Relevance

Question 1

Two-step Approach to Relevance Q’s:

Answer 1

Step 1: Determine whether evidence is relevant (tends to prove/disprove material fact).

Step 2: If relevant, determine whether the evidence should nonetheless be excluded based on (1) judicial discretion or ( 2) public policy.

Question 2

General Rule : PET

Answer 2

Must relate to

P: person in controversy
E: event
T: Time

**important factor : proximity in time to the current event

Question 3

Exceptions to PET

Answer 3

1. To prove causation
2. prior false claims or same bodily injury
3. similar accidents/injuries caused by same event or condition (*absence of sim. accidents -knowledge)
4. rebutting a claim of impossibility
5. habit
6. business routine/industrial custom

Question 4

Habit

Answer 4

a person’s regular response to a specific set of circumstances.

FRE 406: Evidence of a person habit may be admitted to prove that on a particular occasion the person acted in accordance w/that habit.

Question 5

words indicating habit

Answer 5

“instinctively”
“automatically”
“invariably”
“always”

Question 6

Discretionary Exclusion of Relevant Evidence

Answer 6

a trial judge has broad discretion to exclude relevant evidence if

probative value is substantially outweighed by the danger of:

unfair prejudice
confusions of issues
misleading the jury
undue delay
waste of time, or 
needles presentation of cumulative evidence 

** under FRE, unfair surprise is NOT a valide ground for exclusion

Question 7

exclusion of relevant evidence for pub policy reasons

Answer 7

1. Liability insurance
2. subsequent remedial measures
3. settlement offers
4. offers to pay med expenses **accompanying admissions of fact are admissible.
5. withdrawn guilty pleas, or offers to plead guilty, no contest

Question 8

Character Evidence

Answer 8

1. determine purpose - impeachment or substantive?
2. exceptions:

Reputation + Opinion testimony
&
MIMIC

Motive
Intent
Mistake (absence of )
Identity
Common plan/scheme 

3. crim or civil case?

criminal

Question 9

Which statement is true regarding a memorandum used at trial to refresh a witness’s present recollection?

Answer 9

A: May be offered by the adverse party.

Under Federal Rule 612, whenever a witness has used a writing to refresh her memory on the stand, an adverse party is entitled to have the writing produced at trial, to inspect it, to cross-examine the witness thereon, and to introduce it into evidence.
Unlike the adverse party, the party using a memorandum to refresh the witness’s recollection has no right to offer it into evidence.
When a memorandum is used at trial to refresh a witness’s recollection, it may be used solely to refresh her recollection and need not be authenticated.
There is no signature requirement for a memorandum used to refresh the witness’s recollection.

Question 10

A memorandum used by a party at trial to refresh a witness’s present recollection:

Answer 10

Need not be authenticated

When a memorandum is used at trial to refresh a witness’s recollection, it may be used solely to refresh her recollection and need not be authenticated. The writing is intended to help the witness to recall by jogging her memory, but the witness usually may not read from the writing while testifying. The memorandum is not introduced into evidence by the party using it to refresh the witness’s recollection (although it may be introduced by the adverse party). Because a memorandum used solely to refresh a witness’s recollection is not introduced into evidence, it is not hearsay and need not fall within a hearsay exception.

Question 11

Under the “recorded recollection” exception to the hearsay rule, certain records made by a declarant at or near the time of the event in question may be admissible.

Answer 11

Under the “recorded recollection” exception to the hearsay rule, where a witness’s memory of an event cannot be revived by reviewing a memorandum or other record made by the witness at or near the time of the event, a party may introduce the record into evidence.
There is no requirement that the declarant be unavailable for the exception to apply. Rather, the exception applies when the witness is on the stand and unable to recall the event even after reviewing the record.
There are several foundational requirements for the admission of a record under this exception. One is that the record must have been made by the witness, made at the witness’s direction, or adopted by the witness. Thus, the witness must have known about the record before trial.
If admitted under this exception, a record may be read into evidence and heard by the jury (but not received as an exhibit unless offered by the adverse party). This is in contrast to “present recollection revived,” which allows a party to use any writing for the purpose of refreshing the witness’s memory on the stand. In that case, the writing may be used solely to refresh the witness’s recollection and is not introduced into evidence.

Question 12

What are the foundational requirements for the admission of a record under “recorded recollection”?

Answer 12

One is that the record must have been made by the witness, made at the witness’s direction, or adopted by the witness. Thus, the witness must have known about the record before trial.

Question 13

“recorded recollection” v. “present recollection revived”

Answer 13

Under the “recorded recollection” exception to the hearsay rule (also called “past recollection recorded”), where a witness’s memory of an event cannot be revived by reviewing a memorandum or other record made by the witness at or near the time of the event,

• a party may introduce the record into evidence by reading it aloud to the jury.
• The “recorded recollection” exception only applies when a testifying witness is unable to remember the contents of the record (and when several other foundational requirements are met). It does not apply when a declarant is unavailable.

“present recollection revived,” which allows a party to use any writing for the purpose of refreshing the witness’s memory on the stand.

• the writing may be used solely to refresh the witness’s recollection and is not introduced into evidence.
• If admitted under the “recorded recollection” exception, a record may be read into evidence and heard by the jury, but it is not received as an exhibit unless offered by the adverse party.

Question 14

what requirements exist for admissible expert testimony?

Answer 14

(i) The opinion must be relevant, and
(ii) The methodology underlying the opinion must be reliable.

To testify as an expert, a person must have special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates.
The expert must possess reasonable certainty or probability regarding his opinion. If the opinion of the expert is a mere guess or speculation, it is inadmissible.

Question 15

Expert Testimony opinion may be based on :

Answer 15

An expert’s opinion may be based on one or more of the following sources of information:

(i) facts that he knows from his own observation,
(ii) facts presented in evidence at the trial and submitted to the expert, or
(iii) facts not in evidence that were supplied to the expert out of court and which are of a type reasonably relied upon by experts in the particular field in forming opinions on the subject.

Question 16

interrogation of W - specific acts?

Answer 16

Under Federal Rule 608(b), subject to the discretion of the trial judge, a witness may be interrogated on cross-examination with respect to any specific act that may impeach his character and show him to be unworthy of belief, as long as the act is probative of truthfulness (i.e., an act of deceit or lying).

Question 17

the driver states on direct examination that he had had several beers as he drove his truck that evening and was under the influence of drugs when his truck struck the woman’s car. The counsel for the moving company wants to confront the driver with his deposition testimony that he was completely sober at the time of the accident.

Will this evidence be permitted?

Answer 17

The evidence will be permitted to impeach and as substantive evidence. For the purpose of impeaching the credibility of a witness, a party may show that the witness has, on another occasion, made statements that are inconsistent with some material part of his present testimony. Furthermore, a testifying witness’s prior inconsistent statement made while under oath and subject to penalty of perjury in a deposition or prior hearing is not hearsay under the Federal Rules, and is therefore admissible as substantive evidence of the facts asserted.

Question 18

prior inconsistent statement by extrinsic evidence following requirements must be met

Answer 18

t is not enough that the prior inconsistent statement cast doubt on the witness’s credibility. Instead, the statement must be relevant to the case; i.e., it cannot be a collateral matter. Furthermore, the witness generally must be given an opportunity to explain or deny her statement at some point during trial, and the adverse party must be given an opportunity to examine the witness about the statement. There are certain exceptions to this foundational requirement. For instance, if the inconsistent statement was made by a hearsay declarant, the declarant may be impeached despite the lack of a foundation. Furthermore, the foundation is not required when the inconsistent statement qualifies as an opposing party’s statement.

Question 19

Under the Federal Rules, when offered to prove the truth of the matter asserted, a testifying witness’s prior inconsistent statement made at a deposition is:

Answer 19

Not hearsay, as long as the witness is subject to cross-examination

A testifying witness’s prior inconsistent statement made at a deposition is not hearsay because the statement was made under penalty of perjury. Prior inconsistent statements made under oath at a prior trial or proceeding, or in a deposition, are considered nonhearsay under the Federal Rules as long as the declarant is now testifying and subject to cross-examination (i.e., willingly responding to questions).
Whether the witness is given an opportunity to explain or deny the inconsistent statement relates to whether extrinsic evidence of the statement can be used to impeach the witness. It does not relate to the hearsay analysis.