Evidence: What Types of Evidence Are Admissible?

Question 1

Logical Relevancy

Answer 1

Rule 1: All irrelevant evidence is inadmissible.

Rule 2: All relevant evidence is admissible, absent an “exclusionary rule,” such as Rules 403-412, the hearsay rules, the privilege rules, etc.

The relevancy rules are construed liberally in favor of admitting evidence.

Definition: Relevant evidence is evidence that has any tendency to prove or disprove a material fact; thus, relevancy has two components

1) probative value: the evidence has any tendency to prove or disprove
2) material fact: a fact of consequence to a claim or defense (as determined by substantive law)

Question 2

Legal Relevancy: FRE 403

Answer 2

Otherwise relevant evidence is inadmissible if its probative value is substantially outweighed by unfair prejudice, time concerns, or the potential that it is misleading or might confuse the jury (but not unfair surprise).

This is a fact-sensitive determination made by the judge.

Evidence is “unfairly prejudicial” if it invites the jury to make a decision on an improper ground.

Question 3

Legal Relevancy: FRE rule 404-406: Character evidence in civil case

Answer 3

Rule: Character evidence is inadmissible in civil cases, except in two instances:

(1) If a person’s character is an element of the claim or defense, that person’s character may be proved by evidence of reputation, opinion, or specific acts
(2) Habit evidence (including business routine) as to a party’s semi-automatic, instinctive response to a particular activity; the court may admit evidence of habit regardless of whether it is corroborated.

Question 4

Legal Relevancy: FRE 407: Subsequent Remedial Measures and Similar Happenings Evidence

Answer 4

Subsequent Remedial Measures: Evidence that the defendant made repairs or changed policies, practices, designs, or personnel after an accident is not admissible to prove that the defendant is culpable, that a product was dangerous, or that a warning or instruction was needed.

Such evidence is admissible for other purposes, however, including to prove ownership or control of property (if disputed), to prove that a safer product was feasible (if controverted), or to prove spoliation.

Evidence of subsequent repairs is also admissible if it was performed by someone other than the defendant.

Similar Happenings Evidence: Evidence that the plaintiff has been involved in prior accidents or claims is generally inadmissible, except to prove fraudulent claims or aggravation of prior injuries.

By contrast, evidence of prior accidents or claims (if substantially similar to plaintiff’s accident or claim) is generally admissible against the defendant to prove:

(i) the defendant had notice of an unsafe or illegal condition, event, or product;
(ii) the condition, event, or product was unsafe or illegal;
(iii) a safer design was feasible (if controverted by defendant); or
(iv) causation in a complex case (e.g., food poisoning). Evidence of an absence of prior accidents (to prove the defendant’s property or product was safe) is rarely admissible.

Question 5

Legal Relevancy: FRE 408 and 410

Answer 5

Rule: The following evidence is inadmissible to prove liability, guilt, the amount of a civil claim, or to impeach by prior inconsistent statement or contradiction:

(1) offers to compromise (or acceptances of such offers) in civil cases (including conduct and statements made during settlement negotiations)

for this rule to apply, there must be a dispute as to fault or the amount of the claim at the time of the offer

(2) compromises (i.e., settlements)

(3) withdrawn guilty pleas (including statements made to prosecuting attorneys during the plea bargaining process), and
o unwithdrawn guilty pleas are admissible (subject to the hearsay and impeachment rules)

(4) no contest pleas.

Exceptions: Such evidence is admissible for other purposes, such as to prove bias (e.g., that a witness for the plaintiff has settled her claim with the plaintiff) or to negate a contention of undue delay by an insurer.

Question 6

Legal Relevancy: FRE rule 404-406: Criminal Case (Prosecutor’s Case-in-Chief)

Answer 6

Rule:

Although character evidence offered by the prosecution in its case-in-chief is not admissible to show the accused acted in conformity with his character or to imply that the accused has a bad character, it is admissible if it is independently relevant.

evidence of a specific crime or other bad act (even if no conviction) of the accused is admissible to prove

motive, 
knowledge, 
intent,
absence of mistake, 
lack of accident,
identity crime, 
opportunity, or 
general scheme or plan.

Such “specific bad act” evidence is not admissible if the risk of unfair prejudice substantially outweighs its probative value.

Question 7

Legal Relevancy: FRE 409 and 411

Answer 7

Rule: Evidence of offers to pay another’s medical expenses or the actual payment thereof (but not statements of fault made in connection therewith—compare FRE 408) is inadmissible.

Rule: Evidence that a person has or does not have liability insurance is inadmissible to prove fault or ability to pay a judgment, but is admissible to prove ownership (e.g., only owners insure property) or bias of a witness (e.g., the witness works for defendant’s insurer) or motive (e.g., the purchase of fire insurance before an alleged arson).

Question 8

Legal Relevancy:

Answer 8

Rule: In sexual assault cases, opinion and reputation evidence of the victim’s character (e.g., promiscuity) is inadmissible.

Specific instances of such character are admissible to prove that the origin of semen, pregnancy, or physical injuries is someone other than the defendant. Specific instances of sex between the defendant and the victim also are admissible to prove consent. These are two very narrow exceptions, and both require pretrial notice before they can be used.

Rule: In both civil and criminal cases based on sexual assault, evidence that the accused (or defendant in a civil case) has sexually assaulted others (even if not arrested or convicted) is admissible to prove that the accused is guilty.

Question 9

Privileges generally

Answer 9

Relevant evidence is inadmissible at trial and undiscoverable before trial if it is protected by an evidentiary privilege.

The privilege rules are construed narrowly because they exclude otherwise relevant evidence.

For federal questions (i.e., all federal criminal cases and civil cases based on federal question jurisdiction), federal courts use federal common law privileges, namely:

1. attorney-client privilege
2. psychotherapist-patient privilege
3. clergy-communicant privilege
4. spousal privileges

Question 10

Attorney-client privilege

Answer 10

Rule: Confidential communications between an attorney (and her representatives, such as paralegals, clerks, investigators, consulting experts, etc.) and a client (and his representatives, such as interpreters, parents of small children, etc.) for the purpose of seeking legal advice is protected from disclosure during discovery and at trial.

The privilege does not apply if non-essential third parties (e.g., bystanders, friends, witnesses, testifying experts) are involved in or overhear the communications. An eavesdropper will not destroy the privilege if the attorney and client took reasonable steps to preserve confidentiality.

As a general rule, the privilege applies to communications by corporate employees (regardless of their position) when the communications concern matters within the scope of the employee’s corporate duties and the employee is aware that the information is being furnished to enable the attorney to provide legal advice to the corporation.

The privilege belongs to the client, and the client may waive it by disclosing a significant part of the confidential communication to an unprivileged third party.

An inadvertent disclosure does not constitute a waiver if the disclosing party (a) had taken reasonable steps to prevent the disclosure and (b) after discovering the disclosure, took reasonable steps to rectify the error.

The privilege may not be used to shield preexisting documents or the facts themselves.

If a client brings documents from her business to the lawyer’s office to obtain legal advice about them, the discussion between the lawyer and client about the documents is privileged, but the documents themselves are not. Moreover, if the client discusses the facts of a legal matter with her lawyer, the discussion about the facts is privileged, but the facts themselves are not.

The privilege survives the client and the representation.

Question 11

Attorney-client privilege exceptions

Answer 11

There are several exceptions to the privilege, including:

(1) the client sought the communication to commit an ongoing or future crime or fraud (regardless of the lawyer’s knowledge)
(2) communications with joint clients (but such communications are still privileged as to outsiders)
(3) suits between the attorney and client, and suits, disciplinary actions, or crimes arising out of the representation
(4) the communications were with a now-deceased client about the disposal of the client’s estate
(5) the client has placed the communication in issue (e.g., using the defense of advice of counsel).

The attorney-client privilege does not cover information “incident to the representation,” such as (1) the fact that an attorney-client relationship exists, (2) the client’s fee arrangement, (3) the amount paid to the lawyer by the client, or (4) the client’s identity (except in rare cases).

In addition, the privilege does not protect observations made by the lawyer if these same observations could have been made by third parties (e.g., lawyer notices scratch marks on client’s face).

Question 12

Phychotherapist-patient privilege

Answer 12

Rule: Confidential communication between a patient and a licensed psychiatrist, psychologist, or social worker for purposes of treatment is protected from disclosure during discovery and at trial.

The patient is the holder of the privilege and may waive it voluntarily or accidentally.

Exceptions: There are several exceptions to the privilege, including:

(a) the patient places her mental condition in issue (e.g., suit for intentional infliction of emotional distress);
(b) court-ordered exams; and
(c) civil commitment hearings.

In many states, if a patient makes specific threats regarding an identifiable third party, the psychotherapist must notify the third party of the threats; failure to do so will result in civil liability.

Question 13

Clergy-communicant privilege

Answer 13

Rule: Pursuant to the “clergy-communicant” privilege, a person may refuse to disclose, and prevent others from disclosing, communication to a member of the clergy for purposes of spiritual advise. The privilege applies to the clergy of any religion and prevents disclosure during discovery and at trial.

Question 14

Spousal privilege

Answer 14

Spousal Immunity:

a person may not be compelled by the prosecution to testify (about anything—communications, events, etc.) against her spouse (they must be validly married at the time of trial) in a criminal trial or before a grand jury. The privilege ends upon divorce.

The privilege belongs to the witness-spouse and thus she may choose to waive it and voluntarily testify against her spouse.

Confidential Marital Communications Privilege:

the privilege protects confidential communications (i.e., not overheard by anyone else) between spouses made during a valid marriage.

It does not apply to observations made by spouses during the marriage. This privilege applies to both civil and criminal trials and belongs to both spouses (i.e., either spouse may prevent disclosure).

If this privilege applies, it continues after the marriage ends by divorce or the death of a spouse. This privilege is waived if either spouse discloses a significant part of the confidential communication to a third party.

Exceptions:

The spousal privileges do not apply to crimes committed against the witness-spouse or children in their custody. They also do not apply where the spouses are accused of jointly committing a crime.

Question 15

Hearsay definition

Answer 15

Definition: Hearsay is:

1. An out of this court (i.e., all statements except those made by witnesses during the current trial while testifying before the trier of fact)
2. statement (i.e., oral, written, or non-verbal conduct intended as an assertion)
3. made by a human declarant (not animals or machines)
4. offered for the truth of the matter asserted.

A statement is “offered for the truth of the matter asserted” when it is offered to prove its contents (e.g., P offers X’s statement that “D’s light was red” to prove that D ran a red light). There are two categories of statements that are not offered for the truth of the matter asserted (and thus are not hearsay) one should know for the UBE:

Verbal Acts (i.e., Legally Operative Facts): A statement that gives rise to legal consequences when offered to show those legal consequences, such as offers, acceptances, contracts, deeds, warranties, wills, trusts, defamation, solicitation, conspiracy, fraud, bribery, and waivers.

Verbal Parts of Acts: A statement accompanying an ambiguous physical act, such as a statement of gift or a statement of permission.

Notice to or Effect on the Listener: Statements that put someone on notice (e.g., five minutes before P fell, I told D that the floor was wet) or that show the effect on the listener (e.g., the day before D killed V, I told D that V was “gunning for him” is admissible to prove that D thought he was acting in self-defense).

Question 16

Admissibility of Hearsay

Answer 16

Rules:

1. If a statement fits within the definition of hearsay, it is inadmissible, unless the proponent proves that it (1) qualifies as definitional non-hearsay (FRE 801(d)); or (2) qualifies for one of the many hearsay exceptions (FRE 803, 804, 807). In either case, the statement is admissible as substantive evidence.
2. If a statement is hearsay and does not qualify as definitional non-hearsay or for a hearsay exception, it may not be admitted as substantive evidence, but sometimes may be used for non-substantive purposes, such as impeaching a witness (FRE 613) or as a basis for an expert’s opinion (FRE 703).

Question 17

Hearsay: FRE 801(d)(1)

Answer 17

The following prior statements by a witness (who is in court testifying) are admissible:

prior inconsistent statements made at trials, hearings (including grand juries), and depositions under oath

prior consistent statements to refute a charge of recent fabrication (the prior statement must predate the event—e.g., a bribe—alleged to have caused the fabrication) or to rehabilitate the credibility of the witness when attacked on other non-character grounds, such as faulty memory or inconsistency (but not criminal convictions, prior acts of untruthfulness, or reputation or opinion testimony regarding the witness’s untruthfulness)

prior visual identifications (e.g., line-ups, show-ups, mug shots, preparing or identifying composite sketches) of persons (these statements may be offered by the person making the ID or anyone who witnessed it)

Question 18

Hearsay: FRE 801(d)(2)

Answer 18

Statements (including opinions and conclusions) made by a party that are offered against that party are admissible, including:

statements made by a party’s authorized spokesperson

statements made by a party’s agent or employee if the statement concerns a matter within the scope of the person’s agency or employment and is made during the course thereof

statements that a party hears and either expressly adopts or remains silent (silent adoption constitutes an admission only if an ordinary person would naturally refute or deny the statement which, because of Miranda, never occurs in response to statements by police during custodial interrogation)

statements of co-conspirators made in furtherance of (i.e., advances the conspiracy’s objectives) and during the course of the conspiracy

Question 19

Hearsay: FRE 803(1) and (2)

Answer 19

The following statements are admissible as exceptions to the hearsay rule regardless of the availability of the declarant:

Present Sense Impression: a statement describing or explaining an event or condition made while the declarant is perceiving it or immediately thereafter

Excited Utterance: a statement made while the declarant is under the stress of a startling event that relates to the event (e.g., “Oh my God! Bill’s car just ran over that child.”); this rule has a longer time period than present sense impression, but is probably limited to minutes in most cases

Question 20

Hearsay: FRE 803(3) and (4)

Answer 20

 The following statements are admissible as exceptions to the hearsay rule regardless of the availability of the declarant:
• State of Mind or Emotion.
o A statement of the declarant’s then-existing state of mind (such as motive, intent, or plan) or emotion, sensation, or mental feeling, but not a statement of memory or belief about past actions or events, unless it relates to the validity or terms of the declarant’s will.
• Physical Condition.
o A statement of the declarant’s then-existing bodily condition, pain, or symptoms (“My back hurts now”) regardless of the purpose for which such statement is made.
o A statement of the declarant’s medical history, past or present pain or symptoms, or the general cause of the pain or symptoms if made for purposes of medical diagnosis or treatment to a health-care provider (physician, nurse, EMT, testifying expert-physicians, etc.) or to a third party to pass on to a health-care provider.
 To be admissible, the statement must be relevant to diagnosis or treatment (“I was hit by a car” is relevant to diagnosis and treatment, but “the car ran a red light” or “the car was driven by Mike Jones” is not).

Question 21

Hearsay: FRE 803(5)

Answer 21

The following statements are admissible as exceptions to the hearsay rule:

A prior record (written, audio, or video) by the witness about a matter for which she once had personal knowledge, but now is unable to recall the matter well enough to testify fully and accurately, if such a record was reliably created (or adopted) by the witness when the matter was fresh in her memory

Even if all of the conditions of FRE 803(5) are satisfied, the record is not admissible as an exhibit; the witness may only read it out loud (or play it) to the jury. The opposing party, however, may admit the record into evidence

This hearsay exception is to be used if a document fails to refresh a witness’s recollection under FRE 612

Although this exception is contained in FRE 803 for which the availability of the declarant is generally irrelevant, FRE 803(5) requires the declarant to testify at trial

Question 22

Hearsay: FRE 803(6), (7), (8) and (10)

Answer 22

The following statements are admissible as exceptions to the hearsay rule regardless of the availability of the declarant:

Regularly made and maintained business, public, official, religious, medical, or commercial records; to be admissible, such records:

must be made in the regular course of the enterprise at or near the time the events contained in the document occurred; the information contained therein must have been provided by someone with a duty to the enterprise to report such information (i.e., an employee); and

all of these conditions must be established by the testimony of a custodian of records or another qualified witness or by certification

Such records are inadmissible if the opponent shows that the records lack trustworthiness or are unduly self-serving

Documents made in anticipation of litigation (e.g., accident reports) usually lack trustworthiness.

Police reports are not admissible against an accused in a criminal case.

The absence of such a record is admissible to prove that the record does not exist and that the event (which would have been recorded therein) did not occur.

Question 23

Hearsay: FRE 803(9) and (11)-(15)

Answer 23

The following statements are admissible as exceptions to the hearsay rule regardless of the availability of the declarant:

Vital Statistics. A record of birth, death, or marriage reported to a public office.

Records of Religious Organizations. A statement or certificate of birth, legitimacy, ancestry, baptism, marriage, divorce, death, etc. contained in a regularly kept record of a religious organization.

Family Records. A statement of fact about personal or family history contained in a family record, such as a Bible, genealogy, chart, engraving on a ring, inscription on a portrait, or engraving on an urn or burial marker.

Documents That Affect an Interest in Property. A publicly recorded document that purports to establish or affect an interest in property or a statement contained in a document that purports to establish or affect an interest in property if the matter stated was relevant to the document’s purpose

Question 24

Hearsay: FRE 803(16)

Answer 24

The following statements are admissible as exceptions to the hearsay rule regardless of the availability of the declarant:

A statement in a document that was prepared before January 1, 1998, and whose authenticity is established.

Such documents also qualify for authentication under FRE 901(8).

Question 25

Hearsay: FRE 803(17) and (18)

Answer 25

The following statements are admissible as exceptions to the hearsay rule regardless of the availability of the declarant:

Market quotations (e.g., stock prices in the Wall Street Journal), lists, directories, or other compilations that are generally relied on by the public or by persons in particular occupations

Learned treatises when used to question your own or an opponent’s expert if any expert testifies that the treatise is authoritative in the field or the judge takes judicial notice of its authoritative status

Relevant portions of the treatise may only be read to jury

Question 26

Hearsay: FRE 803(19)-(23)

Answer 26

The following statements are admissible as exceptions to the hearsay rule regardless of the availability of the declarant:

Reputation testimony concerning

personal or family history

the boundaries of land or historic events

a person’s character (e.g., this is the hearsay exception that corresponds to the character evidence rules)

Judgments

of previous felony convictions (e.g., for use in collateral estoppel); the judgment may be based on a trial or a guilty plea

the conviction must be for a crime punishable by death or imprisonment for more than a year; the actual sentence is irrelevant

judgments for felonies and misdemeanors are admissible to impeach a witness under FRE 609(a)(2)

involving personal or family history

involving historic events or boundaries of land

Question 27

Hearsay: FRE 804

Answer 27

The following statements are admissible as exceptions to the hearsay rule if the declarant is unavailable as a witness due to privilege, refusal to testify, lack of memory, death or infirmity, or lack of the witness’s attendance at trial due to no fault of the party seeking to use the testimony:

Former Testimony: former testimony (at a trial, hearing, or deposition) of the declarant offered against a party (or, in a civil case, a party’s predecessor in interest, such as the prior owner of real property) who had an opportunity and similar motive to fully examine the witness

Statements Against Interest: statements against the declarant’s pecuniary, property, or penal interests at the time they were made

to be admissible, the statement must be based on the declarant’s first-hand knowledge of the facts, not opinion or speculation

if the statement exculpates a criminal defendant, it is admissible only if there is corroboration of the declarant’s guilt

The following statements are admissible as exceptions to the hearsay rule if the declarant is unavailable as a witness due to privilege, refusal to testify, lack of memory, death or infirmity, or lack of the witness’s attendance at trial due to no fault of the party seeking to use the testimony:

Dying Declarations: in a prosecution for homicide or in a civil case, a statement by the declarant, while believing his death was imminent, about the cause or circumstances of his death

In a civil case, a dying declaration may be admitted into evidence even if the declarant survives, as long as (1) the declarant made the statement while believing her death was imminent, and (2) the declarant is unavailable at trial.

Statements of Pedigree: statements of personal or family history made by a member of the family or someone intimately associated with the family (e.g., longtime housekeeper)

Forfeiture By Wrongdoing: otherwise inadmissible hearsay statements of a declarant (now unavailable as a witness) when offered against a party who has engaged in wrongdoing that intentionally procured the declarant’s unavailability as a witness (e.g., declarant’s statement to the police is admissible against a party who killed the declarant to eliminate him as a witness)
o A criminal defendant also forfeits his Sixth Amendment right to confront witnesses by committing a wrongful act that was intended to keep a witness from testifying

Question 28

Hearsay: FRE 806

Answer 28

If a hearsay statement comes into evidence, the credibility of the declarant of the hearsay statement is put in issue and thus the declarant is subject to impeachment like any other witness and the foundation requirements for extrinsic evidence are waived.

Question 29

Hearsay: FRE 805

Answer 29

To be admissible, an exception must be provided for each layer of hearsay if the statement contains multiple layers of hearsay. In other words, both the outer hearsay statement and the inner hearsay statement must qualify for hearsay exceptions (or as definitional non-hearsay under FRE 801).

Question 30

Hearsay: FRE 807

Answer 30

If a hearsay statement does not fit within any of the enumerated exceptions it may fit within the catch-all exception if it:

has sufficient guarantees of trustworthiness after considering the totality of the circumstances under which it was made and any corroborating evidence; and

is more probative of the point for which it is offered than any other evidence the proponent can obtain through reasonable efforts.

The proponent must give timely (and detailed) notice of the intent to offer the statement.

Question 31

Hearsay and criminal prodcedure

Answer 31

The Supreme Court has held that a hearsay statement is inadmissible (as violating the Confrontation Clause) in a criminal case despite satisfying a hearsay exception if:

1. The statement is offered against the defendant;
2. The declarant is unavailable to testify;
3. The statement is “testimonial” in nature; and
4. The defendant had no opportunity to cross-examine the declarant about the statement prior to trial.

A statement qualifies as “testimonial” if the “primary purpose” of the conversation was to “create an out-of-court substitute for trial testimony,” such as prior testimony at a preliminary hearing, grand jury, or former trial.

The Supreme Court has found the following statements to be testimonial:

1. A statement made by a victim to the police shortly after a crime (when no emergency existed) where the purpose of the interrogation was to establish or prove the crime.
2. Affidavits, certificates, or reports summarizing the findings of a forensic analysis if offered for substantive purposes.

The following statements are NOT testimonial:

1. A statement made by a victim to a 911 emergency operator.
2. A statement made by a child abuse victim to a teacher.
3. A declaration against penal interest made by an accomplice that is admissible under FRE 803(b)(3).

Question 32

Authentication and Identification: writing- By extrinsic evidence

Answer 32

(1) By extrinsic evidence: There are several ways to authenticate a writing by extrinsic evidence:

testimony of a witness who saw the party sign or prepare the document

testimony of a fact witness sufficiently familiar with the handwriting (the familiarity cannot be gained for purposes of testifying)

comparison by a handwriting expert (who may acquire familiarity solely for testifying) or the fact-finder (who obviously has no prior familiarity with the handwriting)

testimony identifying distinctive characteristics of the document (e.g., letterhead)

testimony establishing the “reply doctrine” (e.g., A mails a letter to B offering to buy widgets. In reply, A receives a letter purportedly from B accepting the offer to buy widgets. B’s letter may be authenticated under the reply doctrine)

public documents (if retrieved from proper place of repository)

ancient documents (i.e., those more than 20 years old found in a place where they should be found)

Question 33

Authentication and Identification: Telephone calls and recordings

Answer 33

Incoming Calls and Tape Recordings: person answering phone or listening to recording recognizes voice; voice may have been previously heard in person, by phone, or on tape and may have been heard before or after the call (and solely for purposes of testifying).

For authentication purposes, the witness does not have to be absolutely certain of the caller’s identity.

Outgoing Calls: (a) the caller recognizes the voice on the other end (in the same manner as for incoming calls); (b) the caller locates the recipient’s telephone number in the directory and the person on the other end identifies himself; or (c) the caller locates the recipient’s telephone number in the directory and the conversation relates to the recipient’s business.

Question 34

Authentication and Identification: Photos and videos

Answer 34

Testimony from someone familiar with the scene or item portrayed in the photo/video that the photo/video is an accurate representation; testimony of the photographer is unnecessary.

Question 35

Authentication and Identification: real evidence

Answer 35

There are two ways to identify real evidence:

(1) by testimony as to identity (e.g., recognizing the serial number of a gun or a distinctive diamond ring); or
(2) establishing a chain-of-custody.

Question 36

Authentication and Identification: Demonstrative & illustrative evidence

Answer 36

Demonstrative evidence is not real evidence; it is a visual aid used to explain or illuminate real, documentary, or testimonial evidence.

Examples: charts, graphs, maps, spreadsheets, films, anatomical models.

To use such evidence, the proponent must show that the demonstrative evidence is (1) a substantially accurate representation of real, documentary, or testimonial evidence, and (2) useful to the jury in understanding such evidence.

Generally, demonstrative evidence does not go to the jury deliberation room.

A summary or chart may be used to prove the content of voluminous writings, recordings, or photographs that cannot be conveniently examined in court.

Question 37

Authentication and Identification: x-rays and surveillance

Answer 37

Testimony that the X-Ray equipment or camera is reliable and in good working order.

The same rule would apply to other equipment, such as a breathalyzer.

Question 38

Original writing rule

Answer 38

The original writing rule requires that certain types of evidence be proved by original documents (or recordings or photos). The rule applies in only two situations:

(1) the proponent is attempting to prove the contents of a document that evidences a written transaction (e.g., contracts, deeds, wills, judgments, divorce decrees); or
(2) a witness intends to testify about an event in which his knowledge was acquired solely from reading a writing, listening to a recording, or viewing a video or photo (e.g., X testifies that A bought a car from B; X’s sole knowledge comes from reading the bill of sale).

If the rule requires an original and the proponent cannot produce one, other evidence (e.g., drafts, testimony, etc.) is admissible only if the proponent proves that the original was lost or destroyed, the document is not obtainable by subpoena, the document is in the other party’s possession, the document relates to a collateral (i.e., minor) matter, or the other party admits the contents of the document.

There are no “degrees” of secondary evidence under the FRE; once the proponent shows the original is unavailable, a witness’s testimony about the document is just as admissible as a prior draft.

Under the FRE, an original includes carbon copies and photocopies (unless there is a genuine question about authenticity). In addition, certified copies of public records are admissible as originals.

If a party introduces only part of a writing or recording and other parts are necessary to put that part in the proper context, the opponent may force the offering party to introduce those other parts.