From UWorld

Question 1

Relevant EVI and BER

Answer 1

relevant evidence may also be barred by the BER. BER requires that an original be produced to prove the contents of a writing, recording or photo.

Question 2

What the BER requires

Answer 2

requires that an original or reliable duplicate of a recording, writing, or photo be produced to prove its contents.

However – a party may use OTHER, secondary evidence (e.g., testimony) to prove a documents contents if certain factual conditions are established (e.g, all originals are lost or destroyed).

Question 3

BER’s factual conditions

Answer 3

whether a party has fulfilled the factual conditions for admitting secondary evidence is ordinarily a determination for the court.
BUT

if its a jury trial, the jury determines any issue about whether:
- an asserted document ever existed
- another document produced at a hearing or trial is the original, OR
- other evidence of content accurately reflects the documents contents

Question 4

When an out-of-ct statement is admitted under a hearsay exception, the hearsay declarant may be impeached as if the declarant had testified at trial

Answer 4

one way a declarant can be impeached is by introducing evidence that the D’s statement was motivated by bias or self-interest.

*a specific instance of conduct IS admissible to impeach a W or hearsay declarant. For example: a party may examine the W about such conduct if its probative of the W’s character for truthfulness or establishes declarant’s bias.

**a hearsay declarant need not be given an opportunity to explain or deny the offered impeachment evidence.
IN CONTRAST – a W can only be impeached with an inconsistent statement if the W is given the opportunity to explain or deny – and the OP can question the W about the statement

Question 5

Two CL privileges apply to spousal testimony when in FEDERAL COURT

Answer 5

1. Spousal communications privilege – protects confidential communications between spouses during the marriage from disclosure in civil or criminal cases, even after the marriage has ended.
2. spousal immunity (i.e., spousal-testimonial) privilege – protects persons in an active marriage from testifying against their spouse in a criminal case about any matters that occurred before or during the marriage.

** the W-spouse holds the spousal-immunity privilege and therefore has the UNILATERAL right to either:
1. refuse to testify against the other spouse; OR
2. waive the privilege and testify.

Question 6

The privilege against self-incrimination

Answer 6

MAY be asserted at both civil and criminal proceedings.

It should be noted however, that if an individual fails to claim the privilege, and answers questions in a civil proceeding, he CANNOT later bar that evidence by asserting the privilege in a criminal proceeding

Question 7

Under FRE, which statement regarding the hearsay exception for statements of personal or family history is NOT true?

Answer 7

the statement at issue must have been made before the controversy began.

Question 8

Summary evidence

Answer 8

a party may offer a summary (or chart or calculation) to prove the contents of voluminous writings, recordings, or photos IF a proper foundation for admitting the summary is laid. This requires the summary’s proponent to establish that:
1. the originals are voluminous and can’t be conveniently examined in court
2. the original would be admissible
3. the originals and duplicates were made available to ALL parties to examine and copy; AND
4. the summary is fair and accurate.