proponent must give notice in advance of trial to the adverse party as to the nature of the statement.

Question 49

Business Records Exception

Are police reports admissible against a criminal defendant?

Answer 49

• Generally, police reports are not admissible against a criminal defendant under the business records exception.
• However, police reports may be admissible as business records in civil cases.
• One requirement of the business record exception is that the entrant must have had some duty to make the entry as part of her employment (i.e., records kept as a hobby do not qualify).

Question 50

The “recorded recollection” exception to the hearsay rule allows the offering party to:

Answer 50

Introduce a memorandum into evidence by reading it aloud

Question 51

Is an opposing party’s statement considered hearsay?

Answer 51

A statement made by a party and offered against that party is not hearsay under the Federal Rules.