evidence

Question 1

relevance

Answer 1

tendency to make a fact more or less probable than it would be without it and

fact is of consequence in determining the action

Question 2

403 exclusions of relevant evidence

Answer 2

court may exclude relevant evidence if its probative value is substantially outweighed by danger of unfair prejudice, confusion, misleading, undue delay, waste of time, or needlessly cumulative

Question 3

public policy exclusions of evidence

Answer 3

1. subsequent remedial measures are not admissible to show liability, culpability, defect, or need for warning
   * may be admissible for any other purpose, such as impeachment, control, ownership, or feasibility
2. compromise/settlement offer are not admissible to prove liability, amount of disputed claim, or impeach prior inconsistent statement
   * must have present controversy
3. pleas/statements made during negotiations are not admissible in subsequent criminal or civil case to show liability
4. offers to pay medical expenses are not admissible to show liability, but any related statements or factual admissions are admissible, subj to limiting instruction/exclusion of offer to pay portion
5. liability insurance is not admissible to show culpability but is admissible for other purpose, such as ownership, control or agency

Question 4

authentication

Answer 4

all evidence must be authenticated before being admitted

• physical evidence –> through witness testimony or by evidence showing it has been held in a substantially unbroken chain of custody
• voice recordings –> by anyone who has heard the person speak and identifies the recorded person as the speaker

Question 5

best evidence rule

Answer 5

the original writing, recording, or photo is required to prove its content unless

1. reliable duplicate (photocopy)
2. all originals are lost or destroyed and not by the offering party in bad faith
3. original cannot be obtained by judicial process
4. it was not produced after proper notice was given to the party in control and against whom it would be offered
5. it is not closely related to a controlling issue

Question 6

character evidence criminal cases

Answer 6

character is not admissible to prove act propensity, but is admissible for non-propensity

D character:

• D can always offer evidence of his own character (opinion or reputation)
• prosecution cannot offer character evidence until D opens the door
• specific acts admissible on cross-examination

V character:

• D can offer reputation and opinion evidence to show V character to support D defense
• If D presents evidence of V character, P can offer evidence of V good character for same trait or D bad character for same trait

V character homicide/self-defense:
- P can show V peacefulness only if D claims V was agressor

V character rape/sex offense
- not admissible unless it is to show third-party DNA, consensual sexual relations b/t D and V (to show consent, but P may offer such evidence for any reason) OR if its exclusion violates D constitutional rights

Question 7

character evidence civil cases

Answer 7

character evidence not admissible, but FRE will not act to keep it out if relevant

V character of sexual misconduct:

• V sexual predisposition is admissible if its probative value outweighs danger of harm to any V and unfair prejudice to any party
• V reputation is admissible only if the V has placed it in controversy

Question 8

methods of proving character

Answer 8

direct examination = opinion and reputation only

cross examination = opinion, reputation, and specific acts

Question 9

prior bad acts

Answer 9

generally not admissible to show propensity

admissible for MIMIC (motive, intent, absence of mistake, identity, common plan or scheme, opportunity, preparation)

Question 10

foundation required for admission of prior bad acts under MIMIC

Answer 10

proponent must show that the prior act was committed by preponderance and the probative value substantially outweighs the danger of unfair prejudice

Question 11

habit evidence defintion

Answer 11

a regular response to a repeated situation

Question 12

habit evidence admissibility

Answer 12

admissible to show that a person acted in accordance with a specific habit or routine practice

Question 13

prior inconsistent statements extrinsic evidence admissibility

Answer 13

admissible to impeach a witness

extrinsic evidence is admissible only if

1. relevant to the material issue at trial (one other than witness credibility) AND
2. proper foundation is shown (witness is given the opportunity to explain or deny the statement and an adverse party is given opportunity to examine the witness about it
   * *does not apply when extrinsic evidence of PIS is offered against party opponent

Question 14

prior conviction admissibility impeachment purposes

Answer 14

• felony/misdemeanor involving dishonesty: always admissible to impeach (felony = punishable by > 1 year)
• all other misdemeanors: not admissible
• felonies not involving dishonestly: civil & criminal cases = admissible if witness is not a criminal D (subject to rule 403)
  criminal cases only = admissible if D is witness but only if the probative value outweighs prejudice effect

10-year rule: conviction is not admissible if 10-years have passed from conviction or release from jail unless its probative value outweighs prejudicial effect and the proponent provides written notice to adverse party

Question 15

methods of impeachment

Answer 15

1. PIS
2. Bias
3. Prior criminal convictions
4. Prior instances of conduct
5. opinion/reputation character for dishonesty/truthfulness

Question 16

impeachment: prior bad acts

Answer 16

witness credibility may be attacked on cross with specific instances of conduct only if conduct is probative of witness character for truthfulness or untruthfulness

extrinsic evidence never admissible to attack or support such instances of witness credibility

Question 17

refreshing recollection

Answer 17

refreshing a witness memory using document is permitted when the W

1. once had personal knowledge of the matter but
2. is unable to recall it while testifying

*only opposing party may offer it into evidence unless it is admissible on other grounds

Question 18

judicial notice

Answer 18

the court may take judicial notice of indisputable facts commonly known to the community or readily capable of certification that cannot be reasonably questioned

Question 19

lay witness testimony

Answer 19

witness must be competent to testify and have personal knowledge of the matter

lay witness may offer opinion only if its rationally based on perception, helpful to clearly understand testimony or determine a fact and not based on scientific, technical, or other specialized knowledge

Question 20

expert witness testimony

Answer 20

permitted when

1. witness is qualified as expert
2. opinion is helpful
3. expert believes opinion to a reasonable degree of certainty
4. opinion is supported by facts or data and
5. opinion is based on reliable principles and methods reliably applied

Question 21

expert witness reliability

Answer 21

based on publication and peer review, error rate, testability, and if it’s generally accepted in the field

Question 22

common non-hearsay statements

Answer 22

verbal acts of indpendent legal signficiance
to show an effect on the listener
PIS to impeach
circumstantial evidence of speakers state of mind

Question 23

statement by party opponent

Answer 23

1. any statement offered against an opposing party and
2. that is made by the party, adopted or believed to be true by party, made by agent in scope of duty, or made by co-conspirator

Question 24

prior statement by a witness

Answer 24

a prior statement by declarant-witness is deemed non-hearsay if
1. declarant testifies
2. subject to cross-exam and
3. prior statement was either
inconsistent with prior testimony given under oath in prior court proceeding or deposition

declarant identifies a person as someone perceived earlier or

consistent with prior testimony and is offered to either rebut that declarant is lying or rehabilitated declarant’s credibility

Question 25

co-conspirator admission

Answer 25

statement by co-conspirator is admissible when offered against another co-conspirator if conspiracy existed b/t declarant and defendant, was made during the conspiracy, in furtherance of the conspiracy and the conspiracy si proven by independent evidence (outside statement itself)

Question 26

present sense impression

Answer 26

statement describing an event made by declarant while observing the event or immediately thereafter

Question 27

excited utterance

Answer 27

statement relating to a startling event or condition made while the declarant was under the stress of excitement that the event caused

Question 28

business records

Answer 28

admissible if its a record of evenets, conditions, opinion, diagnosis kept in the regular course of business made at or near the time the matter described made by person with knowledge in regular practice of the business and opposing party does not show lack of trustworthiness

Question 29

statements made for medical diagnosis or treatment

Answer 29

a statement made for medical diagnosis and describes medical history or symptoms

Question 30

statements of then existing state of mind

Answer 30

statement is of declarants then existing state of mind (motive, intent, or plan) or emotional, sensory, or physical condition statements of memory or belief are NOT admissible unless it relates to validity or terms of the declarant's will

Question 31

dying declaration

Answer 31

declarant is unavailable, statement made under sense of impending death, and statement concerns the cause that put declarant in position of impending death only allowed in civil or homicide cases

Question 32

declarant unavailability

Answer 32

``` deemed unavailable if privilege exempts refuses to testify despite court order death or incompetency lack of memory beyond reach of court and cannot be procured w/ reasonable means ```

Question 33

statement against interest

Answer 33

1. statement against declarant's penal, proprietary, or pecuniary interest when made 2. declarant has firsthand knowledge 3. reasonable person in a declarant position would have made the statement only if they believed it to be true and 4. declarant is unavailable criminal cases --> require corroborating circumstances that clearly indicate the trustworthiness

Question 34

public records

Answer 34

records are admissible if describes policies and practices of a public office, observations made by someone in accordance with duties required by law unless a police officer in a criminal case or factual findings from a legally authorized investigation in civil cases or against gov't in a criminal case records will not be admitted if the opponent shows a lack of trustworthiness

Question 35

past recollection recorded

Answer 35

record made on a matter the witness once knew about, but now cannot recall well enough to testify fully and accurately. admissible if 1. witness had personal knowledge at one time 2. writing was made or adopted by witness 3. was made while the event was fresh in witness mind 4. is accurate and 5. witness can no longer remember the event the record may be read into evidence, but can only be received as exhibit if offered by adverse party

Question 36

confrontation clause

Answer 36

gives criminal defendant the right to confront a witness applies where a statement is testimonial, declarant is unavailable to be cross-examined at current trial and D did not have an opportunity to cross-examine declarant before trial

Question 37

right to confront witness applies when

Answer 37

the use of out of court statement even within hearsay exception violates 6A when 1. statement is testimonial 2. declarant unavailable to be cross-examined AND 3. D did not have an opportunity to cross examine declarant before trial

Question 38

testimonial statement

Answer 38

statement made to grand jury, affidavit or certified report with forensic lab, or police whose primary purpose was to collect testimony to be used at later trial statement to assist the police in ongoing emergency is not testimonial

Question 39

spousal immunity

Answer 39

witness spouse in valid marriage may refuse to testify against their spouse in a CRIMINAL CASE only witness spouse holds this privilege and privilege ends after divorce

Question 40

confidential martial communications

Answer 40

communications b/t spouses are privileged if made during the course of valid marriage and were intended to be confidential either spouse may assert privilege, and applies after divorce applies to both civil and criminal cases

Question 41

spousal privilege exceptions

Answer 41

does not apply to cases b/t spouses or when spouse commits crime against the other spouse or children

Question 42

attorney-client privilege

Answer 42

protects confidential communications b/t attorney and client if intended to be confidential and made to facilitate legal services does not apply when legal services are sought to further crime or fraud litigation related to breach of duty b/t attorney and client or joint clients are later involved in civil litigation against each other

Question 43

attorney work product doctrine

Answer 43

protects from disclosure of all materials prepared by an attorney or his agents in anticipation of or during litigation exception: party shows substantial need and substantial equivalent cannot be obtained without undue hardship

Question 44

physician patient privilege

Answer 44

federal courts do not recognize the privilege - state law governs privilege for civil cases in fed court on a claim/defense when state law supplies rule of decision most states recognize this privilege if its confidential patient communication made to a doctor, for purpose of medical treatment patient holds the privilege, but it may be waived when a medical condition is placed in issue

Question 45

psychotherapist patient privilege

Answer 45

all states recognize this which protects 1. confidential patient communications 2. made to psychotherapist or social worker 3. for purpose of treatment *patient holds privilege and may waive it exceptions: court order examination civil commitment proceedings to determine if hospitalization is required when condition is placed in issue by patient dangerous patient exception - therapist has duty to warn when he knows or should know patient poses a serious threat of violence to foreseeable victims