Rules - Themis

Question 1

When are subsequent remedial measures inadmissible?

Answer 1

When measures are taken that would have made an earlier injury or harm less likely to occur (e.g., repairing an area where a customer slipped), evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defective product or design, or the need for a warning or instruction.

Note: Evidence of subsequent remedial measures may be admissible for other purposes, such as impeachment or—if disputed—ownership or control of the cause of the harm (e.g., a car) or the feasibility of precautionary measures.

Question 2

What is the “rape shield” rule?

Answer 2

Evidence offered to prove the victim’s sexual behavior/predisposition is generally inadmissible in any proceeding involving sexual misconduct.

Question 3

What are the four exceptions to attorney-client privilege?

Answer 3

Communications that are:

(i) Made to enable or aid the commission of what the client knew or should have known was a crime or fraud;
(ii) Relevant to a dispute between attorney and client (e.g., a malpractice allegation);
(iii) Relevant to a dispute between parties who claim through the same deceased client; and
(iv) Between former co-clients who are now adverse to each other.

Question 4

At what time can a court take judicial notice?

Answer 4

Judicial notice can be taken at any time during a proceeding, including on appeal, whether upon request of a party or by the court’s own initiative.

Note: The court may not take judicial notice against a criminal defendant for the first time on appeal.

Question 5

What are the three requirements to admit a record under the records of regularly conducted activity exception?

Answer 5

(i) The record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling;
(ii) The making of the record was a regular practice of that activity; and
(iii) The record was made at or near the time by someone with knowledge.

Question 6

When is a juror permitted to be called as a witness in a trial in which she is presently a juror?

Answer 6

A juror may not testify as a witness at trial in front of the members of the jury.

Note: The fact-finder is charged with assessing a witness’s credibility. A juror cannot assess their own credibility as a fact or a character witness. However, a juror may be called before the court (outside the presence of the other jurors) to testify as to anything that might have occured with the trial process itself such as bribes, threats, or failure to follow the court’s instructions.

Question 7

What is the difference between direct and circumstantial evidence?

Answer 7

Direct evidence is identical to the factual proposition that it is offered to prove. An example is witness testimony as to what the witness personally heard, saw, or experienced. Circumstantial evidence tends to indirectly prove a factual proposition through an inference from collateral facts.

Example: A witness seeing the defendant shoot the victim (direct evidence the defendant shot the victim), versus seeing the defendant holding a gun while exiting an alley where a person is laying on the ground bleeding from a gunshot wound (circumstantial evidence the defendant shot the victim).

Question 8

What standard of proof applies to the authentication of tangible evidence?

Answer 8

The proponent of the evidence must produce sufficient evidence to support a finding that the thing is what its proponent claims it is.

Note: This is a lesser standard than a preponderance of the evidence.

Question 9

How may a party to a telephone conversation authenticate statements made during that conversation as having been made by a particular individual?

Answer 9

By testifying that:

(i) The caller recognized the speaker’s voice;
(ii) The speaker knew facts that only a particular person would know;
(iii) The caller dialed a number believed to be the speaker’s, and the speaker identified himself upon answering; or
(iv) The caller dialed a business and spoke to the person who answered about business regularly conducted over the phone.

Note: Remember that a voice can be identified by any person who has heard the voice at any time, including one made familiar solely for the purposes of litigation.

Question 10

When does a statement by an unavailable declarant qualify as a statement against interest?

Answer 10

If the statement:

(i) Was against the declarant’s interest at the time it was made; and
(ii) Would not have been made by a reasonable person unless he believed it to be true.

Question 11

For what two purposes are compromise offers and negotiations inadmissible as a public policy exclusion?

Answer 11

Compromise offers and any conduct or statements made during compromise negotiation are inadmissible by either party:

(i) To prove or disprove the validity or amount of a disputed claim; or
(ii) For impeachment by a prior inconsistent statement or contradiction.

Question 12

What are the present sense impression and excited utterance hearsay exceptions?

Answer 12

Present Sense Impression: A statement describing or explaining an event or condition that is made while or immediately after the declarant perceived it

Excited Utterance: A statement made about a startling event or condition while the declarant is under the stress of excitement that it caused

A present sense impression must be a description of the event, whereas an excited utterance need only relate to the exciting event.

Question 13

When may work product be subject to discovery?

Answer 13

Work product is not subject to discovery unless the party seeking disclosure:

(i) Demonstrates a substantial need for the information; and
(ii) Cannot obtain the information by any other means without undue hardship.

Note: The mental impressions, conclusions, and trial tactics of an attorney are always protected from discovery.

Question 14

What is the rule of completeness?

Answer 14

When a party introduces part of a writing or recorded statement, an adverse party may compel the introduction of an omitted portion of the writing or statement if, in fairness, it should be considered at the same time.

Question 15

What are the two methods by which handwriting can be authenticated?

Answer 15

1. An expert witness or the trier of fact may compare the writing in question with another writing that has been proven to be genuine; or
2. A lay witness with personal knowledge of the claimed author’s handwriting may authenticate the handwriting, as long as the witness did not become familiar with the handwriting for the purposes of the current litigation.

Question 16

What is the bursting bubble approach to burden shifting?

Answer 16

A rebuttable presumption no longer has a preclusive effect after the opposing party introduces sufficient evidence to sustain a contrary finding. If contrary evidence is introduced, the burden of persuasion remains on the party who had it originally.

Question 17

List three examples of preliminary questions of admissibility that a judge, rather than a jury, would determine?

Answer 17

(i) competency of evidence, including the admissibility of evidence; (ii) whether a privilege exists; (iii) whether a person is qualified to be a witness.

Note: Judges also determine whether an exception would apply to allow hearsay into the record.

Question 18

What is limited admissibility?

Answer 18

Limited admissibility means that evidence may be admissible for one purpose but not for another, or against one party but not against another. In these cases, if a party makes a timely request, the court must restrict the evidence to its proper scope and instruct the jury accordingly.

A common example is when a criminal defendant is testifying. The defendant has now put credibility in issue, and impeachment with a prior conviction might be admissible. The defendant’s attorney would make a request to have the court instruct the jury that the conviction should only be used for the limited purpose of assessing credibility, rather than determining guilt or innocence.

Question 19

When is a judge permitted to be called as a witness in a trial over which she is presiding?

Answer 19

A judge is absolutely barred from testifying as a witness in the trial in which she is presiding.

Note: Allowing the judge to testify would corrupt the fact-finding process. The fact-finder is charged with assessing a witness’s credibility. If the judge is the fact-finder, assessing her own credibility is impossible. If a jury is the fact finder, the judge’s testimony (and other judicial rulings in the trial) may be given too much or too little weight.

Question 20

What is the definition of hearsay?

Answer 20

An out of court statement offered for the truth of the matter asserted

Question 21

When must a preliminary hearing on admissibility be conducted outside the presence of the jury?

Answer 21

When the hearing involves the admissibility of a confession, when the defendant in a criminal trial is a witness and so requests it, or when justice requires it.

Note: While many preliminary questions of admissibility are determined in front of the jury, it is the judge who makes the determination, and it is the jury, then, that assigns weight to the evidence.

Question 22

What are the four requirements to admit a record under the recorded recollection hearsay exception?

Answer 22

(i) The record is on a matter that the witness once knew about;
(ii) The witness made/adopted the record when the matter was fresh in the witness’s memory;
(iii) The record accurately reflects the witness’s knowledge; and
(iv) The witness states that she cannot recall the event well enough to testify fully and accurately, even after consulting the record on the stand.

Question 23

What four categories of witnesses may not be excluded from the courtroom to prevent them from hearing the testimony of other witnesses?

Answer 23

(i) A party who is a natural person;
(ii) An officer or employee of a party that is not a natural person, after the individual has been designated as the party’s representative by its attorney;
(iii) A person whose presence is essential to a party’s presentation of its case (e.g., the investigating police officer); and
(iv) A person whose presence is permitted by statute (e.g., victims).

Question 24

When may a witness be impeached by evidence of a juvenile adjudication?

Answer 24

Evidence of a juvenile adjudication is NOT admissible against a defendant. Another witness may be impeached by evidence of a juvenile adjudication, but ONLY IF:

(i) it is offered in a criminal case,
(ii) an adult’s conviction for that offense would be admissible to attack the adult’s credibility; and
(iii) admitting the evidence is necessary to fairly determine guilt or innocence.

Note: Remember, regardless of how probative a juvenile adjudication might be, if it is being used against a criminal defendant, it is inadmissible.

Question 25

What is the standard for the Rule 403 exclusion of relevant evidence?

Answer 25

Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.

Question 26

With respect to preliminary questions of admissibility, what is the burden of persuasion?

Answer 26

The party offering the evidence ordinarily bears the burden to persuade the judge by a preponderance of the evidence.

Note: This is also expressed as more likely than not.

Question 27

What is the plain error rule?

Answer 27

A plain error is one that is obvious to the reviewing court. A plain error that affects a substantial right is grounds for reversal, even if no objection was made.

Question 28

When is silence in response to a statement considered an adoptive admission?

Answer 28

(i) The person was present and heard and understood the statement;
(ii) The person had the ability and opportunity to deny the statement; and
(iii) A reasonable person similarly situated would have denied the statement.

Note: Post-arrest silence by a defendant who has received Miranda warnings may not be used as an adoptive admission of a statement made by another person.

Question 29

When are specific instances of conduct admissible as impeachment evidence?

Answer 29

On cross-examination, a witness may be asked about specific instances of conduct as long as:

(1) It is probative of the truthfulness or untruthfulness of the witness or another witness about whose character the witness being cross-examined has testified; and
(2) The lawyer who examines the witness has a good-faith basis for believing that the misconduct occurred.

Note: The judge may refuse to allow such questioning of a witness under either Federal Rule 403 (the probative value is substantially outweighed by the danger of unfair prejudice) or Federal Rule 611 (protection of the witness from harassment or undue embarrassment).

Question 30

When does the intentional destruction of evidence raise a presumption or inference that such evidence would have been unfavorable to the party that destroyed the evidence?

Answer 30

To be entitled to such an inference, the alleged victim must establish that:

(i) The destruction was intentional;
(ii) The destroyed evidence was relevant to the issue about which the party seeks such inference; and
(iii) The alleged victim acted with due diligence as to the destroyed evidence.

Note: This presumption is rebuttable.

Question 31

When the relevance of evidence depends upon whether a fact exists, what standard is applied to determine whether sufficient evidence has been introduced to support a finding that the fact does exist?

Answer 31

The court must examine all of the evidence and decide whether the jury could reasonably find the conditional fact by a preponderance of the evidence.

Note: The court itself is not required to find that the conditional fact exists by a preponderance of the evidence.

Question 32

What is required for evidence to be “relevant?”

Answer 32

Evidence is relevant if:

(i) It has any tendency to make a fact more or less probable than it would be without the evidence (i.e., probative); and
(ii) The fact is of consequence in determining the action (i.e., material).

Question 33

What four requirements must be met for an expert witness to offer opinion testimony?

Answer 33

(i) The witness is qualified as an expert by knowledge, skill, experience, training, or education;
(ii) The testimony is based on sufficient facts or data;
(iii) The testimony is the product of reliable principles and methods; and
(iv) The witness applied the principles and methods reliably to the facts of the case.

Note: The expert must also possess a reasonable degree of certainty in her opinion, which may be expressed using language such as “probably.”

Also note: While a witness may state an opinion about a matter, even though the opinion embraces an ultimate issue in the case, an expert may not state an opinion about whether a criminal defendant had the requisite mental state of any element of the crime charged or of a defense.

Question 34

What two elements do the Confrontation Clause of the Sixth Amendment require in order for out-of-court testimonial statements to be used against a criminal defendant?

Answer 34

(i) The declarant must be unavailable; and
(ii) The defendant must have had a prior opportunity to cross-examine the declarant.

Note: The Confrontation Clause does not preclude the admission of a dying declaration as hearsay, even if the statement is testimonial.

Question 35

What are the three standards of proof?

Answer 35

(i) Preponderance of the evidence
(ii) Clear and convincing evidence
(iii) Beyond a reasonable doubt