Outline

Question 1

How can evidence rulings be challenged?

Answer 1

• If evidence is admitted: objection
• If evidence is excluded: offer of proof
• Challenge does not need to be renewed after a definitive ruling has been made

Question 2

When is an evidence ruling reversible?

Answer 2

Plain Error - error that is obvious to a reviewing court & it affects substantial rights

Question 3

Limited Admissibility

Answer 3

Evidence may be admissible for one purpose but not another. If so, court must restrict the evidence to its proper scope and instruct jury accordingly

Question 4

Judicial Notice

Answer 4

The courts acceptance of a fact as true without requiring formal proof

• Adjudicative Facts: facts of case at hand typically decided by jury; subject to judicial notice if the fact is not subject to reaosnable dispute because: 1) generally known in community or 2) can be accurately and readily determined from reliable sources
• Instructing Jury:
  a) Civil Case - jury MUST be instructed to accept noticed facts as conclusive

b) Criminal Case - jury must be instructed that they MAY or MAY NOT accept judicially noticed facts as conclusive

Question 5

Cross Examination Limits

Answer 5

Cross examination is generally limited to: 1) matters of direct examination and 2) credibility

Question 6

Motion to Strike

Answer 6

Examining party may move to strike a unresponsive answer

Question 7

Leading Questions - What are they? When are they allowed?

Answer 7

Leading questions suggest the answer within the question

Direct Exam - not permitted UNLESS: 1) hostile witness, 2) needed to develop W’s testimony, or 3) W struggles to communicate

Cross Exam - no restrictions on leading questions

Question 8

What makes a question improper?

Answer 8

• Compound
• Assumes facts not in evidence
• Argumentative
• Calls for conclusion/opinion
• Repetitive
• Lack of foundation

Question 9

When must court exclude witnesses? When can they not?

Answer 9

Court must exclude witnesses form the courtroom so that they do not hear testimony of other witnesses - EXCEPT:

• Natural person parties to the case
• Individual designated as a rep of non-natural person parties
• Persons essential to a party’s presentation of the case
• Persons whose presence is permitted by statute (ex: victim)

Question 10

Burden of Production vs. Burden of Proof

Answer 10

Burden of production = must produce legally sufficient evidence for each element of a claim such that a reasonable trier of fact could infer the alleged fact has been proven (prima facie case)

Burden of persuasion =
- Civil - preponderance of the evidence
- Criminal - beyond a reasonable doubt

Question 11

Destruction of Evidence - whats the presumption?

Answer 11

Generally raises a presumption that the evidence would be unfavorable to the destroying party if the other party establishes: 1) destruction was intentional, 2) evidence is relevant, and 3) alleged victim acted with due dilligence as to they destroyed evidence

Question 12

Rule 403 Exclusions

Answer 12

If the probative value is substantially outweighed by the danger of unfair prejudice (confusing issues, misleading jury, undue delay, wasting time, needless presentation of cumulative evidence)

Question 13

D’s Character Evidence - Civil Cases

Answer 13

In civil cases, character evidence is NOT admissible to prove a person acted in accordance with that character (or trait) on a particular occasion

It IS admissible when character is an essential element of a claim or defense instead of just being used to prove a person’s conduct (ex: defamation, neg hiring, entrustment)

Question 14

D’s Character Evidence - Criminal Cases

Answer 14

By Prosecution - NOT permitted to intro evidence of D’s bad character to prove D has a propensity to commit crimes and so is likely to have committed the crime

By D - IS permitted to intro evidence of good character as being inconsistent with type of crime charged but MUST be pertinent to the crime charged and must be rep/opinion testimony

Once D opens the door with evidence of good character, prosecution can rebut by attacking D’s character

Question 15

Character Evidence - Victims Character

Answer 15

By defense - D may intro reputation/opinion evidence of V’s character when relevant to the defense asserted (evidence of V’s sexual conduct very limited)

By prosecution - prosecution can offer rebuttal evidence of V’s good character when D has introduced evidence of V’s supposed bad character (and trait for peacefulness in homicide case to rebut evidence accusing homicide V as first aggressor)

Question 16

Character Evidence - Impeachment

Answer 16

Character evidence of W’s untruthfulness IS admissible and relevant to impeach a W

Question 17

When can/can’t bad acts be introduced?

Answer 17

Bad acts are NOT admissible to show D’s criminal propensity to prove he committed the crime in question

Bad acts ARE admissible for MIMIC: Motive, Intent, absence of Mistake, Identity, or Common plan (may be used for any purpose other than proving D committed crime because of propensity)

• When D requests, prosecution must provide notice of MIMC evidence to be offered & purpose; must give notice in writing before trial unless court excuses lack of pretrial notice for good cause

Question 18

When can specific acts be introduced as character evidence?

Answer 18

Civil - when character evidence is an essential element of claim or defense it can be proven with specific acts through rep or opinion testimony

Criminal - relevant specific acts may be used when character is an essential element of crime or defense; specific acts CANNOT be used to show propensity

Cross examination - a character W may be asked about specific acts committed by the person about whom the W is testifying

Question 19

Habit Evidence

Answer 19

Habit = a person’s particular routine (semi-automatic) reaction to a specific set of circumstances

Evidence of a person’s habit (or organization’s routine) is admissible to prove the person acted in accordance with the habit on a particular occasion

May be admitted without corroboration

Question 20

How can witnesses be impeached?

Answer 20

A challenge to W’s testimony can be based on character for untruthfulness, bias, ability to perceive or testify accurately, contradictory prior statements, or another witness

1) W’s character for truthfulness - cannot bolster only rebut; opinion/rep testimony allowed for attack; specific acts not allowed unless its probative; extrinsic evidence of convictions allowed if W denies

2) criminal convictions - allowed ti impeach W’s truthfulness if it it involved dishonesty or 1+ year of jail (no pardoned or juvenile convictions allowed)

3) prior inconsistent statements/contradictory evidence - allowed for impeachment if inconsistent with W’s present testimony; extrinsic evidence only allowed if W has chance to explain

4) bias or interest - relevant to credibility

5) sensory competence

6) collateral issues - generally cant impeach with extrinsic evidence of collateral matters

Question 21

Rehabilitation of a Witness

Answer 21

• explain/clarify on redirect examination
• offer opinion/rep evidence of W’s character for truthfulness (only if attacked)
• offer prior consistent statement to rebut express/implied charge that W lied due to improper motive/influence

Question 22

Recollection Refreshed

Answer 22

Present recollection refreshed - W may examine any item to refresh their present recollection - testimony must be based on refreshed recollection not item (no reading); item may be redacted by court and admissible for substantive purposes only if it satisfies other restrictions on admissibility

Past recollection recorded - memo/record about matter W once had knowledge of but now has insufficient recollection of to testify about may be admissible under recorded recollection hearsay exception; may be read into evidence

Question 23

Qualified Experts

Answer 23

Testimony must be based on sufficient facts/data

Expert must qualify by knowledge, skill, experience, training, or education

Expert may not state an opinion re whether D had requisite mental state

Question 24

Authentication of Tangible Evidence

Answer 24

All tangible evidence must be authenticated with sufficient evidence to support a finding that the things is what the proponent claims it to be

1) physical objects - authenticated through personal knowledge, distinctive characteristics, or chain of custody (photos/diagrams/maps)

2) documentary evidence - usually authenticated by stipulation, eyewitness testimony, or handwriting verification
- ancient docs: at least 20 years old, in condition unlikely to create suspicion, found in likley place
- public records - recorded/filed in public office
- reply letter - written in response to communication
- handwriting verification - comparison or non-expert with personal knowledge
- self-authenticating - does not require extrinsic evidence (gov authorized docs, certified public records, newspapers)

Question 25

Best Evidence Rule

Answer 25

Original doc must be produced to prove contents of writing when contests are at issue or W is relying on contents when testifying

Duplicate is reliable unless theres a genuine question re authenticity of the original or circs make it unfair

Original not required when its lost/destroyed in good faith

Voluminous docs - contents of voluminous docs may be presented as summary if such contents cannot be conveniently examined in court; originals or duplicates must be made available to examines/copy by other parties at reasonable time/place; court may order production

Question 26

Parol Evidence Rule

Answer 26

PER operates to exclude evidence that, if introduced, would change the terms of a written agreement – only evidence of PRIOR or CONTEMPORANEOUS negotiations is subject to PER (negotiations after the fact are not prohibited)

Complete Integration - contains all terms to which parties agreed; PER in effect and no extrinsic evidence allowed

Partial Integration - contains some but not all agreed upon terms; extrinsic evidence that adds to the terms is admissible, while extrinsic evidence that contradicts terms is NOT admissible

Exceptions: extrinsic evidence is always admissible to clarify ambiguities, prove course of dealings, show fraud/mistake/duress, or show presence/absence of consideration

Question 27

Physician-Patient Privilege & Psychotherapist Privilege

Answer 27

Privilege belongs to cleint - N/A if patient’s physicial or mental condition are at issue

Question 28

Sexual Crimes - Conduct

Answer 28

V’s conduct: rape shield laws - evidence of sexual behavior/predisposition is N/A in any proceeding involving sexual misconduct. Specific acts may be admissible to prove D is not source of physical evidence. May be admissible in civil case if probative value > prejudice. Reputation only admissible if V opens door.

D’s conduct: evidence of sexual assault in criminal/civil case admissible to prove any relevant matter (NOT limited to convictions)

Question 29

Hearsay

Answer 29

An out of court statement offered to prove the truth of the matter asserted

If offered to prove something other than the truth of the matter asserted (legally operative facts, effect on recipient, state of mind, identification, and impeachment/rehabilitation) it is not hearsay

Question 30

Non-Hearsay

Answer 30

Prior statements of a trial witness:
- Prior inconsistent statement under oath to impeach credibility and as substantive evidence
- Prior statement of identification
- Prior consistent statement used to rebut a charge of recent fabrication

Opposing party statements: - if a party says something, it can be used against them without hearsay issues)
- adoptive admissions
- statements by con-conspirators during conspiracy
- vicarious statements (statement made by one person imputed to another base don relationship (ex: EE/ER))

Question 31

Hearsay Exceptions - Declarant Unavailable

Answer 31

1) Former testimony (if there was chance for exam)

2) Dying declaration (declarant believed death was imminent, statement was about death [applies only in homicide and civil cases])

3) Statement against interest

4) Statement of personal/family history

5) Statement against party who caused declarant’s unavailability

Question 32

Hearsay Exceptions - Declarant Availability Irrelevant

Answer 32

1) Present sense impression

2) Excited utterance

3) Statement of mental, emotional, or physical condition - then-existing SOM (present intent, motive, plan) or emotional/physical condition

4) Statement made for medical diagnosis or treatment - statement can be made to doc or someone else; need not necessarily be made by patient

5) Recorded recollection - W not able to testify but W knew; made when matter was fresh in W’s mind

6) Business record - record of usual operations (not prepped just for lit); made by someone with knowledge

7) Public records - statement of public office/agency that sets out activities of office, observation of person under duty to report (but not police in crim case) or factual findings of legal investigation

8) Learned treatises - statement in treatise, periodical or pamphlet not excluded if expert W relied on statement during direct/cross

9) Judgment on previous condition - final judgment must be entered after trial or guilty plea; for crimes punishable by death or 1+ years; evidence offered to prove any fact essential to sustain judgment

Question 33

Residual Hearsay Exception

Answer 33

“catch all” exceptions for statement not otherwise covered by FRE

statement must be 1) supported by sufficient guarantees of trustworthiness, and 2) more probative than any other evidence that the proponent can obtain through reasonable efforts

Question 34

Hearsay Evidence Constitutional Grounds

Answer 34

Sixth Amendment Confrontation Clause - requires D to be unavailable and D had chance to cross. Face to face confrontation is preferred but can be denied if public interest at stake

Fourteenth Amendment Due Process Clause - may prevent application of hearsay rule when rule unduly restricts D’s ability to mount defense