MBE Evidence Flashcards
1
Q
Witness’ Personal Knowledge testimony
A
A non-expert witness must have personal knowledge of a matter in order to testify about it.
Personal knowledge can be established by the witness’s own testimony or other means.
2
Q
Admissibility of Character Evidence
A
Evidence about a person’s character used to show they acted in conformity with that character trait, including evidence of specific bad acts used to show that person’s propensity to commit a crime, is generally inadmissible
(subject to exceptions)
3
Q
who determines if evidence is admissible?
A
the court
> findings of law = judge
(includes prelim questions that involve some facts)
> findings of fact = jury
4
Q
preliminary hearings
A
conducted outside presence of jury when:
> determining admissibility of a confession in a criminal trial
> D is also a witness in a criminal case and they request prelim hearing
> when justice requires (bc there’d be unfair prejudice w/out it)
5
Q
who decides the weight and credibility of evidence?
A
the jury
6
Q
when can a ruling of whether evidence is admissible/inadmissible be later reversed on appeal
A
(1) a party’s substantial right was affected (not harmless error)
(2) the judge was notified of the mistake and given a chance to correct it
*by IMMEDIATELY objecting to its admission
*by offer or proof of why to admit something if the court had refused
7
Q
Plain Error Rule
A
appellate court can sometimes reverse a case if there is a plain error aka obvious on its face
EVEN IF there was no objection/offer of proof to preserve the appeal
8
Q
when can a court give the jury a limited instruction?
A
> when the objecting party requests it
bc remember: evidence can be admissible for one purpose but not another
9
Q
rule of completeness
A
> if a party introduces parts of written a statement, the opposing party can introduce other parts of that statement so that it makes sense/not taken out of context
can be done immediately
can still be introduced even if they’re otherwise considered inadmissible
but they have to be relevant
10
Q
judicial notice
A
court instructs jury to accept an adjudicative fact (ones the jury decides) as true considering it’s not subject to reasonable dispute
> Civil case:
MUST be taken as true
> Criminal case:
MAY be taken as true
11
Q
can you ask leading questions on direct examination (ur own witness)?
A
No, except when:
(1) to elicit prelim background info
(2) witness has hard time communicating bc of age/infirmity
(3) when you call a hostile witness
(one from the other side)
12
Q
present recollection refreshed
A
witness cant remember so they’re giving a doc ONLY to refresh their memory
> they only read it to themselves
> doc doesn’t become evidence
> OC can see/inspect/give to jury
13
Q
cross-examination
A
> limited to the scope of direct aka you can only cross someone on stuff their own attorney asked on direct
courts can allow broader inquiry
you can always use leading Qs
14
Q
improper Qs that u can object to
A
> compound Qs
Qs asking about facts not in evidence
Argumentative Qs
Qs calling for a conclusion a witness isn’t qualified to make
repetitive Qs
15
Q
when must a witness be excluded from the courtroom?
A
at the request of either party in order to avoid them hearing the testimony of others and piggybacking
witnesses that can never be excluded:
> essential witness to the case
> someone permitted by state rule to remain in the courtroom
> a party in the case
16
Q
burden of production
vs.
burden of persuasion
A
> burden of production
coming up w enough evidence for the issue to go to a jury
> burden of persuasion
convincing the jury in ur favor
17
Q
burden of proof for
- civil cases
- criminal cases
A
> Civil: preponderance of the evidence
> Criminal: beyond a reasonable doubt
18
Q
Rebuttable presumption
A
when burden of proof shifts from one side to the other
(proof= burden of production shifts aka evidence)
19
Q
if a party destroys evidence what will the court presume?
A
that the evidence they destroyed was adverse to them
20
Q
relevance
A
makes a fact more likely than it would be without the evidence
> evidence is relevant if its material and probative
21
Q
when can a court exclude relevant evidence?
A
when the the risk of prejudice substantially outweighs its probative value
(or risk of: confusion of the issues, misleading the jury, waste of time)
22
Q
what will a judge do when they’re determining relevancy of evidence it its relevance hinges on a question of fact best for the jury?
A
court will admit the evidence for the jury to decide on that fact later themselves
23
Q
what is character evidence and is it admissible
A
character evidence is about someone making an argument that a D acted in conformity w a character trait to prove they’re guilty
> Character evidence can’t be used to prove propensity.
> usually not admissible
(bc the risk of prejudice substantially outweighs the probative value)
has exceptions
24
Q
when allowed, how you prove character evidence
A
(1) reputation
(2) opinion
*D cant bring specific acts about their own good character bc it creates mini trial
* can use others to open the door through rep or opinion
*Prosecution can then ask about specific acts by D on cross-examination of WITNESSES ONLY
> CANNOT ask the Defendant themselves on cross, about specific acts
25
can you use character evidence to make an argument for something other than propensity?
Yes
> Civil:
If character is at issue in the case
- Defamation
- Child custody
- Negligent entrustment
- Misrepresentation
> Criminal:
- MIMIC
26
can propensity arguments be made to impeach witness?
yes
27
can you make propensity arguments in civil cases?
almost never; exceptions usually just for crim cases
EXCEPT:
P can make a propensity argument about D in civil cases of child molestation/SA
28
Character evidence exception:
D's good character
Prosecution can't introduce bad character of the D
But after P rests, D can open the door with witnesses who can testify about their good character through:
(1) reputation
(2) opinion
BUT ONLY if it has to do with (1) truthfulness/honesty OR (2) peacefulness
Then prosecution can rebutt and can ask about specific acts but cant prove any incidents; must accept witnesses' answer
29
can a D bring evidence of a victim's character?
Yes, D can introduce evidence of a vic's pertinent trait
> usually only happens in homicide/assault cases to argue vic started it and D was self-defending
this opens the door for prosecution
> to rebutt w/ reputation or opinion of vic's character
> accuse D of the same trait D accused vic of
30
When can prior bad acts be shown?
(1) When D opens the door through rep/opinion of truthfulness or peacefulness and the prosecution gets to cross examine D w prior bad acts
(2) MIMIC exception
31
MIMIC
exception to character evidence bc its bought for a reason other than to show Ds propensity/guilt
MIMIC:
- Motive
- Intent
- Mistake
- ID (connect D to crime with unique pattern of behavior (ie, criminal signature/MO)
- Common plan/scheme
32
Habit evidence
admissible to prove that someone's action was in conformity with their habit
> something that's routine. regular, automatic
> can also show habit of an organization
33
competence to testify
> personal knowledge +
> willing to make an oath to tell the truth
34
child competency to testify
> personal knowledge
> mature enough to testify about obligation to tell the truth
35
can a juror testify as a witness regarding the validity of a verdict or indictment?
No, unless
> there was extraneous, prejudicial info brought to their attention (like being provided inadmissible evidence)
> there was an outside influence on a juror (bribe/threats)
> clerical or technical error made in entering the verdict
> juror made clear statement they relied on racial stereotypes when convicting
36
3 ways to impeach a witness
(1) show witness was dishonest; bad character for truthfulness/untruthfulness
(2) bias
(3) sensory competence
> witness is mistaken in some way bc she didn't see/hear etc as well as thy thought
*any prior inconsistent statement also ok
37
3 ways of impeaching a witness through showing bad character for truth
(1) you use a character witness
> they'll speak to target witnesses' dishonesty through use of OPINION or REPUTATION ONLY!!
(2) ask abt specific bad acts
> can cross-examine a witness abt bad acts of dishonesty only bc impeachment
> you can only ask; not prove. If they deny, drop it
(3) ask abt prior convictions
> felony Qs ok if crime abt truthfulness/dishonesty only.
> Qs abt crimes w/ dishonesty/false statements
> cant ask if it fails probative test
> if witness is the criminal defendant then can only ask abt prior convictions if passes probative test
> if conviction more than 10yrs old then (1) must give notice of Q (2) has to pass probative test
38
Prior Inconsistent Statements
> can be used to impeach a witness
> can be proved through extrinsic evidence but only if the witness is then given a chance to explain/deny the evidence
39
Can a Hearsay Declarant be impeached?
Yes; if hearsay comes in through an exception then declarant it's kinda acting like a witness and thus can be impeached
40
3 ways to
Rehabilitate a Witness
(1) give the witness a chance to explain
(2) Prior consistent statement
(3) evidence bolstering the witness' character for truthfulness (by reputation or opinion) by bringing a witness to testify on that etc
41
Lay Witnesses
> generally we want facts not opinions
> opinions of common sense impressions are admissible (speed, intoxication, appearance etc)
> cant opinionate on specialized knowledge
to be admissible, lay witness opinion must be:
> based on their perception
> helpful to a clear understanding
42
Expert witness:
Daubert test
(1) must be qualified by knowledge, skill, experience, training, education
(2) base testimony on sufficient facts or data
(3) base testimony on reliable principles and methods
(4) apply the principles and methods reliably case facts
43
can experts express an opinion on ultimate issues?
yes
44
what CAN'T experts testify to?
> a defendant's requisite mental state for any crime/defense
> courts generally reject opinions on witness credibility
45
how do you authenticate real evidence?
(1) personal knowledge (witness recognizes and identifies the item)
(2) distinctive features/markings
(3) chain of custody
46
how do you authenticate documentary evidence?
(1) By stipulation pf the parties
(2) Eyewitness testimony combined with distinctive features
* Ancient Documents
> at least 20 yrs old, condition unlikely to create suspicion, found in a place where likely authentic
47
how do you authenticate handwriting?
> expert/jury compares it to known sample
> lay witness w personal knowledge of the handwriting
48
The Best Evidence Rule
(Original Document Rule)
when its contents are at issue we need the doc themselves
A WITNESS can't describe documents instead of showing them, unless you really need to
so no witness testimony instead of producing the actual doc (duplicate is fine, testimony is not)
49
is a duplicate of a doc fine?
yes unless
> genuine Q about authenticity of the OG
> to be fair, the OG should be required
50
can a witness learn something from a recording and then testify about it?
sure but there is a best evidence problem bc instead of describing what they saw on the recording, its better to produce it
*whenever a witness is describing a doc, there's a best evidence issue
51
Exceptions to the Best Evidence Rule
> unavailable bc lost/destroyed or OG cant be obtained
> public record
> admission by party
52
when will courts allow other evidence of the contents of a document?
when it's about a collateral matter
53
how do you waive the attny/client privilege
> failure to assert the privilege
> voluntary disclosure
> express waiver
> lawyer fails to take precaution bc they're ur agent
53
when do you use state law privileges instead of federal
When deciding state law issues when sitting in diversity jurisdiction
53
attorney client privilege
> protects confidential info between client/attorney if communication was to secure legal advice
Doesn't protect:
> underlying facts beyond the communication
> pre-existing docs
> comm. made in front of unnecessary 3rd parties
54
attorney client privilege:
if corp is the client, what communcation qualifies?
communication by an employee about matters within the scope of employment for purposes of seeking legal advice
55
Exceptions attorney client privilege
> future crime or fraud
> disputes between lawyer/client
56
Work-Product Doctrine
docs prepared by lawyer in anticipation of litigation
*unless OC shows a substantial need for the info + and can't get it w/out undue hardship
57
When doesn't the Physician-Patient Privilege apply
> info wasnt for treatment reasons
> comm was for some illegal purpose
> dispute betwen Dr. and patient
> patient agreed to waive the priv
57
Physician-Patient Privilege
Statements made by a patient to a doctor for the purpose of obtaining medical treatment
58
Psychotherapist-Patient Privilege
> Applies to communications for treatment purposes, between a patient and psychiatrist, psychologist, or licensed social worker
doesnt apply if:
> comm was bc of a court ordered exam
> taken was part of a commitment proceeding
59
5th amendment protection against Self-incrimination
witness not required to give incriminating testimony
> Doesn't apply to Corps
> Applies only to current statements (not prior statements)
> If no risk of criminal trouble, then no privilege (ex: State can ensure no risk through immunity)
60
2 kinds of spousal privileges
(1) Confidential Marital Communications
(2) Spousal Immunity
61
Confidential Marital Communications
(think attny/client; patient/Dr)
> Protects communications made between spouses in confidence
> Survives after marriage
> one can refuse to testify or stop the other from testifying
> Held by both spouses
(1 spouse can refuse & they could also stop the other)
62
Spousal Immunity
(think like 5th amend)
> Gives a spouse the right to refuse to testify in a criminal case against
their spouse
> only applies if currently married
> Covers anything, whether before or during marriage, but only applies while married to the person
ONLY the witness spouse holds the priv so they cant be stopped by Defedant spouse if Witness spouse wants to testify
63
Exceptions to both spousal privileges
> one spouse is suing the other
> one spouse is charged w crimes against their spouse or any children
64
admissibility of liability Insurance
> evidence that someone did or didn't have insurance isn't admissible as proof that they were negligent or at fault
*can be admissible when evidence of insurance coverage is relevant for some other purpose (to show control)
65
Subsequent Remedial Measures
Evidence of repairs or changes made *after* an accident is not admissible to prove fault/product defect
*evidence of SRM can be admissible for another purpose (ex: to show ownership, control, feasibility)
*watch out for red herring of a remedial measure that came before instead of after
66
Settlement Offers or Negotiations
> Where there was a legal dispute between parties, any statement made as an offer to settle a case is NOT ADMISSIBLE to show their liability.
> Legal dispute: Complaint, demand letter, lawyers involved
> inadmissible to prove/disprove the validity or amount of a disputed claim;
*even admissions of guilt "Sorry, I was texting. Here's 100K to settle"
67
Offers to Pay Medical Expenses
> Not admissible to prove liability for injuries
> But statements made or conduct accompanying the offer may be admissible.
*admissions IN
*offers to pay OUT
68
Are Plea Negotiations admissible in court?
never in either criminal/civil cases
69
Is a victim's past sexual conduct admissible?
No,
Except:
> to show whether D was the source of physical evidence
> to show consent based on vic's and Ds sexual history
> when exclusion would be too unfair to the D
> if probative value substantially outweighs the danger of harm to vic
> reputation admissible if the victim brings it up
70
when is defendant's prior sexual conduct admissible?
> in cases where D is accused of SA or child molestation
> propensity argument only here
71
hearsay
> OOCS offered to prove truth of the matter asserted
> hearsay = when declarant is being treated as a witness
> something said out of court is trying to be used as testimony
> usually witness is on the stand stating something the declarant said
> even if declarant/witness same person still could be hearsay
> hearsay ok when for purpose other than to prove truth of matter
72
Common Non-Hearsay Uses
(1) verbal acts
- offered to prove that a statement was even made aka verbal conduct
- a thing done through saying it (like convicting; gets done by saying)
(2) effect on the listener
- offered to prove the effect it had on the person who heard it
(3) state of mind
- offered to prove D's mental state or to show someone's knowledge
(ex: evidence someone spoke French)
73
Multiple Hearsay
hearsay w/in hearsay needs an exception for each level
74
when the declrant is also the witness, there are 3 times their prior statements wont be considered hearsay
UNDER OATH:
(1) prior inconsistent statements (made under oath) will be admissible as substantive evidence [can also be used to impeach] its not hearsay
(2) prior consistent statements
- used to rehabilitate witness but also can be used as substantive evidence
(3) Prior Statements of identification
- a previous OOC identification of a person is admissible
- like a lineup at police station
- declarant must be testifying as witness and be available for a cross
75
Not hearsay:
Admissions of a Party Opponent
> OC can bring up your own past statements against u, thats not hearsay bc u said it yourself
> applies to anything a party said; not just admissions
76
types of Admissions of a Party Opponent
(1) Adoptive Admissions
> adopted statements
> adoption by silence
(2) Vicarious Admissions
> made by agents/employees w/in their scope
(3) Co-conspirators
> statements made in furtherance by co-conspirators
77
Not hearsay:
2 types of adoptive admissions
(1) A statement made by someone else, which is then expressly or impliedly adopted
(2) adoption by silence
> party hear the statement and understood it
> had the chance to respond
> a reasonable person would've denied the statement
78
Hearsay exceptions when declarant is unavailable
(1) Former Testimony
- testimony from an unavailable witness that was given under oath - admissible if there was an opportunity/motive to cross-examine and develop the testimony)
(2) Dying Declarations
- thinks they're dying/death imminent + statements relates to cause of death
- ONLY admissible in homicide and civil case
(3) Statements Against Interest
- statement a reasonable person wouldn't make unless true bc goes against their interests
- if it'd subject a declarant to criminal liability there also must be circumstances clearly indicate the trustworthiness of the statement.
(4) Statements of Personal or Family History
(5) Declarant Unavailable Due to Party’s Wrongdoing
- if someone makes a declarant unavailable just so they can't testify, the anything that declarant said against the party will come in
79
Hearsay Exceptions:
Present Sense Impression
> Statement relating what you’re observing WHILE you’re observing it, like a reporter
> or right after
80
Hearsay Exceptions:
Excited Utterance
> statement made while still excited/under stress caused by the event/condition
81
Hearsay Exceptions:
State of Mind (mental, emotional, or physical condition)
> Statement of a declarant’s then existing physical, mental, or emotional condition
> includes statements of intent
- which can also be used to prove action conformity w that intent
82
Hearsay Exceptions:
Statements Made for Purposes of Medical Diagnosis or Treatment
> statements pertinent to treatment/diagnosis
> doesnt have to have been made directly to a doctor or by patient (mom tell the Dr. ___")
83
Hearsay Exceptions:
Past Recollection Recorded
> witness cant remember something they're testifying on but a record of it exists
> the record can be READ TO THE JURY if:
- concerns a matter the witness once had knowledge of
- record was made/adopted by witness when it was fresh
- accurately reflects the witness’s knowledge
- witness testified they had insufficient memory of the event after consulting the writing on the stand
> can only be read to the jury; but adversary can INTRODUCE as an exhibit it to the jury if they want
84
Hearsay Exceptions:
Business Records
> Any record an act or event made in the course of a regularly
conducted business activity
Admissible if made:
> recorded near the time the event happened
> someone w/ knowledge of the event and under a duty to report it
> as part of regular business practice
not admissible if:
- prepared in anticipation of litigation
- lack trustworthiness
85
Hearsay Exceptions:
Public Records
Certain public records and administrators (ex: fire or health dept, public utilities, etc.)
can include: activities, observations, conclusions
Police reports:
> ok in civil cases
> ok against govt in crim cases
> NOT OK against a criminal defendant
86
Hearsay Exceptions:
Learned Treatises (scientific, historical, or medical)
Statements in a learned treatise, periodical, or pamphlet are excepted from hearsay
> can be used to impeach expert witnesses + as substantive evidence
> CANT be an exhibit but CAN be read into evidence if
(1) the statements are called to the attention of or relied on by an expert witness during examination and
(2) the publication is established as a reliable authority by a party's expert or judicial notice
87
Hearsay Exceptions:
Judgment of Previous Conviction
Admissible to prove any fact that was essential to the judgment
*only works for judgments of conviction NOT judgements of acquittal
88
other Hearsay Exceptions
> Reputation
(Available when reputation/character evidence is admissible)
> 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
89
The Confrontation Clause
(Sixth Amendment)
(1) Face-to-Face Confrontation
- D's have the right to be confronted w the witnesses against them
(2) Out-of-Court Statements
> OOCS that are testimonial give rise to confrontation clause issues
> Testimonial statements can only be admitted a D if (1) declarant is unavailable (2) D had a prior chance to cross-examine them
>Statements made for the purpose of getting help (emergency doctrine) should not be
considered testimonial
90
The 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
91
After D has their character witness testify as to their good character through testimony or opinion, what can the prosecution do next?
> cross-examine that witness about specific acts that relate to the trait D is trying to prove
(goes to witness's credibility but must be asked in good faith by prosecutor)
> call another witness to give reputation/opinion testimony on D's bad trait
92
A criminal defendant may introduce evidence that his character is inconsistent with the crime charged, but only through what?
reputation or opinion testimony
> not specific instances of conduct (bc we cant have a mini trial for good things)
93
A lay witness with personal knowledge of a claimed author's handwriting may testify as to whether a document is in that person's handwriting.
However, the lay witness must not have become familiar with the handwriting for the purpose of the current litigation.
94
Can a witness be impeached with evidence of self-interest or bias that may motivate the witness to testify falsely—from plea bargains? ( bc of benefits received in exchange for testimony)
yes
95
when does the D open the door for character evidence?
(1) when he brings evidence of his own good character
(2) D brings evidence of the victim's bad character
96
If a criminal D calls a witness to testify that the Ds character is inconsistent w the charged crime, what can the prosecution do?
prosecution can:
> in good faith, ask the witness about a specific act committed by the defendant
> disprove by calling another witness to give reputation or opinion testimony
97
true or false:
Evidence of a juvenile conviction is never admissible in a civil case to attack a witness's character for truthfulness.
true
98
Absent public records
testimony by a public official that a diligent search failed to disclose a public record is admissible to prove that the record does not exist—if the public office regularly kept records for a matter of that kind.
99
A witness may be impeached by evidence that directly contradicts the witness's testimony on a material issue. What type of evidence can be used for this purpose.
Both intrinsic and extrinsic evidence may be used
*intrinsic evidence: testimony elicited from the witness sought to be discredited
*extrinsic evidence: evidence from any source other than the witness's own testimony.
100
pleas that are inadmissible
(1) withdrawn guilty pleas
(2) nolo contendere pleas
(3) statements made during plea proceedings, and
(4) statements made during plea negotiations that did not result in a guilty plea or resulted in a guilty plea that was later withdrawn.
101
when is Character evidence admissible in a civil claim,
When a person's character is an essential element of a civil claim
> defamation
> child custody
> negligent misrepresentation/entrustment
> negligent hiring
102
does an affidavit fall under the unavailable declarant former testimony exception?
No, because it is not given during a trial, hearing, or deposition and the other party has no opportunity to cross-examine the affiant
103
for subsequent remedial measures make sure that if ur gonna say its not admissible as a SRM that there isn't a better answer saying it can come in to show ownership/control or to impeach
104
true or false:
A prior inconsistent statement may be used to impeach a witness on a material issue even when it is not admissible substantively.
true
105
requirements for lay witness testimony
A lay witness can testify to any relevant matter they have personal knowledge of
this requires that the witness
(1) perceived the matter first hand
and (2) have a present recollection of that observation
106
how do you impeach a witness?
A party can attack *any* witness's character for truthfulness with:
> reputation
> opinion
> specific acts
(1) convictions for felony or
crime of dishonesty
(2) other bad acts
107
how is a video recording authenticated?
when a witness with personal knowledge of the thing depicted testifies that the recording fairly and accurately depicts that thing.
108
By who can a recorded recollection record be:
> read into evidence
> admitted into evidence
> read into evidence:
- by the witness
> admitted into evidence:
- by the adverse party
109
Is an expert opinion based upon otherwise inadmissible facts/data
admissible?
Yes, if experts in that particular field would reasonably rely on the facts or data in forming an opinion on the subject.
110
A juror is generally prohibited from testifying after trial about jury deliberations unless it's about what?
(1) extraneous prejudicial info
(2) improper outside influence (like threat/bribes)
(3) a mistake made in entering the verdict onto the verdict form
111
who can admit a recorded recollection as an exhibit?
the adverse party
112
Intrinsic v. Extrinsic evidence
Intrinsic Evidence:
- testimony used to discredit witness elicited only from that witness
(always admissible for impeachment)
Extrinsic evidence:
- Evidence used to discredit witness from any source other than witness's own testimony
(only admissible for impeachment if the witness has a chance to explain or deny the inconsistency)
113
Can the protection of making plea negotiations inadmissible in court, be waived?
Yes,
A defendant's statements during plea negotiations are generally inadmissible against the defendant. However, a defendant may waive this protection if the waiver is made knowingly and voluntarily.
114
"bursting bubble" approach in a civil case
"bursting bubble" approach:
> a rebuttable presumption "bursts" when the opposing party in a civil case produces sufficient evidence to contradict the presumed fact.
> then jury weighs the evidence
> if no contrary evidence is introduced, the judge must instruct the jury that they may find the presumption.
114
when P wants to being in character evidence to impeach who has the burden?
The burden is on the defendant—as the party opposing the admission of the conviction—to show that the probative value is substantially outweighed by its prejudicial effect.
114
The hearsay rule bars out-of-court statements that are offered to prove the truth of the matter asserted therein, but not those that are offered for some other purpose—e.g., to illustrate the declarant's world view or belief system.
ask if the statement is proving something on its own/for itself or for something else
115
When a hearsay statement is admitted, the hearsay declarant may be impeached as if the declarant had testified at trial—e.g., by offering evidence that the declarant had a motive to lie or was partial to a party.
116
how is a physical representation of something that could not otherwise be seen authenticated?
(ex: electrocardiogram or x-ray image)
(1) the process for creating the evidence was accurate,
(2) the machine that produced the evidence was working properly, and
(3) the operator of the machine was qualified to operate it.
117
if a lay witness is going to testify on a person's handwriting when would they have had to become familiar with it?
before the litigation but not because of it/for the purpose of
118
if evidence is trying to come in but there's a Q about its relevance, must the relevance be proved before of after introduction of the evidence
the court may admit the proposed evidence on the condition that such proof be introduced later.
119
true or false:
Copies of documents recorded and filed in a public office as authorized by law are self-authenticating if certified as correct
true
120
is it hearsay if the declarant is also the witness?
yes, hearsay applies even when the declarant seeks to testify to his/her own prior statement.
121
are notarized docs self-authenticating?
yes
122
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
what doesn't this apply to?
this exception does not apply to oral statements (or nonverbal conduct) made outside the context of testimony or deposition.
123
can you bring in a civil judgment from a different case to prove yours?
no that's hearsay
124
Is the attorney-client privilege waived if the communication is made in the presence of a co-client?
no the communications are still protected
125
when is evidence of a victim's sexual predisposition admissible?
when the probative value of the evidence substantially outweighs the danger of harm to the victim and unfair prejudice to any party
126
Doctrine of curative admission
when inadmissible evidence is improperly admitted against a party, the court may permit that party to introduce additional inadmissible evidence for the purpose of rebuttal
This is meant to remedy the prejudicial effect caused by the previously admitted evidence.
127
statements by party opponents are admissible for what purposes
both to impeach and substantively
128
A hearsay declarant's credibility may be attacked using any method allowed to impeach a testifying witness, including offering evidence of the declarant's inconsistent statement. But that statement may not be used as substantive evidence unless it is also excepted or excluded from the hearsay rule.
129
A party may impeach a witness's character for truthfulness by introducing evidence of certain criminal convictions—i.e., felonies or crimes of dishonesty typically 10 years old or less. This evidence is meant to suggest that the witness is generally untruthful
130
what must the jury determine after secondary evidence under the best evidence rule is admitted
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 content.
131
What can a criminal defendant who testifies at a preliminary-questions hearing be cross-examined about?
> issues related to the admissibility of the contested evidence
> the defendant's credibility
*but not about other issues in the case
132
Federal inadvertent-waiver rule
An inadvertent disclosure of protected information does not waive the attorney-client privilege or the attorney work-product doctrine if
(1) the disclosure was in a federal proceeding or to a federal agency and
(2) the privilege holder attempted to prevent disclosure and promptly tried to rectify the error.
133
true or false:
A court is not bound by evidentiary rules, except those on privilege, in determining preliminary questions of fact relating to the admissibility of evidence.
true
134
when can a treatise be read into evidence?
(1) when its been established as reliable authority
(2) called to the attention of an expert witness during examination; or the expert themselves relied on it
135
true or false:
A criminal defendant may impeach a witness by introducing evidence of a witness’s juvenile adjudication to show motive to lie or bias
true
136
Can a plaintiff in a civil case provide evidence concerning past sexual assault or child molestation by a defendant if the claim is about sexual conduct by D?
yes
137
After an expert is qualified to offer expert testimony, can a party challenge their qualifications/knowledge in the field to cast doubt on his credibility or the weight that should be given to his testimony?
yes
138
when would you consider the best evidence rule as an option?
either
> the contents of the document are at issue
or
> a witness is relying on the contents of the document when testifying.
139
if a witness learned something from their evidence (photographer at fair learned who the assailant was from his pics)
which is better on the stand, the evidence or their testimony?
the evidence (acc to best evidence rule)
140
evidence of the truthful character of the witness is generally admissible only if the character of the witness for truthfulness has been attacked
141
A statement made by a party to the current litigation is not hearsay if it is offered by an opposing party, even though the statement is being offered to prove the truth of the matter asserted
Ex: police officer testifying about what the defendant told him on the day of the incident
> statement by D offered by the officer not hearsay
142
Although a witness’s character for truthfulness or untruthfulness is always relevant, it can only be proved by either opinion or reputation evidence.
Extrinsic evidence (including another witness’s testimony) of specific instances of conduct is inadmissible to prove a witness’s character for untruthfulness
Note that character witnesses may be cross-examined about specific instances of conduct, but no extrinsic evidence is permissible.
143
The prosecution must provide reasonable notice of the general nature of such evidence that the prosecution intends to offer at trial. The defense is not required to give the prosecution the same notice.
144
Generally, a specific instance of conduct (e.g., lying on a job application) is not admissible to attack or support the witness’s character for truthfulness. However, on cross-examination, a witness may be asked about specific instances of conduct if it is probative of the truthfulness or untruthfulness of (i) the witness or (ii) another witness about whose character the witness being cross-examined has testified.
145
What is the difference between the application of a Dead Man's Statute in a criminal case versus a civil case?
Dead Man's Statutes do not apply in criminal cases.
In civil cases, a party with a financial interest in the outcome of a case is not permitted to testify adversely about a communication or transaction with a person whose estate is a party to the case.
146
reply letter doctrine
to be authenticated
if someone directs an inquiry to another person and then receives a communication that refers or responds to the initial inquiry, the court may infer that the person who made the responsive communication is the person to whom the original inquiry was directed
147
Answers to interrogatories are nonhearsay party admissions.
And when rogg answers incorporate a document, its contents are considered adopted admissions
148
if a party requests for a witness to be removed from the courtroom, the judge must obey
149
a judge is allowed to expand scope of cross-examination even if it wasnt asked on direct
