Evidence review

Question 1

Presenting expert opinion testimony

Answer 1

A witness is qualified to provide expert opinoin testimony if the witness has specialized knowledge, skill, experience, education, or training in a subject that pertains to an issue in the case

Question 2

Who decides whether an expert witness is qualified

Answer 2

Whether a witness meets the qualifications to be an expert witness is a preliminary question for the court, not the jury. The court is not bound by the rules of evidence in deciding such questions, and can consider otherwise inadmissible hearsay.

Question 3

What rule is a judge bound by in determining a preliminary question of fact

Answer 3

When the court is deciding preliminary issues of fact regarding whether evidence is admissible, the court is only bound by evidentiary rules regarding privilege

Question 4

When must a hearing on a preliminary question of fact related to whether evidence is admissible happen outside the presence of the jury

Answer 4

This hearing must occur outside the presence of the jury if
- the matter involves the admissibility of a confession
- a defendant in a criminal case is a witness in a hearing on the matter and requests for the hearing to be outside jury presence; or
- justice so requires – e.g., when disputed evidence would prejudice a party if heard by the jury

Question 5

What is a presumption?

Answer 5

A presumption is a conclusion that can be drawn once a party proves an underlying fact or set of facts.

Question 6

Effect of “bursting bubble” and presumptions

Answer 6

Under the bursting bubble approach followed by the FRE, the opposing party in a civil suit can overcome a rebuttable presumption by producing sufficient evidence to contradict the presumed fact. Once that occurs, the presumption “bursts”, and the fact finder must weigh the evidence to decide the issue

Question 7

When might relevant evidence be excluded

Answer 7

Under FRE 403, relevant evidence can be excluded if its probative value is substantially outweighed by any of the following:
- unfair prejudice
- confusing the issues
- misleading the jury
- undue delay or wasting time
- needless cumulation

Question 8

Criminal D introducing evidence that their character is inconsistent with the crime charged

Answer 8

A criminal defendant may introduce evidence that his character is inconsistent with the crime charged. The defendant may only introduce such evidence through reputation or opinion testimony. This evidence is not admissible through specific instances of conduct!!

Question 9

Impeacing witness with prior criminal conviction

Answer 9

A witness can be impeached with a prior criminal conviction. However, the standards for admission vary depending on the
- age of the conviction (more or less than 10 years old)
- type of conviction (felony, crime of dishonesty, or neither); and
- witness against whom the conviction is offered (criminal defendant or not)

Question 10

Use of convictions to impeach a witness

Answer 10

A conviction that is no more than 10 years old and concerns a felony not involving dishonesty is admissible against a witness in a civil case unless the conviction’s probative value is substantially outweighed by its prejudicial effect.

Same standard as 403

Question 11

Statement of a witness declarant

hearsay exception

Answer 11

A declarant witness’s prior statement is excluded from hearsay if (i) the declarant testifies and is subject to cross examination and (ii) the sattement either
- is inconsistent with the declarant’s testimony and was given under penalty of perjury at a trial, hearing, or other proceeding
- is consistent with the declarant’s testimony and offered to rebut a charge of recent fabrication or improper influence or rehabilitate the declarant’s credibility; OR
- identifies a person as someone the declarant perceived earlier

Question 12

Notice and introducing self authenticating documents

Answer 12

The proponent of a self authenticating document need not give advance notice to an adverse party of its intent to introduce the document

Question 13

Past recollection recorded

Answer 13

The past recollection recorded exception allows a record to be read to the jury if it
- concerns a matter the witness once knew but can no longer recall at trial
- was made or adopted by the witness when the matter was fresh in their mind; and
- accurately reflects the witness’s personal knowledge at the time it was made

Question 14

Civil judgments and hearsay exceptions

Answer 14

Final judgments of a criminal conviction may be admissible under a hearsay exception. On the other hand, there is no specific hearsay exception that applies to civil judgments

Question 15

Doctrine of curative admission

Answer 15

When inadmissible evidence is improperly admitted against a party, the court may permit that party to introduce additional inadmissible evidence for the purpose of rebuttal. This is meant to remedy the prejudicial effect caused by the preivously admitted evidence

Question 16

Statement of a party opponent

Answer 16

A statement of a party opponent is not hearsay and is admissible if the statement
- was made or adopted by the party opponent
- made by a person authorized by the party opponent to make a statement on the subject
- made by the party opponent’s agent/employee about a matter within the scope of their employment while the employment relationship existed; or
- made by a party opponent’s coconspirator during and in furtherance of the conspiracy

this is an exemption – SO IT’S NOT HEARSAY!!! Not same as an exception

Question 17

What can happen with information from a learned treatise that is excepted from the hearsay rule

Answer 17

That information can be read into evidence, but the treatise itself cannot be received as an exhibit

when read into evidence, it can be used as substantive evidence

Question 18

Role of judge and jury with regard to best evidence rule

Answer 18

Judge: determines whether a party has fulfilled the factual conditions to admit other evidence to prove the content of a document

Jury: determines the issue of whther
1. an asserted document ever existed
2. another document is the original
3. other evidence of content accurately reflects the content

Question 19

Federal inadvertent waiver rule

Answer 19

Disclosure of attorney client communication or work product is not a waiver in a federal or state proceeding if
- disclosure was made in a federal proceeding or to fed agency
- the disclosure was inadvertent
- the privilege holder had taken reasonable steps to prevent disclosure and
- the privilege holder promptly took reasonable steps to rectify the error

Question 20

Affidavits, MSJ, and hearsay

Answer 20

When a party submits a MSJ with affidavits, those affidavits must be admissible and thus must satisfy the rule against hearsay

Question 21

Self authenticating documents

Answer 21

• public documents with official’s signature & certification by another official or seal
• certified copies of public records and records of regularly conducted activities
• newspapers, periodicals, official publications
• documents with trade inscription
• acknowledged documents
• commercial paper with signature

Question 22

Best evidence rule

generally

Answer 22

Under best evidence rule, a party must produce an original or reliable duplicate to prove contents of document relief on by witness or whose contents are at issue

applies to writings, recordings, photographs

Question 23

Exceptions to best evidence rule

Answer 23

other evidence can be used to prove content if
- original unavailable; or
- admission by party (testimony, depo, written statement)

Question 24

Statement against interest

Answer 24

A statement made by an unavailable declarant is not hearsay if the statement
1. is against the declarant’s interest at the time it was made; and
2. would not have been made by a reasonable person unless he believed it to be true

declarant MUST BE UNAVAILABLE

Question 25

Spousal immunity

Answer 25

The spouse of a criminal defendant may not be compelled to testify against his spouse by the prosecution

Testifying spouse holds the privilege and can waive it.

Question 26

Who needs to testify about the routine practices of an organization

Answer 26

An agent of an organization can testify about the routine practice of an organization to prove they acted in accordance with that practice.

The person testifying need not be the person who actually performed the act at issue to testify to the existence of a practice.

Question 27

Presenting evidence of juvenile adjudications

In civil trials particularly

Answer 27

In civil trials, evidence of juvenile adjudications are not admissible

They may be admissible in other certain circumstances, but those circumstances are only in criminal trials

Question 28

When can evidence as feasibility for remedial measures be brought in

Answer 28

Evidence of remedial measure may be used by a P to establish that a precautionary measure was feasible, but it’s not admissible unless the feasibility of such measures is disputed.

Question 29

Exclusion of statements made around offers to settle

Answer 29

Compromises, setlement offers, and related statements including factual admissions are inadmissible to prove liability or fault

This does not include statements that were made before the claim or threat of litigation was asserted

Question 30

Specificity and habit evidence

Answer 30

In order for evidence of a person’s conduct to be admissible as habit evidence, the evidence must be sufficiently specific.

Question 31

When is evidence of a final conviction admissible

Answer 31

Evidence of a final judgment of conviction is not excluded as hearsay if the conviction was for a crime punishable by death or imprisonment for more than one year and the evidence is entered to prove any fact essential to sustain a conviction

Question 32

Statements during settlement negotiations to impeach

Answer 32

Statements made during settlement negotiations re inadmissible to prove or disprove the validity or amount of a disputed claim

BUT they may be admitted for other purposes, such as to prove bias or prejudice

Question 33

What witnesses cannot be excluded

Answer 33

• parties or their direct representatives
• persons whose presence is essential to a party’s presentation of its case (e.g., expert witnesses) and
• persons authorized by statute to be present

Question 34

When must witnesses be excluded from the courtroom?

Answer 34

Upon a party’s request, the court must exclude witnesses from the courtroom so they cannot hear or be influenced by other witness testimony

subejct to exceptions

Question 35

What if cross-examination is going beyond the scope of direct?

Answer 35

Cross examination is generally limited to the scope of direct and matters impacting the witness’s credibility, but a court has broad discretion to allow questions that go beyond that scope

Question 36

Then existing state of mind exception to hearsay

Answer 36

Hearsay exception for statements of declarant’s then existing:
- state of mind (e.g., motive, intent, or plan)
- emotional, sensory, or physical condition (e.g., mental state or bodily health)

BUT NOT memory of past events unless related to the validity or terms of declarant’s will

Question 37

Business record hearsay exception

Answer 37

Business record admissible if it was
- made at or near time of recorded event
- made by or based on information from someone with personal knowledge and
- made and kept as a regular practice in the course of regularly conducted business activities

Question 38

What kind of attorney client communications are not privileged

Answer 38

The attorney client privilege only protects confidential communications that are made for the purpose of obtaining or providing legal advice

as a result, communications that are made for some other purpose (such as mere business advice or opinions) are not protected by this privilege