Evidence Flashcards

Question

Admissibility of Secondary Evidence of Contents

Answer 1

If the proponent cannot produce the original writing (or an admissible duplicate) in court, they may offer secondary evidence of its contents (such as handwritten copies, notes, or oral testimony) if a satisfactory explanation is given for the non-production of the original. **Valid excuses justifying the admissibility of secondary evidence include**: * **Loss or destruction of the original**, unless the proponent lost or destroyed the original in bad faith. * **The original cannot be obtained by any available judicial process**. Usually, this means that it is in **possession of a third party outside the jurisdiction** and cannot be obtained despite a reasonable effort. * The **original is in the possession of an adversary** who, after due notice, fails to produce the original.

Answer 2

* **Summaries of Voluminous Records**: When it would be inconvenient to examine a voluminous collection of records in court, **the proponent may present their contents in the form of a chart or summary**. However, *the proponent must make the originals or duplicates available for inspection or copying, and the court may order the proponent to produce the records in court*. * **Certified Public Records**: The rule does not apply to copies of public records that are certified as correct or testified to as correct. * **Writing Is Collateral to Litigated Issue**: The rule does not apply where the writing is of minor importance (that is, collateral) to the matter in controversy. * **Testimony or Written Admission of Opponent**: Where the opponent (meaning, the party against whom the writing is being offered) has given testimony, a deposition, or a written admission about the writing’s contents, the proponent may use this evidence and need not give an excuse for non-production of the original.

Answer 3

The object must be identified as what the proponent claims it to be, either by: * Testimony of a witness that they recognize the object as what the proponent claims it is (for example, witness testifies that a gun is the one found at the crime scene); or * Evidence that the object has been held in a substantially unbroken chain of possession (for example, blood taken for blood-alcohol test) The same standard of proof you’ve seen before applies to real evidence—the proof must be sufficient to support a jury finding of genuineness (that is, a reasonable juror could conclude that the object is what the proponent claims it to be). **Condition of Object**: If the condition of the object is significant, it must be shown to be in substantially the same condition at trial.

Answer 4

**Reproductions and Explanatory Real Evidence**: Relevant photographs, diagrams, maps, or other reproductions are **generally admissible**. Items used entirely for explanatory purposes are permitted at a trial, **but are usually not admitted into evidence** (meaning, they are not given to the jury during its deliberations). **Maps, Charts, Models, Etc.**: Maps, charts, models, etc., are **usually admissible for the purpose of illustrating testimony**, but must be authenticated by testimonial evidence that they are faithful reproductions of the object or thing depicted. **Demonstrations**: **The court, in its discretion, may permit experiments or demonstrations to be performed in the courtroom**. An experiment must be performed under conditions that are substantially similar to those attending the original event. **Demonstrations of bodily injury may not be allowed where the demonstrations would unduly dramatize the injury**. **Exhibition of Injuries**: Exhibition of injuries in a personal injury or criminal case is **generally permitted, but remember that the court has discretion to exclude this evidence for unfair prejudice**. **Jury View of the Scene**: The trial court has discretion to permit the jury to view places at issue in the case. The need for the view and changes in the condition of the premises following the events at issue in the case are relevant considerations here.

Answer 5

Witnesses are presumed to be competent until the contrary is established. Federal Rules: * There **must be evidence sufficient to support a finding that the witness has personal knowledge of the matter about which they are to testify** (note that proof of personal knowledge may consist of the witness’s own testimony); and * The witness **must give an oath or affirmation** to testify truthfully

Answer 6

* **Children—Case-by-Case Determination**: The competency of a child **depends on the capacity and intelligence of the particular child** as determined by the trial judge. * **Insanity**: An insane person **may testify, provided they understand the obligation to speak truthfully** and have the capacity to testify accurately. * **Judges and Jurors**: The presiding judge may not testify as a witness. Likewise, jurors are incompetent to testify before the jury in which they are sitting. * **Jurors—Inquiry into Verdict or Indictment**: During an inquiry into the validity of a verdict or indictment, a juror is generally prohibited from testifying about what occurred during deliberations or about anything that may have affected a juror’s vote, and the court may not receive evidence of a juror’s statement on such matters. **However, a juror may testify as to**: 1. Whether any extraneous prejudicial information was improperly brought to the jury’s attention; 2. Whether any outside influence was improperly brought to bear on any juror; 3. Whether there is a mistake on the verdict form; or 4. Whether any juror made a clear statement that they relied on racial stereotypes or animus to convict a criminal defendant. The rationale for allowing this evidence is to permit the court to determine whether the defendant’s 6th Amendment right to a jury trial was violated. Not every comment indicating racial bias will qualify; the court must find that racial animus was a significant motivating factor in the juror’s vote to convict.

Answer 7

Ordinarily, a witness is not disqualified merely because they have an interest in the outcome of the litigation. However, some states have what are known as “Dead Man Acts.” **These statutes provide that in a *civil case*, an interested person (or their predecessor in interest) is incompetent to testify to a personal transaction or communication with a deceased, when such testimony is offered against the representative or successors in interest of the deceased.** A person is “interested” if they stand to gain or lose by the judgment, or if the judgment may be used for or against them in a subsequent action. **Example**: Shania sued Elvis for breach of an oral contract. Elvis denied that any contract was made. Elvis died before trial. Shania may not testify as to what Elvis said and did in negotiating the contract, she is an interested person. **Georgia does not have a Dead Mans Act**

Answer 8

Leading questions (questions that suggest the desired answer) are **generally allowed only on cross-examination and are not permitted on direct examination**. However, the court will ordinarily allow leading questions on direct examination in the following circumstances: * To elicit **preliminary or introductory matter**; * When the witness needs help responding because of **loss of memory, immaturity, or physical or mental weakness**; or * When the **witness is hostile, an adverse party, or a witness affiliated with an adverse party**

Answer 9

A party has a right to cross-examine any opposing witness, but the scope of cross-examination is frequently a matter of judicial discretion. Cross-examination is generally limited to: * **The scope of direct examination**, including all reasonable inferences that may be drawn from it, and * **Matters that test the credibility of the witness** (the permitted methods of impeachment are covered in the Impeachment module)

Answer 10

**Questions that are misleading** (cannot be answered without making an unintended admission), **compound** (requiring a single answer to more than one question), **argumentative, conclusionary, cumulative, unduly harassing or embarrassing, call for a narrative answer or speculation, or assume facts not in evidence are improper and are not permitted.** **Answers that lack foundation** (the witness has insufficient personal knowledge) **and answers that are nonresponsive** (do not answer the specific question asked) **may be stricken.**

Answer 11

As a general rule, a witness cannot read their testimony from a prepared memorandum; they must testify on the basis of their current recollection. However, a memorandum or other record may be used in certain circumstances.

Answer 12

A witness may use any writing or object for the purpose of refreshing their present recollection. **They usually may not read from the writing while testifying because the writing is not authenticated and not in evidence**. **Safeguards Against Abuse—Adverse Party’s Options** Whenever a witness has used a writing to refresh their memory while on the stand, an adverse party is entitled to: * **Have the writing produced at trial**; * **Cross-examine the witness about the writing**; and * **Introduce portions of the writing relating to the witness’s testimony into evidence** If the witness refreshed their memory before taking the stand, an adverse party is entitled to the above options only if the court decides that justice requires it. **Failure to Produce or Deliver Writing** **In a criminal case**, if the prosecution fails to produce or deliver a writing as ordered, **the judge must strike the witness’s testimony—and, if justice requires, declare a mistrial**. (When the defense or a party in a civil case fails to comply, the judge has more discretion and can issue “any appropriate order.”)

Answer 13

**Where a witness states that they have insufficient recollection of an event to enable them to testify fully and accurately, even after they have consulted a memorandum** or other record given to them on the stand, the **record itself may be read into evidence if a proper foundation is laid**. **The foundation must include proof that**: * The **witness has insufficient recollection to testify fully and accurately** (that is, showing the document to the witness fails to jog their memory); * The witness **had personal knowledge of the facts in the record when the record was made**; * The **record was made by the witness** or under their direction, or it was adopted by the witness; * The **record was made when the matter was fresh in the witness’s mind**; and * The **record accurately reflects the witness’s knowledge**. In other words, even though the witness cannot currently remember the facts, this requirement is satisfied where the witness vouches for the accuracy of the record at the time that it was made or adopted.

Answer 14

**Requirements**: Opinions by lay (nonexpert) witnesses are generally inadmissible. However, there are many cases where no better evidence can be obtained. **Opinion testimony by a lay witness is admissible when it is**: * Rationally based on the witness’s perception; * Helpful to a clear understanding of the witness’s testimony or helpful to the determination of a fact in issue; and * Not based on scientific, technical, or other specialized knowledge **Situations Where Opinions of Lay Witnesses Are Admissible**: An opinion of a lay witness is generally admissible with respect to: * The general appearance or condition of a person; * The state of emotion of a person; * Matters involving sense recognition; * Voice or handwriting identification; * The speed of a moving object; * The value of the witness’s own services or property; * The rational or irrational nature of another’s conduct; and * A person’s intoxication **Situations Where Opinions of Lay Witnesses Are Not Admissible**: A lay witness cannot give an opinion as to whether they (or someone else) acted as an agent or whether a contract was made, as these are legal conclusions that require specialized knowledge. The lay witness may testify only as to the surrounding facts.

Answer 15

**Requirements for Admissibility**: For expert testimony to be admissible, the proponent must demonstrate to the court that it is more likely than not that: 1. the **subject matter is one where scientific, technical, or other specialized knowledge** would assist the trier of fact; 2. the **opinion is based on sufficient facts** or data; 3. the **opinion is the product of reliable principles and methods** ; and 4. the **expert’s opinion reflects a reliable application of the principles and methods to the facts of the case**. **Qualification as Expert**: The witness must be qualified as an expert. This requirement is satisfied if they possess special knowledge, skill, experience, training, or education. **Proper Factual Basis**: The expert’s opinion must be supported by a proper factual basis. The opinion can be based on any of the following 3 possible sources of information: 1. Facts based on the **expert’s own personal observation** (for example, the expert personally examined the injured plaintiff). 2. Facts **made known to the expert at trial**. 3. Facts not known personally but supplied to the expert outside the courtroom and of a type reasonably relied upon by other experts in the particular field. Such facts need not be admissible as evidence. Unless the court orders otherwise, the expert need not disclose the basis of the opinion on direct examination. However, the expert may be required to disclose such information on cross-examination.

Answer 16

The expert must possess reasonable probability regarding their opinion. A mere guess or speculation is not sufficient.

Answer 17

**Judge as Gatekeeper**: Federal courts determine the reliability of all expert testimony (scientific or otherwise). Although courts have discretion to consider a wide variety of factors in making this determination, there are 4 principal Daubert factors that courts use to determine the reliability of experts’ principles and methodologies. The “TRAP” mnemonic may help you remember them: * **Testing** of principle or methodology * **Rate of error** * **Acceptance by experts** in the same discipline * **Peer review** and publication

Answer 18

* A relevant excerpt from a treatise, periodical, or pamphlet may be used during expert testimony. * **Under the Federal Rules, these “learned treatises” can be used not only to impeach experts, but also as substantive evidence** (that is, to prove that what the treatise says is true) **under the “learned treatise” exception to the hearsay rule**, subject to the following limitations: 1. The treatise must be established as reliable authority by: (1) the testimony of the expert on the stand, (2) the testimony of another expert, or (3) judicial notice; 2. The excerpt must be used in the context of expert testimony (meaning, it is called to the attention of an expert witness on cross-examination, or relied upon by an expert witness during direct examination); and 3. The excerpt is read into evidence but cannot be received as an exhibit

Answer 19

**An expert is generally permitted to render an opinion as to the ultimate issue in the case.** **Criminal Cases**: However, in a criminal case in which the defendant’s mental state constitutes an element of the crime or defense, **an expert may not state an opinion as to whether the accused did or did not have the mental state in issue**.

Answer 20

A court has broad discretion to appoint expert witnesses (although this rule does not limit any party’s right to call its own experts). On a party’s motion or its own, the court may order the parties to show cause why experts should not be appointed and may ask the parties to submit nominations. The court may then appoint any expert who consents to act, and the court must inform the expert of their duties. The expert must advise the parties of any findings they make, and any party may depose the expert, call the expert as a witness, or cross-examine the expert. The expert is entitled to reasonable compensation as set by the court. The court may authorize disclosure to the jury that the expert was appointed by the court.

Answer 21

Upon a party’s request, the trial judge **must** order witnesses excluded from the courtroom. The judge may also do this on their own motion. The judge, however, must not exclude: 1. a party who is a natural person, 2. one designated officer or employee of a party that is not a natural person, 3. any person whose presence is essential to the presentation of a party’s claim or defense, or 4. a person statutorily authorized to be present. The court may also issue an order prohibiting disclosure of trial testimony to excluded witnesses and prohibiting the excluded witnesses from accessing trial testimony.

Answer 22

The court may examine a party’s witness or call its own witness. Each party is entitled to cross-examine a witness called by the court. A party may object to the court’s examining or calling a witness either at that time or at the next available opportunity when the jury is not present.

Answer 23

Generally, a party is not permitted to bolster or accredit the testimony of their witness (for example, by introducing a prior statement by the witness that is consistent with their testimony) **until the witness has been impeached.** **Exception**: * In certain cases, **a party may offer evidence that the witness made a timely complaint** (in a sexual assault case, for example) or * **a prior statement of identification** (usually, identifying the defendant as the perpetrator of the charged crime) **even if this tends to bolster their in-court testimony**. **The prior identification may also serve as substantive evidence that the identification was correct** (see the Hearsay module).

Answer 24

Impeachment refers to discrediting a witness. When evidence is admissible only to impeach, it is not being offered as substantive evidence (that is, to prove some fact at issue in the case) but to show that the witness can’t be trusted. Under the Federal Rules, a witness may be impeached by any party, including the party who called them.

Answer 25

**Cross-Examination**: eliciting facts from the witness that discredit their own testimony **Extrinsic Evidence:** calling other witnesses or introducing documents that prove the impeaching facts **Methods:** 1. Prior Inconsistent Statements 2. Bias or Interest 3. Sensory Deficiencies 4. Contradictory Facts 5. Opinion or Reputation Evidence of Untruthfulness 6. Conviction of a Crime 7. Bad Acts involving Untruthfulness Impeachment methods 1-4 involve impeaching a witness with **facts that are specific to the current case**; and Impeachment methods 5-7 involve impeaching a witness with their **general bad character for truthfulness**

Answer 26

A party may show, by cross-examination or extrinsic evidence, that the witness has, on another occasion, made statements inconsistent with their present testimony. To prove the statement by extrinsic evidence, a proper foundation must be laid and the statement must be relevant to some issue in the case. **When Statements are “Inconsistent”**: Most inconsistent statements are **clearly contradictory**. A prior statement that **omits** a fact asserted during the current testimony may constitute an inconsistency if it would have been natural for the witness to include the fact in the statement if they believed it to be true. On its own, **a witness’s present lack of memory of a fact is generally not inconsistent with a prior statement relating that fact** (however, the court may find an inconsistency where the witness’s memory loss appears to be feigned). On the other hand, **if the witness remembers the fact on the stand, but didn’t remember the fact in the prior statement, the earlier lack of memory is generally considered inconsistent**. Memory doesn't improve over time. **When Admissible as Substantive Evidence**: Usually, prior inconsistent statements are hearsay, admissible only for impeachment purposes. **If, however, a testifying witness’s prior inconsistent statement was made under oath at a prior proceeding, it is admissible nonhearsay and may be admitted as substantive evidence of the facts stated** (see the Hearsay module). The rationale is that the statement is reliable because of the oath, and because the witness is now subject to cross-examination about the statement. **Foundation for Extrinsic Evidence**: Extrinsic evidence can be introduced to prove a prior inconsistent statement only if, before the evidence is introduced: * The witness is given an opportunity to explain or deny the statement; and * The adverse party is given an opportunity to examine the witness about the statement **Exceptions to Foundation Requirement**: The foundation requirement above (giving the witness an opportunity to explain or deny; allowing the adverse party to examine them) does not apply in the following circumstances: * The foundation requirement does not apply if the prior inconsistent statement is an **opposing party’s statement**. * **An inconsistent statement by a hearsay declarant can be used to impeach the hearsay declarant** despite the lack of a foundation. * **The court may dispense with the foundation requirement where justice requires** (for example, when the witness has left the stand and is unavailable when their inconsistent statement is discovered).

Answer 27

Evidence that a witness is biased or has an interest in the outcome of a case tends to show that the witness has a motive to lie. **Foundation for Extrinsic Evidence**: Because impeachment with bias is not specifically addressed by the Federal Rules, much is left to the court’s discretion. **The majority rule is that before a witness can be impeached by extrinsic evidence of bias or interest, they must first be asked about the facts that show bias or interest on cross-examination**. Note that the court has discretion to permit extrinsic evidence even if the witness admits the bias.

Answer 28

**A witness may be impeached by showing**, either on cross-examination or by extrinsic evidence, **that their faculties of perception and recollection were so impaired as to make it doubtful that they could have perceived those facts**. A witness may also be impeached by showing that they **had no knowledge of the facts to which they testified**. **There is no foundation requirement for proving the sensory deficiency with extrinsic evidence** (meaning, the witness does not need to be confronted with the impeaching fact).

Answer 29

Not in the Federal Rules of Evidence. The cross-examiner, while questioning the witness, **can try to make the witness admit that they lied or were mistaken about some fact they testified to during direct examination**. If the witness admits the mistake or lie, they have been impeached by contradiction. However, if the witness sticks to their story, the issue becomes whether extrinsic evidence may be used to prove the contradictory fact. The answer is yes, **extrinsic evidence is permitted unless the contradictory fact is collateral** (meaning, it has no significant relevance to the case or to the witness’s credibility).

Answer 30

A witness can be impeached with reputation or opinion evidence of their own bad character for truthfulness, to suggest that they were not telling the truth while on the stand. **This is accomplished by calling a character witness to testify about the target witness’s bad reputation or the character witness’s low opinion of the target witness**.

Answer 31

A witness may be impeached by proof of a conviction (an arrest or indictment is not sufficient) for certain crimes. A pending review or appeal does not affect the use of a conviction for impeachment. **Any Crime Involving Dishonesty or False Statement:** A witness may be impeached by any crime, felony or misdemeanor, requiring an act of dishonesty or false statement. Although many crimes are arguably dishonest in nature, courts interpret this category narrowly to include only crimes in the nature of “crimen falsi” (for example, perjury, false statement, criminal fraud, embezzlement, false pretense). **The court has no discretion to bar impeachment by these crimes**. **Felony Not Involving Dishonesty or False Statement:** A witness may also be impeached by a felony that does not involve dishonesty or false statement, but the court has discretion to exclude these convictions. The balancing test depends on whether the witness is the defendant in a criminal case, or someone else: * If the witness being impeached is a criminal defendant, the court will exclude the conviction if the prosecution has not shown that its probative value outweighs its prejudicial effect. (This is a more difficult balancing test than for other witnesses.) * In the case of all other witnesses, the court will exclude the conviction if it determines that its probative value is substantially outweighed by its prejudicial effect. This is the standard Rule 403 balancing test, which favors admitting the evidence. **Remote Convictions Generally Not Admissible:** Generally, if more than 10 years have elapsed since the date of conviction or the date of release from confinement (whichever is later), the conviction is inadmissible. * **Court May Admit in Extraordinary Circumstances**: The court may admit an older conviction if: (1) its probative value substantially outweighs its prejudicial effect (a reverse-Rule 403 balancing test that strongly favors exclusion); and (2) the proponent gives the adverse party reasonable written notice of their intent to use it. **No Foundation Required for Extrinsic Evidence**: A prior conviction is usually shown by either direct or cross-examination of the witness or by introducing a record of the judgment, although other methods of proof (such as testimony from witnesses) may be permitted. No foundation is necessary. Note that if a party introduces evidence of their own prior conviction (to take out the sting of being impeached on cross-examination), they cannot later claim on appeal that the conviction was erroneously admitted. **Effect of Pardon**: A conviction cannot be used to impeach a witness if the conviction was subject to a pardon or equivalent procedure, and either: * The pardon was based on rehabilitation, and the witness has not been convicted of a subsequent felony; or * The pardon was based on innocence (irrespective of any subsequent convictions) **Juvenile Convictions Generally Not Admissible**: Juvenile offenses are generally not admissible for impeachment purposes. However, in a criminal case, the judge has the discretion to admit evidence of a juvenile offense committed by a witness other than the accused if the evidence would be admissible to attack the credibility of an adult and if the evidence is necessary to a determination of the accused’s guilt or innocence. **Constitutionally Defective Conviction Cannot Be Used**: A conviction obtained in violation of the defendant’s constitutional rights is invalid for all purposes, including impeachment.

Answer 32

Subject to discretionary control of the trial judge, **a witness may be interrogated upon cross-examination with respect to an act of misconduct if the act is probative of truthfulness** (that is, an act of deceit or lying). The cross-examiner must have a good-faith basis to believe the witness committed the misconduct. **Extrinsic Evidence Not Permitted**: Extrinsic evidence of the bad acts is not permitted. **In other words, this method of impeachment can be accomplished only by cross-examination of the witness**. Additionally, the cross-examiner cannot refer to any consequences the witness may have suffered as a result of their bad act. The rationale is that the consequence (such as an arrest, termination, etc.) is, in essence, a third person’s opinion that the witness committed the act, and thus a form of extrinsic evidence.

Answer 33

Where a witness makes a statement not directly relevant to the issue in the case, the rule against impeachment on a collateral matter prohibits a party from proving the statement untrue either by extrinsic evidence or by a prior inconsistent statement.

Answer 34

**The credibility of a hearsay declarant may be attacked** (and if attacked, may be supported) **by evidence that would be admissible if the declarant had testified as a witness**. In other words, because a hearsay declarant functions as a sort of witness—the jury has heard their statement, even if they aren’t present at trial—the hearsay declarant can be impeached by any of the impeachment methods that we have discussed. **In particular, the hearsay declarant need not be given the opportunity to explain or deny a prior inconsistent statement**. In addition, the party against whom the out-of-court statement was offered may call the hearsay declarant as a witness and cross-examine them about the statement. For purposes of this rule, a “hearsay declarant” means a person whose out-of-court statement has been admitted into evidence: (1) under an exception to the hearsay rule, or (2) as a vicarious statement of an opposing party.

Answer 35

* Explanation on redirect * Good character for truthfulness * Prior consistent statement

Answer 36

When the witness’s general bad character for truthfulness was attacked (by reputation or opinion testimony, prior convictions, or prior acts of misconduct), **other witnesses may be called to give reputation or opinion testimony about the impeached witness’s good character for truthfulness.** Note that the character witness cannot testify about specific acts of truthful conduct by the impeached witness; only reputation and opinion are allowed.

Answer 37

There are 2 situations in which a party can rehabilitate a witness by introducing the witness’s prior consistent statement. 1. If the testimony of the witness has been attacked by an express or implied charge that the witness is lying or exaggerating because of some motive, a previous consistent statement made by the witness before the onset of the alleged motive is admissible to rebut this evidence. 2. If the witness’s testimony is impeached on some different ground (other than a general attack on the witness’s character for truthfulness), such as an inconsistency or a charge of faulty memory, counsel may introduce a prior consistent statement made by the witness if, under the circumstances, it has a tendency to rehabilitate the witness’s credibility. A prior consistent statement that is admissible to rehabilitate a witness’s credibility also is admissible as substantive evidence of the truth of its contents (see Hearsay).

Answer 38

Hearsay is a statement, other than one made by the declarant while testifying at the current trial or hearing, offered in evidence to prove the truth of the matter asserted.

Answer 39

**Common Non-Truth Purposes** * **Verbal acts or legally operative facts** (such as words of contract or defamatory words) * **Statements offered to show their effect on the listener or reader** (for example, to prove notice in a negligence case) * **Statements offered as circumstantial evidence of declarant’s state of mind** (for example, when a party is trying to prove someone’s insanity or knowledge)

Answer 40

* Prior Statements of Testifying Witnesses * Statements by or Attributable to Opposing Party * Former Testimony * Statements Against Interest * Dying Declarations * Statements of Personal or Family History * Statements Offered Against Procuring Declarant's Unavailability * Excited Utterances * Present Sense Impressions * Present State of Mind * Statements Made for Purposes of Medical Diagnosis or Treatment * Records of Regularly Conducted Activity - Business Records * Official Records and Other Official Writings * Recorded Recollection * Learned Treatises * Ancient Documents * Documents Affecting Propety Interests * Reputation * Family Records * Market Reports

Answer 41

A prior statement by a testifying witness who is subject to cross-examination is not hearsay if: * **The prior statement is one of identification** of a person as someone the witness perceived earlier (even if the witness cannot remember making the identification); * **The prior statement is inconsistent with the declarant’s in-court testimony and was given under oath** at a prior proceeding; or * **The prior statement is consistent with the declarant’s in-court testimony** and is (1) **offered to rebut a charge that the witness is lying or exaggerating because of some motive** (and the statement was made before any motive to lie or exaggerate arose), or (2) **offered to rehabilitate a witness whose credibility has been impeached** on some other ground (other than a general attack on the witness’s character for truthfulness), such as an inconsistency or charge of faulty memory.

Answer 42

An opposing party’s statement (that is, a statement made by or attributable to a party and offered against that party) is not hearsay under the Federal Rules. These statements are traditionally called “admissions of a party-opponent,” but this is misleading because the declarant need not “admit” anything. **To qualify as an opposing party’s statement, the statement need not have been against the declarant’s interest when made, and may even be in the form of an opinion.** Personal knowledge is not required; the statement may be predicated on hearsay. **Judicial and Extrajudicial Statements**: A party’s formal judicial statements (in pleadings, stipulations, etc.) are conclusive and cannot be contradicted during trial. A party’s informal judicial statements made during testimony and extrajudicial (out-of-court) statements are not conclusive and can be explained. **A party’s formal judicial statement in one case can be admitted against them as an extrajudicial statement in another case**. **Adoptive Statements**: Where a party expressly or impliedly adopts or acquiesces in the statement of another, the party’s acquiescence may be admissible against them. * **Silence**: If a party remains silent in the face of an accusatory statement, their silence may be considered an implied acquiescence to the truth of that statement if the following requirements are met: 1. The party heard and understood the statement; 2. The party was physically and mentally capable of denying the statement; and 3. A reasonable person would have denied the accusation Note, however, that silence in the face of accusations by police in a criminal case is almost never considered an admission of a crime. **Vicarious Statements**: Certain statements by another person are admissible against a party because of the relationship between them. * **Co-Parties—Insufficient Relationship**: Statements of a party are not receivable against their co-parties merely because they happen to be joined as parties. * **Authorized Spokesperson**: The statement of a person authorized by a party to speak on its behalf (such as a statement by company’s press agent) can be admitted against the party. * **Agents and Employees**: A statement by an agent or employee is admissible against the principal if the statement: (1) concerned any matter within the scope of their agency or employment, and (2) was made during the existence of the agency or employment relationship. * **Partners**: After a partnership is shown to exist, a statement of one partner relating to matters within the scope of the partnership business is binding upon their co-partners. * **Co-Conspirators**: Statements of one conspirator, made to a third party in furtherance of a conspiracy to commit a crime or civil wrong at a time when the declarant was participating in the conspiracy, are admissible against co-conspirators. The court must determine the existence of a conspiracy, and the party’s participation in it, by a preponderance of the evidence standard. * **Predecessors-in-Interest**: The statements of a party’s predecessor-in-interest are admissible as statements of the opposing party. * **Joint Tenants—State Courts Only**: In most state courts, statements of each joint owner are admissible against the other. These statements do not qualify as opposing party statements under the Federal Rules, but may be admissible under one of the hearsay exceptions. * **Preliminary Determinations**: Before admitting an out-of-court statement as a vicarious statement of an opposing party, the court must make a preliminary determination of the declarant’s relationship with the party against whom the statement is offered. In other words, the court must first determine whether the declarant was authorized to speak for the party, whether the declarant was the party’s agent/employee, or whether the declarant and party were co-conspirators. In making such a determination, the court must consider the contents of the statement, but the statement alone is not sufficient to establish the required relationship; there must be some independent evidence.

Answer 43

A declarant is unavailable if they: * Are unable to testify due to death or physical or mental illness; * Are exempt from testifying because of privilege; * Refuse to testify concerning the statement despite a court order; * Testify that they do not remember the subject matter; or * Are absent (beyond the reach of the court’s subpoena), and the proponent is unable to procure their attendance or testimony by process or other reasonable means. Note that a declarant who is able to give deposition testimony in lieu of attending trial is considered to be an available witness—except with respect to (1) the former testimony exception and (2) the forfeiture by wrongdoing exception (both discussed below). **Exception—Proponent Procured Declarant’s Unavailability**: A declarant is not considered unavailable for purposes of the hearsay rule if the proponent of the declarant’s statement procured or wrongfully caused the declarant’s unavailability (for example, by intimidating or killing them) in order to prevent them from attending or testifying.

Answer 44

The testimony of a **now-unavailable witnes**s is admissible if: * **The testimony was given under oath** at a trial, hearing, or deposition, in the same case or in a different case; and * **The party against whom the testimony is now being offered**—or, in a civil case, the party’s predecessor in interest—**had an opportunity and similar motive to develop the declarant’s testimony at the prior proceeding by direct, cross-, or redirect examination.** “Predecessor in interest” refers to a person in a privity relationship with the party (examples would include grantor-grantee, testator-executor, or joint tenants).

Answer 45

**A statement of a person, now unavailable as a witness, may be admissible if it was against that person’s pecuniary (money), proprietary (property), or penal (criminal) interest when made, such that a reasonable person in the declarant’s position would have made it only if they believed it to be true**. The declarant must also have had personal knowledge of the facts, and must have been aware that the statement was against their interest when they made it. **Limitation on Statements Against Penal Interest**: In criminal cases, statements against penal interest (meaning, statements that would subject the declarant to criminal liability) must be corroborated. **"Statement” Means Single Remark**: If a person makes a declaration containing statements that are against their interest (for example, “I sold the drugs”) and statements that are not (for example, “X runs the drug ring”), the exception covers only those remarks that inculpate the declarant, not the entire extended declaration.

Answer 46

In a homicide prosecution or in any civil case, a statement made by a now-unavailable declarant is admissible if: * The declarant believed their death was imminent (they need not actually die); and * The statement concerned the cause or circumstances of what the declarant believed to be their impending death. Note that the statement must be based on the declarant’s perceptions and firsthand knowledge of what happened (meaning, an unsupported opinion or speculation will not qualify).

Answer 47

Statements by a now-unavailable declarant concerning births, marriages, divorces, relationship, genealogical status, etc., are admissible provided that: * The declarant is a member of the family in question or intimately associated with it; and * The statements are based on the declarant’s personal knowledge of the facts or their knowledge of family reputation

Answer 48

The statement of a person (now unavailable as a witness) is admissible when offered against a party who has engaged or acquiesced in wrongdoing that intentionally procured the declarant’s unavailability. Remember, the statement meets this exception only if the party’s motivation was to prevent the declarant from testifying. If a party killed a declarant (or otherwise prevented them from testifying) for a different reason, the declarant’s statement would not fall within this exception.

Answer 49

An out-of-court statement relating to a startling event, made while under the stress of the excitement from the event (meaning, before the declarant had time to reflect upon it), is admissible. The rationale for this exception is that excitement suspends a declarant’s capacity to fabricate.

Answer 50

A present sense impression is a statement that describes or explains an event or condition, and is made while or immediately after the declarant perceives the event or condition. The rationale for this is exception is that the declarant has no time to fabricate their statement.

Answer 51

A statement of the declarant’s then-existing (present) state of mind (including their motive, intent, or plan) or their emotional, sensory, or physical condition is admissible. The rationale for this exception is that these are contemporaneous statements and the declarant has unique knowledge of their own condition. However, except as to certain facts concerning the declarant’s will, a statement of memory or belief is not admissible to prove the truth of the fact remembered or believed. **Includes Statements of Intent**: As stated above, “state of mind” includes statements about the declarant’s intent to do something in the future, including the intent to engage in conduct with another person. **Includes Statement of Physical Condition**: As stated above, this exception covers a declarant’s statement—to anyone—about their current physical condition.

Answer 52

**A statement that describes a person’s medical history, past or present symptoms, or their inception or general cause is admissible as an exception to the hearsay rule if it was made for—and was reasonably pertinent to—medical diagnosis or treatment.** Usually a declarant will be describing their own condition, but this is not required (for example, the declarant might be seeking medical assistance for a family member). Statements falling within this exception are usually made to medical personnel, but this is not an absolute requirement. The rationale for this exception is that people have a motive to be honest and accurate when undergoing a medical assessment.

Answer 53

Any writing or record made as a memorandum of any act, event, condition, opinion, or diagnosis is admissible in evidence as proof of that occurrence if the following elements are met. The rationale is that businesses are motivated to keep accurate records. **Elements** * “**Business**”: “Business” includes every business, organization, occupation, or calling, including nonprofit organizations. * **Entry Made in Regular Course of Business**: To be admissible: (1) the record must have been made in the regular course of business and (2) the business must regularly keep such records (meaning, the entrant must have had a duty to make the entry). Self-serving accident reports prepared primarily for litigation are usually inadmissible. * **Entry Made Near Time of Event** * **Personal Knowledge**: The business record must consist of matters within the personal knowledge of the entrant, or within the knowledge of someone with a duty to transmit such matters to the entrant (generally, a co-worker). **Required Foundation for Business Records**: The authenticity of the record must be established by a sponsoring witness, who can be a custodian of records or any person in the business who is knowledgeable about the business’s recordkeeping (it does not need to be the author of the record in question). This can be accomplished by the records custodian (1) testifying that the record meets the elements of the business records exception, or (2) certifying in writing that the record meets the elements of the business records exception. **Business Records to Prove Nonoccurrence of Matter**: A business record that meets the above requirements may also be used to prove the nonoccurrence or nonexistence of a matter if it was the regular practice of the business to record all such matters. **Court May Exclude for Lack of Trustworthiness—Burden on Opponent**: Even if a business record meets all requirements, it still may be excluded by the court if the opponent makes a showing that the circumstances of the record indicate a lack of trustworthiness.

Answer 54

**Public Records and Reports** * Records setting forth the activities of the office or agency * Recordings of matters observed pursuant to a duty imposed by law, but not including police observations in criminal cases; and * In civil actions and against the government in criminal cases—but not against the defendant in a criminal case—records of factual findings resulting from an investigation authorized by law The writing must have been made by and within the scope of the duty of the public employee, and it must have been made at or near the time of the event. Note that as with business records, an otherwise qualifying public record may be excluded by the court if the opponent makes a showing that the circumstances of the record indicate a lack of trustworthiness. **Limitation on Law Enforcement Records as Public Records and Business Records**: As a general rule, police reports can be admitted under the public records exception. Even the officer’s opinions and factual (not legal) conclusions can be admitted under this exception. However, public records and reports generally are not admissible against the defendant in a criminal case. This means that investigative reports by the police, FBI, and other agencies are inadmissible in this situation. Additionally, most courts have held that these records can’t be admitted against a criminal defendant under the business records exception (in other words, the business records exception can’t be used as a “back door” to get around this limitation in the public records exception). **Records of Vital Statistics**: Records of vital statistics are admissible if reported to a public office in accordance with a legal duty. **Statement of Absence of Public Record**: Evidence in the form of testimony or a certification from the custodian of public records (or other qualified person) that they have diligently searched and failed to find a record is admissible to prove that the matter was not recorded, or inferentially that the matter did not occur. Note, however, that a criminal defendant has a right to confrontation and may demand the presence of the person who prepared the certification. Thus, in a criminal case, this type of evidence is admissible in the form of a certification only if the prosecution notifies the defense at least 14 days before trial and the defense does not object in writing within 7 days of receiving the notice (unless the court sets a different timeline). **Judgments**: A certified copy of a judgment is always admissible proof that such judgment has been entered. The problem is to what extent the facts adjudicated in the former proceeding can be introduced to prove facts in the present case. * **Prior Criminal Conviction—Felony Conviction Admissible**: A judgment of a felony conviction is admissible in criminal and civil actions as an exception to the hearsay rule to prove any fact essential to the judgment. For example, if a defendant was convicted of a felony assault, the injured party could use the judgment of conviction in a later civil lawsuit against the same defendant to prove that the assault happened. In a criminal case, however, the government may use the judgment for this purpose only against the accused; against others, it may be used only for impeachment purposes. * **Prior Criminal Acquittal—Excluded**: This hearsay exception does not apply to records of prior acquittals. This is because the evidentiary standard is higher in a criminal case (proof beyond a reasonable doubt), so an acquittal is not conclusive as to whether the defendant would be found liable in a civil case. * **Judgment in Prior Civil Case—Generally Excluded**: A civil judgment is inadmissible in a subsequent criminal proceeding because of the different standards of proof. A civil judgment is generally also inadmissible in subsequent civil proceedings, subject to certain statutory exceptions—for example, under the Federal Rules, a prior judgment may be admitted to prove matters of personal or family history, or boundaries of land.

Answer 55

If a testifying witness’s memory cannot be revived, a party may introduce a memorandum or other record that the witness made or adopted at or near the time of the event. The record can only be read into evidence; it cannot be admitted as an exhibit unless offered by an adverse party.

Answer 56

Statements contained in a learned treatise are admissible as substantive proof if 1. the treatise is established as reliable authority and 2. the excerpt is relied upon by an expert during direct examination or brought to an expert’s attention on cross-examination. If admitted, such statements are read into evidence but are not received as an exhibit.

Answer 57

Under the Federal Rules, statements in any authenticated document prepared before January 1, 1998, are admissible.

Answer 58

Reputation evidence is hearsay because it summarizes various out-of-court statements by other people—but we know from the Character Evidence module that such testimony is routinely admitted. That is because there are several hearsay exceptions that admit reputation evidence to prove: (1) character; (2) personal or family history; (3) land boundaries; and (4) a community’s general history.

Answer 59

Statements of fact concerning personal or family history contained in family Bibles, jewelry engravings, genealogies, tombstone engravings, etc., are admissible.

Answer 60

Market reports and other published compilations are admissible if generally used and relied upon by the public or by persons in a particular occupation.

Answer 61

* The hearsay statement must possess sufficient guarantees of trustworthiness. In making this determination, the court must consider: (1) the totality of the circumstances in which the statement was made, and (2) any evidence that corroborates the statement. * The statement must be strictly necessary (that is, more probative as to the fact for which it is offered than any other evidence that the proponent can reasonably produce). * The proponent must give reasonable notice to the adversary as to their intent to offer the statement, including: (1) the substance of the statement, and (2) the name of the declarant. Such notice generally must be given in writing in advance of the trial or hearing, but may be given in any form during the trial or hearing if the court, for good cause, excuses a lack of earlier notice.

Answer 62

Under the Confrontation Clause, a hearsay statement will not be admitted (even if it falls within a hearsay exception) where: * The statement is being offered against the accused in a criminal case (there is no confrontation concern in civil cases); * The declarant is unavailable; * The statement was “testimonial” in nature; and * The accused had no opportunity to cross-examine the declarant’s testimonial statement prior to trial Note, however, that the defendant forfeits their right of confrontation if they committed a wrongful act that was intended to keep the witness from testifying.

Answer 63

* The attorney-client privilege; * Spousal immunity; * The privilege for confidential marital communications; * The psychotherapist/social worker-client privilege; * The clergy-penitent privilege; and * Governmental privileges Other privileges not listed above (such as physician-patient, accountant-client, professional journalist) are only recognized by certain states.

Answer 64

A privilege is personal to the holder; meaning, it generally can be asserted only by the holder. Sometimes the person with whom the confidence was shared may assert the privilege on the holder’s behalf.

Answer 65

The privilege applies to: * Confidential communications, * Between attorney and client (or representatives of either), * Made during professional legal consultation, * Unless the privilege is waived or an exception is applicable **Joint Client Rule—No Privilege Where Attorney Acts for Both Parties**: If 2 or more clients with a common interest consult the same attorney, their communications with the attorney concerning the common interest are privileged as to third parties. But if the joint clients later have a dispute with each other concerning the common interest and one client sues the other, **the privilege does not apply as between them**. **The client holds the privilege**, and only they can waive it. However, **the attorney’s authority to claim the privilege on behalf of the client is presumed in the absence of contrary evidence**. **The attorney-client privilege applies indefinitely**. It continues after the attorney-client relationship ends and even after the client’s death. The client’s estate representative has the power to waive the privilege after the client’s death. **Exceptions:** There is no privilege: * If the attorney’s services were sought to aid in the planning or commission of something the client should have known was a crime or fraud * Where the client has put the legal services at issue in the case * For a communication relevant to an issue of breach of duty in a dispute between the attorney and client * Regarding a communication relevant to an issue between parties claiming through the same deceased client

Answer 66

Confidential information acquired by a physician is privileged if: * There was a professional relationship between the physician and patient for the purposes of medical treatment; * The information was acquired for the purpose of diagnosis or treatment; and * The information was necessary for diagnosis or treatment (non-medical information—for example, details of who was at fault in an accident—is not privileged) The privilege belongs to the patient, and the patient may decide to claim or waive it. If the patient is unavailable at the time of trial, the physician may claim the privilege on their behalf. **Exceptions**: The physician-patient privilege does not apply (or is impliedly waived) if: * The patient puts their physical condition in issue; * The physician’s assistance was sought to aid wrongdoing; * The communication is relevant to an issue of breach of duty in a dispute between the physician and patient; * The patient agreed by contract to waive the privilege; or * It is a federal case applying the federal law of privilege (because, again, federal courts do not recognize a general physician-patient privilege)

Answer 67

Federal courts recognize a privilege for confidential communications between a psychotherapist (psychiatrist or psychologist) or licensed social worker and their patient/client. In most particulars, this privilege operates in the same manner as the attorney-client privilege (supra); for example, the patient/client must have intended their communication to be confidential, and the purpose of the communication must have been to facilitate professional services. Similar to the privileges discussed above, there is no privilege where the patient puts their mental condition at issue in the case (for example, by filing a claim for emotional injuries or asserting an insanity defense).

Answer 68

When the privilege of spousal immunity is invoked, a married person whose spouse is a defendant in a criminal case may not be called as a witness by the prosecution. Moreover, a married person may not be compelled to testify against the legal interests of their spouse in any criminal proceeding, regardless of whether the spouse is the defendant. Must be married at the time of trial. In federal court, the privilege belongs to the witness-spouse. This means that the witness-spouse cannot be compelled to testify, but may choose to do so.

Answer 69

In any civil or criminal case, confidential communications between spouses during a valid marriage are privileged. Either spouse can refuse to disclose the communication or prevent any other person from doing so. For this privilege to apply, the marital relationship must exist when the communication is made. Divorce will not terminate the privilege, but communications after divorce are not privileged. The rationale for the privilege is to encourage candor between spouses.

Answer 70

* Communications or acts in furtherance of a future joint crime or fraud; * In legal actions between the spouses; or * In cases where a spouse is charged with a crime against the testifying spouse or either spouse’s children

Answer 71

Federal courts and many states recognize a privilege for statements made to a member of the clergy, the elements of which are very similar to the attorney-client privilege. For example, the privilege will apply only if the penitent made the communication to the clergy member in the clergy member’s capacity as a spiritual adviser.

Answer 72

Under the 5th Amendment to the Constitution, a witness cannot be compelled to testify against themselves. Any witness compelled to appear in a civil or criminal proceeding may refuse to give an answer that ties the witness to the commission of a crime. This privilege is covered in more depth in your Criminal Procedure materials.

Answer 73

Official information not otherwise open to the public may be privileged. The government also holds a privilege that protects the identity of an informer (someone who has provided the government with details of a potential crime). The privilege is waived if the informer’s identity is voluntarily disclosed by a privilege holder (an appropriate government representative).

Answer 74

The party who has the burden of pleading usually has the burden of producing or going forward with evidence sufficient to make out a prima facie case (that is, create a fact question of the issue for the trier of fact).

Answer 75

After the parties have sustained their burden of production of evidence, the question is whether the party with the burden of persuasion has satisfied it. The burden of persuasion for civil cases is usually by a preponderance of the evidence (more probably true than not true), although some civil cases (such as fraud or an oral contract to make a will) require proof of clear and convincing evidence (high probability). The burden of persuasion for criminal cases is beyond a reasonable doubt.

Answer 76

In most cases, the existence of some preliminary or foundational fact is an essential condition of admissibility. For example, for a statement to be admitted under a hearsay exception, it must be determined whether the requirements of the exception are satisfied based on the surrounding facts (for example, did the declarant actually believe their death was imminent when they made their supposed dying declaration?).

Answer 77

The jury decides certain preliminary facts relating to whether evidence is relevant at all. **Screened by Judge:** Before such a question is brought before the jury, the judge must determine that there is sufficient proof to support a jury finding that the preliminary fact exists.

Answer 78

Facts affecting the competency of the evidence (meaning, whether it is admissible under the rules of evidence) must be determined by the trial judge. For example, the judge decides: * Is a witness mentally competent to testify? * Does a privilege exist? * Does the evidence meet the requirements of a hearsay exception? **Judge May Consider All Non-Privileged Evidence**: *The Federal Rules permit the trial judge to consider **any non-privileged relevant evidence** when making a preliminary fact determination*, even if such evidence would not be admissible at trial. In other words, the judge is not bound by the rules of evidence, except privilege. **The judge can consider hearsay evidence, unauthenticated evidence, and so on.** Remember, this evidence isn’t necessarily being introduced at trial; **the judge is simply considering it to determine if other evidence should be admitted at tria**l.

Answer 79

Judicial notice is the recognition of a fact as true without formal presentation of evidence. A court may take judicial notice of any fact that is “not subject to reasonable dispute” because: * The fact is **generally known** within the trial court’s jurisdiction, or * The fact can be **accurately and readily determined from sources whose accuracy cannot reasonably be questioned**. * Judge can do so on their own * Required on Party's Request **Courts must take judicial notice of federal and state law and the official regulations of the forum state and the federal government**. Courts may take judicial notice of municipal ordinances and private acts or resolutions of Congress or of the local state legislature. Laws of foreign countries may also be judicially noticed. **Conclusive in civil case, not necessarily in criminal case**

Answer 80

* **Mail Delivery** - If properly addressed, stamped, and mailed * **Death from 7-Year Abense** * **Against Suicide**: When cause of death is in dispute, there is a presumption in civil cases that it was not suicide. * **Legitimacy of a person** * **Sanity** * **Ownership of a Car**: Proof of ownership of a motor vehicle creates the presumption that the owner was the driver or that the driver was the owner’s agent. * **Chasity** * **Regularity**: It is presumed that persons acting in an official office are properly performing their duties. * **Continuance**: Proof of the existence of a person or condition at a given time raises a presumption that it continued for as long as it is usual with things of that nature. * **Solvency of a Person** * **Bailee's Negligence:** Proof of delivery of goods in good condition to a bailee and failure of the bailee to return the goods in the same condition create the presumption that the bailee was negligent. * **Marriage**: Upon proof of a marriage cermony, a marriage is presumed valid

Answer 81

Until rebutted, a presumption operates to shift the burden of production to the party against whom the presumption operates.

Answer 82

A presumption is overcome or destroyed when the adversary produces some evidence contradicting the presumed fact. Once sufficient contrary evidence is admitted, the presumption is of no force or effect.

Answer 83

**No mandatory presumptions in criminal cases** Special considerations apply when true presumptions arise in the criminal context. **The judge cannot instruct the jury that it must find a presumed fact against the accused**; the judge must instruct them that they may regard the basic facts as sufficient evidence of the presumed fact.

Answer 84

**True Presumptions**: Are the Rubuttable type. **Permissible Inferences**: A permissible inference may allow the party to meet their burden of production (establish a prima facie case), but does not shift the burden to the adversary. Examples include the inference of negligence arising from res ipsa loquitur, the inference that destroyed evidence was unfavorable to the spoliator, the presumption of innocence in a criminal case, and the inference of undue influence when a will’s drafter is also the principal beneficiary. **Conclusive Presumptions**: Because it cannot be rebutted, a conclusive presumption (for example, that a child under age 7 cannot commit a crime) is really a rule of substantive law.

Answer 85

When 2 or more conflicting presumptions arise, the judge should apply the presumption founded on the weightier considerations of policy and logic.

Answer 86

Under the Federal Rules, state law governs the effect of a presumption concerning a fact that is an element of a claim or defense to which, under the Erie doctrine, the rule of decision is supplied by state law.

Answer 87

Where part or all of a statement is introduced into evidence, the **adverse party may require the proponent of the evidence to introduce any other part—or any related statement—that ought in fairness to be considered at the same time**. The adverse party may do so over a hearsay objection. **EXAMPLE**: In a lawsuit arising out of an auto accident, the plaintiff introduces a portion of a tape recording in which an eyewitness said that the defendant was driving well over the speed limit before the accident. The defendant can require the plaintiff to immediately introduce a later portion of the recording in which the eyewitness said that the plaintiff suddenly swerved into the defendant’s lane right before the accident.

Answer 88

Evidence may be admissible for one purpose but not another, or admissible against one party but not another. In these situations, the court must, upon timely request, restrict the evidence to its proper scope and instruct the jury accordingly. This is called a “limiting instruction.” Furthermore, the court may exclude the evidence entirely if it determines that, even with a limiting instruction, the probative value of the evidence with respect to its legitimate purpose would be substantially outweighed by danger of unfair prejudice with respect to its incompetent purpose (in other words, the judge may exclude the evidence if it fails the Rule 403 balancing test).

Answer 89

A party may claim error in the court’s ruling if it affects a substantial right of the party. If the court admitted evidence, the party opposing its admission needs to make a timely objection or move to strike the evidence. If the court excluded evidence, the proponent of the evidence needs to inform the court of the evidence’s substance by an offer of proof, unless its substance was apparent from the context. Once the court rules definitively on the record (either before or at trial), the party doesn’t have to renew its objection or offer of proof to preserve the claim of error for appeal. **Timing**: Objections at trial should be made after the question, but before the answer, if the question calls for inadmissible information. Otherwise, a motion to strike must be made as soon as an answer emerges as inadmissible. At a deposition, objections to the form of a question, or to a testimonial privilege, should be made when the question is asked or it may be waived. Objections based on the substance of a question or answer may be postponed until the deposition is offered in evidence. **Specificity**: An objection may be either specific (for example, “Objection, hearsay”) or general (“I object”). The Federal Rules call for a specific objection unless the ground for the objection was apparent from the context. **Opening the Door**: A party who introduces evidence on a particular subject thereby asserts its relevance and cannot complain if their adversary offers evidence on the same subject. **Motion to Strike -- Unresponsive Answers**: If an answer is unresponsive but otherwise admissible, only examining counsel can move to strike the answer; opposing counsel cannot. **Exceptions**: It is not necessary for a party to “except” from a trial ruling in order to preserve the issue for appeal. This was a common law rule that has been abolished. **Offers of Proof**: An offer of proof may be made, disclosing the nature, purpose, and admissibility of rejected evidence, to persuade the trial court to hear the evidence and to preserve the evidence for review on appeal. It may be made by witness testimony, a lawyer’s description of what the evidence would have been, or tangible evidence marked and offered. The court can require the offer of proof to be made in question-and-answer form (meaning, the lawyer conducts their examination of the witness so that the judge hears exactly what the witness would have said in front of the jury). **Taking Notice of Plain Error**: The court may take notice of a plain error affecting a substantial right of a party, even if the claim of error wasn’t properly preserved. Rare.

Answer 90

A judge may comment on the weight of the evidence in federal courts.

Answer 91

To the extent practicable, the judge must conduct a jury trial so that inadmissible evidence is not suggested to the jury by any means.

Evidence Flashcards

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