Rest of Evidence Index Cards

Question 1

Authentication of Writings (item of evidence OTHER THAN testimony of a witness)

Answer 1

• writing (or any secondary evidence of its contents) must be AUTHENTICATED by ADDITIONAL evidence that shows writing is what proponent says it is

Question 2

Examples of proper authentication (handwriting, ancient docs, photos/videos)

Answer 2

• Handwriting verification – lay witness who has familiarity with alleged writer’s handwriting (no in-court comparisons permitted)
• Photos and videos – admissible only if verified by witness as a fair and accurate representation (NOT NECESSARY to call the photographer to authenticate)

Question 3

Authentication of Oral Statements

Answer 3

• when statement is admissible only if said by particular person (e.g., statement by opposing party), authentication as to IDENTITY OF SPEAKER is required
• anyone who has heard voice at any time can identify it

Question 4

Self-authenticating docs

Answer 4

Certain writings prove themselves (e.g., deeds, notarized docs, newspaspers)

Question 5

Best Evidence Rule (i.e., original document rule)

Answer 5

to prove contents of a writing, recording, photograph, the original writing must be produced if terms of writing are material (i.e., W’s knowledge is obtained from a writing; case turns on contents of a legal instrument)

e.g., charged with burglary; no one saw but captured on film; cop said he watched the film and it showed he was burglar –> gotta produce video

Question 6

When does Best Evidence Rule Apply

Answer 6

2 situations

(a) where writing is a legally operative instrument;
(b) where knowledge of a witness re: a fact results from having read it in writing

NOTE: rule does NOT apply where witness has personal knowledge of fact to be proved

Question 7

Evidence sufficient to prove a writing’s contents under best evidence rule

Answer 7

1) Originals
2) Duplicates - must be machine or carbon copy

duplicates are admissible to same extent as originals unless there’s genuine question as to authenticity of original itself

Question 8

secondary evidence of contents

Answer 8

secondary evidence of writing (e.g., oral testimony or handwritten copies) is admissible only if proponent gives a good excuse for original/duplicate’s absence — e.g., loss or destruction of original

Question 9

Exceptions to the Best Evidence Rule (no need to produce original)

Answer 9

1) voluminous documents – voluminous series of docs can be summarized in court (originals relied on must be available for other party to examine and copy)
2) certified public records
3) writing is of minor importance to the case
4) testimony or written admission of opponent – where opponent (party against whom writing is offered) has given testimony, deposition about writing’s contents, proponent can use this and need not give excuse for not producing original

Question 10

real evidence and conditions of admissibility

Answer 10

Real evidence must be relevant and meet 2 requirements
Examples of real evidence: maps, charts, demonstrations, vial containing a blood sample

1) authentication

2) condition of object – it must be known to be in substantially same condition at trial

Question 11

demonstrations

Answer 11

• court (in its discretion) can permit experiments/demonstrations to be performed in courtroom
• must be performed under conditions that are SUBSTANTIALLY SIMILAR to those attending original event

Question 12

competency of witness

Answer 12

witness is generally presumed to be competent

Question 13

inquiry into verdict/indictment

Answer 13

juror is barred from testifying about what occurred during deliberations

juror CAN testify as to:
- whether any extraneous prejudicial info was brought to jury’s attention;
- whether outside influence was improperly brought to bear on any juror;
- whether any juror made clear statement they relied on racial stereotypes to conivict crim D; or
- mistake on verdict form

Question 14

Form of questioning

Answer 14

1) leading questions generally allowed only on cross
2) scope of cross: party has right to cross opposing witnesses but scope is limited to scope of direct and matters that test credibility of witness

Question 15

Use of docs to aid oral testimony on the stand

Answer 15

refreshing recollection / present recollection revived
- witness can use any writing/object for purpose of refreshing their memory
- they may not read from writing while testifying b/c writing is not in evidence and not authenticated
- when witness has used writing to refresh their memory WHILE ON THE STAND, adverse party can have writing produced @ trial, cross witness re: writing, and introduce portions of writing relating to witness’s testimony into evidence

Question 16

opinion testimony by lay witnesses

Answer 16

generally inadmissible

opinion testimony by lay witnesses is admissible if:
1) rationally based on witness PERCEPTION
2) not based on specialized knowledge
3) helpful to trier of fact

examples of admissible lay opinion testimony: speed of a car, intoxication, emotional state of a person

Question 17

opinion testimony by expert witnesses

H-Q-C-F-R (think Council on Foreign Relations - experts!)

Answer 17

experts can give opinions on facts/issues in the case

it’s admissible if:
1) specialized knowledge would help trier of fact (expert uses specialized knowledge to reach conclusions an average juror would not reach alone)
2) expert is qualified
3) reasonable certainty regarding their opinion
4) proper factual basis – 3 sources of proper info: (1) facts based on expert’s own personal observations; (2) facts made known to expert at trial (e.g., expert reviews testimony from trial or counsel relates facts to expert on direct in a hypo); (3) facts not known personally but supplied to expert out of court and of a type reasonably relied upon by other experts in field–think reports of other experts
5) reliable methods

Question 18

fed courts determine reliability of scientific expert testimony using 4 Daubert factors (T-R-A-P)

Answer 18

1) Testing of principle/method
2) Rate of error
3) Acceptance by other experts in same discipline
4) Peer review

Question 19

scope of expert opinions

Answer 19

experts can render an opinion on any ultimate legal issue, such as “X was drunk” but experts can’t give opinion on D’s mental state in a criminal trial if it’s an element of crime or defense

Question 20

use of learned treatise during expert testimony

Answer 20

• can be used not only to impeach experts, BUT also as substantive evidence (to prove that what treatise says is true) under learned treatise exception to hearsay
• treatise must be (1) established as reliable authority by testimony or judicial notice; (2) meaning must be used in context of expert testimony; and (3) read into evidence

Question 21

impeachment general concepts and methods

Answer 21

• impeachment - discrediting a witness
  when evidence is admissible to impeach only, it’s not being offered as substantive evidence (i.e., to prove some fact at issue in case)
• REMEMBER THAT ANY party can impeach the witness
• witness can be impeached by cross or extrinsic evidence (calling other witnesses or introducing docs that prove the impeaching facts)

Question 22

defendant taking the stand

Answer 22

remember that if the defendant takes stand in his own defense, his credibility can be impeached

Question 23

impeachment methods –> impeaching witness w/ facts specific to current case (FOUR)

Answer 23

1. prior inconsistent statements
2. bias
3. sensory deficiencies
4. contradictory facts

Question 24

prior inconsistent statements

Answer 24

• party can show (by cross or extrinsic evidence [if witness denies it]) that witness has on another occasion made a relevant inconsistent statements with their present in court testimony
• when admissible as SUBSTANTIVE EVIDENCE: usually prior inconsistent statements are hearsay; if testifying witness’s prior statement was made under oath at a prior proceeding, it is admissible nonhearsay
• foundation for extrinsic evidence: witness needs to be given chance to explain/deny statement (can be given a chance before or after intro of extrinsic evidence)

Question 25

extrinsic evidence of a prior inconsistent statement –

Answer 25

may not be used to impeach witness upon collateral matter

Question 26

saying something in court
but witness didn’t say the statement initially

Answer 26

prior statement omits material fact

statement is inconsistent with testimony that includes this fact

Question 27

exceptions to foundation requirement for prior inconsistent statements

Answer 27

• if prior inconsistent statement is OPPOSING PARTY’S statement (no need for foundation)
• inconsistent statement by a hearsay declarant to impeach hearsay declarant

Question 28

bias

Answer 28

• witness can be impeached (either on cross or by extrinsic evidence) with evidence that suggests a bias on part of witness
• foundation for extrinsic evidence: before witness can be impeached by extrinsic evidence of bias, witness must first be asked about facts that show bias on cross

Question 29

sensory deficiencies

Answer 29

• witness can be impeached by showing (cross or extrinsic evidence) that their faculties of perception were so impaired so as to make it doubtful they could’ve perceived those facts
• no foundation requirement for proving sensory deficiency with extrinsic evidence

Question 30

contradictory fact

Answer 30

• cross examiner can try to make witness admit they lied or were mistaken about some fact they testified to during direct
• cross or extrinsic evidence allowed to prove contradictory fact
• extrinsic evidence not allowed if the contradictory fact is collateral/on a minor point

Question 31

impeachment methods –> impeaching witness w/ their general bad character for truthfulness

(THREE)

Answer 31

5) opinion or reputation testimony of untruthfulness
6) convictions
7) bad acts involving untruthfulness

Question 32

opinion or reputation testimony re: untruthfulness

Answer 32

• witness can be impeached w/ reputation or opinion evidence of their bad character for untruthfulness
• accomplished by calling character witness to testify about target witness’s bad reputation or character witness’s low opinion of target witness
• no specific instances of conduct permitted

Question 33

convictions

Answer 33

1) any crime (felony + misdemeanor) involving dishonesty or false statement – court has no discretion to bar impeachment by these crimes

witness can be impeached by felony that doesn’t involve dishonesty/false statement (e.g., assault) but court can exclude
- if witness is criminal defendant: court will admit if pros has shown that probative value outweighs prejudicial effect
- any other witness: admissible but court can exclude under 403 balancing

2) convictions more than 10 years old
court can admit if probative value substantially outweighs its prejudicial effect (favors exclusion)

adverse party must be given notice

3) pardon: conviction can’t be used to impeach if conviction was subject to a pardon and (1) pardon was based on rehabilitation or (2) pardon based on innocence

Question 34

prior bad acts involving untruthfulness

Answer 34

• witness can be asked on CROSS EXAMINATION (NO EXTRINSIC EVIDENCE PERMITTED) re: act of misconduct IF IT probative of truthfulness (cross examiner needs to have good faith basis to believe witness did the misconduct)
• cannot ask about arrest

Question 35

impeachment of hearsay declarant

Answer 35

• credibility of hearsay declarant may be attacked (and supported if attacked) by evidence that would be admissible if declarant HAD testified as a witness
• because hearsay declarant functions as sort of witness (jury heard their statement even if they weren’t at trial), the hearsay declarant can be impeached by any of impeachment methods above (e.g., prior inconsistent statement)
• party against whom out of court statement was offered can call hearsay declarant to stand and cross them

Question 36

inconsistent statement of hearsay declarant

Answer 36

statement of the declarant made at any time that is inconsistent with his hearsay statement (e.g., qualifies as excited utterance) can be offered for impeachment purposes

Question 37

rehabilitation

Answer 37

witness who has been impeached can be rehabilitated by:

1) explanation on redirect
2) opinion/reputation testimony about impeached witness’s good character for truthfulness — only if witness’s bad character for truthfulness was ATTACKED (character witness CANNOT testify about specific acts of truthful conduct)
3) PRIOR CONSISTENT statements by the witness
- if testimony of witness has been attacked by a charge that the witness is lying b/c of some motive, previous consistent statement made by witness BEFORE onset of motive is admissible to REBUT

Question 38

hearsay

Answer 38

out of court statement (statement was NOT made by declarant at present trial) offered to prove truth of matter asserted

if statement is hearsay and no exception applies, then evidence is excluded

• statement is person’s (1) oral or written assertion, or (2) nonverbal conduct intended as an assertion (nod of head)
• focus on purpose of the statement – if offered for a non-truth purpose, then not hearsay under definition

Question 39

common non-truth purposes for the out of court statement

Answer 39

these are not hearsay because out of court statement is not offered for their truth:
- verbal acts or legally operative acts
- statements offered to show effect on listener (e.g., TO SHOW THAT DEFENDANT HAD NOTICE OF THE DANGER)
- statements offered as evidence of declarant’s state of mind (e.g., when trying to prove someone’s insanity)

Question 40

hearsay within hearsay

Answer 40

out of court statement that incorporates other hearsay is admissible only if both hearsay statements fall within exception

Question 41

exemptions (nonhearsay under the rules)

Answer 41

• these statements meet hearsay definition but are exempted as nonhearsay
• note that a statement can be ‘nonhearsay’ either b/c it doesn’t fall within definition (not offered for truth of matter asserted) or it falls within one of these exemptions

MUST check if it’s nonhearsay BEFORE going to the exceptions! only go to the exceptions if it’s a hearsay statement!!!!

Question 42

prior statement by testifying witness (declarant is in court testifying)

Answer 42

declarant is testifying in court and subject to cross

prior statement by a testifying witness (witness is the declarant who made the out of court statement) is NOT hearsay if:
1) prior statement is one of identification of a person witness perceived earlier
2) prior statement is inconsistent with declarant’s in court testimony and was given under oath at a prior proceeding
3) prior statement is consistent with declarant’s in court testimony and offered to rebut charge that witness is lying due to some motive OR offered to rehabilitate witness whose credibility has been impeached on some other ground

Question 43

statements by (or attributable to) opposing party

Answer 43

• opposing party’s out of court statement is not hearsay (the declarant is the opposing party)
• opposing party statement –> statement made by or attributable to a party and then offered against that party

NOTE: this exemption DOES NOT APPLY if defendant is introducing his own statement into evidence (that’s hearsay)

Question 44

types of opposing party statements

Answer 44

1) ADOPTIVE statements: where party expressly/impliedly adopts in statement of another, party’s acquiescence can be admissible against them

SILENCE: if party remains silent in face of accusatory statement, their silence can be an implied acquiescence to truth if: (1) party heard and understood, (2) party could’ve denied; and (3) reasonable person would’ve denied

Question 45

types of opposing party statements continued - vicarious statements

Answer 45

certain statements by another person are admissible against a party due to their relationship

2) authorized spokesperson: statement of a person permitted by a party to speak on its behalf can be admitted against that party (statement by company’s press agent)
3) agents and employees: statement by agent/employee is admissible against principal/employer if: (1) concerned any matter within scope of their agency/employment; (2) made during existence of agency/employment relationship
4) co-conspirators: co-conspirator’s statements are admissible against D if made in furtherance of conspiracy

Question 46

judicial statements

Answer 46

e.g., if D pleads guilty to a traffic charge relating to car accident, that plea can be admitted against them as opposing party’s steatement in later civil case arising from same accident

Question 47

hearsay exceptions

Answer 47

declarant unavailability required:
*these hearsay statements are needed so we provide exceptions
1) former testimony
2) statements against interest
3) dying declarations
4 statements offered against party procuring declarant’s unavailability - statement of a person (now unavailable as a witness) is admissible against party who has engaged in wrongdoing that intentionally procured declarant’s unavailability

declarant unavailability is immaterial:
*these hearsay statements are sufficiently reliable
1) present state of mind
2) present sense impressions
3) excited utterances
4) statements made for purposes of med treatment/diagnosis
5) business records
6) past recollection recorded
7) public records or reports

Question 48

declarant is unavailable if:

Answer 48

1) privilege – exempt from testifying
2) death or physical/mental illness
3) refusal to testify
4) lack of memory
5) absent

Question 49

former testimony exception

Answer 49

testimony of now UNAVAILABLE witness is admissible if:

1. former testimony was given under OATH at a trial, hearing, deposition
2. party against whom testimony is now being offered had a chance + similar motive to develop the declarant’s testimony at the prior proceeding

means that the party against whom testimony is offered must have been a party in former action and former action must’ve involved same subject matter

*grand jury proceedings do not provide accused with chance for cross – grand jury testimony of an unavailable declarant is not admissible against D!!!!!!

Question 50

statement against interest

Answer 50

statement of declarant, now unavailable as a witness, may be admissible if it was against declarant’s pecuniary, proprietary, and penal interest when made (no requirement that the declarant is a party in proceeding)

criminal cases: there must be corroborating circumstances indicating trustworthiness of statement

Question 51

dying declaration

Answer 51

in a HOMICIDE prosecution or in ANY CIVIL CASE, statement made by now unavailable-declarant is admissible if:
1) declarant believed death was IMMINENT (need not actually die); and
2) statement concerned CAUSE or circumstances of what declarant believed to be their impending death

traditional rule: required that declarant ultimately die and couldn’t be used in civil cases

Question 52

hearsay exceptions – declarant’s availability immaterial (statements are considered sufficiently reliable to be admitted)

excited utterance

Answer 52

• out of court statement relating to STARTLING event, made while under STRESS of excitement from event (declarant’s emotional statement is key) is admissible

*sometimes failed dying declaration may succeed as exited utterance (where declarant is available)

Question 53

present sense impression

Answer 53

hearsay statement is admissible if:
- describes or explains event/condition; and
- is made contemporaneously with event or right after

timing is key: statement must be made while (or immediately after) declarant perceives condition/event described

Question 54

present state of mind

Answer 54

• statement of declarant’s then existing PRESENT state of mind (motive, plan, intent) OR physical condition is admissible
• statement of MEMORY or BELIEF is not admissible to prove truth of fact remembered

contrast with statements offered as circumstantial evidence of declarant’s state of mind – which is not hearsay under the definition b/c it’s not offered for truth of matter asserted (e.g., “I am Elvis Presley”)

Question 55

statements made for med diagnosis/treatment

Answer 55

• statements of past and present symptoms, or the cause of the condition, is admissible if it was made for purpose of medical diagnosis/treatment
• related statements (such as an admission) about an injury causing event are usually inadmissible
  e.g., statement by declarant to emergency room doctor that she was shot will be admissible – but identity of shooter will not

Question 56

business records

*watch for double hearsay with biz records

Answer 56

any writing or record made as a memo of any event, condition, is admissible as proof of that occurrence if following elements are met:

• made in regular course of business
• entry made near time of event
• personal knowledge (business record must consist of matters within personal knowledge of the entrant or within knowledge of someone with duty to transmit such matters to entrant)
• records custodian can testify that record meets elements OR certifying in writing that it does

records meeting these requirements may be admitted to show that a matter did not occur or exist

police reports: in criminal cases, police reports or other criminal investigative reports are inadmissible against D as business records or public records

Question 57

past recorded recollection (hearsay exception)

Answer 57

• contents of a record/document witness previously made/adopted is READ INTO EVIDENCE - serves as substitute for witness testimony
• cannot be admitted into evidence as exhibit unless offered by adverse party

requirements to establish foundation:
a) witness had KNOWLEDGE before
b) witness memory is INSUFFICIENT to testify as to record’s contents

Question 58

records of a public office/agency

Answer 58

following records of public office/agency are admissible
1. records re: activities of office/agency (e.g., payroll records)
2. recordings of matters observed per duty imposed by law—e.g., weather bureau records of temperature (not police observations in crim cases)
3. records of factual findings resulting from investigation permitted by law—e.g., FAA report (not against D in criminal case)

the writing must be made by and within scope of duty of gov’t employee and made at or near time of event

exception: in criminal cases, police records or other criminal reports are inadmissible

Question 59

public records continued
judgments

Answer 59

• judgment of felony conviction is admissible in criminal and civil actions to prove any fact essential to the judgment
• in criminal case: gov’t can use judgment for this purpose only against accused

Question 60

hearsay and confrontation clause

Answer 60

hearsay statement won’t be admitted (even if it falls within a hearsay exception) where:

1. statement is offered against criminal D
2. declarant is unavailable
3. accused had no chance to cross the declarant’s testimonial statement before trial
4. statement was testimonial (includes sworn testimony; statements to cops describing a crime after it has concluded)

if primary purpose of police interrogation is to enable cops to help in ongoing emergency, statements made in course of interrogation are not testimonial (911 call)

exception: out of court statement won’t be excluded if declarant is unavailable as a result of D’s own wrongdoing

Question 61

affidavits or written reports of forensic analysis

Answer 61

testimonial and can’t be admitted unless D previously had chance to cross the author of report

Question 62

TESTIMONIAL privileges

Answer 62

these privileges allow a person to refuse to disclose and bar others from disclosing certain confidential info

Question 63

fed or state priv law

Answer 63

• in a fed court case arising under fed substantive law, privileges are governed by fed common law
• in fed court case based on diversity jdx, where state substantive law applies to parties’ claims/defenses, fed court applies state’s priv law

Question 64

federal common law privileges

Answer 64

there are no FRE privilege rules; fed courts have created these privileges

fed courts recognize these:
1. atty-client
2. spousal immunity & priv for confidential marital communications
3. psychotherapist/social worker-patient/client priv

*doctor-patient priv is only recognized by certain states

Question 65

waiver of privilege

Answer 65

• by failure to claim it
• voluntary disclosure of the privleged matter by privilege holder

Question 66

attorney client privilege

Answer 66

confidential communications b/w atty and client made during consultation are privileged from disclosure – unless priv is waived by client or exception is applicable

communication must be intended to be confidential and made to facilitate legal services

1. priv does not apply to preexisting docs, underlying info, physical evidence
2. priv applies indefinitely, even after client’s death
3. joint client rule: no priv where an atty acts for both parties - no priv can be invoked in suit b/w the parties (but priv can be claimed in suit b/w either or both of the parties and a THIRD person)

Question 67

who holds the atty client privlege?

Answer 67

the CLIENT and only they can waive it

Question 68

exceptions to attorney client privilege (no privilege)

Answer 68

1) crime or fraud: if atty’s services sought to aid in planning or commission of something client should’ve known was a crime/fraud
2) client puts legal services at issue in case (D defends on ground that she relied on advice of her atty)
3) malpractice claim

Question 69

doctor-patient privilege (state privilege only)

Answer 69

prevents disclosure of info confidentially conveyed by patient to a doctor

to be protected, communication must be:
- made to facilitate treatment/diagnosis
- intended by patient to be confidential

exceptions: priv does NOT apply where 1) patient puts their physical condition at issue (e.g., personal injury suit), 2) doctor’s services were sought to aid in a crime, or 3) malpractice case

Question 70

psychotherapist/social worker / patient priv

Answer 70

material conveyed by patient is privileged in all civil or criminal cases if
- client intends communication to confidential
- communication is made to facilitate therapy or social work

Question 71

marriage related TESTIMONIAL privileges
spousal immunity

Answer 71

• spousal testimonial privilege (criminal cases only!)
• a married person whose SPOUSE is a criminal D may not be called as a witness by the prosecution
• witness-spouse (not the D spouse) holds the privilege – they can choose to testify if they want to
• there must be a valid marriage for priv to apply and it can be claimed only ONLY DURING MARRIAGE; covers info learned BEFORE and DURING marriage

Question 72

marital communications privilege

Answer 72

• in a civil or crim case, confidential communications b/w spouses during a valid marriage are privileged
• either spouse can refuse to disclose communication or prevent any other person from doing so
• privilege SURVIVES marriage but COVERS ONLY STATEMENTS MADE DURING MARRIAGE
• threats/abusive language are not privileged k

Question 73

when the privilege does not apply

Answer 73

1) suits between spouses
2) suits in which one spouse is charged with a crime or tort against children
3) suits in which spouses are co-defendants

Question 74

judicial notice

Answer 74

judicial notice is recognition of a fact as true without formal presentation of evidence (burden of production is satisfied if point is established through judicial notice); either on its own or upon formal request

1) judicial notice of fact

judicially noticed fact is conclusive in civil case but NOT in a crim case
- civil case: court must instruct jury to accept it as conclusive
- criminal case: jury is instructed that it MAY, but not required to, accept the judically noticed fact as conclusive

2) judicial notice of law
- courts MUST take judicial notice of fed/state law and official regs of forum state and fed gov’t
- courts MAY take judicial notice of municipal ordinances

Question 75

presumptions

Answer 75

• particular inference is drawn from a set of facts

Question 76

burden of proof

Answer 76

• burden of production of evidence - party who has burden of pleading usually has burden of producing or going forward with evidence sufficient to make out a prima facie case (create a fact question of the issue for jury)
• burden of persuasion - after parties have met their burden of production of evidence, question is whether party with burden of persuasion has met it (doesn’t change)

Question 77

preliminary questions concerning admissibility

Answer 77

• jury decides certain preliminary facts relating to whether evidence is relevant at all (before question is brought before jury, judge must determine there’s sufficient proof to support a jury finding that the preliminary fact exists)
• facts affecting COMPETENCY of evidence (whether it’s admissible under the rules) is determined by judge