MBE evidence

Question 1

role of judge and jury:

Answer 1

The jury decides questions of fact; the judge decides questions of law.

The question of whether a piece of evidence gets in is a question of law.
* The judge decides whether evidence is admissible (even if judge admits something like evidence, party may still present evidence as to its relevance and credibility during trial)
* Includes whether there is a privilege or whether witnesses are qualified

VVVVVVVVVVVVV

preliminary questions

Many evidentiary issues are decided prior to trial through motions in limine or preliminary hearings.

Sometimes preliminary questions of law hinge on factual questions.

The court decides fact questions that go to the admissibility of evidence.

For preliminary factual decisions, the court is not bound by the
Federal Rules of Evidence (FRE).

VVVVVVVVVVVVV

preliminary hearings

Conducted outside the presence of the jury in three circumstances:
1. When the issue is the admissibility of a confession in a
criminal trial;
2. When the defendant in a criminal case is a witness and makes that request; and
3. When the interests of justice otherwise require (unfair prejudice to a party)

VVVVVVVVVVVVV

weight and credibility

The jury decides the weight and credibility of the evidence.

Question 2

challenge to evidence ruling

Answer 2

(1) challenge on appeal

Evidentiary ruling can be reversed on appeal only if:
1. A substantial right of a party has been affected (i.e., not harmless error); and
2. The judge was notified of the mistake at trial and given a chance to correct it
3. Notify court by objection or by offer of proof

(2) plain error rule

Plain error—error that was obvious on its face

Appellate court will sometimes reverse the case to prevent a miscarriage of justice, even if
no objection or offer of proof was made at trial

To challenge an error in jury instructions on appeal, a party must generally have objected to the error at trial BUT if a party failed to do so, the challenged error can STILL be reviewed on appeal for plain error– obvious error that affected substantial right and fairness of judicial proceedings (like judge giving jury incorrect contributory neglgience insturctions which find defendant guilty/not guilty)

(3) Notifying the Court to Preserve it for Appeal

objection

If the court has admitted evidence that should have been excluded, must object and explain why the evidence should have been excluded

offer of proof

If the court refuses to admit evidence that should have been admitted, must make an offer of proof on the record

Offer of proof—explain to the court what the evidence would have been and why it should have been admitted

Not necessary if the substance and logic of the evidence is straightforward and clear on the surface

limited admissibility (rule 105)

Evidence may be admissible for one purpose, but not for anohter purpose.

Upon request of the objecting party, the court will give the jury a limiting instruction
* the evidence can only be used for one purpose, but not another illegitimate purpose

rule of completeness (rule 106)

If a party introduces part of a written statement, the opposing party may introduce other portions of that statement that are necessary to put the admitted portion into perspective.

Can be introduced immediately; no need to wait for the party’s turn to present its case if in fairness it should be considered at the same time as an admitted writing or a recorded statement

if fairness does NOT require the immediate introduction of the prior statement, the defendant will have to wait until defendant can present evidence in order to introduce the statement

judicial notice

The court’s acceptance of a fact as true without requiring formal proof

It is about so-called adjudicate facts—facts that the jury
would otherwise have to decide

If not subject to reasonable dispute, the court will instruct the jury to accept that fact as proven

Facts that are not subject to reasonable dispute:
* Generally known within the territorial jurisdiction of the court; or
* Accurately and readily determined by sources whose credibility cannot reasonably be questioned

Civil case—court will instruct the jury that it must accept the fact as proven

Criminal case—court will instruct the jury that it may (but need not) find that fact

Question 3

mode and presentation of evidence

Answer 3

(1) trial process

Begins with the Plaintiff (civil case) or Prosecution (criminal case) introducing its case first, then the defendant will present its case

Order of presentation of evidence and witnesses is within the court’s great discretion to control

Court may call and question witnesses.
* All parties can cross-examine those witnesses.
* Every party should have an opportunity to object outside the hearing of the jury.

(2) form of questions– leading questions

Suggests the answer within the question

Generally, not permitted on direct examination

Exceptions
1. To elicit preliminary background information not in dispute;
2. The witness has trouble communicating due to age or infirmity; or
3. When you call a hostile witness or adverse party

(3) refreshing a witness’s recollection

Arises when a witness is having trouble remembering

Allowed to help the witness remember by showing them a document (or something else),
typically a person’s notes

The witness looks at the notes, remembers, puts the notes aside, and proceeds to testify
from present memory—called present recollection refreshed

The document does not become evidence and the witness doe not read from it

Once a witness has used a writing to refresh his/her recollection, the adverse party is entitled to:
1. have the writing produced for inspection (even show it to the jury),
2. cross-examine the witness about the writing, and
3. introduce into evidence any portion of the writing that relates to the witness’s testimony. (to impeach)

(4) cross-examination

Courts limit the scope of cross-examination to the subject of direct examination.

Courts are permitted to allow broader inquiry.

Allowed to use leading questions

(5) other improper questions

Compound questions

A question that asks for several answers

facts not in evidence

A question that assume facts not in evidence

argumentative questions

Not really a question; just intended to bother or harass the witness

questions calling for inappropriate conclusions

Call for a conclusion that the witness is not qualified to make

repetitive questions

Have already been “asked and answered”

A lawyer can continue to ask the question if the witness has not actually answered it.

(6) exclusion of witnesses

Witnesses must be excluded from the courtroom upon the request of either party to prevent the witness from hearing the testimony of others, so they can not hear or be influenced by the other witnesses’ testimony.

Some witnesses may not be excluded:
* A witness who is essential to the presentation of the case;
* A person, such as a crime victim, who is permitted by state rule to remain in the
courtroom; or
* A party in the case
* an officer or employee of a party who is not a natural person (police officer in charge of investigating a criminal case)

Question 4

burdens and presumptions

Answer 4

(1) burden of proof

burden of production

A party must produce enough evidence to get the issue to the jury.

burden of persuasion

A party must convince the jury to decide the case in its favor.

plaintiff/proseuction ALWAYS HOLDS BURDEN OF PERSUASION

civil cases

Usually, the standard is a preponderance of the evidence.

criminal cases

beyond a reasonable doubt

(2) presumptions

a presumption is a conclusion that can be drawn once a party proves an underlying fact or set of facts

rebuttable presumption

Shifts the burden of production on a particular issue, but not the burden of persuasion

Useful for things that are difficult to prove directly
* like whether defendant received a notice in the mail
* if plaintiff presents evidence that letter was addressed to defendant, stamped, and mailed then a rebuttable presumption is created

If counterproof is introduced, the presumption is eliminated (the bubble bursts) and there is sufficient evidence for the jury to decide the issue.
* defendant testifying she never received notice is sufficient to burst bubble, and its up to the jury to find whether she did or she did not

destruction of evidence

If a party destroys evidence, there is a presumption that it would have been adverse to that party.

conclusive (or irrebutable) presumption

Rules of law that happen to use the language of presumption

Question 5

relevant

Answer 5

(1) FRE 401 and 402

Evidence must be relevant.

If evidence is irrelevant, it is inadmissible

All relevant evidence is admissible, unless excluded by a specific rule.

Relevance—makes the fact in issue more likely than it would be without the evidence

Evidence is relevant if it is both material (related to some issue in the case) and probative (having a tendency to prove or disprove some fact).

evidence showing a defendant’s consciousness of guilt is relevant because it makes the material fact of the defendant’s guilt more probable

(2) direct vs. circumstantial evidence

Direct evidence—equivalent to what it is offered to prove (e.g., eyewitness testimony)

Circumstantial evidence—Evidence from which a fact can be inferred

(3) exclusion of relevant evidence (FRE 403)

Even if the evidence is relevant and there is no particular rule excluding it, the court has discretion to exclude relevant evidence if PARTY SEEKING TO EXCLUDE THE EVIDENCE SHOWS THAT certain risks substantially outweigh its probative value.

Risks—confusion of the issues, unfair prejudice, misleading the jury, or waste of time

(4) relevant conditioned on fact (FRE 104(b))

Sometimes, the relevance of evidence hinges on some fact that is best for the jury.

Proof must be introduced to allow the court to determine whether the jury could reasonably find the conditional fact by a preponderance of the evidence.

However, the court may admit the proposed evidence on the condition that such proof be introduced later.

Question 6

doctrine of curative admission

Answer 6

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.

Question 7

character evidence

Answer 7

Rule about the propensity argument or inference

Prohibits the argument that a person acted in conformity with a particular character trait

Prevents a party from proving a character trait in order to show action in conformity

Rationale—too prejudicial, not that probative of the current conduct, and it distracts the jury’s attention

(2) methods of proving character

When admissible, can only be proved through reputation or opinion testimony

Cannot be proved by specific bad acts

(3) other relevant use for character evidence

Character evidence cannot be used to prove propensity.

Can be used for some other relevant purpose (i.e., when character is at issue)

If character is an actual issue in the case, then it can be proved

Question 8

relevance: impeachment

Answer 8

• Propensity argument can be made to impeach
• about the WITNESS!!! not the defendant
• trying to make sure witness is telling the truth!!
• you can use almost anything to impeach a witness as long as it goes to their CREDIBILITY (includes if witness is biased or motivated to lie)
• you can also impeach your OWN witness
• answer will either say “impeach” or “attack CREDIBILITY”
• this is “regular impeachment” ie catching witnesses in a lie or inconsistency based on what they said, heard, saw, etc

Question 9

asking WITNESS about their OWN prior conduct

Answer 9

1. if witness is asked about a prior conviction:
   * if conviction is for crime of TRUTHFULNESS/DISHONESTY- ADMISSIBLE
2. if conviction is for felony- NOT ADMISSIBLE, UNLESS within 10 yrs and passes balancing test
3. if witness asked about NON-conviction/BAD ACT:
   * If just bad act committed by witness (beating someone up)- NOT ADMISSIBLE
   * if bad act relates to dishonesty (lying, cheating), MAY ASK WITNESS while on stand, BUT, once they deny it and leave the stand, CANNOT BE PROVED VIA EXTRINSIC EVIDENCE!!!

Question 10

Character in civil case

Answer 10

Evidence of a defendant’s character is inadmissible in a civil case to prove that the defendant acted in conformity with that character trait unless the defendant’s character is an essential element of a claim or defense (peacefulness IS NOT an element of battery or self-defense)

Except, the plaintiff may introduce evidence of the defendant’s prior acts of that sort (crimes in which character is an essential element)
* when claiming self-defense where there is a dispute as to who was the initial aggressor
* cases involving defamation,
* child custody
* negligent hiring or entrustment,
* misrepresentation,
* child molestation or
* sexual assault

Question 11

character in criminal case

Answer 11

basic rule: The prosecution is not allowed to introduce the bad character of the defendant.

defendant’s good character

After Plaintiff rests, Defendant is permitted to introduce a pertinent good trait of character. (Must be either honesty/truthfulness oR peacefulness, depending on what they are being charged with)

Opens the door—prosecutor is free to rebut the defendant’s claims by attacking the defendant’s character
* Prosecutor can cross-examine the defendant’s character witnesses with questions about specific bad acts from the past.

Defendant is limited to witnesses who will testify about opinion or reputation
* Defendant not permitted to bring bad act
* On cross-examination, prosecutor can inquire about
specific acts

*victims character*

A defendant may bring evidence about the victims character.
* May introduce evidence of a pertinent trait of the victim
*  Opens the door—the prosecution can introduce evidence that the victim is not violent using reputation or opinion, but not specific acts.
*   The prosecution can then introduce evidence that the Defendant has the same trait that he or she accused the victim of having.

Question 12

character: prior acts

Answer 12

In some circumstances, evidence of a defendant’s past crimes or bad acts can be introduced

“mimic” evidence—not used propensity; used for some
other purpose:

look for answer that specifies reason evidence will be admissible= “admissible for purpose of showing motive/identity/intent/common plan”

• motive
• intent
• identity/modus operandi
• common plan or scheme

sometimes MO seems a little like prior bad acts, defense may try to exclude if its risk substantially outweighs its use. but if its admitted, then you can ASK for a limiting instruction

Question 13

character: habit evidence

Answer 13

Allowed to prove action in conformity with the habit

Something that is routine, regular, or automatic

Can also be the habit of an organization
* if showing organization’s routine practice, its to show the ORGANIZATION acted in accordance, not an employee, even if employee made a mistake (facts would say woman sued the company)

look for answer that specifies reason evidence will be admissible= “admissible for purpose of showing habit”

Question 14

presentation of evidence

Answer 14

Presentation of Evidence

court decide questions of admissibility.
* Includes preliminary fact questions that go to admissibility
* The court is not bound by the FRE in deciding preliminary questions of fact.

Party can preserve an error for appeal by:
* objection to evidence the party thinks should not have been admitted; or
* making an offer of proof with regard to evidence the party thinks should have been admitted

Evidence is often admissible for one purpose, but not another; the court will give a limiting instruction upon a party’s request (FRE 105).

Judicial notice—if question is not subject to reasonable dispute, the court will not require evidence
* Court will instruct the jury to find that fact; or
* In a criminal case, instruct the jury that it may find that fact

Leading questions are generally prohibited on direct examination, except when it is necessary to develop testimony, such as:
* Preliminary information;
* Witnesses that need help testifying (child, physical or mental problem);
* adverse party or associated with adverse party and
* hostile witnesses

Cross-examination is supposed to be within the scope of direct examination; can and should use leading questions
* judge has discretion to limit leading questions when the witness is friendly to the examining party (like defendant’s attorney asking the defendant leading questions)
* judge also has discretion to allow questions in cross-exam to go beyond scope of direct examination

Other improper questions—assume facts not in evidence, call for an inappropriate or unsupported conclusion, compound, harassing or repetitive, argumentative

Burden of proof—plaintiff in a civil case and prosecution in a criminal case
* Burden of production and burden of persuasion
* Civil case—generally preponderance of the evidence
* Criminal case—beyond a reasonable doubt

Presumption—shifts the burden of production on a particular fact

must meet burden of production (or else JMOL) and must meet
persuasion with jury

Question 15

relevance

Answer 15

Evidence that makes a material fact more likely than it would be without the evidence
* FRE 403 allows a court to exclude relevant evidence if certain risks—prejudice, confusion, misleading the jury, waste of time—risks substantially outweigh the probative value.

Character evidence—the propensity argument is generally prohibited
* Permitted in criminal cases if introduced by the defendant
* Opens the door—prosecutor can rebut the defendant’s evidence
* Defendant can also offer a pertinent character trait of the victim (violence)
* Opens the door—prosecutor can rebut with evidence that the victim is not violent and also introduce evidence that the Defendant is violent

Introducing evidence for some purpose other than propensity
* Civil case—character is an actual issue in the case
* MIMIC evidence using prior bad acts

Question 16

witness: character for truthfulness or untruthfulness

Answer 16

character witness testimony (FRE 608(a))

Can introduce character witnesses who will testify that the target witness is dishonest

May be attacked through reputation or opinion, not prior specific incidents

Specific Acts (FRE 608(b))

May cross-examine the witness about specific acts of dishonesty

Must be probative of untruthfulness

Only permitted to ask; must take the witness’s answer

Must have a reasonable basis for asking the question

Criminal Convictions (FRE 609)

NOT ARRESTS!

Crimes involving dishonesty or false statements
* perjury, fraud, embezzlement
* the standards for admission vary depending on:
1. the age of the conviction
2. the type of conviction
3. and the witness against whom the conviction is offered.

When calculating the age of a conviction, the relevant inquiry is whether more than 10 years have passed since the witness’s conviction or release from confinement—whichever is later. A conviction for a crime involving dishonesty is automatically admissible to impeach any witness when the conviction—or the release from confinement—is not more than 10 years old. And extrinsic evidence of the conviction (e.g., a certified copy of the judgment) may be introduced for that purpose without first questioning the witness about the conviction

prior conviction NOT involving dishonesty or false statements:
* A conviction for a felony not involving dishonesty that is not more than 10 years old is admissible against a criminal defendant-witness if the prosecution shows that its probative value outweighs the prejudicial effect to the defendant.

Convicted of felonies
* Crimes punishable by death or more than 1 yr in prison
* Court will allow impeachment with the prior felony conviction unless the risk of prejudice substantially outweighs the probative value
* Criminal defendant (higher standard)—evidence of a prior felony conviction is admissible only if its probative value outweighs the prejudicial effect (“reverse 403”)

Old convictions
* If more than 10 yrs have elapsed since the conviction (or release from confinement, whichever is later), then evidence of the conviction is admissible only if:
* The probative value of the conviction, supported by specific facts, substantially outweighs its prejudicial effect; and
* The proponent gives an adverse party reasonable advanced notice

Pardon
* A conviction may not be used for impeachment if the witness has been pardoned or received a certificate of rehabilitation if the action was based on a finding of innocence or the witness has not been convicted of another felony.

Question 17

witness: character for truthfulness or untruthfulness

Answer 17

character witness testimony (FRE 608(a))

Can introduce character witnesses who will testify that the target witness is dishonest

May be attacked through reputation or opinion, not prior specific incidents

Specific Acts (FRE 608(b))

May cross-examine the witness about specific acts of dishonesty

Must be probative of untruthfulness

Only permitted to ask; must take the witness’s answer

Must have a reasonable basis for asking the question

Criminal Convictions (FRE 609)

NOT ARRESTS!

Crimes involving dishonesty or false statements
* perjury, fraud, embezzlement

prior conviction NOT involving dishonesty or false statements:
* A conviction for a felony not involving dishonesty that is not more than 10 years old is admissible against a criminal defendant-witness if the prosecution shows that its probative value outweighs the prejudicial effect to the defendant.

Convicted of felonies
* Crimes punishable by death or more than 1 yr in prison
* Court will allow impeachment with the prior felony conviction unless the risk of prejudice substantially outweighs the probative value
* Criminal defendant (higher standard)—evidence of a prior felony conviction is admissible only if its probative value outweighs the prejudicial effect (“reverse 403”)

Old convictions
* If more than 10 yrs have elapsed since the conviction (or release from confinement, whichever is later), then evidence of the conviction is admissible only if:
* The probative value of the conviction, supported by specific facts, substantially outweighs its prejudicial effect; and
* The proponent gives an adverse party reasonable advanced notice

Pardon
* A conviction may not be used for impeachment if the witness has been pardoned or received a certificate of rehabilitation if the action was based on a finding of innocence or the witness has not been convicted of another felony.

Question 18

witness: character for truthfulness or untruthfulness

Answer 18

character witness testimony (FRE 608(a))

Can introduce character witnesses who will testify that the target witness is dishonest

May be attacked through reputation or opinion, not prior specific incidents

Specific Acts (FRE 608(b))

May cross-examine the witness about specific acts of dishonesty

Must be probative of untruthfulness

Only permitted to ask; must take the witness’s answer

Must have a reasonable basis for asking the question

Criminal Convictions (FRE 609)

NOT ARRESTS!

Crimes involving dishonesty or false statements
* perjury, fraud, embezzlement

prior conviction NOT involving dishonesty or false statements:
* A conviction for a felony not involving dishonesty that is not more than 10 years old is admissible against a criminal defendant-witness if the prosecution shows that its probative value outweighs the prejudicial effect to the defendant.

Convicted of felonies
* Crimes punishable by death or more than 1 yr in prison
* Court will allow impeachment with the prior felony conviction unless the risk of prejudice substantially outweighs the probative value
* Criminal defendant (higher standard)—evidence of a prior felony conviction is admissible only if its probative value outweighs the prejudicial effect (“reverse 403”)

Old convictions
* If more than 10 yrs have elapsed since the conviction (or release from confinement, whichever is later), then evidence of the conviction is admissible only if:
* The probative value of the conviction, supported by specific facts, substantially outweighs its prejudicial effect; and
* The proponent gives an adverse party reasonable advanced notice

Pardon
* A conviction may not be used for impeachment if the witness has been pardoned or received a certificate of rehabilitation if the action was based on a finding of innocence or the witness has not been convicted of another felony.

Question 19

witnesses: competence

Answer 19

competence

Anyone who has personal knowledge of the matter about which they are going to testify and is willing to make an oath to tell the truth is competent to testify.

(1) state rules on competency
* Some states have particular competency requirements.
* FRE—whether the child has personal knowledge and is mature enough to understand the obligation to tell the truth and is willing to promise to do so
* Dead Man’s statute (not included in FRE)—limits the ability of witnesses to testify about transactions with people who are deceased
* Federal courts using state law to decide a civil case will defer to state competency rules.

(2) judge as witness

A judge is barred from being a witness in a trial over which she is sitting.

(3) juror as witness
* A juror may not testify as a witness in a trial in front of the jury in which he sits.
* After the verdict or an indictment (grand jury), the parties might be tempted to ask the
jurors to testify about what happened in the jury room in the context of a motion for a new
trial or on appeal.

FRE 606(b): a juror may not testify as a witness in an inquiry into the validity of a verdict or indictment as to:
* Any statement made during deliberations
* Any incident that occurred during deliberations; or
* The effect of anything upon any juror’s mind

Exceptions—a juror may testify after trial about whether:
* Extraneous, prejudicial information was improperly brought to the jury’s attention;
* An outside influence was improperly brought to bear on a juror;
* A clerical or technical error was made in entering the verdict onto the verdict form; or
* A juror made a clear statement that he relied on racial stereotypes or animus in convicting a defendant

Question 20

witness: impeachment (calling into question credibility)

Answer 20

Three Basic Ways to Impeach a Witness
* Show that the witness is dishonest; bad character for truthfulness
* bias
* sensory competence

bias

• Showing that the witness has some reason to lie or shade the facts
• relationship with a party ( affiliated with the opposing party outside the context of litigation), the witness is being paid to testify, the witness has agreed to testify in return for a reduced sentence, the witness has an indirect financial in the outcome of the case, etc.

sensory competence
* The witness is mistaken in some way.
* The witness did not see or hear things as well as she thinks.

Question 21

witness impeachment: prior inconsistent statement

Answer 21

Can be done with any kind of statement

Can be proved by extrinsic evidence, but only once the witness is given the opportunity to explain or deny the evidence and the opposing party can question the witness about the statement (or justice so requires)

example: where defense tries to impeach witness on inconsistent prior statement to investigator, witness denies it, defense calls investigator to testify about the statement = admissible for impeachment

Question 22

witness impeachment: impeachment of hearsay declarant

Answer 22

When an out-of-court statement comes in under a hearsay exception, the declarant (the person who made the statement) is acting like a witness and can, therefore, be impeached.
* Impeachment may be made by any evidence that would be admissible if the declarant had testified as a witness.

Question 23

impeachment of witness: rehabilitation

Answer 23

Rehabilitation may be accomplished in one of three ways:
1. Give the witness a chance to clarify and explain
2. Prior consistent statement—if the witness has been accused of changing his or her story, or being bribed or pressured or having an improper motive, can be rehabilitated with a statement that the witness made before the alleged motive arose; or
3. If the witness has been attacked as having a bad character for truthfulness, then evidence can be introduced bolstering the witness’s character for truthfulness (either reputation or opinion evidence).

Question 24

witness testimony: lay witness

Answer 24

in general, we want facts and not opinions/conclusions from witnesses

Old rule—prohibited lay witnesses (non-experts) from offering opinions or conclusions

Opinions from lay witnesses are admissible with respect to
common sense impressions, such as appearance, intoxication, speed, etc.

To be admissible, a lay witness’s opinion must be:
* Basedon the perception of the witness; and
* Helpful to a clear understanding of the witness’s
testimony or the determination of a fact in the case.

Implicit requirement—cannot be based on any purported, technical, or specialized knowledge (like saying that the drop in a stock was directly attributable to the public revelation about false earnings report)

Question 25

witness testimony: lay witness

Answer 25

in general, we want facts and not opinions/conclusions from witnesses

Old rule—prohibited lay witnesses (non-experts) from offering opinions or conclusions

Opinions from lay witnesses are admissible with respect to
common sense impressions, such as appearance, intoxication, speed, etc.

To be admissible, a lay witness’s opinion must be:
* Basedon the perception of the witness; and
* Helpful to a clear understanding of the witness’s
testimony or the determination of a fact in the case.

Implicit requirement—cannot be based on any purported, technical, or specialized knowledge

Question 26

hearsay

Answer 26

out of court statement offered to prove truth of matter asserted NOT ADMISSIBLE, UNLESS statement is one of the exceptions

Out-of-Court Statement

Spoken or written

The person who made the out-of-court statement is the declarant

Statement can also be assertive nonverbal conduct (e.g., pointing)

Offered to Prove the Truth of the Matter Asserted

When the declarant is acting like a witness, the hearsay rule is implicated.

The declarant and the witness might be the same person; the out-of-court statement could still be hearsay

If the statement is used for some other purpose (other than the truth of the matter asserted), it is not hearsay.

Question 27

heasay exceptions (unavailable)

Answer 27

Unavailable Declarant
* Is exempted from testifying on grounds of privilege
* refuses to testify;
* Lacks memory of the subject matter;
* Is dead or too ill; or
* Is absent and cannot be subpoenaed or otherwise made available

Not considered unavailable if a party wrongfully renders the declarant unavailable for the purpose of preventing testimony

not considered unavailable because you are “hostile witness”

Unavailability alone does not make a declarant’s out-of-court statement admissible.

VVVVVVVVVVVVVVVV

exceptions

(1) former testimony

Given by an unavailable witness under oath at a prior hearing or deposition

Admissible in a subsequent trial if the party against whom the testimony is being offered had an opportunity and similar motive to develop the testimony by direct or cross-examination at the prior trial, deposition, or hearing

(2) dying declarations

homicide (murder/manslaughter) and civil cases, declarant believes they are dying and makes statement made about WHY they think they are dying (Dead or otherwise unavailable, in coma, or took 5th amendment)

(3) statements against interest

decl is (part or non party) makes statement against their own interest tends to make them liable/guilty of something, reasonable perosn wouldn’t say it, and they are UNAVAILABLE

does NOT need to be said by party to the current litigation…could be the co-conspirator

you dont need corroborarting evidence if you’re using statement against interest to impeach;
* if its substantive, then must be shown with corroborating evidence

(4) Statements of Personal or Family History

Statements concerning the unavailable declarant’s own birth, adoption, marriage, familial relationship, etc. are admissible under this exception.

once family record is authenticated, information in record is admissible to prove the truth of the matter asserted (substantive)

• examples:
• family bible
• genealogy
• family chart
• engraving on ring or urn
• incription on portrait
• engraving/inscription on burial marker

(5) Forfeiture by Misconduct (Declarant Unavailable Due to Party’s Wrongdoing)

Established by a preponderance of the evidence that the defendant wrongfully caused, or acquiesced in wrongfully causing, the declarant’s unavailability and did so intending that result (must make them unavailable FOR THE PURPOSE of keeping them from testifying)
* The party cannot claim the declarant is unavailable; and
* The door is open to use anything the declarant said against the party.

Question 28

hearsay (availability immaterial)

Answer 28

(1) present-sense impression

observations, like a reporter

(2) excited utterance

Statement relating to a startling event or condition while the declarant is still under the stress of excitement caused by the event or condition

(3) state of mind (mental, emotional, or physical condition)

Statement of a declarant’s then-existing physical, mental, or emotional condition is admissible to prove the existence of that condition.

A statement of intent can be used to prove action in conformity with that intent.

(4) statements Made for Purposes of Medical Diagnosis or Treatment

Describe a declarant’s medical history or past or present symptoms, or even the cause of an injury, if pertinent to treatment or diagnosis

Need not be made directly to the doctor

(5) Past Recollection Recorded

When a witness has inadequate memory to testify about a matter for which a record exists, the witness may read the record to the jury if:
* The record concerns a matter about which the witness once had knowledge;
* The record was prepared or adopted by the witness when the matter was fresh
* The record accurately reflects the witness’s knowledge; and
* the witness testifies he has insufficient memory of the event
to testify fully and accurately (even after consulting the writing while on the stand).

The witness may read it to the jury, but it is not provided to the jury (not introduced into evidence).

The adversary may introduce the record to the jury as an exhibit

(6) business record

Any record or writing of an act or event made in the course of a regularly conducted business activity

Admissible if the record was made:
* at or near the time of the event it records;
* By a person with knowledge of the event and under a duty to report it (or transmitted by such a person); and
* As part of the regular practice of the business to make that kind
of record

A party can lay these foundational elements by having any witness with personal knowledge of the above elements—eg, the codefendant but not the officer—testify to them
* testimony by records custodian IS NOT REQUIRED. JUST NEED TO HAVE PERSONAL KNOWLEDGE

Medical records are often included as business records (only to the extent that entries relate to diagnosis or treatment).

Records prepared in anticipation of LITGATION are not admissible as business records.

Courts have discretion to exclude business records if the source of information or the method or circumstances indicate a lack of trustworthiness
* BUT court can admit records of illegal activity, so long as all foundational elements are satisfied

VVVVVVVV

public records

Certain records of public agencies and administrators (e.g., fire department, health department, public utilities, etc.)
* May be excluded if the circumstances indicate a lack of trustworthiness
* there are three sorts of things which may be admissible if set forth in a public record:
1. activities
2. observations
3. factual findings

Law enforcement—police reports being used against criminal defendants
* Can only introduce the activities; not what was observed or concluded
* Rationale—the officer should actually testify and be subject to cross-examination
* Police report may still come in under the recorded recollection exception (officer cannot
remember).

VVVVVVVVVVVV

Learned Treatises (scientific, historical, or medical)

May be used to impeach expert witnesses and as substantive evidence

May be used as substantive evidence once it is established as a reliable authority, an expert
relied on it, or it was used to cross-examine an exper
* However, a party may only have the particular statements read into evidence—the treatise itself cannot be received as an exhibit.

VVVVVVVVVVVVV

Admissible to prove any fact that was essential to the judgment.

no such exception exists for judgments of acquittal!!!

VVVVVVVVV

Other Exceptions
* Records of vital statistics
* Records of religious organizations
* Marriage and baptismal certificates, and other family records
* Statements in ancient documents
* Market reports and commercial publications

VVVVVVVVV

Reputation

There is a hearsay exception for the reputation or character of a person.

Available in the narrow circumstances when reputation/character evidence is admissible

Question 29

hearsay exception: records and statements affecting property interest

Answer 29

Records: Record of document that purports to affect property interest is admissible if:
* record admitted to prove content of original recorded document, along with signing & delivery by each purported signee
* record kept in public office and
* statute authorizes recording such documents in that office

statements: Statement in document that purports to affect property interest is admissible if:
* matter stated was relevant to document’s purpose and
* later dealings with property do not contradict truth of statement or purport of document

records include judgments to establish things like ownership of money

Question 30

hearsay

Answer 30

non-hearsay uses

(1) Verbal Acts or Legally Operative Facts:
* The statement is offered to prove that the statement was made (verbal conduct)
(2) Effect on the listener:
* A statement offered to show the effect on the person who heard it
(3) State of Mind:
* A statement offered as circumstantial evidence of the declarant’s mental state, offered to show effect on listener, including attributing knowledge or belief
* Circumstantial evidence can be used to show knowledge.

VVVVVVVVV

Multiple Hearsay

Be aware of hearsay within hearsay (double or multiple hearsay)

If there are multiple levels of hearsay, you will need an exception or exclusion for each level of hearsay for the statement to be admissible.

Question 31

NOT hearsay

Answer 31

Many statements that meet the definition of hearsay will be admissible under an exception.

The first two categories (discussed in this chapter) are actually exclusions from the definition of
hearsay—they meet the definition of hearsay but have been excluded from the rule.

(1) admissions (by PARTY to the case), this is the default answer unless they tell you def is unavailable, then it is statement against interest
* includes** adoptive admissions** (silence when reasonable person would object)
* and vicarious admission (admission by employee admissible against employer)

(2) * statement by party-opponent* is not hearsay ! the opposing party statement is offered agaisnt that same opposing party and was made in either an individual/representative capacity

(3) prior SWORN inconsistent statement- under oath, subject to cross exam;
* impeachment- usually right answer is admissible only to impeach (can use also when it was not under oath, KEEP a look out to see if its admission by party opponent, then its also used substantively)
* but when made under oath correct answer is admissible to impeach, AND as substantive evidence

(4) prior consistent statement
* Can be used to rehabilitate a witness when accused of recent fabrication or improper motive
* Can also be used as proof of the truth of the matter asserted (substantive evidence)

(5) prior statements of identification
* A previous out-of-court identification of a person (after perceiving that person) is admissible.
* Classic example: lineup at a police station
* witness could say they forgot, and officer who was there could testify that witness had identified def in line-up
* Remember: requires that the declarant testify as a witness and be subject to cross-examination
* Does not apply if the witness died (or is otherwise unavailable at trial)

(6) co-conspirators
* Statements made by co-conspirators during and in furtherance of a conspiracy are admissible against other co-conspirators.
* must be part of flow of information between coconspirators intended to help each perform their role (not telling someone i am nervous because i got paid to set building on fire)

(7) Preliminary Questions
* In deciding whether there was a conspiracy or an agency relationship, the court cannot base its finding solely on the contents of the statement itself.
* Pure “boot-strapping” is not permitted; there must be some other evidence to support the finding.

Question 32

privileges

Answer 32

FRE—no specific, codified privilege provisions

Federal courts are instructed to:
* Defer to general principles of federal common law when it comes to most privileges; and
* When deciding state law issues when sitting in diversity jurisdiction, apply state law regarding privileges.

Question 33

attorney/client privilege

Answer 33

Protects a confidential communication between a client and a lawyer if the communication was for purposes of securing legal advice

statements must be confidential, but no privacy if info is commit fraud/crime (future crimes) or involves dispute between lawyer and client

Neither the lawyer nor the client can be forced to testify about the communication.

1. some type of relationship with lawyer
2. if there is relationship, dont need to be speaking to lawyer for privilege to apply, anyone working with lawyer also has privilege
3. if i am speaking to someone with relationship, nature of convo must be confidential, in private
4. privilege lasts forever, unless waives (never infer, make them tell you)
   exceptions: any dispute between me and lawyer, like att’y fees, are not privileged

VVVVVVV

confidential

Client must have made reasonable efforts to keep the communication confidential

Communications made in the presence of unnecessary 3rd parties will not be privileged.

Presence of persons necessary to the communication ( translator, lawyer’s assistant or agent, or the attornyer’s representative like a physician who is non-testifying expert) will not undercut the privilege

communications which are merely INCIDENTAL to legal representation (communications about legal fees) are NOT PROTECTED

An unknown secret eavesdropper will not destroy the privilege.

VVVVVVV

communication

Only the communication is privileged; not underlying facts or evidence that the client has or knows

Does not protect pre-existing documents

Must have been made for purposes of securing legal advice

VVVVVVV

The client holds the privilege and has the right to decide whether to disclose the communication (i.e., waive the privilege).

The attorney must protect the privilege by refusing to talk about such confidential communications.

VVVVVVV
waiver

Failure to assert the privilege in a timely manner

voluntary disclosure of the information

Express waiver, even by contract

Failure to take precautions (i.e., careless conduct) on the part of the lawyer

Under the federal rules, a disclosure of a privileged communication will operate as a waiver unless:
* the disclosure was inadvertent
* the privilege holder had taken reasonable steps to prevent disclosure and
* the privilege holder promptly took reasonable steps to rectify the error

.If such a communication was disclosed in a state court proceeding and is now being offered in a federal proceeding, the federal court will review the federal rules and the law of the state where the disclosure occurred.
* Whichever law offers more protection will determine the effect of the disclosure.

VVVVVVV

Corporate Client

in some courts, client can be the “control group”: People with sufficient power to control the conduct of the corporation like CEO, board of directors

in federal courts, he focus should be on the nature of the communication
* A communication made by an employee about matters within the scope of employment for purposes of seeking legal advice is privileged, even if the employee is not a member of the “control group.”

VVVVVVVVVV

work product

Documents prepared by a lawyer in anticipation of litigation

Such documents may not be privileged, but will be protected

Can obtain some types of work product from the opposing party if:
* The party can demonstrate a substantial need for the information; and
* Show that it cannot otherwise be obtained without undue hardship

Work product that cannot be obtained—mental impression work product (core work product)
* Reveals the attorney’s trial tactics, conclusions, theories of the case, etc.

Question 34

federal inadvertant waiver rule

Answer 34

The federal inadvertent-waiver rule applies to:
1. communications covered by the attorney-client privilege and 2. materials protected under the attorney work-product doctrine.

Under this rule, disclosure of a communication protected by the attorney-client privilege or material that qualifies as attorney work product does not operate as a waiver in a federal or state proceeding if:
* the disclosure was made in a federal proceeding or to a federal agency
* the disclosure was inadvertent
* the privilege holder had taken reasonable steps to prevent disclosure and
* the privilege holder promptly took reasonable steps to rectify the error.

Materials qualify as attorney work product if they were prepared by or for an attorney in anticipation of litigation.

Question 35

husband/wife privilege

Answer 35

Protects communications made between spouses in confidence in reliance on the sanctity of marriage

VVVVVVVVVVVV

spousal communication: applies to any type of case, confidential communication while they were married
* either spouse can refuse to talk and prevent other spouse from diclosing
* survives divorce

VVVVVVVVVVVV

spousal testimony:
* criminal case, (def spouse and witness spouse) witness spouse holds privilege and **can unilaterally ** refuse to testify against other spouse, they have to be married at trial
* Covers testimony about anything, whether before or during marriage, but only applies while married to the person

VVVVVVVVVVVV
exceptions

Neither of the spousal privileges apply when:
* One spouse is suing the other; or
* When one spouse is charged with a crime against the other spouse or the children of either of them.

Question 36

doctor- patient privilege

Answer 36

Not recognized under federal law, but recognized by many states BUT if sitting in diversity (erie) it may be considered

covers communications made for purpose of current medical treatment

other people can be around and still private** if** they are there for interest of patient, helping with treatment, like nurse

exceptions—privilege does not apply if:
* The information was for reasons other than treatment;
* The communication was made for some illegal purpose;
* A dispute exists between the doctor and patient; or
* The patient agreed to waive the privilege

VVVVVVVVV

Psychotherapist-Patient Privilege

Recognized in federal courts and most jurisdictions

Applies to confidential communications between a patient and a psychiatrist, psychologist, or licensed social worker made during course of treatment or diagnosis

Exceptions—does not apply if the communication was:
* The result of a court-ordered exam; or
* Taken as part of a commitment proceeding
* patient’s medical condition is at issue

VVVVVVVVV

Fifth Amendment Protection against Self-incrimination

Prevents a witness from being required to give incriminating testimony against himself

Applies only to people (not corporations)

Applies only to current statements (not prior statements)

Does not apply to blood samples, voice samples, breathalyzer, etc.

If no risk of criminal trouble, there is no privilege
* State can ensure no risk through immunity.
* example: A person subpoenaed to testify before a grand jury who has invoked the Fifth Amendment privilege against self-incrimination can be compelled to testify if he/she is granted use and derivative use immunity. This prevents the person’s testimony, and any evidence derived from it, from being used against him/her in any way that could lead to a criminal prosecution. But the government may still prosecute the person using evidence obtained from independent sources
* However, in New Jersey v. Portash, the U.S. Supreme Court held that testimony given under a grant of immunity is coerced and therefore involuntary. And any criminal-trial use of such testimony outside the context of a perjury prosecution constitutes a denial of due process.

Question 37

when federal rules of evidence do NOT apply

Answer 37

• Preliminary-question determinations
• Grand jury proceedings
• Search / arrest warrant determinations
• Preliminary examinations in criminal cases
• Extradition or rendition proceedings
• Bail & other release hearings
• Sentencing hearings
• Probation / parole revocation hearings

VVVVVVVVV

Example: although under FRE, witness must be expert in a subject that pertains to issue in question before elicing expert opinion, in a grant jury the witness testimony can be considered by the grant jury regardless of whether he satisfies criteria for lay opinion admission or expert opinion

normal person can say, i think they knew they were committing fraud

Note that evidentiary rules regarding privilege apply to all proceedings, including those listed above.

Question 38

tangible evidence

Answer 38

Includes documents and other physical items

First step—must be authenticated

must show evidence sufficient to support a finding that the thing is what the party claims it is
* Does not mean that the court must find that the document or thing is authentic
* The jury will decide this fact question

But when the evidence sought to be admitted is a physical representation of something that could not otherwise be seen—e.g., an electrocardiogram or x-ray image, authentication requires proof that:
* the process for creating the evidence was accurate
the machine that produced the evidence was working properly and
* the operator of the machine was qualified to operate it.

VVVVVVVVV

real evidence- ways to authenticate

personal knowledge: testimony of a witness that recognizes and identifies the item

Distinctive features or markings

Chain of custordy—technique accounting for the whereabouts of an item along an unbroken chain

VVVVVVVVV

Documentary Evidence—Ways to Authenticate

by stipulation of the parties

Eyewitness testimony combined with distinctive features

Ancient Documents
* at least 20 yrs old
* In a condition unlikely to create suspicion and
* Was found in a place where such documents would be if they were authentic

Reply letter doctrine: authenticated by evidence that it was written in response to another letter

Handwriting verification
* expert or jury comparing it to a known sample; or
* Lay witness (could be plaintiff herself) with personal knowledge of the handwriting (from before the current litigation)

Self-authenticating documents (FRE 902)—include:
* Public documents bearing a government seal
* Certified copies of public records and records of regularly conducted activities
* Official publications issued by public authority, newspapers, and periodicals
* Trade inscriptions
* acknowledged documents
* Notarized documents
* Commercial paper with signature and related documents

VVVVVVVV

Oral Statements

Voices and recordings may need to be authenticated as to the identity of the speaker.

(1) voice identification

Can be authenticated by any person who has heard the voice at any time, even if they learned to identify voice for purposes of litigation

(2) Telephone conversations

Caller recognized the speaker’s voice

The speaker knew facts that only a particular person would know

The caller dialed the number believed to be the speaker’s and the speaker identified himself upon answering the phone

The caller dialed a business and spoke with a person who answered questions about business regularly conducted over the phone

Question 39

best evidence rule:

Answer 39

Rule—No describing the documents instead of showing them, unless you really need to

generally the ORIGINAL document must be admitted, but rule applies only when DOCUMENT IS MATERIAL to the case and trying to prove contents of writing
* distinguish from someone bringing up document/recording/picture to help REMIND them of the details, that would be past recollection recorded

Limits the ability to present other evidence of the contents of a document when the contents are at issue

No witness testimony about the contents when you could just produce the actual document

duplicates
when its material, copy allowed if all effort to find original has been made, **and no ** evidence of tampering (authenticated)

if There is a genuine question about the authenticity of the original; or in fairness the original should be required, duplicate WILL NOT BE ALLOWED

presumption its authentic, unless facts show otherwise; applies when
1. trying to prove content of doc itself, need original, cant find, use copy
2. when there is no other way to verify testimony of witness except for document

contents at issue

The document is used as proof of an event

The document has actual legal effect, such as a contract or will

The witness is testifying based on facts only learned from the document
* Contrast with situation where a witness actually saw what happened but there also happens to be a recording—the witness is permitted to describe his or her personal knowledge; does not mean there is a best evidence problem

exception
(1) One exception to the best evidence rule allows a party to prove a document’s content through a party-opponent’s testimony, deposition, or written statement without accounting for the original document’s absence. But this exception does not apply to oral statements (or nonverbal conduct) made outside the context of testimony or deposition.

(2) unavailable:
May introduce other evidence of the contents if:
* The original has been destroyed or lost (unless done by the proponent in bad faith);
* The original cannot be obtained by any judicial process; or
* The party against whom the document is introduced had control of the original and knew that it was going to be at issue at trial.

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.

(3) public records

• Can use a certified copy instead of the original
• To establish the contents of a public record, such as a judgment, it is generally necessary to introduce a copy of the record that has been certified by the appropriate public custodian.
• In the alternative, a witness who has compared the copy with the original may testify as to its correctness.
• Only when neither of these methods is available can the contents of a public record be proved by other evidence.

(4) Voluminous writings
* May be presented in the form of a chart or summary
* could be called “voluminous business records”, keep an eye out to who is making the records (fisherman counts, its part of his job that he keeps measurements of water rising for example)
* Originals or duplicates must be made available for inspection by the other party

(5) admissions by a party
* The testimony, either in court or deposition, or a written statement of the party against whom the evidence is introduced
* example: statement is based on the contents of the photograph, it is subject to the original document rule, which generally requires that the photograph be introduced or its unavailability be satisfactorily explained. This rule does not, however, require the production of the photograph where its contents are established by an admission, at a deposition, of the party against whom the evidence is offered
* . And when such an answer incorporates a document—e.g., by referring the interrogating party to the document—the contents of the document are considered adopted by the answering party. This means that the contents are nonhearsay if offered against the answering party. However, admission of the document itself must comply with other evidentiary rules.

Question 40

parol evidence rule

Answer 40

Excludes evidence that, if introduced, would change the terms of a written contract

Many contracts are explicitly described as complete integrations—they contain all of the terms of the agreement.

No extrinsic evidence that would change the terms may be admitted.

partial integration

Excludes extrinsic evidence that would contradict the terms of the agreement

Allows evidence that might add to the terms

Exceptions to the Parol Evidence Rule

Extrinsic evidence about a contract can be admitted to:
* Clarify an ambiguity;
* Prove a custom of trade or course of dealing;
* Show fraud, duress, mistake, or illegal purpose; or
* Show whether consideration has or has not been paid.

Question 41

witnesses

Answer 41

• generally, ANYONE can be a witness= 4 yr old and 99 yr old, look for whether witness knows the difference between lie and truth, and understand whats going on and they have PERSONAL KNOWLEDGE, based on their perception

Question 42

expert witness

Answer 42

judge must be the one to admit expert

an expert witness may offer opinions or conclusions if:
* The subject matter is scientific, technical, or other specialized information; and
* It will help the trier of fact understand the evidence or determine a fact in issue.

Courts have generally rejected expert testimony about witness credibility

A court may allow demonstrations and experiments to be performed in the courtroom. Science experiments are permitted but may be excluded if they will result in an undue waste of time or confusion of the issues

expert must lay foundation- prove education, background
* may be cross-examined
* may only trstify as expert in subject they are expert in, other testimony on other subjects is just lay person testimony
* in CRIMINAL CASE, may NOT state an opinion on the MENTAL STATE of the DEFENDANT

daubert test

Courts require that the expert:
1. Be qualified by knowledge, skill, experience, training, or education;
2. Base his testimony on sufficient facts or data
3. Base his testimony on reliable principles and methods; and
4. Apply the principles and methods reliably to the facts of the case

the party seeking to admit expert testimony must prove that the testimony is reliable by a prepondernace of the evidence

Ultimate Issue
* Experts may express an opinion on the ultimate issue in most types of cases.
* Courts do not allow experts to testify about whether a criminal defendant had the requisite mental state of any element of a crime or defense

Basis of Expert Opinions

An expert may base his or her opinion on:
* Personal observation
* Evidence presented at trial or
* Information reasonably relied upon by experts in that particular field
* May base opinion on facts that would otherwise be inadmissible at trial
* The basis for the expert opinion may not necessarily be admissible unless the probative value of the information in evaluating the expert’s testimony substantially outweighs any prejudice.

when parties pose hypothetical questions to experts, those questions are typically based on facts presented in evidence at trial. a hypothetical question that does not include all clearly significant facts at issue in a case, which are necessary to reliably answering the hypothetical, would be irrelelevant.

even when an expert is qualified to offer expert testimony, a party may challenge an expert witness’s qualifications and knowledge in the field to cast doubt on his credibility or the weight that should be given to his testimony.

Court-Appointed Expert
* The court may appoint an expert witness
* Must let each party know what the witness found
* Each party can depose the expert and call or cross-examine the expert.

Question 43

public policy exclusions: liability insurance

Answer 43

liability insurance

Evidence that a person was or was not insured against liability is not admissible to prove negligence or wrongdoing.
* Except—when evidence of insurance coverage is relevant for some other purpose, like to show control

Question 44

public policy exclusions: subsequent remedial measures

Answer 44

CANNOT offer evidence that party fixed something after an injury to prove negligence, culpable conduct, defective product or design, or an inadequate warning
BUT may be offered to show OWNERSHIP or CONTROL

Question 45

public policy exclusions: offer to settle/compromise

Answer 45

there must be a DISPUTE (pending dispute) first

any statement made as offer to settle case or made during negotiations about claim NOT ADMISSIBLE (AND NOT SEVERABLE) to show liability, prove the validity or the amount of a disputed claim, or impeach by prior inconsistent statement (CANT BE UNILATERALLY WAIVED EITHER)
* exception: when made during negotiations in civil disputes involving government regulatory, investigative, on enforcement agency (NOT BETWEEN PRIVATE PARTIES) and offered in subsequent criminal case you CAN use it to prove the above elements

VVVVVVVVVVV

BUT settlement statement for other purposes, ARE ALWAYS ALLOWED TO BE USED IN ANY CIRCUMSTANCE IF ITS TO PROVE:
* bias,
* negating contention of undue delay,
* or proving effort to obstruct criminal investigation or prosecution

Question 46

public policy exclusions: offer to pay medical expenses

Answer 46

• statement made to pay medical bills also **NOT ADMISSIBLE **
• admissions made with offer to pay bills CAN be severed and are ADMISSIBLE

Question 47

public policy exclusions: plea negotiations

Answer 47

Not admissible in a civil or criminal case

Includes: withdrawn guilty pleas, nolo contendere pleas, offers to plead guilty, and statements
made while negotiating a plea

However, a defendant may waive this protection if the waiver is made knowingly and voluntarily.

However, this rule does not prevent plea bargains from being used for IMPEACHMENT purposes when the defendant who made the plea is a prosecution witness in another defendant’s trial

statements made during plea discussions are NOT admissible against defendant; BARRED: statements made during plea negotiations that did not result in a guilty plea or resulted in a guilty plea that was later withdrawn.

Question 48

public policy exclusions: Past Sexual Conduct

Answer 48

Victim’s conduct (Rape Shield Laws)

In general, evidence of a victim’s past sexual behavior or sexual predisposition is not admissible in a criminal proceeding involving sexual misconduct

Exceptions in a criminal case
* Evidence of a victim’s past sexual conduct is admissible to:
* Show that the defendant was or was not the source of physical evidence, such as semen or bruises; or
* Show the victim’s past sexual conduct with the defendant to show consent
* May be admissible in certain circumstances when exclusion would be too unfair to the
defendant (exclusion would be unconstitutional)

Exceptions in civil cases
* Evidence of the victim’s past sexual conduct or predisposition is admissible only if its probative value substantially the danger of harm to the victim and unfair prejudice to any party.
* Evidence of reputation is admissible only if the victim brings it up

VVVVVVVVVVVVVVVVVV

Defendant’s Conduct (FRE 413–415)

In a criminal or civil case in which a defendant is accused of committing an act of sexual assault (and the like) or child molestation, evidence that the defendant committed any other sexual assault or child molestation is admissible to prove any relevant matter.

These rules allow admission of prior bad acts in order to make a propensity argument, which is contrary to the general character evidence rules.

Question 49

constitutional limitations to the hearsay rules

Answer 49

the confrontation clause (sixth amendment

(1) Face-to-Face Confrontation
* Criminal defendants have the right to be confronted with the witnesses against them.
* Witnesses must testify in front of the accused; strong preference for face-to-face confrontation
* Sometimes particular accommodations are necessary to protect the interest of a vulnerable witness, such as a child.

(2) Out-of-Court Statements
* Basic principle of Crawford: out-of-court statements that are testimonial give rise to Confrontation Clause problems.
* Testimonial—made with the primary purpose of ascertaining past criminal conduct (like statements made to police but NOT statements made to friend/finacee)
* Testimonial statements can only be admitted against a criminal defendant if:
* The declarant is now unavailable; and
* The defendant had a prior opportunity to cross-examine that declarant.
* Statements made for the purpose of getting help (emergency doctrine) should not be considered testimonial.

VVVVVVVVV

due process clause (fourteenth amendment)

If evidence rules restrict a criminal defendant’s ability to mount a defense, the rules might violate the Due Process Clause.

Question 49

harmless error