Evidence

Question 1

When do the Federal Rules of Evidence not apply?

Answer 1

1) preliminary questions of fact governing admissibility
2) grand jury proceedings
3) other miscellaneous proceedings (sentencing, extradition, bail and probation)

Question 2

What is Direct Evidence

Answer 2

testimony or real evidence that speaks directly to a material issue in the case and involves no inferences

Question 3

What is circumstantial evidence

Answer 3

evidence of a subsidiary or colalteral fact from which the existence of the material issue can be inferred

Question 4

When is evidence of similar occurrences relevant? Provide examples (9)

Answer 4

if they are probative of a material issue and that probativeness outweighs the risk of confusion or unfair prejudice

causation; prior false claims or same bodily injury; similar accidents caused by the same condition or event (notice, existence, or cause); intent; rebut a claim of impossibility; sales of similar property; habit; industrial or business routine; industrial custom as standard of care

Question 5

Exception to including statements made during the course of settlement negotiations

Answer 5

Civil Dispute with a Government Authority

negotiations regarding a civil dispute with a governmental regulatory, investigative or enforcement authority are not excluded when offered in a criminal case5

Question 6

When is character evidence admissible in civil cases?

Answer 6

Where character of D is directly at issue

1) defamation
2) negligent hiring or entrustment
3) child custody

*all forms (reputation, opinion, and specific conduct) is admissible

Question 7

What is the standard for admitting a rape victim’s past behavior in a civil case

Answer 7

probative value substantially outweighs the danger of the harm to the victim and of unfair prejudice to any party

(Reverse 403)

Question 8

When can evidence of a rape victim’s past behavior be admissible in a criminal case?

Answer 8

1) prove the semen, injury or other physical evidence came from another party
2) prove consent

Question 9

What is the standard for admitting MIMIC evidence?

Answer 9

sufficient evidence to support a jury finding that the D committed the prior acts

Question 10

How can real evidence be properly authenticated?

Answer 10

The object must be identified as what the proponent claims it to be, either by:

1) testimony of a witness that she recognises the object as what the proponent claims it
2) evidence that the object has been held in a substantially unbroken chain of possession

Question 11

What is the standard for documentary authentication?

Answer 11

sufficient proof to support a jury finding of genuineness

Question 12

When is authentication as to the identity of a speaker of a statement required?

Answer 12

when a statement is admissible only if said by a particular person

Question 13

BER: preliminary questions of facts reserved for the jury

Answer 13

1) whether original ever existed
2) whether evidence produced is the original
3) whether evidence offered correctly reflects the contents of the original
4) questions as to relevancy of evidence

Question 14

When is a jury member permitted to testify in an inquiry into the verdict or indictment?

Answer 14

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 was a mistake on the verdict form
4) whether any juror made a clear statement that he relied on racial stereotypes or animus to convict a criminal D (must be a significant motivating factor)

Question 15

When are leading questions ok?

Answer 15

1) on cross
2) to elicit preliminary or introductory matter
3) when W needs aid due to loss of memory, infancy, or physical/mental weakness
4) when W is hostile, an adverse party, or affiliated with an adverse party

Question 16

What is a proper factual basis for an expert testimony

Answer 16

1) personal observation
2) made known to him in trial
3) provided outside court and of the type reasonably relied upon by experts in a particular field (need not be admissible in trial)

Question 17

What is the scope of cross-examination?

Answer 17

1) the scope of the direct examination, including the reasonable inferences that may be drawn from it; and
2) testing the credibility of the witness

Question 18

When is it permissible to bolster or accredit the testimony of your own witness?

Answer 18

1) prove W made a timely complaint

2) prove prior statement of identification (can also be offered substantively as a non-hearsay exemption)

Question 19

How is a crime involving dishonesty or false statement categorised?

Answer 19

Any crime involving the uttering, speaking or writing of false words or statements

e.g. perjury, false statements, criminal fraud, embezzlement and false pretenses

Question 20

Can extrinsic evidence of bad acts be used to prove misconduct?

Answer 20

No. A specific act of misconduct, offered to attack the witness’s character for truthfulness, can be elicited only on cross of the W

Question 21

What is the Rule of Completeness?

Answer 21

Where part or all of a writing or recorded statement is introduced into evidence, the adverse party may require the proponent of the evidence to introduce any other part, or any related writing or recorded statement, that ought in fairness to be considered.

Question 22

What is an Offer of Proof?

Answer 22

A disclosure of 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

Question 23

What privileges apply in diversity cases?

Answer 23

state law of privilege

Question 24

What privileges apply in FQ cases?

Answer 24

federal common law privileges

Question 25

Modern view on eavesdroppers and privilege

Answer 25

in the absence of negligence by the one claiming privilege, the presence of the eavesdropper would not abrogate the confidentiality of the communication and he would not be able to testify either.

Question 26

Does a federal case applying applying the federal law of privilege recognise the physician-patient privilege?

Answer 26

No

Question 27

When is a judge prohibited from excluding a witness from the courtroom?

Answer 27

1) a party or a designated officer or employee of a party
2) a person whose presence is essential to the presentation of a party’s claim or defense
3) a person statutorily authorised to be present

Question 28

What are the two ways out of court statements can be admissible to show a declarant’s state of mind?

Answer 28

1) circumstantial evidence as as an admissible out of court statement (i.e. evidence of insanity or knowledge)
2) direct evidence as admissible hearsay (i.e. evidence of intent)
3) circumstantial evidence as admissible hearsay (i.e. evidence that an intent was carried out)

Question 29

When may the dying declaration hearsay exception be used

Answer 29

homicide and civil cases only

Question 30

What are the hearsay exceptions requiring that the declarant be unavailable?

Answer 30

1) Former Testimony
2) Dying Declarations
3) Statements Against Interest
4) Statements of Personal or Family History
5) Statements of a Person Offered Against a Party who Intentionally caused the Unavailability of the Witness

Question 31

Do business records that satisfy the hearsay exception rules automatically go into evidence?

Answer 31

Not if a party can demonstrate sufficient evidence to show a lack of trustworthiness

Question 32

How does the court determine whether there an ongoing emergency in the context of assessing whether a statement made to the police was testimonial for confrontation clause issues?

Answer 32

1) nature of the dispute
2) whether perpetrator still at large
3) the scope of the threat to the victim and to the public
4) whether any weapons involved

Question 33

What is the burden of persuasion for civil cases?

Answer 33

Usually, preponderance of the evidence, though some cases require clear and convincing evidence

Question 34

What is the burden of persuasion for criminal cases?

Answer 34

Beyond a reasonable doubt

Question 35

What is the effect of a presumption on the burden of production

Answer 35

A presumption operates, until rebutted, to shift the burden of production to the party against whom the presumption operates.

Note: it does not shift the burden of persuasion

Question 36

Under the Federal Rules, in order for a hearsay statement to be admissible under the statements of personal or family history exception, the declarant must be a:

Answer 36

the declarant must be a member of the family in question or otherwise intimately associated with the family

Question 37

Does impeachment evidence need to positively controvert the prior testimony?

Answer 37

No, it need only tend to discredit the credibility of the prior witness.

Question 38

When is re-direct examination of a witness required?

Answer 38

Only to reply to significant new matters raised in cross. Court has discretion to allow re-direct on minor issues

Question 39

Can guilty pleas be admitted as substantive evidence?

Answer 39

Yes, as a party-opponent statement as a judicial statement or admission

Question 40

Are judgments of a felony conviction admissible?

Answer 40

Yes, as an exception to the hearsay rule in both criminal and civil actions to prove any fact essential to the judgment.