Evidence

Question 1

Logical Relevance

Answer 1

Tends to make the existence of any fact of consequence more or less probable than it would be without the evidence.

Question 2

What are the limitations on relevance?

Answer 2

Relevance doesn’t equal probative value.

403 balancing test. Courts can exclude relevant evidence if its probative value is substantially outweighed by its danger of unfair prejudice or confusion

Public Policy

Question 3

What types of evidence gives rise to Discretionary Exclusion of Relevant Evidence

Answer 3

Emotionally Disturbing
Repetitive or confusing
admissible for one purpose but inadmissible for another

In any situation, to exclude relevant evidence, probative value must be substantially outweighed by the danger of unfair prejudice

Any hearing on excludable evidence must be done outside the presence of a jury.

Question 4

What types of evidence may be excluded on Public Policy Grounds

Answer 4

Liability Insurance

Subsequent Remedial Measures

Settlements, offers to settle, plea bargaining

Payments or offers to pay medical expenses

Question 5

What are the uses for evidence of similar occurences

Answer 5

Evidence of prior similar occurrences concerning the time, event, or person in the present controversy is often inadmissible as irrelevant or as presenting an unfair risk of prejudice

It may used for:
1) causation
2) Prior incidents demonstrating fraud or pre-existing conditions
3) intent of absence of mistake
4) to rebut a defense of impossibility
5) value
6) custom
7) Business Routine

Question 6

What are the uses for evidence of habit?

Answer 6

A persons habit may be relevant and admissible to show that the person acted in conformity with that habit on a given occasion

1) conduct must be highly specific and frequently repeated
2) regular, instinctive, habitual conduct

Question 7

In Civil Cases when can evidence of a persons character by admissible?

Answer 7

Evidence of character cannot be used to show that they acted in conformity with that character.

Exceptions:
1) When character is an essential element of a claim or defense
2) Prior acts of sexual assault or child molestation in cases for similar claims

Question 8

In criminal cases when can character evidence be used?

Answer 8

A defendant may introduce evidence of their character, which the prosecution may rebut.

Defense: may introduce evidence of good character if
1) it is pertinent to the charged crime
2) the testimony is based on reputation or opinion

Prosecution: may introduce evidence of character
1) after defendant opens the door
2) sexual assault/ child molestation
3) defendant offers evidence of victims character, prosecution may offer evidence that defendant also has that character
4) on direct reputation and opinion evidence is admissible
5) on cross reputation, opinion, and specific instances

Question 9

What are the effects of the rape shield?

Answer 9

Civil Cases - reputation, opinion, and specific instances of victims character are admissible if:
1) probative value substantially outweighs unfair prejudice
2) if plaintiff first puts victims reputation at issue

criminal cases
1) reputation and opinion evidence of victim is inadmissible
2) evidence of victims sexual behavior or disposition is inadmissible
3) reputation evidence is admissible if used to show a third party source for dna or prior consensual intercourse

Question 10

What procedures must parties use if they wish to enter character evidence protected by the rape shield?

Answer 10

1) disclose intent to offer evidence
2) describe its purpose
3) notify the victim 14 days before the trial

Question 11

What are the uses of Prior Bad Acts evidence?

Answer 11

In civil and criminal cases, specific instances of bad conduct are inadmissible to prove character.

Non-character uses
1) motive
2) Intent
3) Mistake
4) Identity
5) Common plan or scheme

Question 12

What are the 7 methods of impeachment?

Answer 12

1) Contradiction
2) Prior inconsistent statements
3) bias or interest
4) sensory deficiencies
5) reputation and/or opinion of untruthfulness
6) prior acts of misconduct
7) prior criminal conviction

Question 13

What is a collateral matter and its effect on extrinsic evidence

Answer 13

Extrinsic evidence may not be used on collateral matters.

Extrinsic Evidence: any evidence other than witness testimony at the current proceeding

Collateral Matter: a fact not material to issues in the case, evidence would not be material if not for its contradictory nature

Question 14

Impeachment by Contradiction

Answer 14

Any evidence may be used to show witness has made contradictory statements on material issues

Question 15

Impeachment by Prior Inconsistent Statement

Answer 15

Witness’s prior inconsistent statements may be used to impeach witness’s testimony

may be established by cross-examination or extrinsic evidence

witness must be given an opportunity to explain or deny the statement

prior inconsistent statements are only usable for impeachment if they are also hearsay

Question 16

Impeachment by establishing bias

Answer 16

May be established through cross-exam or extrinsic evidence

Witness must be given a chance to respond

Question 17

Impeachment by prior instances of misconduct

Answer 17

May be established through cross-exam about any prior misconduct probative of truthfulness.

No extrinsic evidence is allowed and attorney must accept the witness’s answer

Question 18

Impeachment based on opinion or reputation for truthfulness

Answer 18

Witness may be impeached by testimony describing his reputation for untruthfulness in the community.

Question 19

Impeachment by prior conviction

Answer 19

Impeachment admissibility is determined by the level of crime and its relevance to honesty.

Prior Conviction - misdemeanors are inadmissible unless it involves dishonesty, felonies are admissible against a defendant if government shows probative value outweighs prejudicial effect, non-defendant witness must clear a 403 balancing test

Prior Conviction involving dishonesty - Courts have no discretion to exclude under 403

Convictions more than 10 years old - Not admissible unless probative value substantially outweighs unfair prejudice and notice is given, 10 years tolls from the later of conviction or release date

Question 20

Qualifications for witness competency

Answer 20

1) personal knowledge based on own perception
2) capable of remember
3) ability to communicate their perceptions
4) under oath

witnesses are presumed competent, and a diminution of any of the above only goes to weight of testimony.

upon request, witnesses must be excluded from hearing other witness’s testimony

Question 21

Refreshing a witness’s present recollection

Answer 21

Any document can be used

cannot be read aloud. witness may briefly view document

opponent may inspect and offer into evidence anything needed to refresh

document is not read into evidence

Question 22

What are the requirements for a recorded recollection made by the witness, be used as evidence?

Answer 22

1) Witness once had personal knowledge
2) witness’s memory is insufficient to testify as to contents
3) record was made or adopted when the matter was fresh in witness’s mind
4) record accurately reflects witness’s knowledge

May be read into evidence but may be entered as an exhibit only by an adverse party.

Question 23

What are the 7 objections to questions asked of a witness?

Answer 23

1) call for narrative - non-specific, open ended
2) Leading - the question suggests an answer
3) assumes facts not in evidence
4) argumentative - questioned isnt designed to elicit facts but rather is an argumentative assertion
5) Compound - asks multiple questions at once
6) beyond the scope of direct - questions asked during direct define the limits on the matters that can be discussed on cross
7) Unresponsive/non-responsive - witnesses answer does not relate to the answer the question asked

Question 24

Effect of a failure to object to witness questions

Answer 24

failing to object is effective waiver of the right

Question 25

What are the 2 forms of opinion testimony?

Answer 25

Lay opinion expert testimony

Question 26

Lay opinion requirements

Answer 26

1) Rationally based on witness's perception 2) Helpful to the trier of fact, not legal conclusions 3) Not based on information in the realm of expert opinion

Question 27

Expert Opinion Requirements

Answer 27

1) Helpful to the trier of fact 2) Qualified through special skill, knowledge, or experience 3) Reasonable Certainty 4) Proper Factual Basis - even if those facts come from inadmissible evidence 5) Reliable principals reasonably relied on 6) may include opinion on ultimate legal issues

Question 28

What are Reliable Principals, Reasonably Relied On

Answer 28

1) peer tested and capable of retesting 2) Published 3) Has a low error rate 4) reasonably accepted in the field of study

Question 29

What are the 6 Testimonial privileges?

Answer 29

1) attorney-client 2) clergy-penitent 3) spousal 4) marital communications 5) psychotherapists/social worker - patient 6) governmental

Question 30

Attorney-Client Privilege

Answer 30

Communications between an attorney and client or client's representatives are privileged in all proceedings unless waived 1) intended to be confidential 2) made to facilitate legal service 3) not in relation to requesting aid in the planning or commission of a fraud or crime 4) Is not in relation to a the attorneys malpractice 5) it is not being offered against a jointly represented party

Question 31

doctor/therapist-patient

Answer 31

Communication must be: 1) made for diagnosis or treatment 2) pertinent to diagnosis or treatment 3) intended by the patient to be confidential exceptions: 1) patient's condition is at legal issue 2) services sought to commit a crime 3) malpractice

Question 32

Spousal Testimonial Privilege

Answer 32

Criminal cases - a person whose spouse is a defendant in a criminal case cannot be called as a witness by the prosecution or compelled to testify against the spouse in a criminal proceeding. Privilege can only be invoked during marriage.

Question 33

Marital Communications Privilege

Answer 33

Civil and Criminal cases - Confidential communications made during marriage are privileged in any later proceeding. Continues through divorce. May be invoked by either spouse.

Question 34

Authentication

Answer 34

Every item of physical evidence must be shown to be what it purports to be. May be proved by any means, low bar. Some items such as deeds, notarized documents, or newspapers are self-authenticated.

Question 35

Special Authentication Issues

Answer 35

Ancient Documents - automatic authentication if 20 or more years old, does not present irregularities on its face, and was found in a place of natural custody. Photos - personal knowledge Voice - by anyone who heard the voice at the time Non-unique items - facially indistinguishable from others of its kind must show chain of custody

Question 36

Best Evidence Rule

Answer 36

If evidence is offered to prove the contents of a writing, an original document must be used unless it is unavailable. Only applicable when evidence is offered to prove its contents. Sufficient evidence includes: 1) original 2) Duplicates that are machine or carbon copies 3) testimony Regarding Contents if original is lost or destroyed, unless done in bad faith 4) Voluminous documents exception If part of a writing or recording is entered into evidence, an adverse party may introduce any other part or any related statement, that in fairness ought to be considered at the same time and may do so over a hearsay objection.

Question 37

Judicial Notice

Answer 37

A court may recognize a fact as true without formal presentation of evidence, either on its own or upon formal request of a party. Judicially-noticeable facts: 1) manifest facts 2) notorious facts 3) federal and state laws and regulations

Question 38

Hearsay

Answer 38

An out of court statement offered to prove the truth of the mater asserted is generally inadmissible. Exemption are not hearsay and thus admitted Exceptions are deemed hearsay but still admitted

Question 39

What are the use exceptions of Out-of-Court Statements

Answer 39

If offered to prove something other than the truth of the matter asserted. 1) Statement of Independent legal significance - used to show that a statement was made not whether it is true 2) Statements offered to show their effect on the listener or reader 3) Statements offered to show speakers knowledge 4) Statements offered to show state of mind

Question 40

Non-Hearsay exemptions

Answer 40

Statement of party opponent - out of court statements by a party are admissible if offered against that party Declarant Witness prior statement - a prior statement by a declarant who testifies and is subject to cross-examination is admissible where the statement is inconsistent with testimony given under oath, prior consistent statement, or prior statement of identification after perception

Question 41

Types of Statements made by party opponent that are admittable as hearsay exemptions

Answer 41

1) judicial statements made in pleadings or testimony 2) adoptive statement - acquiescence in another's statement or silence when the party heard, understood and was capable of responding to a statement a reasonable person would have responded to 3) vicarious statement - agency/authorized speaker/co-conspirator

Question 42

Declarant unavailability required Hearsay Exceptions

Answer 42

1) former testimony 2) Statement against interest 3) dying declaration 4) Statements of personal or family history 5) statements offered against party procuring declarant's unavailability

Question 43

Declarant unavailability is immaterial

Answer 43

1) present state of mind 2) excited utterances 3) present sense impressions 4) physical condition 5) past recollection recorded 6) Business records 7) Public records or reports 8) judgments and prior convictions 9) ancient documents 10) documents affecting property interests 11) learned treatises 12) family records 13) market reports

Question 44

When is a declarant unavailable

Answer 44

Declarant is unavailable if: 1) privilege 2) death or physical mental sickness 3) refusal to testify despite a court order 4) lack of memory 5) absent

Question 45

former testimony

Answer 45

testimony given by a person in an earlier proceeding or deposition may be admissible requirements: 1) declarant is currently unavailable 2) declarant's prior testimony was given under oath 3) party against whom testimony is no offered was either a party with an opportunity to cross-examine or a predecessor in interest of the previous action

Question 46

Statements against interest

Answer 46

a hearsay statement is admissible if, at the time it was made, it was against the pecuniary or legal interests of the declarant requirements: 1) declarant is currently unavailable 2) statement was contrary to declarant's pecuniary, proprietary, or penal interest when made 3) a reasonable person would not have made the statement unless he believed it to be true in a criminal case there must be an additional; corroborating circumstances indicating the trustworthiness of the statement

Question 47

Dying declaration

Answer 47

a hearsay statement is admissible if the declarant made the statement under the belief of impending death and the statement describes the cause or circumstances of the impending death requirements: 1) declarant is currently unavailable 2) the out of court statement was made under the belief of impending death 3) the statement was made regarding the cause or circumstances surrounding the belief of impending death civil or homicides only

Question 48

Present sense impression

Answer 48

a hearsay statement is admissible if it: 1) describes or explains an event or condition and 2) is made contemporaneously with the event or immediately thereafter

Question 49

Excited utterance

Answer 49

a hearsay statement is admissible if it: 1) relates to a startling or exciting event or condition and 2) was made while the declarant was under the stress or excitement of the event look for a level of emotional stress that one would not normally have the opportunity to fabricate

Question 50

Statement of then-existing state of mind

Answer 50

usually offered to show a declarant's intent at the time the statement was made or as a circumstantial inference that declarant's intent was likely carried out

Question 51

Statement of then existing condition

Answer 51

A statement of the declarants then-existing state of mind but not including a statement of memory or belief to prove the fact remembered.

Question 52

Statement of physical condition for diagnosis or treatment

Answer 52

1) statement must describe a person;s medical history, past present symptoms or their general cause 2) statements must be made for the the purpose and reasonably pertinent to assisting in diagnosis or treatment

Question 53

Business Records

Answer 53

Requirements 1) a record or transaction made or recorded by a business 2) made in the regular course of business 3) made by someone with knowledge at or near the time of the matters described 4) authenticated or certified writing look for the trustworthiness of the document the absence of a regularly recorded document can be uses to show the document never existed

Question 54

Police Reports

Answer 54

In criminal cases, police reports or other criminal investigative reports are inadmissible against the defendant as business records or public records

Question 55

Public Records

Answer 55

Must 1) describe the activities of a public office or agency 2) describes either matters observed pursuant to a duty imposed by law or factual findings made pursuant to authority granted by law 3) is made by a public employee within their scope of duty 4) is made at or near the time of the event

Question 56

When are statements excluded under the confrontation Clause

Answer 56

Out of court statements offered against defendant will be excluded if: 1) the declarant is unavailable 2) defendant had no prior opportunity to cross-examine the declarant about the statement at the time it was made 3) the statement is testimonial

Question 57

testimonial statement

Answer 57

Prior statements made during court proceedings statements made in furtherance of a police investigation

Question 58

Co-defendants statements

Answer 58

Confrontation clause bars admission of an out of court statement by a non-testifying co-defendant if the statement expressly implicates another defendant exceptions 1) declarant co-D testifies 2) statement is redacted to remove mentions of defendant 3) coerced confession

Question 59

Evidence of character

Answer 59

Evidence of a person character cannot be used to prove conduct in conformity to that character. In a criminal case a defendant may offer evidence of the defendant’s pertinent trait by testimony about the trait or by opinions. Specific instances of conduct are not permitted. On cross examination the court may allow relevant specific instances.