evidence

Question 1

FRE 411 liability insurance

Answer 1

evidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or wrongfully

Question 2

when may court admit liability insurance as evidence under FRE 411

Answer 2

may admit this evidence for another purpose such as proving a W’s bias or prejudice or proving agency, ownership, or control

Question 3

FRE 403 excluding relevant evidence for prejudice, confusion, waste of time, or other reasons

Answer 3

court may exclude relevant evidence if PV is SUBSTANTIALLY OUTWEIGHED by a dnager of 1or+ of the following

• unfair prejudice
• confusing the issues
• misleading the jury
• undue delay
• wasting time
• needlessly presenting cumulative evidence

Question 4

if PV = low & cost = high

Answer 4

argue that cost substantially outweighs PV and vice versa

Question 5

if PV & costs are EQUAL

Answer 5

admit, presumption for admission

Question 6

direct evidence

Answer 6

• make credibility determination

- if accepted as genuine or believed to be true, necessarily establishes the point trying to be proved

Question 7

circumstantial evidence

Answer 7

• evidence about which you have to draw inferences to reach conclusion
• conclusion does not necessarily follow from underlying premises, though they at least support evidence

Question 8

circumstantial evidence requirements

Answer 8

1. have to believe W &

2. have to infer what W is telling us

Question 9

relevance v. weight

Answer 9

• weight = how much emphasis do we give to the evidence

- how convincing is it to the jury

Question 10

relevance v. sufficiency

Answer 10

sufficiency = whether evidence as a whole meets the standard of proof

Question 11

probative value

Answer 11

• evidence tending to prove existence of evidence is than that fact would be w/out evidence
• doesn’t have to be “more probable than not”

Question 12

FRE 402 general admissibility of relevant evidence

Answer 12

relevant evidence is admissible unless any of the following provides otherwise

• US constitution
• federal statute
• these rules OR
• other rules prescribed by SC

Question 13

what facts of consequence in litigation (materiality)

Answer 13

• what the substantive law requires you to prove in order to win
• elements of the offense/defense
• evidence doesn’t necessarily have to prove the fact, may instead prove a link in chain, link a motive by inference by proving intent

Question 14

Old Chief balancing test

Answer 14

balance the degrees of PV and unfair prejudice for the evidence in questions and for alternative, relative evidence

Question 15

FRE 103 preserving a claim of error

Answer 15

requires that objections to evidence be

1. timely &
2. state the specific ground, unless it was apparent from the context

Question 16

when the court sustains an objection to evidence a party wishes to offer, the party MUST…

Answer 16

place on the record an indication of what the evidence would have been in order to determine whether any error “affects a substantial right of the party”

Question 17

court “acting on its own motion”

Answer 17

court has authority to act if a party fails to object to testimony that would be inadmissible if an objection were brought

Question 18

FRE 103(e) plain error

Answer 18

permits the appellate court to take notice of a plain error affecting a substantial right, even if the claim of error was not properly preserved

Question 19

standard for FRE 403 excluding relevant evidence for prejudice, confusion, waste of time, or other reasons

Answer 19

requires appellate court to abuse of discretion standard for reviewing alleged error

Question 20

character is generally “in issue” and admissible in the following civil actions:

Answer 20

1) defamation
2) fraud or deceit
3) negligent entrustment
4) tortious assault and battery when the ∆ claims he acted in self defense

Question 21

when is it permissible to lead a W?

Answer 21

• on CE (desirable)

- on DE if W is having difficulty remembering the facts

Question 22

does FRE 602 need for personal knowledge require that personal knowledge be established before the W testifies to the fact?

Answer 22

no, if W testifies and it is later shown that the “sufficient to support a finding” requirement has not been met, the court may strike the testmony

Question 23

what may be used to refresh a W’s recollection?

Answer 23

there are no evidentiary rules that limit the use of a document (or anything else) to refresh a W’s recollection

Question 24

what is prohibited testimony under FRE 606(b)(1) juror’s competency as a W?

Answer 24

• evidence of drunkenness, drug use and dealing, jurors falling asleep are not proper subjects of juror testimony

Question 25

under 104(a) what do judges decide?

Answer 25

admissibility - gatekeeper for conditional relevance - PV, whether an expert is an expert, relevancy

Question 26

4 hearsay dangers

Answer 26

1. ambiguity 2. sincerity 3. false memory 4. inaccurate perception

Question 27

character

Answer 27

something internal to a person that tells us something about the person's morality

Question 28

if a prosecutor seeks to CE a character W by inquiring about whether the W has hear about an event inconsistent with the W's character testimony, the prosecutor must...

Answer 28

show the court that it has a good faith belief that the event actually occurred

Question 29

accepted methods for showing unavailability

Answer 29

``` PRIMA Privilege Refusal Inability because of death or illness Memory lapse Absence ```

Question 30

declarant/witness prior inconsistent statement exemption from hearsay

Answer 30

1) W must now be CE about the prior statement - must only be CE about the statement not the event giving rise to the statement 2) statement must be inconsistent w/ present testimony - lack of memory - not as in great detail - specific statements inconsistent w/ general statements 3) must have been made during a prior proceeding or deposition - generally agency or preliminary hearing

Question 31

declarant/witness prior consistent statement exemption from hearsay

Answer 31

1) D testifying & available for cross 2) out-of-court statement consistent with testimony 3) offered to rebut charge of recent fabrication or improper influence or motive 4) Tome requirement that the statement was made pre-motive

Question 32

declarant/witness prior identification exemption from hearsay

Answer 32

1) D testifying & available for corss 2) statement 1 of prior ID of a person after person perceived 3) no right to counsel violation 4) identical testifying W and D (generally not)

Question 33

admission of party opponent exemption from hearsay - personal admission

Answer 33

1) statement of party personally | 2) offered against the party-opponent

Question 34

admission of party opponent exemption from hearsay - adoptive admission

Answer 34

1) statement of 3rd party 2) adopted affirmatively or negatively by party opponent - affirmatively: someone walks up and says "you were right" & you nod - negatively: someone yells "you killed him" and you are silent 3) offered against the party opponent

Question 35

admission of party opponent exemption from hearsay - vicarious, authorized speaker admission

Answer 35

1) statement by a person authorized by party opponent to speak 2) authorization for that person to speak 3) offered against the party opponent

Question 36

admission of party opponent exemption from hearsay - vicarious, agent servant admission

Answer 36

1) fact of agency or employment 2) statement by an agent or servant (employee) of a party opponent 3) concerning a matter w/in scope of agency or employment 4) made during the existence of the agency or employment 5) offered against the party opponent

Question 37

admission of party opponent exemption from hearsay - co-conspirator admission

Answer 37

1) fact of conspiracy 2) statement by co-conspirator of party opponent 3) in furtherance of the conspiracy 4) made during the course of the conspiracy 5) offered against the party opponent

Question 38

excited utterance exception

Answer 38

1) starting event or condition 2) observed by the speaker (personal knowledge) 3) causing excitement 4) statement made while speaker excited 5) statement relating to startling event

Question 39

present sense impression exception

Answer 39

1) event or condition 2) observed by the speaker 3) statement describing or explaining event or condition 4) statement made while speaker perceiving event or condition or immediately thereafter - generally not a particularly shocking or exciting event

Question 40

present state of body exception

Answer 40

1) description of physical condition 2) made by the person experiencing the condition 3) while he or she is experiencing the condition - statement reasonably relied on for treatment - need not have been made to physician - statements made to ambulance drivers, hospital workers, or members of family may be included

Question 41

present state of mind exception

Answer 41

1) description of a state of mind 2) made by the person experiencing the state of mind 3) while he or she is experiencing the state of mind

Question 42

business records exception

Answer 42

1) document reflecting acts, events, conditions, opinions, or diagnoses 2) made at or near the time of the act, event 3) by a person w/knowledge of the act or event 4) document kept in the course of regularly conducted business activity 5) document regularly made as part of that business activity

Question 43

public records exception - 3 categories

Answer 43

1) descriptions of agency activities 2) observations of matters on which agencies other than law enforcement agencies are bound to report 3) investigative factfinding offered in a civil proceeding or against the government in a criminal case

Question 44

learned treatise exception

Answer 44

1) W acknowledgment that the treatise is reliable authority in the field 2) read the treatise in, cannot be offered in evidence in printed form

Question 45

former testimony exception

Answer 45

1) unavailable D 2) testimony under oath 3) party against whom offered had opportunity to develop testimony 4) party against whom offered had similar motive to develop testimony

Question 46

dying declarations exception

Answer 46

1) unavailable D, usually by death but not always 2) homicide cases and civil cases only 3) statement has to be made while D believed his death was "imminent" 4) statement has to be made about the cause or circumstances of the death

Question 47

declarations against interest

Answer 47

1) unavailable D 2) statement against D's interest - subjecting to civil or criminal liability - contrary to pecuniary or proprietary interest - blowing his own claim against somebody else 3) against interest at time of making 4) reasonable man would not have made unless true 5) not a 3rd party confession offered by a criminal ∆ unless corroborated

Question 48

past recollection recorded exception

Answer 48

1) W who at one time had personal knowledge of events 2) W who today has insufficient memory of events to testify fully or accurately 3) memorandum or record reflecting the events 4) shown to have been made or adopted by W 5) shown to have been made or adopted by W at time when matter fresh in memory W MUST BE AVAILABLE

Question 49

is admission by party opponent a hearsay exception?

Answer 49

NO, it is non-hearsay

Question 50

probative value

Answer 50

evidence has to make the existence of a fact more probable or less probable than it would be without the evidence

Question 51

circumstantial v. direct evidence

Answer 51

- direct evidence which is believed as true necessarily establishes the point for which it is offered - circumstantial requires an inference to be made

Question 52

statistical evidence

Answer 52

judges will often not admit statistical evidence because it alone is not enough to establish a verdict

Question 53

test for "truth of the matter asserted"

Answer 53

is the statement relevant even if false

Question 54

verbal act

Answer 54

the very speaking of the words has a legal significance regardless of whether the person told the truth

Question 55

in civil cases, is evidence of character to prove the conduct of a person in the litigated event admissible?

Answer 55

no - the slight probative value of character is outweighed by the dangers of prejudice and distracts the jury from the main issue

Question 56

when is character evidence admissible in civil case?

Answer 56

only when proof of a person's character, as a matter of substantive law, is an essential element of a claim or defense

Question 57

to testify as an expert a person must have

Answer 57

special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates - must possess reasonable certainty or probability regarding his opinion

Question 58

when is proof of specific instances of conduct admissible?

Answer 58

when character is directly in issue

Question 59

judicial notice

Answer 59

both manifest (fact that is capable of certain verification by resort to easily accessible sources of unquestionable accuracy) and notorious (facts of common knowledge in the community) facts are appropriate for judicial notice under FRE and notice of these facts must be taken if so requested by a party

Question 60

when can a person not invoke the physician-patient privilege?

Answer 60

when that person has put his physical condition in issue, i.e. suing for personal injuries

Question 61

spousal immunity

Answer 61

prohibits the prosecution from compelling one spouse to testify against the other in a criminal proceeding

Question 62

privilege for confidential marital communications

Answer 62

protects communications (expressions intended to convey a message) between spouses made in reliance on the intimacy of the marital relationship

Question 63

best evidence rule

Answer 63

applies when a party is attempting to prove the contents of a writing, recording, or photograph

Question 64

proper foundation to lay to admit a photo

Answer 64

photo must be identified by a W as a portrayal of certain facts relevant to the issue, & verified by a witness as a correct representation of those facts

Question 65

lay opinion testimony admissible when...

Answer 65

1) rationally based on the perception of the W 2) helpful to a clear understanding of his testimony or to the determination of a fact in issue 3) it is not based on scientific, technical or other specialized knowledge

Question 66

a duplicate is admissible to the same extent as an original unless...

Answer 66

1) a genuine question is raised as to the authenticity of the original or 2) it would be unfair to admit the duplicate in lieu of the original

Question 67

Frye standard for admissibility of scientific evidence

Answer 67

admissible where the device or principle from which the deduction is made is sufficiently established to have gained general acceptance in the particular field

Question 68

evidence of subsequent remedial measures/repair is generally inadmissible against public policy but is admitted for limited purpose of...

Answer 68

showing ownership or control

Question 69

first hand/personal knowledge

Answer 69

requires witness actually see the event

Question 70

jury determines...

Answer 70

how much, if any, PV or weight to accord to the admitted evidence as well as issues of credibility

Question 71

judge determines...

Answer 71

preliminary questions concerning the qualification of a W, existence of a privilege, admissibility of evidence