Essay Approaches

Question 1

Relevance

Answer 1

Evidence is relevant if it has a tendency to make a fact more or less probable than it would be without the evidence and the fact is of consequence in determining the action.

Question 2

Exclusion of Relevant Evidence

Answer 2

Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.

Question 3

Character Evidence–Civil Case

Answer 3

In a civil case, character evidence is not admissible to prove that a person acted in accordance with that character trait on a particular occasion.

However, character evidence is admissible when character is an essential element of a claim or defense.

Question 4

Character Evidence–Criminal Case

Answer 4

In a criminal case, the prosecution is not permitted to introduce bad character evidence about a defendant in order to prove he has the propensity to commit the crimes.

Question 5

If the defendant “opens the door,” the prosecution may:

Answer 5

• Call a witness to rebut and attack the defendant’s claims of good character with reputation or opinion based evidence; or
• Cross-examine the defendant’s character witness and ask about the defendant’s reputation, opinion, or specific bad acts by the defendant.

Question 6

Victim’s Character

Answer 6

A defendant may introduce reputation or opinion evidence of the victim’s character trait if it is relevant to the defense asserted.

Question 7

Specific Bad Acts

(other uses)

Answer 7

May be admissible to prove motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. (MIMIC)

Question 8

Habit Evidence

Answer 8

Evidence of a habit or routine practice may be admitted to prove that on a particular occasion they acted in accordance with the habit or routine practice.

Question 9

Witness Competence

Answer 9

A non-expert witness must have personal knowledge of a matter to testify about it.

Question 10

Lay Opinion

Answer 10

A lay opinion is admissible if it is rationally based on the witness’s perception, helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and not based on scientific, technical, or specialized knowledge.

Question 11

Expert Testimony

Answer 11

• The subject matter must be scientific, technical, or specialized knowledge that assists the trier of fact on relevance.
• The testimony must be based on sufficient facts or data and the product of reliable principles and methods.

Question 12

Present Recollection Refreshed

Answer 12

A witness may examine any item to refresh his present recollection, and his testimony must be based on his refreshed recollection (he may not read from the document)

Question 13

Past Recollection Recorded

Answer 13

A memo or record about a matter the witness once had knowledge of but now has insufficient recollection of to testify that was made or adopted by the witness when it was fresh in the witness’s memory and is accurate may be read into evidence.

Question 14

Impeachment

A witness’s credibility can be attacked by:

Answer 14

• Opinion/reputation testimony from another witness
• Specific instances of conduct (subject to exceptions)

Question 15

Impeachment

Exception to specific instances of conduct rule: Criminal convictions

Answer 15

• Extrinsic evidence of a criminal conviction for crimes involving dishonesty must be admitted.
• Evidence of a crime not involving dishonesty if the crime was punishable for more than one year is admitted:
  (a) If the conviction is against a witness not the defendant, use 403 analysis
  (b) If the witness is the defendant, only admitted if the probative value outweighs the prejudicial effect to the defendant.
• 10 year rule: only admissible if the probative value substantially outweighs the prejudicial effect

Question 16

Impeachment

Prior inconsistent statements

Answer 16

A witness’s prior statement that is inconsistent with the current testimony is admissible to impeach the witness.

Question 17

Impeachment

Bias or interest

Answer 17

Extrinsic evidence is admissible to show that the witness is biased and may not be testifying truthfully is admissible.

Question 18

Impeachment

Sensory incompetence

Answer 18

Extrinsic evidence showing that a witness is physically or mentally impaired and is therefore not a credible witness is admissible.

Question 19

Impeachment

Impeachment of a hearsay declarant

Answer 19

If a hearsay statement is admitted into evidence, the declarant who made the original statement can be impeached as if the declarant was a testifying witness.

Question 20

Impeachment

Rehabilitation of a witness

Answer 20

• Explanation or clarification during redirect;
• Reputation or opinion evidence about the witness’s character for truthfulness; or
• A prior consistent statement.