EVIDENCE

Question 1

Mandatory Presumption of a Victim’s Death in Criminal Trial

Answer 1

A mandatory presumption would conflict with presumption of innocence. Even with opportunity to rebut, not enough to overcome presumption of innocence.
*Prosecution is required to prove any and all elements of case (including whether a victim is dead).

Question 2

Specific Instances of Conduct (Good Character)

Answer 2

*FRE 404(a)(2)(A)-“Mercy Rule” -Only Reputation or Opinion evidence my be used by the defendant to prove good character if character is not an essential element to a charge or defense.

*FRE 405(a)-if character is admissible, it must be reputation or opinion.

*Apparently, honesty/dishonesty is not an essential element of fraud

Question 3

Statement Against Interest

Answer 3

FRE 804(b)(3) Statements Against Interest are admissible when:

(1) declarant is unavailable, and
(2) the statement is one that could subject the declarant to civil/criminal liability

*co-conspirator’s statements may fall under “non-hearsay” if made (1) during and (2) in furtherance of the conspiracy. FRE 801(d)(2)

Question 4

FRE 804(b)(3)

Answer 4

Statements Against Interest are admissible when:

(1) declarant is unavailable, and
(2) the statement is one that could subject the declarant to civil/criminal liability

Question 5

FRE 801(d)(2)

Answer 5

co-conspirator’s statements may fall under “non-hearsay” if made

(1) during and
(2) in furtherance of the conspiracy.

Question 6

Attacking Credibility

Answer 6

Attacking party is free to attack the credibility of other party’s witness (impeach). A direct contradiction on a material issue may be a proper contradiction.

Question 7

Privilege Against Self-Incrimination

Answer 7

One having a reasonable fear that answering a question might cause her to self-incriminate may assert her privilege against self-incrimination. Certainty of prosecution is not required. A mere possibility of prosecution (as long as it’s not remote) will suffice.

*Applies both in civil and criminal trials.

*This privilege takes precedence over the evidentiary value of testimony. The question may be proper (if asker had good faith basis to believe) and within his right-at least in the rules of evidence-to ask; however, the witness’ constitutional right against self-incrimination is greater.

Question 8

Admitting Evidence (photograph)

Answer 8

Admit when:

(1) Relevant-FRE 401
(2) Admission does not violate Best Evidence Rule
(3) Admission does not violate any other rule

Question 9

FRE 1004

Answer 9

An Original (photo, video, document, etc.) is not required if lost or destroyed (not by proponent in bad faith).

*Under FRE 1003 would make photo as duplicate auto-admissible. There is no requirement that before admitting a duplicate, others are known of and unavailable.

Question 10

FRE 801 (d)(2)

Answer 10

Treats as non-hearsay any statement that is

(1) offered against opposing party, and
(2) made by agent or employee
(3) on a matter within the scope of relationship
(4) while the relationship still existed

Question 11

Impeaching to prove negligence

Answer 11

Using a prior inconsistent statement is an impeaching use, which is NOT always admissible as substantive. Therefore, it is not the best method to prove negligence.

Question 12

Impeaching the Credibility of a Witness using Another Witness

Answer 12

FRE 806-allows a party to impeach a declarant’s credibility (even if they never testify) once his or her statement is properly admitted.

Impeachment can be via any means permissible, if declarant were actually on the stand (i.e. Reputation, Opinion, Prior Inconsistent Statement, etc.)

*Declarant does not need to have the chance to deny or explain the prior inconsistent statement.

Question 13

Impeaching Credibility v. Substantive Proof

Answer 13

FRE 613(b)-allows use of extrinsic evidence to show witness made a prior inconsistent statement if

(1) witness is given chance to explain/deny statement and
(2) opposing party is given chance to examine

or

if justice so requires.

Question 14

Effect of Hearsay within Hearsay

Answer 14

Both the outer and inner layer of Hearsay must fall within an exception or exemption in order to admit the evidence.

If both layers do not meet an exception or exemption, and is admitted anyway, then it is likely because the statement is not being offered to prove the truth of the matter asserted, which means it is not admissible for substantive purposes.

Question 15

FRE 804(b)(1)

Answer 15

Former Testimony Exception: In order for former testimony exception of FRE 804(b)(1) to apply, the testimony proffered to be admitted must:

(1) be offered against a party
(2) who had an opportunity and similar motive to develop it by direct/cross/redirect

*Includes in a civil case where the party or a predecessor in interest had an opportunity and similar motive to develop the testimony.

Question 16

Statement Consists of Repeating Something Said by Someone Else

Answer 16

Issue is Hearsay within Hearsay. When a statement consists of repeating something someone else said to second person, both statements must be analyzed under hearsay.

Both layers must meet an exception or exemption to be admissible.

Question 17

Attorney Client Privilege Umbrella

Answer 17

One who obtains a confidential communication while assisting a lawyer is covered by the attorney client privilege.

eg. A psychiatrist or Analyst who is retained to evaluate a witness and does a report on the witness will be covered under Attorney Client Privilege.

Question 18

FRE 404(b)

Answer 18

Evidence of a crime, wrong or act is not admissible to prove a person’s character in order to show that on a particular occasion he acted in accordance with that trait.

*Applying this rule means that the evidence cannot be introduced if for the purpose to prove violence

*404(b) allows evidence for another purpose to be admitted:

(1) Motive,
(2) Intent,
(3) Mistake (lack of),
(4) Plan,
(5) Preparation
(6) Identity,
(7) Opportunity,
(8) knowledge, and
(9) Accident (lack of)

Question 19

Mnemonic for Remembering the 8 Exceptions to Admitting Evidence to prove

Answer 19

MI PaPa Knows About MIO

M-Mistake (lack of)

I-Identity

P-Plan

P-Preparation

K-knowledge

A-Accident (lack of)

M-Motive

I-Intent

O-Opportunity

Question 20

FRE 801(C)

Answer 20

Hearsay defined. An out of court statement offered to prove the truth of the matter asserted.

Exemption: “Effect on the Listener”-is not hearsay because it is not being offered to prove the truth of the matter asserted, but being offered to show how the listener was affected, or that he was placed on notice, or some other purpose.

Question 21

FRE 615

Answer 21

Exclusion of Witnesses: At a party’s request, the court MUST order witnesses to be excluded…

*The court has discretion to permit inquiry into additional matters

Question 22

FRE 611(b)

Answer 22

As a general rule, cross-examination should not exceed scope of direct examination and matters affecting credibility. But, the court may within its discretion allow inquiry into additional matters as if on cross-examination.

When a lawyer is conducting cross-examination because the adverse party called his or her client as an adverse witness, the lawyer is to treat the cross-examination as if it were direct examination (since his own client), and should not be used as an opportunity to make use of leading questions.

Question 23

Taking Judicial Notice on Info From Source

Answer 23

FRE requires that the information to be Judicially Noted come from a source whose accuracy cannot reasonably be questioned.

Question 24

Best Evidence Rule

FRE 1002

Answer 24

“An original writing, recording, or photograph is required in order to prove its contents.”

*The BER does not apply to events that have by happenstance been recorded-it applies only where the terms of the recording, per se, are what are being sought to be proved.

Question 25

Impeach with Prior Inconsistent Statement

Answer 25

When impeaching a witness with a prior inconsistent statement, check to see if the statement is hearsay within hearsay.

• If it is, then both layers of hearsay must meet an exception or exemption in order for the statement to be admissible for substantive purposes.
• If either of the layers of hearsay do not meet an exception, then the statement may still be admissible but only for impeachment purposes (ie not admitted to prove the truth of the matter asserted).

Question 26

Double Hearsay

Answer 26

Anytime the evidence in question consists of a hearsay (out of court) statement by A, repeating another hearsay (out of court) statement by B, both levels of hearsay must be analyzed and meet an exception or exemption in order to be admitted.

Question 27

FRE 804(b)(1)

Answer 27

When a statement was made in a prior hearing/trial FRE 804(b)(1) (Former Testimony Exception) only applies when:

“The testimony is being offered against a party who had (or in a civil case, a predecessor in interest had) an opportunity and similar motive to develop it by direct/cross examination.”

Question 28

Quoting someone else quoting a defendant (Exception to Hearsay)

Answer 28

Cannot be admitted under State of Mind exception because the statement is not an example of the third party repeater’s state of mind.

i.e. hypo A

–Defendant: “I’m going to smash your head in when I see you.”

–Declarant to in-court witness: he said “I’m going to smash your head in when I see you.”

*Cannot be admitted as state of mind (which would be more like the declarant stating “I was really scared because he told me he was going to smash my head in.” and shows the effect of the listener-namely the declarant. Cannot be used to show the defendant’s “state of mind” and this is likely hearsay within hearsay)

Question 29

Grand Jury Proceedings and Rules

Answer 29

**The rules of privilege DO apply in grand jury proceedings

**The rules of hearsay often do NOT apply in grand jury proceedings.