Evidence

Question 1

Hearsay

Hearsay (definition)

Answer 1

1. an out-of-court
2. statement (or nonverbal assertive conduct)
3. offered for the truth of the matter asserted

Question 2

Hearsay

Hearsay: Offered to prove it was said

Answer 2

• nonhearsay
• Verbal Act or legally operative words (e.g. defamation, words that show contract formation, etc.)
• state of mind (I’m the Queen of England” to show defendant insane)
• Effect on listener or reader (usually shown to prove intent.

Question 3

Hearsay

Prior Statements of Trial Witness

Answer 3

1. Prior statement of identification
2. Prior inconsistent statement (made under oath and subject to cross exam.)
3. Prior Inconsistent statement used to rebut a charge of recent fabrication of improper motive/influence.

Declarer must be testifying at trial

Question 4

Hearsay

Opposing Party’s Statements

Answer 4

If a party says something, it can be used against them without a hearsay issue.
1. Any statement made by the OP that is offered against the OP
2. Adoptive admissions (statements a person adopts through silence)
3. Agent employee statements made during the relationship and concerning a matter within the scope of that relationship (with OP)
4. Statemnts made by co-conspirators during the course of and in furtherance of the conspiracy

Question 5

Hearsay Exceptions

Declarent unavailable if (5):

Answer 5

1. Invokes a privelege
2. is absent from the jurisdiction
3. is ill or dead
4. lacks memory
5. refuses to testify

Question 6

Hearsay Exceptions

Forfeiture by Wrongdoing (unavailable)

Answer 6

(witness tampering) A party engages in wrongdoing for the purpose of making a winess unavailable for trial.

Question 7

Hearsay Exceptions

Former Testimony
(unavailable)

Answer 7

Declarant is:
1. unavailable
2. had given testimony at a former proceeding or deposition,
3. It is offered gainst a party or someone in privity who had the motive and opportunity to develop the statement. (opportunity to cross)

Question 8

Hearsay Exceptions

Statement Against Interest
(unavailable)

Answer 8

Declarent is (1) unavailable and (2) made a statement they (3) knew was against their interest (4) at the time it was made.

Question 9

Hearsay Exceptions

Dying Declaration
(unavailable)

Answer 9

Declarent is (1) unavailable, (2) statement was made while he believed death was impending, and (3) it concerns the cause or circumstance of death, and (4) it is used in homicide or civil case (memorize these elements)

Question 10

Hearsay Exceptions

Statement of Personal or Family History
(unavailable)

Answer 10

Becuase someone has to tell you your name and who your family is. Kind of stupid, byt whatever.

Question 11

Hearsay Exceptions: Declarent Available or Not

Present Sense Impression

Answer 11

declarent describes or explains events as it is happening or immedietly thereafter.

Question 12

Hearsay Exceptions: Declarent Available or Not

Excited Utterance

Answer 12

1. There is a startling event,
2. Declarent makes a statement while under the stress of excitement from event, and
3. The statement relates to the event.

Question 13

Hearsay Exceptions: Declarent Available or Not

Then-existing mental, emotional, or physical condition

Answer 13

Declarent states his then-existing feelings, physical conditions, or intent.

Question 14

Hearsay Exceptions: Declarent Available or Not

Statement for medical treatment or diagnosis

Answer 14

declarant (1) makes statement about (2) past or present symptoms or the causes (3) to get diagnosed or treated.

Question 15

Hearsay Exceptions: Declarent Available or Not

Recorded Recollection

Answer 15

A witness has (1) insufficient recollection of the event, but he had (2) personal knowledge of the event at a former time (3) made or adopted a statement while the event was fresh in in his memory, (3) and can vouch for the accuracy of the statement when made or adopted.

Question 16

Hearsay Exceptions: Declarent Available or Not

Business Records

Answer 16

A record (1) made in the regular course of business (2) at or about the time the event occurred that (3) contains information observed by employees of the business (or an independent hearsay exception exists).

Question 17

Hearsay Exceptions: Declarent Available or Not

Public Records

Answer 17

Made by an agency not a police report in a criminal case.

Question 18

Hearsay Exceptions: Declarent Available or Not

Learned Treatises

Answer 18

Read into evidence if an expert is on the stand.

Question 19

Hearsay Exceptions: Declarent Available or Not

“Catchall” Exception

Answer 19

for trustworthy statements

Question 20

Hearsay Exceptions: Declarent Available or Not

Others

Answer 20

regulation about character, familial relations, etc.

Question 21

Presentation Evidence: Introduction of Evidence

Refreshing Recollection

Answer 21

If a witness’s memory fails him, he may be shown a document or record to jog his memory.

Question 22

Presentation Evidence: Introduction of Evidence

Competency of Witnesses

Answer 22

Every witness is generally presumed to be competent regardless of religious beliefs, bias, etc.

Question 23

Presentation Evidence: Introduction of Evidence

Judicial Notice

Answer 23

The court may judicially notice a fact that is not subject to reasonable dispute because it is generally known within the jurisdiction or it can be accurately and readily determined from sources whose accuracy cannot be questioned.

Question 24

Presentation Evidence: Introduction of Evidence

Roles of Judge and Jury

Answer 24

• The judge decides if evidence is admissible.
• The jury decides issues of authenticity and credibility.
• “Goes to the weight, not the admissibility”

Question 25

# Presentation Evidence: Introduction of Evidence Limited Admissibility

Answer 25

Sometimes evidence is admissible for one purpose and not another. In such case, the court may give a Limiting Instruction to the jury.

Question 26

# Presentation Evidence: Presumptions Presumption

Answer 26

* A **Presumption** means that certain fact is assumed to be true unless the other side presents evidence to the contrary. * In a civil case, a presumption can shift the burden of proof to the party against whom the presumption is directed. But the burden of PERSUASION is not affected and it remains on the party who hadi originally.

Question 27

# Presentation Evidence: Mode and Order

Question 28

# Presentation of Evidence: Mode and Order Leading Questions

Answer 28

"isn't it true that. . ." Typically, only allowed on **Cross-Examination** * Allowed on **Direct** (a) to develop preliminary matters (name and address), (b) for young and forgetful witnesses, or (c) for hostile witnesses or the adverse party.

Question 29

# Relevancy and Writings, Recordings, and Photos Relevant Evidence

Answer 29

Relevant evidence is admissible but may be excluded if the probabtive value is **substantially** outweighed by a danger of: 1. unfair prejudice 2. confusing the issue 3. misleading the jury 4. undue delay 5. wasting time, or 6. needlessly presenting cumulative evidence. Real, experimental, and deminstrative evidence is admissible in the judge's discretion.

Question 30

# Relevancy and Writings, Recordings, and Photos The need to produce an original writing, recording, or photograph

Answer 30

* Original is generally required * **Duplicate** admissible to the same extent unless it is unfair to admit it or there is a *genuine question about authenticity.*

Question 31

# Relevancy and Writings, Recordings, and Photos Best Evidence Rule

Answer 31

Only needs to present documentary evidence when one wants to prove the contents of the writing. This means that the writing is * (1) a **legally operative document** (e.g. a will, contract, etc.), or * (2) the witness learned about the event **solely from the writing or record** and has no independent knowledge of the event. | Often the wrong answer choice on the MBE

Question 32

# Relevancy and Writings, Recordings, and Photos Summaries (evidence)

Answer 32

* A party must use a summary, chart, or calculation if records are voluminous. * However, the proponent must allow the other party to examine the records on which the summary is based. * The court may order the records produced.

Question 33

# Relevancy and Writings, Recordings, and Photos Completeness Rule

Answer 33

When a party presents a part of a writing or transaction, the other party can ask that the rest of it be introduced as well, if: * in fairness, the rest ought to be considered contemporareously with it. * By introducing the writing or transaction the presenting party has waived any objections based on hearsay, competency, etc.

Question 34

# Impeachment Prior Inconsistent Statements (witness)

Answer 34

* If a party makes a prior statement that is inconsistent with their testimony at trial, it may be used for ***impeachment purposes.*** * **Extrinsic evidence** may be used if the witness is given an opprtunity to explain or deny the prior statement at some point. this does *not* apply if the witness is the OP, not in court at all, or if the interest of justice requires. ## Footnote It may also be used as "substantive evidence" (truth of the matter asserted) if it falls within a hearsay exception or exclusion.

Question 35

# Impeachment Bias (Witness)

Answer 35

If a witness is a: * family member * friend * enemy of a party * paid by the party * granted immunity * or if other circumstances show bias then that can be used to suggest the witness has a motive to lie. **Extrinsic Evidence** may be used only if the witness is asked about the facts that suggest bias and the *witness denies those facts.*

Question 36

# Impeachment Conviction of a Crime (witness)

Answer 36

There are two categories of convictions that are allowed into evidence: 1. felony or misdemeanor convictions where the prosecution must prove an ***act of dishonesty or false statement*** as part of the crime - these are automatically admitted. 2. felony convictions that meet a *balancing test* that weighs the probative value and prejudice. **Extrinsic Evidence:** the conviction is permitted (if more than years have passed since the conviction or release date, whichever is later, evidence of. the conviction is generally not admissible. | Need to study more on this

Question 37

# Impeachment Specific Instances of Misconduct (witness)

Answer 37

If a witness is engaged in a "bad act" that is probative of truthfulness (e.g. lying and cheating), he may be questioned about it on the stand. **Extrinsic Evidence:** Not permitted, even if the witness lies and denies the conduct. **Confrontation:** required, getting the witness to admit is the only way to prove.

Question 38

# Impeachment Sensory Deficiencies (witness)

Answer 38

Anything that concerns the witness's perception or memory can be used to suggest that the witness is mistaken. **Extrinsic Evidence:** permitted.

Question 39

# Impeachment Contradiction (witness)

Answer 39

* A witness may be impeached during cross examination of she made a mistake or lied about anything she said during direct. * **Extrinisic Evidence** allowed if witness won't admit mistake, but only if issue is not a collateral (irrelevant) fact. * **Confrontation** required.

Question 40

# Impeachment Reputation or Opinion for Truthfulness (witness)

Answer 40

A party may call its own witness to testify that the witness in question has a bad repuation for truthfulness or, in the character witness's opinion, that the witness is not truthful. The witness is **extrinsic evidence**

Question 41

# Character Evidence Character Evidence (admissibility)

Answer 41

Character Evidence is generally *inadmissible* to prove that someone acted in accordance whith their character. * **Civil Case:** only admissible in cases regarding negligent entrustment or hiring, defamation, and child custody. It can be proven by (ROS), reputation, opinion, or specific acts. * **Criminal Case:** the *defendant* must open the door and can use R or O, while the *prosecution* can use R, O, or S (once the door is open).

Question 42

# Character Evidence Habit and Routine Practice (admissibility)

Answer 42

Evidence of a person or organization's habit or routine practices may be admitted to prove that it acted in accordance with that habit or routine.

Question 43

# Character Evidence A defendant's prior bad acts may be admitted to prove what? (MIMIC)

Answer 43

Any of the following, MIMIC: * Motive * Intent * Lack of Mistake * Identity * Common Scheme

Question 44

# Character Evidence Character Evidence offered in Self-Defense cases

Answer 44

* A criminal defendant may offer evidence of a victim's violent character using R and/or O evidence. * If Def does the Pros may rebut by introducing R and/or O of the victim or Def's character.

Question 45

# Character Evidence Prior Sexual Misconduct of a Defendant (evidence)

Answer 45

* If a defendant is accussed of sexual assault or child molestation, the court may admit the evidence that the defendant committed any other s*exual assault* or *child molestation*. * the evidence may be considered on *any matter to which it's relevant*, including that he acted in accordance with his character. | Only specific acts can be considered.

Question 46

# Character Evidence Prior Sexual Misconduct of a Victim

Answer 46

* In a **criminal case**, specific instances can be offered to prove the source of semen, injury, or other physical evidence; consent, or when excluding it would violate the defendant's constitutional rights. * In a **civil case**, evidence is not admissible unless the probative value substantially outweighs the danger of harm or unfair prejudice. The court may admit reputation evidence only if the victim places it in controversy (opens the door).

Question 47

# Witnesses Expert Qualification

Answer 47

A witness who is qualified as an expert by knowledge, skill, training or education may testify if it is *helpful* to the trier of fact and based on *sufficient facts* or *data*.

Question 48

# Witnesses Expert Bases of Testimony

Answer 48

An expert may base an opinion on: 1. **Personal knowledge**, 2. facts that are **in the record** and made known to the expert by a hypothetical or testimony at trial, or 3. facts not in the record if they are the **kind of facts** other experts would reasonably rely on.

Question 49

# Witnesses Ultimate Issue Rule

Answer 49

An expert opinion may embrace an ultimate issue. But, in a **criminal case**, an expertt witness must *not* state whether the defendant had the **requisite mens rea**.

Question 50

# Witnesses Lay Witnesses

Answer 50

A lay witness may testify if their testimony is: 1. **rationally** base on the witnesses perception, 2. **helpful** to determining a fact (probabtive), 3. and not based on scientific, technical, or other specialized knowledge. A lay witness must have **personal knowledge**.

Question 51

# Witnesses Exclusion of Witnesses

Answer 51

At a party's request a court must order a nonparty witness to be excluded. However, a court cannot authorize excluding a party, a person whose presence is essential to the claim or defense, or someone authorized to be present.

Question 52

# Authentication Authentication

Answer 52

The proponent must produce evidence **sufficient to support a finding** that the item is what the proponent claims it is.

Question 53

# Authentication Handwriting

Answer 53

to authenticate handwriting, one may use: 1. a lay witness who was familiar with the handwriting before the litigation, 2. a expert witness, or 3. the trier of fact may compare the handwriting to an authenticated sample.

Question 54

# Authentication Voice

Answer 54

anyone can authenticate a voice - including a lay witness - even if the person acquired familiarity of the voice during litigation.

Question 55

# Authentication Photograph

Answer 55

Anyone who has personal knowlegde of the scene depicted may authenticate the photograph. Presence of photographer not needed.

Question 56

# Priveleges and Policy Exclusions Spousal Immunity

Answer 56

(1) it applies in a **criminal trial**, (2) it is held by the defendant's (or witness) spouse, and (3) the parties must be **married at the time** of the trial.

Question 57

# Priveleges and Policy Exclusions Confidential Communications (between spouses)

Answer 57

(1) applies in a civil or criminal case, (2) it is held by both spouses, (3) the communication was **confidential**, and (4) it was made during the marriage.

Question 58

# Priveleges and Policy Exclusions Attorney-Client Privilege

Answer 58

Applies to the confiidential communications between an attorney and client (or either's agent) or prospective client **made for the purpise of attaining legal advice**.

Question 59

# Priveleges and Policy Exclusions Psycotherapist-client privilege

Answer 59

confidential communications bewteen a patient and a doctor for the purpose of diagnosis or treatment are protected.

Question 60

# Priveleges and Policy Exclusions Work-Product Doctrine

Answer 60

Material prepared for litigation may not be discovered absence a showing of a "substantial need" and "undue hardship."

Question 61

# Priveleges and Policy Exclusions Insurance Coverage

Answer 61

Inadmissible to prove negligence but may be used for other purposes (e.g. to show agency, ownership, control, or bias).

Question 62

# Priveleges and Policy Exclusions Subsequent Remedial Measures

Answer 62

Are inadmissible to show negligence or guilt but may be used for impeachment, to show ownership or control, or to shpw feasibility of precautionary measures if disputed.

Question 63

# Priveleges and Policy Exclusions Admissibility of an Offer to Settle a Disputed Claim

Answer 63

Statements made during settlement negotiations are inadmissible.

Question 64

# Priveleges and Policy Exclusions Admissibility of an Offer to Pay Medical Expenses

Answer 64

Inadmissible to prove liability.

Question 65

# Priveleges and Policy Exclusions Admissibility of a Previous Guilty Plea

Answer 65

* A gulty plea is admissible. * However, an (1) offer to plead guilty, (2) a guilty plea later withdrawn, (3) a no contest plea, and (4) statements made during negotiations that did not result in a gulty plea are **inadmissible**.