evidence

Question 1

What evidence is admissible?

Answer 1

Irrelevant evidence is not admissible. Relevant evidence may be admissible.

Question 2

What is relevant evidence?

Answer 2

1) Has any tendency to make the existence of any fact of consequence,
2) to the determination of the action
3) more or less probable than it would be without the evidence.

Question 3

does the court have discretion to exclude relevant evidence?

Answer 3

yes, if its probative value is substantially outweighed by unfair prejudice, confusion, or waste of time.

(tip- look for emotionally disturbing evidence or evidence that can be admitted for one purpose but inadmissible for another purpose.)

Question 4

When can the court exclude evidence for policy reasons?

Answer 4

1. Liability Insurance inadmissible to prove culpable conduct or D’s ability to pay.
2. Subsequent Remedial Measures or Repairs inadmissible to prove culpable conduct, and in a products liability action, is inadmissible to prove defective product design.
3. Settlement, offers to settle and pleas. In civil case, evidence of settlements, offers to settle, and related statements are inadmissible to prove liability or fault. In criminal cases, pleas later withdrawn, offers to plea and related statements are inadmissible to prove guilt.
   (has to be threat of claim or claim filed, and dispute as to liability)
4. Payment or offers to pay medical expenses: Evidence of payments or offers to pay medical expenses is inadmissible when offered to prove liability for the injuries in question

Question 5

when is evidence about other people or events relevant?

Answer 5

when there are certain similarities between the evidence and the people & events at issue.

Question 6

in what situations can certain similarities be admissible?

Answer 6

1. similar occurrences sometimes admissible to prove causation
2. Prior accidents or claims usually irrelevant except for pattern of fraudulent claims/preexisting condition.
3. Previous acts relevant to prove intent
4. evidence relevant to rebut defense of impossibility
5. Comparable sales relevant to establish value
6. Habit evidence
7. Routine practice evidence
8. Industrial Custom evidence

Question 7

what is habit evidence?

Answer 7

describes specific conduct and makes no moral judgment. Frequently repeated conduct.

Question 8

what is character evidence?

Answer 8

says something general about a person and conveys a moral judgment.

Question 9

what is the four step process to attacking a character question?

Answer 9

1. What is the purpose for which the character evidence is being offered? Three possibilities
2. What method or technique is being used to prove character
3. Is it a civil or criminal case
4. Does the evidence prove a pertinent character trait?

Question 10

what purposes can character evidence be offered?

Answer 10

1. prove character because character is an issue in the case
2. prove character as circumstantial evidence of a person’s conduct on the occasion in question
3. offered to impeach or support the credibility of witness

Question 11

what methods can be used to prove character?

Answer 11

1. specific conduct
2. reputation
3. opinion

Question 12

character evidence in civil cases?

Answer 12

character evidence in civil cases is inadmissible to prove conduct except where claim is based on sexual assault or child molestation.

character evidence is admissible to prove character (defamation, negligent intrustment)

Question 13

character evidence in criminal cases?

Answer 13

usually two doors, door is closed when the prosecution begins the case. Usually the prosecution can open the doors.

Question 14

admissibility of evidence of defendant’s character to prove conduct in a criminal case?

Answer 14

prosecution cannot be first to offer such evidence. except

1) in cases of sexual assault or child molestation, prosecution can be first to offer evidence that defendant committed other acts of sexual assault or children molestation.
2. where court has admitted evidence about victim’s character offered by D, prosecution can be first to offer evidence that D has the same character trait.

Question 15

once D opens the door in a criminal case, what can the prosecuting side do in regards to character information?

Answer 15

Offer pertinent character evidence to rebut because D opened the door

Question 16

once the door is open what type of evidence is allowed on direct?

Answer 16

reputation and opinion, not specific instance

Question 17

once the door is open what type of evidence is allowed on cross examination?

Answer 17

reputation, opinion, and specific instance

Question 18

admissibility of character evidence of victims character?

Answer 18

most of the same rules apply. door closed to plaintiff but D can open the door if

1) D offers evidence of victims character, prosecution may rebut
2) in a homicide case, if D offers evidence victim attacked first, prosecution may offer evidence of victim’s character for peacefulness.

Question 19

what is the purpose of the rape shield statue?

Answer 19

to protect an attack on the witness’s reputation.

criminal: only specific instances admissible to prove third party is source of semen or injury or prior acts of consensual intercourse between the v and D
civil: reputation, opinion, and specific instances evidence is admissible if probative values substantially outweighs unfair prejudice, and in regards to reputation, only if plaintiff put her reputation in issue

Question 20

what are the specific instances defendant’s conduct may be admitted to prove anything other than character is relevant.

Answer 20

MIMIC

Motive
Intent
Mistake (absence of mistake) 
Identity
Common plan

Mimic is a touchdown problem, have to see if it if probative value is substantially outwieghed by unfair prejudice.

Question 21

what are the four requirements for a competent witness?

Answer 21

1. personal knowledge
2. present recollection
3. communication
4. sincerely

Question 22

what is testimonial evidence?

Answer 22

evidence coming out the mouth of a witness.

Question 23

how does one have personal knowledge?

Answer 23

does the fact testified to = the fact perceived

Question 24

what are the objections to form of testimony and questions?

Answer 24

1. calls for Narrative
2. Unresponsive
3. Leading
4. Assumes facts not in evidence
5. Argumentative
6. Compound

(AC LUNA)

Question 25

must objections to a form of testimony be timely and specific?

Answer 25

yes or waived

Question 26

what is a call for narrative objection?

Answer 26

ask for specific focused questions, to stop rambling

Question 27

what is a unresponsive objection?

Answer 27

doesnt answer question asked

Question 28

what is a leading objection?

Answer 28

Usually no leading on direct except if witness is adverse, hostile, or needs help. Leading is ok for CROSS EXAMINATION.

Question 29

what is an objection to assumes facts not in evidence?

Answer 29

assumes facts not in evidence

Question 30

what is an argumentative objection?

Answer 30

argumentative not really a question

Question 31

what is a compound objection?

Answer 31

asks more than one question at once.

Question 32

Witness Use of documents during testimony?

Answer 32

ok refresh memory but cannot read out of court statement (hearsay)

Question 33

may the opposing side inspect and offer into evidence anything used to refresh?

Answer 33

yes

Question 34

whats the recorded recollection exception to the hearsay rule?

Answer 34

when the witness is shown the document but doesnt remember it. i 1. witness has personal knowledge of the facts 2. document was made or adopted by witness (consents to someone else makes it) 3. document was made while fresh in the witness memory 4. document was accurate when made 5. witness now has insufficient recollection to testify

Question 35

when may opinion testimony be allowed?

Answer 35

lay opinion and expert opinion

Question 36

when is a lay opinion testimony allowed?

Answer 36

if rationally based on witness' perception and helpful to trier of fact. (not a legal conclusion)

Question 37

what is the requirement for an expert testimony?

Answer 37

1) helpful to jury 2) witness must be qualified 3) witness believes in it to a reasonable degree 4) opinion must be supported by a proper factual basis 5) opinion must be based on reliable principles that were reliably applied helpful qualified degree of certainty

Question 38

what must expert opinion evidence be relied on?

Answer 38

1. admitted evidence 2. personal knowledge 3. inadmissible evidence reasonably relied upon

Question 39

when does an expert rely upon reliable principles?

Answer 39

peer reviewed, published, tested and subject to retesting, reasaonable level of acceptance.

Question 40

what is the learned treatise hearsay exception?

Answer 40

to prove anything stated therein if it is an accepted authority in the field.

Question 41

evidence to support witness credibility?

Answer 41

inadmissible unless credibility attacked first.

Question 42

when is a prior inconsistent statement not hearsay and admissible for all purposes?

Answer 42

if made before bribe or rehabilitates witness credibility when attacked on another ground.

Question 43

what is the three step approach to admissibility of impeachment of evidence:

Answer 43

(i) Is source of impeachment extrinsic evidence or testimony at this proceeding of witness being impeached? (ii) if extrinsic, is it admissible given impeachment technique (iii) any other foundation requirements

Question 44

what is extrinsic evidence?

Answer 44

evidence other than the witnesses testimony given at this proceeding

Question 45

Is impeachment by contradiction allowed to contradict on collateral matter?

Answer 45

no. Can allow extrinsic evidence to contradict relevant matter.

Question 46

Is a Prior Inconsistent statement of witness admissible?

Answer 46

yes if the witness testified at trial and given oath.

Question 47

what is the foundation requirement for extrinsic evidence?

Answer 47

admissible only if witness given opportunity to explain or deny.

Question 48

is extrinsic evidence admissible if used to impeach evidence of bias, interest, motive?

Answer 48

yes if witness given chance to explain

Question 49

Impeachment with conviction for crimes involving false statement?

Answer 49

admissible, but must balance probative value vs. unfair prejudice if conviction is over 10 years old.

Question 50

Impeachment with conviction for a crime not involving false statement

Answer 50

felonies may be admissible but court may exclude for unfair prejudice. misdemeanors - that do not involve false statement are inadmissible to impeach.

Question 51

Impeachment with Non-conviction Misconduct Evidence Bearing on Truthfulness

Answer 51

acts of misconudct that did not result in a conviction are admissible to impeach if the facts involved lying. Extrinsic evidence to prove the acts is inadmissible.

Question 52

Impeachment with Reputation and Opinion Regarding Truthfulness

Answer 52

extrinsic evidence available.

Question 53

Every item of non-testimonial evidence must be ?

Answer 53

authenticated

Question 54

what is the burden of proof for authentication?

Answer 54

burden of proof is low, sufficient to sustain a finding

Question 55

what can be used to authenticate signatures?

Answer 55

1. admission 2. eyewitness testimony 3. expert opinion 4. lay opinion 5. circumstantial evidence

Question 56

what is the ancient documents rule?

Answer 56

1) document over 20 years 2) no irregularities or alterations 3) was found in a place of natural custody

Question 57

what writings are self authenticated?

Answer 57

``` certified copies of public documents notary documents newspapers, periodicals business records trade inscriptions official publications ```

Question 58

how do you authenticate of non-unique items?

Answer 58

establish a chain of custody | demonstrating that this is the specific item proponent claims it to be.

Question 59

what is the best evidence rule and when does it apply?

Answer 59

the rule requires the original if 1) case turns on legal document and 2) knowledge obtains from writing

Question 60

what is the exception to the best evidence rule?

Answer 60

duplicates are allowed, unless there is a genuine question to the authenticity of the original.

Question 61

what privileges are there in evidence?

Answer 61

1. attorney client privilege 2. psychotherapist-patient/social worker-client 3. sometimes doctor/patient 4. spousal privilege

Question 62

what is the test for attorney client privilege?

Answer 62

communication (1) intended to be confidential and (2) the purpose of communication must have been to facilitate legal services

Question 63

what are the exceptions attorney client privilege?

Answer 63

1. crime or fraud exception: communication sought to further what client knew or should have known to be a crime or fraud 2. breach of ducy between lawyer and client 3. two or more parties consult an attorney on a matter of common interest and the communication is offered by one of these parties against another.

Question 64

what is the Psychotherapist-patient & Social Worker - Client Privileges

Answer 64

1. communication intended to be confidential 2. made to facilitate unless waived

Question 65

is there a doctor-patient privilege under the FRE?

Answer 65

No, but if its a federal court arising under diversity, you will apply state privlege law.

Question 66

when the privilege applies what is the law.

Answer 66

same as others but must be pertinent to diagnosis to treatment

Question 67

what is the exception to the doctor / patient privilege

Answer 67

1. patient puts his physical condition in issue 2. physicians services sought to aid in crime or fraud or to escape capture after a crime or tort 3. breach of duty in malpractice action.

Question 68

What are the two spousal privileges?

Answer 68

spousal testimonial privilege and spousal confidential communication privilege

Question 69

when does spousal testimonial privilege work?

Answer 69

only in criminal cases

Question 70

when does spousal communication privilege work?

Answer 70

in both civil and criminal

Question 71

both do not apply in what cases

Answer 71

against each other in civil cases | crime against other spouse or kid in criminal cases.

Question 72

what matters does spousal testimonial privilege apply to?

Answer 72

any matters before or during marriage?

Question 73

what matters does spousal communication privilege apply to?

Answer 73

communications made during marriage

Question 74

what is judicial notice?

Answer 74

establishing facts without evidence

Question 75

what facts can be judicially noticed?

Answer 75

1. generally known facts | 2. facts established by sources of unquestionable accuracy

Question 76

what is the procedure for taking judicial notice?

Answer 76

party must make request, if not court has discretion

Question 77

in civil case must the court instruct jury that judicial noticed fact is conclusive

Answer 77

yes

Question 78

in criminal case must the court instruct jury that judicial noticed fact is conclusive

Answer 78

jury may but not required to accept judicially noticed fact.

Question 79

when can judicial notice happen?

Answer 79

at any time, even after appeal.

Question 80

what is the lay persons opinion testimony requirements?

Answer 80

1) rationally based 2) on witnesses perception 3) helpful to the trier of fact.

Question 81

what is the expert witness opinion requirements?

Answer 81

1. qualified 2. witness believe in a opinion to a certain degree 3. helpful to the jury 4. relied on proper factual basis 5. opinion must be based on reliable principles that were reliably applied