Evidence (visuals)

Question 1

Explain Hearsay, and when it is admissible/inadmissible (Chart)

Answer 1

Question 2

Explain collateral matter rule

Answer 2

prohibits the use of extrinsic evidence to impeach a witness with a prior inconsistent statement that pertains to a collateral matter—i.e., a matter that is irrelevant to the outcome of

Question 3

Explain attorney client privilege

Answer 3

Question 4

Explain former testimony as it applies to hearsay

Answer 4

Question 5

Explain the admissibility of sexual behavior, and the rape shield rule

Answer 5

Question 6

Explain when handwriting is admissible, and when not.

Answer 6

The authenticity of a handwritten document may be disputed by allowing (1) a lay witness with personal knowledge of the authentic handwriting (acquired outside of the current litigation) to give opinion testimony on the disputed handwriting or (2) an expert witness or the trier of fact to compare the authenticated and disputed handwriting.

Question 7

Explain when inadmissible evidence becomes admissible (non-hearsay)

Answer 7

When inadmissible evidence (e.g., nonrelevant evidence) is improperly admitted against a party, the court may permit that party to introduce additional inadmissible evidence (e.g., hearsay) for the purpose of rebuttal. This is known as a curative admission and is meant to remedy the prejudicial effect caused by the previously admitted evidence.

Here, the testimony that the director was once accused of battery was improper because it is not relevant to whether he breached his duty of care to the minority shareholders.* The director then offered testimony from a witness who heard the alleged battery victim recant his accusation. Although that evidence is hearsay—and also not relevant to the lawsuit—it was necessary to remove the unfair prejudice caused by the initial improper evidence (Choices C & D). Therefore, the court did not err in overruling the shareholders’ objection.

*Evidence of the battery accusation may have also been an improper attempt to impeach the director under Federal Rule of Evidence 609—assuming the director had testified. That rule requires a conviction for a felony or crime of dishonesty (not seen here).

(Choice B) A court may allow additional inadmissible evidence to rebut previously admitted inadmissible evidence only when it is necessary to remove unfair prejudice caused by the previously admitted evidence. This means that curative admission is not available when the previously admitted evidence did not unfairly prejudice the party against whom it was admitted.

Educational objective:

Under the doctrine of curative admission, 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 previously admitted evidence.

Question 8

Explain Non-hearsay by an opposing party’s statement

Answer 8

Question 9

Explain how a witness may have their recollection refreshed by other documents/evidence

Answer 9

Statements made by and offered against an opposing party are nonhearsay and are admissible substantively.

Question 10

Explain when Criminal D’s previous bad act or crimes can be used and how

Answer 10

Educational objective:
Evidence that a criminal defendant previously committed a similar crime or bad act is inadmissible character evidence if it is offered to show the defendant’s propensity to commit the charged crime. But that evidence may be admissible for other relevant, noncharacter purposes—e.g., proving absence of mistake.

Ex::However, evidence of a prior crime or wrongful act is admissible for other relevant, noncharacter purposes (i.e., MIMIC). This includes proving the perpetrator’s identity by showing that the prior crimes or bad acts were committed in a manner that is similar in nature, location, and/or time to the charged crime. Therefore, testimony that the man had streaked through another local gym cheering for the same football team the day before is admissible to show that the man is the person who streaked through the gym on May 5.

Question 11

What is non-hearsay

Answer 11

statement offered against a party-opponent is nonhearsay if it was (1) made or adopted by the party-opponent, (2) made by a person the party-opponent authorized to make such a statement, (3) made by the party-opponent’s agent or employee about a matter within the scope of that relationship and during the relationship, or (4) made by the party-opponent’s coconspirator during and in furtherance of the conspiracy.

Question 12

Explain the rule of reading in learned treatises

Answer 12

Statements in a learned treatise, periodical, or pamphlet are excepted from hearsay and can be read into evidence if (1) the statements are called to the attention of or relied on by an expert witness during examination and (2) the publication is established as a reliable authority by a party’s expert or judicial notice.

Question 13

Explain the best evidence rule

Answer 13

The court determines whether a party has fulfilled the factual conditions to admit other evidence to prove the content of a document. But in a jury trial, the jury determines any issue of whether (1) an asserted document ever existed, (2) another document is the original, or (3) other evidence of content accurately reflects the content.

Question 14

Conceptualize the rules for cross examination of a criminal defendant

Answer 14

Educational objective:
A criminal defendant who testifies at a preliminary-questions hearing can be cross-examined about issues related to the admissibility of the contested evidence and the defendant’s credibility—but not about other issues in the case.

LEARN WHYNEXT QUESTION

Question 15

Explain when one can use a witness’s prior inconsistent statement for impeachment purpose

Answer 15

Question 16

Explain when D can open the door as to their character, and the limits to this (more limited than you think)

Answer 16

Under FRE 404, a criminal defendant may offer evidence of his/her good character when that trait is pertinent to the charged crime. For example, evidence of a defendant’s peacefulness is admissible when the defendant is charged with a violent crime. But truthfulness is not pertinent to violent crimes like murder, so evidence of this trait should not be admitted on this basis (Choice C).

However, evidence of a criminal defendant’s truthfulness also may be admissible if the defendant testifies at trial—even when that trait is not pertinent to the charged crime. FRE 608 allows the admission of reputation or opinion testimony to prove the witness’s truthful character after it has been attacked. But here, there is no indication that the defendant’s character for truthfulness had been attacked, so testimony regarding that character remains inadmissible.

(Choice B) A witness’s character for truthfulness may be supported by reputation or opinion testimony.

(Choice D) Testimony that the defendant is generally a truthful person is not directly relevant to his assertion that an intruder murdered his wife—since it is possible that he is lying on this specific occasion.

Educational objective:
A criminal defendant may offer evidence of his/her (1) good character if that trait is pertinent to the crime charged and (2) truthful character if it was attacked after the defendant testified at trial.

Question 17

Explain the rule against offering to pay medical expenses

Answer 17

Educational objective:
Evidence that a party has paid or offered to pay medical, hospital, or similar expenses resulting from an injury is inadmissible to prove liability for that injury.

Question 18

group membership to impeach?

Answer 18

A party may impeach a witness’s credibility by offering evidence that the witness is biased and therefore had a motive to lie while testifying. One method of establishing bias is showing that the witness is affiliated with the opposing party outside the context of the litigation. This can be established through either:

• intrinsic evidence – by questioning the witness about the affiliation or
• extrinsic evidence – by introducing the affiliation using any source other than the witness’s testimony.

Here, the plaintiff’s attorney asked the witness if she is a member of the defendant-church. Since that affiliation is evidence of the witness’s possible bias in favor of the church, the plaintiff’s attorney’s question is proper as impeachment evidence.

Question 19

When can liability insurance be used as evidence (rare)

Answer 19

Liability insurance

(FRE 411)

• Evidence that person was or was not insured against liability is inadmissible to prove person acted negligently or wrongfully
• Evidence of liability insurance is admissible for nonsubstantive purpose—eg:
  
  • to impeach witness with evidence of self-interest, bias, or prejudice
  • to prove agency, ownership, or control

FRE = Federal Rule of Evidence.

Under Federal Rule of Evidence 411, evidence of liability insurance (or the lack thereof) is inadmissible to prove negligence or wrongdoing. This public-policy rule helps ensure that the jury will not infer fault based on the existence or lack of coverage and will not base its verdict on the defendant’s or insurer’s ability to pay (Choice D). However, such evidence is admissible for other purposes, such as:

• impeaching a witness with evidence of self-interest, bias, or prejudice or
• proving agency, ownership, or control of the insured item.

Here, evidence of the existence of the fire insurance policy is admissible to establish that the building owner’s testimony may be biased as to the cause of the fire. That is because the owner stands to recover $750,000 under the policy for a fire stemming from faulty wiring and he could not go on record stating any other opinion (e.g., that the fire was caused by the chef’s negligence) if he wished to collect on the policy.

Question 20

Under the MIMIC rule, what is actually meant by evidence of a common scheme (subtle distinction)

Answer 20

The prosecution cannot introduce evidence that a criminal defendant previously committed similar crimes or bad acts to prove that the defendant had the propensity to commit the charged crime. That is because such evidence poses a danger that the jury may convict the defendant for having a bad character—not for committing the charged crime. However, such evidence is admissible if it is offered for a relevant, noncharacter purpose (i.e., MIMIC). This includes establishing a pattern of operation or common scheme.

Here, the circumstances of the man’s prior act are too unrelated to the current charge to show a pattern of operation or common scheme. While both involved claims of self-defense, they arose in different contexts—a threatened robbery and a barroom dispute (Choice C). Therefore, the bartender’s testimony about the man’s prior act is improper character evidence and is not admissible.

Educational objective:
Evidence of a criminal defendant’s prior crimes or bad acts is inadmissible if it is offered to show the defendant’s propensity to commit the charged crime. But it may be admissible for noncharacter purposes (i.e., MIMIC).

Question 21

Review this good example of hearsay vs. non-hearsay. Truth of the matter asserted is key

A plaintiff who had been injured in a car accident with a truck brought an action against the employer of the truck driver for negligent hiring. Prior to trial, the employer filed a motion for summary judgment arguing that it was entitled to judgment as a matter of law. In her response, the plaintiff submitted an affidavit by a former secretary of the employer stating that the secretary overheard the truck driver tell the employer that he had a history of accidents while interviewing for the job.

Can the court properly consider the driver’s statement in the affidavit in ruling on the employer’s summary-judgment motion?

Answer 21

The rule against hearsay bars admission of out-of-court statements offered for the truth of the matter asserted unless an exclusion or exception applies. However, a statement is not hearsay if offered for a different purpose. For example, a statement offered to show that a party had notice of a relevant fact or condition is not hearsay.

Here, the secretary’s affidavit stated that the secretary heard the driver disclose a history of accidents to the employer. That statement is hearsay if offered for the truth of the matter asserted—because no exclusion or exception applies. But it is not hearsay if offered to show that the employer had notice of the driver’s history and may have been negligent in hiring him (Choice B). Therefore, the court may consider the driver’s statement.

Educational objective:
An out-of-court statement is not hearsay if offered for a purpose other than to prove the truth of the matter asserted—e.g., to show that a party had notice of a relevant fact or condition.

Question 22

Explain how impeachment works with “hearsay witnesses” (Declarants)

Answer 22

Impeaching witness v. hearsay declarant

Method

Witness

Declarant

Character for truthfulness

Specific instance of conduct involving bad act or criminal conviction of felony/crime of dishonesty

Reputation or opinion testimony on truthfulness

Self-interest/bias

Motive to lie or partiality to party

Specific contradiction

Evidence directly contradicting testimony on material issue

Inconsistent statement

Prior statement admissible if witness can explain/deny & be questioned by opposing party (or if justice requires)

Admissible regardless of when statement occurred & whether declarant can explain/deny

Hearsay is a statement made by the declarant at a time other than while testifying at the current trial or hearing (i.e., an out-of-court statement) that is offered to prove the truth of the matter asserted therein. When a hearsay statement is admitted (as seen here), the hearsay declarant may be impeached as if the declarant had testified at trial. Allowable methods of impeachment include, but are not limited to:

evidence that the declarant had a motive to lie or was partial to a party and

reputation or opinion testimony regarding the declarant’s character for truthfulness.

Here, the witness’s deposition testimony was admitted under the former testimony hearsay exception, so the witness may be impeached as if he had testified at trial. Evidence that the witness was employed by the defendant is admissible to show the witness’s potential bias in favor of (or partiality to) the defendant (Choices B & D). And evidence that the witness has a reputation in the community for being untruthful is admissible to show that the witness is generally untruthful (Choice C). Therefore, the court should admit the friend’s entire testimony.

Educational objective:
When a hearsay statement is admitted, the hearsay declarant may be impeached as if the declarant had testified at trial—e.g., by offering evidence that the declarant was biased in favor of a party or has a reputation for untruthfulness.