Evidence- outline points

Question 1

Least likely reason for the court to exclude otherwise admissible evidence

Answer 1

unfair surprise.

court has no discretion to exclude.

Question 2

is liability insurance admissible to prove fault or lack thereof?

Answer 2

no

Question 3

when is liability insurance admissible? (2 times)

Answer 3

proof of DISPUTED ownership/control

or

impeachment on the ground of bias

Question 4

when are subsequent remedial measures not admissible?

Answer 4

to prove D’s fault

Question 5

when are subsequent remedial measures admissible?

Answer 5

proof of ownership or control

feasibility of DISPUTED remedial measures

Question 6

in a disputed civil claim, when is evidence of settlement/offer to settle/statement of fact made during negotiation inadmissible?

Answer 6

to prove liability or the amount of the claim

Question 7

when may settlement evidence be admissible?

Answer 7

to impeach a witness on the ground of bias

Question 8

in Virginia, is an admission of liability or independent fact admissible?

Answer 8

yes, even if admitted during settlement negotiations

Question 9

when does the ban on settlement evidence apply?

Answer 9

only when, at the time of discussion, there is a claim and a dispute

Question 10

is hearsay a problem when offered against the party who made the statement?

Answer 10

no. admission by a party opponent.

Question 11

are unsuccessful offers to plead guilty admissible?

Answer 11

no, not for any purpose

Question 12

are withdrawn guilty pleas admissible?

Answer 12

no, not for any purpose

Question 13

are no contest please admissible?

Answer 13

no, not for any purpose

Question 14

are nolo contendre pleas from criminal proceedings admissible in VA?

Answer 14

yes, if used as admission against a party in civil litigation

Question 15

when is character evidence not admissible?

Answer 15

to prove propensity

Question 16

when is character evidence generally admissible?

Answer 16

impeachment; witness veracity; when the trait is an essential element

Question 17

is conforming conduct admissible character evidence?

Answer 17

rarely

Question 18

when character evidence IS admissible to prove propensity, what forms are/are not allowed?

Answer 18

are: personal opinion, reputation

are not: specific acts

Question 19

in Virginia, when character evidence is admissible to prove conforming conduct, about what may a character witness testify?

Answer 19

reputation, NOT personal opinion

Question 20

when/how can prosecution bring in specific acts evidence against D’s character?

Answer 20

when D opened the door through character witnesses

by questioning their knowledge of D’s specific acts relevant to the character trait at issue

Question 21

when may a criminal D offer evidence of a victim’s character, and in what form?

Answer 21

criminal D may offer evidence of a victim’s character for violence to argue that the victim was the first aggressor

opinion or reputation

Question 22

when a criminal D offer evidence of a victim’s character for violence, how may the prosecution rebut?

Answer 22

through evidence of the victim’s peaceful character or evidence of the defendant’s violent character

Question 23

when may a D offer evidence of his own knowledge of the victim’s bad character for violence, and by what form?

Answer 23

to show that D reasonably feared he was in danger

reputation, opinion, OR SPECIFIC ACTS

Question 24

notwithstanding the rape shield rule, when can D introduce evidence of a victim’s sexual conduct (3)?

Answer 24

evidence of victim’s sexual activity with the D IF the defense is consent

evidence of victim’s sexual activity with others to prove that someone other than D was the source of physical evidence

evidence of victim’s motivation to lie (wife lying to husband that her lover raped her)

Question 25

when, if ever, is character evidence admissible to prove conforming conduct?

Answer 25

in a CIVIL action when character is an essential element of a claim or defense, such as negligent entrustment or defamation

Question 26

two distinguishing characteristics of habit evidence

Answer 26

frequency regularity of response

Question 27

when is evidence of D's other crimes admissible?

Answer 27

when offered for a purpose other than demonstrating propensity: something specific about the crime at issue

Question 28

what are the most common non-character purposes for evidence of D's other crimes

Answer 28

``` MIMIC: motive intent mistake (absence thereof) identity common scheme or plan ```

Question 29

standard of proof for MIMIC-purpose crimes?

Answer 29

"sufficiency standard:" evidence sufficient for a reasonable jury to conclude, by preponderance, that D committed the prior act

Question 30

is MIMIC evidence limited to criminal cases?

Answer 30

no. admissible in civil; think torts like fraud or assault

Question 31

for what criminal misconduct may prosecution/plaintiff offer similar acts evidence from the start?

Answer 31

in any case alleging sexual assault or child molestation, similar acts evidence may be offered to prove D's propensity to commit those acts "once a rapist, always a racist"

Question 32

is a plaintiff's history of accidents or lawsuits admissible?

Answer 32

generally not (merely tends to show propensity for carelessness or litigiousness); but may be admissible as another explanation for the injury at issue

Question 33

is evidence of similar accidents caused by the same thing/event/condition admissible?

Answer 33

generally not, but exceptions exist for substantially similar circumstances for: dangerous condition causation prior notice to the defendant

Question 34

when is the value of similar property admissible?

Answer 34

to prove the value of the property at issue

Question 35

when is evidence of a prevailing standard of care admissible?

Answer 35

to establish how a party in the same industry/trade should have acted

Question 36

of what types of facts may the court take judicial notice?

Answer 36

indisputable facts: - matters of common knowledge w/in the court's jx - matters readily determinable by reliable sources (ex: 9/5/87 was a Saturday)

Question 37

are judicially noticed facts conclusive in civil cases?

Answer 37

yes (jury must regard)

Question 38

are judicially noticed facts conclusive in criminal cases?

Answer 38

no (jury may regard)

Question 39

how may authorship of a handwritten document be authenticated (4)?

Answer 39

testimony by a witness with knowledge (saw signing) lay opinion (familiar w/handwriting) expert witness comparison by the jury

Question 40

what is the ancient document rule, and what are its terms (3)?

Answer 40

authenticity may be inferred for old things. - at least 20 years old (in VA, real estate deeds must be 30 years old) - facially unsuspicious - found in natural location

Question 41

self-authenticating documents?

Answer 41

``` government regulations newspapers, periodicals certified copies of public/private docs filed in public office trade logos notarized documents commercial paper certified business records ```

Question 42

when a photo is offered as independent evidence rather than illustrating a witness' testimony, how is an absence of tampering proven?

Answer 42

chain of custody

Question 43

when does the best evidence rule apply (2)?

Answer 43

writing is a legally operative document witness is testifying to facts learned solely from reading them in the writing

Question 44

is a handwritten copy considered an original document?

Answer 44

no

Question 45

when will the non-production of an original document be excused?

Answer 45

original is lost/can't be found with due diligence original destroyed without bad faith original can't be obtained with legal process (out of jx)

Question 46

standard of evidence for excusing non-production of original written document?

Answer 46

preponderance

Question 47

what is real evidence?

Answer 47

actual physical evidence (drugs, guns, etc.)

Question 48

methods of authenticating real evidence (2)

Answer 48

eyewitness testimony ("I recognize that weapon from the scene) chain of custody

Question 49

requisite standard for condition of real evidence

Answer 49

substantially the same condition as the time of incident, if condition of the item before trial is relevant

Question 50

two requirements for witness competence

Answer 50

personal knowledge + oath/affirmation

Question 51

dead man statute

Answer 51

in civil lit, an interested party can't testify about interaction w/the dead party against the deceased's estate (party is "interested" if legally bound by the lit outcome)

Question 52

do the federal rules have a dead man's statute?

Answer 52

no

Question 53

could a dead man's statute ever apply in fed court?

Answer 53

yes, if incorporating state law in a diversity case (Erie wrinkle)

Question 54

does Virginia have a dead man's statute?

Answer 54

sort of: interested party may testify against decedent's estate, but ONLY if the testimony is corroborative

Question 55

when are leading questions necessary on direct?

Answer 55

young/scared/forgetful witness

Question 56

how and when may a witness's recollection be refreshed?

Answer 56

if a witness forgets something he once knew; by being shown a writing or something else to jog his memory

Question 57

what rights are afforded the opposing party when something is used to refresh a witness' recollection?

Answer 57

right to inspect the refreshing item right to use the item on cross right to introduce the item into evidence

Question 58

when can a past recorded recollection be read to the jury?

Answer 58

witness once had personal knowledge now witness can't recall writing was made/adopted by the witness writing was made while event was fresh to witness witness can attest that writing was accurate when made

Question 59

when a writing is read to the jury as a past recorded recollection, may anyone show the document to the jury?

Answer 59

opposing party may introduce the writing as an exhibit, but the witness may not show the writing to the jury

Question 60

when may a witness testify as an expert?

Answer 60

witness is qualified testifying on subject where specialized knowledge helpful opinion has proper basis opinion is reasonably reliable

Question 61

expert opinion must be based on one of three sources:

Answer 61

expert's personal knowledge evidence admitted at trial facts outside the record, REASONABLY RELIED UPON by experts in that field

Question 62

what is the federal rule for reliability of scientific evidence?

Answer 62

``` Daubert Standard on methodology, TART: tested rates of error accepted peer review ```

Question 63

who may express opinion testimony on the ultimate issue?

Answer 63

lay or expert witness

Question 64

when is testimony on the ultimate issue not allowed?

Answer 64

in a criminal case, experts may not testify that D did/didn't have requisite mental state

Question 65

when can a treatise be used?

Answer 65

on direct or cross of an expert, if the treatise is established as reliable

Question 66

may a treatise be read to the jury as substantive evidence?

Answer 66

yes (exception to HS)

Question 67

may a treatise itself be shown to the jury?

Answer 67

no

Question 68

how is the authority of a treatise established?

Answer 68

either party's expert may testify to its authority, or the judge may take judicial notice

Question 69

what happens if a witness testifies but then cannot be crossed?

Answer 69

the direct testimony is stricken from the record

Question 70

proper scope of cross examination?

Answer 70

scope of direct + witness credibility matters

Question 71

intrinsic impeachment

Answer 71

asking the witness to admit facts on cross

Question 72

extrinsic impeachment

Answer 72

introducing evidence other than witness' admissions (using documentary evidence, calling other witnesses)

Question 73

is a prior inconsistent statement admissible as substantive evidence that the prior statement is true?

Answer 73

no, unless made: (a) under oath, AND (b) at trial/hearing/deposition

Question 74

when is a prior inconsistent statement admissible?

Answer 74

for impeachment

Question 75

what opportunity must be given a witness who is being impeached based on a prior inconsistent statement, and when is it given?

Answer 75

opportunity to explain or deny the statement; given to any witness except the opposing party

Question 76

with what kind of evidence may bias be proved?

Answer 76

intrinsic or extrinsic

Question 77

how recent must convictions be to be admissible to impeach for veracity?

Answer 77

within 10 years of the trial

Question 78

what types of criminal convictions must be admitted?

Answer 78

crimes of dishonesty or false statement (crimes involving a lie or betrayal of trust by definition)

Question 79

what crimes are not admissible for impeachment?

Answer 79

misdemeanors

Question 80

when are felony convictions NOT involving dishonesty admissible to impeach for veracity?

Answer 80

when the probative value of the conviction, on the issue of veracity, outweighs the risk of unfair prejudice

Question 81

how may a conviction be proved?

Answer 81

intrinsic or extrinsic evidence

Question 82

when may a witness be asked about his prior bad acts without conviction?

Answer 82

when those acts relate to his veracity, and the cross examiner has a good faith basis to believe the bad act occurred

Question 83

how may prior bad acts without conviction be proved?

Answer 83

through extrinsic evidence only (cross-examiner is stuck with the witness' answer!)

Question 84

when may bad acts without conviction be proved by extrinsic evidence?

Answer 84

when offered to prove something other than truthfulness, like proof of bias

Question 85

when may a witness be impeached by intrinsic versus extrinsic evidence?

Answer 85

contradictions significant to the case may be proved by extrinsic evidence contradictions collateral (insignificant to case/witness credibility) may only be proven through intrinsic evidence

Question 86

term for introducing evidence to support a witness's credibility before the witness credibility has been attached, and whether it's allowed

Answer 86

bolstering not allowed

Question 87

what one exception of bolstering is permitted before the witness's credibility has been attacked?

Answer 87

testifying witness' prior statement of identification