Final Exam

Question 1

Logical Relevance 401

Answer 1

Under FRE 401, evidence is relevant if
1) The evidence is offered to prove a fact that is of consequence at the trial, and
2) that evidence must have ANY tendency to make the fact that it is being used to prove more or less probable than it would be without the evidence.

Question 2

Legal Relevance 403

Answer 2

Relevant evidence may be excluded if its probative value is substantially outweighed by a danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, needlessly presenting cumulative evidence.

Question 3

Exclusions for Public Policy

Answer 3

Subsequent remedial measures
Settlement offers and negotiations
Offers to pay medical expenses
Plea offers/discussions
Liability insurance

Question 4

Character evidence: 3 major Qs

Answer 4

1) civil or Crim? 2) introduced for propensity or non propensity purposes 3) reputation/opinion testimony OR specific instance?

Question 5

Character evidence: Civil Cases general rule

Answer 5

Character evidence is NOT admissible for propensity purposes unless
1. Character is an essential element of the claim/defense; OR
Ex. Defamation, essential element to show that P’s character has been negatively affected
2. The case involves a claim for relief based on the defendant’s alleged sexual assault or child molestation.

Question 6

Character evidence: Criminal, Propensity purpose offered by defendant

Answer 6

Did D open the door? D can open the door when:
-Character pertinent to the crime charged
-Through rep / opinion testimony

Question 7

Character evidence: Criminal, Propensity from Prosecution

Answer 7

If D opens the door, Pro can REBUT by
1. Calling their own character wit (Character pertinent to the crime charged? Through rep / opinion testimony?)
OR
2. Cross examining D’s character witness (On cross, Pro CAN introduce specific instances of conduct)

Question 8

Character evidence: Criminal, Non Propensity from Prosecution

Answer 8

-Pro introducing for other purpose, MIMICK?
Motive
Intent
Absence of Mistake
Identity
Common scheme or plan.
Knowledge
-If offered for MIMICK purpose/any other purpose, Pro must show
1) Sufficient evidence to support jury finding that specific instance did indeed happen
2) Has to pass 403 balancing test

Question 9

Character evidence: Character of victim in Homicide case

Answer 9

Homicide case where D puts forward any evidence that victim was the first aggressor → D opens the door to Pro rebutting w/ victim’s peacefulness trait

Question 10

Rape Shield Statute

Answer 10

In a criminal rape case, character evidence of victim’s prior sexual behavior/predisposition is generally inadmissible UNLESS
1) Character evidence of V’s prior sexual conduct used to show that source or origin of semen recovered belonged to someone other than D
2) D’s consent defense: D can introduce evidence that D and victim had engaged in prior consensual sexual intercourse before alleged attack

Question 11

Character evidence: Character of victim in Civil case

Answer 11

To put forth the character of Victim’s prior sexual behavior in a civil case, evidence has to pass the reverse 403 balancing test.
Probative value of prior sexual conduct is so high that it substantially outweighs danger of harming victim or unfair prejudice to either party (very difficult to meet)

Question 12

Habit / routine practice

Answer 12

Evidence of a person’s habit or an organization’s routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice.

Question 13

Hearsay general rule

Answer 13

Hearsay is an out of court statement offered to prove the truth of the matter asserted.

Question 14

Out of court

Answer 14

any stmt made outside of current proceeding

Question 15

Statement

Answer 15

assertion made by a human being. Can be 1) a person’s oral or written assertion OR 2) nonverbal conduct, if the person intended it as an assertion.

Question 16

Offered to prove the truth of the matter asserted

Answer 16

1) what is the matter asserted / what did the declarant say
2) what is the party offering the evidence seeking to prove
3) is the party offering the evidence seeking to prove that the matter asserted is true.

Question 17

Non Hearsay: Effect on Listener

Answer 17

Statements that are being used to prove the effect that the making of the statement had on someone who heard it are not hearsay (because they aren’t being used to prove that what the declarant said is true).
Applies only when hearer’s state of mind is a fact of consequence

Question 18

Non Hearsay: Declarant’s state of mind

Answer 18

OOC statements offered to prove the state of mind of the person who made the out of court statement are often (but not always) non-hearsay.
This principle applies only when the speaker’s state of mind is a fact of consequence

Question 19

Non Hearsay: Impeachment by Prior Inconsistent Statement

Answer 19

When a witness’s prior inconsistent statement is used only to impeach the witness’s credibility, the statement is not being used to prove the facts contained in the statement.

Question 20

Non Hearsay: Independent legal significance

Answer 20

Evidence of an out of court statement is not hearsay when offered to prove that the making of the statement produced legal consequences.
This principle applies when the use of words affects legal rights and duties under the substantive law, e.g., an “offer” and “acceptance” creates a contract.

Question 21

Non Hearsay: Opposing Party Statements general rule

Answer 21

An opposing party’s statements offered against the opposing party are not hearsay and can be offered for their truth

Question 22

Non Hearsay Opposing Party Statement

Answer 22

The statement is offered against an opposing party and:
(A) was made by the party in an individual or representative capacity;

Question 23

Non Hearsay Adoptive Admission

Answer 23

The statement is offered against an opposing party and: (B) is one the party manifested that it adopted or believed to be true; (adoptive admission)
When silence is relied upon as proof of adoption, argue that person would under normal circumstances protest the statement if it was untrue

Question 24

Non Hearsay Authorized Admission

Answer 24

The statement is offered against an opposing party and:
(C) was made by a person whom the party authorized to make a statement on the subject; (authorized admission)
An authorized admission requires that the party against whom the statement is offered authorized the declarant to speak for the principal on the matter.

Question 25

Non Hearsay Agent/Employee Statement

Answer 25

The statement is offered against an opposing party and: (D)
Statement that was made by
1) An agent/employee of a party
2) About a matter within the scope of the agency or employment
3) While the agency/employment relationship was still in existence
Is admissible against the party/principal
(Respondeat superior: Employer liable for tort committed by employee acting in course and scope of their employment)

Question 26

Non Hearsay Co Conspirator Statement

Answer 26

The statement is offered against an opposing party and:(E) was made by the party’s coconspirator during and in furtherance of the conspiracy.
Statements Made
1. in the course (during) and
2. in furtherance
3. of a conspiracy
-The statements of conspirator are admissible against all other members of the conspiracy.
-To prove a conspiracy for purposes of this rule it’s sufficient to show that the parties were involved in a common venture.

Question 27

Non Hearsay: Declarant Witness Prior Inconsistent Statement

Answer 27

An out-of-court statement that is offered to prove the truth of the matter asserted is NOT hearsay if:
a. The declarant testifies and is subject to cross-examination about the prior statement;
b. The prior statement is inconsistent with the declarant’s testimony; AND
c. The prior statement was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition.

Question 28

Non Hearsay: Declarant Witness Prior Consistent Statement

Answer 28

An out-of-court statement that is offered to prove the truth of the matter asserted is NOT hearsay if:
a. The declarant testifies and is subject to cross-examination about the prior statement;
b. The prior statement is consistent with the declarant’s testimony; AND
c. The prior statement is offered:
1. To rebut an express or implied charge that the declarant recently fabricated the statement or acted from a recent improper influence or motive in so testifying; OR
2. To rehabilitate the declarant’s credibility as a witness when attacked on another ground.

Question 29

Non Hearsay: Declarant Witness Prior Statement of Identification

Answer 29

An out-of-court statement that is offered to prove the truth of the matter asserted is NOT hearsay if:
a. The declarant testifies and is subject to cross-examination about the prior statement; AND
b. The declarant identifies a person as someone the declarant perceived earlier.

Question 30

Hearsay Exceptions where Declarant Unavailability Is IRRELEVANT

Answer 30

PSI EST PBRR

PSI
1. Present Sense Impression

EST
2. Excited Utterance
3. Statement for Medical Diagnosis
4. Then Existing Mental, Emotional, or Physical condition

PBRr

5. Public Records
6. Business records
7. Recorded recollection

Question 31

Present Sense Impression

Answer 31

-Statement that describes or explains event/condition
-Made while or immediately after the declarant perceived it.
Ex. 911 call describing what is going on

Question 32

Excited Utterance

Answer 32

-Statement relating to
-A startling event or condition
-Made while the declarant was under the stress of excitement caused by it.

Question 33

Then-Existing Mental, Emotional, or Physical Condition

Answer 33

-A statement of the declarant’s then-existing state of mind (such as motive, intent, or plan)
-or emotional, sensory,
-or physical condition (such as mental feeling, pain, or bodily health),
-but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant’s will.

Question 34

Statement for Medical Diagnosis

Answer 34

A statement that:
-Is made for—and is reasonably pertinent to—medical diagnosis or treatment; and
-Describes medical history; or past or present symptoms or sensations; their inception; or their general cause.
-even if made to someone other than medical professional, could still come in

Question 35

Recorded Recollection

Answer 35

A record that:
-is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately;
-was made or adopted by the witness when the matter was fresh in the witness’s memory; and
-accurately reflects the witness’s knowledge (Witness must verify this on the stand)
-If admitted, the record may be read into evidence but may be admitted as an exhibit only if offered by an adverse party.

Question 36

Records of a Regularly Conducted Activity. (Business Records)

Answer 36

Business Records
[1]made w/ personal knowledge [2]regularly conducted activity of business [3]making was regular practice [4]by custodian/qual witness [5]no reason to mistrust

A record of an act, event, condition, opinion, or diagnosis if:
(A) the record was made at or near the time by — or from information transmitted by — someone with knowledge;
(B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit;
(C) making the record was a regular practice of that activity;
(D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification;

Question 37

Public Records

Answer 37

The exception authorizes three general types of reports:
i. Reports of “the activities of the office or agency”
ii. Reports of “matters observed while under a legal duty to report”
– The rule does not permit statements by law enforcement when offered in criminal case
iii. Reports of “factual findings resulting from a legally authorized investigation”
– But not admissible against ∆ in criminal case
-Can be Excluded if source of information nor other circumstances indicate a lack of trustworthiness.

Question 38

Hearsay Exceptions where Declarant Unavailability Is REQUIRED

Answer 38

1. Former Testimony
2. Dying Declaration
3. Declaration Against Interest
4. Forfeiture by Wrongdoing

Question 39

Declarant is considered unavailable as a witness if declarant:

Answer 39

-Is exempted from testifying about the subject matter of the declarant’s statement because the court rules that a privilege applies;
-Refuses to testify about the subject matter despite a court order to do so;
-Testifies to not remembering the subject matter;
-Cannot be present or testify at the trial or hearing because of death or a then-existing infirmity, physical illness, or mental illness; OR
-Is absent from the trial or hearing and the statement’s proponent has not been able, by process or other reasonable means, to procure the declarant’s attendance or testimony.

Question 40

Hearsay Exception: Former Testimony

Answer 40

Testimony that:
1. was given by a witness at a trial, hearing, or lawful deposition … and
2. is now offered against a party who had — or, in a civil case, whose predecessor in interest had — an opportunity and similar motive to develop it by direct, cross-, or redirect examination.
3. Declarant unavailable

Question 41

Hearsay Exception: Dying Declaration

Answer 41

1. Declarant unavailable
2. Statement made when declarant believed death was imminent.
   -Proving declarant’s belief that death is imminent:
   -Statements by declarant;
   -Statements made to declarant;
   -Nature and extent of wounds or illness;
   -Time between statement and declarant’s death;
   -Opinion of medical personnel or others regarding declarant’s condition.
3. Statement concerns cause or circumstances of impending death
4. Offered in: Homicide prosecution or Civil action

Question 42

Hearsay Exception: Declaration Against Interest

Answer 42

1.Declarant unavailable
2. Statement was against own self interest
3. At the time it was made
In Williamson, court held “804(b)(3) does not allow admission of non-self-inculpatory statements even if they are made within a broader narrative that is generally self- inculpatory.”

Question 43

Hearsay Exception: Forfeiture by Wrongdoing

Answer 43

1. Declarant unavailable
2. Party against whom the hearsay offered engaged or acquiesced in wrongdoing that was intended to cause the declarant to be unavailable at trial
   -Intent to make a witness unavailable to testify in one proceeding also carries over to another proceeding (Ex. killed to prevent from testifying at assault trial, statements still admissible at murder trial)
3. The Wrongdoing Caused The Declarant To Be unavailable
   Don’t worry about what OOC statement is under this exception

Question 44

6a Confrontation Clause

Answer 44

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 6th Amendment Confrontation Clause if:
1. The proceeding is a criminal action (not civil);
2. The declarant is unavailable to be cross-examined at trial;
3. The defendant did NOT have the opportunity to cross-examine the declarant at a proceeding prior to trial; AND
4. The statement is testimonial.

Question 45

6a Confrontation Clause: When is a statement testimonial?

Answer 45

A statement is testimonial if the declarant would reasonably expect that the statement would be used for prosecution purposes.

Question 46

6a Confrontation Clause, Crawford Holding:

Answer 46

Confrontation Clause Bans Introduction Of “testimonial” hearsay unless either
1) The accused had adequate oppt’y to cross examine the declarant concerning the statement at trial or
2) The hearsay was admitted under one of the following exceptions: (FT DFW)
a) Former testimony
b) Dying declaration
c) Forfeiture by wrongdoing

Question 47

Forms of Impeachment

Answer 47

1) Bias
2) Sensory Defects
3) Prior inconsistent statement
4) Untruthful character

Question 48

Impeachment by Bias

Answer 48

A party may impeach a witness by presenting evidence that the witness is biased. There are two main categories of bias — when:
1) The witness has a favorable or hostile relationship with a party to the action; AND/OR
2) The witness has a stake in the outcome of the action (usually financial).
Most jurisdictions require that a foundation be laid on cross-examination before extrinsic evidence of bias is admissible (i.e., the examiner must question the witness about his alleged bias to be permitted to present evidence of the bias from another source.)

Question 49

Impeachment by Sensory Defects

Answer 49

-A party may impeach a witness by presenting evidence that the witness is unable to observe, recall, or relate information effectively (e.g., blurry vision, memory loss, a loud construction project temporarily impaired the witness’s ability to hear, etc.).
-Extrinsic evidence of sensory defects is generally admissible (even without laying a foundation) subject to a FRE 403 balancing test.

Question 50

Impeachment by Prior Inconsistent Statement

Answer 50

A party may impeach a witness by presenting evidence that the witness made prior statements that are inconsistent with his present testimony.

Question 51

Impeachment by Untruthful Character: 3 Methods

Answer 51

1) Character Witness
2) Specific instances of conduct on cross
3) Criminal Conviction

Question 52

Untruthful Character Impeachment: Character Witness

Answer 52

-A party can call their own character witness to give Reputation or Opinion testimony regarding another witness’s character for untruthfulness (In my opinion…
In our community he has reputation for untruthfulness….)
-But evidence of witness’s truthful character is admissible only after the witness’s character for truthfulness has been attacked.
-Character wit cannot give specific instances of conduct

Question 53

Untruthful Character Impeachment: Specific Instances of Conduct

Answer 53

-Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness.
-However, specific instances of conduct may be admissible if:
1) The evidence is introduced on cross-examination;
2) The conduct is probative of the character for truthfulness or untruthfulness; AND
3) A good faith basis for the inquiry exists.
4) Must pass 403 balancing test!!

Question 54

Untruthful Character Impeachment: Impeachment by Prior Criminal Conviction > 10 years ago

Answer 54

1. If 10 years or more have passed since conviction or release from confinement, generally INADMISSIBLE… UNLESS it can pass a reverse 403: Probative value substantially outweighs danger of unfair prejudice (very difficult to meet)

Question 55

Untruthful Character Impeachment: Impeachment by Prior Criminal Conviction < 10 years ago

Answer 55

If less than 10 years have passed since conviction or release from confinement…
1. Did crime (misdemeanor or felony) involve dishonest act or false statement? If yes → automatic ADMISSION
2. If not involving dishonest act or false statement, is crime a felony?
-Criminal defendant: court may exclude IF pro fails to show probative value outweighs prejudicial effect on D.
-Civil defendant or any other witness that is not defendant: Court may exclude IF conviction fails 403 balancing where probative value substantially outweighed by prejudice.