Evidence Rules

Question 1

Logical Relevance

Answer 1

Evidence MUST be relevant in order to be admissible. Evidence is relevant if it is. both:

1) Probative; AND
(a) Evidence is probative if it has any tendency to make a fact more or less probable than it would be without the evidence.

2) Material
(a) Evidence is material if it is a fact of consequence in determining the outcome of the action.

Question 2

Legal Relevance (CUMWUN)

Answer 2

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

1) Confusing the issues
2) Unfair Prejudice
3) Misleading the jury
4) Wasting time
5) Undue delay; or
6) Needlessly presenting cumulative evidence.

Question 3

Subsequent Remedial Measures

Answer 3

Subsequent remedial measures are actions that are taken after an injury or harm that make future injury less likely. Subsequent remedial measures are NOT admissible to prove:

1) negligence;
2) defective product or design; or
3) culpable conduct

Question 4

Compromise Offers or Settlement Negotiations

Answer 4

Offers, conduct, or statements made during negotiations to settle or compromise are NOT admissible;

1) to prove a disputed claim;
2) to prove an amount; OR
3) For impeachment purposes

Question 5

Offers to Pay Medical Expenses

Answer 5

Offers to pay medical expenses are NOT admissible to prove liability for the plaintiff’s injuries. However, any conduct or statements accompanying the offer to pay are admissible.

Question 6

Character Evidence

Answer 6

Character evidence is evidence of a person’s character or a person’s specific character trait. There are three forms of character evidence that can be presented:

1) Reputation in the community
2) Opinion Testimony
3) Specific Instances

Question 7

Character Evidence in Civil Cases

Answer 7

In civil cases, character evidence is NOT admissible for propensity purposes. (i.e., evidence of someone’s character cannot be introduced to show that they have the propensity to act in accordance with the alleged character trait, UNLESS:

1) character is an essential element of a claim or denese
(a) If character is an essential element of a claim or defense, it may be shown by reputation, opinion testimony, or specific instances.

2) The case is based on the defendant’s sexual misconduct (allowed to introduce evidence of past sexual assault/child molestation by the D).

Question 8

Character Evidence in Criminal Cases

Answer 8

In criminal cases, the prosecution CANNOT introduce evidence of a defendant’s bad character to prove that the defendant has the propensity to have committed the crime in question. However, the defendant may “open the door” and present positive character evidence as long as it is:
1) Pertinent to the crime charged; AND

2) Through reputation or opinion testimony (NOT specific instances of conduct).

If the defendant opens the door by presenting evidence of positive character, the prosecution may then introduce negative character evidence to rebut the defendant in two different ways:

1) the prosecution can call its own character witness; or
a) the witness is limited to reputation or opinion testimony (NOT specific instances of conduct)

2) The prosecution can cross-examine the defendant’s character witness.
b) on cross-examination, the prosecution can introduce evidence of specific instances as long as it relates to the same character trait in question.

Question 9

Evidence of the Victim’s Character in Criminal Cases.

Answer 9

A criminal defendant may introduce reputation or opinion testimony of the victim’s character if its relevant to one of the defenses asserted. If the defendant does so, the prosecution may rebut by presenting evidence that:

1) The defendant possesses the same character trait; OR
2) The victim possesses a relevant positive character trait.

Question 10

Specific Instances of Conduct to Show Propensity

Answer 10

Specific instances of conduct are generally NOT admissible to show propensity, BUT are admissible to show (MIMIC)

1) Motive or opportunity
2) Intent
3) Absence of Mistake
4) Identity; or
5) Common plan or preparation

Specific instances of conduct are admissible for MIMIC purposes if:

1) There is sufficient evidence to support a jury finding that the defendant committed the prior act; AND
2) The probative value of the specific instances of conduct is NOT substantially outweighed by the danger of unfair prejudice to the jury.

Question 11

Hearsay

Answer 11

Hearsay is an out-of-court statement that is offered to prove the truth of the matter asserted. Hearsay is NOT admissible UNLESS it falls under a valid exception.

A statement includes a person’s oral assertions, written assertions, or non-verbal assertions.

Question 12

Non-Hearsay (I didn’t offer it for truth so I LIED)

Answer 12

If an out-of-court statement is NOT offered to prove the truth of the matter asserted, the statement is NOT hearsay and is admissible. Common examples of statements that are NOT offered to prove the truth of the matter (thus are admissible) include:

1) Impeachment purposes

2) Legally operative statements
3) Independent legal significance (goes with legally operative statements)
4) Effect on the listener
5) Declarant’s state of mind

Question 13

FRE deems these categories as admissible, non-hearsay (I’m excluded if I CANT Poop)

Answer 13

1) prior statements of identification
2) prior inconsistent statements
3) prior consistent statements
4) opposing party statements

Question 14

Prior inconsistent statements

Answer 14

Prior inconsistent statements are admissible for substantive purposes if:

1) the declarant is testifying at trial and is subject to cross-examination;
2) the statements previously were made under penalty of perjury; and
3) the prior statements are inconsistent with present testimony being given at trial.

If the statements were NOT previously made under the penalty of perjury, they can only be offered for impeachment purposes (not substantive purposes).

Question 15

Prior consistent statements

Answer 15

are admissible to rebut a claim that the declarant is fabricating or has a recent motive to fabricate the statement in court if:

a) the declarant is testifying at trial and is subject to cross-examination; and
b) the prior consistent statement was made before the declarant had a motive to fabricate the statement.

Question 16

Prior statements of ID

Answer 16

prior out-of-court identifications in lineups, photo arrays, etc. are admissible for substantive purposes if the declarant is testifying at trial and is subject to cross examination.

Question 17

Admissions by a party opponent

Answer 17

are admissible as non-hearsay.

Adoptive Admissions. Silence is considered an adoptive admission if the party heard and understood the statement and remained silent where a reasonable person would have died in the statement.

Vicarious Admissions. Statements made by an authorized spokesperson, an agent within the scope of and during the agency relationship, or co-conspirators during and in furtherance of the conspiracy are considered vicarious admissions and are imputed on the party opponent.

Question 18

Hearsay Exceptions – Declarant Availability is Immaterial (Evidence Sucks But Present Me Please)

Answer 18

Excited Utterance
State of Mind
Business Records
Present Sense Impression
Medical Diagnosis or Treatment
Public Records

Question 19

Present Sense Impression

Answer 19

A present sense impression is admissible as a valid exception to the hearsay rule. A present sense impression is a statement made by the declarant in which she describes an event as it takes place or immediately thereafter.

Question 20

Excited Utterance

Answer 20

An excited utterance is admissible as a valid exception to the hearsay rule. An excited utterance is a statement that concerns a startling event, made by the declarant when the the declarant is still under stress from the startling event.

Question 21

State of Mind

Answer 21

1) a statement of the declarant’s then-existing state of mind OR emotional, sensory, or physical condition is admissible to prove the declarant’s state of mind or the declarant’s conduct.
2) a statement regarding memory, a past belief, or a past state of mind to prove the fact remembered or believed is NOT admissible unless it relates to the validity or terms of the declarant’s will.

Question 22

Medical Diagnosis or Treatment

Answer 22

A statement of a person’s past or present condition is admissible so long as it is made for the purpose of medical diagnosis or treatment. The statement is admissible even if it is made:

1) to nurses, family members, or any other non-medical individuals; or
2) to enable a physician to testify at trial (as long as the statement is made for medical diagnosis or treatment, it is admissible)

Question 23

Recorded Recollection

Answer 23

The record may be read into evidence if the witness cannot recall events or information provided that:

1) the record is about a matter the witness once had personal knowledge
2) the record was made or adopted by the witness when the matter was fresh in the witness’s mind
3) the record accurately reflects the witness’s personal knowledge; and
4) the witness can no longer recall the events or information well enough to testify, even after reviewing the writing while on the stand.

Under recorded recollection, the record may be read into evidence; however ONLY opposing counsel can decide to enter it as an exhibit.

Present Recollection Refreshed is an evidentiary rule that allows a witness to glance at almost any item (usually a writing) to refresh her memory while on the stand.

Recorded Recollection involves a writing made or adopted by the witness that accurately reflects their personal knowledge.

Question 24

Business Records

Answer 24

A business record is admissible as a valid exception to the hearsay rule if the record is:

1) Kept in course of regularly conducted business; and
2) made by a person with knowledge of the matter at or near the time of the matter’s occurrence (ex. secretary logs)

A business record is NOT admissible if the opponent can show that the source or preparation of the record lacks trustworthiness.

Question 25

6th Amendment Confrontation Clause

Answer 25

a) The Confrontation Clause guarantees a person accused of a crime the right to confront witnesses against him in a criminal action (i.e., the right to be present at trial and right to cross-examine the prosecution’s witness).
b) The use of an out-of-court statement (even if it falls under a valid hearsay exception or testimonial privilege) violates the defendant’s constitutional rights under the Confrontation Clause if:

1) the proceeding is a criminal action (not civil)
2) the statement is testimonial;
(a) A statement is testimonial if the declarant would reasonably expect that the statement would be used for prosecution purposes.
3) The declarant is unavailable to be cross examined at trial; AND
4) The defendant did NOT have an opportunity to cross-examine the declarant at a proceeding prior to trial.

c) A common issue is whether statements made to police are testimonial. A statement made to police whose primary purpose is to collect evidence to be used in a future criminal prosecution is testimonial. A statement made to police whose primary purpose is to provide assistance in an ongoing emergency is NOT testimonial.

Question 26

Hearsay Exceptions – Declarant Unavailability is Required

A declarant is deemed to be unavailable as a witness if the declarant:

Answer 26

1) is exempted from testifying because the court rules that a privilege applies;
2) refuses to testify despite a court order to do so;
3) testifies to not remembering the subject matter
4) cannot be present or testify because of a death or then-existing infirmity, physical illness, or mental illness; OR
5) Is absent and the statement’s proponent has not been able, by process or other reasonable means to procure the declarant’s attendance.

Question 27

The following four hearsay exceptions apply only if the declarant is deemed unavailable:

Answer 27

1) former testimony
2) dying declarations
3) statements against interest; and
4) forfeiture by wrongdoing.

Question 28

What is considered former testimony?

Answer 28

Former testimony is admissible if:

1) the declarant is unavailable,
2) the statement was prior testimony given at a trial hearing or deposition; and
3) the opposing party had an opportunity and similar motive to develop the testimony through cross or direct examination.

Prior testimony at a grand jury does NOT qualify as former testimony.

Question 29

Impeachment (Witness)

Answer 29

• Any witness can be impeached by evidence that they have been convicted of a crime that involved dishonesty or false statement, regardless of the punishment imposed or the prejudicial effect of the evidence.
• Any conviction of a crime not involving fraud or dishonesty is admissible to impeach only if the crime is punishable by death or imprisonment for more than one year.
• Because a witness may be influenced by his relationship to a party, his interest in testifying, or his interest in the outcome of the case, a witness’s bias or interest is always relevant to the credibility of his testimony.

Question 30

Witness Testimony

Answer 30

A lay witness is generally not permitted to testify as to his opinion, except with respect to common-sense impressions. To be admissible, the opinion must be i) rationally based on the witness’s perception, and ii) helpful to a clear understanding of the witness’s testimony or a fact in issue.

An expert witness may testify as to his opinion, provided: i) the witness is qualified as an expert by knowledge, skill, experience, training, or education, ii) the testimony is based on sufficient facts or data; iii) the testimony is the product of reliable principles and methods, and iv) the witness applied the principles and methods reliably to the facts of the case.