Evidence

Question 1

spousal privileges

Answer 1

spousal immunity = spouses may not be required to testify against each other in criminal case if still married

confidential marital communication = communications during marriage protected in both criminal and civil cases if intended to be private (e.g., “pillow talk”)

Question 2

reasons to use an out-of-court statement NOT to prove the truth of the matter asserted

Answer 2

“I didn’t offer it for the truth, so I LIED”

Impeachment
Legally operative statements (e.g., slander; contract)
Identity / MO
Effect on Listener
Declarant’s state of mind

Question 3

exceptions to hearsay – that require declarant be unavailable

Answer 3

“He’s unavailable because he has an STD, for F$$’s Psake”

Statement against interest
(Former) Testimony [w/ opp & motive to cross]
Dying Declaration [civil case or homicide only]
Forfeiture against wrongdoing
Personal / family history

Question 4

exceptions to hearsay – “wide open” exceptions in which declarant’s unavailability is immaterial

Answer 4

“Evidence Sucks, But Present Me Please, Robbie Coltrane”

Excited Utterance
Statement of present condition
Business records
Public records
Medical purpose
Present sense impression
Recorded recollection
Catch-all

Question 5

impeachment

Answer 5

“Please Cut Corners Before Slicing”

Prior Inconsistent Statements
Convictions
Character of Dishonesty
Bias, Motive, Interest
Sensory Deficiency

Question 6

non-hearsay by definition

Answer 6

It’s not hearsay that prior to the bar, I’d live In that Co-Op…
[prior] Identification statements
[prior] Inconsistent statement (under oath)
[prior] Consistent statement
Opposing party’s statements

Question 7

character evidence (general rule)

Answer 7

Inadmissible to prove propensity

Civil case: inadmissible to prove propensity; fine if character is an essential element; fine to offer character evidence about sexual assault / molestation if case is about that.

Criminal case:
– D may offer reputation / opinion of own good character
– P may then rebut about same trait
– D may offer rep / op evidence of victim’s character
– P may then rebut w/ rep / op OR specific acts

Question 8

permissible uses of character evidence

Answer 8

Motive
Intent
Mistake (absence of)
Identity / MO
Common plan

Question 9

recorded recollection rule

Answer 9

(i) concerns a matter that a witness once knew
(ii) was made or adopted by the witness when the matter was fresh in his/her mind and
(iii) accurately reflects the witness’s personal knowledge at the time it was made
(iv) the witness cannot currently recall at trial, even after refreshing is attempted

Question 10

Impeachment using prior conviction (which 403 standards apply?)

Answer 10

If >10 years since the conviction OR release from confinement: Probative value must substantially outweigh prejudicial effect

If <10 years:
–Crime of dishonesty: Always admissible
–Other felony:
——A witness or civil D: normal 403
——A criminal D: modified Rule 403 (probative value must merely outweigh prejudicial effect)

Question 11

authentication of evidence

Answer 11

Personal knowledge = Testimony by witness with personal knowledge of object (or that reproduction depicts original object)

Comparison = Comparison of object or writing against authenticated specimen by expert or trier of fact

Distinctive characteristics = Testimony on object’s appearance, contents, substance, internal patterns, or other distinctive characteristics

Chain of custody = Substantially unbroken account of object’s whereabouts from time it was obtained until introduction at trial

X-ray images & electrocardiograms = Evidence showing accurate process was used, machine was working properly, machine operator was qualified & chain of custody

Question 12

methods of authenticating documents

Answer 12

Stipulation or eyewitness testimony

Ancient documents & data compilation = At least 20 years old when offered; condition creates no suspicion about authenticity and was in place where authentic document would likely be

Public records = Record was recorded or filed in public office as authorized by law or in office where that type of item is kept

Reply letter = Document written in response to communication and contents make it unlikely response was written by someone other than recipient of first communication

Handwriting
——Comparison – expert witness or trier of fact compares authenticated against disputed handwriting (or fingerprints, hair, cloth fibers) or
——Non-expert opinion – witness with personal knowledge of authentic handwriting not acquired for litigation gives opinion on disputed handwriting

Self-authenticating:
——Public documents with official’s signature & authorized by official or seal
——Certified copies of public records & records of regularly conducted activities
——Newspapers, periodicals & official publications
——Documents with trade inscription
——Acknowledged documents
——Commercial papers, including signature & related documents

Question 13

admissibility of expert testimony

Answer 13

All the following must be true:

(1) expert must have knowledge, skill, training, or education on a subject pertaining to the litigation

(2) testimony is relevant by either helping fact finder understand the evidence or determine a fact at issue

(3) testimony is reliable by being based on sufficient facts/data and the product of reliable principles & methods properly applied to the facts of the case

NOTE: The burden is on the proponent of the evidence

Question 14

Confrontation Clause (Sixth Amendment)

Answer 14

The Sixth Amendment confrontation clause bars the admission of an unavailable hearsay declarant’s testimonial statement (eg, a statement made during a police investigation) unless the defendant had an opportunity to cross-examine the declarant